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+"{\"id\": \"10339791\", \"name\": \"OSBORNE CONSTRUCTION COMPANY and Alaska Insurance/AIAC, Co., Appellants, v. Kenneth JORDAN, Appellee\", \"name_abbreviation\": \"Osborne Construction Co. v. Jordan\", \"decision_date\": \"1995-09-15\", \"docket_number\": \"No. S-6105\", \"first_page\": \"386\", \"last_page\": \"394\", \"citations\": \"904 P.2d 386\", \"volume\": \"904\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T20:43:00.763441+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before MOORE, C.J., RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.\", \"parties\": \"OSBORNE CONSTRUCTION COMPANY and Alaska Insurance/AIAC, Co., Appellants, v. Kenneth JORDAN, Appellee.\", \"head_matter\": \"OSBORNE CONSTRUCTION COMPANY and Alaska Insurance/AIAC, Co., Appellants, v. Kenneth JORDAN, Appellee.\\nNo. S-6105.\\nSupreme Court of Alaska.\\nSept. 15, 1995.\\nRehearing Denied Oct. 27, 1995.\\nTasha M. Porcello, Pletcher, Weinig, Mos-er & Merriner, Anchorage, for Appellants.\\nValerie M. Therrien, P.C., Fairbanks, for Appellee.\\nBefore MOORE, C.J., RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.\", \"word_count\": \"5038\", \"char_count\": \"31873\", \"text\": \"OPINION\\nMOORE, Chief Justice.\\nI. INTRODUCTION\\nKenneth Jordan filed a workers' compensation claim against his former employer, Osborne Construction Company (Osborne). The Alaska Workers' Compensation Board (the Board) denied Jordan's claim, finding that Osborne had presented substantial affirmative evidence to rebut the statutory presumption of compensability and that the preponderance of evidence indicated that Jordan's injury was not work-related. The superior court reversed the Board's decision and Osborne appealed. We affirm the superior court's decision.\\nII. FACTS AND PROCEEDINGS\\nA. The Injury\\nJordan was employed as a baekhoe operator for Osborne during the summer of 1989 at a project at Fort Wainwright. Jordan alleges that he injured his lower back on, or around, August 15,1989, by lifting a compactor out of a ditch jvhile at work for Osborne. He did not report the injury to anyone and continued to work. Jordan at one time claimed that he attempted to report the injury but was instructed not to report injuries by his immediate supervisor, Wayne Jordan (appellee's father), and by the project supervisor, James Worley. Following their denial, Jordan retracted his statement, claiming he should have said Osborne did not want too many injuries reported.\\nWorley learned of Jordan's injuries when he went to the job site to find a back hoe and operator for a small digging job:\\n[W]hen I got there, I motioned him off the machine and when he got off the machine he was walking bent over side ways and I asked him what had happened to him\\u2014 what happened to you and he said \\u2014 he told me that [he] had hurt his back. And I asked him how he did it and then he said that he was \\u2014 was moving \\u2014 helping a laborer move a compactor out of a footing.\\nHe got off the machine, he was stooped over and he was limping and was real stiff. And having had back surgery, he didn't have to tell me what his problem might\\u2014 for (indiscernible).\\nI can look at a man \\u2014 a way a man's walking and I can \\u2014 if you've ever had it, you know it.\\nJordan also told his father, Wayne, what had occurred at the job site. His father told the Board, \\\"I thought he just pulled a muscle in his back.\\\" This belief was corroborated when his son continued to work and \\\"after about two weeks, he stopped limping.\\\" Jordan continued working at the Fort Wainwright job and did not seek medical attention. He was laid off in October 1989. Up to the end of the job, he felt he could continue to work as an operator:\\nI thought I could still continue working. Once my leg quit hurting, I felt better and I thought that I would get better. My assumption was that I was going to get better and I had improved \\u2014 in fact I had improved without having the leg pain.\\nB. The Medical Diagnosis and Treatment\\nJordan first consulted a physician concerning lower back pain in March 1990. That physician, Dr. Young Ha, an orthopedic surgeon in Fairbanks, made the following chart notes:\\nThis young fellow who developed rather sudden onset of pain in his left side of the buttock which goes down the back of the thigh all the way down to the calf. The pain is rather persistent and quite disturbing in terms of his ability to do things.... This pain started about eight days ago after playing basketball and moving furniture about an hour although he does not recall any specific incident in which he had any pain although he did feel some discomfort in his lower back.\\nLate October [sic] 1989 he had back pain after pulling a plate compactor up from a slope at his work for Osborne Construction Company. However, he did not have any leg pain and he did not lose any time from his work.\\n(Emphasis added.) Dr. Ha concluded that Jordan was suffering from a herniated disc, most likely at L4-L5. He recommended conservative treatment and instructed Jordan to return if he did not improve. Jordan did not return for a follow-up visit.\\nHe next sought relief from two chiropractic clinics. In April 1990, while on vacation in Oklahoma, Jordan consulted Dr. G.F. Palmer. Jordan's wife filled out the New Patient Preliminary Information Questionnaire and described his problem as pain through lower back to calf. The date of the accident was stated as \\\"beginning of March,\\\" and the cause was listed as \\\"carrying furniture.\\\" References on the form to \\\"on the job\\\" injury and \\\"workers' compensation\\\" insurance were left blank. Jordan signed the form. After returning to Fairbanks, Jordan sought treatment from Dr. Frank Spaulding, DC, and began a series of treatments. The intake forms from Dr. Spaulding's office also indicated that Jordan's condition arose after \\\"moving furniture,\\\" and he again answered questions concerning on the job injury and workers' compensation in the negative. The efforts at seeking relief through chiropractic manipulation were unsuccessful.\\nJordan next sought an evaluation in May 1990 from Dr. Edwin Lindig, an orthopedic surgeon at the Fairbanks Clinic. Once again, Jordan stated on the patient intake form that his condition arose after \\\"moving in February.\\\" Later in May, Jordan consulted Dr. George Vrablik, another orthopedic surgeon at the Fairbanks Clinic. Jordan told Dr. Vrablik that he had first hurt his back \\\"at work,\\\" then later \\\"while moving.\\\" Dr. Vrablik ordered a CT scan, which revealed, for the first time, that Jordan had herniated discs at three levels of his lumbar spine, L3-L4, L4-L5, and L5-S1. Dr. Vrablik recommended that Jordan fill out \\\"workman's comp paperwork.\\\" This led to the filing of the formal Report of Injury on June 5, 1990.\\nIn June Jordan received a second opinion from Dr. George Brown, another orthopedic surgeon in Fairbanks. Dr. Brown confirmed Dr. Vrablik's diagnosis. With Dr. Vrablik out of town on vacation, Dr. Brown performed a three-level decompression laminec-tomy. Jordan recovered quickly from the surgery. In less than two months, he accepted a temporary job with the Fairbanks North Star Borough School District as a substitute custodian.\\nSubsequent to the surgery, the parties entered into a stipulation that Jordan's permanent impairment rating, based on the American Medical Association Guidelines to Permanent Impairment, should be 21.5% of the whole man. Prior to the stipulation, Osborne asked Dr. Robert Fu, an Anchorage orthopedic surgeon, to rate Jordan's impairment. Osborne also asked Dr. Fu to state an opinion as to the work-relatedness of Jordan's disability. In a letter to Osborne's counsel, Dr. Fu stated that, based on the history given him by Jordan and the records which Osborne provided, the start of his back trouble was on August 15, 1989, while working for Osborne, and the injury was aggravated by his subsequent moving of furniture.\\nC. The Workers' Compensation Claim\\nOsborne initially accepted Jordan's claim for workers' compensation benefits and paid temporary total disability (TTD) and medical costs from June 7,1990 to October 9,1990, at which time Jordan was released for light duty work as medically stable under AS 23.30.265(21). In January 1991, Jordan filed an Application for Adjustment of Claim requesting a hearing before the Board. Osborne filed an answer controverting the benefits requested by Jordan on the grounds that his back condition was not work-related.\\nA hearing before the Board was held on December 17, 1991, but was not concluded. When the Board reconvened on February 4, 1992, one of the three members of the panel considering Jordan's claim was not present. The remaining two members proceeded to hear the case under AS 23.30.005\\u00ae, which permits two of the three panel members to constitute a quorum.\\nIn a February 1992 Decision and Order, the two members of the panel hearing the claim announced that they could not agree on whether Jordan's claim was compensable. They decided to submit the recorded testimony from the February 4,1992, hearing to the third member to review and cast the deciding vote.\\nIn a second Decision and Order issued March 31, 1992, the absent member of the panel, having reviewed the record, decided the claim was not compensable. The majority concluded that Jordan was not a credible witness and that, as a result, the medical reports supporting his claim also were not credible since they were based on what Jordan had reported to the physicians.\\nThe third board member wrote a separate dissenting opinion. He wrote:\\nI do not find it particularly surprising that someone suffering sharp back discomfort would initially ascribe the pain to the most recent vigorous activity. Once it is apparent that the injury is more profound than originally assumed, the search for the underlying cause of the condition would of necessity become more intense. Regrettably, the employee's lack of reliability in this ease makes the determination of the ca[u]se of his injury more difficult for everyone concerned: the physicians, the employer and the insurer, and the board. In a nutshell, I am persuaded by Dr. Brown's opinion that the employee's claim simply fits the facts better than alternate explanations. I would find the employee's attempt to move a heavy industrial dirt compactor the most likely cause of his herniated disc. As a consequence, I would find his claim compensable.\\nJordan appealed the Board's decision to the superior court. The superior court reversed the Board and remanded with instructions to find Jordan's claim compensable. Osborne appeals this decision.\\nIII. DISCUSSION\\nUnder Alaska's workers' compensation statute, an employee's claim is presumed to be compensable. AS 23.30.120(a)(1). The application of this statutory presumption involves a three-step analysis. Louisiana Pacific Corp. v. Koons, 816 P.2d 1379, 1381 (Alaska 1991) (per curiam). First, the employee must establish a \\\"preliminary link\\\" between the disability and his or her employment. Id. Once this preliminary link has been established, \\\"it is the employer's burden to overcome the presumption by coming forward with substantial evidence that the injury was not work related.\\\" Id. (quoting Burgess Constr. Co. v. Smallwood, 623 P.2d 312, 316 (Alaska 1981)). While the employee still bears the burden of proof, the burden of going forward with evidence shifts to the employer. Municipality of Anchorage v. Carter, 818 P.2d 661, 665 (Alaska 1991). If the employer successfully rebuts the presumption of compensability, the presumption drops out and the employee must prove all of the elements of the case by a preponderance of the evidence. Koons, 816 P.2d at 1381.\\nThe Board found that Jordan successfully established a preliminary evidentiary link raising the presumption of compensability. This finding was based, on the testimony of Jordan's supervisors that he suffered a back injury on the job. Osborne does not dispute this finding. The real controversy in this appeal centers on whether Osborne adequately rebutted the presumption of com-pensability.\\nAn employer can rebut the presumption \\\"either by presenting affirmative evidence that the injury is not work-connected or by eliminating all possibilities that the injury was work-connected.\\\" Veco, Inc. v. Wolfer, 693 P.2d 865, 872 (Alaska 1985). Whether or not an employer has produced substantial evidence to rebut the presumption of compensability is a question of law to which this court applies its independent judgment. Id. at 871 n. 8. \\\"Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' \\\" Roth v. Valley Constr., 671 P.2d 871, 875 (Alaska 1983) (quoting Miller v. ITT Arctic Serv., 577 P.2d 1044,1049 (Alaska 1978)).\\nIn this case, Osborne sought to rebut the presumption of compensability by presenting evidence that Jordan originally attributed the onset of his 1980 disability to moving furniture and playing basketball. A majority of the board agreed, finding that \\\"[t]he available medical records of the employee's visits to the chiropractors and to Dr. Ha on March 19, 1990, all implicitly indicate that this back condition arose by the employee either playing basketball or moving furniture.\\\"\\nThe superior court reversed the board, observing that \\\"the evidence presented by Osborne, namely that Jordan initially cited to the furniture moving and basketball playing as the potential culprits of his back and leg pain, does not exclude the possibility that the injury he experienced after lifting the compactor was somehow the culprit.\\\" We agree. Under Alaska law, a disability arising after a non-work-related injury is still compensable if an earlier work-related injury substantially contributed to the employee's disability. See Walt's Sheet Metal v. Debler, 826 P.2d 333, 335 (Alaska 1992). Thus the fact that an employee has suffered a non-work-related injury does not, standing alone, rebut the presumption of compensability. Alaska Pacific Assur. Co. v. Turner, 611 P.2d 12,14 (Alaska 1980) (holding that where an employee suffers a work-related injury and then suffers an aggravation unrelated to his employment, the employer must show that the work-related injury was not a \\\"substantial factor contributing to the later injury\\\" in order to rebut the presumption of compensability).\\nIn Turner, an employee began to suffer from pain in his right leg while working as a heavy machine operator. Although his leg pain grew progressively worse, the employee did not consult a doctor. Approximately two months after he stopped working for his employer, in part because of his recurrent leg pain, the employee experienced a sharp pain in his back when he lifted the tongue of a boat trailer. Id. at 13. The employee then consulted a doctor who ultimately concluded that the employee had suffered a herniated disc as a result of his work as a heavy machine operator. Id. at 13-14. In reversing the board's finding that the employer had rebutted the presumption of compensability, we observed:\\nApparently the Board concluded that [the employee] either suffered no injury while working for [the employer] or that, if he did, such injury was not a substantial factor contributing to the later injury. In essence, the Board chose to disbelieve [the employee's] account of the onset of his symptoms and rejected Dr. Newman's evaluation of his injuries. The Board emphasized [the employee's] failure to seek medical attention until after the trailer lifting incident, and his failure to mention any back or leg pain while visiting a medical clinic for a skin problem in January, 1976. Relying on Dr. Newman's notes, which were later related by him in his testimony, the Board further emphasized what it perceived as conflicts in the medical history [the employee] purportedly gave to Dr. Newman. Based on this evidence, the Board concluded that [the employee's] disability resulted entirely from the trailer lifting incident.\\nSeemingly ignored by the Board was the testimony of [employee's] camp supervisor, Robert Terry, which strongly supported [the employee's] own testimony, and the opinion of his doctor, that his symptoms appeared and worsened while he was working for [the employer]. We note also that the record contains no medical opinion contrary to the one expressed by Dr. Newman .\\nId. at 14-15 (footnotes omitted). In the absence of conclusive medical evidence, the Turner court concluded that the employer had failed to present substantial evidence rebutting the presumption of compensability. Id. at 15.\\nAlthough expert medical evidence is not always necessaiy to rebut the statutory presumption, something more than proof of a non-work-related injury is required. See, e.g., Wolfer, 693 P.2d at 871-72. In Wolfer, an employee became disabled after he collapsed at work while tightening an overhead bolt in 1980. The employer sought to rebut the presumption of compensability by presenting circumstantial evidence suggesting that the employee's 1980 disability had actually been caused by an earlier 1979 injury. We summarized the employer's evidence as follows:\\n(1)[The employee] suffered a disabling back injury in December 1979. [The employee] testified, both in his deposition and at his hearing, that since 1979, his back bothered him recurrently whenever he engaged in manual labor.\\n(2) [The employee] testified that on two prior occasions (in March and April of 1980) he passed out while bending over. [The employee] related these incidents to his December 1979 injury.\\n(3) It is undisputed that when [the employee's] back gave out in October 1980, he was not engaged in strenuous activity and did not slip or fall.\\n(4) [The employee] wrote in his October 1980 Report of Occupational Injury or Illness that he had \\\"pulled something in his back\\\" which \\\"happens of [sic] and on every so often under hard labor since 1979.\\\"\\n(5) [The employee] testified that when he returned to Veco on October 23, 1980, he worked primarily as a supervisor. [The employee] continued working after October 26,1980, until he was laid off on November 27,1980 because of a reduction in the work force.\\n(6) [The employee's treating physician after November 1980] testified that [the employee] never mentioned the October 1980 incident when he described the medical history of his injury in December 1980. [The doctor] found [the employee's] complaints to be consistent with his description of the December 1979 injury. [A second doctor] also referred only to the December 1979 injury in his report.\\nId. at 871-72. On appeal, we held that a reasonable mind might rely on this evidence to conclude that the employee's 1980 injury did not cause his subsequent disability. Id. at 870-72 (rejecting the employee's claim that the employer was required to produce expert medical evidence to rebut the presumption of compensability). \\\"This evidence, if relied upon, tends to show that the October 1980 incident, did not change the type of work [the employee] could do, or aggravate his original injury.\\\" Id. at 872. We thus concluded that the circumstantial evidence presented by the employer, coupled with the employee's own statements concerning his back condition, created a reasonable inference that the 1980 injury was merely a \\\"flare-up\\\" of the employee's earlier injury. Id.\\nUnder Wolfer and Turner, Osborne has failed to present sufficient affirmative evi- denee to rule out the work-relatedness of Jordan's injury. The sole evidence presented by Osborne to show that Jordan's disability was not related to his 1989 work injury was that (1) Jordan experienced sudden leg and lower back pain after playing basketball and moving furniture in February 1990, and (2) Jordan failed to mention his 1989 work injury on his medical intake forms when he subsequently sought medical attention for his back pain. This alone does not constitute substantial evidence that Jordan's back problem was not work-related; it is entirely reasonable for a layperson to associate the onset of sudden pain with his most recent physical activity. Furthermore, it is undisputed that Jordan told Dr. Ha about his 1989 injury when he first consulted him in March 1990. Cf. Wolfer, 698 P.2d at 871 (where the employee did not mention his second injury at all when he consulted a doctor about his back condition); Turner, 611 P.2d at 15 & n. 6 (where it was unclear from the doctor's medical records when the employee first told the doctor about the work-related injury). In fact, none of the doctors who examined Jordan and who were told of his injury at work were willing to rule it out as the initial source of his back trouble. On this record, a reasonable mind could not conclude, based solely on Jordan's initial failure to cite his work injury on his medical intake forms, that his 1989 injury did not contribute to his 1990 disability. Neither the medical evidence nor the circumstances surrounding Jordan's two injuries support such a finding.\\nOn appeal, Osborne places great emphasis on Jordan's lack of credibility. The first argument raised in Osborne's brief is that \\\"[l]ying under oath is contrary to public policy.\\\" Osborne appears to argue that a claimant who has been proven not credible should not be entitled to the presumption of com-pensability. Osborne is essentially arguing for an oversimplification of the three-step analysis that applies in workers' compensation claims. As discussed above, the presumption only attaches once the claimant has established a \\\"preliminary link\\\" between the injury and the employment. If a claimant's testimony proved totally unreliable, this link would not be established. However, where there is corroborating evidence, as in this case, the link is clearly established.\\nOsborne also cites Resler v. Universal Services, 778 P.2d 1146 (Alaska 1989), for the proposition that a claimant's lack of credibility, coupled with other evidence, is sufficient to overcome the presumption. As Osborne correctly observes, \\\"[t]he issue before this court is narrowed to how much additional evidence, in combination with the lack of credibility, is required to support the board's conclusion.\\\" An examination of the facts of Resler is instructive. Resler claimed that she injured her shoulder while working as a housekeeper. Id. at 1147. However, several doctors who performed diagnostic tests failed to find an objective basis for Resler's pain. Id. at 1148 & n. 1. The Board found that the medical reports and the testimony of the doctors, along with the depositions of Res-ler's co-workers, constituted substantial evidence to rebut the presumption that Resler's injury was work-related. Id. at 1150. This court affirmed the superior court's affir-mance of the Board's decision. Id.\\nJordan's ease is distinguishable from Res-ler. There is no dispute that Jordan suffered an objectively measured injury. Furthermore, Jordan's supervisors, rather than disputing his claim of work-relatedness, provided corroborating evidence that he was injured while working for Osborne. Thus, Osborne has failed to produce \\\"some evidence,\\\" in addition to the employee's lack of credibility, to rebut the presumption of compensability under the Resler test.\\nIV. CONCLUSION\\nSince Osborne has failed to produce substantial evidence to rule out work-relatedness, Osborne has failed to rebut the pre sumption of compensability. Therefore, we AFFIRM the decision of the superior court, which reversed the Board.\\nEASTAUGH, J., with whom COMPTON, J., joins, dissents.\\n. Osborne's insurer, Alaska Insurance/AIAC Co., is co-appellant in this case.\\n. The correct month was August.\\n. The Board rejected this stipulation in a Decision and Order dated December 10, 1991, holding that the parties could not by agreement impede the Board's prerogative to order, if it so elected, its own independent medical evaluation under AS 23.30.095(k).\\n. We recently approved such a procedure in Schmidt v. Beeson Plumbing & Heating, 869 P.2d 1170, 1177-79 (Alaska 1994).\\n. Osborne emphasizes that the doctors' opinions regarding causation are only as reliable as the information received from Jordan. However, both Jordan's project supervisor and Jordan's father observed Jordan in pain after he moved the compactor at the Fort Wainwright project. Because the fact of Jordan's 1989 injury was corroborated by this testimony, Osborne must produce substantial evidence ruling out that episode as the source of Jordan's herniated discs. See Turner, 611 P.2d at 14-15.\\n. Having concluded that Osborne failed to rebut the presumption, we need not consider the next step in the workers' compensation analysis \\u2014 the weighing of the evidence to determine if the claimant has proved all elements by a preponderance of the evidence.\"}"

alaska/10340302.json

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+"{\"id\": \"10340302\", \"name\": \"STATE of Alaska, Appellant, v. Frank STEFFENSEN, Appellee\", \"name_abbreviation\": \"State v. Steffensen\", \"decision_date\": \"1995-09-15\", \"docket_number\": \"No. A-5041\", \"first_page\": \"340\", \"last_page\": \"343\", \"citations\": \"902 P.2d 340\", \"volume\": \"902\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Court of Appeals\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T18:43:34.517492+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.\", \"parties\": \"STATE of Alaska, Appellant, v. Frank STEFFENSEN, Appellee.\", \"head_matter\": \"STATE of Alaska, Appellant, v. Frank STEFFENSEN, Appellee.\\nNo. A-5041.\\nCourt of Appeals of Alaska.\\nSept. 15, 1995.\\nReview Denied Nov. 20, 1995.\\nCynthia L. Herren, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for appellant.\\nMarcia E. Holland, Assistant Public Defender, Fairbanks, and John B. Salemi, Public Defender, Anchorage, for appellee.\\nBefore BRYNER, C.J., and COATS and MANNHEIMER, JJ.\", \"word_count\": \"1831\", \"char_count\": \"11724\", \"text\": \"OPINION\\nMANNHEIMER, Judge.\\nThe State of Alaska appeals the superior court's decision to grant post-conviction relief to Frank Steffensen. As explained in more detail below, we remand this ease to the superior court for further proceedings.\\nIn 1988, Steffensen was charged with third-degree misconduct involving a controlled substance (possession of cocaine), AS 11.71.030(a). The cocaine was discovered on Steffensen's person after he was arrested on an outstanding bench warrant. Steffensen ultimately pleaded no contest to the cocaine charge. In his subsequent petition for post-conviction relief, Steffensen claimed that he had received ineffective assistance of counsel because his attorney did not seek suppression of the cocaine by attacking the legality of Steffensen's arrest. Superior Court Judge Mary E. Greene agreed with Steffensen that a competent attorney would at least have researched such a motion. Judge Greene further concluded that there was at least a reasonable possibility that the suppression motion would have been granted if it had been filed. Based on these findings, Judge Greene ordered that Steffensen be allowed to withdraw his plea.\\nWe agree with Judge Greene that the theory of suppression argued by Steffensen in his petition for post-conviction relief was reasonably apparent from existing search- and-seizure case law. However, a defense attorney's failure to pursue a potentially dis-positive motion is not always a sign of incompetence. Depending on the circumstances of the ease, an attorney may have sound reasons not to pursue such a motion.\\nFor example, during his testimony at the hearing in this case, Steffensen's attorney suggested that he might have knowingly refrained from filing the suppression motion because he intended to negotiate a \\\"package deal\\\" that would resolve several criminal charges pending against Steffensen, and because he felt that the State would probably insist on the same negotiated sentence regardless of whether he was successful in knocking out any one charge. The defense attorney's testimony only suggests, and does not establish, this possible explanation of his inactivity. Nevertheless, if Steffensen's attorney had a valid tactical reason for failing to pursue the suppression motion, then his failure to pursue the motion would not constitute ineffective assistance of counsel. Tucker v. State, 892 P.2d 832, 834 (Alaska App.1995); Steffensen v. State, 837 P.2d 1123, 1126-27 (Alaska App.1992).\\nEven assuming that the defense attorney had no valid reason for failing to pursue the suppression motion, the question remains whether Steffensen was prejudiced by his attorney's inaction. On appeal, the State argues that Steffensen's arrest was legal under the facts of this case and that the proposed suppression motion would have been denied. Steffensen, for his part, argues that his arrest was illegal and that the superior court would have suppressed the evidence against him if the proposed motion had been filed. Both parties' arguments are premature; the superior court has never ruled on Steffensen's proposed suppression motion. In her decision, Judge Greene did not reach the merits of Steffensen's suppression motion; she merely found that there was at least a reasonable possibility that the motion would have been granted if it had been filed and heard.\\nIt is evident that the number of color-able suppression motions (those that have some possibility of success) is greater than the number of winning ones. Many colorable motions are ultimately denied because, under the law and the facts of the case, they turn out to be meritless. If criminal convictions were overturned based merely on a showing that the defense attorney inexcusably failed to file a colorable (but ultimately meritless) motion, many convictions would be overturned for no good reason. That is, a defendant is not prejudiced by a defense attorney's failure to file a suppression motion if, after the motion is fully heard, the court finds that the motion should be denied.\\nJudge Greene's findings \\u2014 (1) that Steffensen's attorney failed to investigate a suppression motion, (2) that this motion had at least a colorable chance of success, and (3) that this motion would have been dispositive if granted \\u2014 are not a sufficient basis to allow Steffensen to withdraw his plea. Under Risher v. State, 523 P.2d 421, 425 (Alaska 1974), even after a defendant demonstrates that his or her attorney failed to act competently, the defendant must additionally demonstrate that there is at least a reasonable possibility that the attorney's lack of competency contributed to the defendant's conviction.\\nApplying this standard to the facts of Stef-fensen's case, we conclude that Risher requires proof that the proposed suppression motion would have been granted and, additionally, that there is at least a reasonable possibility that the outcome of the trial court proceedings would have been different had the evidence been suppressed. In Tucker, 892 P.2d at 834, this court reviewed a similar post-conviction relief claim and declared that the defendant had failed to establish grounds for relief because he had \\\"failed to establish that the warrantless seizure of his clothing was unlawful\\\" and because the defendant had \\\"similarly failed to create a reasonable doubt as to whether suppression of the clothing would have altered the jury's decision\\\". In an analogous case, the United States Supreme Court stated:\\nWhere defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must . prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence[.]\\nKimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 2582, 91 L.Ed.2d 305 (1986).\\nIn the quoted passage, the Supreme Court refers to a \\\"reasonable probability\\\" that the verdict would have been different. This phrasing comes from Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). In Alaska, under the Risher test, the question is whether there is a \\\"reasonable possibility\\\" that suppression of the challenged evidence would have led to a different result, because Risher holds that it is the defendant's burden to create a reasonable doubt concerning whether he or she was prejudiced by the trial attorney's incompetence.\\nState courts are split concerning whether to require proof that a defense attorney's incompetence had a \\\"reasonable probability\\\" of affecting the verdict (the Strickland test) or a \\\"reasonable possibility\\\" of affecting the verdict (the Risher test). However, regardless of which standard of proof courts apply, the courts unanimously agree that when a defendant asserts ineffective assistance of counsel based on his or her attorney's failure to challenge the government's evidence, the defendant must show that the proposed challenge would have been successful and then the defendant must show that the objectionable evidence might have affected the verdict. See State v. Berryman, 178 Ariz. 617, 622 & n. 3, 875 P.2d 850, 855 & n. 3 (App.1994), review denied (Ariz.1994) (To show ineffective assistance of counsel, the defendant must show that the proposed suppression motion would have succeeded and that, with the challenged evidence suppressed, there is a reasonable possibility that the result at trial would have been different.); State v. Kasten, 170 Ariz. 224, 228-29, 823 P.2d 91, 95-96 (App.1991), review denied (Ariz.1991) (the defendant must show that the suppression motion would have been granted); Huck v. State, 124 Idaho 155, 158-59, 857 P.2d 634, 637-38 (App.1993); State v. Richardson, 114 N.M. 725, 727-28, 845 P.2d 819, 821-22 (App. 1992), cert. denied, 114 N.M. 550, 844 P.2d 130 (1992); State v. Thompson, 69 Wash.App. 436, 848 P.2d 1317, 1321 (1993). See also People v. Mattson, 50 Cal.3d 826, 268 Cal.Rptr. 802, 836, 789 P.2d 983, 1017 (1990), cert. denied, 498 U.S. 1017, 111 S.Ct. 591, 112 L.Ed.2d 595 (1990) (\\\"A claim of ineffective assistance of counsel based on a trial attorney's failure to make a motion or objection must demonstrate not only the absence of a tactical reason for the omission . but also that the motion or objection would have been meritoriousf.]\\\").\\nThus, two issues remain to be resolved in Steffenseris post-conviction relief litigation: (1) whether Steffenseris attorney had a valid tactical reason to refrain from pursuing the proposed suppression motion; and (2) whether the proposed suppression motion is, in fact, meritorious. (Under the facts of this case, suppression of the cocaine obviously would affect the outcome of the criminal proceeding against Steffensen.)\\nThese two unresolved issues turn on questions of fact that have not been fully litigated. We therefore remand this ease to the superi- or court.\\nThis case is REMANDED to the superior court for further proceedings in light of this opinion. We do not retain jurisdiction of this ease.\\nBefore COMPTON, C.J., and RABINOWITZ, MATTHEWS, MOORE and EASTAUGH, JJ.\\nORDER\\nOn consideration of the petition for review filed on September 11, 1995, and the response filed on October 10, 1995,\\nIT IS ORDERED:\\nThe petition for review is DENIED.\\nEntered by direction of the Supreme Court at Anchorage, Alaska on November 20, 1995.\\n. The requirement that the merits of the proposed suppression motion be demonstrated conclusively (rather than to some lesser degree of certainty) appears grounded on the recognition that, once the facts are determined, a suppression motion presents a question of law that is susceptible of a conclusive answer. On the other hand, any ensuing assessment of how the fact-finder would have viewed the case if the challenged evidence had not been presented necessarily involves a weighing of probabilities.\\n. See State v. Richardson, 114 N.M. 725, 729, 845 P.2d 819, 823 (1992), cert. denied, 114 N.M. 550, 844 P.2d 130 (1992), holding that when a defendant's trial attorney appears to have acted incompetently but the record does not resolve whether the attorney had a justifiable tactical reason for the action/inaction, an appellate court's proper course is to remand the case to the trial court for a hearing on this issue. Compare the approach taken in In re Neely, 6 Cal.4th 901, 26 Cal.Rptr.2d 203, 205, 864 P.2d 474, 476 (1993), where the California Supreme Court, after determining that there were colorable grounds for the defendant's proposed suppression motion, appointed a superior court judge to be a \\\"referee\\\" (that is, a special master) and directed the referee to hold a hearing into (1) the factual merit of the defendant's proposed suppression motion and (2) the reasons why the defendant's trial attorney refrained from filing the motion. After making these findings, the referee sent the case back to the supreme court.\"}"

alaska/10342994.json

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+"{\"id\": \"10342994\", \"name\": \"Martin D. VICTOR, III; Patricia Victor, Plaintiffs, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant\", \"name_abbreviation\": \"Victor v. State Farm Fire & Casualty Co.\", \"decision_date\": \"1996-01-05\", \"docket_number\": \"No. S-6524\", \"first_page\": \"1043\", \"last_page\": \"1049\", \"citations\": \"908 P.2d 1043\", \"volume\": \"908\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T20:15:21.222917+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.\", \"parties\": \"Martin D. VICTOR, III; Patricia Victor, Plaintiffs, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant.\", \"head_matter\": \"Martin D. VICTOR, III; Patricia Victor, Plaintiffs, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant.\\nNo. S-6524.\\nSupreme Court of Alaska.\\nJan. 5, 1996.\\nRaymond A. Nesbett, Raymond A. Nes-bett, P.C., Anchorage, for Plaintiffs.\\nDavid S. Cartel\\u2019, Hughes, Thorsness, Gantz, Powell & Brundin, Anchorage, Pamela A. Okano, Reed McClure, Seattle, Washington, for Defendant.\\nBefore MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.\", \"word_count\": \"3653\", \"char_count\": \"22727\", \"text\": \"OPINION\\nMATTHEWS, Justice.\\nI. FACTS AND PROCEEDINGS\\nThis case comes to us on certification from the United States District Court for the District of Alaska. We agreed to answer the following question:\\nUnder Alaska's Mandatory Motor Vehicle Insurance Act, may the insurer reduce its policy limit for uninsured and underin-sured motorist coverage by the amount of any payment the insured receives from or on behalf of a joint tortfeasor when the policy limit is lower than the amount of the insured's compensable damages attributable to the fault of the uninsured or under-insured motorist?\\nThe District Court's statement of facts and discussion of applicable law which accompanied the certification request is set forth in the appendix. Briefly, the facts are as follows: Martin Victor was injured in an automobile accident. He stopped his vehicle suddenly in order to avoid a wheel thrown from a trailer towed by a vehicle driven by Ronald Smith. In the process of making this emergency stop, Victor's vehicle was struck from behind by a vehicle driven by Norman Lichter. Victor settled a claim for his personal injuries against Lichter for $50,000. Smith was uninsured. Victor sued Smith and received a default judgment in excess of $300,-000. Victor has uninsured motor vehicle coverage of $100,000 per person written by State Farm Fire & Casualty Company. He sued State Farm to collect this coverage in superior court; the case was removed to the United States District Court, which ordered the parties to arbitrate Victor's claim in conformity with policy language. The arbitrators determined that Victor incurred damages totalling $293,626.80 and that Smith was 75% at fault and Lichter 25% at fault. State Farm then tendered $41,469.55, claiming that this was full payment based on Victor's $100,-000 policy limit, less an offset for the $50,000 Victor had received from his settlement with Lichter, and $8,530.45 which State Farm had paid Victor under his medical payments coverage. Victor claims that the $50,000 paid by Lichter should be deducted from his total damages, $293,626.80, not from the $100,000 policy limit.\\nII. DISCUSSION\\nWe conclude that the State Farm policy involved in this case requires that the amount paid by Lichter be deducted from Victor's damages, not from his policy limits. As the Alaska Mandatory Motor Vehicle Insurance Act does not preclude coverage broader than that required under the Act, it is unnecessary to independently construe the meaning of AS 28.22.211(b)(2). '\\nWe set out here the relevant provisions of the uninsured and underinsured endorsement to the policy:\\nSECTION III \\u2014 UNINSURED AND UN-DERINSURED MOTOR VEHICLE-COVERAGE U\\n(Damages for Bodily Injury and Property Damage Caused by Uninsured Motor Vehicles and Underinsured MQtor Vehicles)\\nYou have this coverage if \\\"U\\\" appears in the \\\"Coverages\\\" space on the declarations page.\\nWe will pay damages for bodily injury and property damage an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle or an un-derinsured motor vehicle.\\nLimits of Liability\\n1. Bodily Injury\\nThe amount of coverage is shown on the declarations page under \\\"Limits of Liability \\u2014 U\\u2014Bodily Injury, Each Person, Each Accident\\\". Under \\\"Each Person\\\" is the amount of coverage for all damages due to bodily injury to one person. Under \\\"Bodily Injury \\u2014 Each Accident\\\" is the total amount of coverage, subject to the amount shown under \\\"Each Person\\\", for all damages due to bodily injury to two or more persons in the same accident.\\n3. Any amount payable under this coverage for bodily injury shall be reduced by any amount paid or payable to or for the insured under:\\na. the liability coverage;\\nb. the medical payments coverage;\\nc. any worker's compensation law.\\n7. If the damages are caused by an uninsured motor vehicle, any amount payable under this coverage shall be reduced by any amount paid or payable to or for the insured by or for any person or organization who is or may be held legally liable for bodily injury to the insured or property damage.\\n8. If the damages are caused by an un-derinsured motor vehicle the most we pay will be the lesser of:\\na. the difference between the limits of liability of this coverage, and the amount paid to the insured by or for any person or organization who is or may be held legally liable for the bodily injury or property damage; or\\nb. the amount of the damages sustained but not recovered.\\nState Farm argues that the language under the Limits of Liability heading in clause 7, \\\"any amount payable under this coverage,\\\" refers to the limit of liability referred to in clause 1 under the same heading. Victor argues, on the other hand, that the questioned phrase refers to the language of the general insuring clause under Coverage U: \\\"We will pay damages . an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle.... \\\" In our view Victor has the better argument for a number of reasons.\\nFirst, structurally, clauses 7 and 1 under the Limits of Liability heading are parallel. Both modify the Coverage U insuring clause, but neither modifies, or is subordinate to, the other. This suggests that the reduction clause in clause 7 applies to \\\"damages . an insured is legally entitled to collect\\\" described in the general insuring clause rather than to the policy limits described in clause 1.\\nSimilar reasoning was employed by the Court of Appeals of Maryland in McKoy v. Aetna Casualty & Surety Co., 281 Md. 26, 374 A.2d 1170, 1172-73 (1977):\\nWhen the structure of the endorsement and the arrangement of the various clauses are considered, we believe that clause 111(d) should be construed as providing for a setoff against the total damages suffered and not against the face value of the endorsement. .\\nSection I, \\\"Uninsured Motorist Coverage,\\\" sets out the basic liability of Aetna, to pay all damages which the insured is legally entitled to recover resulting from an accident with an uninsured motorist. Section III, entitled \\\"Limits on Liability,\\\" begins \\\"the company's liability is limited as follows.\\\" This strongly suggests that the limitations which follow are to be understood as limits on the primary liability articulated in Section I.\\nSection 111(a) then limits liability to $20,-000 per person. Sections 111(b) and (c) concern limits on property damage and claims made under other insurance. Finally, Section 111(d) contains the setoff clause. There is no indication that 111(d) is in any way subordinated to 111(a). Both clauses stand on equal footing, and both must therefore be understood as independently modifying the primary liability of Section I. That is, amounts paid to an insured on behalf of the tortfeasor shall be deducted from \\\"all sums which the insured . (is) legally entitled to recover as damages from the owner or operator of an uninsured highway vehicle.\\\" Under the terms of this contract the setoff clause, 111(d), applies to the total damages incurred and is not a further limitation upon the $20,000 limit set forth in clause 111(a).\\nMoreover, the meaning of the reduction clause under clause 7 of the Limits of Liability column of the insurance policy can be inferred by contrasting the language used in clause 7 with that used in clause 8. Clause 8, relating to underinsured motor vehicle coverage, specifically requires deduction of amounts paid to the insured not from \\\"any amount payable\\\" but from \\\"the limits of liability of this coverage.\\\" If State Farm had intended that amounts received under clause 7, pertaining to uninsured motorist coverage, would likewise be deducted from the limits of liability, identical language could have been used.\\nFinally, the underlying purpose of reduction clauses such as that contained in clause 7 is to prevent double recoveries.\\nRelying on perceived statutory intent to make available to the insured the full extent of statutory UM coverage for the satisfaction of uncompensated damages, the majority of the courts have [sic] refused to enforce the tortfeasor reduction clause where its operation would render any part of the insured's statutory coverage limits unavailable for this purpose. These courts have, therefore, limited the junction of the tortfeasor reduction clause to the prevention of duplicate damages recoveries.\\n2 Irvin E. Schermer, Automobile Liability Insurance \\u00a7 26.02 (1994) (citing numerous cases) (emphasis added). This purpose is furthered by our interpretation of clause 7 and would not be furthered by an interpretation requiring a reduction from policy limits where total damages exceed policy limits.\\nIII. CONCLUSION\\nFor the above reasons we interpret the State Farm policy to require deduction of the $50,000 Lichter settlement from the total damages award rather than from policy limits.\\nAPPENDIX\\nThe United States District Court's Statement of Facts and Applicable Law which accompanied the Certification is as follows:\\nSTATEMENT OF FACTS\\nOn September 24, 1986, Martin Victor was injured in an automobile accident in Anchorage, Alaska. Victor abruptly stopped to avoid a wheel thrown by a trailer towed by Ronald Smith and was rear-ended by a vehicle driven by Norman Lichter. Victor received a default judgment against the uninsured Smith for over $300,000. Victor settled his claims against Lichter for $50,000.\\nAt the time of the accident, Victor was insured by State Farm Fire and Casualty Company (\\\"State Farm\\\"). His policy limits for uninsured and underinsured motor vehicle coverage (\\\"UIM\\\") were $100,000 per person/$300,000 per accident. The terms of Victor's UIM coverage were outlined in Section III of Endorsement 6895T of his ear insurance policy. Under Section III, State Farm agreed to provide the following coverage as follows:\\nWe will pay damages for bodily injury and property damage an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle or an underinsured motor vehicle. The bodily injury or property damage must be caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle or an underin-sured motor vehicle.\\nUnder the subheading \\\"Limits of Liability,\\\" Section III of the policy included the following reduction clauses:\\n3. Any amount payable under this coverage for bodily injury shall be reduced by any amount paid or payable to or for the insured under:\\na. the liability coverage;\\nb. the medical payments coverage;\\nc. any workers' compensation law.\\n7. If the damages are caused by an uninsured motor vehicle, any amount payable under this coverage shall be reduced by any amount paid or payable to or for the insured by or for any person or organization who is or may be held legally liable for bodily injury to the insured or property damage.\\nSee Docket No. 63, Exhibit E, pp. 18-20.\\nIn October 1991, Victor sued State Farm in the Superior Court of Alaska to recover damages under his UIM coverage, and the case was subsequently removed to the United States District Court. Under the Federal Arbitration Act, 9 U.S.C. \\u00a7 1, et seq., the Court ordered the parties to arbitrate their dispute in conformity with language in the insurance contract requiring arbitration, and stayed further proceedings pending the arbitration. See Docket Nos. 26 and 56. Following the arbitration proceedings on February 21 and 22, 1994, the arbitrators determined that Victor incurred damages totalling $293,626.80, with Smith 75% at fault and Lichter 25% at fault. See Arbitration Award, Docket No. 63, Exh. A. State Farm then issued a check to Victor for $41,469.55, which represented Victor's $100,000 policy limit, less an offset for the $50,000 Victor had received from his settlement with Lichter and $8,530.45 State Farm had already provided Victor under his medical payments coverage.\\nState Farm now moves to dismiss any remaining proceedings in this Court, arguing that it has satisfied its payment obligations under its insurance policy. Docket No. 61. State Farm argues that the phrase \\\"amounts payable\\\" in Section III of the policy refers to the policy's UIM coverage limit. Consequently, under the reduction clause at paragraph 7, it was appropriate to reduce the \\\"amounts payable\\\" by the amount of any payments Victor received from Lichter, a potentially liable person. Victor opposes the dismissal and moves for summary judgment, arguing that State Farms' [sic] obligations are unfulfilled under the policy because the amount Victor received from Lichter should not have been offset against the $100,000 policy limit. Docket No. 62. Victor contends that the phrase \\\"amounts payable\\\" in Section III of the policy should be interpreted to mean \\\"total damages caused by the uninsured motor vehicle.\\\" Thus, the payments Victor received from Lichter and from the medical payments coverage should offset Victor's total damages but not his UIM coverage limit.\\nAPPLICABLE LAW\\nAt the time of the accident, in 1986, Alaska's statute regarding motor vehicle liability insurance required that the insurer provide protection from damages caused by uninsured or underinsured motorists in the same amounts as the insured's liability coverage. AS 28.22.010(3). The insurer's liability for UIM coverage was limited as follows:\\nSec. 28.22.110. Maximum liability of carrier, (a) The maximum liability of the insurance carrier under the uninsured and underinsured motorists coverage required under this chapter shall be the difference between the coverage limit of liability and the amount paid to the insured by or on behalf of the uninsured and underinsured motorist.\\n(b) Amounts payable under the uninsured motorists and underinsured motorists coverage required to be offered under this chapter shall be reduced by\\n(1) amounts paid or to be paid under any workers' compensation law;\\n(2) amounts paid or payable under any valid and collectible automobile medical payments insurance or bodily injury or death liability insurance; and\\n(3) amounts paid by or on behalf of the uninsured or underinsured motorist.\\nAS 28.22.110 (1984). The current version of this provision is identical. AS 28.22.211 (1989). Under the statute, the Alaska Supreme Court has held that an insurer's UIM limit of liability will be reduced by any amount the insured received from his medical payments coverage. Burton v. State Farm Fire and Casualty Co., 796 P.2d 1361, 1364 (Alaska 1990). In light of the holding in Burton, one could argue that the phrase \\\"amounts payable\\\" in the statute and the insurance policy must refer to the UIM limit of liability for purposes of offsetting payments received from other legally responsible persons. While Burton certainly forecloses Victor's contention that the medical payments he received should be reduced from his total damages rather than his UIM coverage limit, the opinion does not attempt to interpret the phrase \\\"amounts payable,\\\" nor does it address the issue of payments received from another tortfeasor.\\nThe courts in other jurisdictions have addressed similar language in reduction clauses found in various insurance contracts, i.e., \\\"any amount otherwise payable for damages under this coverage,\\\" and \\\"any amount payable under the Uninsured Motorists Coverage.\\\" Some jurisdictions accept the insurer's argument and interpret the policies to provide offsets against the coverage limits. See, e.g., Aetna Casualty & Sur. Co. v. Kenner, 570 A.2d 1172 (Del.1990); Geisler v. Motorists Mut. Ins. Co. [382 Pa.Super. 622], 556 A.2d 391, 396 (Pa.Super.Ct.1989) (citing Bateman v. Motorists Mut. Ins. Co. [377 Pa.Super. 400], 547 A.2d 428 (Pa.Super.Ct.1988)); Nikiper v. Motor Club of America Cos. [232 N.J.Super. 393], 557 A.2d 332 (N.J.Super.Ct.App.Div.1989); Davenport v. Aid Ins. Co. (Mutual), 334 N.W.2d 711 (Iowa 1983). Others favor the insured's argument and interpret the policies to provide offsets only against total damages. See, e.g., Mullis [Mulliss] v. American Protection Ins. Co., 653 F.Supp. 685, 688 (D.Vt. 1987); Allied Mut. Ins. Co. v. Gordon [248 Kan. 715], 811 P.2d 1112, 1124 (Kan.1991); Gromolka [Gomolka] v. State Automobile Mut. Ins. Co. [15 Ohio St.3d 27], 472 N.E.2d 700, 702 (Ohio 1984); Dunkel v. Motorists Mut. Ins. Co. [41 Ohio App.3d 130], 534 N.E.2d 950, 953 (Ohio Ct.App.1987).\\nCourts favoring insurers find that the reduction clause language is unambiguous and that the phrase \\\"under this coverage\\\" refers to the maximum policy limit \\u2014 the greatest amount that the insurer would ever be called upon to pay. See Aetna, 570 A.2d at 1174. Courts adopting the insured's argument find that the language is ambiguous and that such ambiguities should be interpreted in favor of the insured. See id. at 1178 (Moore, J., dissenting). They reason that the phrase \\\"any amounts payable\\\" refers to the general coverage clause and should be interpreted to mean \\\"any damages compensable.\\\" See Mullis [Mulliss], 653 F.Supp. at 689 (citing McKoy v. Aetna Casualty & Sur. Co. [281 Md. 26], 374 A.2d 1170, 1172 (Md. 1977)); Gromolka [Gomolka], 472 N.E.2d at 702. If the reduction clause were meant to apply to the policy limits rather than total damages, it would state, \\\"limits of liability shall be reduced.\\\" See Aetna, 570 A.2d at 1179 (Moore, J., dissenting). Cf. Gromolka [Gomolka], 472 N.E.2d at 702 (policy used \\\"amounts payable\\\" language) with James v. Michigan Mut. Ins. Co. [18 Ohio St.3d 386], 481 N.E.2d 272 (Ohio 1985) (policy used \\\"limits of liability\\\" language).\\nCourts interpreting their respective motor vehicle insurance statutes and insurance contracts formed pursuant to state law look to public policy to justify their conclusions. Generally, the intent of the statutes mandating UIM coverage is to afford a person injured in an accident caused by an uninsured motorist the same benefits that the victim would have had if injured by an identifiable motorist covered. by an applicable standard automobile liability insurance policy. 7 Patrick D. Kelly, Blashfield Automobile Law and Practice \\u00a7 315.1 (rev. 3d ed. 1987 & Supp.1994). The majority in Aetna explained that \\\"uninsured/underinsured coverage is best viewed as a supplemental form of coverage that allows the insured to achieve a recovery from all tortfeasors that is equal to his own liability coverage.\\\". 570 A.2d at 1176. Thus, provisions in a policy that operate to reduce uninsured motorist coverage where other coverage or other benefits are available to the insured are valid if such provisions do not operate to deny payments to the insured of less than the statutory minimum. See Davenport, 334 N.W.2d at 714.\\nThe dissent in Aetna complained, however, that the majority seemed to impose a ceiling on the insured's recovery, while the law was designed to impose a floor. 570 A.2d at 1177 (Moore, J., dissenting). UIM coverage is a type of gap-filling coverage that should be liberally construed to provide the intended protection. See Allied Mut. Ins. Co., 811 P.2d at 1122. Once the insured purchases uninsured motorist coverage, he or she is entitled to the full extent of the benefit which law requires to be offered. \\\"Attempts by insurers to reduce this benefit by hypertechnical language or exclusion clauses are equally repugnant to the public policy of protecting persons injured in auto accidents.\\\" Aetna, 570 A.2d at 1180 (Moore, J., dissenting).\\nThe general purpose of a reduction clause is to prevent double recoveries. 46A C.J.S. Insurance, \\u00a7 1681. Thus, the Alaska Supreme Court's decision in Burton appropriately reduced the UIM coverage limit by the amount of medical payments the insured had already received from his insurer. In this case, the percentage of Victor's total damages attributable to the comparative fault of the uninsured Smith exceeds State Farm's UIM policy limit, and the payment received from Liehter is less than the amount of damages attributable to Liehter's comparative fault. Thus, there is no danger of double recovery if Victor receives the full amount of his UIM policy limit, offset only by the medical payments he has already received from State Farm.\\n. AS 28.22.121(a) provides in relevant part: \\\"A policy that grants the coverage required for a motor vehicle liability policy may also grant lawful coverage in excess of or in addition to the coverage specified for a policy and the excess or additional coverage is not subject to the provisions of this chapter.\\\" The only purpose for barring coverage beyond that mandatorily required would be to prevent a double recovery to reduce the temptation for fraudulent claims. See Werley v. United Servs. Auto. Ass'n, 498 P.2d 112, 116-17 (Alaska 1972). There is no risk of a double recovery here.\\n. Our focus is thus on the State Farm policy rather than on the Mandatory Motor Vehicle Insurance Act. That state courts have the power to reformulate certified questions is widely recognized. A leading text states:\\nIn one of its earliest uses of certification, the Fifth Circuit found out, seven years after it had first ordered questions certified, that it had asked the state court the wrong question. To guard against a recurrence of this it is now the common practice of many courts, when certifying, to emphasize that the particular phrasing used in the certified question is not to restrict the state court and that the state court is free to reformulate the questions as it see fit. State courts have availed themselves of this freedom whether or not it is expressly stated in the certificate.\\n17A Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure \\u00a7 4248, at 177-178 (1988). Other commentators state:\\nRegardless of the clarity of the record, facts, and issues certified, the answering court must have the power to reformulate the questions posed. Although the court should not answer questions unrelated to the case at hand, the answering court should have the same freedom to analyze the factual circumstances that it would have if the entire case were before the court. Indeed, the ability of the answering court to reshape or add to the issues is necessary to further the goals of certification. The answering court may be best situated to frame the question for precedential value and to control the development of its laws.\\nCorr & Robbins, Interjurisdictional Certification and Choice of Law, 41 Vand.L.Rev. 411, 426 (1988).\"}"

alaska/10355053.json

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+"{\"id\": \"10355053\", \"name\": \"Robert R. ROSS, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Ross v. State\", \"decision_date\": \"1994-07-08\", \"docket_number\": \"No. A-4786\", \"first_page\": \"777\", \"last_page\": \"784\", \"citations\": \"877 P.2d 777\", \"volume\": \"877\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Court of Appeals\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T20:47:28.252040+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BRYNER, C.J., COATS, J., and ANDREWS, Superior Court Judge.\", \"parties\": \"Robert R. ROSS, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Robert R. ROSS, Appellant, v. STATE of Alaska, Appellee.\\nNo. A-4786.\\nCourt of Appeals of Alaska.\\nJuly 8, 1994.\\nLinda K. Wilson, Asst. Public Defender, and John B. Salemi, Public Defender, Anchorage, for appellant.\\nShannon D. Hanley, Asst. Dist. Atty., Edward E. McNally, Dist. Atty., Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee.\\nBefore BRYNER, C.J., COATS, J., and ANDREWS, Superior Court Judge.\\nSitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.\", \"word_count\": \"4236\", \"char_count\": \"27368\", \"text\": \"OPINION\\nBRYNER, Chief Judge.\\nRobert R. Ross was convicted by a jury of one count of kidnapping and five counts of first-degree sexual assault. He later entered a plea of no contest to a separate charge of second-degree sexual assault. Superior Court Judge Peter A. Michalski sentenced Ross to consecutive sentences totalling eighty-four years' imprisonment.\\nIn Ross v. State, 836 P.2d 378 (Aaska App.1992), this court upheld Ross' convictions but remanded his case for resentencing. On remand, Judge Michalski reimposed the original eighty-four-year composite term. Ross again appeals, contending that his sentence is excessive. We affirm.\\nFACTS AND PROCEDURAL BACKGROUND\\nWe addressed the facts surrounding Ross' convictions in our original opinion:\\nRoss' convictions stem from two incidents that occurred approximately a week apart. On January 30, 1987, Ross met V.B. in a downtown Anchorage bar; at Ross' invitation, V.B. and several friends accompanied Ross to his nearby house for some beer. There, after V.B.'s friends left, Ross physically and sexually assaulted V.B.\\nOn February 6, 1987, Ross approached S.A. in a downtown Aiehorage bar, grabbed her arm, and commanded her to do as she was told. He forced S.A. to walk to his house. There, Ross held S.A. hostage for approximately eight hours, repeatedly subjecting her to physical and sexual assaults. In the early morning hours of February 7, S.A. managed to escape Ross' house and ran to the house of an acquaintance!.]\\nRoss, 836 P.2d at 379.\\nAt the time of these offenses, Ross was thirty-four years old. We described Ross' background and his sentences for these offenses as follows:\\nRoss had one prior felony: a 1982 conviction for first-degree sexual assault that involved circumstances similar to the assaults Ross committed against V.B. and S.A. For the earlier crime, Ross received an eight-year* term; he was on parole for that offense when he committed the current offenses.\\nFor the incident involving S.A., Ross was convicted of kidnapping and five counts of first-degree sexual assault. Kidnapping, an unclassified felony, is punishable by a maximum term of 99 years and a minimum of five; the crime is not subject to presumptive sentencing. AS 11.41-300(c); AS 12.55.125(b). First-degree sexual assault, also an unclassified felony, is punishable by a maximum of thirty years; as a second felony offender, Ross was subject to presumptive terms of fifteen years for each of his first-degree sexual assault convictions. AS 11.41.410(b); AS 12.55.-125(f)(3).\\nFor the incident involving V.B., Ross was convicted of one count of second-degree sexual assault, a class B felony. He was subject to a four-year presumptive term for that offense. AS 11.41.420(b); AS 12.55.125(d).\\nIn imposing sentence, Judge Michalski concluded that Ross was an extremely dangerous offender who had little chance for rehabilitation. The judge thus stressed the need to isolate Ross for the protection of the community. Judge Miehalski sentenced Ross to fifty years for kidnapping. The judge imposed fifteen years for each count of first-degree sexual assault, making the two counts involving anal penetration concurrent to each other and the three counts involving vaginal penetration concurrent to each other, but ordering each group of concurrent sentences to be consecutive to the other group, as well as to the kidnapping. This yielded a total of eighty years' imprisonment for the offenses involving S.A.\\nFor the second-degree sexual assault conviction involving V.B., Judge Miehalski imposed an additional consecutive term of four years. Relying on Ross' dangerousness and the need to isolate him for the maximum possible time, Judge Miehalski ordered that Ross' eligibility for discretionary parole be restricted on the kidn\\u00e1pping charge. Ross thus received a composite term of eighty-four years without possibility of parole.\\nId. at 382-83.\\nIn deciding to remand Ross' case for re-sentencing, this court relied on Williams v. State, 800 P.2d 955 (Alaska App.1990) (Williams I), modified on reconsideration, 809 P.2d 931 (Alaska App.1991) (Williams II). In Williams I, we conducted an extensive review of past sentencing decisions involving offenders simultaneously convicted of rape \\u2014 or first-degree sexual assault \\u2014 and kidnapping. Our opinion in Ross summarized the review of the case law that we conducted in Williams I as follows:\\nOur review indicated \\\"a fair degree of uniformity\\\" in sentencing in such cases. Williams, 800 P.2d at 958. We noted that the cases fell into three benchmark categories. The initial category consisted of first felony offenders. For offenders in this category, we observed that sentences exceeding twenty years of unsuspended time had rarely been approved. Id. at 959. The second benchmark category included kidnap/rape cases involving offenders who had one or more prior felony convictions but whose criminal history was not sufficiently extensive to place them in the dangerous offender category. As to this category, we found that \\\"precedents firmly establish thirty years as the maximum composite sentence that should ordinarily be imposed_\\\" Id. In the third benchmark category, we found \\\"a handful of decisions\\\" approving composite sentences of more than thirty years of unsuspended time; we observed that \\\"[wjithout exception, those eases have involved kidnappings of prolonged duration or offenders whose prior criminal histories established them as persistent, violent criminals.\\\" Id. at 960.\\nRoss, 836 P.2d at 383.\\nOur opinion in Ross then emphasized the significance of the dual statutory sentencing goals of promoting uniformity and eliminating unjustified disparity:\\nWilliams [II] . reaffirmed the fundamental need for consideration of historical sentencing practices \\u2014 as reflected in benchmark sentences \\u2014 in the sentencing process; . this need springs from the legislature's concern with promoting sentencing uniformity and eliminating unjustified disparity \\u2014 a concern the legislature expressed with \\\"unmistakable clarity\\\" in AS 12.55.005(1), which requires the sentencing court to consider \\\"the seriousness of the defendant's present offense in relation to other offenses.\\\" [In Williams II] we concluded:\\nAt a minimum, . the principle of reasonable sentencing uniformity requires a sentencing judge who decides that an offender deserves a sentence which is significantly different from sentences previously given to similarly situated offenders to expressly find some legitimate basis for the difference \\u2014 some basis related to 'legally relevant sentencing criteria.' That basis should be spelled out on the sentencing record, so that the defendant and a reviewing court can understand the reasons for the disparity.\\nRoss, 836 P.2d at 383-84.\\nWe went on in Ross to compare Ross' eighty-four-year composite term to sentences received by similarly situated offenders convicted of similar crimes. We found that Ross' sentence was \\\"seemingly unprecedent ed\\\" and \\\"vastly exceeded]\\\" the sentencing benchmark applicable to his case.\\nBecause Judge Michalski had \\\"failed to discuss the seriousness of Ross' conduct in relation to other similarly situated offenders\\\" and \\\"made no findings to explain the apparent disparity between Ross' composite sentence and sentences previously given to similarly situated offenders,\\\" we remanded the case for additional findings in light of the two Williams decisions:\\nHere, the sentencing court's failure to make express findings concerning the seriousness of Ross' offenses in relation to other similar cases and the court's consequent failure to explain the apparent disparity of the sentence it elected to impose preclude meaningful appellate review. We must therefore remand this case for resen-tencing in light of Williams. On remand, the sentencing court should make express findings in conformity herewith.\\nRoss, 836 P.2d at 384-85.\\nOn remand, Judge Michalski compared Ross' case to cases this court discussed in Williams I. The judge found Ross' case distinguishable from those of other second offenders convicted in kidnap/rape cases because of the nature and character of Ross' past and current criminality \\u2014 that is, because Ross' prior felony conviction was also for first-degree sexual assault and because Ross' past and current offenses revealed a seemingly escalating pattern of violence. Reiterating the view that Ross was a remorseless and extremely dangerous offender, Judge Michalski determined that the original sentence was appropriate, even though the sentence exceeded the applicable Williams I benchmark. Judge Michalski thus resen-tenced Ross to the same eighty-four-year composite term that Ross had originally received but eliminated a parole restriction that would have made Ross ineligible for discretionary release for the first fifty years of his sentence.\\nDISCUSSION\\nOur function on appeal is to conduct an independent review of the entire sentencing record and decide whether Ross' sentence is clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). In applying this standard, we use the Williams benchmarks for kidnap/rape cases as a mechanism to protect against the disparate treatment of similarly situated offenders when sound reason for disparity cannot be found. At the same time, however, we remain mindful that sentencing benchmarks can at most serve as an imprecise starting point for determining appropriate sentences in individual cases. See Williams II, 809 P.2d at 933. Sentencing benchmarks place no hard and fast restrictions on the scope of the sentencing court's authority in any given case. See State v. Wentz, 805 P.2d 962, 965 (Alaska 1991).\\nAs we indicated in Williams II, 809 P.2d at 936 n. 5, case law establishes that, for more serious cases involving second-felony offenders who have simultaneously been convicted of sexual assault and kidnapping\\u2014 Williams I \\u215b second benchmark category \\u2014 a composite sentence exceeding thirty years will seldom be warranted. As a rule, higher composite sentences will be appropriate only in genuinely exceptional cases. See, e.g., Yearty v. State, 805 P.2d 987 (Alaska App.1991) (forty years).\\nThe primary factor relied on by the superior court to distinguish Ross from other second-category offenders was that Ross' pri- or felony conviction involved an incident of first-degree sexual assault \\u2014 one that was in many respects quite similar to the sexual assaults for which Ross currently stands convicted. We acknowledged the importance of this factor in our original opinion remanding Ross' case, but we expressed skepticism as to whether this factor could in itself justify the significant disparity between Ross' eighty-four-year composite term and the thirty-year composite term indicated by the applicable Williams I benchmark:\\nIt seems to us that the aggravated nature of Ross' conduct and the disturbing similarity of his prior sexual assault make his case at least comparable to, and perhaps more serious than, Yearty v. State. We are thus inclined to think that a sentence exceeding Williams ' second category benchmark of thirty years would be justified here, as was the case in Yearty. On the other hand, given Ross' limited criminal history, we are skeptical that a sentence placing Ross in the third benchmark category could be justified!)]\\nRoss, 836 P.2d at 384.\\nHaving reviewed the entire sentencing record and having carefully considered the superior court's findings on remand, we find our initial skepticism unwarranted.\\nIn 1982, Ross was convicted of first-degree sexual assault and received an eight-year sentence for an incident involving conduct that was in many respects disturbingly similar to the conduct involved in his current cases. Not long after being paroled on his previous sexual assault conviction, Ross resumed his pattern of sexual predation. Within a one-week period, he engaged in two incidents of sexual assault against separate victims. In the second of these incidents, Ross kidnapped his victim and held her hostage in his own house for eight hours, subjecting her to repeated acts of sexual assault and to gratuitous and deliberately cruel acts of physical violence that resulted in significant injury. The incident was ended by the fortuitous escape of Ross' victim. Although Ross' conduct involved no imminent threat of death to his victim, the potential for death, serious injury, and prolonged captivity was certainly there.\\nAs Judge Michalski accurately observed, the nature and seriousness of Ross' prior felony conviction, the close factual and temporal relationship between Ross' prior and current offenses, and the escalating seriousness of Ross' behavior \\u2014 as reflected in the act of kidnapping by which he carried out his most recent sexual assault \\u2014 are all strongly indicative of Ross' poor prospects for rehabilitation. These same considerations establish the magnitude of danger Ross poses and the need to protect the public by isolating him from society. When Ross' past and current crimes are viewed as a whole, they reveal an alarmingly dangerous pattern of sexual violence. This pattern does not appear to stem from any momentary impulse; rather, it evidently arises from some more urgent and enduring compulsion whose origin is poorly understood and even more poorly controlled by conventionally available means short of incarceration.\\nThe similarity and proximity of Ross' past and current offenses plainly set Ross' case apart from cases within Williams I \\u215b second benchmark category. Indeed, Ross' case appears to be unique: we have found no reported cases involving offenders convicted of kidnapping and rape who had previously been convicted of rape. And because Ross is not situated similarly in this respect to offenders in Williams I \\u215b second benchmark category, the Williams I benchmark itself should not govern Ross' case, for the aim of sentencing benchmarks is not to compel uniformity among disparate offenders.\\nThe pertinent question, then, is whether the unique circumstances that set Ross' case apart from the cases included in Williams I's second benchmark category are sufficiently significant to warrant a composite term of eighty-four years. The eighty-four-year term imposed below places Ross squarely within the third benchmark category of Williams I, a category encompassing \\\"a handful of decisions in kidnap/rape cases\\\" that approve sentences sufficiently lengthy to keep offenders incarcerated for the remainder of their lives. Williams I, 800 P.2d at 960. Our approval of virtual lifetime sentences for offenders in this category has typically been based on our finding of an \\\"ingrained, compulsive criminal pattern.\\\" Schuenemann v. State, 781 P.2d 1005, 1009 (Alaska App.1989). \\\"Without exception, those cases have involved kidnappings of prolonged duration or offenders whose prior criminal histories established them as persistent, violent criminals.\\\" Williams I, 800 P.2d at 960.\\nRoss does not fit neatly into Williams I 's third category: his kidnapping was not of \\\"prolonged duration,\\\" and his criminal history is not extensive. Yet even when an offender's criminal history is not extensive, the nature of the past and current crimes can be as telling an indicator of an \\\"ingrained, compulsive criminal pattern\\\" as a lengthy history of prior convictions. This point, we think, is aptly demonstrated in Coleman v. State, 621 P.2d 869 (Alaska 1980).\\nColeman was originally convicted of two counts of rape and one count of robbery. The convictions stemmed from two incidents of sexual assault, the second occurring while Coleman was released on bail for the first. As a result of these convictions, Coleman, then a first offender, was sentenced to serve ten years in prison. Coleman v. State, 553 P.2d 40, 52 (Alaska 1976). Two months after being paroled on this sentence, Coleman raped and. physically assaulted another victim. For the new offenses, he was subject to a maximum term of sixty years. The sentencing court found Coleman to be a worst offender based on \\\"the proximity of the three criminal episodes in terms of time during which Coleman was free from prison,\\\" Coleman, 621 P.2d at 885, and sentenced him to serve forty years for his new offenses, imposing the term consecutively to approximately five years of remaining time that Coleman was required to serve by virtue of the revocation of his parole. Id. at 883-84.\\nOn appeal, the supreme court affirmed Coleman's sentence. In particular, the court upheld the trial court's finding that Coleman was a worst offender:\\nBehavior showing dangerous propensities which pose a clear risk to the public, the nature and circumstances of a crime, and other factors contained in the presentence report may justify a \\\"worst offender\\\" classification, as well as prior criminal convictions. The extreme danger which Coleman has shown he poses to the rest of society leads us to conclude that the superior court was not clearly mistaken in classifying him as a \\\"worst offender.\\\"\\nId. at 885 (citations omitted).\\nColeman teaches that even a relatively limited criminal history can justify a worst-offender finding (and, by implication, the conclusion that the offender may properly be sentenced to the statutory maximum term) when a defendant's past and current crimes consist of repeated acts of serious sexual assault that are separated by a substantial period of incarceration but, apart from incarceration, occur in close proximity. Ross fits the Coleman criteria. Both Ross and Coleman were subject to sentencing as second felony offenders. Ross, like Coleman, has now been convicted of a total of three episodes of sexual assault involving three victims. Like Coleman, Ross committed these offenses in close proximity to one another in terms of the time he was free from prison. And Ross, like Coleman, has thereby shown himself to be an \\\"extreme danger\\\" to society.\\nThe salient feature distinguishing Ross' case from Coleman's is the significantly greater seriousness of the conduct in Ross' case. Unlike Coleman, Ross' most recent offense consisted not of a single sexual assault but of repeated acts of rape committed during a criminal episode that lasted eight hours and involved deliberate cruelty. For this conduct, Ross was convicted of five counts of first-degree sexual assault and of the unclassified felony of kidnapping. Whereas Coleman was subject to a total maximum term of sixty years and received forty, Ross was subject to a total maximum of two hundred fifty-nine years and received eighty-four. In imposing this sentence, Judge Michalski properly found Ross to be an extremely dangerous offender whose prospects for rehabilitation are limited, at best.\\nGiven the persistence and proximity of Ross' criminality, the extreme and increasing seriousness of his crimes, and the lack of any clear prospects for his deterrence or rehabilitation, the remote possibility of some future change in Ross' behavior hardly seems to justify the substantial risk of exposing future victims to the same crimes that Ross has now committed on three occasions. The virtual lifetime sentence imposed below was justifiably calculated to assure that Ross will have no future opportunity to commit similar' crimes.\\nHaving independently reviewed the entire sentencing record, we cannot say that the sentence imposed below is clearly mistaken.\\nThe sentence is AFFIRMED.\\nCOATS, J., dissents.\\nMANNHEIMER, J., not participating.\\n. In our previous opinion, we stated Ross' age to be 35 at the time of his offenses. Ross v. State, 836 P.2d at 382. However, the presentence report indicates Ross' date of birth to be January 17, 1953, which would place Ross several weeks past his thirty-fourth birthday when he committed these offenses.\\n. Referring to Williams I, we specifically observed:\\nIn the present case, Ross' composite sentence of eighty-four years without eligibility for parole vastly exceeds the second felony offender benchmark and, indeed, substantially exceeds even the sentences imposed in some of the cases falling within Williams ' third benchmark category. Unlike other offenders in Williams' third benchmark category, Ross' criminal history \\u2014 consisting of a misdemeanor conviction for driving while intoxicated and a single prior felony, albeit for a similar crime\\u2014 is not so extensive as to qualify him as an habitual offender, see, e.g., Contreras v. State, 767 P.2d 1169, 1175 (Alaska App.1989), and does not appear to \\\"establish an ingrained, compulsive criminal pattern\\\" of violent misconduct. Schuenemann v. State, 781 P.2d 1005, 1009 (Alaska App.1989). And unlike other cases in the third benchmark category, Ross' kidnapping did not entail an extraordinarily lengthy abduction. See, e.g., Morrell v. State, 575 P.2d 1200, 1202-03 (Alaska 1978) (virtual enslavement of victim with repeated sexual assaults over eight days).\\nRoss, 836 P.2d at 384.\\nWe further noted:\\nNor does Ross' conduct appear to have exposed his victims to the type of imminent, life-threatening danger that justified an exceptionally severe first-offense sentence of thirty years in Wilson v. State, 670 P.2d 1149, 1154 (Alaska App.1983). See also Williams v. State, 800 P.2d at 958.\\nRoss, 836 P.2d at 384 n. 5.\\n. See infra note 5.\\n. Coleman was prosecuted as a second-felony offender under former AS 12.55.050(1), a habitual offender statute that subjected a second-felony offender \\\"to twice the longest term prescribed for the felony of which that person is convicted.\\\" Coleman v. State, 621 P.2d at 884 n. 25.\\n. It is significant that Ross was convicted of kidnapping for conduct going beyond the type of temporary abduction and eventual release that is common among many of the kidnap/rape cases that factored into the Williams I benchmark sentences. As we have already observed, Ross held his victim hostage for eight hours and, during this time, subjected her to serious physical and sexual violence. He did not release his victim; rather, she escaped. These circumstances involve the type of potential for death or prolonged captivity that justifies classifying kidnapping as among the most serious of felonies. See, e.g., Garrison v. State, 762 P.2d 465, 469-74 (Alaska App.1988) (Singleton, J., concurring). The fact that this potential danger remained unrealized here mitigates Ross' crime to a certain extent; but the scope of mitigation must be tempered by the recognition that the potential for more serious harm may have gone unrealized in this case only by virtue of S.A.'s escape \\u2014 an event beyond Ross' control. See id. at 472-74 (discussing Morrell v. State, 575 P.2d 1200 (Alaska 1978), and Nylundv. State, 716 P.2d 387 (Alaska App.1986)). Given these circumstances, a fifty-year kidnapping sentence for a second-felony offender would not have been obviously excessive, even in the absence of multiple sexual assaults.\\n. Ross' second-degree sexual assault conviction, for assaulting V.B., was a class B felony and was punishable by a maximum of ten years. Each of the five counts of first-degree sexual assault involving S.A. was punishable by a maximum of thirty years. Ross' kidnapping was punishable by a maximum of ninety-nine years.\"}"

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+"{\"id\": \"10355817\", \"name\": \"Thomas G. MULLIN, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Mullin v. State\", \"decision_date\": \"1994-12-30\", \"docket_number\": \"Nos. A-4809, A-4819\", \"first_page\": \"1323\", \"last_page\": \"1328\", \"citations\": \"886 P.2d 1323\", \"volume\": \"886\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Court of Appeals\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T17:50:20.448280+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.\", \"parties\": \"Thomas G. MULLIN, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Thomas G. MULLIN, Appellant, v. STATE of Alaska, Appellee.\\nNos. A-4809, A-4819.\\nCourt of Appeals of Alaska.\\nDec. 30, 1994.\\nMargaret W. Berck, Juneau, for appellant.\\nCynthia M. Hora, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Atty. Gen., Juneau, for appellee.\\nBefore BRYNER, C.J., and COATS and MANNHEIMER, JJ.\", \"word_count\": \"2943\", \"char_count\": \"18042\", \"text\": \"OPINION\\nMANNHEIMER, Judge.\\nFollowing a jury trial in the Juneau superi- or court, Thomas G. Mullin was found guilty of seven counts of first-degree sexual abuse of a minor, AS 11.41.434(a)(1), and one count of second-degree sexual abuse of a minor, AS 11.41.436(a). Because Mullin was a third-felony offender, he faced a presumptive term of 25 years' imprisonment for the seven counts of first-degree sexual abuse (as well as a 6-year presumptive term for the one count of second-degree sexual abuse). AS 11.41.434(b) and AS 12.55.125(i)(4); AS 11.41.436(b) and AS 12.55.125(d)(2). Superi- or Court Judge Walter L. Carpeneti found five aggravating factors and sentenced Mul-lin to a composite term of 60 years' imprisonment with 20 years suspended (40 years to serve). Judge Carpeneti additionally revoked Mullin's probation from a prior felony and imposed (consecutively) 1 year of imprisonment that had previously been suspended. Thus, Mullin's total sentence is 61 years with 20 years suspended (41 years to serve).\\nMullin concedes that his offenses are \\\"atrocious and worthy of the utmost community condemnation\\\". However, he contends that 41 years to serve, when compared to the sentences imposed in similar cases, is an unjustifiably severe term of imprisonment. We affirm.\\nMullin's convictions for sexual abuse of a minor stem from a five-year sexual relationship that Mullin had with M.R.D., the daughter of Mullin's longtime girlfriend, L.D. Mullin and L.D. lived together, on and off, over several years. In May 1992, M.R.D. revealed Mullin's sexual abuse to Child Protective Services in the State of Washington. The Washington authorities contacted Mul-lin's probation officer in Juneau on May 29th. (As explained below, Mullin was on probation from two prior felonies.) On June 1st, Mul-lin's probation officer had the Juneau police check with Alaska Airlines; they found out that Mullin had booked passage out of state for June 4th. Acting on this information, the probation officer arrested Mullin when he appeared for his appointment on June 2nd.\\nMullin was ultimately convicted of engaging in genital, anal, and oral penetration with M.R.D. during the months of November 1991 to April 1992. However, M.R.D. testified that Mullin had had sexual relations with her on a weekly basis from the time she was five years old. (M.R.D. was approaching her tenth birthday in April 1992.)\\nDuring the investigation of these offenses, the authorities discovered that Mullin had also sexually abused two other children. One of these children was ten-year-old E.C., Mullin's son from a previous marriage. The other child was a teenager who used to babysit M.R.D.; this girl told the authorities that in 1987 (when she was eleven years old) Mullin had had sex with her at least 25 times.\\nMullin's first criminal conviction occurred in 1978; he was convicted of assault and battery for attacking a woman in the laundry room of the Hilton Hotel in Juneau. According to a later pre-sentence report, Mullin \\\"struck [the woman], threw her on the floor, grabbed her throat, and placed his knee on her body while putting his hand over her mouth to prevent her from screaming.... Mr. Mullin desisted after being kicked in the groin by [the victim].\\\" For this offense, Mullin was sentenced to 180 days in jail with 150 days suspended. Later in 1978, he was sentenced to serve another 30 days of this sentence when he violated his probation by drinking.\\nIn 1980, Mullin was convicted of disorderly conduct for striking a man; he received a 5-day jail sentence, all suspended, and was ordered to pay a $175 fine. Mullin was later arrested for failing to pay his fine. In 1984, Mullin was convicted of fourth-degree assault for striking a woman; he was sentenced to a fine plus restitution.\\nIn 1986, Mullin was convicted of his first Alaska felonies. He pleaded no contest to two counts of fourth-degree misconduct involving controlled substances (possession of cocaine). The investigator who interviewed Mullin to prepare the pre-sentence report in that 1986 case wrote:\\nMr. Mullin states that he does not recall the present offense at all. He states it was his day off and he was probably drinking heavily. [However,] Mr. Mullin also states that he does not use cocaine and that he has no problem with alcohol. He states his use of alcohol is n\\u00f3 more than anyone else.\\nThe pre-sentence investigator interviewed L.P., a woman who was married to Mullin from 1975 to 1977. L.P. reported that Mullin often beat her up during the marriage, that Mullin raped her following their divorce, and that, when she started to see another man 8 months after the divorce, Mullin came to her house and \\\"cut up all her property with a knife\\\". L.P. also told the pre-sentence investigator about another incident in which Mul-lin threatened to kill their infant son. According to L.P., when their child was one year old, Mullin pointed a gun at the sleeping boy and told L.P. that, if she did not love him, there was no use in their son's living.\\nThe pre-sentence investigator also interviewed C.C., a woman who was married to Mullin from 1980 to 1984. C.C. reported that Mullin beat her up four to six times during the marriage and that, one time when he was angry, he ripped C.C.'s couch to pieces with a knife.\\nIn 1984, Mullin was charged by the State of Washington with making harassing phone calls to C.C. after she left him. According to the complaint, Mullin made three threatening telephone calls to his estranged wife at her place of work. Mullin told her that \\\"she was a dead woman\\\" and that he would obtain custody of the children if she were dead. Mullin failed to appear for the trial of this charge; the Washington court issued an arrest warrant that was still outstanding in 1986, when Mullin committed his first Alaska felonies.\\nFor the 1986 drug offenses, Mullin was sentenced to 2 years' imprisonment with all but 45 days suspended. The court allowed Mullin to serve these 45 days periodically, on Mullin's days off from work, so that he could keep his job.\\nIn February 1987, Mullin submitted a urine specimen that tested positive for both marijuana and cocaine. His probation officer considered filing a petition to revoke Mullin's probation, but Mullin cheeked himself into the Juneau Recovery Unit for detoxification and drug treatment. Mullin stayed there from February 9 to March 11, 1987, successfully completing the program.\\nHowever, another of Mullin's conditions of probation required him to attend MEN, Inc. an anger/violence counseling program. Mul-lin refused to participate in the program; he missed all of his appointments. According-to his probation officer, Mullin \\\"maintain[ed] that he [did] not need the program and [that he] missed [the] appointments either because of work or [because of] scheduling problems created by the MEN program.\\\"\\nIn addition, over the first year of his probation, Mullin served only 4 days of his 45-day sentence: 2 days in December 1986, 1 day in March 1987, and 1 day in August 1987. Mullin was reluctant to provide his probation officer with his work schedule for most of these months. He ultimately admitted that \\\"there were times he could have served [more days of his sentence] but did not.\\\"\\nBased on Mullin's refusal to attend the counseling program and on his failure to serve his jail sentence on his available days off, Mullin's probation officer petitioned the superior court to revoke his probation. The superior court revoked Mullin's probation and sentenced him to serve an additional 90 days.\\nOn September 5, 1987, just days before Muhin's scheduled sentencing hearing for this probation revocation, Mullin committed another felony. Muhin was working for Temseo Helicopters; he was entrusted with $4,116.50 that Temseo had received from a cruise ship company. Muhin was responsible for depositing this money into Temsco's bank account, but the money never arrived at the bank. Three days later, Muhin gave $1800 in cash to his girlfriend, telling her that he had made this money in a drug deal.\\nCharged with second-degree theft, Muhin reached a plea agreement with the State. Muhin pleaded no contest to the theft charge on two conditions: that his time to serve would be limited to 2 years (i.e., any additional imprisonment would be suspended), and that no additional jail time would be imposed from his drug felonies.\\nMuhin was imprisoned for this theft conviction from May 1988 to September 1989. While incarcerated, Muhin participated in a counseling program for batterers. According to the termination summary prepared by the director of the program, Muhin \\\"exhibited] a style of manipulation and denial[.] [He] evidenced [a] need to control his treatment.] He denies his need of treatment and views other factors (job, car, etc.) as his priorities.\\\"\\nIn June 1990, Muhin furnished liquor to his 13-year-old son and a group of his son's friends. One girl passed out from drinking; she apparently spent the night in Muhin's bedroom behind a locked door. The next morning, when she was taken to the hospital, the girl's blood alcohol level was still .26 percent. The Juneau police informed Mul-lin's probation officer that they were investigating this incident. When the probation officer confronted Muhin, Muhin \\\"adamantly denied\\\" giving alcohol to the children. \\\"He claimed [that] the kids got into the booze that had been left there by his friends.\\\" Despite his denial, Muhin was convicted of furnishing liquor to minors in July 1991 and was sentenced to 90 days in jail with 85 days suspended.\\nThus, when Mullin appeared for sentencing for the sexual abuse offenses in this case, he had a 15-year criminal record that included two prior felonies, several misdemeanors, several probation revocations, and 15 traffic violations. In addition, Muhin had committed numerous acts of violence or threatened violence against his wives and children for which he had not been prosecuted.\\nAs a third-felony offender, Muhin faced a 25-year presumptive term of imprisonment for first-degree sexual abuse of a minor. AS 11.41.434(b) and AS 12.55.125(i)(4). Superior Court Judge Walter L. Carpeneti found that the State had proved five aggravating factors under AS 12.55.155(c). Of these, the judge found three to be important to Mullin's sentence: (c)(18)(B) \\u2014 that Mullin had sexually abused other minors; (c)(10) \\u2014 that Mullin's conduct was among the most serious included in the definition of first-degree sexual abuse of a minor; and (e)(20> \\u2014 that Mullin had been on felony probation when he committed the sexual abuse offenses.\\nAfter reviewing Mullin's record, Judge Carpeneti concluded that he should give no weight to the goal of Mullin's rehabilitation when fashioning his sentence:\\nI agree with [the prosecutor] that rehabilitation is not a factor to be considered in this case. Mr. Mullin has been before the Court a number of times, and there is no doubt in my mind that essentially rehabilitative sentences have been tried a number of times [but] obviously without success. I read the four pre-sentence reports this morning, and the theme that struck me in all of them is that the defendant was given a number of chances, both [by] this court' and [by] Judge Pegues ., and the rehabilitative approach obviously was unsuccessful. . [T]he argument that [the prosecutor] makes concerning Mr. Mullin going through the MEN program \\u2014 and apparently successfully completing it \\u2014 at a time when these offenses were going on is really a point that can't be ignored[.] It just doesn't appear to this Court that rehabilitation is at all a factor that ought to be considered in this case; it just doesn't seem to be there.\\nFor similar reasons, Judge Carpeneti discounted the goal of deterring Mullin:\\nI don't think that's something that should be given a great amount of weight here, because of the fact that the defendant has been through the court so many times, and he has successively greater sentences, and it seems not to have made any difference.\\nJudge Carpeneti concluded that deterrence of others and community condemnation of Mullin's conduct were important sentencing goals when fashioning Mullin's sentence. However, the judge found that isolation should be the paramount goal attained by Mullin's sentence:\\nThe next factor is isolation. I agree with [the prosecutor's] analysis that [this] is the most important factor in this case. Mr. Mullin [is] a person who's been through the court system a number of times, who's had a number of opportunities to move from a criminal life to one that is not. He has not taken advantage of any of those opportunities. He has committed all different types of offenses, as [the pre-sentence report] points out. He now has a criminal record spanning several types of offenses: sexual abuse, drugs, theft, assault. He has a record of domestic violence [and] a long traffic record. It seems to me that isolation is the most important factor in trying to come up with an appropriate sentence in this case.\\nJudge Carpeneti found that Mullin was a worst offender for purposes of imposing the maximum sentence. See Tommy v. State, 551 P.2d 179 (Alaska 1976). Judge Carpeneti further found that a sentence beyond the 30-year maximum for any one count of first-degree sexual abuse was necessary to protect the public from Mullin. See Mutschler v. State, 560 P.2d 377, 381 (Alaska 1977). As noted above, Judge Carpeneti sentenced Mullin to serve 41 years in prison (61 years with 20 suspended).\\nIn State v. Andrews, 707 P.2d 900 (Alaska App.1985), aff'd, 723 P.2d 85 (Alaska 1986), this court outlined three criteria that might justify sentencing a first-felony offender convicted of sexually abusing a minor to a term of imprisonment substantially greater than the presumptive 8-year term. These criteria are: (1) that the defendant abused multiple victims; (2) that the defendant committed multiple assaults on the same victim; and (3) that the defendant inflicted serious injury on one or more victims. Andrews, 707 P.2d at 913-14.\\nUsing these Andreivs criteria, Mul-lin's sexual abuse offense was aggravated. Mullin abused M.R.D. repeatedly over the course of five years, and he abused two other children as well, his son and a babysitter. These factors support a sentence greater than the 25-year presumptive term that Mul-lin faced as a third-felony offender. Moreover, Judge Carpeneti found that Mullin was a \\\"worst offender\\\" (essentially, a person for whom there was no realistic expectation of rehabilitation) and that a sentence greater than 30 years' imprisonment (the maximum sentence for any one of Mullin's counts of sexual abuse) was necessary to protect society from Mullin.\\nIn prior cases involving first-degree sexual assault and first-degree sexual abuse of a minor, Alaska sentencing decisions have grouped aggravated cases into two categories. For the more serious category of offenders, represented by such cases as Nix v. State, 653 P.2d 1093 (Alaska App.1982), Hancock v. State, 741 P.2d 1210 (Alaska App.1987), and Yearly v. State, 805 P.2d 987 (Alaska App.1991), this court has approved sentences of up to 40 years to serve. However, for a second category of serious offenders, represented by such cases as Hintz v. State, 627 P.2d 207 (Alaska 1981), Tookak v. State, 648 P.2d 1018 (Alaska App.1982), Patterson v. State, 689 P.2d 146 (Alaska App.1984), and Williams v. State, 809 P.2d 931 (Alaska App.1991), sentences have been limited to 30 years to serve. Mullin argues that the facts of his case are analogous to the 30-year cases, while the State argues that Mul-lin's ease is more similar to the 40-year cases.\\nOne aspect of Mullin's case distinguishes it from all the cases listed in the previous paragraph: Mullin was a third-felony offender and faced a presumptive term of 25 years' imprisonment. This presumptive term represents the legislature's judgement as to the appropriate sentence for a typical third-felony offender who commits a typical act of sexual abuse upon a minor. Juneby v. State, 641 P.2d 823, 833, 838 (Alaska App.1982). Judge Carpeneti found that Mullin was not a typical offender but was instead a worst offender. Judge Carpeneti further found that Mullin's offenses were not typical but were instead significantly aggravated. The record supports both of these findings.\\nMullin engaged in years-long sexual abuse of M.R.D.; he also sexually abused two other children. The record reveals that, besides these acts of sexual abuse, Mullin has engaged in significant acts of violence both toward strangers and toward members of his own households, that Mullin has already served a substantial prison sentence (for his felony theft conviction), that Mullin has persistently resisted both rehabilitative programs and probation supervision, and that Mullin's criminal behavior has escalated in seriousness over the past 15 years.\\nThese factors place Mullin's case among the most aggravated category of sexual abuse and sexual abuse offenders. These factors thus support Judge Carpeneti's conclusion that Mullin posed a substantial degree of danger to society and that, in order to protect society, he needed to sentence Mullin to a term of imprisonment exceeding the 30-year maximum for any single count of first-degree sexual abuse.\\nAccordingly, we conclude that the sentence imposed by the superior court is not clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). The sentencing decision of the superior court is AFFIRMED.\\n. Mullin had earlier been convicted of felony theft in the State of Washington for stealing a television valued at $250.00. He received a deferred sentencing, and the charge was dismissed after a year.\"}"

alaska/10357002.json

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+"{\"id\": \"10357002\", \"name\": \"F.T., Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"F.T. v. State\", \"decision_date\": \"1993-11-05\", \"docket_number\": \"No. S-4626\", \"first_page\": \"857\", \"last_page\": \"864\", \"citations\": \"862 P.2d 857\", \"volume\": \"862\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T23:59:15.268428+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before MOORE, C.J., and RABINO WITZ, BURKE, MATTHEWS and COMPTON, JJ.\", \"parties\": \"F.T., Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"F.T., Appellant, v. STATE of Alaska, Appellee.\\nNo. S-4626.\\nSupreme Court of Alaska.\\nNov. 5, 1993.\\nKenneth C. Kirk, Kirk & Robinson, Anchorage, for appellant.\\nJ. Stefan Otterson, Asst. Atty. Gen., Anchorage, Charles E. Cole, Atty. Gen., Juneau, for appellee.\\nRoger E. Holl, Anchorage, Guardian Ad Litem.\\nBefore MOORE, C.J., and RABINO WITZ, BURKE, MATTHEWS and COMPTON, JJ.\", \"word_count\": \"3780\", \"char_count\": \"23242\", \"text\": \"OPINION\\nMATTHEWS, Justice.\\nThe superior court adjudicated G.T. a child in need of aid (CINA). F.T., G.T.'s father, timely appealed the adjudication. We reverse.\\nFACTUAL AND PROCEDURAL BACKGROUND\\nGordon, born August 12, 1983, is seriously emotionally disturbed and given to outbursts of rage and verbal and physical attacks.\\nThe Department of Health and Social Services, Division of Family and Youth Services (DFYS) first became involved with Gordon's family in 1985. No child protection issues were substantiated, so the case was closed and no court action was filed. The next DFYS involvement was in February 1989. This involvement was also resolved without court action. By this time, Frank was separated from his wife and Gordon was in the wife's custody. The basis for DFYS involvement was \\\"substantiated child abuse\\\" on Frank's part. The record contains no details about this abuse. The transcript of the adjudication proceedings describes only one event, in which Frank \\\"pushed Gordon into a chair or a bench, something that made him hit his head.\\\"\\nDFYS's next involvement was on the basis of a referral in December 1989, for neglect on the mother's part.\\nBetween 1985 and 1989 Frank's wife obtained five domestic violence restraining orders against him. All began as ex parte petitions. Three were never pursued. The other two were extended to 90 and 135 days respectively.\\nThe present case began in May 1990. While Gordon was in his mother's custody, he had been hospitalized in a unit for emotionally disturbed children at Charter North Hospital three times. During the third hospitalization the hospital staff concluded that it had exhausted its resources and that the situation at the mother's home was continuing to deteriorate. DFYS then filed a petition for emergency custody of Gordon.\\nFollowing DFYS's intervention, Gordon was released from the hospital into the care of family friends. Gordon did not do well in his foster home. Growing conflicts led his foster parents to conclude that they could no longer take care of him. Apparently DFYS, the foster parents, and the family's pastor then agreed that \\\"Frank should be given a chance to take Gordon home.\\\"\\nIn preparation for this transfer, Frank was instructed to undertake \\\"psychological evaluation, a parenting skills class, and Male Awareness Program, as well as to get a day time job, an apartment large enough for Gordon to have his own bed and space, and a telephone.\\\" DFYS acknowledges that Frank was \\\"very cooperative\\\" and made \\\"definite progress\\\" complying with these directives. Among other things, Frank submitted to a psychological evaluation, quit his job and found day-time employment, moved to a larger apartment with room for Gordon, and enrolled in parenting classes.\\nPending the transfer to Frank's care, Gordon was moved from his first foster home to a second foster home. Within days Gordon's condition deteriorated to the point that on February 11, 1991, he was hospitalized in Charter North for a fourth time. DFYS then abandoned its plans to place him in Frank's care.\\nAn adjudication hearing was held February 27, 1991. Frank contested the adjudication. DFYS argued against returning Gordon to his father's custody, urging that Gordon was improving in the hospital and needed a stable environment.\\nJudge Reese adjudicated Gordon to be a child in need of aid under AS 47.10.-010(a)(2)(A) and (C). Judge Reese based his decision in part on the domestic violence orders, of which he took judicial notice. Three months later a disposition hearing was held before Master Brown. The State's earlier, optimistic forecasts notwithstanding, Gordon was still hospitalized in Charter North. Frank asked that Gordon be placed in his custody. DFYS argued for continued hospitalization followed by institutionalization in a \\\"consistent, very structured type of environment.\\\" Master Brown adopted DFYS' recommendation. Frank objected to the master's report. Judge Michalski then entered a disposition order placing custody of Gordon in DFYS. This appeal followed.\\nDISCUSSION\\nFrank challenges the superior court's CINA adjudication on several grounds. As a threshold matter, we note Frank's claim that the superior court actually based its adjudication on a best-interest analysis instead of the statutorily prescribed bases for assuming jurisdiction. The transcript of the adjudication hearing lends some support to this argument. Both the State and the superior court focused on whether a CINA adjudication would be in Gordon's best interest. The State's witnesses testified to this effect, and the State, the guardian ad litem, and the mother's attorney all presented the case in this light in their closing arguments.\\nBasing a CINA adjudication entirely on a best-interest analysis is reversible error. Cf. Cooper v. State, 638 P.2d 174, 180 n. 9 (Alaska 1981). The statutory ground for a CINA adjudication must first be established. In this case, Judge Reese's oral decision on the record made express use of the statutory language in AS 47.10.-010(a)(2)(C). In his written Adjudication of Child in Need of Aid and Interim Order of Disposition, Judge Reese expressly based his CINA adjudication on AS 47.10.-010(a)(2)(A) and (C). On review we must therefore determine whether the evidence presented at the adjudication hearing could have supported a CINA adjudication under either of these grounds.\\nA. Did the trial court err in concluding that a preponderance of the evidence supported a CINA adjudication under AS 47.10.010(a)(2)(A)?\\nApplied to the specific facts of this case, AS 47.10.010(a)(2)(A) would support a CINA adjudication only if Gordon had no parent, guardian, custodian, or relative caring or willing to provide care. Specifically, the parties' dispute whether Frank was willing to provide care.\\nThe State advances two arguments in support of its contention that Frank was not willing to provide care. It argues that Frank did not \\\"manifest[ ] a willingness to assume immediate care of Gordon.\\\" It also argues that Frank could not have been willing to provide care because he was unable to meet Gordon's needs.\\nThe State's first argument is without merit. Frank unequivocally expressed his desire to care for Gordon. He also indicated his willingness to leave Gordon in foster care during a transition period in order to minimize disruption in Gordon's routine. The State concludes that Frank was not willing to assume immediate care of Gordon. The statute imposes no such requirement, and the State's inference is in any case unreasonable.\\nThe State's second argument has no more substance. As the State points out, we have held that, abandonment depends on objective conduct and not on subjective intent. D.E.D. v. State, 704 P.2d 774, 783 (Alaska 1985); E.J.S. v. Department of Health & Social Serv., 754 P.2d 749, 751 (Alaska 1988). The State combines this point with the statutory definition of \\\"caring\\\" to reach the conclusion that if a child has needs a parent cannot meet, then the parent cannot be \\\"willing to provide care\\\" for that child.\\nThe State is correct to emphasize the importance of objective conduct. But by any reasonable measure Frank's conduct objectively bespeaks willingness to care for Gordon. In addition, the State's conflation of willingness to care and ability to satisfy needs leads to absurd conclusions. By the State's logic, the parent of any child with an incurable disease is not willing to care for that child, since by definition the parent will not be able to meet the child's medical need for a cure.\\nIn sum, there is no basis in the record for a CINA adjudication under AS 47.10.-010(a)(2)(A). To the extent that the court's adjudication rests on this subsection, it is clearly erroneous.\\nB. Did the trial court err in concluding that a preponderance of the evidence supported a CINA adjudication under AS 47.10.010(a)(2)(C)?\\nAdapted to the facts of this case, AS 47.10.010(a)(2)(C) would support a CINA adjudication only if the court found either that Gordon has \\\"suffered substantial physical harm . as a result o/the actions done by or the conditions created by\\\" Frank, or that Gordon will suffer \\\"substantial physical harm\\\" as a result of Frank's actions or inaction.\\nThe superior court made both of these findings. It found that Frank's \\\"conduct and his attitude and the way he deals with things is what has caused a great deal of\\\" Gordon's problems. It also found that \\\"[t]o put Gordon into [Frank's custody] would likely subject Gordon to a very high risk of violence as has been the situation in the family in the past. And imminent and substantial risk for Gordon of physical harm.\\\"\\nFrank argues that the record does not support these findings. We agree. There is no evidence in the record to support the claim that Frank's conduct caused Gordon's problems. Indeed, the evidence was to the contrary. Gordon's crises occurred only after Frank left the household. Each of the hospitalizations occurred while he was in his mother's custody or with foster parents. The record provides no support for the court's speculations about the etiology of Gordon's condition.\\nThe superior court's conclusion that Gordon faced \\\"imminent and substantial risk . of physical harm\\\" if released into Frank's custody calls for more extensive discussion. As Frank notes, the court might have relied on two kinds of evidence in concluding that. Gordon would be exposed to \\\"a very high risk of violence as has been the situation in the family in the past.\\\" The first is evidence that Frank physically abused his children; the second, evidence that he physically abused his wife.\\nHearsay evidence that Frank physically abused his children was introduced by Gordon's social worker, Margie Karamolegos, for the sole purpose of providing the basis for her expert opinion as to Gordon's needs. The court explicitly allowed it on that basis. Its use to establish whether Frank abused his children would therefore be improper.\\nThere was no other testimony that Frank had ever physically abused his son. In fact, although the petition for adjudication alleges physical abuse, the State declined to pursue this in any detail. It chose to present no direct evidence of any kind concerning Frank's alleged physical abuse.\\nThe domestic violence restraining orders are therefore the only possible bases for the superior court's finding that Frank's conduct would place Gordon in imminent and substantial risk of substantial physical harm. The petition for adjudication cited these orders. Frank was asked about them during the hearing and gave a rambling response. He denied that the allegations of violence were accurate and invited the State to pursue the matter in more detail.\\nThe State declined to do this. The restraining orders were not entered into evidence and the State presented no direct testimony to support allegations of violence. However, at the conclusion of the hearing the superior court announced that it had reviewed all court records involving Frank. Speaking of the domestic violence restraining orders, the court stated that \\\"we have records that I can take judicial notice of that show his history of violence.\\\"\\nOn appeal, Frank challenges the superior court's decision to take judicial notice, arguing that the factual allegations judicially noticed were unsuitable for such notice. The State responds that since it is attested to in court documents, Frank's \\\"history of violence\\\" is the kind of fact suitable for judicial notice.\\nArticle II of the Alaska Rules of Evidence governs taking judicial notice. A court may take judicial notice \\\"at any stage of the proceeding,\\\" Alaska R.Evid. 203(b), and may do so \\\"whether requested or not,\\\" Alaska R.Evid. 201(c). In addition, the Rules leave considerable discretion to the court to take judicial notice of judicially noticeable facts. However, they leave no discretion to the court about which kinds of fact may be judicially noticed. Alaska R.Evid. 201(b). See Alaska Evidence Rules Commentary, Rule 201(c) and (d): \\\"Under subdivision [201](c) the judge has a discretionary authority to take judicial notice, as long as subdivision [201]'(b), supra, is satisfied.... The question of whether or not to take judicial notice of fact that satisfies the conditions of subdivision [201] '(b) is thus left primarily to the court's discretion.\\\" (Emphasis added.)\\nThe question is therefore whether the proposition that Frank had a \\\"history of violence\\\" was a judicially noticeable fact. The rules set out the applicable standard: \\\"A judicially noticed fact must be one not subject to reasonable dispute.\\\" Alaska R.Evid. 201(b) (emphasis added). The Commentary to the Alaska Evidence Rules fleshes out this standard as follows:\\nThe court taking judicial notice of a fact as that term is used in Rule 201 is held to a . demanding standard \\u2014 the same standard required for it to direct a verdict; it must be right, meaning that rational minds would not dispute the fact that the court notices.\\nEvidence Rules Commentary, Rule 201(a); see also 1 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence, It 200[01], at 200-2 (1990) (judicial notice of fact \\\"is restricted to discrete facts which are so well known or authoritatively established as to be essentially indisputable.\\\"). Applying that standard, as laid out in Barber v. National Bank of Alaska, 815 P.2d 857 (Alaska 1991), yields the following: This court will affirm taking judicial notice only if, viewing the evidence in the light most favorable to the party against whom judicial notice is to be taken, fair-minded jurors could not disagree about the truth of the proposition to be noticed.\\nThe State argues that this standard was met in this case because the court derived the judicially noticed proposition that Frank has a \\\"history of violence\\\" from court records. It argues that court records are particularly suited for judicial notice and points out that courts routinely notice such records.\\nWe agree that courts freely take notice of court records, especially their own. However, they typically do so in order to take judicial notice of such facts as that a prior suit was filed, who the parties were, and so forth. These are indeed facts not subject to reasonable dispute.\\nCourts are far more circumspect about taking judicial notice of the facts alleged in court records. Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388-89 (2d Cir.1992) (judicial notice of another court's factual findings may be used only to establish the fact of litigation and related filings, not the truth of the matters asserted); Marshall v. Bramer, 828 F.2d 355, 358 (6th Cir.1987) (\\\"it is generally not appropriate to judicially notice findings of fact made in other cases\\\"); United States v. Sixty Acres, More or Less with Improvements, Located in Etowah County, Alabama, 736 F.Supp. 1579, 1581 (N.D.Ala.1990) (courts \\\"cannot judicially know for the purposes of [the present] case evidence received in another case\\\"). We conclude that the trial court erred in taking judicial notice of the restraining orders for the purpose of establishing that Frank had committed acts of violence in the past.\\nFor the above reasons there is insufficient evidence to support the trial court's adjudication under AS 47.10.010(a)(2)(C).\\nAccordingly, we REVERSE the superior court's adjudication of Gordon as a child in need of aid under AS 47.10.010(a)(2)(A) and (C), and VACATE its order committing Gordon to DFYS's custody.\\n. In order to preserve the anonymity of the parties, and for the reader's convenience, we will use \\\"Gordon\\\" and \\\"Frank\\\" as placeholders for G.T.'s and F.T.'s names.\\n. These orders are not part of the record on appeal before this court.\\n. In pertinent part, AS 47.10.010(a)(2) provides as follows:\\nSec. 47.10.010. Jurisdiction, (a) Proceedings relating to a minor under 18 years of age residing or found in the state are governed by this chapter, except as otherwise provided in this chapter, when the court finds the minor\\n(2) to be a child in need of aid as a result of\\n(A)the child being habitually absent from home or refusing to accept available care, or having no parent, guardian, custodian, or relative caring or willing to provide care, including physical abandonment by\\n(i) both parents,\\n(ii) the surviving parent, or\\n(iii) one parent if the other parent's rights and responsibilities have been terminated under AS 25.23.180(c) or AS 47.10.080 or voluntarily relinquished;\\n(B) the child being in need of medical treatment to cure, alleviate, or prevent substantial physical harm, or in need of treatment for mental harm as evidenced by failure to thrive, severe anxiety, depression, withdrawal, or untoward aggressive behavior or hostility toward others, and the child's parent, guardian, or custodian has knowingly failed to provide the treatment;\\n(C) the child having suffered substantial physical harm or if there is an imminent and substantial risk that the child will suffer such harm as a result of the actions done by or conditions created by the child's parent, guardian, or custodian or the failure of the parent, guardian, or custodian adequately to supervise the child[.]\\n(Emphasis added.)\\n. Whether the superior court failed to apply the jurisdictional elements of AS 47.10.010(a)(2) \\\"is a question of statutory interpretation, which this court will decide using its independent judgment adopting the rule of law that is most persuasive in light of precedent, reason, and policy.\\\" In re J.L.F., 828 P.2d 166, 168 n. 5 (Alaska 1992). However, the \\\"factual findings supporting the trial court's determination that a minor is a Child in Need of Aid will not be overturned on review unless clearly erroneous.\\\" A.H. v. State, 779 P.2d 1229, 1231 (Alaska 1989).\\n. AS 47.10.990(1) defines \\\"caring\\\" as follows:\\n\\\"[Cjare\\\" or \\\"caring\\\" under AS 47.10.010-(a)(2)(A) . means to provide for the physical, emotional, mental, and social needs of the child[J\\n. Frank also argues that the State abandoned AS 47.10.010-(a)(2)(C) as a basis for the CINA adjudication. Since we find insufficient evidence in the record to support an adjudication under AS 47.10.010(a)(2)(C), we do not reach this contention.\\n. By way of illustration, Gordon's last hospitalization occurred after he was placed in a foster home to which Frank had no access. During this placement his contact with Gordon was limited to one weekly meeting; the foster parents did not even allow Frank to call Gordon, because his calls were at inconvenient times. Within two weeks Gordon had to be hospitalized. Gordon's psychiatrist testified that the hospitalization was the result of the \\\"major environmental stress\\\" produced by this change in foster placement.\\n. The State's claim that Frank never objected to introduction of hearsay evidence of his alleged physical violence is incorrect. As soon as Kara-molegos began to present hearsay evidence Frank objected on hearsay grounds. The State responded that it was offering the testimony only as the basis for Karamolegos' expert opinion as to Gordon's needs. The court accepted it on that basis.\\nFrank also appeals the admission of hearsay testimony at the subsequent disposition hearing. Since we reverse the CINA adjudication we do not reach this issue.\\n.In addition, even if Karamolegos' hearsay testimony were allowed to prove Frank's abuse, it is inadequate to support the court's determination. Karamolegos made clear that Gordon would lead any parent to use force on occasion. The record fully confirms this assessment. Gordon's first foster parent acknowledges needing to \\\"restrain\\\" Gordon on occasion, including \\\"[pjhysically sit on him if that was necessary.\\\" At first this occurred as often as three or four times a day. Karamolegos described teachers at Gordon's school needing to \\\"control\\\" Gordon, and \\\"upon a number of different occasions\\\" needing to \\\"restrain him\\\" by having \\\"to actually hold him down.\\\" His psychiatrist describes similar events.\\nThe State's own testimony therefore establishes that some degree of' physical force is sometimes appropriate in order to cope with Gordon's violent outbursts. The State presented no evidence that the physical force it alleged Frank used on Gordon on three or four occasions was not of this kind.\\n. Whether the superior court properly took judicial notice is a question of law. This court may substitute its judgment for that of the superior court. No deference to the court's decision is needed, for \\\"[a]n appellate court is often in as good a position as the trial court to ascertain the degree of probability of a judicially ascertainable fact.\\\" 2 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence \\u00b6201 [04], at 201-49 (1992).\\n. The State also suggests that any error in taking judicial notice would be harmless, since there was other evidence of violence to support the adjudication under AS 47.10.010(a)(2)(C). We disagree. As we have noted, the State offered no direct evidence of physical abuse on Frank's part.\\n.Alaska Rule of Evidence 201 provides, in pertinent part:\\n(b) General Rule. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within this state or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.\\n(c) When Discretionary. A court may take judicial notice as specified in subdivision (b), whether requested or not.\\n(d) When Mandatory. Upon request of a party, the court shall take judicial notice of each matter specified in subdivision (b) if the requesting party furnishes sufficient information and has given each party notice adequate to enable the party to meet the request.\\n. The superior court may have meant to invoke the doctrine of issue preclusion; that doctrine is also not applicable to this case. Under the general rule of issue preclusion, an issue of fact which is actually litigated in a former action may, under certain circumstances, be regarded as conclusive in a subsequent case. Restatement (Second) of Judgments \\u00a7 27 (1982). Whether domestic violence orders issued under AS 25.35.010 or AS 25.35.020 can cause issue preclusion in a subsequent child in need of aid proceeding is a topic of some complexity. It is sufficient for our purposes in this opinion to state that issue preclusion in such cases would by no means be inevitable. The issue as to whether the individual in question had committed acts of domestic violence must have actually been litigated; a judgment entered by default does not qualify as actual litigation. Id. \\u00a7 27 cmt. e. Further, various exceptions to the rule of issue preclusion may apply in this case. See Id. \\u00a7 28(3), 28(5), 29(2), 29(5). None of these matters were explored in the trial court and therefore issue preclusion by reason of the domestic violence orders would have been plainly inappropriate.\"}"

alaska/10366676.json

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+"{\"id\": \"10366676\", \"name\": \"STATE of Alaska, Appellant, v. Gary NEWCOMB, Appellee\", \"name_abbreviation\": \"State v. Newcomb\", \"decision_date\": \"1994-03-11\", \"docket_number\": \"No. A-4772\", \"first_page\": \"1193\", \"last_page\": \"1195\", \"citations\": \"869 P.2d 1193\", \"volume\": \"869\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Court of Appeals\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T18:40:58.497062+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BRYNER, C.J., COATS, J., and ANDREWS, Superior Court Judge.\", \"parties\": \"STATE of Alaska, Appellant, v. Gary NEWCOMB, Appellee.\", \"head_matter\": \"STATE of Alaska, Appellant, v. Gary NEWCOMB, Appellee.\\nNo. A-4772.\\nCourt of Appeals of Alaska.\\nMarch 11, 1994.\\nCynthia L. Herren, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellant.\\nSuzanne Weller, Asst. Public Defender, and John B. Salemi, Public Defender, Anchorage, for appellee.\\nBefore BRYNER, C.J., COATS, J., and ANDREWS, Superior Court Judge.\\nSitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.\", \"word_count\": \"958\", \"char_count\": \"6081\", \"text\": \"OPINION\\nBRYNER, Chief Judge.\\nOn March 3, 1987, Anchorage police officers located and arrested Gary Newcomb, a fugitive who had escaped from the Wildwood Correctional Center. In the course of the arrest, Newcomb shot and wounded two officers. After taking Newcomb into custody, the police discovered $666 in cash on his person and seized it.\\nNewcomb was charged with attempted murder, first-degree assault, misconduct involving weapons, and escape. While these charges were pending, Newcomb moved for return of the funds seized from him upon his arrest. The superior court denied this motion, ruling that the matter was under investigation and that the money was being properly held as potential evidence. Newcomb was eventually convicted; this court affirmed his conviction and sentence in Newcomb v. State, 800 P.2d 935, 937 (Alaska App.1990).\\nWhile his appeal was pending, Newcomb requested the District Attorney's Office to return his money. The Anchorage Police Department, which had control of the money, declined to return it based on an investigating officer's belief that it might be stolen.\\nOn June 24, 1992, more than a year after his conviction had become final, Newcomb filed a motion in his closed criminal case, seeking return of the money. The state opposed the motion, arguing that the superi- or court lacked jurisdiction and that New-comb's proper remedy would be a civil action against the municipality. Superior Court Judge Milton M. Souter initially denied New-comb's motion, but subsequently granted a motion to reconsider his ruling and ordered the money returned. The state appeals, renewing the jurisdictional arguments it raised below.\\nNewcomb rejoins that the trial court has broad ancillary powers over the disposition of property seized in connection with a criminal case. See, e.g., United States v. Elias, 921 F.2d 870, 872 (9th Cir.1990); United States v. Maez, 915 F.2d 1466, 1468 (10th Cir.1990); United States v. Wingfield, 822 F.2d 1466, 1470 (10th Cir.1987); United States v. LaFatch, 565 F.2d 81, 83 (6th Cir.1977); United States v. Wilson, 540 F.2d 1100, 1104 (D.C.Cir.1976). He argues that the court did not abuse its discretion in this case.\\nAlthough a trial court unquestionably exercises authority over the disposition of evidence upon the conclusion of a criminal case, the court's involvement in such issues typically does not extend beyond assuring that property submitted to the court in the course of the litigation be returned to the submitting party. See, e.g., Criminal Rule 26.1(g), (h); Alaska Court System Office of the Administrative Director, Administrative Bulletin No. 9 \\u00a7 VIII(4) (July 15, 1991). In the interest of judicial economy and fairness, however, a trial court may also exercise authority to decide ancillary issues regarding the disposition of property involved in a criminal proceeding, particularly when the decision of such ancillary issues is incidental to the court's decisions on issues squarely presented in the course of the proceeding. See, e.g., Wilson, 540 F.2d at 1103-04. See also United States v. Martinson, 809 F.2d 1364, 1367-68 (9th Cir.1987). Nevertheless, in matters calling for an exercise of ancillary jurisdiction, the scope of the trial court's discretion is necessarily circumscribed by the principles from which its ancillary powers derive: judicial economy, procedural fairness, and sound public policy. Wilson, 540 F.2d at 1103-04; Martinson, 809 F.2d at 1367-68.\\nIn this ease, prior to Newcomb's trial, the court was required to determine the state's right to retain possession of the money seized from Newcomb upon his arrest. However, prior to the termination of the criminal proceedings, the trial court was never called upon to resolve the competing claims of New-comb and the Municipality of Anchorage as to ownership of the money. This issue is in no sense incidental to issues addressed or decided by the trial court during the cqurse of the criminal litigation; rather, Newcomb belatedly raised it long after his criminal case had been finally resolved.\\nNewcomb could as readily have pursued his claim in a separate civil action. Because his conviction had long since become final and his criminal case had been closed, and because his motion raised issues that the trial court had not been required to resolve during the pendency of the prosecution, adjudication of Newcomb's claim in the context of the closed criminal case offered no advantage of efficiency. To the contrary, as evidenced by the expenditure of state resources vastly disproportionate to the value of the funds in controversy, the superior court's exercise of its equitable powers of ancillary jurisdiction in this case can hardly be defended in the name of judicial economy.\\nWe further fail to see how the interest of fairness was served by allowing Newcomb to proceed in a forum where the Municipality of Anchorage \\u2014 which has actual possession and control of Newcomb's money and is primarily responsible for the resistance he has encountered in seeking its return \\u2014 is not formally a party. Finally, we think it highly questionable whether public policy favors allowing Newcomb to pursue what is essentially a private civil action for money in a procedural setting where he is served by court-appointed counsel at public expense.\\nUnder the circumstances, we conclude that the superior court abused its discretion in entertaining Newcomb's motion and deciding it on its merits in the context of his closed criminal case.\\nThe order entered below is VACATED.\\nMANNHEIMER, J., not participating.\"}"

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+"{\"id\": \"10371576\", \"name\": \"In the DISCIPLINARY MATTER INVOLVING Ronald T. WEST, Respondent\", \"name_abbreviation\": \"In the Disciplinary Matter Involving West\", \"decision_date\": \"1991-01-25\", \"docket_number\": \"No. S-3558\", \"first_page\": \"351\", \"last_page\": \"362\", \"citations\": \"805 P.2d 351\", \"volume\": \"805\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T20:11:36.813540+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before MATTHEWS, C.J., and RABINO WITZ, COMPTON and MOORE, JJ.\", \"parties\": \"In the DISCIPLINARY MATTER INVOLVING Ronald T. WEST, Respondent.\", \"head_matter\": \"In the DISCIPLINARY MATTER INVOLVING Ronald T. WEST, Respondent.\\nNo. S-3558.\\nSupreme Court of Alaska.\\nJan. 25, 1991.\\nWalter R. Arden, Anchorage, for respondent.\\nStephen J. Van Goor, Bar Counsel, Anchorage, for Alaska Bar Ass\\u2019n.\\nBefore MATTHEWS, C.J., and RABINO WITZ, COMPTON and MOORE, JJ.\", \"word_count\": \"7062\", \"char_count\": \"44258\", \"text\": \"OPINION\\nRABINO WITZ, Justice.\\nThis appeal concerns issues of attorney misconduct stemming from Ronald T. West's actions with regard to a negotiated property loss settlement. A disciplinary action against West was heard by an Area Hearing Panel (\\\"Panel\\\"). The Panel concluded that West violated certain disciplinary rules and recommended a 90-day suspension from practice.\\nWest and the Bar Association appealed to the Disciplinary Board of Governors of the Alaska Bar Association (\\\"Board\\\"). In its decision, the Board found that West's conduct constituted \\\"serious criminal misconduct\\\" and recommended a two-year suspension. The Board further recommended that West be required to petition for reinstatement, demonstrating his fitness to practice law and passage of the Multistate Professional Responsibility Exam (MPRE).\\nWest now brings this appeal from the findings, conclusions, and recommendations of the Board.\\nI. FACTS AND PROCEEDINGS.\\nA. The Release.\\nThomas Briggs, an independent truck owner and operator, was involved in an accident on the Dalton Highway. The accident was caused by a washed out approach to a bridge over the Nutilinktak River. Briggs was insured for the truck itself, but not for spare parts, personal effects, or loss of its use. Briggs retained West, on a one-third contingency fee basis plus costs, to represent him in a suit against the State of Alaska to recover damages for these uninsured items.\\nWest filed a complaint against the state and subsequently entered into settlement negotiations with Northern Adjusters, which was acting on the state's behalf. The state made an offer to settle the suit but this offer was rejected by Briggs. A short time later, on March 7, 1986, Briggs died of a heart attack. His widow, Sandra Briggs, contacted West to inform him of her husband's death and inquire about the lawsuit's future. West discussed the claim with her and suggested that they accept the settlement offer, if it was still open. Mrs. Briggs agreed. West then contacted Northern Adjusters to discuss the settlement. An agreement was reached where, for $5,500 consideration, West would dismiss the case with prejudice and release the state from liability.\\nWest then requested that Mrs. Briggs come to his office to sign the contemplated release. West, concerned that the settlement offer would be withdrawn if the state learned of Mr. Briggs' death, instructed Mrs. Briggs to sign the release form in both her name and her husband's name.\\nAfter Mrs. Briggs signed the release, West notarized it as follows:\\nOn the 26 day of March, 1986, before me personally appeared the above [referring to Thomas and Sandra Briggs] to me known to be the person(s) named herein and who executed the foregoing Release and they acknowledged to me that they voluntarily executed the same.\\nWest then signed and dated the release in his capacity as a notary public.\\nWest exchanged the release for the $5,500 settlement check, which was made out to \\\"Thomas Briggs and Ron West, Attorney.\\\" West subsequently filed in the superior court a stipulation dismissing the case with prejudice. West deposited the check in a trust account, deducted one-third plus costs as his compensation, and wrote a check to the \\\"Estate of Tom Briggs\\\" for the remainder.\\nB. Bar Association Proceedings.\\nThe Panel found that West violated the Code of Professional Responsibility: DR 1-102(A)(4), (5), (6), as well as DR 7-102(A)(5). In determining the appropriate sanction, the Panel used the ABA Standards for Imposing Lawyer Sanctions (1986) as guidelines. The Panel recommended a 90-day suspension for West.\\nThe Board affirmed the Panel's findings as to West's violations of the Code of Professional Responsibility. The Board disapproved of the Panel's recommended 90-day suspension; it concluded that a two-year suspension was more appropriate. The Board also required that West petition for reinstatement and pass the MPRE.\\nII. DISCUSSION.\\nWest specifies eleven separate errors.\\nA. DR 1-102(A)(4).\\nWest contends that the Panel and Board erred in concluding that his misconduct involved fraud and that he, therefore, violated DR 1-102(A)(4).\\nViolations of DR 1-102(A)(4) are restricted to intentional acts of misconduct. In re Simpson, 645 P.2d 1223, 1227 (Alaska 1982), methodology modified by Disci plinary Matter Involving Buckalew, 731 P.2d 48 (Alaska 1986). The ABA Standards for Imposing Lawyer Sanctions provide that \\\"intent\\\" encompasses the \\\"conscious objective or purpose to accomplish a particular result.\\\" ABA Model Standards, Lawyer Sanctions, Definitions, ABA/BNA at 01:807 (1986).\\nThe Panel found West in violation of DR 1-102(A)(4). It concluded that West \\\"intentionally notarized a signature that he knew to be false and, in the course of doing so, made statements and representations which he knew were false.\\\" The Panel further concluded that West's purpose was to cause the state \\\"to enter into settlement at a time when [West] believed that if the facts were known the settlement might not be agreed to.\\\" The Board affirmed the Panel's conclusion with regard to DR 1-102(A)(4).\\nWest asserts that he did not violate DR 1-102(A)(4) because his actions, while possibly negligent, were not intentional. West further contends that his actions in regard to the release were neither fraudulent nor material since the release was not relied upon by the state in making the settlement.\\nWe reject West's contentions. It is clear that West violated DR 1 \\u2014 102(A)(4). The evidence shows that West intended the consequences of his actions. He intended that the state go through with the settlement even though Mr. Briggs was dead. Thus, we conclude that West engaged in dishonest conduct in violation of DR 1-102(A)(4).\\nB. DR 1-102(A)(5).\\nWest further contends that the Panel and Board erred in holding that his actions constituted conduct prejudicial to the administration of justice in violation of DR 1-102(A)(5). More particularly, West argues that his actions, although admittedly improper, were intended to \\\"facilitate\\\" justice. Additionally, West asserts that justice was not obstructed since the questioned release was never intended to be filed in court.\\nWest's contentions are devoid of merit. The record clearly reveals that West violated DR 1 \\u2014 102(A)(5). West admits that he notarized a statement which he knew to be false. It is beyond dispute that such conduct is in fact prejudicial to the administration of justice.\\nC. DR 1-102(A)(6).\\nWest first contends that DR 1-102(A)(6) applies to such \\\"other conduct\\\" as is not proscribed by DR l-102(A)(3)-(5) and is only to be used when the other subsections of DR 1-102 are inapplicable. Alternatively, West asserts that DR 1-102(A)(6) is constitutionally infirm because reasonable attorneys \\\"must guess what conduct it proscribes.\\\"\\nIn our view, West's first contention has merit. DR 1-102(A)(6) is intended as a \\\"catch-all\\\" for such \\\"other conduct\\\" as is not proscribed by the preceeding provisions of DR 1-102. The Board has presented no argument to support a position that West can be found to have violated both DR 1-102(A)(4) & (5), and also DR 1-102(A)(6).\\nWe reject West's alternative contention that DR 1-102(A)(6) is void for vagueness. Regarding vagueness, we have said that\\nThe Code of Professional Responsibility is necessarily written in broad terms. It would be extremely difficult, if not impossible, to develop standards specifically detailing all forms of attorney misconduct. Although capable of broad interpretation, we believe the meaning of the Disciplinary Rules cited in this case is sufficiently clear to satisfy the requirements of due process.\\nIn re Vollintine, 673 P.2d 755, 758 (Alaska 1983). See also Committee on Professional Ethics v. Durham, 279 N.W.2d 280, 284 (Iowa 1979) (DR 1-102(A)(6) not violative of a \\\"reasonable attorney\\\" due process standard as applied to alleged intimate physical contact by attorney with inmate client during prison visits). West's conduct involved dishonesty which clearly reflected upon his fitness to practice law. Therefore, we conclude that DR 1-102(A)(6), as applied to West, does not violate due process.\\nD. Appropriate Sanctions.\\nIn Buckalew, we stated that \\\"we will refer to the ABA Standards [for Imposing Lawyer Sanctions] and methodology as an appropriate model for determining sanctions for lawyer misconduct in this state,\\\" 731 P.2d at 52. The ABA Standards provide a four-pronged test for determining disciplinary sanctions:\\n(1) What ethical duty did the lawyer violate? (A duty to a client, the public, the legal system, or the profession?)\\n(2) What was the lawyer's mental state? (Did the lawyer act intentionally, knowingly, or negligently?)\\n(3) What was the extent of the actual or potential injury caused by the lawyer's misconduct? (Was there a serious or potentially serious injury?)\\n(4) Are there any aggravating or mitigating circumstances?\\nABA Standards, Theoretical Framework, ABA/BNA at 01:805-06.\\nId. These questions are addressed within a three-step methodology:\\nUnder the foregoing methodology, our task., in this case is threefold. The initial step requires that we answer the first three \\\"prongs\\\" of the ABA test set forth above. Next, we must look to the ABA Standards to discern what sanction is recommended for the \\\"type\\\" of misconduct found in our initial inquiry. After determining the recommended sanction, we must ascertain whether any aggravating or mitigating circumstances exist which warrant increasing or decreasing the otherwise appropriate sanction. See, ABA Standards, Methodolgy [sic], ABA/BNA at 01:803-04.\\nId.\\n(i). Ethical Duties.\\nAs previously discussed, West violated DR 1-102(A)(4) (fraudulent conduct); DR 1-102(A)(5) (conduct prejudicial to the administration of justice); and DR 7-102(A) (knowingly making a false statement of law or fact while representing a client). Each of these violations constituted breaches by West of ethical duties. See ABA Model Standards, Lawyer Sanctions \\u00a7 4.6 (Duties Owed to Clients; Lack of Candor); \\u00a7 5.1 (Duties Owed to Public, Failure to Maintain Personal Integrity); \\u00a7 6.1 (Duties Owed to the Legal System; False Statements, Fraud and Misrepresentation); \\u00a7 6.2 (Duties Owed to the Legal System; Abuse of Legal Process). See also ABA Model Code of Professional Responsibility EC 1-5 (1980) (\\\"Because of his position in society, even minor violations of law by a lawyer may tend to lessen public confidence in the legal profession. Obedience to law exemplifies respect for law. To law yers especially, respect for the law should be more than a platitude.\\\").\\n(ii). Mental State.\\nThe second prong of the test requires determining West's mental state. The Panel, with the Board affirming, concluded that West's misconduct was both knowing and intentional. The Panel based it conclusion on the fact that West intended the state to believe that Mr. Briggs actually signed the release. We affirm. The requisite intent does not have to include malfeasance, only \\\"the conscious objective or purpose to accomplish a particular result.\\\" ABA Model Standards, Definitions, ABA/BNA at 01:807.\\n(iii). Injury or Potential Injury.\\nThe Panel, with the Board affirming, found actual injury to both the public and the legal profession as a result of West's misconduct. At a minimum, it impairs confidence in attorneys' honesty. Additionally, the Panel, with the Board affirming, found the potential for injury \\\"to the estate, Mrs. Briggs, and the state as settling party, as a result of [West's] actions in permitting [the] false release to be signed and used in settlement of the Briggs' lawsuit.\\\"\\nWest asserts that his misconduct caused no actual injury to anyone. West points out that the estate was satisfied with the settlement, and the state considered the settlement amount fair, stating that its position would not have changed had it known of Mr. Briggs' death. West maintains that to find actual injury here provides no guidance in those situations where actual harm really exists. For essentially the same reasons, West also asserts that there was no potential injury. West suggests that no potential injury exists if later facts show the potential injury to be \\\"highly theoretical.\\\"\\nBar counsel supports the Panel's finding that the public and the legal system suffer whenever a notary public engages in misconduct. Additionally, Bar counsel asserts that West's conduct \\\"created potential injury and expense to the legal system had the settlement been withdrawn because of the false release and further proceedings ensued over the enforceability of that false release.\\\"\\nRegarding this point, the Panel concluded\\n. actual injury to both the public and the legal profession occurs whenever an attorney falsifies documents, intentionally misuses his notary seal, or similarly deceives the public or an opposing party. Such actions fall well below the standard of conduct expected of attorneys and, if nothing else, destroys both the public's and the legal system's confidence in the honesty of the attorneys with whom they have dealings.\\nWe cannot fault these observations, although we agree with West that little or no actual injury to the estate or the State of Alaska occurred. As West points out, no one has challenged the settlement or suggested that they would have acted in any other manner.\\nConcerning West's contentions that there was no potential injury as a consequence of his conduct we take a different view. It was \\\"reasonably foreseeable\\\" that, at the time West notarized the release, harm could come to the Briggs' estate, the public, the legal system and the legal profession. As Bar counsel points out, had the settlement been withdrawn because of West's misconduct, the ensuing legal entanglements would have injured the following: the estate, at the least, in not receiving the settlement money; the state, in spending time and resources to assert its position and defend its actions; the legal system, in expending time and resources to settle any dispute arising from the false release; and the public, in ultimately paying for the implications of West's misconduct.\\n(iv). Recommended Sanctions in Light of West's Misconduct.\\nThe Board's decision found\\n. that Mr. West's conduct constituted serious criminal misconduct involving intentional interference with the administration of justice, false swearing and misrepresentation, and this is more appropriately described under paragraphs 5.11 and 5.12 [sanction standards]. The Board disapproves of the committee's recommended sanction of 90 days suspension as not severe enough for these serious violations. The lack of proof of a selfish motive, the remoteness of prior offenses and the presence of personal and medical problems serve to mitigate the otherwise appropriate sanctions of disbarment, or more lengthy suspension.\\nThe Board, therefore, concludes that the most appropriate sanction is a 2 year suspension for Mr. West, coupled with a requirement that Mr. West as a condition of readmission to the bar be required to petition for reinstatement and demonstrate his fitness to practice, and to take and pass the Multistate Professional Responsibility Examination.\\nSections 5.11 and 5.12 of the ABA Model Standards for Imposing Lawyer Sanctions provide that either disbarment or suspension are appropriate sanctions in the factual context of this case. We affirm the Board's determination that disbarment or suspension are generally appropriate sanctions given the nature of West's miscon duct, and specifically reject West's assertion that Section 5.13 (Reprimand) is applicable in this factual context.\\n(v). Aggravating or Mitigating Factors.\\nIn addressing the subject of aggravating factors, the Panel gave \\\"little weight\\\" to the previous disciplinary actions which involved West, finding that the prior conduct was dissimilar from that involved in the present case. Additionally, the Panel found no selfish or dishonest motive in West's actions. The Panel did, however, find that West's length of practice was an aggravating factor in that he must have known of his conduct's impropriety.\\nPrior disciplinary offenses are relevant in an aggravating factors analysis. ABA Model Standards, Lawyer Sanctions, \\u00a7 9.21(a), ABA/BNA at 01:841. West violated the Code of Professional Responsibility on three occasions prior to the present action. On each occasion, West received a private admonition as a sanction. Thus, we find no merit in West's contention that neither the Panel nor the Board should have considered these prior disciplinary offenses.\\nA dishonest or selfish motive is also relevant in an aggravating factors analysis. ABA Model Standards, Lawyer Sanctions, \\u00a7 9.21(b), ABA/BNA at 01:841. West had a one-third contingency fee plus costs arrangement with Briggs. West's share of the settlement proceeds was $1,650. It is conceivable that the collection of this money provided a motive for West to act as he did.\\nFinally, an attorney's experience in the practice of law is relevant in an aggravating factors analysis. ABA Model Standards, Lawyer Sanctions, \\u00a7 9.21(i), ABA/BNA at 01:842. West has been a member of the Alaska Bar Association since 1971. In our view, West's extensive practice experience provides the only significant aggravating circumstance in this case.\\nIn regard to mitigating factors, the Panel, in its findings and conclusions regarding sanctions, found the following:\\nRespondent argues in mitigation that he was suffering from severe personal and emotional problems and that he was suffering from mental disability or impairment at the time of misconduct. The testimony at the sanctions hearing established that, at the time of Respondent's misconduct, he was involved in contested and very expensive litigation relating to personal business matters and that this litigation threatened to ruin him financially. As a result of the pressures in his personal life, Respondent was suffering from intermittent depression which, ultimately, caused him to seek psychiatric assistance. Respondent is presently under the care and counseling of a psychiatrist. Respondent also called several attorneys as witnesses to his good character and reputation. This testimony was not substantially refuted by the Bar and is accepted as a mitigating factor by the panel.\\nIn our view, the Panel's findings concerning mitigating circumstances are fully supported by the record.\\nIII. CONCLUSION.\\nOur study of the record and the arguments of the parties to this appeal persuades us that the Panel's recommended sanction should be adopted as the appropriate sanction in this case. In its conclusions regarding sanctions, which we expressly adopt, the Panel stated,\\nBar counsel has recommended that Respondent be suspended for a period of time not to exceed two years as a result of his conduct. Conversely, Respondent argues that he should be issued a private reprimand. The panel has concluded that a private reprimand is not sufficient to express the seriousness of Respondent's conduct. The bar and the public have a right to expect that lawyers will not counsel their clients to affix false signatures to legal documents, misuse their notary power to verify what the attorney knows is a false signature or use documents falsely signed and notarized in settlement of legal disputes:\\n[W]e cannot ignore the fact that our paramount duty, \\\"lies in the assurance that the public will be protected in the performance of the high duties of . attorney[s].... Our primary concern must be the fulfillment of proper professional standards, whatever the unfortunate cause, emotional or otherwise for the attorney's failure to do so.\\\"\\nDisciplinary Matter Involving Buckalew, 731 P.2d 48, 54 (Alaska 1986) (quoting In re Possino [37 Cal.3d 163, 207 Cal.Rptr. 543, 548], 689 P.2d 115, 120 (Cal.1984)). Respondent's conduct in this case was less serious than that involved in Buckalew. Respondent was not trying to cover-up the consequences of his own malpractice. Indeed, the irony of this situation is that if Respondent had followed proper procedures and opened an estate so that the proper legal representative could affix his or her signature, the same settlement could probably have been effected just a few weeks later. Nor is Respondent's conduct as serious as that in Disciplinary Matter Involving Walton, 676 P.2d 1078 (Alaska 1983), in which the false document was created by the attorney and then used affirmatively in court proceedings. On the other hand, Respondent's conduct is more serious than that in Matter of Conti [75 N.J. 114], 380 A.2d 691 (New Jersey 1977) in which an attorney directed his secretary to sign the clients' names to deeds after contacting the clients, who had moved away, and being instructed to do whatever was necessary to have the deeds recorded. The discipline in Buckalew was disbarment. The discipline in Walton was suspension for 18 months. The discipline in Conti was a reprimand. The seriousness of Respondent's conduct suggests that a suspension for a period of 90 days is appropriate. The panel recommends a 90 day suspension.\\nRonald T. West is suspended from the practice of law for a period of 90 days.\\n. West emphasizes throughout his briefing before us that he \\\"considered Mrs. Briggs to be the de facto personal representative of\\\" Mr. Briggs' estate at the time she signed the release. Mrs. Briggs was not officially named as one of the two co-personal representatives of the estate until April 10, 1988, two weeks after the release was signed. The other co-representative was Gary Briggs, a son of Mr. Briggs by an earlier marriage. West explained the delay in having Mrs. Briggs named personal representative: he believed the length of such a proceeding might cause the state to learn of Mr. Briggs' death and thus withdraw the settlement offer.\\n. West justified his actions by asserting that the claim was valid, the settlement amount fair, and the state would possibly and unjustly withdraw the offer if it knew of Brigg's death. West's actions were discovered by an attorney working on the Briggs estate. In a letter to the firm handling the estate, West explained his conduct as follows:\\nI was faced with the choice of doing something according to the rules and seeing a client get screwed or not telling the defendant and getting something. I guess I wonder what one is to do when faced with the situation where if you do the right thing, your client might suffer or suffer a great deal and bending the rules to get something for the client.... It just really bothers me that if we had done nothing, the defendant would have prevailed, when they were so clearly at fault. Prior to sending the letter to the firm han-\\ndling the estate. West contacted the Alaska Bar Association and told them what happened. Thereafter, disciplinary proceedings were instituted against West.\\n. The appropriate standard of review for attorney disciplinary proceedings is well established.\\nThough this court has the authority, if not the obligation, to independently review the entire record in disciplinary proceedings, findings of fact made by the Board are nonetheless entitled to great weight. The deference owed to such findings derives from the responsibility to conduct disciplinary proceedings which this court has delegated to the Bar Association. Where findings of fact entered by the Board are challenged on appeal to this court, . the respondent attorney bears the burden of proof in demonstrating that such findings are erroneous.... As a general rule, moreover, we ordinarily will not disturb findings of fact made upon conflicting evidence. .\\nIn deciding the appropriate punishment, we need not accept the Disciplinary Board's recommendation, but may exercise our own independent judgment....\\nIn re Simpson, 645 P.2d 1223, 1226-28 (Alaska 1982) (citations omitted), methodology modified by Disciplinary Matter Involving Buckalew, 731 P.2d 48 (Alaska 1986).\\n.Disciplinary Rule 1-102(A)(4) provides that:\\n(A) A lawyer shall not:\\n(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.\\n. This court has found DR 1-102(a)(4) violations where an attorney fabricated a deed and attached it to an amended complaint, Disciplinary Matter Involving Walton, 676 P.2d 1078, 1081-86 (Alaska 1983), appeal dismissed mem. sub. nom. Walton v. Alaska Bar Assoc., 469 U.S. 801, 105 S.Ct. 54, 83 L.Ed.2d 6 (1984), and where an attorney falsified documentary evidence and falsely affirmed their authenticity. Matter of Stump, 621 P.2d 263 (Alaska 1980), methodology modified by Buckalew, 731 P.2d 48.\\n. Disciplinary Rule 1-102(A)(5) provides that (A) A lawyer shall not:\\n(5) Engage in conduct that is prejudicial to the administration of justice.\\n. This court has found DR 1 \\u2014 102(A)(5) violations where an attorney fabricated a deed and attached it to an amended complaint, Walton, 676 P.2d at 1081-88; where an attorney submitted an inaccurate interrogatory response, Simpson, 645 P.2d at 1228; and, where an attorney signed an affidavit, which was filed with the court, stating that a note was prepared and sent on a certain date when the note was actually prepared five years later, Stump, 621 P.2d at 267.\\n. DR 1-102(A)(6) provides:\\n(A) A lawyer shall not:\\n(6) Engage in any other conduct that adversely reflects on his fitness to practice law.\\n. We note that the Panel, with the Board affirming, also found West in violation of DR 7-102(A)(5) (\\\"In his representation of a client, a lawyer shall not . knowingly make a false statement of law or fact.\\\"). Review of the record shows that West admits he violated DR 7-102(A)(5), but contends the \\\"violation was de minimis \\\" in view of his overall \\\"legitimate goal of receiving the proceeds of the prior settlement of the estate while retaining the client's confidences.\\\" In our view, such action is not de minimis.\\n.As we explained in Buckalew, 731 P.2d at 53 nn. 18 & 19:\\nThe ABA Standards define \\\"Intent\\\" as: \\\"the conscious objective or purpose to accomplish a particular result.\\\" ABA Standards, Definitions, ABA/BNA at 01:807. Accord AS 11.81.-900(a)(1) (defining criminal intent as a conscious objective to cause a particular result).\\nThe ABA Standards define \\\"knowledge\\\" as: \\\"The conscious awareness of the nature or attendant circumstances of the conduct . without a conscious objective . to accomplish a particular result.\\\" ABA Standards, Definitions, ABA/BNA at 01:807. Accord AS 11.81.900(a)(2) (knowingly for criminal acts defined as an awareness that conduct is of a particular nature or that a particular circumstance exists).\\nThe ABA Standards define \\\"Negligence\\\" as: \\\"The failure of a lawyer to- heed a substantial risk that circumstances exist or that a result will follow, which failure is a deviation from the standard of care that a reasonable lawyer would exercise in the situation.\\\" ABA Model Standards, Definitions, ABA/BNA at 01:807. Accord AS 11.81.900(a)(4) (defining criminal negligence as \\\"fail[ing] to perceive a substantial and unjust-\\u00a1fiable risk that the result will occur or that the circumstance exists.\\\")\\n. We have found an attorney's actions to be knowing and intentional \\\"[w]hen he prepared [a] forged 'settlement agreement' . with the conscious objective to deceive Whittier Fuel into believing its case had been settled.\\\" Buckalew, 731 P.2d at 53.\\n. The ABA Model Standards provide definitions for \\\"injury\\\" and \\\"potential injury\\\":\\n\\\"Injury\\\" is harm to a client, the public, the legal system, or the profession which results from a lawyer's misconduct. The level of injury can range from \\\"serious\\\" injury to \\\"little or no\\\" injury; a reference to \\\"injury\\\" alone indicates any level of injury greater than \\\"little or no\\\" injury.\\n\\\"Potential injury\\\" is the harm to a client, the public, the legal system or the profession that is reasonably foreseeable at the time of the lawyer's misconduct, and which, but for some intervening factor or event, would probably have resulted from the lawyer's misconduct. ABA Model Standards, Definitions, ABA/BNA at 01:807.\\n. The Board specifically disapproved of the Panel's finding that ABA Sanctions guideline 5.13 was applicable. Standard 5.13 reads as follows:\\nReprimand is generally appropriate when a lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer's fitness to practice law.\\n. Section 5.11 provides the following:\\nDisbarment is generally appropriate when:\\n(a) a lawyer engages in serious criminal conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses; or\\n(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice.\\nSection 5.12 states:\\nSuspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer's fitness to practice.\\n. The Panel concluded that Section 6.12 applied to West's misconduct. This standard reads:\\nSuspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding.\\nWe reject West's contention that his actions should not be construed as involving a false statement made to the court. In submitting the release, West knew that his misstatement of fact would be implicated in a legal proceeding.\\n. Aggravating factors \\\"may justify an increase in the degree of discipline to be imposed.\\\" ABA Model Standards, Lawyer Sanctions, \\u00a7 9.21, ABA/BNA at 01:841. These factors include the following:\\n(a) prior disciplinary offenses;\\n(b) dishonest or selfish motive;\\n(c) a pattern of misconduct;\\n(d) multiple offenses;\\n(e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency;\\n(f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process;\\n(g) refusal to acknowledge wrongful nature of conduct;\\n(h) vulnerability of victim;\\n(i) substantial experience in the practice of law;\\n(j) indifference to making restitution.\\nId. \\u00a7 9.22, at 01:841-42.\\n. We agree with the Panel and the Board that two of the prior disciplinary actions are remote in time, and that all are dissimilar to the misconduct at issue. Additionally, the amount of money West stood to gain is not, in our view, sufficient to have induced West to risk getting caught.\\n. Mitigating factors \\\"may justify a reduction in the degree of discipline to be imposed.\\\" ABA Model Standards, Lawyer Sanctions, \\u00a7 9.31, ABA/BNA at 01:842. These factors include the following:\\n(a) absence of a prior disciplinary record;\\n(b) absence of a dishonest or selfish motive;\\nfc) personal or emotional problems;\\n(d) timely good faith effort to make restitution or to rectify consequences of misconduct;\\n(e) full and free disclosure to disciplinary board or cooperative attitude toward proceedings;\\n(f) inexperience in the practice of law;\\n(g) character or reputation;\\n(h) physical or mental disability or impairment;\\n(i) delay in disciplinary proceedings;\\n(j) interim rehabilitation;\\n(k) imposition of other penalties or sanctions;\\n(/) remorse;\\n(m) remoteness of prior offenses.\\nABA Model Standards, Lawyer Sanctions, \\u00a7 9.32, ABA/BNA at 01:842.\\n. In its decision, the Board found that the \\\"lack of proof of a selfish motive, the remoteness of prior offenses and presence of personal and medical problems serve to mitigate the otherwise appropriate sanctions of disbarment, or more lengthy suspension.\\\"\\n. West has additionally argued that Bar counsel's disclosure to the Panel of other grievances concerning West was a breach of confidence in violation of Alaska Bar Rule 22(b) and constituted prejudicial error. West, prior to the Panel's decision in the Briggs matter, alleged that Bar counsel had breached a confidentiality. Bar counsel brought this matter to the attention of the Panel in a closed proceeding at which West's counsel, John Strachan, was present. The Panel inquired as to the basis for the allegations. Bar counsel stated that he had discussed with another of West's attorneys, Richard Crabtree, \\\"other grievances\\\" in which West was involved. It is the reference to \\\"other grievances\\\" that West argues constitutes prejudicial error.\\nRegardless of the merits of the initial breach of confidentiality claim, no prejudicial error is found in Bar counsel's conduct. First, a reference to \\\"other grievances\\\" is not enough, in our opinion, to prejudice the Panel. Second, the precedential effect of West's position would be to make Bar counsel unable to respond to allegations of improper conduct involving himself or herself which were initiated by another party-\\nWest also argues that, due to the Panel's confusion and uncertainty in dealing with procedural motions, good cause exists for his failure to file a peremptory challenge motion within the specified time period and, as a result of the error in denying his challenge, he suffered prejudice. There is no evidence of this \\\"confusion\\\" and \\\"uncertainty.\\\" Indeed, the Panel found that the Bar Association had repeatedly attempted to inform West of the Panel's membership, yet West did not accept his mail. The Panel's decision was not, in our opinion, erroneous.\\nWe have reviewed West's remaining assertions of error and conclude they are without merit.\"}"

alaska/10373030.json

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+"{\"id\": \"10373030\", \"name\": \"STATE of Alaska; City of Hoonah, Alaska; Frank Willie Lee, individually and as a police officer, Hoonah, Alaska; Matthew J. Walker, individually and as a police officer, Hoonah, Alaska; Gerald J. Shanahan, individually and as a police officer with Alaska State Troopers, Appellants, v. Thomas C. WILL, Appellee\", \"name_abbreviation\": \"State v. Will\", \"decision_date\": \"1991-03-15\", \"docket_number\": \"Nos. S-2904, S-2950\", \"first_page\": \"467\", \"last_page\": \"471\", \"citations\": \"807 P.2d 467\", \"volume\": \"807\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T18:06:07.613925+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.\", \"parties\": \"STATE of Alaska; City of Hoonah, Alaska; Frank Willie Lee, individually and as a police officer, Hoonah, Alaska; Matthew J. Walker, individually and as a police officer, Hoonah, Alaska; Gerald J. Shanahan, individually and as a police officer with Alaska State Troopers, Appellants, v. Thomas C. WILL, Appellee.\", \"head_matter\": \"STATE of Alaska; City of Hoonah, Alaska; Frank Willie Lee, individually and as a police officer, Hoonah, Alaska; Matthew J. Walker, individually and as a police officer, Hoonah, Alaska; Gerald J. Shanahan, individually and as a police officer with Alaska State Troopers, Appellants, v. Thomas C. WILL, Appellee.\\nNos. S-2904, S-2950.\\nSupreme Court of Alaska.\\nMarch 15, 1991.\\nRehearing Denied April 16, 1991.\\nWilliam G. Mellow, Asst. Atty. Gen., Juneau, and Douglas B. Baily, Atty. Gen., Juneau, for appellants State of Alaska and Gerald J. Shanahan.\\nKenneth P. Jacobus and Gregory W. Lessmeier, Hughes, Thorsness, Gantz, Powell & Brundin, Juneau, for appellants City of Hoonah, Frank Willie Lee and Matthew J. Walker.\\nThomas G. Nave, Gullufsen & Nave, Juneau, and Peter M. Page, Juneau, for ap-pellee.\\nBefore MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.\", \"word_count\": \"2517\", \"char_count\": \"14893\", \"text\": \"OPINION\\nCOMPTON, Justice.\\nThis appeal arises out of an action for damages by a mentally impaired individual, Thomas C. Will, who was shot by law enforcement officers who were attempting to contain and help him. Based on the jury's special verdict, the trial court entered judgment awarding damages to Will against Hoonah Police Chief Frank Willie Lee, Officer Matthew J. Walker, the City of Hoo-nah, Alaska State Trooper Gerald J. Shana-han, and the State of Alaska. All of the defendants appealed. Following oral argument on the appeal, Will reached an amicable settlement with the City of Hoonah, Chief Lee and Officer Walker. Therefore, we address only the liability of Trooper Shanahan and the State of Alaska.\\nI. FACTUAL AND PROCEDURAL BACKGROUND\\nThomas C. Will sought damages for injuries he suffered in a confrontation with law enforcement officers on September 11, 1984, in Hoonah, Alaska. At the time, Will was a commercial fisherman who resided in Sitka. He did not return to Sitka after the 1984 halibut season ended in early September, since his wife had informed him in August that she was divorcing him. Instead, Will went to Elfin Cove where he spent several days fraternizing and drinking with other fishermen.\\nWhile in Elfin Cove, Will exhibited acute paranoia, fearing that unknown persons were going to kill him. Apparently another fisherman had planted the seed for Will's delusions, having told Will that people were out to kill him because they thought he was a narcotics agent who would turn people in for running narcotics. Although initially Will did not believe the tale, soon he became increasingly frightened of the people around him.\\nWill started acting irrationally. He left Elfin Cove hastily in his boat, the FV Ed-rie. In an effort to mislead those he imagined intended to kill him, Will told a friend via radio that he was heading to Pelican. Will in fact went to Gustavus. His paranoia increased. Will told an acquaintance in Gustavus that he did not want to call the Alaska State Troopers (troopers) because he feared that whoever responded, even if in uniform, could be the person out to kill him. After one night in Gustavus, Will cut his anchor line and departed for Pleasant Island.\\nWill anchored off of Pleasant Island using a makeshift anchor. He became more afraid, jumped off his boat, and swam about 75 yards to the boat of another friend. When Will climbed onto the friend's boat, he was heavily armed and said that he was a Navy S.E.A.L. Shortly thereafter, he jumped into the water again and swam to the boat of yet another friend. Although it was late at night, Will woke his friend and they spent three hours cruising around in Icy Strait.\\nWill returned to his boat and stayed there until daybreak when he departed for Point Adolfus. There he left his boat adrift, paddled his skiff to shore, and headed into the woods. He was dressed only in cutoffs and boots.\\nAfter Will's boat was found adrift in Icy Strait, family members contacted the Hoo-nah Police Department (HPD) and the troopers on September 10, 1984, to report Will missing. They told the HPD and troopers about Will's mental instability. They explained that Will's paranoia made it likely that he would react unfavorably to the sight of uniformed police officers and suggested that they be permitted to approach him first. Several of Will's friends told the HPD that Will was armed with a pistol and was a threat to any uniformed officers.\\nWill turned up at Port Frederick on September 11 and got a ride to Hoonah. Several Hoonah residents called the HPD and reported that Will was in town, armed with a pistol. Will visited some friends and then went to the Hoonah harbor, where his boat had been towed after it was found adrift. Will located his boat, but was unable to get it started. He remained on his boat, threatening persons who walked nearby. At about 9:30 p.m., while he was still on his boat, he fired a shot with his pistol. This action was reported to Chief Frank Lee, who arrived at the harbor a few minutes later with several other officers, including Matthew Walker. Walker was a reserve officer who had no formal police training. Chief Lee had also called for and obtained back-up from off-duty Trooper Gerald Shanahan. Relying on information that Will might be afraid of persons in uniform, they removed their uniforms before approaching the area.\\nThe officers covertly surrounded the boat and began to warn away anyone who came toward the dock. Chief Lee had not formulated a specific plan of action and did not instruct the officers how to respond in the event Will left his boat. At one point Chief Lee left the harbor to get an additional weapon at the police station.\\nFor about an hour and a half the officers watched the FV Edrie from hiding places behind crab pots piled on the dock. Will was unaware that the officers had surrounded him. They made no attempt to communicate with him. Ultimately, Chief Lee wanted to bring a relative or friend of Will's to the scene. Harbormaster Paul Dybdahl tried to reach Will's brother Craig by marine radio, but was unsuccessful. The HPD was unsuccessful in trying to get in touch with Will's wife in Sitka. Sandy Will later called the HPD from Juneau, but was unable to get to Hoonah.\\nDuring the surveillance Will left the FV Edrie for approximately ten minutes and visited another boat docked nearby. After returning to the FV Edrie, Will again tried to start the boat. After he failed to start it for the second time, he left the boat and walked or ran up the dock ramp, armed with a pistol. Chief Lee, Shanahan and Walker were still concealed behind crab pots on the dock above the ramp. Will stopped at the top of the ramp, apparently to adjust his eyes to the light. After seeing two flashes to his right, he fired his pistol in that direction. Shanahan and Walker fired back, wounding Will at least five times. Will returned their fire at least twice. Thinking that Will was reaching for his pistol, Walker fired another shot after Will had fallen to the ground. Will was charged with assault in the third degree on Trooper Shanahan, a charge to which he pleaded nolo contendere (guilty but mentally impaired).\\nClaiming damages for battery, negligence, and violations of his constitutional rights, Will sued the State of Alaska (state), the City of Hoonah (city), and the three law enforcement officers involved in the shooting. The trial court entered judgment on the jury's special verdict against all the defendants, awarding Will $2,240,-000.00 plus interest. The trial court denied defendants' motions for judgment notwithstanding the verdict, judgment consistent with the verdict, new trial, and remittitur. The remaining appellants challenge the denial of these motions as well as the trial court's earlier denial of their motion for summary judgment.\\nII. STANDARD OF REVIEW\\nThe following standards of review apply to the issues raised by appellants. Under Civil Rule 56(c), 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. Southeast Alaska Constr. Co. v. State, Dep't of Transp., 791 P.2d 339, 342 (Alaska 1990). In reviewing denial of motions for a directed verdict or judgment notwithstanding the verdict, this court must 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 as to the facts. Mullen v. Christiansen, 642 P.2d 1345, 1348 (Alaska 1982). This court must affirm the denial of a motion for a new trial if there is an evidentiary basis for the jury's decision. Id.\\nThe same legal issues underlie each of the appellants' motions. We consider these matters of law de novo and adopt the rules of law which are most persuasive in light of precedent, reason and policy. Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).\\nIII. DISCUSSION\\nA. LIABILITY OF TROOPER SHANA-HAN.\\nThe jury found that Trooper Shana-han was justified in firing at Will and that he had not committed assault or battery. The jury also found that he was not negligent. The trial court, however, determined that as a matter of law Trooper Shanahan is liable for the negligence of the city and Chief Lee under a theory of \\\"acting in concert.\\\" We disagree with the trial court's conclusion and hold that Trooper Shanahan is not liable to Will for the damages Will suffered in the shoot-out.\\nWe have stated that \\\"[o]ne who acts in concert with others to plan or assist in the commission of a tort is liable as a tort-feasor.\\\" Williams v. Alyeska Pipeline Serv. Co., 650 P.2d 343, 348 (Alaska 1982). In Williams we held an individual defendant liable for the battery inflicted on the plaintiff by others, even though he personally only threatened the plaintiff. The purpose underlying the \\\"acting in concert\\\" theory of liability is to hold all individuals engaged in a joint enterprise with a tor-tious purpose accountable for the harm any member of the enterprise may inflict. W. Prosser, The Law of Torts \\u00a7 46, at 322-23 (5th ed. 1984).\\nOur holding in Williams is inapplicable to this case. Williams involved the commission of collective intentional torts, yet in this case the trial court held Trooper Shanahan liable for the negligence of the city and Chief Lee. An individual who acts with reasonable care cannot be deemed negligent simply because those with whom he cooperates act negligently. Restatement (Second) of Torts \\u00a7 876 comment c (1979). Law enforcement officers frequently must act jointly to accomplish their duties. The mere fact that two or more officers may cooperate to apprehend an individual does not make all of the participating officers liable for the negligence of one. The Second Restatement of Torts provides the following illustration of this principle:\\nA is drunk and disorderly on the public street. B, C and D, who are all police officers, attempt to arrest A for the misdemeanor committed in their presence. A resists arrest. B and C take hold of A, using no more force than is reasonable under the circumstances. A breaks away and attempts to escape. D draws a pistol and shoots A in the back. B and C are not liable to A for the shooting.\\nRestatement (Second) of Torts \\u00a7 876 comment c, illustration 3 (1979). See also Day v. Walton, 199 Tenn. 10, 281 S.W.2d 685, 689-90 (1955) (\\\"where there is no joint negligence, no encouragement to do the particular act, no unlawful common enterprise or objective, then there is no joint liability for an unlawful act committed by one of several parties\\\") (emphasis in original).\\nIn this case, the jury found that Trooper Shanahan was not negligent. He responded to an emergency call for assistance from the city. The state argues persuasively that holding an innocent participant liable for the negligence of another under an \\\"acting in concert\\\" theory will discourage those capable of helping from providing rescue assistance. We agree.\\nWhether a defendant acted with reasonable care is a question of fact for the jury to determine. The trial court incorrectly relied on the \\\"acting in concert\\\" theory to create negligence where the jury found there was none. Therefore, we conclude that Trooper Shanahan is not liable for Will's injuries.\\nB. LIABILITY OF THE STATE OF ALASKA.\\nThe jury found that the state was negligent, but further that the state's negligence was not the legal cause of Will's injury. We cannot know the basis for the jury's conclusion that the state was negligent. Presumably the jury determined that the state was negligent because of its failure to aid Will after family members notified the troopers of Will's difficulties one day prior to the shooting. Even if an individual is negligent, that person is not liable at common law for another's injuries unless the negligence is a legal (i.e., proximate) cause of those injuries. Alvey v. Pioneer Oilfield Serv., Inc., 648 P.2d 599, 600 (Alaska 1982). Since the jury found that the state's negligence did not legally cause Will's injuries, the state is not directly liable to Will for its own negligence.\\nThe trial court, however, concluded that the state is vicariously liable to Will because of Trooper Shanahan's participation in the events prior to the shooting. Under the theory of respondeat superior, an employer is liable for the negligence of an employee as long as that employee is acting within the scope of his or her employment. Williams, 650 P.2d at 349. As discussed in the preceding section, the trial court incorrectly held that Trooper Shana-han was negligent because of his participation in the conflict with Will. Since Trooper Shanahan is not negligent, no basis exists for finding the state liable for Will's injuries.\\nIV. CONCLUSION\\nBecause we conclude that the trial court incorrectly applied the \\\"acting in concert\\\" theory, the trial court's judgment against Trooper Shanahan and the State of Alaska is REVERSED and the case REMANDED with instructions to enter judgment in their favor consistent with the jury's special verdict.\\n. In an order filed February 8, 1991, we dismissed the appeal of the City of Hoonah, Chief Lee and Officer Walker.\\n. The state and Shanahan do not discuss the remittitur issue in their brief. Therefore, we consider appeal of the trial court's denial of remittitur waived. Weaver v. O'Meara Motor Co., 452 P.2d 87, 93 (Alaska 1969).\\n. \\\"The issue of proximate cause is normally a question of fact for the jury to decide and becomes a matter of law only where reasonable minds could not differ.\\\" Dura Corp. v. Harried, 703 P.2d 396, 406 (Alaska 1985). Here, there is no persuasive reason for us not to accept the jury's finding that the state's negligence was not the legal cause of Will's injuries.\\n. We do not need to address whether either Trooper Shanahan or the state violated Will's constitutional rights since the judgment for Will on the claims under title 42, section 1983 of the United States Code was against the City of Hoo-nah only.\"}"

alaska/10375240.json

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+"{\"id\": \"10375240\", \"name\": \"FAIRBANKS NORTH STAR BOROUGH, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Fairbanks North Star Borough v. State\", \"decision_date\": \"1992-02-28\", \"docket_number\": \"No. S-4345\", \"first_page\": \"760\", \"last_page\": \"765\", \"citations\": \"826 P.2d 760\", \"volume\": \"826\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-11T00:10:33.025144+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.\", \"parties\": \"FAIRBANKS NORTH STAR BOROUGH, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"FAIRBANKS NORTH STAR BOROUGH, Appellant, v. STATE of Alaska, Appellee.\\nNo. S-4345.\\nSupreme Court of Alaska.\\nFeb. 28, 1992.\\nRehearing Denied March 24, 1992.\\nRonald L. Baird, Bradbury, Bliss & Rior-dan, Anchorage, for appellant.\\nE. John Athens, Jr., Asst. Atty. Gen., Fairbanks, and Charles E. Cole, Atty. Gen., Juneau, for appellee.\\nBefore RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.\", \"word_count\": \"2962\", \"char_count\": \"18442\", \"text\": \"OPINION\\nMOORE, Justice.\\nI. INTRODUCTION\\nThis appeal arises from an action filed by the Fairbanks North Star Borough (FNSB) against the State of Alaska for trespass, inverse condemnation, quiet title, ejectment, and rescission and restitution. The superior court held that, to the extent that FNSB's action turned upon a review of matters that were raised or could have been raised in a prior administrative hearing, the action was barred as an untimely appeal of an administrative determination. The superior court also held that the rescission and restitution claims were barred by the six-year statute of limitations provided by AS 09.10.120, and that res judica-ta barred the appeal. The superior court dismissed the case pursuant to Rule 54(b) of the Alaska Rules of Civil Procedure. FNSB appeals the superior court's decision to dismiss the action. We affirm.\\nII. FACTS AND PROCEEDINGS\\nIn June 1979, FNSB filed an application, pursuant to the municipal land entitlement program, for certain lands designated ADL 400700. In April 1981, the Department of Natural Resources (DNR) approved the selections of those lands. On April 22, 1981, FNSB and the state executed a Cooperative Easement Agreement (CEA) in order to provide a means for the future designation of easements for access to and across lands selected by FNSB as part of the municipal land entitlement program. The CEA provides in paragraph 2:\\nIf access to State . lands is required prior to development . of Borough lands, the State in consultation with the Borough may designate an access easement or easements across the conveyed lands.\\nThe CEA also provides that its terms will be incorporated by reference within all state patents conveying land to FNSB \\\"where access easements appear necessary and have yet to be identified.\\\" In September 1981, DNR issued patent number 5978 which conveyed to FNSB Tracts G and H of ADL 400700, the land at issue in this case. The patent specified that it was issued subject to the CEA.\\nIn August 1984, the Northern Regional Office of DNR stated in a letter to FNSB that it was invoking the CEA to designate an easement over Tracts G and H for the construction of a segment of the South Fairbanks Expressway. By letter dated September 6, 1984, FNSB rejected this proposed easement. In rejecting the invocation of the CEA, FNSB argued that the CEA was inapplicable to the project because the state did not seek a right of way for access, but rather \\\"to facilitate traffic movement itself.\\\" In addition, FNSB claimed that the CEA was inapplicable because it is to be utilized only \\\"where access easements appear necessary and have yet to be identified.\\\" FNSB complained that invocation of the CEA would result in a taking of more than 27 acres of land previously conveyed by the state and charged against FNSB's municipal entitlement.\\nThereafter, pursuant to the procedure provided for in the CEA, the matter was appealed to the Director of the Division of Forest, Land and Water Management of DNR. The Director upheld the decision of the Northern Regional Office of DNR to invoke the CEA to obtain an easement for the South Fairbanks Expressway.\\nIn January 1985, FNSB appealed the Director's decision to the Commissioner of DNR. FNSB again argued that the CEA could not be used to obtain the right-of-way for the South Fairbanks Expressway, claiming that the right-of-way sought by the state was intended to facilitate through traffic, not access to adjacent lands. On May 14, 1985, Commissioner Wunnicke rendered a decision upholding the Director's decision.\\nAlmost a year later, in January 1986, FNSB formally asked Commissioner Wun-nicke to reconsider her decision. In seeking reconsideration, FNSB acknowledged that \\\"[t]he question at hand seems to be one of interpretation of the Cooperative Easement Agreement.\\\" In April 1986, the request to reconsider was denied because it was untimely and presented no new information. FNSB was told that construction of the highway project had already begun.\\nFNSB again sought reconsideration of Commissioner Wunnicke's decision on August 8, 1988, this time before Commissioner Brady, the new Commissioner of DNR. In repeating its arguments for reconsideration, FNSB again acknowledged that the dispute turned on the interpretation of the CEA. Reconsideration was again denied for reasons similar to those previously identified. FNSB did not appeal the decision further.\\nOn February 21, 1990, FNSB filed an action against the state as a result of the state's decision to invoke the CEA to designate an easement on Tracts G and H. FNSB argued that the CEA is unenforceable, void, or voidable because: (1) it is against public policy; (2) it was entered into as a result of unilateral or mutual mistake regarding the applicability of certain Alaska statutes; or (3) FNSB's assent to the CEA was induced by the innocent or negligent misrepresentation of the state regarding the applicability of those statutes. FNSB's complaint set forth four causes of action: trespass and inverse condemnation; quiet title; ejectment; and rescission and restitution. In its quiet title cause of action, FNSB claimed that the state has no interest in Tracts G and H and all other lands subject to the CEA.\\nThe state moved to dismiss this action, arguing that the matters raised in the complaint were administratively adjudicated in 1984 and 1985, and thus barred by Alaska Rule of Appellate Procedure 602(a)(2) as an untimely appeal of an administrative decision. The state also argued that, to the extent FNSB's fourth cause of action for rescission and restitution was not a challenge to agency action, it should be dismissed because AS 09.10.120 imposes a six-year statute of limitations for actions in the name of political subdivisions.\\nFNSB responded to the state's motion to dismiss by arguing that the CEA authorizes DNR to adjudicate only those issues involving the width and location of easements, and that DNR's determinations of issues other than the width and location of easements were therefore not barred by Rule 602(a)(2). FNSB also argued that DNR had no authority under the agreement to determine whether the agreement itself was enforceable, and that DNR's determinations did not bar FNSB's claim that the CEA is unenforceable, void, or voidable. As to the state's claim that the statute of limitations barred the claims for rescission and restitution, FNSB argued that the statute of limitations was inapplicable because the claim was filed within six years of the state's entry on the plot.\\nJudge Saveli held that Rule 602(a)(2) mandates dismissal of those FNSB claims which involve matters that were raised or could have been raised in DNR proceedings. He also held that the agreement between the state and FNSB was valid and that FNSB's rescission and restitution claims were barred by the six-year statute of limitations set forth in AS 09.10.120. He dismissed the complaint with the exception of the claim to quiet title to lands, not contained in Tracts G and H, which the state claims are governed by the CEA. This appeal followed.\\nIII. DISCUSSION\\nAppellate Rule 602(a)(2) provides that an appeal from an administrative agency to the superior court must be taken within 30 days from the date of the administrative decision. However denominated, a claim is functionally an administrative appeal if it requires the court to consider the propriety of an agency determination. Haynes v. State, 746 P.2d 892, 893 (Alaska 1987); Owsichek v. State, 627 P.2d 616, 620 (Alaska 1981); State v. Lundgren Pac. Constr. Co., 603 P.2d 889, 893 (Alaska 1979); Winegardner v. Greater Anchorage Area Borough, 534 P.2d 541, 545 (Alaska 1975).\\nFNSB disagrees with the superior court's conclusion that Appellate Rule 602(a)(2) mandates dismissal of those claims that were raised or could have been raised in the DNR proceedings. FNSB claims that the CEA only authorized DNR to determine the optimal width and location of easements on lands subject to the agreement. DNR did not have authority to decide other issues, FNSB argues, and Rule 602(a)(2) therefore should not apply to those DNR decisions not involving the width and location of easements.\\nFNSB's argument that Rule 602(a)(2) is inapplicable to its suit is unconvincing for two reasons. First, as the superior court concluded, FNSB's argument that the administrative process created by the CEA applies only to the optimal width and location of land subject to the agreement \\\"is without merit.\\\" Paragraph 3 of the Agreement provides:\\nThe width, location and number of easements required shall be determined according to the following criteria....\\nParagraph 6 of the Agreement then provides for administrative resolution of \\\"[a]ny rejections\\\" of the proposed easements of the other party. There is nothing in the CEA to suggest that the term \\\"rejections\\\" in Paragraph 6 refers only to the width and location of proposed easements. On the contrary, the CEA unambiguously envisioned an administrative determination of the width, location, and number of easements.\\nThe second, and more fundamental, problem with FNSB's argument is that FNSB already challenged both the invocation of the CEA and the decisions made pursuant to it during the administrative process. Although FNSB's suit is styled as an independent action advancing different issues than were considered by DNR, the relief sought is essentially the same as that sought before DNR. For example, FNSB explicitly contested the applicability of the CEA during the DNR administrative proceedings, at one point even arguing that the \\\"question\\\" was \\\"one of interpretation of the CEA.\\\" Because FNSB had ample opportunity to advance such objections at the administrative level, and because FNSB alleges no surprise or injustice, Appellate Rule 602(a)(2) applies. Having fully availed itself of the administrative review process afforded by the CEA, FNSB was required to challenge the administrative determination within thirty days of that determination.\\nFNSB attempts to avoid the time limit on administrative appeals by distinguishing each of its present claims from the issues which were, or could have been, considered by DNR. Relying largely upon Owsichek v. State, 627 P.2d 616 (Alaska 1981), FNSB maintains that its claim for inverse condemnation arises under the takings clauses of both the Alaska and United States Con stitutions, and is therefore subject to our statement in Owsichek that \\\"the Alaska Constitution can sometimes serve as the jurisdictional basis for an action that might otherwise be characterized as an appeal from an administrative decision.\\\" Owsichek, 627 P.2d at 620 n. 7. This argument fails. We explained in Owsichek that the Alaska Constitution can serve as such a jurisdictional basis for only certain types of actions:\\nWe held in [Moore v. State, 553 P.2d 8, 29 (Alaska 1976)] that the plaintiffs' action was not barred by the statute of limitations specified in Appellate Rule 45 because the action was independent of the earlier administrative proceedings and was based on article VIII, section 10, of the Alaska Constitution. This section sets forth the due process requirements applicable to the lease or sale of state lands. Our holding in Moore was based in part on the fact that the plaintiffs were not parties to the earlier administrative proceedings and could not have appealed from the agency's decision. 553 P.2d at 29.\\nOwsichek relies upon much broader constitutional provisions and could have appealed from the Guide Board's decision. We therefore conclude that our holding in Moore is inapplicable to this case.\\n627 P.2d at 620 n. 7. Because FNSB relies on a rather broad constitutional provision, and because FNSB was a party to the DNR proceedings and could have appealed from DNR's determinations, FNSB's claim for inverse condemnation should be viewed as an appeal of the administrative determination.\\nThe borough argues in the alternative that, even if inverse condemnation claims based on regulatory takings are subject to the time limit on administrative appeals, its condemnation claim challenges the state's physical invasion of borough lands, and therefore is not subject to the time limit. A permanent physical taking is qualitatively more intrusive than regulatory takings, FNSB claims, and therefore warrants greater protection under the takings clauses. The borough maintains that the state, as the party entering on the land of another and disturbing another's possession, bears the burden of proving a privilege to do so. This argument fails primarily because it is not possible to divorce the state's use of the land from the administrative action. The right-of-way exists only because of the administrative action. FNSB's claim that the state has no legal right to construct the highway on its lands is a direct challenge to the administrative decision, and is therefore impermissible under Lundgren Pacific Construction Co. since it is untimely filed.\\nFNSB next argues that its claims for quiet title and ejectment are independent of any appeal from the administrative pro-c\\u00e9edings because these claims arose from the state's entry on borough land. In reality, these actions are but another attempt by FNSB to do indirectly what it could not do directly. After Lundgren Pacific Construction Co. and its progeny, these actions must be dismissed because they force the court to reconsider the propriety of an agency determination.\\nFNSB claims that its final causes of action, rescission and restitution, are distinguishable from the administrative appeal because DNR had no authority to determine the validity of the CEA itself. The crux of the borough's argument is that the CEA should be rescinded because AS 38.-04.050 and AS 38.04.055, which the CEA explicitly relies upon, specifically pertain to private land and therefore were not intended to have any application to the disposal of lands by the state pursuant to the municipal land entitlement program.\\nFNSB also argues that the CEA is void because it contravenes the public policy reflected in former 29.18.201 et seq. that DNR was to concern itself solely with the external boundaries and not the internal subdivision of lands to be conveyed under the municipal entitlement program. Even if the CEA is not void as a matter of law, the borough claims the CEA should be rescinded because it was entered into as a result of unilateral or mutual mistake regarding the applicability of AS 38.04.050 and AS 38.04.055.\\nWe find it unnecessary to consider whether FNSB's claims for rescission and restitution are barred by Rule 602(a)(2) because those claims are clearly without merit. While municipal entitlement land may not normally be thought of as private land, DNR evidently considered that the land would become private land and, as such, AS 38.04.050 and AS 38.04.055 were applicable. \\\"The construction of a statute by those charged with its administration is entitled to substantial deference.\\\" United States v. Rutherford, 442 U.S. 544, 553, 99 S.Ct. 2470, 2476, 61 L.Ed.2d 68 (1979). More importantly, the CEA indicates that it was not executed solely because of those statutes. The CEA provides:\\nWhereas it is in the best interest of residents of the Fairbanks North Star Borough and State of Alaska that access to public and private lands be appropriate to the need being served;\\nThus, regardless of the applicability of AS 38.04.050 and AS 38.040.055, there exist valid independent purposes for the CEA. Furthermore, contrary to FNSB's arguments, former AS 29.18.201 et seq. do not clearly indicate a legislative intent to reserve to local governments the power to subdivide lands conveyed pursuant to the municipal entitlement program. Because the CEA does not contravene public policy,- and because FNSB and the state were authorized to enter into an agreement of this nature, the CEA is not void.\\nAFFIRMED.\\n. FNSB apparently concedes that the DNR determinations made pursuant to the CEA's dispute resolution provisions are \\\"administrative determinations\\\" for purposes of Rule 602(a)(2). In State v. Lundgren Pacific Construction Co., 603 P.2d 889 (Alaska 1979), we held that where a corporation which had contracted with the Department of Highways appealed a decision made pursuant to the contract's dispute resolution provisions, the appeal was an appeal of an administrative decision. Similarly, in Kollodge v. State, 757 P.2d 1028 (Alaska 1988), this court held that a contractually-created Step IV employee grievance hearing, which was conducted by a hearing officer whose recommendations were acted upon by the Commissioner of Administration, was \\\"agency\\\" action. The DNR determinations made pursuant to the CEA's dispute resolution provisions differ in no material respects from the administrative determinations in Lundgren Pacific Construction Co. and Kollodge.\\n. In Owsichek v. State Guide Licensing, 627 P.2d 616 (Alaska 1981), this court relaxed the time limit on administrative appeals provided by Rule 45, the predecessor of Appellate Rule 602(a)(2), in order to avoid surprise and injustice to the appealing party. Id. at 622. See also State v. Burgess Constr. Co., 575 P.2d 792, 796 (Alaska 1978) (\\\"It is generally held to be incumbent upon the party seeking relaxation of the rules to make a sufficient showing that enforcement of the rule will result in surprise and injustice to that party.\\\"). The Borough does not allege surprise or injustice in the present case.\\n. The CEA provides:\\nWhereas AS 38.04.050 states that \\\"Wherever State land is surveyed for purposes of private use, adequate rights-of-way and easements shall be reserved as necessary for access .\\\" and AS 38.04.055 states that \\\"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 and private land.\\\"; and\\n. Because we hold that the Borough's claims are barred, we find it unnecessary to consider whether res judicata or the statute of limitations bar the Borough's actions.\"}"

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+"{\"id\": \"10380998\", \"name\": \"SEA LION CORPORATION, Appellant, v. AIR LOGISTICS OF ALASKA, INC., et al., Appellees\", \"name_abbreviation\": \"Sea Lion Corp. v. Air Logistics of Alaska, Inc.\", \"decision_date\": \"1990-02-09\", \"docket_number\": \"No. S-2967\", \"first_page\": \"109\", \"last_page\": \"119\", \"citations\": \"787 P.2d 109\", \"volume\": \"787\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T18:20:32.898824+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.\", \"parties\": \"SEA LION CORPORATION, Appellant, v. AIR LOGISTICS OF ALASKA, INC., et al., Appellees.\", \"head_matter\": \"SEA LION CORPORATION, Appellant, v. AIR LOGISTICS OF ALASKA, INC., et al., Appellees.\\nNo. S-2967.\\nSupreme Court of Alaska.\\nFeb. 9, 1990.\\nDavid E. Kohfield, Ronald E. Cummings and William K. Walker, Anchorage, for appellant.\\nKevin G. Clarkson and Clark R. Nichols, Perkins Coie, Anchorage, for appellees.\\nBefore MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.\", \"word_count\": \"5774\", \"char_count\": \"34335\", \"text\": \"COMPTON, Justice.\\nThis appeal is from a grant of summary judgment in favor of Air Logistics of Alaska, Inc. (Air Log). The principal question presented is whether Sea Lion Corporation (Sea Lion) should be held liable on a contract executed between Air Log and an entity referred to in the contract as \\\"Bush Transport Systems\\\" (BTS). We conclude that Sea Lion ratified the contract and therefore affirm.\\nI. FACTUAL AND PROCEDURAL BACKGROUND\\nThe facts, resolving disputes in the evidence in favor of Sea Lion, are as follows. Myron Naneng (Naneng) was at all relevant times the president and chairman of the board of directors of Sea Lion. Between 1982 and October 1984, Larry D. Gillespie (Gillespie) was employed by Sea Lion as a consultant in connection with Sea Lion's operation of an air taxi service. Gillespie also owned and operated his own air cargo service, Air Valley. Sea Lion had financed Gillespie's formation of Air Valley by means of a loan.\\nIn the summer of 1984, Gillespie and Sea Lion began discussions with a view toward merging their operations in the air transport business. Contemplated was the eventual formation of a limited partnership with Gillespie as the general partner and Sea Lion, inter alia, as a limited partner. The limited partnership was to take the name of BTS, then being used by Gillespie as a d/b/a of his own flight service. Around the same time, Air Log, which owned cargo aircraft, decided to shut down a portion of its Alaska operations and send surplus aircraft to the \\\"lower 48.\\\"\\nGillespie, hoping to use Air Log's planes in connection with BTS operations, approached Air Log and asked what it would take for Air Log not to shut down its Alaska operations. Air Log replied that BTS would need to pay all expenses which would result from maintaining the operation. Gillespie then represented to Air Log that \\\"Sea Lion had the financial depth to make this agreement work.\\\"\\nA second meeting was held between representatives of Air Log, Gillespie, and two officers of Sea Lion, Naneng and James Joseph (Joseph). Joseph was at all relevant times the secretary/treasurer of Sea Lion, its general manager and a member of its board. Air Log made clear to both Naneng and Joseph that there would be no deal between itself and BTS unless \\\"Sea Lion signed the contract and agreed to back up\\\" the obligations of BTS.\\nOn October 1, 1984, Gillespie and Nan-eng met with Air Log in order to execute a flight service agreement (FSA) whereby BTS would obtain aircraft and services from Air Log. The 1984 FSA consisted of a five page Agreement for Flight Service (Agreement) containing the bulk of the substantive elements of the contract, and two \\\"Side Letters.\\\" All three items were presented to Gillespie and Naneng as a single document. The FSA expired by its terms on December 31, 1984. The Agreement was signed under the name of BTS \\\"by\\\" Gillespie and Naneng, without reference to Sea Lion. The accompanying Side Letters contained supplementary and clean up terms to the Agreement.\\nThe signature block of the first Side Letter is identical to that of the Agreement. The second Side Letter notes that its purpose \\\"is to explain, clarify, define or expand the intent\\\" of the FSA. It contains arbitration, choice of law, and force majeur clauses. Furthermore, it contains an \\\"identification\\\" clause, which states \\\"... given the prudent requirement to maintain nondisclosure of the identities of the principals, let it now be revealed that the participants of Bush Transport System are: Sea Lion Corporation, P.0. Box 44, Hooper Bay, AK 99604,\\\" inter alia. The second Side Letter was signed BTS \\\"by\\\" Gillespie and \\\"by\\\" \\\"Myron Naneng, Sea Lion Corporation.\\\" There is no evidence to suggest that Naneng signed in any capacity other than as a purported Sea. Lion representative, and both Joseph, testifying as the designated representative of Sea Lion and Naneng admit that he acted in this capacity. Naneng signed the 1984 FSA on the heels of a repeated insistence by Air Log that Sea Lion sign the FSA or there would be no deal and the planes would be removed from Alaska.\\nFollowing the execution of the 1984 FSA, both Joseph and Ronald Cummings, counsel for Sea Lion, learned what Naneng had done. Cummings told Joseph that Naneng had signed a document that \\\"put us in a bad position later on.\\\" When Joseph saw the 1984 FSA for himself, he told Naneng \\\"Oh,_, please don't sign it,\\\" but by then Naneng already had. (Expletive deleted). The reason for Joseph's concern was his realization that the 1984 FSA obligated Sea Lion, \\\"to deliver services that . we're not supposed to deliver.\\\" Cummings then drafted a \\\"Memorandum of Understanding.\\\" In the memo, Naneng, on behalf of Sea Lion, and Gillespie agreed inter se that Naneng's signature was not intended to obligate Sea Lion on the 1984 FSA, but was merely for \\\"security purposes only.\\\" Air Log never saw this memo nor learned of its terms or its existence.\\nOn October 28 Sea Lion's board met. The result of the meeting was inconclusive. The major question was \\\"whether Sea Lion would participate in the BTS venture with Air Valley.\\\" A $75,000 \\\"advance\\\" was made to Gillespie. The advance was \\\"considered a loan with interest unless the board of Sea Lion decides to enter into a partnership.\\\" The loan was evidenced by a promissory note. Gillespie, who was present at the meeting, told the board \\\"an additional $75,000 would be required for November, thus requiring an up front $150,000 to buy into the partnership.\\\"\\nOn November 9 the Sea Lion board met again. The full board \\\"voted in favor of becoming a member of BTS as a limited partner.\\\" The board authorized another $81,000 advance to Gillespie, also evidenced by a promissory note. Sea Lion's audited 1984 financial statement stated that in January 1985 Sea Lion Corporation \\\"entered into a limited partnership\\\" with Gillespie. A March 1985 entry in BTS' books ascribes $156,000 of \\\"partner's equity\\\" to Sea Lion as of date. Joseph testified, however, that the Sea Lion board never authorized participation as a general partner in BTS.\\nOn December 31, 1984, the 1984 FSA expired. Gerald Skipton (Skipton), a CPA employed by Sea Lion, met with Gillespie and representatives of Air Log to discuss the execution of a new FSA for 1985. Gillespie told Air Log at this meeting that Sea Lion \\\"wasn't going to be a general partner; they were going to be a limited partner.\\\" Air Log repeated its position that there would be no dealings with BTS unless Sea Lion signed a FSA and was financially liable. Skipton laughed and told Air Log to try and \\\"talk them (Sea Lion) into it and get the board to vote that way.\\\"\\nIn April Gillespie and Naneng met with Air Log to execute the 1985 FSA. The 1985 FSA is virtually identical to the 1984 FSA. It consists of a nine-page Agreement for Flight Service, and two 2-page \\\"Side Letters.\\\" All documents were again presented in a single package and executed seriatim. The second Side Letter of the 1985 FSA is indistinguishable from the second Side Letter of the 1984 FSA. It notes that its purpose \\\"is to explain, clarify, define or expand the intent\\\" of the main body. It contains arbitration, choice of law, and force majeur clauses. Furthermore, it contains an \\\"identification\\\" clause, which states \\\"... given the prudent requirement to maintain non-disclosure of the identities of the principals, let it now be revealed that the participants of Bush Transport System are: Sea Lion Corporation, P.O. Box 44, Hooper Bay, AK 99604,\\\" inter alios.\\nWhen confronted with the second Side Letter, Gillespie objected on the grounds that there was no valid reason for Naneng to sign the FSA, because Sea Lion was not going to be a general partner in BTS. Air Log was unmoved and repeated its position that if Sea Lion did not sign the FSA, there would be no deal. Naneng then signed the FSA. He did so to keep the planes in the state and avoid having Air Log withdraw from the deal, \\\"the same [reason] we (Sea Lion) signed . the first one.\\\"\\nAs with the 1984 FSA, the Agreement and the first Side Letter were signed BTS \\\"by\\\" Gillespie and \\\"by\\\" Naneng, without reference to Sea Lion. The second Side Letter was signed BTS \\\"by\\\" Gillespie and \\\"by\\\" \\\"Myron Naneng, Sea Lion Corporation.\\\"\\nAs with the 1984 FSA, Naneng showed Joseph the 1985 FSA, bearing Naneng's signature, shortly after its execution. Joseph again realized that Naneng's signature exposed Sea Lion to the risk of liability and told Naneng \\\"Myron, come on, you shouldn't have signed this.\\\" Testifying as the designated representative of Sea Lion, Joseph also admitted that the corporation knew of Naneng's act and its repercus sions. This admission was repeated at oral argument.\\nOn May 26, 1985, a formal limited partnership agreement was finally executed between Gillespie and Sea Lion. Sea Lion concedes that it and Gillespie were not limited partners until this agreement was executed, contending they were merely creditor and debtor. This limited partnership agreement was never shown nor its terms made known to Air Log until litigation. No statutory certificate of limited partnership was filed until July 26, 1985.\\nBTS eventually fell substantially behind on payments due for services rendered under the 1985 FSA. Along with Sea Lion individually, BTS and Gillespie were sued for moneys owing and other claims by Air Log.\\nThe superior court granted summary judgment in favor of Air Log on the issue of liability. Sea Lion was found liable as a matter of law on five grounds: 1) being a direct signatory to the contract, 2) defective execution of the limited partnership agreement between Sea Lion and Gillespie, 3) excessive participation in the affairs of the partnership, 4) partnership by estoppel and 5) joint venturer by estoppel. We find it necessary only to address the direct signatory theory.\\nII. DISCUSSION\\nTHE SUPERIOR COURT DID NOT ERR IN GRANTING SUMMARY JUDGMENT TO AIR LOG ON THE GROUND THAT SEA LION WAS A DIRECT SIGNATORY TO THE 1985 FSA.\\nA. Sea Lion cannot raise its arguments that (1) the 1985 FSA and its \\\"Side Letters\\\" ought not to be construed as one contract, and (2) there was no \\\"mutual assent\\\" between Sea Lion and Air Log on appeal.\\nSea Lion contends that there are material questions of fact regarding 1) which documents ought to be considered part of the 1985 FSA to determine whether Sea Lion signed it or not, 2) the presence of mutual assent between Sea Lion and Air Log, and 3) Naneng's actual or apparent authority to bind Sea Lion to the 1985 FSA. Air Log contends that these issues were not raised in the superior court and ought not to receive appellate review. In the alternative, Air Log contends that there are no material questions of fact as to these issues. Sea Lion, in turn, argues that the issues either were explicitly raised, or ought to be entertained anyway, relying on State v. Northwestern Construction, Inc., 741 P.2d 235 (Alaska 1987).\\nArguments are considered on appeal if raised explicitly in the superior court, or if the issue is \\\"1) not dependent on any new or controverted facts; 2) closely related to the appellant's trial court arguments; and 3) could have been gleaned from the pleadings,\\\" or if failure to address the issue would propagate \\\"plain error.\\\" Northwestern Construction, Inc., 741 P.2d at 239.\\nOur review of the record reveals that Sea Lion raised only the agency argument before the superior court. Sea Lion suggests that the integration and assent arguments \\\"could be gleaned\\\" from no more than the text of the 1985 FSA itself and its answer, generally denying liability on the 1985 FSA. This court will not glean new theories on appeal from nothing more than a general denial. Cf. Smith v. Sellar, 371 P.2d 809, 810 (Alaska 1962). Any theory at all could be gleaned from a general denial.\\nThis court has entertained otherwise improper arguments if to refuse would constitute plain error. Northwestern Construction, 741 P.2d at 239. Plain error exists if it appears that an obvious mistake \\\"has been made which creates a high likelihood that injustice has resulted.\\\" Miller v. Sears, 636 P.2d 1183, 1189 (Alaska 1981).\\nOur refusal to consider these issues does not propagate plain error. No obvious mistake has been made. There is a paucity of either evidence or argument directed toward either issue appearing in the record.\\nFurthermore, assuming arguendo that Sea Lion has raised either issue, its positions have little merit. Where two or more contractual documents are executed substantially simultaneously and are clearly interrelated, they must be construed as the whole contract, as a rule of construction. E.g., Kroblin Refrigerated XPress, Inc. v. Pitterich, 805 F.2d 96, 107-08 (3rd Cir.1986) (applying Pennsylvania law); Deer Creek, Inc. v. Clarendon Hot Springs Ranch, Inc., 107 Idaho 286, 688 P.2d 1191, 1200 (Ct.App.1984); Atlas Corp. v. Clovis Nat'l. Bank, 737 P.2d 225, 229 (Utah 1987).\\nIt is undisputed that the 1985 Agreement was executed simultaneously with the second Side Letter. Naneng signed the second Side Letter, purportedly in his corporate capacity. The second Side Letter makes express reference to the rest of the contract, noting that its \\\"purpose\\\" is to \\\"explain, clarify, define, or expand the intent of certain terms and conditions of Agreement for Flight Services.\\\" The documents are thus expressly interrelated. The Side Letter also contains substantive contract terms, including choice of law, force majeur, and arbitration clauses. These clauses are not merely declaratory but create substantive rights and duties. If, as Sea Lion argues, the second Side Letter was merely declaratory, these clauses would be unnecessary. Naneng signed this document on Sea Lion's behalf. Furthermore, Joseph, testifying on behalf of Sea Lion in his deposition, understood that Naneng's acts in connection with the 1985 and the analogous 1984 FSAs amounted to the execution of a contract.\\nThe foregoing suffices as a matter of law to find Naneng at least purported to execute the whole on Sea Lion's behalf, setting aside the issue of scope of authority, It is axiomatic that a party need not sign every page of a contract to be bound to the whole of the contract. E.g., Westinghouse Elec. Corp. v. Nielsons, Inc., 647 F.Supp. 896, 902 (D.Colo.1986); 37 C.J.S. Frauds, Statute of \\u00a7 205 (1955). The superior court's resolution of the issue cannot be seen as plain error.\\nNor did the court commit plain error regarding mutual assent. Mutual assent is an elementary requirement for a binding contract. State v. Fairbanks North Star Borough School Dist., 621 P.2d 1329, 1331 n. 3 (Alaska 1981). It is elementary that mutual assent can be found in the objective meaning of words used. Howarth v. First Nat'l. Bank of Anchorage, 596 P.2d 1164, 1167 (Alaska 1979). \\\"A party cannot rely on its subjective intent to defeat the existence of a contract if its words and actions objectively and reasonably led another to believe a contract had been entered.\\\" Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1281 (Alaska 1985).\\nNo one contends, unlike in Zeman, that the 1985 FSA, signed by Naneng, was a mere negotiation. A final contract involving someone plainly existed. Naneng signed it, purportedly on behalf of Sea Lion. Furthermore, it is undisputed that Naneng, as Sea Lion's president and chairman, was an agent of Sea Lion. Sea Lion's \\\"mutual assent\\\" argument thus stands revealed as merely another expression of its agency argument: that it should not be held liable on the contract because Naneng exceeded his authority. The irrelevance of the scope of Naneng's authority is addressed infra.\\nSea Lion incidentally argues that the language in the 1985 FSA identifying Sea Lion as a \\\"participant\\\" in BTS is ambiguous. This is irrelevant. Sea Lion does not contend that the part of the 1985 FSA obligating the signatories to pay for services rendered is ambiguous, and Naneng signed on Sea Lion's behalf.\\nB. Sea Lion is liable as a direct signatory to the 1985 FSA upon a theory of \\\"ratification by silence.\\\"\\nAir Log contends in its brief that Sea Lion by its silence ratified Naneng's signature on the 1985 FSA. Sea Lion responds, in essence, that there are material questions of fact for the jury on the issue of ratification. Even though this was not a theory expressly relied upon by the trial court, both parties have briefed the issue. An appellee may defend a judgment on any basis established by the record, whether or not it was relied on by the trial court or even raised before the trial court so long as no new factual determinations are required. Demoski v. New, 737 P.2d 780, 786 (Alaska 1987); Ransom v. Haner, 362 P.2d 282, 285 (Alaska 1961).\\nWhen reviewing a grant of summary judgment, this court must determine whether there is a genuine issue of material fact and whether the moving party is entitled to judgment on the law applicable to the established facts. Zeman v. Lufthansa German Airlines, 699 P.2d at 1281. All reasonable inferences of fact from proffered materials must be drawn against the moving party (Air Log) and in favor of the non-moving party (Sea Lion). Id. \\\"[I]f the movant establishes prima facie that it is entitled to judgment as a matter of law, the party opposing summary judgment must demonstrate that there exists a genuine issue of material fact to be litigated.\\\" Wassink v. Hawkins, 763 P.2d 971, 973 (Alaska 1988). To grant summary judgment on a direct signatory theory, the superior court must have found 1) either actual or apparent authority as a matter of law, or 2) that despite no actual or apparent authority, Sea Lion should nonetheless be bound as a matter of law.\\nAlaska has in three cases recognized the doctrine of \\\"ratification by silence.\\\" Alaska Continental Bank v. Anchorage Commercial Land Associates, 781 P.2d 562, 565 (Alaska 1989); Bruton v. Automatic Welding & Supply Corp., 513 P.2d 1122, 1126-28 (Alaska 1973); Gaikema v. Bank of Alaska, 8 Alaska 495, 507 (1934). Ratification is an agency doctrine, created by common law courts to deal with a situation where, after a transaction is entered into by a second party purporting to act for a principal, the principal manifests an intent to be bound by the acts of the second party. Bruton, 513 P.2d at 1127. The focus is on what occurred subsequent to the agent's act; the scope of the agent's authority becomes irrelevant. Id. Thus, evidence going to Naneng's authority or lack thereof creates no issue of material fact as to ratification; we assume he lacked authority.\\nIn Bruton, this court outlined two requirements for an otherwise unauthorized act to be ratified by the principal's silence. The first is that the act sought to be ratified, as with any theory of ratification, must be done by someone who held himself out to the third party as an agent for the principal. Id.; see also Pullen v. Dale, 109 F.2d 538, 539 (9th Cir.1940) (applying Alaska law). Naneng's execution of the 1985 FSA clearly satisfies this first requirement.\\nSecond, the principal must then have failed to act in response under circumstances which \\\"according to the ordinary experience and habits of men, one would naturally be expected to speak if he did not consent....\\\" Bruton, 513 P.2d at 1127, quoting Restatement (Second) of Agency \\u00a7 94, comment a (1957). The prior knowledge, or lack thereof, of the principal regarding the likelihood of reliance by the third party on the agent's authority is irrelevant. See Restatement (Second) of Agency \\u00a7 94, comment a (1957). Although ordinarily ratification is a question of fact, silence of the principal effects ratification\\nas a matter of law if the \\\"case is so clear that reasonable men could come to but one conclusion.\\\" Id.; Guaschino v. Eucalyptus, Inc., 3 Haw.App. 632, 658 P.2d 888, 894 (1983). In essence, this standard is the same as the one used for reviewing summary judgments.\\nMoreover, the Restatement notes:\\nA principal's silence is usually more significant if an agent has exceeded his powers in the particular transaction, especially if the agent acted from an excess of zeal. If such an agent reports the matter to the principal at a time or in a manner calculated to call for dissent if the principal were unwilling to affirm, the latter's failure to dissent, if unexplained, furnishes sufficient evidence of affirmance.\\nRestatement (Second) of Agency \\u00a7 94, comment b (1957).\\nCases adopting and interpreting this section of the Restatement have often held that this second requirement is met as to a third party where the principal has actual knowledge of the material facts surrounding a transaction entered into by an agent with some authority to act for the principal and takes no action to repudiate it. Rouse Woodstock, Inc. v. Surety Fed. Sav. & Loan Ass'n, 630 F.Supp. 1004, 1011 (N.D.Ill.1986); Evanston Bank v. Conti-Commodity Services, Inc., 623 F.Supp. 1014, 1034 (N.D.Ill.1985); University Mktg. & Consulting v. Hartford Life & Accident Ins. Co., 413 F.Supp. 1250, 1260 (E.D.Pa.1976). See also Seavey, Ratification by Silence, 103 U.Pa.L.Rev. 30, 33 (1954); Story, Agency 300 (9th ed. 1882). Thus it appears that the Sea Lion board would have to have known of Naneng's execution of the 1985 FSA, and therefore done nothing to repudiate that act, in order for Naneng to have bound the corporation. The knowledge necessary to ratify an unauthorized act must be that of an entity with power to authorize it in the first instance. E.g., Ulloa v. Guam Economic Dev. Auth., 580 F.2d 952, 956 (9th Cir.1978); See-Tee Mining Corp. v. National Sales, Inc., 76 N.M. 677, 417 P.2d 810, 811 (1966); 2 Fletcher Cyc. Corp. \\u00b6 762 (1982). However, when it is the board of directors which must authorize the transaction, the board may ratify by acquiescence and without any formal action. It need not act at a meeting regularly called. Ulloa, 580 F.2d at 956 (quoting Fletcher at \\u00b6 762). See also Bank of Santa Fe v. Honey Boy Haven, Inc., 106 N.M. 584, 746 P.2d 1116, 1119 (1987). The rationale is plain: liability is not predicated upon some act of the board, but upon its failure to act. The lack of evidence that Sea Lion's board did not hear of or discuss Naneng's signature at a formal board meeting is thus not fatal.\\nThe relevant facts, taken in the light most favorable to Sea Lion, show that Naneng was its president and chairman of its Board, with some authority to act on its behalf. Naneng admits that he signed the 1985 FSA on behalf of Sea Lion. Naneng and Joseph, another board member, were both aware that the reason Air Log insisted that Naneng sign the 1985 FSA was to make Sea Lion liable on it, and that Air Log would not have entered the 1985 FSA if he did not. Naneng admits that he signed the contract so that Air Log would not withdraw from negotiations.\\nWhen confronted with the fact that Nan-eng signed the 1985 FSA, Joseph read the document and exclaimed, \\\"Myron, come on, you shouldn't have signed this.\\\" Joseph knew that the document exposed Sea Lion to a risk of liability, having earlier testified that Sea Lion knew in connection with the analogous 1984 FSA that \\\"we had to get out of this contract because we're [Sea Lion] not supposed to be in this kind of contract at all.\\\" More importantly, Joseph, testifying as Sea Lion's designated representative, admitted that Sea Lion knew it. This admission was repeated at oral argument. Joseph also testified that he had \\\"told Myron not to sign, but apparently Gillespie needed the aircraft, so it was\\\" and that \\\"we were forced into this.\\\" \\\"We\\\" obviously refers to Sea Lion. Joseph characterized Air Log's insistence that Naneng sign in his corporate capacity as \\\"blackmail.\\\"\\nDespite being \\\"blackmailed,\\\" and despite its assertion that it was at that time still negotiating with Gillespie for limited liability, Sea Lion said nothing tending to disavow the effect of Naneng's signature to Air Log. The \\\"Memorandum of Under standing\\\" between Sea Lion and Naneng prepared following execution of the 1984 FSA, was not shown or made known to Air Log, at this time despite Sea Lion having been advised by counsel as to the effect of Naneng's signature on the analogous 1984 FSA.\\nThis fact pattern is indistinguishable from the Restatement (Second) of Agency \\u00a7 94, comment b, quoted supra. An admitted agent exceeded his authority in a moment of zeal to avoid the loss of an investment opportunity for his principal. He reported the matter to his principal, who on a previous analogous occasion drafted a secret memo qualifying the effect of his signature. On both occasions the secretary/treasurer of the principal chastised the agent, realizing the risk created. The principal then said nothing to the third party (Air Log) to disavow the agent's signature until it was sued about a year later. This is \\\"sufficient evidence of affirmance\\\" absent an adequate explanation. Restatement (Second) of Agency \\u00a7 94, comment b (1957). There is no adequate explanation on the record. In fact, the obvious explanation for Sea Lion's conduct was concern that disavowal would both jeopardize the deal with Air Log as well as subject its president to individual liability on a large contract.\\nTo summarize: Air Log has shown (1) an agency relationship, (2) actual knowledge of the purportedly unauthorized act by the principal, and (3) no act of subsequent disavowal by Sea Lion communicated to Air Log until litigation arose over a year later. Sea Lion presents no material evidence to the contrary.\\nIII. CONCLUSION\\nThere is no genuine issue of material fact as to ratification by silence under the test of the Restatement (Second) of Agency \\u00a7 94 and Bruton. Secret disavowals of liability do not suffice.\\nAFFIRMED.\\nORDER\\nOn consideration of the petition for rehearing, filed on December 18, 1989,\\nIT IS ORDERED:\\n1. The petition for rehearing is granted.\\n2. Opinion No. 3537, filed by the court in the above matter on December 8,1989, is withdrawn.\\n3. The attached Opinion on Rehearing, No. 3558 is filed on this date in its place.\\nEntered by direction of the court at Anchorage, Alaska on February 9, 1990.\\n. At oral argument, counsel for Sea Lion made the following concession:\\nJUSTICE COMPTON: Okay, and after he (Naneng) signed it, this second letter, in a corporate capacity, authorized or not, the board became apprised of what had happened, is that right?\\nKOHFIELD: Uh,- I'm not .\\nJUSTICE COMPTON: The board learned that he had signed this . this agreement . whatever the agreement was.... The board of Sea Lion Corporation learned that Naneng had signed this, isn't that correct:\\nKOHFIELD: Yes, I believe that's correct.\\nJUSTICE COMPTON: And, then, what did the board do in response to that, to, uh, alert Air Logistics that it was not going to, um, assume any liability for what Mr. Naneng did?\\nKOHFIELD: Well, I guess in one sense I question just how much the board of Sea Lion Corporation has to do to alert Air Log that they have no intention of being liable on the contract....\\n. The superior court also rejected Sea Lion's defense that Air Log should be estopped from treating Sea Lion as anything more than a limited partner, on the grounds that Alaska law does not accept the doctrine of \\\"limited partnership by estoppel.\\\" Sea Lion first contends that despite the fact that it had not filed a certificate of limited partnership pursuant to AS 32.10.020, Air Log should either be estopped or quasi-es-topped from holding Sea Lion liable as anything more than a limited partner.\\nThis court recently reiterated the requirements for both \\\"traditional\\\" and \\\"quasi\\\" estoppel. Dressel v. Weeks, 779 P.2d 324 (Alaska 1989). Traditional estoppel requires the assertion of a position by conduct or word, reasonable reliance thereon by a party, and resulting prejudice. Id. at 329. Quasi-estoppel precludes a party from taking a position inconsistent with one taken previously when circumstances render the assertion of the second position unconscionable. Id.\\nThere is no evidence in the record that Air Log ever accepted Sea Lion's self-characterization as a limited partner or creditor before the 1985 FSA was executed. Rather, the record is clear that Air Log insisted that Sea Lion back up the 1985 FSA regardless of how it characterized itself. Air Log cannot thus be said to have taken the position that Sea Lion was a limited partner; rather, this is an attempt by Sea Lion to ascribe its litigation position to Air Log. We also note that estoppel is an equitable remedy. Equity requires that those who seek it shall have acted fairly and without fraud or deceit as to the controversy in issue. Knaebel v. Heiner, 663 P.2d 551, 554 (Alaska 1983). There exists substantial doubt, given Sea Lion's secret disvowals of Naneng's signature, whether it is entitled to equity.\\nAlternatively, Sea Lion urges us to adopt the rule that where a partnership has been formed, yet no certificate of limited partnership has been filed, creditors dealing with the partnership as a limited partnership other than in good faith are estopped from relying on the lack of filing. E.g., Garrett v. Koepke, 569 S.W.2d 568 (Tex.Civ.App.1978). Although this is the rule under the Revised Uniform Limited Partnership Act, a few courts have adopted the rule judicially in jurisdictions, such as Alaska, still utilizing the old Act. See Revised Unif. Ltd. Partnership Act \\u00a7 304(b), 6 U.L.A. 311 (Supp.1989). We do not reach this issue. Sea Lion concedes it was not a partner of any kind at the time Naneng executed the 1985 FSA and we do not resolve this case on a partnership theory.\\n. Sea Lion's arguments that it should not be held liable summarily on the issues of actual or apparent authority are persuasive, though in the end irrelevant.\\nNaneng acted as an agent of Sea Lion at the 1985 FSA signing. A disclosed principal is subject to liability upon contracts made by an agent acting within his authority. Restatement (Second) of Agency \\u00a7 144 (1958). Authority sufficient to bind a principal can be either actual or apparent. Bruton, 513 P.2d at 1125.\\nAir Log contends as an initial matter that Sea Lion did not raise the question of the scope of Naneng's authority until after summary judgment had been entered. Air Log's contention is without merit. As discussed infra, Sea Lion presented considerable evidence explicitly calling the scope of Naneng's authority into doubt and which was relevant to no other issue, despite not arguing it explicitly until its motion for reconsideration. See Thorstenson v. ARCO Alaska, Inc., 780 P.2d 371, 375 (Alaska 1989).\\nActual authority is created by \\\"written or spoken words or other conduct of the principal which, reasonably interpreted, causes the agent to believe that principal desires him so to act on the principal's account.\\\" Bruton, 513 P.2d at 1125 (quoting Restatement (Second) of Agency \\u00a7 26 (1958)).\\nSummary judgment was improper on an actual authority theory. The reasonableness of Naneng's belief as to what he was authorized to do is at issue here. See Perkins v. Willacy, 431 P.2d 141, 143 (Alaska 1967). The record, drawing all reasonable inferences in favor of Sea Lion, shows that Naneng knew, based on the 1984 Memorandum of Understanding, that he lacked board approval to obligate Sea Lion on contracts in connection with BTS. These allegations raise material questions of fact with regard to the reasonableness of Naneng's beliefs regarding the extent of his authority.\\nApparent authority, by contrast, focuses on the reasonable beliefs of the third party (Air Log).\\nApparent authority to do an act is created as to third persons by written or spoken words or any other conduct of the principal which, reasonably interpreted, causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him.\\nCity of Delta Junction v. Mack Trucks, Inc., 670 P.2d 1128, 1130 (Alaska 1983) (quoting Restatement (Second) of Agency \\u00a7 27 at 103 (1958)). See also Jackson v. Power, 743 P.2d 1376, 1381 (Alaska 1987).\\nSkipton, Sea Lion's accountant, testified he told Air Log that Sea Lion was unwilling to be bound as a general partner and wanted only limited partner liability. He testified that he informed Air Log that the Sea Lion board would have to approve further action. Furthermore, Gillespie testified that at the actual signing of the 1985 FSA, he also informed Air Log that \\\"Sea Lion Corporation was not a general partner in [BTS] and, therefore, had no responsibility to sign the agreement.\\\" A reasonable trier of fact could come to the conclusion that any belief by Air Log that Naneng had authority to sign the 1985 FSA was unreasonable.\\nSea Lion appears to contend, against the vast weight of authority in Alaska, see, e.g., Bruton; Perkins; City of Delta Junction, that the Restatement view of apparent authority is not the law in Alaska. They cite dictum from one case, State v. Neal & Sons, Inc., 489 P.2d 1016, 1019 (Alaska 1971), to the effect that as a matter of law a third party must either investigate the extent of an agent's authority or deal only at its peril. All subsequent (and prior) Alaska law is to the contrary, utilizing the Restatement view. To the extent the dictum in Neal & Sons, Inc. suggests otherwise, it is expressly disapproved.\\n. There is uncontradicted evidence in the record that a second liability-adjusting memorandum (MOU) was drafted, though the document itself does not appear. As the document would be cumulative evidence of Sea Lion's knowledge of the 1985 FSA, its existence or non-existence is immaterial.\\n. In its reply brief, Sea Lion asks rhetorically, \\\"[H]ow many times must Air Log hear a clear statement regarding Sea Lion's intent not to be bound to BTS obligations?\\\" The answer is \\\"Only once.\\\" However, this \\\"once\\\" must come after its agent signs a contract on its behalf and the principal learns of the act and realizes the risk created, especially when advised by counsel on the matter. Furthermore, the third party must hear it.\"}"

alaska/10382473.json

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+"{\"id\": \"10382473\", \"name\": \"STATE of Alaska, Appellant, v. Dennis Ray ANTHONY, James Richard Flake, David Matthew Logue, Richard R. Ecklund, Victor E. Chambers, on behalf of themselves and all other persons who are now or will be similarly situated, Case No. 3PA-88-1009 CI, Leroy K. Smith, Roger M. Pike, Patrick Pletnikoff, Richard D. Nitz, Michael A. Bateman, Robert D. Lozzio, Robert D. Thrall, Case No. 3PA-88-601 CI, Reginald L. Silvernail, Case No. 3KN-88-816 CI, Anthony L. Brown, Case No. 3AN-88-8966 CI, Edward P. Lowry, Case No. 3AN-88-9165 CI, John C. Aspell, Case No. 3AN-88-8987 CI, Richard H. Krantz, Case No. 3AN-88-8986 CI, Sidney R. Hertz, Peter W. Thorsen, Case No. 3AN-88-10971 CI, Terry F. Newell, Case No. 3AN-88-966 CI, Robert G. Klink, Case No. 3KN-88-970 CI, Appellees; STATE of Alaska, DEPARTMENT OF REVENUE, Appellant, v. Richard Carl SNYDER, Appellee\", \"name_abbreviation\": \"State v. Anthony\", \"decision_date\": \"1991-09-13\", \"docket_number\": \"No. S-3650\", \"first_page\": \"1377\", \"last_page\": \"1379\", \"citations\": \"816 P.2d 1377\", \"volume\": \"816\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-11T02:10:32.146809+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.\", \"parties\": \"STATE of Alaska, Appellant, v. Dennis Ray ANTHONY, James Richard Flake, David Matthew Logue, Richard R. Ecklund, Victor E. Chambers, on behalf of themselves and all other persons who are now or will be similarly situated, Case No. 3PA-88-1009 CI, Leroy K. Smith, Roger M. Pike, Patrick Pletnikoff, Richard D. Nitz, Michael A. Bateman, Robert D. Lozzio, Robert D. Thrall, Case No. 3PA-88-601 CI, Reginald L. Silvernail, Case No. 3KN-88-816 CI, Anthony L. Brown, Case No. 3AN-88-8966 CI, Edward P. Lowry, Case No. 3AN-88-9165 CI, John C. Aspell, Case No. 3AN-88-8987 CI, Richard H. Krantz, Case No. 3AN-88-8986 CI, Sidney R. Hertz, Peter W. Thorsen, Case No. 3AN-88-10971 CI, Terry F. Newell, Case No. 3AN-88-966 CI, Robert G. Klink, Case No. 3KN-88-970 CI, Appellees. STATE of Alaska, DEPARTMENT OF REVENUE, Appellant, v. Richard Carl SNYDER, Appellee.\", \"head_matter\": \"STATE of Alaska, Appellant, v. Dennis Ray ANTHONY, James Richard Flake, David Matthew Logue, Richard R. Ecklund, Victor E. Chambers, on behalf of themselves and all other persons who are now or will be similarly situated, Case No. 3PA-88-1009 CI, Leroy K. Smith, Roger M. Pike, Patrick Pletnikoff, Richard D. Nitz, Michael A. Bateman, Robert D. Lozzio, Robert D. Thrall, Case No. 3PA-88-601 CI, Reginald L. Silvernail, Case No. 3KN-88-816 CI, Anthony L. Brown, Case No. 3AN-88-8966 CI, Edward P. Lowry, Case No. 3AN-88-9165 CI, John C. Aspell, Case No. 3AN-88-8987 CI, Richard H. Krantz, Case No. 3AN-88-8986 CI, Sidney R. Hertz, Peter W. Thorsen, Case No. 3AN-88-10971 CI, Terry F. Newell, Case No. 3AN-88-966 CI, Robert G. Klink, Case No. 3KN-88-970 CI, Appellees. STATE of Alaska, DEPARTMENT OF REVENUE, Appellant, v. Richard Carl SNYDER, Appellee.\\nNo. S-3650.\\nSupreme Court of Alaska.\\nSept. 13, 1991.\\nMarilyn May, Asst. Atty. Gen., Anchorage, Jeffrey W. Bush, Asst. Atty. Gen., and Douglas B. Baily, Atty. Gen., Juneau, for appellant.\\nPete Ehrhardt, Robinson, Beiswenger & Ehrhardt, Soldotna, for appellees Anthony, Silvernail, Newell and Klink.\\nEdward P. Lowry, Sidney R. Hertz, Anthony L. Brown, and Leroy K. Smith, appel-lees pro se, Palmer.\\nBefore RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.\", \"word_count\": \"1586\", \"char_count\": \"9603\", \"text\": \"OPINION ON REHEARING\\nCOMPTON, Justice.\\nIn State v. Anthony, 810 P.2d 155 (Alaska 1991), we concluded that AS 43.23.-005(d), which makes incarcerated felons ineligible for permanent fund dividends, does not violate the equal protection clause of the Alaska Constitution or the United States Constitution. We did not address whether the statute violates the ex post facto clause of either constitution and therefore grant the appellees' petitions for rehearing to resolve this issue.\\nThe United States Supreme Court has summarized the characteristics of an ex post facto law as follows:\\n[A]ny statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission; or which deprives one charged with a crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.\\nDobbert v. Florida, 432 U.S. 282, 292, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977) (quoting Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 68, 70 L.Ed. 216 (1925)). The first and the third characteristics clearly do not apply to this case. The inmates do not challenge the validity of their convictions. Alaska Statute 43.23.-005(d) does not alter the definition of any crime nor affect any criminal defenses. The inmates simply argue that by declaring them ineligible for permanent fund dividends they were previously entitled to receive, the statute increases the punishment for their crimes after the commission of these crimes.\\nThe mere fact that AS 43.23.005(d) alters a convicted felon's circumstances to his or her disadvantage does not in itself invalidate the statute as ex post facto. See, e.g., Flemming v. Nestor, 363 U.S. 603, 613-14, 80 S.Ct. 1367, 1374, 4 L.Ed.2d 1435 (1960) (dismissed ex post facto challenge to statute terminating social security retirement benefits of deported aliens); De Veau v. Braisted, 363 U.S. 144, 160, 80 S.Ct. 1146, 1154, 4 L.Ed.2d 1109 (1960) (upheld New York statute prohibiting solicitation of waterfront employees by labor organization if any officer or agent of such organization had been convicted of a felony); Jones v. Heckler, 774 F.2d 997 (10th Cir.1985) (upheld statute denying social security benefits to felons during pc 'id of incarceration); Auditor Gen v. Olezniczak, 4 N.W.2d 679, 680-81 942) (upheld prison reimbursement act imposing civil liability on all prisoners able to pay for their maintenance); Golden v. Okfuskee County Election Bd., 723 P.2d 982 (Okla.1986) (upheld law forbidding persons who have entered guilty pleas to certain offenses from holding public office).\\nThe United States Supreme Court has held that a statute enacted for valid regulatory purposes rather than simply to punish individuals for their past conduct does not violate the ex post facto clause. De Veau, 363 U.S. at 160, 80 S.Ct. at 1154. As we noted in our original opinion, the articulated purpose of AS 43.23.005(d) is to obtain funds for crime victims. In addition, we noted that the parties did not dispute at trial that a purpose of the statute is to reimburse the state for the cost of confinement. It is significant that a person convicted of a felony who is not sentenced to incarceration is not made ineligible for a permanent fund dividend. Since the purpose of the statute is compensatory rather than punitive, we conclude that it does not violate the ex post facto clause of either the United States or the Alaska Constitution.\\nUnlike the statutes at issue in most of the cases relied on by the inmates, AS 43.23.005(d) does not change the criminal justice system itself in any way. The statute's effect is similar to that of the statute upheld in Dobbert:\\nThe crime for which the present defendant was indicted, the punishment prescribed therefor, and the quantity or the degree of proof necessary to establish his guilt, all remained unaffected by the subsequent statute.\\n432 U.S. at 294, 97 S.Ct. at 2298-99 (quoting Hopt v. Utah, 110 U.S. 574, 589-90, 4 S.Ct. 202, 210, 28 L.Ed. 262 (1884)). The statute does not remove the possibility of probation as in People v. Wells, 138 Mich. App. 450, 360 N.W.2d 219 (1984); increase the period of probation that can be required as in Arizona v. Mendivil, 121 Ariz. 600, 592 P.2d 1256 (1979), and People v. Moon, 125 Mich.App. 773, 337 N.W.2d 293 (1983); eliminate an advantageous sentencing option as in Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937), and United States v. Romero, 596 F.Supp. 446, 449 (D.N.M.1984); or impose community service as in Doyle v. Florida, 513 So.2d 188, 190 (Fla.Dist.Ct.App.1987).\\nThe inmates also rely on cases in which courts held applications of statutes imposing additional costs on criminals to those whose crimes were committed prior to the effective date of the statutes violated constitutional prohibitions against ex post fac-to laws. See Yost v. Florida, 489 So.2d 131 (Fla.Dist.Ct.App.1986) (imposition of court costs of $200, in addition to other fines and costs, when any person is convicted of a felony), aff'd, 507 So.2d 1099 (Fla. 1987); Illinois v. Timmons, 114 Ill.App.3d 861, 70 Ill.Dec. 762, 768, 449 N.E.2d 1366, 1372 (1983) (imposition in sentencing of $60 surcharge, in addition to fine and costs, for most criminal or traffic offenses); Loomer v. Wyoming, 768 P.2d 1042, 1049 (Wyo. 1989) (costs of prosecution \\\"may be added to and made a part of the sentence\\\" in any felony or misdemeanor case).\\nUnlike AS 43.23.005(d), the statutes at issue in these cases all affected the sentence of the criminal defendants involved. In Yost, for example, the statute provided that no \\\"gain time\\\" could accrue on a sentence until all fees and court costs were paid and that indigents be sentenced to a term of community service in lieu of paying costs. 489 So.2d at 132. The statute in Timmons explicitly labeled the surcharge at issue as a \\\"penalty assessment.\\\" 449 N.E.2d at 1372, 70 Ill.Dec. at 768. In Loomer the statute provided that the additional costs be \\\"added to and made a part of the sentence.\\\" 768 P.2d at 1049.\\nIn the absence of any evidence that the intent or effect of AS 43.23.005(d) is punitive, we conclude that the application of the statute to felons convicted of crimes committed prior to the statute's effective date is not ex post facto.\\n. The parties agree that the ex post facto prohibition of the Alaska Constitution is the same as that of the United States Constitution. The United States Constitution provides that \\\"[n]o state shall . pass any bill of attainder, ex post facto law or law impairing the obligation of contracts_\\\" Art. I, \\u00a7 10. The Alaska Constitution provides that \\\"[n]o bill of attainder or ex post facto law shall be passed.\\\" Art. I, \\u00a7 15. We have previously found no reason to construe our state ex post facto prohibition differently from the federal provision. State v. Creekpaum, 753 P.2d 1139, 1143 (Alaska 1988); Banks v. State, 619 P.2d 720, 722 (Alaska 1980).\\n. The inmates rely on United States v. MacDonald, 607 F.Supp. 1183 (E.D.N.C.1985), in which the court held that a federal statute requiring forfeiture of any proceeds received by a criminal defendant for selling the story of his or her crimes was ex post facto as applied to a criminal defendant convicted of crimes committed prior to passage of the statute. Although legislative history indicated that one of the purposes of the act was to compensate crime victims, the court found that the government's goal was to prevent wrongdoers from profiting from their crimes. Id. at 1186.\\nThe inmates offered no evidence that AS 43.-23.005(d) had a similar punitive intent. If the legislature simply intended to take the dividends from incarcerated felons for the purpose of paying a higher dividend to the rest of the state's residents, then ex post facto problems might arise.\\n. On appeal, the Florida Supreme Court emphasized the significance of the penalty provisions. Following the lower court's decision, the statute was amended to delete the penalty provisions for failure to pay the fees and costs. The supreme court noted that \\\"[r]espondent concedes that the statute, as amended, does not violate the ex post facto clause.\\\" Florida v. Yost, 507 So.2d 1099, 1101 (Fla.1987).\"}"

alaska/10387527.json

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+"{\"id\": \"10387527\", \"name\": \"Rodney G. SULLIVAN, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Sullivan v. State\", \"decision_date\": \"1988-12-23\", \"docket_number\": \"No. A-2229\", \"first_page\": \"51\", \"last_page\": \"58\", \"citations\": \"766 P.2d 51\", \"volume\": \"766\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Court of Appeals\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T20:37:21.779389+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BRYNER, C.J., and COATS and SINGLETON, JJ.\", \"parties\": \"Rodney G. SULLIVAN, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Rodney G. SULLIVAN, Appellant, v. STATE of Alaska, Appellee.\\nNo. A-2229.\\nCourt of Appeals of Alaska.\\nDec. 23, 1988.\\nJeffrey F. Sauer, Asst. Public Defender, Sitka, and Dana Fabe, Public Defender, Anchorage, for appellant.\\nRobert D. Bacon, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee.\\nBefore BRYNER, C.J., and COATS and SINGLETON, JJ.\", \"word_count\": \"4311\", \"char_count\": \"26024\", \"text\": \"OPINION\\nBRYNER, Chief Judge.\\nRodney G. Sullivan was convicted, after a bench trial, of attempted sexual abuse of a minor in the second degree, a class C felony. AS 11.41.436(a)(2). Superior Court Judge Thomas E. Schulz sentenced Sullivan, a first felony offender, to a term of five years with one year suspended. On appeal, we vacated Sullivan's conviction, finding that the trial court had relied on an erroneous interpretation of the second-degree sexual abuse statute. We remanded the case for determination of two issues: first, whether Sullivan was guilty of attempted sexual abuse in the second degree under another theory; and, second, whether Sullivan was guilty of any lesser-included offenses.\\nOn remand, Judge Schulz again found Sullivan guilty of attempted sexual abuse in the second degree. He alternatively found that the evidence supported conviction of Sullivan for contributing to the delinquency of a minor, a class A misdemean- or, AS 11.51.130, as a lesser-included offense.\\nSullivan again appeals, challenging his conviction for attempted sexual abuse and challenging the lesser-included offense finding. Sullivan also challenges his sentence as excessive. We conclude that there was insufficient evidence to convict Sullivan of attempted sexual abuse, but affirm Sullivan's conviction of contributing to the delinquency of a minor. Our disposition renders it unnecessary to consider Sullivan's sentencing argument.\\nFACTS\\nIn September of 1984, Sullivan was staying in Ketchikan at the house of a friend, who had asked Sullivan to help keep an eye on her three children while she was on vacation for two weeks. During this period, various neighborhood children had been given permission to enter the house and to play with the family dog.\\nOne day while several children were at the house, Sullivan approached D.T., an eight-year-old girl, and offered to \\\"give [her] some money if [she] would be his girlfriend.\\\" She replied, \\\"No.\\\" That same day, Sullivan gave D.T. and another girl, K.W., a note. According to D.T., the note read: \\\"Will you be my girlfriend? Will you kiss me? Will you take off your clothes? Will you get another girlfriend for me?\\\" The note also included boxes for \\\"yes\\\" and \\\"no\\\" responses. Sullivan paid D.T.'s seven-year-old brother, J.T., two dollars to deliver the note. At some point during that day, Sullivan locked J.T. into a room because, according to J.T., Sullivan \\\"wanted to tell [D.T.] a nasty letter.\\\" Sullivan also told J.T. that he wanted to invite D.T. \\\"and a whole bunch of other people\\\" to a party, and that \\\"the only parties he had is bad parties\\\" with girls. D.T. received at least ten or twelve other notes from Sullivan while she was at his house that day. She did not remember what the other notes said.\\nK.W. remembered that D.T. read her a note that Sullivan had given them. The note asked, \\\"Do you want to be my girlfriend?\\\" and stated, \\\"I'll give you a thousand dollars if you do.\\\" K.W. also remembered that Sullivan asked the girls if they would take off their clothes in front of him.\\nH.T., a nine-year-old girl, was also at Sullivan's house with D.T., K.W., and J.T. She read the note Sullivan gave to D.T. and K.W. H.T. recalled the four questions that D.T. described, although she added that there was a fifth question, which she could not recall. H.T. heard Sullivan ask K.W. and D.T. to take off their clothes \\\"a lot of times.\\\" She recalled that Sullivan showed the children pictures of \\\"naked ladies\\\" in Playboy magazine and that he gave the three girls \\\"tests\\\" with such questions as, \\\"Will you go to bed with me?\\\" and, \\\"Will you marry me?\\\"\\nOn a later day, D.T. received another note from Sullivan, this time delivered to her by J.T. at home. The note said that if D.T. agreed to answer \\\"a lot of questions, [Sullivan] would have a party.\\\" D.T. destroyed the note.\\nD.T. subsequently reported the notes to her mother, who notified the Ketchikan police. During police questioning, Sullivan acknowledged the incidents and attempted to reconstruct his original note to D.T. The reconstructed note read:\\nI really like you a lot. I would be proud to have you as my girlfriend. So I'm going to ask you some questions. Will you go with me? Will you kiss me? Will you let me feel private parts of your body? Will you take off all of your clothes in front of me? And will you let me kiss the private parts of your body? I really hope you do some of these thing in the questions.\\nSullivan was subsequently indicted on one count of attempted sexual abuse in the second degree. The indictment charged:\\nThat on or about September, 1984, at or near Ketchikan . RODNEY G. SULLIVAN, being 16 years of age or older, did unlawfully and intentionally attempt to engage in sexual contact with a person under the age of 13, to-wit: by giving a note to D.T., [Date of Birth]: 11 \\u2014 11\\u2014 75....\\nSUFFICIENCY OF EVIDENCE TO SHOW ATTEMPTED SEXUAL ABUSE OF A MINOR IN THE SECOND DEGREE\\nSullivan argues that there is insufficient evidence to support his conviction for attempted sexual abuse. On review, this court must view the evidence and the inferences to be drawn from it in the light most favorable to the state and must affirm unless fair-minded jurors would necessarily agree that the state failed to carry its burden of proof beyond a reasonable doubt. Abdulbaqui v. State, 728 P.2d 1211, 1214 (Alaska App.1986).\\nAlaska Statute 11.31.100(a) sets out the elements of an attempt:\\n[A] person is guilty of an attempt to commit a crime if, with intent to commit a crime, the person engages in conduct which constitutes a substantial step toward the commission of that crime.\\nIn order to constitute a \\\"substantial step,\\\" conduct must go beyond mere preparation. Gargan v. State, 436 P.2d 968, 971 (Alaska 1968). Whether an act is merely preparatory or is \\\"sufficiently close to the consummation of the crime to amount to attempt, is a question of degree and depends upon the facts and circumstances of a particular case.\\\" Braham v. State, 571 P.2d 631, 637 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S.Ct. 2246, 56 L.Ed.2d 410 (1978).\\nUnder AS 11.41.436(a),\\n[a]n offender commits the crime of sexual abuse of a minor in the second degree if\\n(2) being 16 years of age or older, the offender engages in sexual contact with a person who is under 13 years of age....\\nSexual contact is defined as \\\"knowingly touching, directly or through clothing, the victim's genitals, anus, or female breast.\\\" AS 11.81.900(b)(52)(A).\\nSullivan claims that the state failed to produce evidence that he had taken a \\\"substantial step\\\" toward having sexual contact with a minor. Sullivan advances two arguments in support of his claim: 1) that his conduct amounted to no more than solicitation, and therefore cannot constitute a \\\"substantial step;\\\" and, 2) that the acts he solicited from D.T. would not have amounted to sexual contact under AS 11.81.-900(b)(52)(A).\\nIn Braham v. State, the Alaska Supreme Court established that solicitation is merely preparatory conduct and is therefore insufficient to constitute a \\\"substantial step.\\\" 571 P.2d at 637, 638 n. 10. Braham solicited an acquaintance to kill a third party for $600. Braham instructed his acquaintance to visit the intended victim at the hospital and deliver a fictitious message to him. The acquaintance did so; shortly thereafter, he abandoned the murder plans and became a police informant. Braham was convicted of attempted murder. On appeal, he challenged the sufficiency of the evidence to support his conviction.\\nThe issue before the supreme court was whether Braham had committed an attempt or whether his acts amounted to a mere solicitation. The court reasoned that the purpose of the hospital visit by Braham's acquaintance was to \\\"establish a relationship of trust and confidence\\\" with the victim in order to facilitate the commission of the offense. Id. at 638. The court concluded that the hospital visit was \\\"a direct, unequivocal 'act toward the commission of the crime' of murder\\\" within the meaning of the attempt statute and that the evidence was therefore sufficient to support a guilty verdict on the attempt charge. Id. at 638.\\nThe circumstances of the present case are distinguishable from the facts in Bra-ham in two respects: 1) there was no agreement between Sullivan and another person to commit a crime, and 2) Sullivan did not engage in any activity toward completion of his crime after he solicited the commission of an offense by delivering a note to D.T. These distinctions are significant. At the very least, Braham requires that a solicitation be met with agreement and that there be some further act beyond agreement. The line dividing preparation from attempt falls between the agreement to commit a crime and the subsequent act in furtherance of it. By contrast, in the present case, all of Sullivan's acts occurred prior to, and in preparation for, the solicitation. There was no act beyond solicitation.\\nThe state nevertheless argues that Sullivan's acts, when viewed together, constitute a substantial step toward engaging in sexual contact with D.T. However, according to the state's own account, Sullivan engaged in these acts in preparation for the solicitation itself. For example, at trial the state claimed that Sullivan had written his notes in test format, in order to convince the children that \\\"what he was doing was good\\\" so that they would want to \\\"pass [the] test.\\\" Likewise, the state argued at trial that Sullivan showed the children pictures of naked women \\\"so that they would be in the mood where he could have sexual contact with them once he persuaded them to get their clothes off.\\\" Although these acts may support an inference that Sullivan had a plan to seduce young girls, they amount to no more than preparatory conduct under Braham. The fact that Sullivan took steps to ensure that his solicitation would be successful does not convert the solicitation into a substantial step.\\nThe state also relies on the Model Penal Code in support of its position. Alaska's attempt statute was based in part on Model Penal Code Part 1, Art. 5 \\u00a7 5.01 (1985), which requires that a person,\\nacting with the kind of culpability otherwise required for commission of the crime\\npurposely does or omits to do anything that . is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.\\nThe Model Penal Code lists actions that constitute a substantial step, including \\\"enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission\\\" and \\\"solicit ing an innocent agent to engage in conduct constituting an element of the crime.\\\" Model Penal Code Part 1, Art. 5 \\u00a7 5.01(2)(b), (g) (1985). This list is quoted in its entirety in the Alaska Criminal Code Revision, Part 2 at 73-74 (Tent. Draft 1977).\\nThe state suggests that Sullivan's conduct amounted to \\\"enticing or seeking to entice\\\" D.T. However, the trial court specifically found that Sullivan never sought to entice D.T. to a place where he could molest her. Instead, the evidence shows that Sullivan solicited D.T. when she went to Sullivan's house voluntarily to look after his roommate's dog. The explanatory note to Model Penal Code \\u00a7 5.01 distinguishes enticement into a vehicle or building from \\\"merely solicitpng] cooperation in a sexual act,\\\" as occurred in this case. Cf., State v. McJunkin, 27 Or.App. 401, 556 P.2d 164 (1976) (a defendant who sought to entice a nine-year-old girl into his pickup truck and expressed his desire to have sexual intercourse with her was properly convicted of attempted first-degree rape).\\nThe \\\"innocent agent\\\" provision of the Model Penal Code is likewise inapplicable. This provision is meant to apply when the defendant commits \\\"the last guilty act\\\" by soliciting the commission of a criminal act by a person who is unaware that the solicited act is a crime. See R. Perkins and R. Boyce, Criminal Law 652-53 (3d ed. 1982). By contrast, in the present case, Sullivan would have had to perform further \\\"guilty acts\\\" beyond the solicitation to succeed in having sexual contact with D.T.\\nOther states that have considered whether soliciting a child to have sexual contact is enough to establish attempted sexual abuse have reached disparate conclusions. Compare People v. LaFontaine, 79 Cal.App.3d 176, 144 Cal.Rptr. 729 (1978) with State v. Fristoe, 135 Ariz. 25, 658 P.2d 825 (Ariz.Ct.App.1982); State v. McJunkin, 27 Or.App. 401, 556 P.2d 164 (1976); and State v. Graham, 70 Or.App. 589, 689 P.2d 1315 (1984), review denied, 298 Or. 597, 695 P.2d 50 (1985).\\nIn a case with facts similar to the present case, People v. LaFontaine, supra, a California appellate court held that mere verbal solicitation of a sexual act did not amount to an attempt to commit a \\\"lewd or lascivious act\\\" upon the body of a child. The defendant, LaFontaine, picked up a thirteen-year-old hitchhiker and offered to give him money if he allowed LaFontaine to give him \\\"a blow job.\\\" La-Fontaine never touched or attempted to touch the child, who refused and got out of the car. The court held that LaFontaine's act of solicitation was mere preparation and, as such, was not an \\\"unequivocal act\\\" necessary for an attempt. 144 Cal.Rptr. at 733.\\nAppellate courts in both Arizona and Oregon have indicated that a verbal solicitation may be a \\\"substantial step.\\\" In State v. Fristoe, supra, the defendant contended that he should have been charged with solicitation rather than attempt. In three separate incidents, Fristoe had pulled up in his truck beside girls age fifteen or younger and offered them five dollars to \\\"kiss between their legs.\\\" When the girls refused, Fristoe drove away. During one of the incidents, Fristoe returned after the initial refusal and raised the offer to twenty dollars. In none of the incidents did Fristoe make any further motion toward the girls. Id. 658 P.2d at 829. The trial court convicted Fristoe on four counts of attempted oral sexual contact with minors.\\nThe appellate court affirmed, concluding that \\\"words can constitute a 'step' \\\" under the attempt statute and that, given the \\\"total picture,\\\" an attempt had been committed. In rejecting Fristoe's argument that a solicitation cannot be an attempt, the court distinguished between situations in which the defendant solicits a third party to commit a crime and situations in which the defendant himself intends to be the perpetrator. According to the court, in the first situation there is a solicitation but no attempt; in the second, there is an attempt but no solicitation. Because Fristoe had not attempted to persuade the girls to commit a crime but had solicited them in order that he might commit a crime himself, the court concluded that he was guilty of attempt rather than solicitation. Id. at 831. Accord State v. Graham, 70 Or.App. 589, 689 P.2d 1315 (1984), review denied, 298 Or. 597, 695 P.2d 50 (1985).\\nWe reject the distinction drawn by the Arizona court in Fristoe. As the California Court of Appeals noted in LaFontaine\\nWe see no logic or reason to carve out of the general principles . an exception that certain acts of solicitation, which otherwise constitute preparation only, should be considered as going beyond preparation to constitute the offense of an attempt, because of the type of crime being solicited. The fact that the person solicited is needed for the consummation of the offense cannot logically or reasonably change the character of a defendant's acts from mere preparation to an unequivocal act to commit the ultimate offense or to constitute some fragment of the crime which is alleged to have been attempted.\\n144 CaLRptr. at 733 (emphasis in original).\\nDrawing all inferences in favor of the state in the present case, the evidence presented at trial establishes only that Sullivan engaged in preparatory conduct and not that he took a substantial step toward sexual contact with D.T. We therefore reverse Sullivan's conviction of attempted sexual abuse of a minor in the second degree.\\nCONTRIBUTING TO THE DELINQUENCY OF A MINOR AS A LESSER-INCLUDED OFFENSE\\nOn remand, the trial court concluded that even if the evidence did not establish attempted sexual abuse, Sullivan was guilty of contributing to the delinquency of a minor, a crime that the court found to be a lesser-included offense of attempted sexual abuse under the circumstances of the present case. Sullivan challenges the trial court's finding.\\nAn offense is a lesser-included offense of the charged offense when it is impossible to commit the charged offense without committing the lesser offense and when conviction of the greater offense requires the jury to find a disputed fact that is not required for conviction of the lesser. Abdulbaqui v. State, 728 P.2d 1211, 1214 (Alaska App.1986). Under the cognate approach, the focus is on the facts charged in the indictment and the evidence presented at trial rather than on the statutory elements of the greater and lesser offenses. Elisovsky v. State, 592 P.2d 1221, 1226 (Alaska 1979); State v. Minano, 710 P.2d 1013, 1016 (Alaska 1985).\\nAlaska Statute 11.51.130(a)(1) provides that a person contributes to the delinquency of a minor if that person \\\"aids, induces, causes, or encourages a child under 18 years of age to do any act prohibited by state law.\\\" The indictment charged that Sullivan attempted to engage in sexual contact with D.T. by giving her a note. Evidence was presented to show that, by means of the note, Sullivan encouraged D.T. to engage in sexual contact with him. Even if Sullivan did not commit an act qualifying as an attempt, under AS 11.51.-130, his encouragement of D.T. to have sexual contact with him would amount to contributing to the delinquency of a minor if an act of sexual contact by D.T. could be deemed \\\"an act prohibited by state law.\\\" Whether or not contributing to the delinquency of a minor (contributing) is a lesser-included offense of attempted sexual assault of a minor in the second degree thus depends on how the phrase \\\"to do any act prohibited by state law\\\" is construed.\\nSullivan argues that contributing can never be a lesser-included offense of attempted sexual abuse because under the statute defining sexual abuse, only the adult is guilty of an offense when sexual contact occurs between an adult and a child, whereas under the contributing statute the adult must encourage the child to violate the law. According to Sullivan, since D.T. herself would not have violated the law if Sullivan had succeeded in having sexual contact with her, Sullivan did not encourage D.T. to violate the law. In response, the state urges this court to construe the phrase \\\"to do any act prohibited by state law\\\" to include acts that violate laws enacted for the protection of minors, even when the minor could not be prosecuted for the act.\\nThe state's interpretation of AS 11.51.130 is consistent with the statutory history of the provision. When a statute is adopted from another jurisdiction, the settled interpretation of the statute by that state's highest court at the time of its adoption is presumed to be adopted as well. Zerbe v. State, 583 P.2d 845, 846 (Alaska 1978). Alaska Statute 11.51.130(a)(1), as amended in 1980, was adopted from the corresponding Arkansas statute. The commentary to that statute provides, in relevant part:\\n[Sjubsection (l)(a) . is directed at the adult who encourages the minor to engage in conduct prohibited by law. Such conduct includes not only violation of criminal statutes but also contravention of statutes designed to protect minors, whether or not they define an offense. For example, . Ark.Stat.Ann. \\u00a7 41-2468 to 41-2470 prohibits the tattooing of minors without the parents' consent, although the minor commits no offense by obtaining a tattoo. However, if an adult induced a minor to submit to being tattooed by a third party, the adult would be guilty of contributing to the minor's delinquency.\\nArk.Stat.Ann. \\u00a7 41-2406 commentary (1977) (emphasis added). Under this interpretation, Sullivan, by encouraging D.T. to have sexual contact with him, encouraged D.T. to engage in conduct prohibited by law.\\nThe state's interpretation is also consistent with the purpose of the Alaska contributing statute. In applying Alaska's former contributing statute, the Alaska Supreme Court held that its purpose was to protect children under the age of eighteen. Anderson v. State, 384 P.2d 669, 671 (Alaska 1963); Hanby v. State, 479 P.2d 486, 498 (Alaska 1970). Although the statute was substantially amended in 1978, the legislative history indicates that the intent of the amendments was to eliminate problems of vagueness, and not to change the statute's overall purpose. See Alaska Criminal Code Revision Part 2 at 67-68 (Tent. Draft 1977). The state's interpretation of AS 11.-51.130 would promote the statute's goal of protecting minors without creating any incidental problems of vagueness. Applying this interpretation, we find that the trial court properly treated the crime of contrib uting to the delinquency of a minor as a lesser-included offense.\\nWhile there was insufficient evidence to support Sullivan's conviction for attempted sexual abuse of a minor, there was ample evidence to support his conviction for contributing to the delinquency of a minor. Evidence was admitted at trial that Sullivan wrote notes to D.T. telling her he \\\"really hope[d]\\\" that she would let him \\\"feel her private parts.\\\" A reasonable person could conclude that by writing this note, Sullivan was encouraging D.T. to engage in sexual contact with him, an act prohibited by state law. We therefore affirm Sullivan's conviction for contributing to the delinquency of a minor.\\nThe judgment of conviction for sexual assault in the second degree is VACATED. This case is REMANDED for imposition of sentence and entry of judgment on the lesser offense of contributing to the delinquency of a minor.\\n. The attempt statute then in effect imposed criminal liability on \\\"[any] person who attempts to commit a crime, and in the attempt does any act toward the commission of the crime, but fails, or is prevented or intercepted in the perpetration of the crime .\\\" Former AS 11.05.020 (repealed, ch. 166 \\u00a7 21 SLA 1978) (emphasis added).\\n. Psychiatric testimony was also presented below indicating that, in soliciting D.T., Sullivan almost reached the point at which he was no longer capable of restraining himself from engaging in an act of molestation. The state relies on this evidence to support its assertion that Sullivan's conviction was proper. The psychiatric evidence, however, while highly probative on the issue of Sullivan's intent, does nothing to establish that he committed an act beyond setting the stage by solicitation of his intended victim.\\n. Under the California statute,\\nAny 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, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child, shall be guilty of a felony....\\nCal.Penal Code \\u00a7 288(a) (West 1988).\\n. The Arizona attempt statute imposes attempt liability when defendant has performed \\\"any step in a course of conduct planned to culminate in commission of an offense.\\\" Ariz.Rev. Stat.Ann. \\u00a7 13-1001(A)(2) (1978) (emphasis added). On its face, this appears to be a less stringent requirement than the \\\"substantial step\\\" re quired in Alaska. However, the court in Fristoe concluded that the \\\"any step\\\" requirement was identical to the \\\"substantial step\\\" requirement used in other states, and emphasized that it does not impose liability for mere preparatory conduct. 658 P.2d at 830.\\n. Although Sullivan's conduct did not qualify as an attempt, it seems to us that his solicitation of D.T. may well have constituted a violation of AS 11.31.110(a), which provides:\\nA person commits the crime of solicitation if, with intent to cause another to engage in conduct constituting a crime, the person solicits the other to engage in that conduct.\\nAlaska Statute 11.31.110(b)(1)(B) expressly provides that, in a prosecution for solicitation, it is not a defense \\\"that a person whom the defendant solicits could not be guilty of the crime that is the object of the solicitation.\\\" Under AS 11.31.110(c)(3), soliciting a person to commit the offense of sexual abuse of a child in the second degree would, like attempt, be punishable as a class C felony. While it is conceivable that Sullivan could have been convicted of solicitation, the state did not charge him under AS 11.31.110. The trial court, applying the cognate approach, concluded that solicitation was not a lesser-included offense of attempt. The state has not challenged the court's conclusion, and, on appeal, neither party has addressed the applicability of Alaska's solicitation statute. Under these circumstances, we do not decide the issue.\\n. The presumption is not conclusive, but is rather a rule of statutory construction based on convenience. Zerbe, 583 P.2d at 847.\\n. Our reversal of Sullivan's conviction for attempted sexual abuse of a minor requires the sentence imposed for that offense to be vacated. Accordingly, we need not consider Sullivan's contention that his sentence is excessive. On remand, the superior court will be required to resentence Sullivan on the lesser-included offense of contributing to the delinquency of a minor. Sullivan will, of course, have the right to appeal the sentence imposed for that offense.\"}"

alaska/10394708.json

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+"{\"id\": \"10394708\", \"name\": \"Leonard D. COX, Appellant, v. Viveca Yvette COX, Appellee\", \"name_abbreviation\": \"Cox v. Cox\", \"decision_date\": \"1989-06-30\", \"docket_number\": \"No. S-2727\", \"first_page\": \"1045\", \"last_page\": \"1049\", \"citations\": \"776 P.2d 1045\", \"volume\": \"776\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T21:14:16.016675+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.\", \"parties\": \"Leonard D. COX, Appellant, v. Viveca Yvette COX, Appellee.\", \"head_matter\": \"Leonard D. COX, Appellant, v. Viveca Yvette COX, Appellee.\\nNo. S-2727.\\nSupreme Court of Alaska.\\nJune 30, 1989.\\nAs Amended June 30, 1989.\\nErnest Z. Rehbock, Rehbock & Rehbock, Anchorage, for appellant.\\nBefore MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.\", \"word_count\": \"2642\", \"char_count\": \"16392\", \"text\": \"OPINION\\nMATTHEWS, Chief Justice.\\nIn this divorce case the parties entered into a child support agreement which provided:\\n[The] father shall pay reasonable child support to mother for the care of the minor child. At the present time father is disabled and receiving term disability income. Therefore the parents agree that the sum of $350.00 per month shall be a reasonable support and that such support shall continue for a period of one year from the date of this agreement. Thereafter support shall be 20% of Mr. Cox's then monthly income available for support as calculated in accordance with Alaska Rules of Civil Procedure 90.3. For the purposes of determining these support obligations from time to time father shall provide an affidavit one year from the date of this agreement setting forth his then present income for the purposes of calculation of such sup-port_ If upon furnishing the affidavit of income provided for herein, an adjustment of support from the present level appears appropriate, such support shall be adjusted on an annual basis one month following the furnishing of such affidavit and the so adjusted amount shall continue in force and effect for pending the furnishing of further updated income information by affidavit.\\nThe parties presented the substance of this agreement to Master Andrew Brown during an October 1987 hearing. Following testimony that Leonard received $2,400 a month in worker's compensation payments, Master Brown questioned the proposed $350 per month child support award. He noted that under Civil Rule 90.3(a)(2)(A) Leonard should pay $480 (20% of $2,400). Master Brown indicated, however, that he would recommend that the superior court grant the divorce and approve the child support agreement after receiving Child Support Guidelines Affidavits from each party justifying the lesser child support amount.\\nYvette filed an affidavit with the court which stated that her previous twelve months' adjusted income was $24,885.91. Leonard's affidavit indicated that he had received a monthly permanent partial disability annuity of $2,401 since February 1987 which would expire at the end of 1988. He further stated that it was his \\\"understanding\\\" that the annuity payments represented compensation for loss of future earning capacity and did not represent present income or disability income. Therefore, Leonard concluded, the annuity was non-taxable and not to be considered as income available for child support.\\nOn February 10, 1988 Master Brown filed his report. He concluded that Civil Rule 90.3(a)(1) requires the court to take into account \\\"the parents' total income from all sources,\\\" including workers' compensation benefits. (Emphasis in original). Master Brown also rejected the Coxes' plan of annual modification of child support as judicially and administratively burdensome and contrary to the purpose of Civil Rule 90.3. He concluded, instead, that if there is a future change in financial conditions either party can seek adjustment of the support award under Curley v. Curley, 588 P.2d 289 (Alaska 1979). He recommended that the superior court ignore the Coxes' child support agreement and order Leonard to pay $480.20 per month in child support beginning March 1, 1988.\\nLeonard filed an objection to Master Brown's Report. After considering Leonard's arguments, the trial court approved the Master's Report and ordered Leonard to pay $480.20 per month in child support. Leonard appeals the court's child support award.\\nLeonard raises two points on appeal: (1) that the court erred in refusing to approve the initial child support agreement of $350 per month for the first year and (2) that the court abused its discretion in requiring Leonard to pay $480.20 per month after the first year of the agreement.\\nAlaska Civil Rule 90.3 provides in relevant part:\\n(a) Guidelines. A child support award in a case in which one parent is awarded sole or primary physical custody will be calculated as an amount equal to the adjusted annual income of the non-custodial parent multiplied by a percentage specified in subparagraph (a)(2).\\n(2) The percentage by which the noncustodial parent's adjusted income must be multiplied in order to calculate the child support award is:\\n(A) 20% (.20) for one child;\\n(c) Exceptions.\\n(1) The court may vary the child support award as calculated under paragraph (a) . for cause. The court must specify in writing the reason for the variation. Good cause may include a finding:\\n(A) that unusual circumstances, such as especially large family size, significant income of a child, health or other extraordinary expenses, or unusually low expenses, exist which require variation of the award in order to award an amount of support which is just and proper for the parties to contribute to ward the nurture and education of their children. The court shall consider the custodial parent's income in this determination; or\\n(B) a finding that the parent with the child support obligation has an adjusted income which is below the poverty level as set forth in the Federal Register. However, a parent who would be required to pay child support pursuant to paragraph (a) or (b) must be ordered to pay a minimum child support amount of no less than $40.00 per month except as provided in subparagraphs (a)(3) and (b)(4).\\nLeonard's first argument is that voluntary agreements for child support should be approved even though they provide for child support payments lower than those called for under Civil Rule 90.3, absent a finding that the agreement would be contrary to the best interests of the child. As support for this argument he relies on Ma-lekos v. Yin, 655 P.2d 728 (Alaska 1982). There we held that parents could by oral agreement waive court-ordered child support so long as doing so was not deleterious to the child:\\nWe adopt the rule that a custodial parent may waive child support payments established by a prior decree, and that such a waiver precludes the recovery of arrearages absent a finding of detriment to the child. Parents bear both a statutory and moral obligation to support their child until emancipation or majority. This obligation is not extinguished by divorce. Viewed in this light, child support obligations imposed by a divorce decree allocate the burden of the parents' joint responsibility to provide their child with adequate support. While parents may not by waiver or otherwise eviscerate their child's right to adequate parental support, we see no compelling policy considerations to refuse to enforce a custodial parent's waiver of child support from a noncustodial parent, providing that such agreements are executed without fraud or duress, and providing that enforcement is not deleterious to the child.\\nId. at 730-731 (citations omitted).\\nMalekos, however, was decided before we adopted Civil Rule 90.3. The rule is designed to apply to all awards of child support, whether agreed to by the parties or contested. The following history of the rule makes this clear.\\nThe rule is a product of the Federal Child Support Enforcement Amendments of 1984. Under these amendments, Congress required each state to establish guidelines to assist in determining the amount of child support awards. Congress' goal in requiring the guidelines was to assure that child support awards, which generally are inadequate, would reflect a realistic assessment of both the child's needs and the parents' ability to pay. S.Rep. No. 387, 98th Cong., at 40, reprinted in 1984 U.S.Code Cong. & Admin.News 2397, 2436. The guidelines also provide a means whereby courts may provide greater consistency and predictability in awarding child support. S. Goldfarb, Child Support Guidelines: A Model for Fair Allocation of Child Care, Medical and Educational Expenses, XXI Fam. L.Q. 325, 326 (1987).\\nIn response to the federal mandate, the Governor of Alaska appointed a thirteen-member commission on child support en forcement whose findings and recommendations became the basis for Rule 90.3. Their report, the Report of the Child Support Enforcement Commission to the Honorable Governor William J. Sheffield, dated October 1, 1985, recommended the development of a presumptive use formula for judicial and administrative establishment and modification of support orders. Id. at III \\u2014 2. The report emphasized that the \\\"methods for setting support orders must be uniform and apply to all cases, except where special circumstances prevail.\\\" Id. at V-l. Concerning private child support agreements the commission stated:\\nCourts should inquire into the background of child support agreements if the order seems incommensurate with the facts (one measure being if it is lower than the guideline amount). This concept is hardly new; parent agreements on child support have always been subject to court approval and modification.\\nId. at VII-15.\\nThe Commission noted that \\\"[t]he amount of child support ordered in many cases is insufficient to raise children not only because inadequate support was ordered initially, but because the value of support diminishes over time from changes in the cost of living and inflation.\\\" Id. at III \\u2014 10. Moreover, the Commission recognized that many parents do not fully appreciate the costs associated with raising children:\\nSince the most significant expenditures on children are commingled with expenditures for the total household in such categories as food, housing, and transportation, many of the normal costs of children are hidden from judges and parents alike.\\nId. at VI-1.\\nIn short, the guidelines reflect a paternalistic view toward child support agreements which conflicts with the freedom of contract attitude exemplified by Malekos. The guidelines' view reflects the congressional findings that child support is often set at inadequate levels and the Commission's conclusion that many parents underestimate actual child support costs. We therefore conclude that the decision in Ma-lekos has been superceded by Rule 90.3. Parents may not make a child support agreement which is not subject to the rule.\\nFurther, we conclude that the court did not err in refusing to depart from the guidelines. The presumption imposed by the rule is that the guidelines are applicable and may be departed from only for good cause. We do not mean to suggest that the court could not have found good cause in the present case based on actual expenses, Yvette's income, and the nature of the income received by Leonard. We conclude, however, that the court was not required to find that good cause existed merely because the parties had reached an agreement.\\nWe are aware of only two cases from other jurisdictions which address this issue in the context of the new federally-mandated child support guidelines. Peerenboom v. Peerenboom, 147 Wis.2d 547, 433 N.W.2d 282, 285 (1988); Ching v. Ching, 751 P.2d 93, 96 (Haw.App.1988). Both cases conclude that an agreement between the parties as to child support is not an exceptional circumstance justifying deviations from the guidelines, where the agreement requires support less than that called for by the guidelines. We agree with these holdings.\\nLeonard's second argument is that the court abused its discretion in setting child support after the one year specified in the parties' agreement at $480 per month, rather than at 20% of Leonard's then monthly income.\\nWe find no abuse of discretion. First, the trial court's reluctance to express child support as a percentage of monthly income rather than a fixed sum seems soundly based. The regulations issued by the Federal Office of Child Support Enforcement pursuant to the Federal Child Support Enforcement Amendments of 1984 require that state guidelines \\\"be based on specific, descriptive and numeric criteria and result in a computation of the support obligation.\\\" 45 CFR \\u00a7 302.56(c) (1987). Second, it would be an obvious burden on the state child support enforcement agency to recalculate the amount of the child support due based on each month's varying income figures. As a practical matter it may be that the best that can be done is to make a prediction of annual income for the foreseeable future and enter a specific award based upon that prediction, with the understanding that the award is subject to prospective modification.\\nThe judgment is AFFIRMED.\\n. Leonard argued: (1) that parties should be allowed to alter Rule 90.3 by contract; (2) that workers' compensation benefits are not \\\"income\\\" under Rule 90.3; (3) that under the circumstances of this case, Rule 90.3 should have been varied; (4) that the yearly variance agreed to by the parties was reasonable; and (5) that a court cannot approve only part of a particular contract.\\n. Justices Rabinowitz and Matthews dissented from the majority's conclusion. 655 P.2d at 733-35.\\n. Civil Rule 90.3 was adopted effective August 1, 1987.\\n. Pub.L. No. 98-378, \\u00a7 18(a), 98 Stat. 1321 (1984) (codified at 42 U.S.C. \\u00a7 667 (Supp.1987)) (amending Title IV-D of the Social Security Act).\\n. In 1985, the average court-ordered child support award was only $2,390 per year, or $199 per month. Bureau of the Census, U.S. Dep't of Commerce, Child Support and Alimony: 1985, Current Population Reports, Special Studies, Series P-23, No. 152 at 1 (1987). This figure represents approximately one-fourth of the amount spent on children in a middle income household, and the resulting standard of living is only 80% of the poverty level. See C. Brack-ney, Battling Inconsistency and Inadequacy: Child Support Guidelines in the States, 11 Harv. Women's LJ. 197, 199 (1988).\\n. The legislature in 1984 enacted AS 47.23.065, which provides:\\n(a) A custodian of a child, including a custodial parent, owes a duty to that child to ensure that child support is paid by a noncustodial parent who is obligated to pay it. An agreement to waive past or future child support, made between an obligor and a person who is entitled to receive support on behalf of an obligee, is not enforceable unless\\n(1) the agreement is put in writing at the time the agreement is made; and\\n(2) the agreement is signed at the time it is made by both the obligor and the person acting for the obligee.\\n(b) When the right to receive child support has been assigned to a governmental entity, an agreement under (a) of this section that has not been adopted as an administrative order of the agency is not effective during a period when the obligee is receiving public assistance under AS 47.25.310-47.25.420.\\n(c) In a separation, dissolution, or divorce proceeding, a court may not accept a waiver of support by a custodial parent without proof that the custodial parent can support the needs of the child adequately.\\nThis statute was enacted after Malekos was decided, but before promulgation of Civil Rule 90.3. One purpose of the statute is evidently to limit this court's holding in Malekos by requiring signed, written agreements waiving child support, as well as a judicial finding that the custodial parent can support the needs of the child adequately. While it is reasonably arguable that the legislature in enacting this statute intended a positive declaration that signed, written waivers of child support would be effective where the custodial parent could support the needs of the child adequately, we do not so interpret the statute. The legislative findings accompanying the enactment, ch. 144, \\u00a7 1, Temporary and Special Acts and Resolutions of 1984, speak of enhancing the efforts of those who are seeking to enforce the payment of child support obligations, the hardship experienced by children and families who must rely on support from a non-custodial parent, and the cost that must be borne by the general public because of inadequate support from non-custodial parents. No mention is made of the benefits which might flow from allowing parents to enter into agreements waiving child support. Thus, the mere fact that an agreement may comply with this statute does not mean that it is free from the operation and effect of Rule 90.3. Our holding that parties cannot by contract evade the operation of Rule 90.3 therefore does not conflict with this statute.\"}"

alaska/10400484.json

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+"{\"id\": \"10400484\", \"name\": \"Arlandra C. UPTON, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Upton v. State\", \"decision_date\": \"1988-02-05\", \"docket_number\": \"No. A-2152\", \"first_page\": \"386\", \"last_page\": \"388\", \"citations\": \"749 P.2d 386\", \"volume\": \"749\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Court of Appeals\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T21:37:21.054945+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BRYNER, C.J., and COATS and SINGLETON, JJ.\", \"parties\": \"Arlandra C. UPTON, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Arlandra C. UPTON, Appellant, v. STATE of Alaska, Appellee.\\nNo. A-2152.\\nCourt of Appeals of Alaska.\\nFeb. 5, 1988.\\nWilliam F. Morse, Asst. Public Defender, and Dana Fabe, Public Defender, Anchorage, for appellant.\\nMarcia H. Bissell, Asst. Dist. Atty.., Dwayne W. McConnell, Dist. Atty., Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee.\\nBefore BRYNER, C.J., and COATS and SINGLETON, JJ.\", \"word_count\": \"896\", \"char_count\": \"5695\", \"text\": \"OPINION\\nBRYNER, Chief Judge.\\nArlandra C. Upton was convicted following a jury trial of one count of misconduct involving a controlled substance in the third degree, in violation of AS 11.71.-030(a)(2) (sale of marijuana to a minor). The offense is a class B felony. AS 11.71.-030(b). Because Upton had two previous felony convictions, he was subject to a presumptive term of six years. AS 12.55.-125(d)(2).\\nPrior to sentencing, Upton established two applicable mitigating factors: that his conduct was among the least serious in its class, AS 12.55.155(d)(9), and that only a small amount of marijuana was involved, AS 12.55.155(d)(14). The state established one aggravating factor: that Upton was on probation when he committed this offense. AS 12.55.155(c)(20).\\nRelying on the mitigating factors he had established, Upton argued below that his case should be referred to the three-judge panel for imposition of a sentence of less than three years. Alternatively, Upton urged the sentencing court to impose a three-year term \\u2014 the maximum reduction of the presumptive term permitted without referral to the three-judge panel. Superior Court Judge Ralph E. Moody declined to refer Upton's case to the three-judge panel. Judge Moody sentenced Upton to an adjusted presumptive term of five years. Upton appeals this sentence as excessive. We affirm.\\nOn January 30, 1987, Upton approached two boys, ages fourteen and fifteen, on Fourth Avenue in Anchorage and sold them approximately one-half gram of marijuana for ten dollars. At the time, Upton was thirty-two years of age. He had two prior felony convictions: a 1986 conviction in Alaska for burglary in the second degree, and a 1979 burglary conviction in Illinois. Upton was on probation for the most recent burglary. He had been released on probation after serving a fifteen month jail sentence; the release had occurred less than two months before the current offense.\\nOn appeal, Upton emphasizes that his offense involved only a minuscule quantity of marijuana, a drug that has been designated in the lowest category of controlled substances. Upton argues that in light of these circumstances, the sentencing court gave insufficient emphasis to the mitigated nature of his case. Upton urges us to hold that, at a minimum, the six-year presumptive term should have been reduced to no more than three years.\\nUpton's argument conflicts with our holding in Juneby v. State, 641 P.2d 823 (Alaska App.1982), modified in part, 665 P.2d 30 (Alaska App.1983). In Juneby, we emphasized the need for moderation in the adjustment of presumptive terms when aggravating and mitigating factors are established:\\nUnless the provisions of AS 12.55.155 are adhered to strictly, and unless a measured and restrained approach is taken in the adjustment of presumptive sentences for both aggravating and mitigating factors, then the prospect of attaining the statutory goal of uniform treatment for similarly situated offenders would quickly be eroded, the potential for irrational disparity in sentencing would threaten to become reality, and the revised code's carefully fashioned system of escalating penalties for repeat offenders would be rendered utterly ineffective.\\nJuneby, 641 P.2d at 833.\\nHere, although Upton was convicted of selling only a small quantity of a schedule VIA controlled substance, the sale appears to have been initiated by Upton and involved two children who were fourteen and fifteen years of age \\u2014 considerably below the nineteen-year-old threshold for the offense. Upton himself was thirty-two years of age and was a mature and experienced offender. Moreover, the mitigating factors in this case are offset by an aggravating factor \\u2014 that Upton was on probation. In fact, Upton had been on probation for only a short period of time. He was released after serving a substantial period of time in jail. These considerations are particularly important, because, as Judge Moody correctly noted, they provide a strong indication that Upton's chances for rehabilitation are relatively poor and that a substantial term of imprisonment is necessary for purposes of personal deterrence. Cf. McReynolds v. State, 739 P.2d 175 (Alaska App. 1987) (requiring maximum reduction of the applicable first-offense five-year presumptive term for sale of heroin, a class A felony, when the evidence showed that the defendant sold a minute quantity to a friend, without profit, and when the sentencing court expressly found the defendant's conduct to be among the least serious in its class, without any offsetting aggravating factors).\\nThe extent to which a presumptive term should be adjusted in light of aggravating and mitigating factors is a matter within the sound discretion of the sentencing court. We are empowered to reverse the sentencing court's decision only when it is clearly mistaken. Juneby v. State, 641 P.2d at 834. In the present case, having independently reviewed the entire sentencing record, we conclude that the adjusted term of five years is not clearly mistaken.\\nThe sentence is AFFIRMED.\\n. Because Upton's three-judge panel argument is based solely on the mitigating factors he established below, our decision that the sentence actually imposed is not clearly mistaken necessarily resolves the three-judge panel issue,\"}"

alaska/10402189.json

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+"{\"id\": \"10402189\", \"name\": \"Chester Erie VAN METER, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Van Meter v. State\", \"decision_date\": \"1987-10-09\", \"docket_number\": \"No. A-1510\", \"first_page\": \"385\", \"last_page\": \"392\", \"citations\": \"743 P.2d 385\", \"volume\": \"743\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Court of Appeals\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T21:54:19.517955+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BRYNER, C.J., and COATS and SINGLETON, JJ.\", \"parties\": \"Chester Erie VAN METER, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Chester Erie VAN METER, Appellant, v. STATE of Alaska, Appellee.\\nNo. A-1510.\\nCourt of Appeals of Alaska.\\nOct. 9, 1987.\\nChristine S. Schleuss, Anchorage, for appellant.\\nRobert D. Bacon, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee.\\nBefore BRYNER, C.J., and COATS and SINGLETON, JJ.\", \"word_count\": \"4018\", \"char_count\": \"24872\", \"text\": \"OPINION\\nBRYNER, Chief Judge.\\nChester Erie Van Meter was tried without a jury and convicted of sexual abuse of a minor in the second degree. See AS 11.41.420. Superior Court Judge Charles K. Cranston sentenced Van Meter to four years with all but nine months suspended. Van Meter appeals, contending that the trial court erred in denying a motion to hold an evidentiary hearing on the admissibility of polygraph evidence, in admitting an out-of-court videotaped statement made by the victim, in incorrectly determining the applicable culpable mental state for the offense, and in admitting evidence of emotional trauma suffered by the victim following the offense. We affirm.\\nThe charges in this case stemmed from an incident in which Van Meter placed his hand inside a six-year-old girl's underpants. Van Meter, a seventy-nine-year-old man, was staying with the R. family while he vacationed in Alaska. On September 14, 1985, Van Meter played a game he called \\\"gallopy-trot\\\" with the victim, A.R. Van Meter would bounce A.R. on his knees while reciting a rhyme and then drop the child to the floor. Then he would pick her up and tickle her. Ms. R., who was present in another room, saw some of the horseplay and did not like it because it looked rough. However, she did not stop the game.\\nThe following day A.R.'s sister told her mother that A.R. said Van Meter touched her \\\"private parts.\\\" Ms. R. asked A.R. if it was true. A.R. responded that Van Meter had hurt her. A subsequent medical examination indicated that A.R. had abnormal scratches and redness in and around her vaginal area. The injuries were consistent with A.R. scratching herself or being scratched with some kind of semi-sharp object such as a fingernail, and with the insertion of an adult finger into the genitals.\\nThe police were notified of A.R.'s allegation. On the evening of September 15 and the morning of September 16,1985, Alaska State Trooper Wayne Von Ciasen interrogated Van Meter. Van Meter was indicted for sexual abuse of a minor in the first degree on September 19, 1985.\\nPolygraph Evidence\\nPrior to trial, Van Meter was released on bail and returned to his residence in Fayetteville, Arkansas. He returned to Alaska a few days before his trial date of February 6, 1986. Van Meter took a polygraph examination in Anchorage on February 1, 1986.\\nVan Meter moved for admission of the polygraph examination results. On the day before trial, Judge Cranston presided over a hearing on the motion. Van Meter requested an evidentiary hearing on the admissibility of the polygraph results. He made the following offer of proof as to what he would try to establish:\\nI would think, [it] would be the most expeditious [and] efficient for me to bear the burden of proof to show, through experimentation and/or other information or evidence, that the results are reliable, that the examiner is qualified and that he is interpreting the tests in this case properly. I would think that if that is found by the Court and the Court then would be able to render an opinion as to whether or not the results are sufficiently reliable to be admitted in the court.\\nI expect that I would be calling just one witness, that would be Mr. Slisz from Anchorage.\\nJudge Cranston declined Van Meter's request for an evidentiary hearing and ruled the polygraph evidence inadmissible.\\nAt the close of his trial testimony, Van Meter renewed his request for admission of the polygraph evidence and for an eviden-tiary hearing on the issue. Judge Cranston again rejected Van Meter's requests. On appeal, Van Meter contends that the trial court erred in excluding the polygraph evidence without allowing an evidentiary hearing to establish its reliability.\\nVan Meter acknowledges that in Pulakis v. State, 476 P.2d 474 (Alaska 1970), the Alaska Supreme Court found insufficient evidence of reliability to warrant the admission of polygraph examination results at trial. Van Meter notes, however, that the court left the door open for future re-examination of its holding. The court stated:\\nThe central problem regarding admissibility is not that polygraph evidence has proved unreliable, but that polygraph proponents have not yet developed persuasive data demonstrating its reliability. Little worthwhile experimentation has been done to determine the reliability of polygraph evidence. This is not to say that the worth of polygraph evidence cannot ever be proved to the satisfaction of this court.\\n476 P.2d at 479. The court further stated, \\\"Judicial acceptance of polygraph tests must await the results of more persuasive experimental proof of reliability.\\\" Id. See also Troyer v. State, 614 P.2d 313, 319 n. 12 (Alaska 1980).\\nUnder Pulakis and Troyer, Van Meter was obligated to make at least a colorable showing that, since the supreme court's decision in Pulakis, additional experimental evidence has come to light establishing that the polygraph technique is a scientifically reliable process:\\nIt has been suggested that recent tests indicate the polygraph technique is a reliable process. See Tarlow, Admissibility of Polygraph Evidence in 1975: An Aid in Determining Credibility in a Perjury-Plagued System, 26 Hastings L.J. 917, 927-34 (1975). Bodine, Polygraphs Take the Stand, The National Law Journal, April 14, 1980, at 1, col. 1. Without sufficient foundational evidence, we are unable to make an informed decision concerning the reliability of the technique today. Here, the defendants failed to provide an evidentiary basis to establish the reliability of the polygraph technique.\\nTroyer, 614 P.2d at 319 n. 12. Despite his request for an evidentiary hearing, Van Meter never offered to make such a showing.\\nThe only specific offer of proof made by Van\\\" Meter in requesting an evidentiary hearing was in connection with his motion for a new trial. Van Meter appended to his motion the results of his exam, as interpreted by Richard Slisz of Alaska Polygraph Service, and Mr. Slisz's resume. While this may be construed as an offer of proof aimed at establishing Slisz's qualifications as an examiner and the accuracy of the result of the examination in this case, the offer has utterly no bearing on the broader, preliminary issue that must be addressed under Pulakis and Troyer: the general reliability of polygraph testing as a scientific process.\\nNor does Van Meter's argument on appeal provide any indication that he would be prepared to address this issue at an evidentiary hearing. In the absence of such an offer, we conclude that Van Meter's request for an evidentiary hearing on the admissibility of the polygraph evidence was properly denied and that the proposed polygraph evidence was correctly deemed inadmissible under Pulakis and Troyer.\\nVideotaped Statement\\nVan Meter argues that it was reversible error for the trial court to admit the videotaped statement made by A.R. to a psychologist two days after the assault. After A.R. testified, the trial court admitted the videotape as a prior consistent statement. See Alaska Rule of Evidence 801(d)(1)(B). The question whether A.R.'s videotaped statement was admissible is controlled by our decision in Nitz v. State, 720 P.2d 55 (Alaska App.1986). In Nitz we stated:\\nRule 801(d)(1)(B) is commonly construed to require that three conditions be met before a prior consistent statement may be admitted as non-hearsay. First, the prior statement must be consistent with testimony given by the declarant at trial. Second, the statement must be admitted to rebut an express or implied charge of recent fabrication or improper influence or motive. Third, the prior statement must be shown to have been made before the asserted improper influence or motive arose, (citations omitted)\\n720 P.2d at 64.\\nVan Meter argues that A.R.'s testimony was inconsistent with her trial testimony, that there was no express or implied charge of recent fabrication, and that a motive to lie existed before A.R. made her statement.\\nThe admissibility of evidence is largely within the trial court's discretion and its rulings will not be overturned in absence of an abuse of discretion. Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980); Eben v. State, 599 P.2d 700, 710 (Alaska 1979). In the present case, the discrepancies between A.R.'s videotaped statement and her trial testimony concerned the clothing she was wearing when she was assaulted, the physical location of one of the assaults, and her ability to use an anatomically correct doll to indicate Van Meter's method of assault. A.R.'s basic description of the assault, however, was not inconsistent. In the videotaped statement and at trial, A.R. stated that she was assaulted while playing the \\\"horsey\\\" game, that Van Meter used his hand for the assault, and that he reached into A.R.'s clothing and hurt her. Under the circumstances, it was well within the ambit of the trial judge's broad discretion to determine that the videotaped statement was a prior consistent statement.\\nThe second condition of admissibility under A.R.E. 801(d)(1)(B) and Nitz \\u2014 a claim of fabrication or improper influence or motive \\u2014 was clearly satisfied in this case by Van Meter's assertions, in both his opening statement and his cross-examination of A.R., that A.R.'s trial testimony was the result of fabrication. In his opening statement Van Meter contended that A.R.'s accounts of the sexual abuse were not consistent. On cross-examination, Van Meter implied that A.R.'s testimony had been influenced by her contacts with the police and the prosecuting attorney. In arguing the admissibility of the videotaped statement at trial, Van Meter's counsel conceded that he was \\\"obviously\\\" suggesting inconsistencies and fabrication.\\nThe third condition of admissibility under A.R.E. 801(dXl)(B) is that an out-of-court statement be recent \\u2014 in other words, that it be made before a motive to fabricate arises. However, in Nitz this court declined to read A.R.E. 801(d)(1)(B) to require automatic exclusion of prior consistent statements made after a motive to testify falsely has arisen. Under Nitz, admission of such evidence becomes a question of relevance for determination on a case-by-case basis. Nitz, 720 P.2d at 67-68. In any event, in the present case Van Meter's attack on A.R.'s credibility implied that she had been influenced to incriminate Van Meter in recent conversations with the police and the prosecution. Even apart from our holding in Nitz, this implication satisfied the recency requirement of A.R.E. 801(dMlXB).\\nWe conclude that A.R.'s videotaped statement was properly admitted as a prior consistent statement under A.R.E. 801(dXlXB).\\nCulpable Mental State\\nVan Meter argues that the trial court erred in failing to apply the correct culpable mental state for the offense of sexual abuse in the second degree. The trial court concluded that Van Meter had knowingly touched A.R. in a sexual manner. In his conclusions of law Judge Cran-ston wrote:\\nThe state has proved beyond a reasonable doubt that:\\na. On or about September 14,1985, at or near Seward, Third Judicial District, State of Alaska;\\nb. That defendant at that time and place was sixteen (16) years of age or older;\\nc. That defendant at that time and place knowingly engaged in sexual contact with A.R.;\\nd. A.R. at that time and place was under thirteen (13) years of age.\\n(Emphasis added.)\\nBased on these conclusions, Judge Cran-ston found Van Meter guilty of sexual abuse of a minor in the second degree: engaging in sexual contact with a child under thirteen. AS 11.41.436(a)(2). \\\"Sexual contact,\\\" as defined in the 1984 amendment to AS 11.81.900(b)(52), means:\\n(A) the defendant's\\n(i) knowingly touching, directly or through clothing, the victim's genitals, anus, or female breast; or\\n(ii) knowingly causing the victim to touch, directly or through clothing, the defendant's or victim's genitals, anus, or female breast;\\n(B) but \\\"sexual contact\\\" does not include acts\\n(i) that may reasonably be construed to be normal caretaker responsibilities for a child, interactions with a child, or affection for a child....\\n(ii) performed for the purpose of administering a recognized and lawful form of treatment that is reasonably adapted to promoting the physical or mental health of the person being treated... .\\nVan Meter argues that Judge Cranston's finding of a knowing touching is not enough to satisfy constitutional due process requirements and that an additional mental element is required for conviction. Van Meter contends that the definition of \\\"sexual contact\\\" should be construed to require proof that the defendant \\\"acted with reckless disregard for the unjustified nature of his conduct.\\\" Flink v. State, 683 P.2d 725, 741 (Alaska App.1984) (Bryner, Chief Judge, concurring and dissenting).\\nVan Meter's argument is not supported by the commentary to the 1984 amendment, which explained the legislative intent in amending the definition of \\\"sexual contact\\\":\\nIn passing SCS for House Bill 299 (Judiciary), an Act relating to the definition of \\\"sexual contact\\\" and \\\"sexual penetration\\\", the legislature intends to change the result reached by the Alaska Court of Appeals in Flink v. State. In the Flink case, the court ruled that the legislature intended that crimes involving sexual contact be specific intent crimes. In adopting SCSHB 299 (Judiciary), the legislature intends to reaffirm that crimes involving sexual contact and penetration are general intent crimes. The amendments contained in this bill are intended to remove any perceived ambiguity in existing law.\\n1984 Senate Journal 3387 (citation omitted) (emphasis added).\\nNevertheless, the actual language of the 1984 amendment is arguably ambiguous. Subparagraph (A) of the statutory definition clearly specifies the mental state that governs the defendant's conduct: the conduct must be \\\"knowing.\\\" Less clear, however, is whether any culpable mental state should attach to the circumstances described in subparagraph (B). This section excludes from the definition of \\\"sexual contact\\\" touchings that fall within the definition of subparagraph (A) when those touchings occur under circumstances deemed by the legislature to be justified. Although the language of subparagraph (B) does not provide for it, Van Meter urges that a culpable mental state should apply separately to the circumstances described in the subparagraph, so as to require not only that the defendant engage in a knowing touching of the type described in subparagraph (A), but also that the defendant be aware that the touching is not justified under subsection (B).\\nWe decline to interpret the statute in this manner, since such an interpretation so obviously conflicts with the intent expressed by the legislature in adopting the current definition of \\\"sexual contact.\\\" In our view, a more reasonable reading of the statute would attach no separate culpable mental state requirement to the circumstances described in subparagraph (B).\\nVan Meter asserts, however, that unless a separate culpable mental state requirement is attached to the circumstances described in subparagraph (B), the current statutory definition of sexual contact would suffer from the same constitutional problems that were of concern to this court in\\nFlink. There, we found difficulty with the former definition of \\\"sexual contact\\\":\\nAlthough the statutory definition of sexual contact requires knowing conduct and therefore includes an element of intent, that element does not help to differentiate between the wide variety of innocent touchings and harmful touchings potentially covered by the broad definition of sexual contact. Thus, the intent element included in the statute is not a criminal intent and does \\u00abt satisfy the requirement of mens rea \\u2014 that is, a culpable mental state, or an awareness of wrongdoing.... An awareness of wrongdoing might be unnecessary if the conduct prohibited by the statute was itself necessarily harmful \\u2014 malum in se. However, the range of conduct prohibited is so broad that the offense is malum prohibitum, and an awareness of wrongdoing must be included as a necessary element.\\nFlink, 683 P.2d at 739 (citations omitted) (Bryner, C.J., concurring and dissenting).\\nIn contrast, the amended statutory definition eliminates these problems: in sub-paragraph (A), the amended definition provides for a specific mental state governing conduct; in subparagraph (B), the amended definition limits the circumstances in which otherwise impermissible touchings may be proscribed. Thus, the legislature has responded to the problem of differentiating between a \\\"wide variety of innocent touchings and harmful touchings,\\\" by including in AS 11.81.900(b)(52)(B) limiting language that broadly excludes from the definition of \\\"sexual contact\\\" acts that \\\"may reasonably be construed to be normal caretaker responsibilities for a child, interactions with a child, or affection for a child,\\\" as well as acts \\\"performed for the purpose of administering recognized and lawful forms of treatment....\\\"\\nNor can the amended definition be construed to result in an inappropriate shift to the defendant of the burden of proof with respect to justification. In its commentary, the legislature stated:\\nThe legislature intends that the exceptions listed in revised AS 11.81.-900(b)(52)(B) and AS 118.81.900(b)(53)(B) shall not be part of the prosecution's pleading and proof in its case-in-chief. Rather, these exceptions must be raised by the defendant. If raised, the prosecution bears the burden of disproving the exception beyond a reasonable doubt. The legislature intends that the exceptions operate as other defenses provided for in the criminal code. See AS 11.81.-900(b)(15).\\nCommentary to AS 11.81.900(b)(52) and (53), 1984 Senate Journal at 3388 (May 30, 1984). Thus, when \\\"some evidence\\\" is presented to indicate that a touching was justified under subparagraph (B), the state must prove beyond a reasonable doubt the absence of justification. See AS 11.81.-900(b)(15).\\nIn short, under the current statutory definition of \\\"sexual contact,\\\" the offense of sexual abuse of a minor in the second degree may properly be established by evidence proving knowing conduct within the scope of AS 11.81.900(b)(52)(A). No secondary culpable mental state need be established with respect to surrounding circumstances. If, however, some evidence of justification is advanced in the record, the state must bear the additional burden of establishing that the defendant's conduct did not fall within the exclusions of AS 11.81.900(b)(52)(B).\\nIn the present case, we believe that the standard applied by Judge Cranston was compatible with that adopted by the legislature. In his findings of fact Judge Cran-ston stated that the evidence showed beyond a reasonable doubt that while playing \\\"gallopy-trot\\\" or during tickling occurring as part of that game, Van Meter placed his hand inside A.R.'s underwear, knowingly causing contact between his hand or fingers and A.R.'s genitals. Judge Cranston further found that the nature of the physical trauma to A.R. showed beyond a reasonable doubt that Van Meter knew that his conduct involved sexual contact. These findings clearly establish that, in Judge Cranston's view, Van Meter's contact with A.R.'s vagina did not occur through the child's clothing; rather, Van Meter deliber ately placed his hand inside A.R.'s underwear. It is thus apparent that the judge unequivocally rejected Van Meter's defense, which was based on the theory that, as part of the \\\"gallopy-trot\\\" game, some casual but innocent touching technically qualifying as \\\"sexual contact\\\" may have occurred. We find no error.\\nVictim's Mental State\\nVan Meter's final argument concerns the admission of evidence of A.R.'s post-sexual-abuse trauma. Over Van Meter's objection, the trial judge permitted A.R.'s mother to testify:\\nMS. TURNER: After Mr. Van Meter left your home, has the child had any emotional problems?\\nMRS. R: Yes.\\nMS. TURNER: Could you just describe that briefly for the Court please?\\nMRS. R: Terrible temper tantrums and nightmares screaming at night. She said that Earl was under her bed and he was going to get her. Sucking her thumb, wetting her pants, and what we call be-bopping (ph) where she sits like a \\u2014 she sits on the couch and she bangs her head on the wall (indiscernible) rocking.\\nMS. TURNER: Has the child been in therapy for those things?\\nMRS. R: Yes ma'am.\\nVan Meter argues that this evidence was irrelevant and therefore inadmissible. He contends that, absent evidence of A.R.'s emotional condition prior to the sexual assault, the evidence relating to her post-assault behavior should have been excluded. This argument is frivolous in context. While the prosecution did not expressly ask when A.R. first began to display the emotional problems described in her mother's testimony, the obvious implication of the testimony is that the problems first arose after A.R.'s contact with Van Meter. Indeed, it is difficult to understand how A.R. could have awakened from nightmares, screaming that Van Meter was under her bed if the episodes had occurred prior to her meeting Van Meter. Van Meter was, of course, free on cross-examination of A.R.'s mother to pinpoint the time frame for A.R.'s behavior. He elected not to do so.\\nAlaska Rule of Evidence 401 provides a broad definition of relevance: \\\"evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\\\" We find that Judge Cran-ston did not abuse his discretion in admitting the challenged evidence as relevant. See, e.g., Denison v. Anchorage, 630 P.2d 1001 (Alaska App.1981); Byrne v. State, 654 P.2d 795 (Alaska App.1982).\\nThe judgment of the superior court is AFFIRMED.\\n. Richard W. Slisz is the polygraph examiner who administered the examination to Van Meter on February 1, 1986.\\n. We thus uphold the trial court's denial of Van Meter's motion for an evidentiary hearing for reasons other than those stated by the court below. Rutherford v. State, 605 P.2d 16, 21 n. 12 (Alaska 1979); Kizzire v. State, 715 P.2d 272, 273 n. 1 (Alaska App.1986). See also Pistro v. State, 590 P.2d 884, 888 n. 13 (Alaska 1979). We affirm on the narrow ground that Van Meter has not shown that he was prepared to provide an evidentiary basis to establish the reliability of the polygraph process. We need not determine whether Judge Cranston was correct in finding that Van Meter's motion was untimely or in construing this court's decision in Leonard v. State, 655 P.2d 766 (Alaska App.1982), to foreclose an evidentiary hearing.\\n. A.R.E. 801(d)(1)(B) provides:\\n(d) Statements Which Are Not Hearsay. A statement is not hearsay if (1) Prior Statement by Witness. The de-clarant testifies at the trial or hearing and the statement is\\n(B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive....\\n. Even if Van Meter could make a persuasive argument that the prior statement was not consistent, the evidence would have been admissible as a prior inconsistent statement. In this regard, A.R.E. 801(d)(1)(A) provides:\\n(d) Statements Which Are Not Hearsay. A statement is not hearsay if\\n(1) Prior Statement by Witness. The de-clarant testifies at the trial or hearing and the statement is\\n(A) inconsistent with his testimony....\\n. Prior to amendment in 1984, \\\"sexual contact\\\" was defined as:\\n(A) the intentional touching, directly or through clothing, by the defendant of the victim's genitals, anus, or female breast; or\\n(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....\\nFormer AS 11.81.900(b)(51).\\n. \\\"Knowing\\\" is, in turn, defined in AS 11.81.-900(a)(2), which provides in relevant part:\\n[A] person acts \\\"knowingly\\\" with respect to conduct or to a circumstance described by a provision of law defining an offense when the person is aware that the conduct is of that nature or that the circumstance exists; when knowledge of the existence of a particular fact is an element of an offense, that knowledge is established if a person is aware of a substantial probability of its existence, unless the person actually believes it does not exist; a person who is unaware of conduct or a circumstance of which the person would have been aware had that person not been intoxicated acts knowingly with respect to that conduct or circumstance....\"}"

alaska/10408636.json

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+"{\"id\": \"10408636\", \"name\": \"Glenn J. KALMAKOFF, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee\", \"name_abbreviation\": \"Kalmakoff v. Municipality of Anchorage\", \"decision_date\": \"1986-02-21\", \"docket_number\": \"No. A-920\", \"first_page\": \"261\", \"last_page\": \"263\", \"citations\": \"715 P.2d 261\", \"volume\": \"715\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Court of Appeals\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T18:57:04.599082+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BRYNER, C.J., and COATS and SINGLETON, JJ.\", \"parties\": \"Glenn J. KALMAKOFF, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.\", \"head_matter\": \"Glenn J. KALMAKOFF, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.\\nNo. A-920.\\nCourt of Appeals of Alaska.\\nFeb. 21, 1986.\\nSamuel J. Fortier and Dagmar C. Mikko, Fortier & Mikko, Anchorage, for appellant.\\nScott Jay Sidell, Asst. Mun. Pros., James Ottinger, Mun. Pros., and Jerry Wertz-baugher, Mun. Atty., Anchorage, for appel-lee.\\nBefore BRYNER, C.J., and COATS and SINGLETON, JJ.\", \"word_count\": \"1756\", \"char_count\": \"10646\", \"text\": \"OPINION\\nBRYNER, Chief Judge.\\nGlenn J. Kalmakoff was convicted, following a jury trial, of driving while intoxicated (DWI), in violation of AMC 09.28.020, and reckless driving, in violation of AMC 09.28.010. On appeal, Kalmakoff challenges the validity of the trial court's instruction concerning the statutory presumptions that apply to breath test results. He also questions the sufficiency of the evidence with respect to the charge of reckless driving.\\nAfter arresting Kalmakoff for DWI, Anchorage police officers subjected him to an intoximeter test and obtained a reading of .102. Uncontroverted testimony at Kal-makoff's trial established an inherent error factor of .01 for the intoximeter instrument, indicating that, if Kalmakoff's test was correctly performed, his true score could have been as low as .092 or as high as .112. Based on this testimony, Kalma-koff moved for a judgment of acquittal on the DWI charge and argued, alternatively, that it would be improper to instruct the jury on the statutory presumptions applicable to a breath test result of .10 or greater. Kalmakoff also argued alternatively that, if the jury was instructed on the presumption of intoxication, it should be required to find beyond a reasonable doubt that Kal-makoff's breath alcohol content was .10 or greater before relying on that presumption.\\nDistrict Court Judge Glen C. Anderson denied Kalmakoff's motion for a judgment of acquittal but found that, in view of the marginal intoximeter reading, Kalmakoff's DWI charge could be presented to the jury only on the theory that Kalmakoff was actually under the influence while driving. See AMC 09.28.020(B)(1). Judge Anderson declined to instruct the jury on the alternative statutory theory of DWI, under which Kalmakoff could have been convicted if the jury found that he had driven with a breath alcohol content of .10 or greater. See AMC 09.28.020(B)(2).\\nJudge Anderson instructed the jury on the presumptions applicable to breath test results in Jury Instruction No. 10, which read as follows:\\nUnder Alaska law, when a person is alleged to be operating a motor vehicle under the influence of intoxicating liquor, the amount of alcohol in the person's breath at the time alleged, as shown by chemical analysis of the person's breath, may give rise to the following inferences:\\n(1) If there was 0.05 grams of alcohol per 210 liters of breath or less, it may be inferred that the person was not under the influence of intoxicating liquor.\\n(2) If there was in excess of 0.05 grams but less than 0.10 grams of alcohol per 210 liters of breath, that fact, standing alone, gives rise to no inference.\\n(3) If there was 0.10 grams of alcohol per 210 liters of breath or greater, it may be inferred that the person was under the influence of intoxicating liquor.\\nIf you find that a breath examination accurately established the defendant's breath alcohol content to be one-tenth of a gram (0.10) of alcohol per 210 liters of breath or greater, and if you find no other believable evidence of his condition, then you may rely solely on the test as a basis for finding that the defendant was under the influence of intoxicating liquor at the time charged.\\nHowever, if you do find that there is other believable evidence showing that the defendant may not have been under the influence of intoxicating liquor at the time charged then you must decide the issue based on a careful consideration of all the facts and circumstances in evidence bearing on the defendant's condition, no longer relying exclusively on the results of the breath test.\\nThis instruction incorporated the substance of the statutory presumption set out in AMC 09.28.023.\\nKalmakoff contends on appeal that the jury should not have been instructed on the portion of the statutory presumption that applies to a breath alcohol content of .10 or above. He alternatively argues that Jury Instruction No. 10 should have required the jury to find beyond a reasonable doubt that his breath alcohol content was .10 or greater before it was permitted to rely on the statutory presumption.\\nKalmakoff's conclusion that Jury Instruction No. 10 was improper seems to be based on three premises: first, that a breath alcohol content of .10 or greater is an essential element of DWI, second, that Jury Instruction No. 10 creates a mandatory presumption with respect to that element, and, third, that the instruction shifts the burden of proof to the accused.\\nWe find all three of Kalmakoff's premises to be mistaken. In our view, Jury Instruction No. 10, when given a common sense reading, does not create a mandatory presumption. Rather, it establishes nothing more than a permissive inference. In this regard, the instruction substantially complies with the requirements of Evidence Rule 303(a)(1), which governs presumptions against the accused in criminal cases.\\nSimilarly, nothing in the plain language of Jury Instruction No. 10 can be said to shift the burden of proof or of persuasion to the accused. Finally, we note that, contrary to the position taken by Kalmakoff on appeal, a breath alcohol level of .10 or greater is simply not an element of DWI under the specific theory of the offense submitted to the jury. The jury was allowed to consider Kalmakoff's guilt only under AMC 09.28.020(B)(1), under which driving while under the actual influence of intoxicating liquor is prohibited, without regard to any specific level of breath or blood alcohol. The evidence of Kalmakoff's breath alcohol reading was obviously relevant on this issue; Jury Instruction No. 10 simply allowed the jury to evaluate the significance of that evidence. See Byrne v. State, 654 P.2d 795 (Alaska App.1982); Denison v. Anchorage, 630 P.2d 1001 (Alaska App.1981).\\nConsidering the limited theory on which Kalmakoff s case was submitted to the jury, we conclude that the trial court did not commit error in giving Instruction No. 10 to the jury. Doyle v. State, 633 P.2d 306 (Alaska App.1981). We further conclude that the court did not err in declining to instruct that proof beyond a reasonable doubt was required as a predicate for consideration of the applicable presumptions.\\nKalmakoff raises additional points with respect to his conviction for reckless driving. We need not address these issues. Kalmakoffs reckless driving conviction was based on precisely the same conduct as his DWI. In arguing the reckless driving charge to the jury, the prosecution characterized it as being, in effect, a lesser-included offense of the DWI charge. Moreover, the jury was told that Kalmakoff's intoxication could be considered as a basis for finding that Kalmakoff had driven recklessly. Under these limited circumstances, we believe that the offense of reckless driving must be deemed to have merged with the offense of DWI, and we hold that it was error to enter a separate judgment of conviction against Kalmakoff on the reckless driving charge. See Tuckfield v. State, 621 P.2d 1350 (Alaska 1981).\\nThe conviction of DWI is AFFIRMED. The conviction of reckless driving is VACATED.\\n. Anchorage Municipal Code 09.28.023, in turn, reflects the presumption created under state law in AS 28.35.033. The trial court's instruction departs from the statutory language in only one minor respect: the phrase, \\\"as shown by chemical analysis of the person's breath,\\\" which appears in the first paragraph of Jury Instruction No. 10, is not contained in the text of either the Municipal Code or the Alaska Statutes. This phrase appears to have been inadvertently in-eluded in the instruction from prior versions of the statutory provisions. While the discrepancy is not significant in the present case, we believe it would be best, in the interest of accuracy, if the extraneous language were omitted in future DWI instructions.\\n. Alaska Rule of Evidence 303(a)(1) provides:\\nPresumptions directed against an accused. In all criminal cases when not otherwise pro vided for by statute, by these rules or by judicial decision, a presumption directed against the accused imposes no burden of going forward with evidence to rebut or meet the presumption and does not shift to the accused the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast. However, if the accused fails to offer evidence to rebut or meet the presumption, the court must instruct the jury that it may, but is not required to, infer the existence of the presumed fact from the proved fact, but no mention of the word \\\"presumption\\\" shall be made to the jury. If the accused offers evidence to rebut or meet the presumption, the court may instruct the jury that it may, but is not required to, infer the existence of the presumed fact from the proved fact, but no mention of the word \\\"presumption\\\" shall be made to the jury.\\nJury Instruction No. 10 arguably deviates from the requirements of Rule 303(a)(1) in that it does not expressly inform the jury that it \\\"may, but is not required to,\\\" infer the presumed fact from the proved fact. However, the permissive nature of the inference established by Jury Instruction No. 10 is unmistakably expressed in the final paragraphs of the instruction. Nevertheless, we believe that future versions of the instruction should be amended to comply literally with the requirements of A.R.E. 303(a)(1).\\n. In so holding, we find that the municipality substantially complied with applicable foundational prerequisites for admission of the intox-imeter results, see 7 AAC 30.020(b), and we reject Kalmakoff's claim to the contrary.\\n. We recognize, as Judge Anderson apparently did below, that a different conclusion might be required if Kalmakoff's case had been submitted to the jury on the theory that he committed the offense by driving with a breath alcohol content of .10 or greater. Compare State v. Boehmer, 1 Haw.App. 44, 613 P.2d 916 (1980), State v. Bjornsen, 201 Neb. 709, 271 N.W.2d 839 (1978), and State v. Clark, 286 Or. 33, 593 P.2d 123 (1979), with State v. Rucker, 297 A.2d 400 (Del.1972), and State v. Shaping, 312 N.C. 421, 323 S.E.2d 350 (1984). State v. Keller, 36 Wash.App. 110, 672 P.2d 412 (1983). We need not resolve this issue, because it is not raised in the circumstances of this case.\"}"

alaska/10413642.json

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+"{\"id\": \"10413642\", \"name\": \"Arthur JENSEN, Petitioner, v. ALASKA VALUATION SERVICE, INC., Respondent\", \"name_abbreviation\": \"Jensen v. Alaska Valuation Service, Inc.\", \"decision_date\": \"1984-08-24\", \"docket_number\": \"No. S-86\", \"first_page\": \"161\", \"last_page\": \"165\", \"citations\": \"688 P.2d 161\", \"volume\": \"688\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T20:01:04.172045+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BURKE, C.J., and RABINOW-ITZ, COMPTON and MOORE, JJ.\", \"parties\": \"Arthur JENSEN, Petitioner, v. ALASKA VALUATION SERVICE, INC., Respondent.\", \"head_matter\": \"Arthur JENSEN, Petitioner, v. ALASKA VALUATION SERVICE, INC., Respondent.\\nNo. S-86.\\nSupreme Court of Alaska.\\nAug. 24, 1984.\\nTimothy Byrnes, Hughes, Thorsness, Gantz, Powell & Brundin, Anchorage, for petitioner.\\nLewis Gordon, Baily & Mason, Anchorage, for respondent.\\nBefore BURKE, C.J., and RABINOW-ITZ, COMPTON and MOORE, JJ.\", \"word_count\": \"2569\", \"char_count\": \"15468\", \"text\": \"OPINION\\nCOMPTON, Justice.\\nIn this petition we are asked to decide whether the use of corporate checks is sufficient, in and of itself, to inform the recipient of the checks that it deals with a corporation rather than an individual. Although the monetary value of this case is inconsequential, we agreed to hear it because the question at issue is likely to recur. Alaska R.App.P. 304. We hold that the question is ultimately one of fact, and conclude that the trial court did not err in finding that in this case corporate checks did not provide sufficient notice of the existence of a corporation.\\nI. FACTUAL AND PROCEDURAL BACKGROUND\\nArthur Jensen, Inc. was an Alaska corporation, incorporated in 1972, engaged in the housing construction business. Arthur Jensen owned over half of the corporation's stock and served as its president. The corporation became insolvent in 1980.\\nAlaska Valuation Service (AVS) conducted appraisals for Arthur Jensen from the early 1970s until 1979. On July 19, 1979, Jensen ordered by telephone appraisals on five single family homes. AVS was to appraise these residences from plans and blueprints rather than from an actual inspection of the sites. AVS's president, Alfred Ferrara, who took the order, recorded it as being for \\\"Art Jensen.\\\" Invoices for the appraisals were later sent to \\\"Art Jensen, Jensen Builders\\\" at the corporation's Anchorage post office box address. Arthur Jensen, Inc. was not mentioned in AVS's records until late 1979, when Jensen specifically informed AVS of his company's corporate status. Thereafter, a statement of lien filing fee was addressed to Arthur Jensen, Inc. The appraisals were completed but never paid for.\\nIn 1982, AVS filed a complaint for $823.00 against Jensen in small claims court. Jensen admitted the amount of the debt, but denied any personal liability. At trial, Ferrera testified that he had not been aware that Jensen was doing business as a corporation until late 1979. He stated that AVS's records had always shown Jensen as \\\"Arthur Jensen, Jensen Builders,\\\" and that he had assumed that the company was a sole proprietorship. He claimed that \\\"[i]t's just not typical . for most of the builders we do business with to be corporations,\\\" and that it had not occurred to him that Jensen might be incorporated.\\nJensen testified that he had always paid for appraisal services with the corporation's checks, and introduced four checks dated prior to July 1979 into evidence. He also testified that he placed signs with the corporation's name on each of the houses he built. He conceded, however, that appraisals were completed before construction on the houses began. He testified that he could not think of anything besides the checks which might have put AVS on notice that it was dealing with a corporation.\\nThe small claims court concluded that \\\"just writing checks after the fact to a bookkeeper\\\" did not provide AVS with adequate notice of Arthur Jensen's position as an agent of a corporation. It awarded AVS $831.00.\\nJensen appealed the decision to superior court and requested leave to submit the contractor's plans from which the appraisals were made. He alleged that these plans contained information identifying Arthur Jensen, Inc., and would have given AVS notice that it was dealing with a corporation before the actual appraisals could be done. The superior court affirmed the district court ruling without mentioning the request to supplement the record.\\nIn his petition for hearing, Jensen asks that we hold that payments to a creditor by corporate checks over the course of several years adequately notifies that creditor of a company's corporate status.\\nII. JENSEN'S LIABILITY AS AN AGENT FOR AN UNDISCLOSED PRINCIPAL\\nAlthough officers of a corporation will not ordinarily be held personally liable for contracts they make as agents of the corporation, they must disclose their agency and the existence of the corporation before they will be absolved from liability. McCluskey Commissary, Inc. v. Sullivan, 96 Idaho 91, 524 P.2d 1063, 1065 (1974); 314 W. Fletcher, Cyclopedia of the Law of Private Corporations \\u00a7 1120, at 183 (rev. ed. 1975). An agent who makes a contract for an undisclosed or partially disclosed principal will be liable as a party to the contract. Restatement (Second) of Agency, \\u00a7 321, 322 (1958). Thus, Jensen can avoid liability only if his use of corporate checks disclosed the existence of Arthur Jensen, Inc. and Jensen's intention to contract on its behalf.\\nAn agent who attempts to avoid liability on a contract has the burden of proving that the agency relationship and the identity of the principal were in fact disclosed. Diamond Match Co. v. Crute, 145 Conn. 277, 141 A.2d 247, 249 (1958); Brown v. Owen Litho Service, Inc., 179 Ind.App. 198, 384 N.E.2d 1132, 1133 (1979). A third party with whom the agent deals is not required to inquire whether the agent is acting for another. Diamond Match Co., 141 A.2d at 248-49; see also Mawer-Gulden-Annis, Inc. v. Brazilian and Colombian Coffee Co., 49 Ill.App.2d 400, 199 N.E.2d 222, 225 (1964). The third party will be held to have notice of the agency relationship, however, \\\"if he knows [about it], has reason to know [about] it, should know [about] it, or has been given notification of it.\\\" Restatement (Second) of Agency \\u00a7 9 (1958).\\nThe question before us, then, is whether Jensen's continuing use of corporate checks gave AVS \\\"reason to know\\\" about the existence of Arthur Jensen, Inc. Courts in a number of jurisdictions have considered similar questions and reached varying conclusions. The holdings of these courts have fallen into three categories: 1) that use of corporate checks is sufficient, as a matter of law, to provide notice; 2) that it is insufficient as a matter of law; and 3) that the question is one of fact which must be decided by the court.\\nThe first category of holdings is best exemplified by Potter v. Chaney, 290 S.W.2d 44 (Ky.App.1956). In that case, the defendant was president of a coal company which bought coal from the plaintiff over the course of four years and paid him with corporate checks. The court held that the corporation's existence before the plaintiff began delivering coal and its consistent use of corporate checks were sufficient, as a matter of law, to have put the seller on notice that the buyer transacted business with it on behalf of a corporation.\\nThe Louisiana Court of Appeals reached the opposite conclusion in Jahncke Service, lnc. v. Heaslip, 76 So.2d 463 (La.App.1954). In that case, the defendant conducted business with the plaintiff over the course of several years, and incorporated during that time. He argued that his use of corporate checks should have put the defendant on notice that it dealt with a corporation rather than with an individual. The court held that the use of five or six corporate checks did not provide the plaintiff with legally sufficient notice to relieve the corporation's agent of liability.\\nMost courts that have considered arguments that the consistent use of corporate checks provided notice of agency have reached their decisions only after examining the surrounding facts and circumstances. In Diamond Match Co. v. Crute, 145 Conn. 277, 141 A.2d 247 (1958), and Brown v. Owen Litho Service, Inc., 179 Ind.App. 198, 384 N.E.2d 1132 (1979), the courts refused to overturn trial court findings that corporate officers had not provided sufficient notice that they acted as agents despite their use of corporate checks prior to the transactions at issue. In Diamond Match Co., the president of a corporation paid for lumber with corporate checks, though invoices were made out to him personally and sent to his home (which was also the office of the corporation). In Brown, an officer of a publishing corporation carried on negotiations in his home for the printing of the corporation's magazine but made all payments with corporate checks. Both courts took special note of the agents' failure to call the third party's attention to the existence of a corporation. Diamond Match Co., 141 A.2d at 248; Brown, 384 N.E.2d at 1134.\\nWe conclude that the third category of holdings \\u2014 that the question of whether an agent's use of corporate checks provides sufficient notice of the corporation's existence is a factual one \\u2014 is best supported by case law and by reason. We agree with the Brown court's conclusion that \\\"it is neither possible nor desirable to announce a rigid rule of law identifying specific facts that constitute 'full disclosure.' Disclosure is a question of fact to be treated as such by the reviewing court.\\\" 384 N.E.2d at 1136.\\nOrdinarily, the question of whether a corporate agent acts for a disclosed or an undisclosed principal is one of fact. Myers-Leiber Sign Co. v. Weirich, 2 Ariz.App. 534, 410 P.2d 491, 493 (1966); Matsko v. Dally, 49 Wash.2d 370, 301 P.2d 1074, 1077 (1956). An agent's use of corporate checks is one factor for the trier of fact's consideration, but it is not necessarily determinative. The reasonableness of a third party's failure to deduce the existence of a corporate principal from its agent's use of corporate checks varies from case to case. In Brown, for example, where all meetings took place in the agent's house, and the transaction at issue involved the printing of four issues of a new magazine, a court could reasonably conclude that the third party had insufficient notice of the corporation's existence. In Potter v. Chaney, on the other hand, where the transactions took place entirely in the corporation's offices, the corporation involved was a coal distributor, and $170,000 changed hands, the existence of the corporation was much more evident from the circumstances surrounding the use of corporate checks. We see no reason to attempt to fashion a rule of law which assumes that corporate checks provide equivalent notice in such widely differing factual settings.\\nSince we have determined that the small claims court's finding that Jensen did not sufficiently disclose his agency is one of fact, we will not disturb it unless it is clearly erroneous. Alaska R.Civ.P. 52(a); Black v. Dahl, 625 P.2d 876, 881 (Alaska 1981). At trial, AVS's president testified that most builders he dealt with were not incorporated, and that he had done business with Jensen for many years without being aware that he represented a corporation. In light of this testimony we cannot say that the trial court clearly erred in finding that Jensen's use of corporate checks did not provide AVS with notice of his company's corporate status.\\nIII. SUPPLEMENTATION OF THE RECORD\\nIn his appeal to superior court, Jensen moved to supplement the record with the plans from which AVS performed the appraisals. These plans, which identified Arthur Jensen, Inc. as the builder, were not introduced at trial. Jensen urges us to remand for consideration of the plans if we find that the corporate checks provided insufficient notice of the corporation's existence.\\nJensen placed his order for the appraisals by telephone, and submitted the plans to AVS sometime thereafter. AVS thus did not see the plans until after it had agreed to perform the appraisals. An agent is liable for a contract he or she enters into unless the principal is disclosed at the time the contract is formed. Potter v. Chaney, 290 S.W.2d at 46. As comment c to the Restatement (Second) of Agency \\u00a7 4 notes:\\nWhether a principal is a disclosed principal, a partially disclosed principal or an undisclosed principal depends upon the manifestations of the principal or agent and the knowledge of the other party at the time of the transaction. The disclosure of the existence or identity of the principal subsequently has no bearing upon the relations created at the time of the transaction. [Emphasis added].\\nJensen argues that the plans were incorporated by reference into the contract, since AVS' order form notes that the appraisals were to be made \\\"from plans.\\\" This argument is without merit. We are not concerned here with the integral parts of the contract, but with AVS' knowledge when it entered that contract. The plans had no bearing on AVS' actual or constructive notice of the existence of Arthur Jensen, Inc. at the time of the contract, since AVS did not see them until after the contract was formed. Hence, there is no need for remand to allow consideration of the plans.\\nAFFIRMED.\\n. Disclosed, partially disclosed, and undisclosed principals are defined in the Restatement as follows:\\n(1) If, at the time of a transaction conducted by an agent, the other party thereto has notice that the agent is acting for a principal and of the principal's identity, the principal is a disclosed principal.\\n(2) If the other party has notice that the agent is or may be acting for a principal but has no notice of the principal's identity, the principal for whom the agent is acting is a partially disclosed principal.\\n(3) If the other party has no notice that the agent is acting for a principal, the one for whom he acts is an undisclosed principal.\\nRestatement (Second) of Agency \\u00a7 4 (1958)\\n. Jensen argues that the Restatement places a strong evidentiary burden on a party seeking to hold an agent personally liable. He reaches this conclusion by reading together \\u00a7 328, which provides that \\\"[a]n agent, by making a contract only on behalf of a competent disclosed or partially disclosed principal whom he has power so to bind, does not thereby become liable for its performance;\\\" \\u00a7 4's definition of a partially disclosed principal (one whom the other party has notice \\\"may be acting for a principal\\\"); and \\u00a7 9's definition of notice (\\\"A person has notice of a fact if he . has reason to know it\\\"). He concludes from these sections that an agent should be absolved from liability whenever the other party \\\"has reason to know\\\" that he or she \\\"may be\\\" acting for a principal.\\nJensen's argument is contradicted by the Restatement as well as by case law. Under Restatement \\u00a7 321, \\\"[u]nless otherwise agreed, a person purporting to make a contract with another for a partially disclosed principal is a party to the contract\\\" (emphasis added). Sections 321 and 328 can be reconciled if we assume that an agent is personally liable unless he or she makes it clear that he or she is acting on behalf of a principal (whether or not the principal's identity is disclosed). Thus a holding that an agent has the burden of showing that the other party had reason to know of his or her agency is consistent with the Restatement.\\n. The Chaney court also noted that the seller had received weight receipts with the corporation's name on them and had visited the corporate offices. It held, however, that the checks and the longstanding corporate existence, \\\"standing alone,\\\" provided sufficient notice. Id. at 46.\\n. Jensen argues that a clearly erroneous standard is not appropriate in this case, since small claims judgments need not be supported by findings of facts, and since the trial court made no written findings in this case. The trial court's findings were sufficiently clear to allow us to review them, and we will not disturb them absent clear error.\"}"

alaska/10415125.json

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+"{\"id\": \"10415125\", \"name\": \"Ronald KUVAAS, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Kuvaas v. State\", \"decision_date\": \"1986-04-25\", \"docket_number\": \"No. A-1244\", \"first_page\": \"855\", \"last_page\": \"857\", \"citations\": \"717 P.2d 855\", \"volume\": \"717\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Court of Appeals\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-11T02:45:03.796251+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BRYNER, C.J., and COATS and SINGLETON, JJ.\", \"parties\": \"Ronald KUVAAS, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Ronald KUVAAS, Appellant, v. STATE of Alaska, Appellee.\\nNo. A-1244.\\nCourt of Appeals of Alaska.\\nApril 25, 1986.\\nKevin F. McCoy, Asst. Public Defender, Kenai, and Dana Fabe, Public Defender, Anchorage, for appellant.\\nShannon D. Turner, Asst. Dist. Atty., Thomas M. Wardell, Dist. Atty., Kenai, and Harold M. Brown, Atty. Gen., Juneau, for appellee.\\nBefore BRYNER, C.J., and COATS and SINGLETON, JJ.\", \"word_count\": \"1004\", \"char_count\": \"6322\", \"text\": \"OPINION\\nCOATS, Judge.\\nRonald Kuvaas was convicted of robbery in the first degree in violation of AS 11.41.-500(a)(1). Because Kuvaas was in possession of a firearm during the robbery, he was subject to a presumptive sentence of seven years. See AS 12.55.125(c)(2). At the time of his robbery offense, Kuvaas was on felony probation from Oregon for theft and driving while his license was revoked. Although these offenses were felonies under Oregon law, neither is a felony under Alaska law. The sentencing Judge, Charles K. Cranston, found that Kuvaas' sentence was subject to an aggravating factor, that \\\"the defendant was on . probation for another felony charge or conviction.\\\" AS 12.55.155(c)(20). Based on this aggravating factor, Judge Cranston enhanced Kuvaas' sentence to fifteen years with seven years suspended. Judge Cran-ston placed Kuvaas on probation for five years following his release.\\nKuvaas appealed to this court arguing that Judge Cranston erred in applying the aggravating factor to him. We agreed with Kuvaas' argument that the aggravating factor only applied to crimes which had elements similar to a felony offense under Alaska law at the time the prior offense was committed. Kuvaas v. State, 696 P.2d 684 (Alaska App.1985). We therefore reversed Kuvaas' sentence and remanded for resentencing.\\nOn remand the state asked Judge Cran-ston to refer the case to a three-judge panel for resentencing. See AS 12.55.175. The state argued that it would be manifestly unjust not to consider Kuvaas' former convictions and the fact that he was on probation at the time the robbery occurred. The state also argued that there was evidence that Kuvaas had committed another armed robbery in Anchorage and that it would be manifestly unjust if the three-judge panel could not consider this information. Over Kuvaas' objections, Judge Cranston referred the case to the three-judge panel. Judge Cranston indicated that manifest injustice would result from failure to consider Kuvaas' prior convictions, the fact he was on probation at the time of the offense, his history of substance abuse problems, and the evidence that Kuvaas had committed another robbery.\\nThe three-judge panel found that Kuvaas had a substantial prior record and that Kuvaas' offenses appeared to be increasing in seriousness. The judges found that Ku-vaas had a problem with alcohol abuse which extended over thirty years and found that this reflected negatively on Kuvaas' prospects for rehabilitation. The panel did not adopt the trial court finding that Ku-vaas had committed another robbery. The panel concluded that in light of these findings the seven-year presumptive sentence would be manifestly unjust. The panel im posed a sentence of twelve years with five years suspended, and placed Kuvaas on probation for five years following his release from imprisonment.\\nKuvaas argues that since there had been no indication that his case might be referred to the three-judge panel until after his case was remanded following the sentence appeal to this court, it was illegal to refer the case to the three-judge panel. Kuvaas points out that the only argument which the state advanced at his original sentencing which could have resulted in the imposition of a sentence greater than the seven-year presumptive term was based on the aggravating factor that he was on felony probation at the time he committed the robbery. He argues that once the court of appeals found that the aggravating factor did not apply, the trial court, on remand, had no choice but to impose the presumptive sentence. He argues that imposition of a sentence greater than the seven-year presumptive term violated the prohibition against double jeopardy, violated his right to due process of law, and amounted to prosecutorial and judicial vindictiveness.\\nKuvaas' arguments are based upon cases which held that a sentence could not be increased after it was meaningfully imposed. See Shagloak v. State, 597 P.2d 142 (Alaska 1979); Sonnier v. State, 483 P.2d 1003 (Alaska 1971). We find Shagl-oak and Sonnier inapplicable. The trial court originally enhanced Kuvaas' sentence to fifteen years with seven years suspended based on the aggravating factor. When we held that the aggravating factor did not apply, the trial court referred the case to the three-judge panel based upon basically the same factors that it had used to enhance Kuvaas' sentence in the first place under the aggravating factor. The three-judge panel then imposed a sentence which was less than Kuvaas' original sentence, and the three-judge panel's sentence was based upon basically the same factors which the trial court had used to enhance Kuvaas' original sentence. We conclude that Kuvaas' sentence did not violate the prohibition against double jeopardy, did not violate his due process rights, and was not a product of prosecutorial or judicial vindictiveness.\\nKuvaas also argues that the sentence which the three-judge panel imposed was excessive. In sentencing Kuvaas, Judge Brian Shortell, speaking for the panel, found that Kuvaas had a prior record which appeared to be becoming more serious over time. Judge Shortell also found that Kuvaas had a long history of alcohol abuse and that this reflected poorly on Kuvaas' prospects for rehabilitation. See State v. Ahwinona, 635 P.2d 488, 491 n. 3 (Alaska App.1981) (history of alcohol abuse may be considered by the court in sentencing to determine a defendant's prospects for rehabilitation). The three-judge panel imposed the presumptive sentence of twelve years' imprisonment and added a suspended five years to insure that Kuvaas would be subject to probation conditions upon his release. We conclude that the findings which the three-judge panel made justify the sentence which they imposed. We conclude that the sentence was not clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).\\nThe sentence is AFFIRMED.\"}"

alaska/10415432.json

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+"{\"id\": \"10415432\", \"name\": \"COMMERCIAL FISHERIES ENTRY COMMISSION, State of Alaska, Petitioner, v. Jacob BYAYUK, Respondent\", \"name_abbreviation\": \"Commercial Fisheries Entry Commission v. Byayuk\", \"decision_date\": \"1984-05-25\", \"docket_number\": \"No. 6428\", \"first_page\": \"114\", \"last_page\": \"123\", \"citations\": \"684 P.2d 114\", \"volume\": \"684\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T21:59:25.480866+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BURKE, C.J., and RABINOW-ITZ, MATTHEWS, COMPTON and MOORE, JJ.\", \"parties\": \"COMMERCIAL FISHERIES ENTRY COMMISSION, State of Alaska, Petitioner, v. Jacob BYAYUK, Respondent.\", \"head_matter\": \"COMMERCIAL FISHERIES ENTRY COMMISSION, State of Alaska, Petitioner, v. Jacob BYAYUK, Respondent.\\nNo. 6428.\\nSupreme Court of Alaska.\\nMay 25, 1984.\\nJohn B. Gaguine, Asst. Atty. Gen., Wilson L. Condon, Atty. Gen., Juneau, for petitioner.\\nDavid B. Snyder, Carolyn Lathrop, Alaska Legal Services Corp., Dillingham, for respondent.\", \"word_count\": \"5306\", \"char_count\": \"32779\", \"text\": \"OPINION\\nBefore BURKE, C.J., and RABINOW-ITZ, MATTHEWS, COMPTON and MOORE, JJ.\\nCOMPTON, Justice.\\nThe Commercial Fisheries Entry Commission (hereafter CFEC or Commission) petitions for review from a superior court decision ordering it to allow Jacob Byayuk to submit evidence that he qualifies for income dependence points pursuant to State, Commercial Fisheries Entry Commission v. Templeton, 598 P.2d 77 (Alaska 1979), and to determine the validity of this evidence. The primary issue is whether Templeton should be applied retroactively and, if so, to what extent.\\nI. FACTUAL AND PROCEDURAL BACKGROUND\\nJacob Byayuk filed a timely application for a Bristol Bay salmon drift gill net limited entry permit with the CFEC in September 1977. He claimed twelve points on his application. On February 6, 1978, the Commission mailed a classification notice granting Byayuk six points and advising him of his right to request a hearing until March 23, 1978. Also mailed on the same day was a notice of permit denial stating that \\\"[e]ven if all of the points you claimed were verified, you would still have inadequate points to be issued an entry permit.\\\"\\nThe Commission then wrote to Byayuk on July 7, 1978 advising him of his right to submit additional evidence on his point claims pursuant to 20 AAC 05.520(d). The deadline for the submission of additional evidence was September 1, 1978. If the deadline was too burdensome for a particular individual an extension could be granted provided the person notified the CFEC pri- or to September 1 and explained the situation in writing.\\nThe Commission addressed these letters to Byayuk in care of General Delivery in Togiak. Byayuk states that he never received anything from the Commission other than a general notice of receipt of his initial application. Since he was not in Togiak during this time he alleges that the letters were either lost in the mail or never forwarded to him. In any case, he did not respond to the notices within any of the time limits set forth by the Commission.\\nOn February 14, 1979, Alaska Legal Services Corporation (hereafter ALSO) sent a letter to the CFEC on behalf of Byayuk asking for a copy of his file. A point application was attached to this letter claiming eighteen points. This point application differed from the original by requesting six additional points; three for vessel ownership and three for gear ownership. Also attached was an affidavit from Byayuk's father stating, in part, that his son was his only partner from 1965 through 1972. The Commission responded on February 23, 1979 by stating \\\"that this application must remain denied.\\\" Two alternate reasons were given; the information was submitted six months too late and, even were it timely, no new points would result.\\nALSO wrote on March 1, 1979 to request an extension of time to submit additional point claims evidence. On July 3, 1979, CFEC denied the extension request. Bya-yuk filed a request for a hearing on August 15, 1979. This request was finally denied in a letter of March 18, 1980 \\\"as not demonstrating a genuine issue in contention.\\\" This letter concluded by stating that it constituted the final action by the Commission and that Byayuk had thirty days in which to appeal. Byayuk did file a timely appeal.\\nThis court issued its decision in State, Commercial Fisheries Entry Commission v. Templeton, 598 P.2d 77 (Alaska 1979), on August 3, 1979. While Byayuk's request for a hearing did not specifically refer to Templeton, the decision did have obvious relevance to Byayuk's situation. In Templeton we held that a person who fishes as an equal partner is entitled to special circumstances points for economic dependence under 20 AAC 05.630(b)(2) even if the gear license is not in that person's name. The Commission had interpreted that regulation and the Limited Entry Act to require a gear license as a prerequisite to special circumstances points. This court affirmed the superior court decision ordering the Commission to award the contested points and a permit. In doing so we noted that \\\"the construction of the statutes and regulations that the Commission suggests works at cross-purposes with the Legislature's stated intent to avoid 'unjust discrimination.' AS 16.43.-010(a).\\\" Id. at 81.\\nAfter the CFEC denied Byayuk a hearing but prior to the superior court hearing, Byayuk requested that the CFEC stipulate to a remand for a determination on the special circumstances points pursuant to Templeton. The Commission did not so stipulate and the case subsequently went to hearing. The superior court ordered the case remanded to the CFEC to afford Bya-yuk the opportunity to submit evidence on his failure to meet the additional evidence deadline and to present evidence on his claim for income dependence points under Templeton. CFEC petitioned for review to this court which we granted on January 28, 1982.\\nThree issues are raised by the parties: (1) was there a \\\"final\\\" determination by the Commission prior to Byayuk's request for an extension of time; (2) did the Commission abuse its discretion or violate due process of law in refusing to grant the extension; and (3) should Templeton be applied retroactively and, if so, to what extent. In view of our decision on the retroactive application of Templeton we need not address the other issues.\\nII. RETROACTIVE APPLICATION OF TEMPLETON\\nIn order for Byayuk to get the benefit of partnership points it is necessary for us to find that Templeton should be applied retroactively to persons in his position. The Commission urges a prospective application, or at the most, a limited retroactive application. Templeton itself did not specifically deal with this issue beyond applying the rule to the litigants in that case.\\nThere is no rule of retroactive law carved into the United States Constitution or state constitution. We must treat each case announcing a new rule of law on the basis of the facts which are unique to it. While this might lead to some confusion and uncertainty as to subsequent cases, this individual treatment is necessary. Courts have generally tended to apply some sort of retroactivity to new rules of law. In the criminal law context, for instance, the United States Supreme Court recently stated that, subject to certain exceptions, \\\"a decision of this court construing the Fourth Amendment is to be applied retroactively to all convictions that were not yet final at the time the decision was rendered.\\\" United States v. Johnson, 457 U.S. 537, 562, 102 S.Ct. 2579, 2594, 73 L.Ed.2d 202, 222 (1982). Concerning civil cases, this court has held that retroactivity is the rule and prospectivity is the exception. See Plumley v. Hale, 594 P.2d 497, 502 (Alaska 1979) (absent special circumstances, a new rule is binding in the case before the court and in all subsequent cases in which the point in question is raised regardless of when facts leading to the case occurred).\\nWe have attempted in the past to deal with the problem of whether to apply a new rule of law prospectively or retroactively by formulating criteria by which to measure each case. Utilization of these criteria provides a framework for consistency in treatment of future cases. We have articulated a number of standards which we have incorporated into the following four criteria when dealing with retroac-tivity in the civil context: 1) whether the holding either overrules prior law or decides an issue of first impression whose resolution was not foreshadowed; 2) whether the purpose and intended effect of the new rule of law is best accomplished by a retroactive or a prospective application; 3) the extent of reasonable reliance upon the old rule of law; and 4) the effect on the administration of justice of a retroactive application of the new rule of law.\\nA. The Threshold Test\\nThe first criterion, whether the holding overrules prior law or decides an issue of first impression, serves as a threshold test to determine whether a purely prospective application of a new rule of law is even at issue. If a holding is not new in the sense described above, the question of prospectivity need not be examined further.\\nIn this instance the Templeton decision, in effect, overruled a presumptively valid regulation promulgated by the Commission. Prior to Templeton itself there were no decisions of any court which had east doubt on the validity of the regulation. Thus the rule announced in Templeton meets the threshold test and we must utilize the other criteria to resolve the issue of prospectivity. The other criteria are also relevant in deciding the extent to which a new rule should be accorded retroactivity.\\nB. Purpose and Intended Effect of Templeton\\nOnce the threshold test has been met the next step in our analysis is to determine the purpose and intended effect of the Templeton decision. This is the single most important criterion to use in determining whether to apply a new rule of law retroactively or prospectively. As we stated in Plumley v. Hale, 594 P.2d 497, 504 (Alaska 1979), \\\"[i]t is fundamental that the determination as to whether a decision will be prospectively or retroactively applied, is one guided by equitable princi-ples_\\\" (footnote omitted). The equities in these cases are largely dictated by the purpose and intended effect of the new rule.\\nThe general purpose behind the Limited Entry Act is to regulate entry into commercial fishing \\\"without unjust discrimination.\\\" The Commission achieves this end by awarding points based on the hardship to the applicant if excluded from the fishery. The Commission then determines the point level requirement based on the optimum level of use in each particular fishery. The initial point determination is to be made by weighing each applicant's hardship without unjust discrimination. Isak-son v. Rickey, 550 P.2d 359, 363 (Alaska 1976).\\nPrior to Templeton, the Commission had interpreted the Limited Entry Act as requiring actual possession of a gear license as a prerequisite to income dependence points. In reversing the Commission's interpretation, we stated in Templeton that \\\"allocating one permit between two partners solely on the fortuitous circumstances of which one held the gear license in two given years does not realistically weigh the relative hardship which each partner would suffer by denial of a permit.\\\" We therefore held that to avoid \\\"unjust discrimination\\\" the CFEC must award special circumstances points on the basis of partnership fishing.\\nOur decision in Templeton required that the Commission avoid unjust discrimination by judging all applicants by standards which accurately reflect their relative hardship. Implicit in that requirement was a finding that point allocations made according to the Commission's earlier standards were inaccurate. Thus, in denying permits in reliance on those point allocations, the Commission had not avoided \\\"unjust discrimination.\\\"\\nMoreover, as we stated in Commercial Fisheries Entry Commission v. Apoke-dak, 606 P.2d 1255,1261 (Alaska 1980), one purpose of the Limited Entry Act is to \\\"segregate hardship and non-hardship cases.\\\" In Templeton, we determined that the Commission's interpretation of the Act was contrary to that purpose. Since the bulk of the Commission's point determinations for persons who fished as partners without gear licenses were made under the Commission's previous interpretation, the purposes of the Act have already been thwarted. Licenses have already either been awarded or denied. To apply Temple-ton prospectively only will serve no purpose. Therefore, a retrospective application will best accomplish the purpose and intended effect of the Act and the rule announced in Templeton.\\nC. Reasonable Reliance\\nThe next criterion is closely related to the threshold test in substance although not in purpose. In this instance the extent of reliance on an old rule of law is used to further weigh the merits of a prospective versus a retrospective application and also to set the limits of retroactivity. In other words, rather than setting forth a determinative test, as the threshold criterion does, this criterion is used as a balancing factor.\\nAs noted earlier, the Commission's regulation was presumptively valid and there were no court decisions prior to Templeton which challenged the validity of the regulation. We find that the CFEC did reasonably rely on its partnership policy and that the new rule announced in Templeton was not clearly foreseeable. We note that this criterion is generally designed to protect persons who innocently rely on judicial or legislative law rather than agencies which rely upon their own regulation. Reasonable as its reliance was it is still arguable that the Commission is not entitled to the benefits this criterion provides in this case. Regardless, this factor is of minimal importance where the purpose and intended effect of the new rule of law clearly justifies a retroactive application. The overriding equities in favor of retroactivity clearly outweigh the agencies reliance in this instance.\\nD. Effect on the Administration of Justice\\nThe final criterion is the effect on the administration of justice of a retroactive application of the new rule. This factor is useful in determining not only whether a new rule should apply retroactively but also how far the application should extend. State v. Glass, 596 P.2d 10, 14 (Alaska 1979). .\\nThe CFEC urges that retroactive application be denied to avoid undue hardship to the administration of the limited entry system and to avoid excessive overissuance of permits. It cannot be denied that some hardship will befall the Commission if we apply Templeton retroactively. However, applicants who did not receive a permit because they fished as partners were treated unfairly and the harm to them will not be remedied if we apply the rule prospectively. As we stated in Judd v. State:\\nSince without question a value judgment is involved little can be added to the arguments presented in the cases except to say that once one realizes that any decision will involve an arbitrary classification which is not particularly defensible except in terms of its impact, then one has arrived at a starting point for making the necessary policy decisions.\\nA change in the law or the formation of a new rule will invariably lead to some inequitable results. For the following reasons we hold that a retroactive application of Templeton results in the fewest inequities.\\nThe Commission states in its-reply brief that \\\"[tjhis case suggests that [the] number [of Templeton claims] would be huge.\\\" No other information is provided articulat ing the actual number of Templeton claimants. Even assuming that there will be numerous claims and that the resolution of the claims will be time consuming, we feel the hardship to the CFEC is of secondary importance to the alternative hardship to individual fishermen. The purpose of the Commission is to regulate entry into the commercial fisheries. See AS 16.43.010. The administrative inconvenience to the Commission cannot outweigh the fundamental inequity which would result in depriving deserving claimants of limited entry permits. As we stated in Commercial Fisheries Entry Commission v. Apoke-dak, 606 P.2d 1255, 1266 (Alaska 1980), \\\"[although the purpose of promoting administrative convenience is legitimate, it cannot outweigh the important right to engage in economic endeavor, which in some cases may involve the right to employment in the industry.\\\" (Footnotes omitted).\\nFurthermore, much of the potential hardship to the CFEC could have been avoided if it had acted with due diligence when the first sign of difficulties became apparent. The superior court issued an order on April 3,1978 requiring the CFEC to give partnership points to Templeton. The Commission petitioned the supreme court for review of this order, and thereafter sent out letters to applicants announcing the 1978 period for additional point claims evidence. The CFEC, for its own protection, could have specifically requested partnership information pursuant to the lower court decision. The Commission could have waited until its review by this court was completed before making a final point determination. In this way the Commission would have been able to guard against excessive overissuance from that point.\\nA retroactive application of Templeton will not automatically lead to the issuance of permits. To receive a permit an applicant must prove partnership, income dependence, and a point total at or above the issuance level. When retroactive application of a rule leads to an automatic reversal of a prior verdict, the effect on the administration of justice is serious. On the other hand, when a new rule only results in a new trial, the foreseeable consequences are less severe. By applying Templeton retroactively, we are not requiring that the Commission automatically issue permits to applicants like Byayuk but merely that it consider their claim to partnership points.\\nThe final consideration in this area is the effect of retroactivity on persons already granted permits. If excessive overissuance is the result of our decision then persons already in the fishery may be affected. In Moore v. State, 553 P.2d 8 (Alaska 1976), we expressed concern over the effect of a decision on innocent persons. In that case we held that the state must consult with local planning agencies prior to selling offshore oil and gas leases. In deciding to adopt the new law prospectively we noted that \\\"once the disposition has occurred, the new owners or lessors also have a paramount interest in maintaining their rights to the land. We have no desire in this area, to upset settled transactions which were entered into in good faith.\\\" In Moore we were concerned with giving the public a voice in the matter but they had no definite rights over the land.\\nThe Templeton situation is easily distinguishable. The persons presently holding permits have no interest that is paramount over that of deserving Templeton claimants. In fact, the opposite is true. Many of the persons with permits would not have received one had the partnership claims initially been processed fairly. Moreover, the Commission may implement a \\\"buyback\\\" program to repurchase the excess permits under AS 16.43.310. The statuto ry \\\"buy-back\\\" provisions will also help to alleviate any inequities to those persons presently in the fishery.\\nTempleton should be applied retroactively for the above stated reasons.\\nIII. EXTENT OF RETROACTIVITY\\nHaving decided that Templeton merits retroactive application, we must now decide whether that retroactivity should be extended to final decisions. The discussion on general retroactivity is wholly applicable to this issue. In essence, fairness dictates retroactive application to final decisions. A limited retroactive application would apply to those non-gear license partners whose cases have not been finally adjudicated by the Commission or, if they have, whose cases are still pending on direct review. Because of the length of time between the enactment of the Act and the Templeton decision and because the Commission has already granted or denied the bulk of the applications, it appears likely that most fishermen who could potentially benefit from the Templeton rule would be excluded by this limitation. If so, they would be treated differently from other fishermen whose position as of January 1, 1973 was legally indistinguishable from them. This difference in treatment is unfair since it is dependent on the fortuitous fact that their cases were processed more promptly than those of their colleagues who are able to take advantage of the Templeton rule. Thus, fairness, the impelling purpose of the Templeton rule, militates in favor of retroactive application to final decisions.\\nIn this case Byayuk had filed a limited entry permit application with the CFEC prior to Templeton. We find that the Templeton rule should at least be extended to persons who have filed timely permit applications. Whether Templeton should also be extended to persons who have not applied on time is a question which is not presented here and on which we express no opinion.\\nThis decision applies to a finite, definable group of persons and it extends back to a definite date. Much of the hesitancy for applying a rule to final decisions stems from a concern that an overwhelming number of cases would be reopened. It is generally regarded as too unfair to reopen cases which are many years old and a convenient line is therefore drawn at finality. That concern is less pronounced here.\\nFinally the Commission's own interpretation of a similar court decision and its immediate response to Templeton demonstrate that the CFEC might have anticipated this holding. In Isakson v. Rickey we held that the Commission wrongfully denied the claimants in that case an opportunity to apply for a permit since they owned gear licenses for the first time subsequent to January 1, 1973. We did not specifically address the issues of retroactivity but the Commission responded by reopening the application period for Isakson claims. Similarly, when Templeton was decided the CFEC proposed regulations which allowed applicants to adjust their allocation of points according to the rule announced in that case. These regulations were to apply to past applicants who were denied permits due to inadequate points; in other words, applicants who had received a final determination. The CFEC eventually decided not to implement these regulations, but these proposals show that the Commission initially considered such retroactive application feasible.\\nIV. FAILURE TO RAISE TEMPLETON CLAIMS\\nFinally, we must determine whether Templeton should be applied retro\\u00e1etively to persons who failed to raise the issue of partnership points prior to the final decision in their cases. Byayuk did not claim partnership points in his initial application. The Commission alleges that Byayuk's application became final at the point when he failed to request a hearing. We hold that, even assuming finality in 1978, the failure to raise the Templeton issue before the Commission does not bar our consideration of it in the instant case.\\nRes judicata generally bars litigation of an issue which has already been decided or which could have been decided in a prior proceeding. Our most recent discussion of administrative res judicata was in Jeffries v. Glacier State Telephone Company, 604 P.2d 4 (Alaska 1979). We recognized in that case that res judicata is applicable to administrative adjudicative decisions but that the doctrine is often applied there with less rigidity. A case by case analysis is used to see if the application of res judicata is fair. In this case we determine that it is not.\\nIn Storrs v. Lutheran Hospitals and Homes Society of America, Inc., 609 P.2d 24, 28 (Alaska 1980), we noted that' an objection to an administrative ruling must be made to the agency to preserve the objection, \\\"at least when, as here, a complainant . has had an ample opportunity to urge his objections at the administrative level.\\\" We compared this to a situation where the party has knowledge of facts of bias on the part of an arbitrator and remains silent nonetheless. Id. at 29 n. 13. In contrast, Byayuk had no knowledge or reason to know that the CFEC's partnership policy was incorrect. Thus, we cannot realistically require him to have raised this issue.\\nEven if Byayuk had raised the issue to the CFEC the issue is not within the scope of the agency's expertise. In Templeton we specifically stated that the Commission's interpretation of the statutory scheme did not involve its particularized expertise. The concern of courts in hearing issues not raised below is that the judiciary is usurping the power of administrative agencies. That concern is irrelevant here. Courts should act when \\\"the court can reach a fully informed decision without the benefit of having the views of the agency.\\\"\\nOur decision to allow Byayuk to raise his Templeton claims is consistent with the general overriding concerns of fairness articulated throughout this opinion. As the United States Supreme Court stated in Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 721, 85 L.Ed. 1037, 1041 (1941):\\nRules and practice and procedure are devised to promote the ends of justice, not to defeat them. A rigid and undeviating judicially declared practice under which courts of review would invariably and under all circumstances decline to consider all questions which had not previously been specifically urged would be out of harmony with this policy.\\nWe decline in this case to follow the general rule requiring a party to raise the issue before the administrative agency.\\nWe affirm the remand to the CFEC to allow Byayuk to present evidence on his claim for income dependence points under Templeton. The portion of the order allowing Byayuk to submit evidence on his failure to meet the additional evidence deadline is vacated.\\nAFFIRMED as modified.\\n. Our decision in this case was deferred pending our determination of the constitutional issues raised in State v. Ostrosky, 667 P.2d 1184 (Alaska 1983).\\n. The 1977 application period was established under the authority of Isakson v. Rickey, 550 P.2d 359 (Alaska 1976) and pursuant to 20 AAC 05.510(f).\\n. 20 AAC 05.520(d) provides in part:\\nEvidence offered by the applicant for an entry permit will be accepted by the commission within the following time limits:\\n(3) Evidence in support of those applications which were to be submitted to the commission within the time limitations of 20 AAC 05.510(f) will be considered by the commission if received on or before September 1, 1978, unless the applicant is notified otherwise.\\n. 20 AAC 05.630(b)(2) reads as follows:\\n(2) if special circumstances exist such that an applicant's income dependence is not realistically reflected by his income dependence percentage for the years 1971 and 1972, the commission may award an applicant up to a maximum of 10 points based on a special showing of income dependence.\\n. As we recently noted in Commercial Fisheries Entry Commission v. Apokedak, 680 P.2d 486, 489 (Alaska 1984), the Commission's interpretation \\\"was in accordance with 20 AAC 05.620(1), which states that '[p]oints for income dependence will be awarded only to applicants who harvested the fishery resource commercially while participating as a gear license holder during a year in which income dependence is claimed.'\\\" In determining that the CFEC's interpretation was erroneous we implicitly overruled 20 AAC 05.620(1).\\n.The Commission claims there was a final determination on March 23, 1978, the last date to request a hearing on Byayuk's initial point classification. Since Byayuk did not timely submit additional evidence and since there was no adequate explanation for the delay in accordance with the CFEC's required criteria, Byayuk's file was never reopened according to the Commission.\\n. See United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Judd v. State, 482 P.2d 273, 276 (Alaska 1971).\\n. See Solem v. Stumes, \\u2014 U.S.-,-, 104 S.Ct. 1338, 1341, 79 L.Ed.2d 579 (February 19, 1984).\\n. See Gray v. State, 463 P.2d 897, 913 (Alaska 1970) (1) the purpose to be served by the new rule; 2) the effect on the administration of justice of a retroactive application of the new rule); Judd v. State, 482 P.2d at 278 (1) the purpose to be served by the new standards; 2) the extent of reliance by law enforcement authorities on the old standards; and 3) the effect on the administration of justice of a retroactive application of the new standards); Moore v. State, 553 P.2d 8, 28 (Alaska 1976) (To be applied prospectively: 1) the decision must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed; 2) we must evaluate the merits of retroactive or prospective application of the rule in light of its prior history, purpose and effect; 3) we must weigh the hardship and injustice of applying the rule to the litigants in the instant case); and Plumley v. Hale, 594 P.2d at 503(1) the holding is one of first impression, or overrules prior law, and was not foreshadowed in earlier decisions; 2) there has been justifiable reliance on an alternative interpretation of the law; 3) undue hardship would result from retroactive application; and 4) the purpose and intended effect of the holding is best accomplished by prospective application.)\\n. See United States v. Johnson, 457 U.S. 537, 550 n. 12, 102 S.Ct. 2579, 2587 n. 12, 73 L.Ed.2d 202, 214 n. 12 (1982) (\\\"In the civil context, in contrast, the 'clear break' principle has usually been stated as the threshold test for determining whether or not a decision should be applied non-retroactively.\\\" Citing to Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971)).\\n. The regulation at issue is 20 AAC 05.620(1).\\n. AS 16.43.010(a) provides:\\nIt is the purpose of this chapter to promote the conservation and the sustained yield management of Alaska's fishery resource and the economic health and stability of commercial fishing in Alaska by regulating and controlling entry into the commercial fisheries in the public interest and without unjust discrimination.\\nSee also, Commercial Fisheries Entry Commission v. Apokedak, 606 P.2d 1255 (Alaska 1980).\\n.Templeton, 598 P.2d at 81 (footnotes omitted).\\n. This case is very dissimilar to other cases dealing with the issue of retroactivity. Generally a new rule will have some significance to fact situations arising after the enunciation of the rule. In those cases a prospective application still serves some purpose. But where the law relates to an administrative issuance of permits to a limited number of people, and the permit issuance has, in effect, already been completed, prospective application of the rule is inequitable.\\n. 482 P.2d 273, 278 (Alaska 1971).\\n. See Rutherford v. State, 486 P.2d 946, 956-957 (Alaska 1971) (Connor, J., dissenting).\\n. Moore v. State, 553 P.2d at 28.\\n. AS 16.43.310 reads in pertinent part:\\nWhen the optimum number of entry permits is less than the number of entry permits outstanding in a fishery, the commission shall establish and administer a buy-back fund for that fishery for the purpose of reducing the number of entry permits to the optimum number .\\n.An application of a new rule of law to persons with final decisions also encompasses persons in the adjudicatory process. In view of our determination that the Templeton decision should be extended to final decisions, the issue of finality raised by the CFEC is moot; Byayuk can claim partnership points whether his case was final or not.\\n. Cf. Desist v. United States, 394 U.S. 244, 251, 89 S.Ct. 1030, 1035, 251, 22 L.Ed.2d 248, 256 (1969), rehearing denied, 395 U.S. 931, 89 S.Ct. 1766, 23 L.Ed.2d 251 (1969); State v. Glass, 596 P.2d 10, 14-15 (Alaska 1979).\\n. September 26, 1979 News Release.\\n. Jeffries, 604 P.2d at 8. See also Grose v. Cohen, 406 F.2d 823, 824-5 (4th Cir.1969); Hollywood Circle, Inc. v. Department of Alcohol Beverage Control, 55 Cal.2d 728, 13 Cal.Rptr. 104, 361 P.2d 712, 714 (1961).\\n. Templeton, 598 P.2d at 80. Of course, when Byayuk presents his Templeton claim to the Commission, the decision on whether or not to award him partnership points will involve the agency's expertise.\\n. 2 Cooper, State Administrative Law 601 (1965).\\n. This case fits squarely into the examples set forth in Board of Public Instruction v. Finch, 414 F.2d 1068 (5th Cir.1969), which demonstrate when a court will hear an appeal from an administrative agency on issues not raised below. The court will deal with an issue when the agency action is:\\n(1) in excess of statutory authority ., (2) likely to result in individual injustice ., (3) disruptive of the legislative scheme ., and (4) contrary to an important public policy extending beyond the rights of the individual litigants .\\n414 F.2d at 1073 (citations omitted). See also Myron v. Martin, 670 F.2d 49, 52 (5th Cir.1982).\\n. The other issues raised by the parties are only relevant if we decline to apply Templeton retroactively to final determinations. Since we do extend Templeton to that level, we need not address the other issues.\"}"

alaska/10420148.json

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+"{\"id\": \"10420148\", \"name\": \"Elizabeth FLEENER, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Fleener v. State\", \"decision_date\": \"1984-08-17\", \"docket_number\": \"No. A-9\", \"first_page\": \"730\", \"last_page\": \"737\", \"citations\": \"686 P.2d 730\", \"volume\": \"686\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Court of Appeals\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T23:51:03.867331+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BRYNER, C.J., and COATS and SINGLETON, JJ.\", \"parties\": \"Elizabeth FLEENER, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Elizabeth FLEENER, Appellant, v. STATE of Alaska, Appellee.\\nNo. A-9.\\nCourt of Appeals of Alaska.\\nAug. 17, 1984.\\nFleur Roberts, Cowper & Madson, Fairbanks, for appellant.\\nCharles M. Merriner, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee.\\nBefore BRYNER, C.J., and COATS and SINGLETON, JJ.\", \"word_count\": \"3713\", \"char_count\": \"22581\", \"text\": \"OPINION\\nCOATS, Judge.\\nAt 5:12 a.m. on January 16, 1983, Officer Richard Gressett of the Fort Yukon Police Department received a telephone call from a woman who identified herself as \\\"Betty Fleener and/or Betty Mayo.\\\" Fleener told Gressett that she had over five pounds of marijuana in her house and that she wanted to turn herself into the police. Fleener gave Gressett the directions to her house and told him it was the \\\"last house on the street on the right before going out to the base.\\\" According to Officer Gressett, Fleener sounded agitated and near hysteria. Officers Gressett and Clark went to the Fleener residence. Gressett stated that when they arrived, he \\\"knocked on the door and heard the same nearly hysterical woman reply that she didn't want to talk\\\" to him, that she wanted him to go away. When it became apparent that Fleener was not going to let Gressett in, Gressett left Clark behind to secure the residence while he went to obtain a search warrant. After the warrant was issued, Gressett returned to the residence. Together with Officers Clark and Purcell, he discussed how they were going to execute the warrant.\\nThe officers knocked on the door twice and waited for a response. Officer Gres-sett announced \\\"It's the police.\\\" After waiting approximately a minute and getting no response, the officers forced Fleener's door open. Officer Purcell entered wearing a bullet-proof vest, followed by Officer Clark who crawled in on his hands and knees. Officer Gressett stood by the door as backup.\\nThe officers found Fleener lying on the living room floor just inside the door. Once inside, Officer Gressett informed her that they had a search warrant. Fleener had a trashbag filled with marijuana beside her. The police seized the bag of marijuana, which weighed 1,830 grams. In addition, forty-six one-quarter ounce packages of marijuana and 420 grams of hashish were found.\\nFleener subsequently filed a motion to suppress evidence based on the grounds that there was insufficient probable cause to issue the search warrant, that no showing was made that a nighttime warrant was necessary, and that the warrant was overbroad. Judge Van Hoomissen denied Fleener's motion. Following a court trial, Judge Van Hoomissen permitted Fleener to make another motion to suppress evidence based on the alleged violation of the \\\"knock and announce\\\" law. This motion was also denied.\\nJudge Van Hoomissen convicted Fleener of possession of marijuana with the intention of distributing it, in violation of AS 11.71.040(a)(2) (Misconduct Involving a Controlled Substance in the Fourth Degree). This offense is a class C felony. AS 11.71.-040(d). Fleener was sentenced to five years with three suspended and five years' probation. She appeals her conviction and sentence to this court. We affirm Fleener's conviction but reverse her sentence.\\nTHE SEARCH WARRANT\\nFleener first contends that the search warrant was not based on probable cause. The affidavit for the search warrant stated:\\nAt approx. 0512 on 1/16/83 this officer (R.E. Gressett) of the Fort Yukon Police Dept, received a call from a woman identifying herself as Betty Fleener and/or Betty Mayo stating that she had over five pounds of \\\"pot\\\" (her word) in her house and that she wished to turn herself into the police. She sounded in near hysteria as she continued on telling this officer specifically where she lived, i.e., last house on the street on the right before going out to the base.\\nThis officer arrived, knocked on the door, and heard the same nearly hysterical worn an reply that she didn't want to talk to me and to go away. (The above incident has been recorded.) At that point the local magistrate was notified.\\nFurther, Betty Mayo/Fleener was barred from the local Air Force site for purportedly distributing/selling controlled narcotic substances.\\nAdditionally, the local state trooper, Dan Hickman and myself have been aware for considerable time that Mrs. Fleener/Mayo has been in possession and/or engaged in the sale of controlled substances but have not had until now any legal recourse for a search of the premises. As to Trooper Dan Hickman's and this officer's suspicion of Betty Mayo/Fleener, numerous incidents and information gained confidentially further this officer's belief that illicit controlled narcotic substances are within above named subject's possession and/or residence.\\nThe affidavit established that a person who identified herself as Fleener called the police and admitted that she had marijuana in her house. The police went out to the described residence and the officer heard \\\"the same nearly hysterical woman reply that she didn't want to talk to me and to go away.\\\" [Emphasis added.] The police thus corroborated that the person who made the admission was the same person who was in the residence. Fleener's statement was also against her own penal inter est which itself imparts a significant element of credibility. See State v. Malkin, 678 P.2d 1356, 1359 (Alaska App.1984), petition for hr'g granted, (Alaska, May 7, 1984); Hubert v. State, 638 P.2d 677, 686 (Alaska App.1981). Given the circumstances surrounding Fleener's admission, the magistrate could reasonably find that there was probable cause to believe that Fleener possessed marijuana, as she had reported to the police. We conclude that the magistrate did not err in finding probable cause to issue the search warrant.\\nFleener next contends that it was improper for the magistrate to issue a search warrant which allowed a search to be conducted \\\"at any time of the day or night.\\\" Alaska Criminal Rule 37(a)(3)(iv) permits a magistrate to authorize a search \\\"at any time\\\" if \\\"an affiant is positive that the property is . in the place to be searched.\\\" Fleener points out that the officer who filled out the affidavit checked the box on the search warrant indicating that he had \\\"reason to believe\\\" that marijuana was present at Fleener's residence, not the box that indicated he was positive. Fleener also contends that the search of her residence was at 6:30 aim.\\nFleener's position appears to be that Officer Gressett, the officer who applied for the search warrant, needed to make a statement stronger than that he had \\\"reason to believe\\\" that the marijuana was present in order to justify a nighttime search. However, in Johnson v. State, 617 P.2d 1117, 1123 (Alaska 1980), the court indicated that the word \\\"positive\\\" in Criminal Rule 37(a)(3)(iv) should be construed to mean reasonably certain. The court also stated that an explicit statement that the affiant was positive of the whereabouts of the property was not required to authorize a nighttime search. Id. at 1124. Rather, the Johnson court looked to the explicit and detailed nature of the affidavit in concluding that reasonable certainty had been shown. Id. at 1123.\\nWe therefore apply the reasonable certainty test of Johnson to this case. As we have previously pointed out, given the circumstances of Fleener's admission to them over the phone, the police had probable cause to believe that Fleener was in possession of marijuana. When the police had been refused admission to Fleener's house, they staked out the house and immediately sought a warrant. We believe that the probable cause in this case meets the reasonable certainty standard. Furthermore, we note that there were exigent circumstances which justified the magistrate's authorization of a nighttime search. See State v. Witwer, 642 P.2d 828, 833 (Alaska App.1982). The marijuana which Fleener possessed was destructible evidence. Fleener was aware that the police knew of her possession of marijuana and that the police had staked out her residence. Given these factors, the magistrate could properly authorize a prompt nighttime search.\\nFleener also makes the argument that the warrant authorizing the search of her residence was, on its face, \\\"overbroad in its scope.\\\" Fleener contends that the warrant referred \\\"to all checks, records, ledgers and any bookkeeping material,\\\" without a showing \\\"to support a finding of probable cause that documents and records of transactions were being concealed at the premises.\\\" She also argues that the warrant did not \\\"describe with any particularity the place to be searched.\\\"\\nOfficer Gressett established probable cause to believe that Fleener was selling marijuana and that Fleener presently possessed over five pounds of marijuana in her home. We believe that these facts would establish probable cause to believe that records of drug transactions would be found in- Fleener's home. In context, the warrant authorized the officers to look for records of drug transactions. We believe that this was proper.\\nFleener also points out that the warrant authorized the police to search a residence described only as \\\"the Betty Mayo Fleener residence on 3rd Street.\\\" Fleener argues that this is not a sufficient description of the place to be searched.\\nIn Johnson v. State, 617 P.2d 1117, 1125 (Alaska 1980), the Alaska Supreme Court stated:\\nThe requirement that places to be searched be particularly described is ordinarily said to be met \\\"if the description is such that the officer with the search warrant can, with reasonable effort, ascertain and identify the place intended....\\\" Steele v. United States, 267 U.S. 498, 503, 45 S.Ct. 414, 416, 69 L.Ed. 757, 760 (1925). Technical accuracy is not required, and if there is no reasonable probability that the wrong premises will be searched, the description is sufficient. United States v. Darensbourg, 520 F.2d 985, 987 (5th Cir.1975). The burden of proof on questions pertaining to the sufficiency of a warrant description is on the challenger. [Footnote omitted.]\\nOfficer Gressett stated in his affidavit that Fleener had given him a detailed description of the location of her house:\\nShe sounded in near hysteria as she continued on telling this officer specifically where she lived, i.e., last house on the street on the right before going out to the base. [Emphasis added.]\\nA description such as this could hardly be considered inadequate in a village the size of Fort Yukon. We take judicial notice of the fact that the population of Fort Yukon is 624. Alaska Blue Book, 168 (1983).\\nFurthermore, Gressett indicated in his affidavit that he had been to the house, \\\"knocked on the door and heard the same nearly hysterical woman reply that she didn't want to talk to me and to go away.\\\" Gressett was also the officer who served the warrant. Magistrate Smyth understood that this would be the case at the time she issued the warrant.\\nGiven the size of Fort Yukon, the description of the Fleener residence in Gressett's affidavit, and Gressett's personal familiarity with the house to be searched, we conclude that the description of Fleener's house in the warrant was sufficient. There was no reasonable probability that the wrong premises would be searched. Johnson v. State, 617 P.2d at 1125.\\nKNOCK AND ANNOUNCE RULE\\nFleener next argues that the trial judge erred in denying her motion to suppress which was based on her allegation that the police violated the \\\"knock and announce\\\" requirement in executing the search warrant.\\nAlaska Statutes 12.25.100 and 12.35.040 operate jointly to establish the procedure required for the lawful execution of a search warrant. Davis v. State, 525 P.2d 541, 543 (Alaska 1974). AS 12.25.100 provides:\\nBreaking into building or vessel to effect arrest. A peace officer may break into a building or vessel in which the person to be arrested is or is believed to be, if the officer is refused admittance after he has announced his authority and purpose.\\nAS 12.35.040 provides:\\nAuthority of officer executing warrant. In the execution or service of a search warrant, the officer has the same power and authority in all respects to break open any door or window, to use the necessary and proper means to overcome forcible resistance made to him, or to call any other person to his aid as he has in the execution or service of a warrant of arrest.\\nFleener first points out that the officers did not announce their purpose before entering her residence. The \\\"knock and announce\\\" rule requires that the police announce their authority and purpose before breaking into dwellings to execute a search warrant. AS 12.25.100. Although Officer Clark testified that Officer Gressett identified the callers as the police, there is nothing in the record to indicate that the officers explained that they were there pursuant to a search warrant before forcing Fleener's door open.\\nThis issue is controlled by Lockwood v. State, 591 P.2d 969 (Alaska 1979). In Lockwood, four police officers, three of whom were in plain clothes, knocked on the door of a motel room which was to be searched pursuant to a warrant. The occupants apparently asked who was there through the closqd door. An officer responded with a ruse, stating that he was the manager. After a pause, one of the occupants peeked out of the door, at which time the officer identified himself. When the occupant attempted to close the door, the officer pushed his way into, the room. Only after the officers entered the room did they announce that they were there pursuant to a search warrant. The Alaska Supreme Court adopted the \\\"substantial compliance doctrine\\\" and held that the officers' execution of the search warrant was lawful.\\nIn Lockwood, the Alaska Supreme Court adopted two tests to determine whether an announcement of identity alone was sufficient under the \\\"knock and announce\\\" rule.\\n[Identification alone . may constitute substantial compliance \\\"only if the surrounding circumstances made the officers' purpose clear to the occupants or showed that a demand for admittance would be futile.\\\"\\n591 P.2d at 972 (quoting People v. Rosales, 68 Cal.2d 299, 66 Cal.Rptr. 1, 3, 437 P.2d 489, 491 (1968)).\\nIn analyzing the facts of Fleener's case, we conclude that Judge Van Hoomis-sen could properly have decided both that the officer's purpose in entering Fleener's residence was clear and that a demand for admittance would have been futile. Fleener was aware that the officers knew that she was in possession of over five pounds of marijuana because she had told them about the marijuana. It is also reasonable to assume that she knew that the police had staked out her residence and that they were in the process of obtaining authority to search her residence. Given these facts, it was reasonable for the trial court to conclude that Fleener knew the police were at her residence to seize marijuana and that they had now obtained lawful authority to enter. It would also be reasonable for Judge Van Hoomissen to find that the police had concluded that Fleener had refused to admit them before they entered the residence; she had earlier refused to admit them and did not respond to their knock on the door. Reviewing the testimony in the light most favorable to the state, as we are required to do since the state was the prevailing party, more than a minute may have elapsed between when the officers knocked and when they entered. Given the fact that the police knocked on Fleener's door earlier and that she was probably aware they had staked out her house, it was reasonable for the police to infer that Fleener was aware of their presence and was refusing to admit them. We conclude that Judge Van Hoomissen did not err in finding that the police entry was in substantial compliance with the \\\"knock and announce\\\" statutes.\\nFleener also argues that Judge Van Hoomissen erred in not establishing an exclusionary rule requiring the police to tape-record their entry into Fleener's residence. Fleener cites no authority which would require the police to record their service of a search warrant and we are aware of none. We find no error. See Harris v. State, 678 P.2d 397 (Alaska App.1984), petition for kr'g granted, (Alaska, May 30, 1984).\\nSENTENCE APPEAL\\nFleener was convicted, following a court trial, of Misconduct Involving a Controlled Substance in the Fourth Degree, a class C felony. AS 11.71.040(a)(2), (d). Judge Van Hoomissen sentenced Fleener, a first offender, to five years' imprisonment with three suspended, and five years' probation. Fleener appeals this sentence as excessive, based on this court's decisions in Austin v. State, 627 P.2d 657 (Alaska App.1981), and Poggas v. State, 658 P.2d 796 (Alaska App.1983).\\nUnder Austin, it is clear that Fleener's sentence should not exceed the two-year presumptive sentence for a second felony offender convicted of a class C felony, AS 12.55.125(e)(1), unless her case can be classified as an exceptional one. 627 P.2d at 658. Furthermore, in Poggas, we noted that the supreme court had \\\"established a maximum sentence of three years' imprisonment for major commercial dealers in marijuana at least as long as the offense is not aggravated by a significant criminal record or another similarly significant aggravating factor.\\\" 658 P.2d at 797.\\nThe supreme court eases which established a three-year maximum sentence for major commercial dealers involved considerably greater amounts of marijuana than is involved in Fleener's case. In Snyder v. State, 585 P.2d 229, 234 n. 14 (Alaska 1978), Snyder was engaged in a major commercial transaction where the street value of the marijuana was established at $113,-000. The supreme court recommended that Snyder not be sentenced to more than three years' imprisonment. Kelly v. State, 622 P.2d 432 (Alaska 1981) (consolidated appeal reviewing sentences, including Snyder's, for drug sale convictions). In Wolfe v. State, 553 P.2d 472, 473 n. 4 (Alaska 1976), Wolfe was also a major commercial dealer who had made two trips outside to import ninety pounds of marijuana. The supreme court approved a sentence of five years with two suspended for Wolfe.\\nThe kind of marijuana dealing which Fleener was doing appears to be more similar to the dealing in Poggas than to the major commercial dealing which Snyder and Wolfe were engaged in. The evidence showed that Fleener admitted supporting herself selling marijuana and was apprehended in possession of about five pounds of marijuana. Poggas was convicted of selling approximately five and one-half pounds of marijuana worth $3,680. 658 P.2d at 796. Winfield, whose case was consolidated with Poggas' case, was convicted of selling six pounds of marijuana for $3,000. Id. at 797. Neither Poggas nor Winfield had significant criminal records. Id. at 796-97. Fleener also has no significant prior criminal record.\\nWe conclude that Fleener's case is in a less serious category than Snyder and Wolfe where sentences of three years' imprisonment were approved. Her case, in general, appears to be much more like the cases of Poggas and Winfield where a two-year sentence would be the maximum sentence. See Poggas, 658 P.2d at 798. However, we do note that Fleener did admit to selling cocaine in addition to selling marijuana and this is a factor which Judge Van Hoomissen emphasized in imposing sentence. We believe that this factor would justify the court in giving a slightly greater sentence than the two-year sentence which we approved in Poggas. However, we do not believe that Fleener, if her probation is later revoked, should be subject to greater than the three-year period of incarceration which the supreme court set as a maximum in Snyder. Therefore, we conclude that Fleener's sentence should not have been greater than three years with one year suspended.\\nThe conviction is AFFIRMED. The sentence is REVERSED.\\n. The search warrant itself indicates that it was served at 6:30 a.m. on January 16, 1983. However, the magistrate stated on the record that it was 8 a.m. [on January 16, 1983] when she started to hear testimony to determine whether to issue the search warrant. The state never argued below that the search warrant was not served in the nighttime and the trial court appears to have decided the case on the assumption that the warrant was served before 7 a.m. We normally do not resolve on appeal a contested factual issue which the trial court has not addressed. Wortham v. State, 641 P.2d 223, 225 (Alaska App. 1982). For purposes of this opinion, we therefore assume that the search warrant was served at 6:30 a.m. on January 16, 1983.\\n. \\\"The affidavit is satisfactory if the magistrate could, after reviewing the facts contained therein, be reasonably certain that the items to be seized are at the location to be searched.\\\" State v. Witwer, 642 P.2d 828, 833 (Alaska App.1982).\\n. Alaska Rule of Evidence 201 provides: Judicial Notice of Fact.\\n(a) Scope of Rule. This rule governs only judicial notice of facts. Judicial notice of a fact as used in this rule means a court's on-the-record declaration of existence of a fact normally decided by the trier of fact, without requiring proof of that fact.\\n(b) General Rule. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within this state or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.\\n(c) When Discretionary. A court may take judicial notice as specified in subdivision (b), whether requested or not.\\n(d)When Mandatory. Upon request of a party, the court shall take judicial notice of each matter specified in subdivision (b) if the requesting party furnishes sufficient information and has given each party notice adequate to enable the party to meet the request.\\n. In Johnson v. State, 617 P.2d 1117, 1125 (Alaska 1980), the court upheld a warrant which contained an inaccurate description of the place to be searched where the officer who served the warrant \\\"was personally familiar with the house to be searched since he had kept watch on it in the past.\\\"\\n. Fleener's motion to suppress on this ground was brought after trial. Fleener argued that the motion could not have been brought sooner because she did not have sufficient information due to the state's failure to provide proper discovery. Judge Van Hoomissen apparently decided this issue on the merits. On this record it is reasonable to assume that Judge Van Hoomis-sen found that Fleener had an adequate excuse to bring the motion after trial. We accordingly believe that we should resolve this issue on the merits.\"}"

alaska/10427842.json

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+"{\"id\": \"10427842\", \"name\": \"Roger A. McSHEA and A. Lee Petersen, Appellants, v. STATE of Alaska, DEPARTMENT OF LABOR, Workers' Compensation Board, and Virgil C. Mays, Appellees\", \"name_abbreviation\": \"McShea v. State, Department of Labor\", \"decision_date\": \"1984-07-06\", \"docket_number\": \"No. S-69\", \"first_page\": \"1242\", \"last_page\": \"1248\", \"citations\": \"685 P.2d 1242\", \"volume\": \"685\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T19:33:54.950952+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BURKE, C.J., and RABINOW-ITZ, MATTHEWS, COMPTON and MOORE, JJ.\", \"parties\": \"Roger A. McSHEA and A. Lee Petersen, Appellants, v. STATE of Alaska, DEPARTMENT OF LABOR, Workers\\u2019 Compensation Board, and Virgil C. Mays, Appellees.\", \"head_matter\": \"Roger A. McSHEA and A. Lee Petersen, Appellants, v. STATE of Alaska, DEPARTMENT OF LABOR, Workers\\u2019 Compensation Board, and Virgil C. Mays, Appellees.\\nNo. S-69.\\nSupreme Court of Alaska.\\nJuly 6, 1984.\\nRoger A. McShea, pro se.\\nA. Lee Petersen, pro per.\\nLarry D. Wood, Asst. Atty. Gen., Fairbanks, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee Workers\\u2019 Compensation Board.\\nVirgil C. Mays, pro se.\\nBefore BURKE, C.J., and RABINOW-ITZ, MATTHEWS, COMPTON and MOORE, JJ.\", \"word_count\": \"3161\", \"char_count\": \"19446\", \"text\": \"ORDER\\nPER CURIAM.\\nThe Alaska Workers' Compensation Board and the superior court have both refused to enforce a 33\\u215b% contingent-fee agreement between compensation claimant Virgil Mays and attorneys Roger McShea and A. Lee Petersen. We affirm.\\nI.\\nAfter teaching carpentry in the Fairbanks school system for several years, Virgil Mays developed a lung disease and retired in 1978. His permanent total disability claim against the Fairbanks North Star Borough School District was denied and dismissed by the Alaska Workers' Compensation Board. When his counsel withdrew from the case, Mays hired attorney McShea, who later arranged for attorney Petersen to assist on an appeal to superior court. Mays and McShea signed a \\\"Professional Employment Contract,\\\" which recited that McShea would receive 50% of any recovery obtained.\\nOn appeal, the superior court reversed the Board's denial of compensation for permanent total disability and remanded to the Board. Believing that the Board was primarily responsible for awarding attorney's fees, the superior court awarded $200 in nominal fees for the appeal and $934.58 in costs. Before the hearing mandated by the remand could take place, the parties set- tied. McShea and Petersen agreed to reduce their contingent fee from 50% to 33\\u215b% of Mays' recovery. The School District's compensation carrier agreed to pay a total of $80,000 to Mays and his attorneys. Under the terms of the proposed distribution, then, Mays was to receive $53,333 and the attorneys $26,667.\\nBut the Alaska Workers' Compensation Board must receive copies of all settlements, AS 23.30.012, and the parties' attorney's fees arrangements were subject to Board approval. AS 23.30.145, AS 23.30.-260. In this case the Board reacted to the $26,667 attorney's fees claim with some skepticism. Though a Board member noted that \\\"Mr. McShea has made a very detailed elaboration of the troubles he's had in this case\\\" and that the contingent fee agreements were in the record, the same Board member explained that further documentation was necessary:\\nWith respect to the attorneys' fees issue, the Board has been receptive to Mr. McShea's arguments. However, we feel that we would like to have a more detailed accounting of the amount of time and particularly the expenses that were expended by Mr. McShea and his co-counsel in the case, Mr. Peterson, [sic] before we can approve an attorney's fee of $26,-000 plus in this case . [T]he decision on the attorney's fee issue in terms of the exact dollar amount of the proceeds to be appropriated to the attorneys' fees will be reserved pending receipt from Mr. McShea of an accounting sheet to give us an idea of what is a reasonable attorneys' fee in light of the size of the claim, the problems that you've had and so forth _ AS 23.30.145 discusses reasonable attorneys' fees and the leeway that the Board has in awarding attorney fees on the basis of reasonableness, and that's what we would like to see.\\n. [A]ll we are asking for is an idea of the amount of time and frustration, whatever, that you put into this case in terms of the size of the award that you've requested. It is not our intention to approve a one-third contingency fee per se, and that is the reason we are asking for this accounting sheet.\\nThe Board also explained that it could not award fees for services performed at the superior court level. McShea and Petersen promised to submit the necessary information \\\"by this time next week . \\\"\\nAlmost three months later, the Board decided not to wait any longer for the attorneys to do what they had promised. Perhaps referring to conversations that had taken place off the record, the Board described the evidence before it as follows:\\nMcShea admitted that the Superior Court had awarded Mr. Peterson attorney fees following the appeal but he could not give the specific amount of the Superior Court's award. Furthermore, when questioned by the Board regarding the total hours invested by both Petersen and himself on the claim McShea was unable to respond with specifics. Instead he submitted two professional employment contracts, signed by the employee, which purport to outline the fee arrangement governing the relationship between the employee and his attorneys\\nMcShea was given 10 days to submit a memorandum detailing his efforts on behalf of the employee and justifying a fee of one-third of the settlement award. The Board specifically directed McShea's attention to AS 23.30.145 and requested that he address that section in making his plea for approval of the fee arrangement.\\nThe Board has received nothing from McShea or Petersen since then, despite the fact that the record has been left open without objection.\\nBased on the record, we find no support for an award of attorney's fees in excess of the minimum provided for in AS 23.30.145(a). Accordingly, we conclude that an award of statutory minimum fees under AS 23.30.145(c) is both reasonable and proper.\\nMcShea and Petersen thus received $8,150, the statutory minimum. They did not appeal. Instead, they filed a \\\"Motion for Reconsideration,\\\" which the Board treated as a petition for modification of award submitted pursuant to AS 23.30.-130. Doubting that it had made a \\\"mistake in its determination of a fact,\\\" the Board denied the petition. Again, the attorneys failed to appeal. Two months after the Board rejected their petition, they filed an \\\"Application for Modification of Decision and Order,\\\" this time explicitly relying on AS 23.30.130. Again, the Board was unimpressed:\\nAttorneys argue that the Board erred in a determination of fact in awarding only minimum statutory attorney's fees in its Decision and Order . In particular attorneys argue that \\\"extensive\\\" testimony was presented at the hearing . to substantiate an award of attorney's fees in excess of the statutory minimum including evidence of the difficulty of this case, the involvement of two attorneys, the requirement of the taking of an appeal, the requirement of a major deposition trip, and the difficulty of working with the client including the client's failure to appear for scheduled hearings. Attorneys further argue that the Board erred in failing to consider additional evidence of attorneys' involvement in this claim submitted with attorneys' original motion for reconsideration\\nThe Board rejects this claim of error. Under AS 23.30.145(a) the Board, in determining the amount of attorney's fees to be awarded, must take into consideration \\\"the nature, length and complexity of the services performed, transportation charges, with [sic: should be \\\"and\\\"] the benefits resulting from the service to the compensation beneficiaries.\\\" The Board has reviewed the evidence presented at the hearing . and finds, having considered the criteria contained in AS 23.-30.145 for awarding attorney's fees in excess of the statutory minimum, that it did not err in its determination of fact in awarding the statutory minimum attorney's fees. The Board's request for further evidence by attorneys to substantiate an award in excess of the statutory minimum at the hearing . was based upon a finding that insufficient evidence had been presented at that time to justify such an award. The Board specifically indicated that it would not award attorney's fees based on the contingent fee agreement entered into between employee and his attorneys. The Board finds that it did not err in this determination. The subsequent failure of attorneys to present further evidence in a timely manner to substantiate an award in excess of the statutory minimum precludes a modification of the . Decision and Order.\\nThe Board also reiterated its position that it could not award attorney's fees for work done before the superior court.\\nMcShea and Petersen then filed an appeal. The superior court found that the Board's award of $8,150 for work done at the administrative level was correct, but modified its own earlier award of $200 in fees for the successful appeal, granting McShea and Petersen an additional $7,800 for their appellate work. Like the Board, the superior court refused to rely on the contingent-fee agreement between Mays and the attorneys. Its award was based on a bill of costs and fees which the attorneys had filed just after the remand. The attorneys have now appealed to this court.\\nII.\\nAt the outset we again note that the attorneys do not bring this appeal from the Board's original decision fixing attorney's fees. As indicated earlier, the attorneys failed to appeal from the Board's attorney's fees determination. Thus, this appeal is limited to the Board's denial of the attorneys' application for a modification of the Board's original order. To prevail against the Board, the attorneys must show that the Board abused its discretion by refusing to correct a mistake of fact. If substantial evidence in the record supports the Board's decision not to modify its award, we will not disturb that decision. See Interior Paint Co. v. Rodgers, 522 P.2d 164 (Alaska 1974). The attorneys argue that the Board's original decision rested on two mistakes of fact. We disagree.\\n\\\"It appears,\\\" the attorneys assert, \\\"that the board awarded only a minimum fee because it was under the misconception that the [superior] court had awarded an attorneys' fee.\\\" As support for their interpretation of the Board's award, the attorneys rely on one sentence in one of the Board's decisions:\\nMcShea admitted that the Superior Court had awarded Mr. Petersen attorneys' fees following the appeal but he could not give the specific amount of the Superior Court's award.\\nWe note that McShea and Petersen are not arguing that the superior court failed to award Petersen attorney's fees. Nor do they claim that McShea was in fact able to tell the Board how much Petersen had received. Instead, their argument rests on the assumption that the Board would have awarded more than minimum attorney's fees had it known that the superior court's original award had been only $200. This assumption is incorrect. A review of the record shows that the Board did not believe that it could award attorney's fees for work done before the superior court and that McShea and Petersen had failed to distinguish between work done at the appellate and the administrative levels. Its inquiry about the superior court's award, then, was part of an attempt to establish how much work had been done before the superior court, so that it would not award compensation for that work. There was no \\\"mistake of fact\\\" here.\\nMcShea and Petersen also argue that the Board was factually mistaken when it asserted that there was no support in the record for awarding more than minimum fees. Characterizing this conclusion as a \\\"mistake of fact\\\" is quite difficult, and the attorneys' attempt to do so is not persuasive. What they are actually objecting to is the Board's insistence on documentation of their time, and the Board's refusal to base its fee award on the contingent-fee contract. The Board's decision on this point was legal, not factual. Under the terms of the modification statute, the Board's refusal to modify its award was justified.\\nEven though the issue is not properly before us, we offer the following observations regarding the determination of reasonable compensation for legal services rendered to claimants. AS 23.30.145(a) provides in part that:\\nFees for legal services rendered in respect to a claim are not valid unless approved by the board, and fees may not be less than 25 per cent on the first $1,000 of compensation or part of the first $1,000 of compensation, and 10 per cent of all sums in excess of $1,000 of compensation . In determining the amount of fees the board shall take into consideration the nature, length and complexity of the services performed, transportation charges, and the benefits resulting from the services to the compensation beneficiaries.\\nSubsection (c) of AS 23.30.145 further provides that:\\nIf proceedings are had for review of a compensation or medical and related benefits order before a court, the court may allow or increase an attorney's fees. The fees are in addition to compensation or medical and related benefits ordered and shall be paid as the court may direct.\\nIn Wien Air Alaska v. Arant, 592 P.2d 352, 365-66 (Alaska 1979), we noted that \\\"AS 23.30.145 seeks to insure that attorney's fee awards in compensation cases are sufficient to compensate counsel for work performed. Otherwise, workers will have difficulty finding counsel willing to argue their claims.\\\" (Footnote omitted). Regarding the role of the superior court in determining attorney's fees in a compensation appeal, we said:\\nThe Superior Court's fee award for the appeal should provide for realistic compensation, taking into account the same factors that the Workmen's Compensation Board considers when it grants attorney's fees for non-controverted claims: \\\"the nature, length and complexity of the services performed, transportation charges, and the benefits resulting from the services to the compensation beneficiaries.\\\"\\n592 P.2d 352 at 366 (footnote omitted). The Board's belief that it lacked the authority to award fees for appellate work is not directly challenged in this appeal and thus we need not decide whether the Board's reading of AS 23.30.145 is correct. Nevertheless, we note that in light of the foregoing it is not self-evident that the Board was mistaken in its belief.\\nWith these considerations in mind we turn to the attorneys' last contention, that the superior court abused its discretion by refusing to raise the total attorney's fee award to $26,667. Because the contingent-fee agreement was not controlling, the superior court properly looked to the bill of fees and costs which attorney Petersen had submitted for his earlier work. Given the attorneys' failure to establish that the Board should have modified its award, the superior court's refusal to award more than the fees the attorneys had already asked it to award was neither arbitrary nor capricious.\\nAFFIRMED.\\n. The transcript of the original hearing does not directly establish three facts referred to by the Board \\u2014 McShea's \\\"admission\\\" about appellate fees, his failure to specify total hours worked, and the 10-day period during which McShea and Petersen were to submit a fee memorandum. The transcript does, however, refer to extensive off-the-record discussions between the Board and the attorneys. McShea and Petersen do not claim that any of these factual assertions are false. Nor do they argue that off-the-record discussions should not have been considered by the Board and should not be considered by reviewing courts.\\n. Under AS 23.30.145, the minimum attorney's fee is $250 for the first $1,000 of a compensation award and 10% of any additional amount.\\n. At the time, the Board's regulations provided for rehearings, 8 AAC 45.150, but grounds for rehearing were limited to \\\"newly discovered evidence which could not with reasonable diligence have been produced at the prior hearing,\\\" and the attorneys did not try to invoke it. AS 23.30.130(a), the statute under which the Board considered the attorneys' motion for reconsideration, provides in pertinent part:\\nUpon its own initiative, or upon the application of any party in interest on the ground of a change in conditions . or because of a mistake in its determination of a fact, the board may, before one year after the date of the last payment of compensation, whether or not a compensation order has been issued, or before one year after the rejection of a claim, review a compensation case in accordance with the procedure prescribed in respect of claims in AS 23.30.110. In accordance with AS 23.30.110 the board may issue a new compensation order which terminates, continues, reinstates, increases, or decreases the compensation, or award compensation.\\nThis statute clearly applies to compensation awards. The fact that it applies to grants of attorney's fees is much less obvious. Nevertheless, none of the parties has objected to the Board's decision to use the modification statute. In a comprehensive revision of its regulations the Board has enacted a new 8 AAC 45.150, which much more explicitly allows petitions to modify \\\"board orders.\\\"\\n. In its decision the Board stated in part:\\nWe perceive from [AS 23.30.260] . an intention on the part of the legislature that fees for services performed before the Board are to be referred to the Board for approval while fees for services performed in court are to be referred to the court.\\nWe conclude, therefore, the Board has no authority to award attorney's fees for appellate work. The award of the statutory minimum attorney's fees of $8,150.00 was based solely on the attorneys' efforts in representing employee's interest before the Board; it is not to be construed as compensation for any efforts expended on employee's behalf for the taking of an appeal in this action.\\n. In its decision the superior court said in part:\\nIn this case, counsel submitted a bill of costs on March 31, 1981 for the prior Superi- or Court proceedings. Total costs and fees for the first appeal totalled $8,934.58. This court awarded $200 in nominal fees and full costs in the amount of $934.58 on the apparently mistaken assumption that the Board on remand, would compensate counsel appropriately for prosecuting the successful appeal. Since the Board declined to award fees for the appeal, this court hereby modifies its previous fee award.\\nThe attorney's fees for work done before the Superior Court are increased from $200 to $8,000. This amount is in addition to the Board's award of $8,150. Since counsel were already awarded $200 in fees by this court, counsel are entitled to a net increase in fees of $7,800, to be paid out of the Compromise and Settlement money currently on deposit in appellant McShea's trust account. The balance of the Compromise and Release funds are to be paid out to the employee, Mr. Virgil Mays.\\n. In the Arant case we remanded to the Superi- or Court with directions that it remand to the Board for a determination of attorney's fees. We also said that '[t]he Superior Court shall make its determination of the fees to be granted because of the appeal after the Workmen's Compensation Board makes its fee award.\\\" See also Rose v. Alaskan Village, Inc., 412 P.2d 503, 508-10 (Alaska 1966); M-B Contracting Company v. Davis, 399 P.2d 433, 436 (Alaska 1965).\\n. Neither the case authority alluded to nor the provisions of AS 23.30.145 explicitly preclude the Board from awarding attorney's fees for services rendered to claimants in conjunction with proceedings before the superior court or this court. Nor do these authorities explicitly speak to the question of whether the Board retains the residual authority to review an overall attorney's fee award in the context of a Board decision which has undergone appellate review. We leave the resolution of these questions for a more appropriate occasion.\"}"

alaska/10429415.json

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+"{\"id\": \"10429415\", \"name\": \"Victor BURGESS, Glen Douglas, Dean Edenshaw, Percy Frisby, Hydaburg Cooperative Association, Albert Natkong, Don Natkong and Robert Sanderson, Appellants, v. ALASKA LIEUTENANT GOVERNOR TERRY MILLER, Appellee\", \"name_abbreviation\": \"Burgess v. Alaska Lieutenant Governor Terry Miller\", \"decision_date\": \"1982-11-05\", \"docket_number\": \"No. 6915\", \"first_page\": \"273\", \"last_page\": \"277\", \"citations\": \"654 P.2d 273\", \"volume\": \"654\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T18:08:40.349468+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BURKE, C.J., and RABINOWITZ, CONNOR, MATTHEWS and COMPTON, JJ.\", \"parties\": \"Victor BURGESS, Glen Douglas, Dean Edenshaw, Percy Frisby, Hydaburg Cooperative Association, Albert Natkong, Don Natkong and Robert Sanderson, Appellants, v. ALASKA LIEUTENANT GOVERNOR TERRY MILLER, Appellee.\", \"head_matter\": \"Victor BURGESS, Glen Douglas, Dean Edenshaw, Percy Frisby, Hydaburg Cooperative Association, Albert Natkong, Don Natkong and Robert Sanderson, Appellants, v. ALASKA LIEUTENANT GOVERNOR TERRY MILLER, Appellee.\\nNo. 6915.\\nSupreme Court of Alaska.\\nNov. 5, 1982.\\nWalter T. Featherly, III, Roberts & She-felman, Anchorage, for appellants.\\nLaura L. Davis, Asst. Atty. Gen., and Wilson L. Condon, Atty. Gen., Juneau, for appellee.\\nBefore BURKE, C.J., and RABINOWITZ, CONNOR, MATTHEWS and COMPTON, JJ.\", \"word_count\": \"2362\", \"char_count\": \"14627\", \"text\": \"OPINION\\nRABINOWITZ, Justice.\\nIn May 1981, Terry Miller, Lieutenant Governor of Alaska, prepared an initiative petition entitled \\\"Personal Consumption of Fish and Game\\\" which included the following summary:\\nThis proposal would, for fishing, hunting, or trapping for personal consumption, prevent classification of persons on the basis of economic status, land ownership, local residency, past use or dependence on the resource, or lack of alternative resources. It would, as does the existing law, also bar classifications by race or sex for any taking of fish or game. It repeals existing provisions of the Fish and Game code, which provide for, or relate to, subsistence hunting and fishing.\\nIn March 1982, after the requisite number of qualified signatures had been obtained and the petition had been filed by the initiative sponsors, the lieutenant governor notified the sponsors that the proposed law would be placed on the November 1982 general election ballot.\\nOn April 9, 1982, appellants filed a complaint against the lieutenant governor in superior court alleging that the summary in the initiative petition was misleading and biased in favor of the proponents of the initiative because it stated that the proposed bill \\\"would . prevent classification of persons on the basis of . local residency, past use or dependence on the resource, or lack of alternative resources\\\" when in fact the bill would not prevent enforcement of a federal law classifying persons on the basis of those criteria. Appellants sought a ruling declaring the initiative petition invalid as well as an injunction preventing the lieutenant governor from preparing and placing on the general election ballot a ballot title and proposition based on the proposed bill. After cross-motions for judgment on the pleadings had been filed, the superior court entered a Memorandum of Decision and Order in which it granted the state's motion. In its decision, the superior court stated among other things that:\\n[T]he question this court must decide is not whether the petition summary or the ballot summary state the effect of a proposed law, but rather whether the summary accurately states the subject matter of the proposed law, fairly and impartially. AS 15.45.090(2), 15.45.180.\\nIt may well be that adoption of the initiative by the voters in the November general election will result in imposition of subsistence preference for fish and game on all federal land in Alaska. The initiative does not and cannot speak to that issue. What it can and does speak to is the matter of subsistence classification on state land and I find that the summary fairly and accurately states the subject matter of the proposed law.\\nThis appeal followed.\\nArticle XI, section 3 of the Alaska Constitution provides that the lieutenant governor shall include a \\\"summary of the subject matter\\\" of the proposed bill in the initiative petition. AS 15.45.090 provides that this summary shall be \\\"impartial.\\\" If the completed petition is accepted by the lieutenant governor, article XI, section 4 of the constitution provides that the \\\"lieutenant governor shall prepare a ballot title and proposition summarizing the proposed law, and shall place them on the ballot . \\\" AS 15.45.180 provides that the proposition \\\"shall, in not more than 100 words, give a true and impartial summary of the proposed law.\\\"\\nThis appeal raises a question of first impression for this court regarding the adequacy of an initiative petition summary and ballot proposition. In regard to issues of this character, the Supreme Court of Colorado states that an initiative summary must be\\na fair, concise, true and impartial statement of the intent of the proposed measure. The summary may not be an argument for or against the measure, nor can it be likely to create prejudice for or against the measure.\\nThe Arkansas Supreme Court holds that ballot titles (the Arkansas term for summaries) should be\\ncomplete enough to convey an intelligible idea of the scope and import of the proposed law, and that it ought to be free from any misleading tendency, whether of amplification, of omission, or of fallacy, and that it must contain no partisan coloring.\\nWe believe that these authorities identify the appropriate criteria for us to use in determining whether the lieutenant governor's summary in the case at bar conforms with the constitutional and statutory requirements of an impartial and truthful summary. In conducting this inquiry, we will utilize a deferential standard of review. The burden is upon those attacking the summary to demonstrate that it is biased or misleading.\\nThe primary emphasis of appellants' argument is that the lieutenant governor's summary exaggerates the basic purpose of the proposed legislation. Appellants complain that the summary includes a \\\"false\\\" statement that the proposed bill would eliminate all subsistence hunting preferences in Alaska when in fact the bill would not, and was not intended to, eliminate the federal subsistence preference.\\nThe lieutenant governor is not under an obligation to assume that every reader of the petition or ballot summary will take the wording of the summary at precisely its dictionary value. He is entitled to rely on the premise that readers of the summary understand that in the absence of explicit language to the contrary, state initiatives are intended to change state law and bind the state government, not federal law and the federal government. Even under the circumstances of this case, the Alaska Constitution and the state electoral laws do not require the lieutenant governor to give, \\\"special\\\" reminders to the voters regarding the scope of a state initiative.\\nAppellants also argue that the summary is invalid because it attempts to state what the effect of the proposed bill would be, i.e., \\\"[t]his proposal would . prevent classification of persons .\\\" (emphasis furnished). Statements regarding a proposed bill's effect, they assert, are generally barred from petition and ballot summaries because of the bias they may introduce into the initiative process.\\nIn the instant case, the summary's prediction (assuming it can be fairly characterized as such) as to the proposed bill's effect is amply supported by the text of the bill. In our view, applying the previously stated criteria, the summary's use of the language \\\"would prevent\\\" is neither misleading nor inaccurate.\\nThe superior court's decision, as it relates to the impartiality and accuracy of the lieu tenant governor's petition and ballot summary, is AFFIRMED.\\n. There are several steps in the Alaska initiative process. The proponents of the initiative must first file an application with the lieutenant governor. Alaska Const, art. XI, \\u00a7 2; AS 15.-45.020. If the application is certified, the lieutenant governor must prepare a petition containing, among other things, a summary of the subject matter of the proposed bill. Alaska Const, art. XI, \\u00a7 3; AS 15.45.090. If the petition is signed within one year by \\\"qualified voters equal in number to 10 per cent of those who voted in the preceding general election and resident in at least two-thirds of the election districts of the state,\\\" it may be filed with the lieutenant governor. Alaska Const, art. XI, \\u00a7 3; AS 15.45.140. The lieutenant governor then prepares a ballot title and proposition summarizing the proposed law and places them on the ballot for the first statewide election held more than one hundred twenty days after adjournment of the legislative session following the filing. Alaska Const, art. XI, \\u00a7 4; AS 15.-45.180-190. Any person aggrieved by a determination made by the lieutenant governor may bring an action in superior court within thirty days of the date on which notice of the determination was given. AS 15.45.240.\\nThe initiative in question reads as follows:\\nAN INITIATIVE\\nFor an Act entitled: \\\"An Act relating to individual equality for personal consumptive users of fish and game, and to repeal existing laws relating to subsistence use of fish and game.\\\"\\nBE IT ENACTED BY THE PEOPLE OF THE STATE OF ALASKA:\\n*Section 1. AS 16.05 is amended by adding a new section to read:\\nSection 16.05.907. HUNTING, FISHING AND TRAPPING.\\n(a) This section may be cited as the Alaska Anti-Discrimination Hunting, Fishing and Trapping Rights Act.\\n(b) There shall be no discrimination in the allocation of fish or game based on race or sex.\\n(c) Fish and wildlife are reserved to all the people of the state for common use. These resources should be equally available to personal consumptive users of all fish or game, and no distinctions shall be made for the reason of economic status, land ownership, local residency, past use or past dependence on the resource, or lack of alternative resources.\\n(d)The Board of Fisheries and the Board of Game may adopt regulations providing for and distinguishing between commercial fishing, sport fishing, hunting and trapping.\\n* Section 2. AS 16.05.090(c), AS 16.05.094, AS 16.05.251(b), AS 16.05.255(b), AS 16.05.-257, AS 16.05.930(e), AS 16.05.940(17), AS 16.05.940(26), and AS 16.05.940(27) are repealed.\\n* Section 3. If any provision of this Act or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications thereof.\\n. Section 804 of the Alaska National Interest Lands Conservation Act (ANILCA) provides: PREFERENCE FOR SUBSISTENCE USES\\nExcept as otherwise provided in this Act and other Federal laws, the taking on public lands of fish and wildlife for nonwasteful subsistence uses shall be accorded priority over the taking on such lands of fish and wildlife for other purposes. Whenever it is necessary to restrict the taking of populations of fish and wildlife on such lands for subsistence purposes in order to protect the continued viability of such populations, or to continue such uses, such priority shall be implemented through appropriate limitations based on the application of the following criteria:\\n(1) customary and direct dependence upon the populations as the mainstay of livelihood;\\n(2) local residency; and\\n(3) the availability of alternative resources.\\nSubsection 805(d) of ANILCA provides that the federal government will not move to implement Section 804 on public lands outside national parks and monuments so long as the State of Alaska maintains a subsistence preference program that complies with the requirements set forth in \\u00a7 805(a)-(c). 16 U.S.C.A. \\u00a7 3114, 3115 (West Supp. 1975-1981).\\n. Appellants request this court to reverse the superior court, invalidate the initiative petition, and enjoin the lieutenant governor from placing the question of the proposed law on the November ballot. Alternatively, appellants request that the court revise the ballot proposition.\\n. The state has indicated that the lieutenant governor plans to use the text of the petition summary for the ballot proposition.\\n. In re Second Initiated Constitutional Amendment Respecting the Rights of the Public to Uninterrupted Service by Public Employees of 1980, 613 P.2d 867, 869 (Colo.1980).\\n. Hope v. Hall, 229 Ark. 407, 316 S.W.2d 199, 201 (1958). The Supreme Judicial Court of Massachusetts has defined a summary in the following manner:\\nA summary is an abridgement, abstract, compendium, or epitome. The word carries with it the idea that, however much the subject matter may be condensed, the sum and substance of it must remain. No doubt details may be omitted or in many instances covered by broad generalizations, but mention must be made of at least the main features of the measure. And the summary must be \\\"fair\\\"; that is to say, it must not be partisan, colored, argumentative, or in any way one-sided, and it must be complete enough to serve its purpose of giving the voter who is asked to sign a petition or who is present in a polling booth a fair and intelligent conception of the main outlines of the measure. It must do more than merely indicate the field of human or governmental activity within which the measure falls. It must go beyond what would serve as the title to a statute. Sears v. Treasurer and Receiver General, 327 Mass. 310, 98 N.E.2d 621, 631 (1951).\\n. Most of the courts that have dealt with challenges to initiative summaries utilize a deferential standard of review and refuse to invalidate a summary simply because they believe a better one could be written. The California Supreme Court holds that\\n[in] approaching the question as to whether the title [i.e., summary] so prepared is a proper one all legitimate presumptions should be indulged in favor of the propriety of the attorney-general's actions. Only in a clear case should a.title so prepared be held insufficient. Stated another way, if reasonable minds may differ as to the sufficiency of the title, the title should be held to be sufficient.\\nEpperson v. Jordan, 12 Cal.2d 61, 82 P.2d 445, 448 (1938). The Colorado Supreme Court cited this statement with approval in Say v. Baker, 137 Colo. 155, 322 P.2d 317, 319 (1958). The Arkansas Supreme Court followed suit in Mason v. Jernigan, 260 Ark. 385, 540 S.W.2d 851, 853 (1976). Even the Oregon Supreme Court, which often revises and rewords ballot summaries, has stated that it is \\\"not concerned with whether the petitioner's proposed [summary] may be better or even whether [it] could devise a better one [itself].\\\" Priestly v. Paulus, 287 Or. 141, 597 P.2d 829, 831 (1979).\\nGiven these authorities and the fact that \\\"there is no end of difficulty in choosing language which will awaken in the reader the very same thought that was in the mind of the writer.\\\" State ex rel Foreman v. Brown, 10 Ohio St.2d 139, 226 N.E.2d 116, 123 (1967), we have concluded that it would be inappropriate for this court to adopt a substitution-of-judgment standard of review.\\n. A contrary conclusion would require all initiatives that touch on matters that are regulated in some way by federal law to include a statement disclaiming any intent to change federal law or to bind the federal government.\\nWe announced this decision in an order issued on August 19, 1982, and indicated that this opinion would follow.\"}"

alaska/10431564.json

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+"{\"id\": \"10431564\", \"name\": \"Sigurd RUTTER, Appellant, v. STATE of Alaska, Alaska Commercial Fisheries Entry Commission, John Williams, Burke Riley, and Robert Simon, Commissioners of the Alaska Commercial Fisheries Entry Commission, Appellees\", \"name_abbreviation\": \"Rutter v. State\", \"decision_date\": \"1983-08-26\", \"docket_number\": \"No. 6146\", \"first_page\": \"1343\", \"last_page\": \"1349\", \"citations\": \"668 P.2d 1343\", \"volume\": \"668\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T22:11:59.696345+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BURKE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.\", \"parties\": \"Sigurd RUTTER, Appellant, v. STATE of Alaska, Alaska Commercial Fisheries Entry Commission, John Williams, Burke Riley, and Robert Simon, Commissioners of the Alaska Commercial Fisheries Entry Commission, Appellees.\", \"head_matter\": \"Sigurd RUTTER, Appellant, v. STATE of Alaska, Alaska Commercial Fisheries Entry Commission, John Williams, Burke Riley, and Robert Simon, Commissioners of the Alaska Commercial Fisheries Entry Commission, Appellees.\\nNo. 6146.\\nSupreme Court of Alaska.\\nAug. 26, 1983.\\nPamela Finley, Robertson, Monagle, Eas-taugh & Bradley, Juneau, for appellant.\\nJohn B. Gaguine and Deborah Vogt, Asst. Attys. Gen., Juneau, and Wilson L. Condon, Atty.' Gen., Juneau, for appellees.\\nBefore BURKE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.\", \"word_count\": \"3651\", \"char_count\": \"23606\", \"text\": \"OPINION\\nBURKE, Chief Justice.\\nThis case involves a pure question of law. Plaintiff/Appellant Sigurd Rutter, a professional salmon hand troller, is challenging a series of regulations promulgated by the Commercial Fisheries Entry Commission limiting entry into the salmon hand troll fishery. Rutter raises three distinct issues on appeal: (1) whether the Commission violated the provisions of the Limited Entry Act in issuing too many entry permits; (2) whether the priority classification system devised to allocate entry permits. violates various Alaska statutes and the state and federal constitutions; and (3) whether the classification scheme must include the four indicia of economic dependence enumerated in AS 16.43.250(a)(1).\\nThe superior court thought the regulations valid and dismissed Rutter's action on the Commission's motion for summary dismissal. We reverse, holding that the Commission was not free to disregard the four indicia of economic dependence set forth in AS 16.43.250(a)(1).\\nI\\nThe Salmon Hand Troll Fishery\\nThere are two different salmon troll fisheries. The power troll fishery consists of larger boats equipped with cold storage facilities and mechanically operated gurdies. In contrast, the hand troll fishery consists of smaller boats which usually make day trips, and are equipped with hand operated gurdies or rod and reel gear. The two compete for king and coho salmon.\\nUnlike the power troll fishery, which was limited in 1975, the hand troll fishery remained open to entry until the Commission promulgated the regulations at issue here. As one of the few remaining open fisheries, and one requiring little in the way of initial investment, the number of commercial license holders using the hand troll fishery expanded greatly: from 1094 in 1975, to 1239 in 1976, 1849 in 1977, and 2604 in 1978. CFEC Briefing Paper No. 4, at 3, December 20, 1978.\\nMuch of this growth is attributable to the emergence of a pleasure boat fleet. Manned by city dwellers engaged in non-fishing related occupations, these boats are primarily used for recreational and sport fishing, landing only a few salmon to defray expenses. By 1978, three competing groups used the hand troll fishery: (1) the avocational sport fishermen; (2) fishermen supplementing other \\u2022 fishing income with income from salmon trolling; and (3) those fishermen deriving their principal livelihood from the fishery, the economically dependent trailers.\\nAs the number of fishermen increased, the area fished expanded greatly. Traditionally, hand trailers restricted activities to small areas localized around their communities. Recently, however, the highly mobile sport fishing boats have moved farther afield and are competing directly with the power trailers. Changes in the distribution of the catch reflect this development: hand trailers caught seventeen percent of the total troll catch in 1975 and 1976, twenty-nine percent in 1977 and thirty-four percent in 1978.\\nIncreased use led to gear restrictions and management closures in both troll fisheries. These restrictions impeded the ability of the economically dependent fishermen to earn an adequate income, prompting a limited entry proposal. Originally, the Commission contemplated issuing 1,100 permits, despite the fact that they knew the optimum number to be nearer 500-600 permits. After encountering public opposition to the 1,100 figure as being too low, the Commission decided to issue 2,150 permits.\\nHaving set the maximum number, the Commission promulgated regulations allocating these entry permits among the over 4,000 potential applicants. As required by statute, the classification system selected focuses on the degree of hardship an applicant would experience if excluded from the fishery, hardship being assessed through two hardship standards: economic dependence and past participation.\\nApplicants can be awarded up to thirty-one points for past participation in the fishery. 20 AAC 05.677(a)(1) (Eff. 3/6/81). An additional twenty-five points can be awarded on the basis of consistent past participation, allocated according to the number of weeks fished in any three of the five years between 1975 and 1979. 20 AAC 05.-677(b)(1).\\nA total of nineteen points hinges on income dependence on the fishery. Earnings from the fishery are used lo assess economic dependence, as demonstrated by the table below:\\n1975 $ 200.00 6\\n1976 500.00 6\\n1977 700.00 7\\n1978 750.00 7\\n1979 1,200.00 7\\n20 AAC 05.677(c)(1).\\nFinally, fifteen points are allocated according to the availability of alternative occupations in the place of the applicant's domicile. 20 AAC 05.677(c)(2). Applicants residing in rural areas receive the maximum number of points. Id.\\nAn applicant amassing eighty or more points is considered significantly dependent and automatically qualifies for an entry permit. 20 AAC 05.678(a) (Eff. 3/6/81). Those applicants earning less than seventy points are considered less dependent and receive permits only as they become available. 20 AAC 05.678(b). Permits issued to significantly dependent applicants are freely transferrable; those issued to less dependent applicants are subject to restrictions on transfer and the buy-back provisions of the Limited Entry Act. 20 AAC 05.678(a) & (b). The Commission has yet to establish a buy-back program for the salmon hand troll fishery.\\nUnder these provisions, Rutter could amass a total of thirty-four points. He began fishing in 1979, invested in a vessel and gear, and derives approximately sixty to seventy percent of his income from hand trolling.\\nUnder the impression that he would be denied a permit, Rutter filed suit to declare the regulations invalid. The lower court upheld the regulations, and dismissed Rut-ter's case on the Commission's motion for a summary dismissal. Rutter thereupon appealed to this court.\\nOn appeal, Rutter alleges various grounds for reversal. We hold that the Commission exceeded the scope of its authority in promulgating regulations which omit three of the four statutorily mandated criteria of economic dependence.\\nAs a threshold matter, we must determine if Rutter has standing to prosecute this appeal. The application period for obtaining a salmon hand troll permit closed on August 31,1981. As of that date, the Commission had received 2,274 timely applications. According to the Commission, it therefore appears \\\"nearly certain\\\" that Rutter will obtain an entry permit. The Commission concludes that the entire case is necessarily moot.\\nWe disagree. AS 44.62.300 provides that an \\\"interested person\\\" has standing to obtain judicial review of an administrative regulation. In this case, Rutter is \\\"interested\\\" in the number of permits issued, for his ability to fish commercially is directly affected by the number of trollers using the fishery. The parties agree that issuing 2,150 permits will necessarily result in gear restrictions and management closures, rendering Rutter's trade less profitable. That Rutter will obtain a permit does not alleviate his concern, for he is concerned that too many other applicants will also obtain permits.\\nWe note further that, even if this case were technically moot, it would fall within the public interest exception to the mootness doctrine. This court will hear a moot case if it presents an issue of public importance. Alaska Transportation Commission v. Gandia, 602 P.2d 402, 403 (Alaska 1979); Doe v. State, 487 P.2d 47, 53 (Alaska 1971). In this instance, a determination here would aid the Commission in formulating new regulations and applying the old. See Northwest Trollers Association v. Moos, 89 Wash.2d 1, 568 P.2d 793 (1977). Moreover, a fair number o\\u00ed nonparties are interested in the outcome of this suit, specifically, those applicants who will not receive permits. Since the mootness doctrine is a matter of judicial discretion, and not constitutional law, we are free to elect to address the case on the merits. See Alaska Transportation Commission v. Gandia, 602 P.2d 402 (Alaska 1979); R.L.R. v. State, 487 P.2d 27 (Alaska 1971). This we proceed to do.\\nII\\nThe Maximum Number of Permits\\nAS 16.43.240 sets forth the standards for determining the maximum number of entry permits the Commission can issue for a given fishery. In a distressed fishery, that is, a fishery in which the number of users exceeded the optimum number as of January 1, 1973, the maximum number \\\"shall be the highest units of gear fished in that fishery during any one of the four years preceding January 1, 1973.\\\" AS 16.43.240(a). The act provides no guidelines for determining the appropriate number of permits for a non-distressed fishery, other than noting that the number selected should further the legislative purpose. AS 16.43.240(b).\\nAs the salmon hand troll fishery was not overgeared as of January 1,1973, AS 16.43.-240(b) applies and the Commission is given broad discretion in setting the maximum number. The Commission contends that the number selected is reasonable and non-arbitrary, one well within its discretion to select. Under the applicable standard of review, Rutter must establish that the number was the expression of a whim, rather than the product of reason. Kelly v. Zamarello, 486 P.2d 906, 910 (Alaska 1971). We conclude that Rutter has not so established.\\nRutter's argument reduces to the simple proposition that the Limited Entry Act calls for the immediate exclusion of a large number of avocational fishermen so that a smaller number of economically dependent trollers can fish without any gear restrictions whatsoever. Underlying this argument is the premise that the salmon hand troll fishery is a commercial fishery, and that the interests of commercial trollers take precedence over the interests of all other users. This position, however, characterizes the purposes of the Limited Entry Act too narrowly and ignores pertinent legislative history accompanying that act.\\nAs initially proposed, the Limited Entry Act called for an immediate reduction in the number of fishermen to the optimum level in all distressed fisheries. Not surprisingly, this aspect of the act generated substantial public opposition. As a result, the act as passed requires that the Commission fix the maximum number of permits at a level approximating past participation, contemplating a gradual decrease in use through operation of a buy-back program. See 1973 House Journal 503 (\\\"instead of making an initial reduction to the optimum number of units of gear, the commission would issue entry permits at the present level of fishing effort and reduce the amount of gear to optimum levels through a voluntary buy-back program.\\\")\\nThat the legislature intended the number of permits initially issued to reflect actual use is further evidenced by the very structure of the buy-back program. That program operates to purchase entry permits initially issued to less dependent trailers, individuals who would, by definition, suffer only minor economic discomfort if excluded from the fishery. See AS 16.43.170(c). The Act thus contemplates the issuance of permits to less dependent trailers, even though excluding these individuals would benefit the dependent trailers. Hence, the Act's purposes are not merely economic. The Act was designed to protect the reliance interests of all individuals using the fishery, as well as aiding the dependent fishermen.\\nIn this instance, the number of permits issued reflects present use. We therefore have little difficulty concluding that setting the maximum number at 2,150 was reasonable and in accord with the letter and spirit of the Limited Entry Act.\\nIll\\nThe Priority Classification System\\nAS 16.43.250 requires that the Commission allocate entry permits on the basis of the hardship an applicant would suffer if excluded from the fishery. Hardship is assessed through a reasonable balance of two hardship standards: economic dependence and past participation. Rutter maintains that the regulations fail to assess adequately economic dependence and past participation, and that the balance between the two is unreasonable.\\nA. Past Participation Points\\nUnder the present system, thirty-one points can be obtained by landing at least one fish a year for any three of the five years between 1975 and 1979. 20 AAC 05.-677(a)(1) & (2) (Eff. 3/6/81). An additional twenty-five points will be awarded on the basis of consistent past participation, assessed by looking at the number of weeks in which landings were made for any three years between 1975 and 1979. 20 AAC 05.-677(b)(1).\\nRutter contends that these provisions reward the enthusiastic avocational fishermen by failing to distinguish between the economically dependent and sport-commercial trailers. The Commission responds by noting that the computer print-out on run 27(b), the system eventually adopted, shows that only twenty-eight percent of the 4476 potential applicants, or 1274 individuals, would be able to show participation in three years. Forty-seven percent participated only one year. From these figures, the Commission argues that very few \\\"recreational dabblers\\\" will score highly, while virtually every professional who has been active for the last several years will receive the maximum number of points.\\nSimilarly, the Commission contends that the three to five weeks fished per year figure used to assess consistent past participation will include most professional trailers. A computer run reveals that if the number of weeks fished per year requirement were increased to seven weeks, a fig ure lower than that urged by plaintiff, fully seventy-three percent of the potential applicants would receive no points. In contrast, under the present system forty-two percent participated only one year, while fourteen percent qualified for three.\\nWe find these arguments persuasive. When considered in conjunction with the points awarded for economic dependence, most professional trailers will receive permits. Only in the rare instance, (e.g., a professional who recently started fishing) will a \\\"dabbler\\\" be preferred over an economically dependent trailer. The act calls for ho more.\\nWhen properly analyzed, Rutter's objection to the treatment of participation points is in reality an objection to the maximum number of permits issued. Rutter argues that the present system fails to distinguish between the avocational and professional trailer. This is quite true, but what Rutter fails to realize is that there is no need to distinguish between the two groups. Given the number of permits issued, and the relatively small number of professional trailers, almost all professionals will receive permits; the exclusionary line will be drawn between serious avocational trailers and less serious avocational trailers. Rutter's objection is not that professionals will be excluded, but that too many avocational fishermen will be included. He objects to the maximum number, an objection which lacks merit.\\nB. Economic Dependence\\nEarnings from the salmon hand troll fishery are used to assess income dependence. The maximum of nineteen points can be obtained by anyone deriving a relatively low gross income from the fishery: $200 in 1975, $500 in 1976, $700 in 1977, $750 in 1978, and $1,200 in 1979. 20 AAC 05.-677(c)(1) (Eff. 3/6/81). Rutter argues that \\\"because these points do not distinguish between the economically dependent hand trailer and the weekend avocational fishermen, they are essentially meaningless.\\\"\\nAn additional fifteen points are allocated on the availability of alternative occupations, based on the population of the place of the applicant's domicile. 20 AAC 05.-677(c)(2). Applicants living in rural areas receive the maximum number, the theory being that most avocational fishermen reside in urban areas while dependent trailers are country dwellers. Rutter, who lives in Sitka, does not address this aspect of the allocation scheme.\\nThe crux of Rutter's argument is that the point system is over-inclusive:\\nIf one is attempting to identify the economically dependent hand trailer, and believes that only a small portion of participants generate a major portion of their income from hand trolling, one would not establish a system which gives all possible points in this category to approximately fifty percent of the people fishing in relevant years . . [I]t is obvious that a small group of dependent hand trailers will not be identified by a system giving all points to those making less than the average income in the fishery.\\nThis argument misses the point. All that the act requires is that the Commission rank applicants by the hardship they would suffer if excluded from the fishery. Rut-ter, however, presumes that the Commission must precisely identify dependent trailers. Given the number of permits available, this degree of exactitude is uncalled for. Once again, plaintiff complains of the maximum number.\\nC. Reasonable Balance.\\nUnder the present system, individuals who participate but are not economically dependent will receive a maximum of fifty-six points. An economically dependent trailer who has been active for at least three years will receive both dependence and participation points, there being no such thing as a dependent trailer who did not participate. The two criteria complement each other well, and the balance is not so clearly unreasonable as to require invalidation of the regulations on this point.\\nIV\\nThe Requirements of AS 16.48.250(a)(1)\\nAS 16.43.250(a)(1) requires that the Commission include certain factors in its assessment of economic dependence. Specifically, it requires that the regulations assess \\\"percentage of income derived from the fishery, reliance on alternative occupations, availability of alternative occupations, [and] investment in vessels and gear . \\\" The regulations at issue here, however, incorporate only one of these factors, availability of alternate occupations. Rutter argues that the Commission exceeded the scope of its authority in omitting these criteria, and that the regulations are consequently invalid.\\nThe Commission found that special circumstances exist for the salmon hand troll fishery:\\n[T]he standards set out in AS 16.43.-250(a)(1) for vessel ownership, percentage of income and reliance on alternative occupations do not adequately reflect the degree of economic dependence on the fishery, and are unsatisfactory for determination of the degree of hardship an applicant would suffer by exclusion from the fishery.\\nThe Commission deemed investment in the fishery inappropriate as an indicator of economic dependence because of the \\\"unique nature of the hand troll fishery and the management philosophy applied to it.\\\" Findings of the Commercial Fisheries Entry Commission Regarding the Priority Classification System for the Statewide Salmon Hand Troll Fishery, at 2, January 9, 1981. The Commission apparently reasoned that investment is unrelated to dependence, for numerous avocational trailers have invested in expensive recreational trolling boats. And reliance on alternative occupations as a ranking factor was disregarded because of the nature of that fishery as a \\\"source of supplemental income to that derived through other means, including other fisheries.\\\" Id. Similarly, the \\\"characteristically low income earned from hand trolling\\\" persuaded the Commission to ignore the percentage of income derived by trailers from other sources. Id. at 3.\\nThe Commission was not free to disregard these statutory indicia of economic dependence. It is not at all clear that the Commission could not fashion a system incorporating all four factors in a logical, reasonable manner. That the Commission feels it could design a better classification scheme using only one of the factors is beside the point; it is not free to substitute its judgment for that of the legislature. Once the legislature determined that percentage of income derived from the fishery, reliance on alternative occupations and investment were relevant to economic dependence, the Commission was deprived of the power to decide otherwise.\\nAdministrative agencies are creatures of statute, deriving from the legislature the authority for the exercise of any power they claim. McDaniel v. Cory, 631 P.2d 82, 83 (Alaska 1981). In this instance, the statute requires that the Commission assess economnic dependence according to specifically enumerated factors. This the Commission failed to do. We therefore hold the regulations invalid as they relate to the assessment of economic dependence and reverse the lower court.\\nREVERSED.\\n. Our decision in this case was deferred pending our determination of the constitutional issues raised in State v. Ostrosky, 667 P.2d 1184 (Alaska 1983).\\n. Over 30 salmon fisheries were limited almost immediately after passage of the Limited Entry Act. See 20 AAC 05.300-320 (Eff. 12/18/74).\\n. In addition, holding a commercial license enables sport fishermen to continue fishing after sport fishing bag limits are reached and lets them avoid paying a portion of the motor fuel tax. The Commission notes further that some recreational fishermen were motivated by tax considerations, fishing commercially on a small scale to generate tax deductions.\\n.The Commission estimates that pleasure boats used by avocational fishermen presently constitute the largest segment of the hand troll fleet. It appears that no more than ten percent of the licensed trailers can be considered economically dependent. CFEC Briefing Paper No. 4, at 1-3, December 20, 1978.\\n. Id. at 4. The shift in catch distribution is even more pronounced in the Icy Straits area: in 1975, 75 percent of the troll catch went to power trailers, while only 25 percent went to hand trailers. By 1978, hand trailers were taking 65 percent of the catch while only 35 percent went to power trailers.\\n. A total of 4,476 different individuals participated in the fishery from 1975 through 1979. These individuals constitute the pool of potential applicants.\\n. Rutter qualifies for 11 points for past participation, nine for consistent past participation, seven for economic dependence, and seven for living in Sitka for a total of 34 points.\\n. Indeed, in Commercial Fisheries Entry Comm'n v. Apokedak, 606 P.2d 1255, 1265 (Alaska 1980), we noted that the act had the following four broad purposes: (1) enhancing the economic benefit to professional fishermen; (2) conserving the fishery; (3) avoiding unjust discrimination in the allocation of entry permits; and (4) administrative convenience.\\n. It is entirely consonant with the purposes of the act to give preference to those individuals that have fished the most. Isakson v. Rickey, 550 P.2d 359, 364 (Alaska 1976). That Rutter, as a new but dependent trailer, may be passed over in favor of an established avocational fisherman is perhaps a defect in the classification system, but it is important to remember that courts do not expect perfection of such a system. Were it otherwise, very few statutory classification schemes would survive judicial scrutiny. See Commercial Fisheries Entry Comm'n v. Apokedak, 606 P.2d 1255, 1267 n. 50 (Alaska 1980).\"}"

alaska/10431953.json

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+"{\"id\": \"10431953\", \"name\": \"Isaac C. NORMAN, Appellant, v. NICHIRO GYOGYO KAISHA, LTD. (Nichiro Fisheries Co., Ltd.) Nichiro Pacific, Ltd., Appellees\", \"name_abbreviation\": \"Norman v. Nichiro Gyogyo Kaisha, Ltd.\", \"decision_date\": \"1982-05-28\", \"docket_number\": \"No. 5254\", \"first_page\": \"191\", \"last_page\": \"200\", \"citations\": \"645 P.2d 191\", \"volume\": \"645\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T22:34:08.537990+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before RABINOWITZ, C. J., and CON-NOR, BURKE, MATTHEWS and COMPTON, JJ.\", \"parties\": \"Isaac C. NORMAN, Appellant, v. NICHIRO GYOGYO KAISHA, LTD. (Nichiro Fisheries Co., Ltd.) Nichiro Pacific, Ltd., Appellees.\", \"head_matter\": \"Isaac C. NORMAN, Appellant, v. NICHIRO GYOGYO KAISHA, LTD. (Nichiro Fisheries Co., Ltd.) Nichiro Pacific, Ltd., Appellees.\\nNo. 5254.\\nSupreme Court of Alaska.\\nMay 28, 1982.\\nJames D. Rhodes, Hartig, Rhodes, Norman & Mahoney, Anchorage, and Jonathan B. Noll, Foster, Pepper & Riviera, Seattle, Wash., for appellant.\\nJohn S. Hedland and James T. Brennan, Hedland, Fleischer & Friedman, Anchorage, for appellees.\\nBefore RABINOWITZ, C. J., and CON-NOR, BURKE, MATTHEWS and COMPTON, JJ.\", \"word_count\": \"5746\", \"char_count\": \"34880\", \"text\": \"OPINION\\nCONNOR, Justice.\\nThis is an appeal of a grant of partial summary judgment dismissing Counts II through IX of plaintiff's amended complaint. Most of the counts were dismissed on the alternative grounds that the plaintiff had no individual right of action for breach of a shareholders agreement and that the claims might be barred under the doctrine of res judicata. The remaining counts of the amended complaint were dismissed as barred by the statute of limitations, since they did not arise out of the same conduct, transaction or occurrence asserted in the original complaint.\\nFACTS\\nThe facts, viewed most favorably to plaintiff, are as follows. Plaintiff Isaac C. Norman was a civilian employee of the U. S. Navy at Adak, Alaska, from 1965 to 1973. During his eight years at Adak, Norman formulated the concept of establishing a land-based fish processing facility at Finger Bay, Adak. He spent several years observing the processing methods aboard fish processing vessels and studying movements of sea life around Adak. He concluded that a land-based facility would be feasible. In 1972, he was the successful bidder on a five-year lease from the Navy for certain lands and buildings on Finger Bay.\\nIn November, 1972, Norman formed Adak Aleutian Processors, Inc. (AAP), an Alaskan corporation. Norman owned 100% of the stock of AAP. He transferred the Finger Bay lease, for which he had posted a $5,000 bond and paid the annual rent of $1,000, to the corporation.\\nBy June, 1973, Norman had successfully attracted the interest of other parties with sufficient capital and expertise to begin making his proposed venture a reality. Norman's initial contact was Mr. Akira Ota-ni, vice president, treasurer and manager of Market Place, a Hawaiian corporation engaged in the fishing industry. Through Otani, Norman came in contact with Tak-ehiro Hikita, whose family owned more than 90% of Alaska Shokai, a Japanese corporation, and controlled Alaska Foods, Inc., a Washington corporation and wholly-owned subsidiary of Alaska Shokai. Both corporations were involved in the fish trading business. The final contact was with Nichiro Gyogyo Kaisha, Ltd. (NGK), a Japanese corporation, and its affiliate, Nichiro Pacific, Ltd. (NPL), a Washington corporation, the defendants in this case. NGK and NPL, too, were actively involved in the fishing industry, in Japan as well as in the United States.\\nOn June 8, 1973, the parties entered into three agreements which are the basis of this litigation. The first agreement involved the sale of AAP stock by Norman to Market Place, Alaska Foods and NGK. Under the agreement, Norman sold 10% of the stock to Market Place and 30% each to Alaska Foods and NGK. Norman retained 20%. The purchasers agreed to pay Norman $200,000, jointly and severally. $40,-000 was paid initially, with the remaining amount to be paid in subsequent years.\\nThe second agreement, entered into by Norman and AAP, related to Norman's prospective employment by AAP if and when he terminated his employment with the Navy.\\nThe third agreement, executed by all AAP shareholders and entitled \\\"shareholders agreement,\\\" set out the general plan of operation and administration of AAP. Among other things, the shareholders collectively agreed to \\\"exert their best efforts to achieve the corporate and business purposes of AAP.\\\" Certain other provisions related to voting rights, sale of stock, and distribution and marketing rights. Finally, Alaska Foods and NGK agreed to loan AAP sufficient funds for plant construction and working capital, and to provide technical assistance and personnel.\\nNorman resigned from his civil service position with the Navy to devote his full-time efforts as an employee of AAP. Under NGK's direction, the processing plant was completed in November of 1973. Operations were begun midway through the 1973-74 season.\\nAAP was plagued with problems from the beginning. The total cost of construction of the plant came to $3.2 million, which was $2.5 million more than the original estimate of $700,000. The 1973-74 season was unprofitable, partly because of the late start and partly because of mismanagement by NGK. Personnel problems arose between Norman and NGK employees until, in August of 1974, NGK terminated Norman's employment with AAP. Then, several days into the 1974-75 season, NGK suddenly and completely pulled out of the AAP venture.\\nThis lawsuit was filed in April, 1975. The original complaint was brought by Norman against NGK and sought to recover the $120,000 still owed to him under the stock purchase agreement. NGK counterclaimed, alleging Securities Act violations in the original stock transaction. In addition, NGK filed third party complaints against Alaska Foods and Market Place for their pro rata share of any money owing under the stock purchase agreement.\\nIn August, 1977, Norman amended his complaint to add NPL as a defendant and to add Counts II through IX to the complaint. Count I re-alleges a breach of the stock purchase agreement; Counts II through VI(a) and IX are based on alleged breaches of the shareholders agreement; and Counts VI(b) through IX are tort claims. Defendants NGK and NPL were awarded summary judgment with respect to Counts II through IX on February 29, 1980, and on portions of Count I on September 5, 1980. Norman appeals the grant of partial summary judgment.\\nISSUES\\nThere are three issues on appeal: first, whether Norman has an individual action against NGK and NPL for breach of the shareholders agreement; second, whether such claims are barred under the doctrines of res judicata and collateral estoppel; and, third, whether the tort claims are barred by the statute of limitations.\\nINDIVIDUAL ACTION\\nCounts II through VI(a) and IX of Norman's amended complaint are based on alleged breaches of the shareholders agreement. Count II alleges that NGK and NPL failed to exert their best efforts to achieve the corporate and business purposes of AAP; Count III alleges that NGK and NPL breached the contract by accumulating over $100,000 in debts on behalf of AAP; Count IV alleges failure to furnish AAP with sufficient and necessary funds for construction and installation of new improvements, equipment and facilities; Count V alleges failure to supply sufficient working capital funds to AAP; Count VI(a) alleges failure to supply technical assistance to AAP; and Count IX alleges breach of fiduciary duties to Norman. As a result of these breaches, Norman seeks damages of $720,000, plus interest, for loss of value of his stock.\\nDefendants argue, and the superior court held, that Norman has no individual cause of action against NGK and NPL for breach of the shareholders agreement; rather, such an action can only be brought by the corporation (AAP) or by a shareholder in a derivative suit on behalf of the corporation. This is consistent with the general rule that a shareholder has no individual right of action against third parties for acts producing harm to the corporation and thereby diminishing the value of the stock, since injury to the individual shareholder is merely incidental to the injury to the corporation. Arctic Contractors, Inc. v. State, 573 P.2d 1385, 1386 (Alaska 1978); Martin v. Maldonado, 572 P.2d 763, 773 (Alaska 1977). The rule is based on the principle that where such an injury occurs, each shareholder suffers in proportion to the number of shares he or she holds. Thus, each will be made whole if the corporation obtains compensation from the wrongdoer. Commonwealth of Massachusetts v. Davis, 140 Tex. 398, 168 S.W.2d 216, 221 (1943).\\nThis rule is grounded on sound policy. First, a contrary rule would authorize suits by each shareholder and result in a multiplicity of suits against the wrongdoer. E. K. Buck Retail Stores v. Harkert, 157 Neb. 867, 62 N.W.2d 288, 307 (1954). Further, the rule is necessary so that damages recovered by the corporation may be available for payment of the corporation's creditors. Martin v. Maldonado, 572 P.2d 763, 773 at n.34 (Alaska 1977). In addition, permitting individual recovery could have the effect of removing from the board of directors its prerogative to use the recovered damages for any legitimate business purpose. Commonwealth of Massachusetts v. Davis, 140 Tex. 398, 168 S.W.2d 216, 221 (1943).\\nNorman argues that he has suffered a direct, rather than an incidental, injury and is, therefore, entitled to bring an individual action against NGK and NPL. In order to show direct injury, Norman must show that NGK and NPL owed him a special duty or that he suffered an injury separate and distinct from that suffered by the other shareholders.\\nNorman claims that he has suffered injuries different from the injuries suffered by the other shareholders. These separate injuries, according to Norman, are loss of 40% of the stock purchase price, loss of a new job, and loss of \\\"opportunity.\\\" However, the two former injuries were not the result of the breach of the shareholders agreement; indeed, these injuries are the subject of other counts of the complaint and NGK and NPL do not contest Norman's right to sue individually on them. The lost \\\"opportunity,\\\" on the other hand, is an injury suffered in common by the shareholders. Each shareholder signed the shareholders agreement in the hopes that AAP would prosper; the corporation represented an opportunity for each shareholder and any benefits would accrue to the shareholder in its capacity as a shareholder.\\nCounts II through VI(a) of Norman's amended complaint clearly allege wrongs committed directly against the corporation rather than against Norman individually: Count II is directed at NGK's and NPL's failure to exert best efforts to achieve the purposes of AAP; Count III concerns wrongful accumulation of debts on behalf of AAP; and Counts IV-VI involve the failure to provide AAP with sufficient funds and technical assistance. Count IX alleges breach of a fiduciary duty to Norman; however, any fiduciary duty under the shareholders agreement was owed to the corporation or to the shareholders as a whole.\\nMoreover, Norman's statement of damages indicates that he recognized that each shareholder suffered the same injury. As stated earlier, Norman seeks to recover for the loss and destruction of his stock caused by defendants' breach of the shareholders agreement. Norman measures this damage as 20% (his stock ownership interest) of the minimum book value of the stock assuming defendants had not breached. The court in E. K. Buck Retail Stores v. Harkert, 157 Neb. 867, 62 N.W.2d 288 (1954), was confronted with a similar situation. In that case, plaintiffs and defendants entered into a \\\"stockholders control agreement\\\" providing that, in return for a $90,000 investment, plaintiffs would get 40% of the corporation's stock and equal representation on the board of directors. The contract also included a voting agreement. In an action for breach of the control agreement, plaintiffs sought a personal judgment for 40%, based on their stock ownership of 40%, of the losses sustained as a result of the breach. The court, in its holding that no individual right of action existed, noted that plaintiffs' prayer for damages indicated that they recognized that the injuries resulted to all shareholders. 62 N.W.2d at 307. Likewise, in the instant case, Norman's alleged damages reflect the fact that all AAP shareholders suffered the same loss as a result of the breach of the shareholders agreement. It is thus clear from Norman's allegations and items of damages that his injury was the same as that to the other shareholders.\\nNorman also argues that NGK and NPL owe him a special duty arising out of the contractual relationship under the shareholders agreement. He asserts that this special duty entitles him to maintain an individual action even though the corporation may have a right of action on the breach of the shareholders agreement. This is true only if the duty is owed to him directly and has its origin in circumstances independent of his status as a stockholder. Shaw v. Empire Savings & Loan Ass'n, 186 Cal.App.2d 401, 9 Cal.Rptr. 204, 208 (1960); W. Fletcher, Cyclopedia of the Law of Private Corporations, \\u00a7 5921 at 331 (rev. vol. 1980).\\nHere, again, the E. K. Buck case is instructive. The Nebraska Supreme Court held that the entry of the parties into the shareholders control agreement did not operate to confer upon plaintiffs the right to bring an individual direct action. 62 N.W.2d at 307. According to the court, the control agreement merely established a business policy and the means to carry out that policy. The court pointed out that the only reason the agreement was valid was that it was for the benefit of the corporation and all shareholders alike. Id. Thus, any duties owed under the agreement were owed primarily to the corporation and its shareholders.\\nA reading of the shareholders agreement in the instant case shows that it, like the agreement in E. K. Buck, was intended to benefit the corporation and all shareholders alike. The purpose of the agreement is set forth in the preamble:\\n\\\"WHEREAS, said shareholders desire to enter into an operating agreement as to the general plan of administration and operation of AAP in developing its 10 acre lease at Finger Bay, Adak, Alaska\\nThe subsequent paragraphs set out the means to effectuate that end. In paragraph 1, the shareholders collectively agree to \\\"exert their best efforts to achieve the corporate and business purposes of AAP.\\\" Paragraphs 2 and 3 are voting agreements regarding elections and stock transferability. In paragraph 4, certain distribution and marketing rights are granted to Otani, NGK and Alaska Foods; and, in paragraph 5 the shareholders agree that AAP will be administered and operated in accordance with the articles and by-laws. Paragraph 6 is the heart of the shareholders agreement. The portion setting out NGK's duty is as follows:\\n\\\"6. In furtherance of the corporate and business purposes of AAP, shareholders respectively agree as follows:\\n(a) [NGK] agrees to:\\n1. Furnish to AAP sufficient and necessary funds for the construction and installation of new improvements, equipment and facilities for the Adak operations, upon such terms and conditions as shall then be determined and agreed upon between [NGK] and AAP.\\n2. Furnish to AAP working capital funds required by the Adak operations up to the sum of $2,000,000, upon such terms and conditions as shall then be separately agreed upon between [NGK] and AAP.\\n3. Furnish technical assistance to AAP for the Adak operations . all in accordance with such terms and conditions as shall then be determined and agreed upon between AAP and [NGK] .\\\" (Emphasis added.)\\nIt is clear that NGK's duties under the shareholders agreement are owed primarily to AAP. Any benefit derived by Norman would be in his capacity as a shareholder.\\nNorman stresses that the shareholders agreement was not executed in a vacuum. He urges us to read that agreement in conjunction with the stock purchase agree ment and the employment agreement, which were entered into simultaneously with the shareholders agreement. According to Norman, the three agreements and the surrounding circumstances make up the entire deal and confer upon him three special rights: (1) the right to receive $200,000 for the AAP stock; (2) the right to be employed by AAP; and, most importantly, (3) the right to have NGK and the other parties perform their obligations under the shareholders agreement. Norman maintains that these three rights are unsevera-ble. We disagree.\\nNorman's right to receive the balance of the purchase price of the AAP stock is derived solely from the stock purchase agreement and belongs directly to him; NGK and NPL do not contest Norman's right to sue individually on that claim. Similarly, Norman's right to be employed by AAP is derived solely from the employment agreement and belongs directly to him; NGK and NPL also do not contest Norman's right to sue as an individual for tortious interference with that contract. Likewise, Norman's right to have the parties perform their obligations under the shareholders agreement is derived solely from that agreement. However, Norman's right is only incidental; that right belongs directly to the corporation. That Norman has two individual causes of action against a wrongdoer does not entitle him to pursue a corporate claim. See Weiss v. Northwest Acceptance Corp., 274 Or. 343, 546 P.2d 1065 (1976).\\nSince Norman has not shown a direct injury, through either a violation of a special duty owed to him or an injury separate and distinct from that suffered by the other AAP shareholders, he may not maintain an individual action against NGK and NPL for breach of the shareholders agreement. We thus conclude that the trial court was correct in granting partial summary judgment as to Counts II through VI(a) and IX of plaintiff's amended complaint.\\nRES JUDICATA\\nThe trial court also held that the claims stated in Counts II through VI(a) and IX of the amended complaint were based on the same cause of action as that alleged by AAP in two of the previously described lawsuits, and would, therefore, be barred by the doctrines of res judicata and collateral estoppel if asserted by AAP or any party in privity with AAP. The court found that a genuine issue of material fact existed as to whether plaintiff Norman was in privity with AAP. In view of our holding that Norman is not entitled to maintain an individual action for breach of the shareholders agreement, we find it unnecessary to decide the res judicata issue.\\nTORT CLAIMS\\nCounts VI(b) through IX of Norman's amended complaint are tort claims against NGK and NPL. Count VI(b) alleges tor-tious interference with Norman's employment with AAP; Count VII alleges that Norman suffered humiliation, mental anguish and physical stress as a result of NGK's and NPL's wrongful acts; Count VIII alleges that NGK and NPL acted maliciously and with wanton disregard of Norman's rights and feelings; and Count IX alleges breach of fiduciary duty. The trial court dismissed Counts VI(b) through IX, holding that they were barred by the statute of limitations.\\nThe statute of limitations on tort claims is two years. AS 09.10.070. Norman's original complaint, alleging violation of the stock purchase agreement, was filed in April, 1975. The amended complaint was filed in August of 1977, more than two years after the alleged wrongful acts were committed. In order to avoid the bar of the statute of limitations, Norman contends that the new claims come within the ambit of Alaska Civil Rule 15(c), which provides in part:\\n\\\"Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.\\\"\\nThus, if the tort claims arose out of the same conduct, transaction or occurrence asserted in the original complaint, then the amendment will \\\"relate back\\\" to the date of the original complaint, which was filed well within the statute of limitations.\\nNorman cites Burns v. Anchorage Funeral Chapel, 495 P.2d 70 (Alaska 1972), and Jakoski v. Holland, 520 P.2d 569 (Alaska 1974), in support of his assertion that the tort claims arose out of the same conduct alleged in the original complaint. In Bums, the administrator of an estate sought to add decedent's next of kin as plaintiffs in a wrongful death action. We held that the amendment related back to the date of the original complaint, since the defendant \\\"was sufficiently informed of the nature of the asserted claim for relief so that no new claim for relief would have been injected\\\" by the amendment. 495 P.2d at 75. We went on to state:\\n\\\"Our analysis is in accord with the basic rule applied by federal courts in determining whether an amendment introduces a new claim for relief. The federal authorities hold that if the amendment is based on the same specific conduct of the defendant upon which the original claim for relief was founded, no new claim for relief is stated by the amendment.\\\" (Emphasis added.)\\nId.\\nThe Burns principle was held to be dis-positive in Jakoski, an action for personal injury damages arising out of an automobile accident. After the statute of limitations had run, plaintiff filed an amended complaint adding her husband as a plaintiff and adding his claim for loss of consortium based upon the same accident. We held there that the amendment related back to the date of the original complaint. The salient fact was that the defendant had ample notice of the cause of action, since the new claim was based on the identical conduct, transaction and occurrence relied upon in the original pleading. 520 P.2d at 576.\\nUnlike the amended claims in Burns and Jakoski, Norman's tort claims are not based on the identical conduct upon which his original claim was founded. Norman's original complaint alleged only that NGK was liable for the balance due under the stock purchase agreement. The \\\"conduct, transaction or occurrence\\\" underlying the complaint involves the circumstances surrounding the purchase and sale of the stock and the subsequent failure to pay for the stock. The original action thus did not give NGK notice of any tort claims related to mismanagement or abandonment of AAP; nor did it give notice of a claim for tortious interference with the employment contract.\\nWe do not mean to hold that an amendment must be based on the identical conduct, transaction or occurrence set forth in the original pleading. However, the new allegations must be sufficiently related to the conduct, transaction or occurrence originally set forth so as to avoid prejudice to the opposing party and to ensure that the opposing party has notice of the nature of the claim from the beginning. Green v. Walsh, 21 F.R.D. 15, 18 (D.C.Wis.1957). Norman's tort claims in his amended complaint fail to meet this standard and, therefore, do not relate back to the date of the original complaint. The superior court was correct in dismissing Counts VI(b) through IX as barred by the statute of limitations.\\nAFFIRMED.\\n. The trial court directed the entry of a final judgment under Alaska Rule of Civil Procedure 54(b) after determining that there was \\\"no just reason for delay.\\\"\\n. In reviewing a grant of summary judgment, we construe the facts most favorably to the losing party below. Wickwire v. McFadden, 576 P.2d 986 (Alaska 1978).\\n. Prior to the agreement, Norman had transferred 10% of the AAP stock to Otani as a \\\"finder's fee.\\\" Otani subsequently transferred the stock to his son, Daniel Y. Otani.\\n. NGK's action was the basis of several other lawsuits between the various parties:\\nIn June of 1975, NPL brought an action against AAP for re-imbursement of working capital loans. AAP counterclaimed, alleging mismanagement and abandonment. In June, 1976, NPL was awarded summary judgment, subject to AAP's right to pursue its counterclaim. The counterclaim was dismissed in December of 1979.\\nIn July of 1975, AAP filed suit in the federal district court against NGK and its affiliate, NPL, for mismanagement and abandonment. In May, 1976, the action was dismissed by stipulation without findings of any kind.\\nIn August, 1975, the Bank of California brought suit against AAP and NPL to foreclose on promissory notes securing the loans from Alaska Foods to AAP, which Alaska Foods has assigned to the bank. AAP crossclaimed against NPL, again asserting mismanagement and abandonment. NPL also crossclaimed against AAP to foreclose on its loans to AAP. Both the bank and NPL were successful in their claims against AAP; and AAP's crossclaim . was dismissed for failure of AAP to answer interrogatories.\\n. NPL was added as a defendant on the theory that it is the alter ego of NGK. Norman seeks an order piercing the corporate veil of either to reach the other.\\n. Count IX incorporates by reference all the previous counts and alleges breach of the fiduciary duty arising under the shareholders agreement. The trial court treated the count as sounding in contract as well as in tort.\\n. Norman also seeks recovery of other damages, for a total of more than $2.5 million. See note 10, infra.\\n. Defendants concede that the remaining claims (Counts I, VI(b), VII and VIII) are individual claims of Norman's.\\n. The courts vary in their articulations of the test for showing direct injury. Some courts require the violation of a special duty owed to the shareholder. See Weiss v. Northwest Acceptance Corp., 274 Or. 343, 546 P.2d 1065, 1069 (1976). Other courts require that the shareholder suffer a separate and distinct injury from that suffered by other shareholders. See E. K. Buck Retail Stores v. Harkert, 157 Neb. 867, 62 N.W.2d 288, 307 (1954). We have used both phrases. Compare Martin v. Maldonado, 572 P.2d 763, 773 (Alaska 1977) (finding no special duty), with Arctic Contractors, Inc. v. State, 573 P.2d 1385, 1386 (Alaska 1978) (finding neither an injury separate from harms allegedly done to the corporation nor a special duty). Defendants argue that Norman must prove both a special duty and a separate injury. While we recognize that the two concepts will usually, if not always, overlap (i.e., a violation of a special duty will cause a separate injury and, conversely, a separate injury will be the result of a violation of a special duty), we prefer to state the test in the disjunctive.\\n. We note that Counts II through VI(a) and IX of Norman's complaint merely allege that, as a result of the various breaches of the shareholders agreement, \\\"the Plaintiff was damaged\\\"; and the prayer for relief merely seeks \\\"compensatory damages,\\\" \\\"punitive and exemplary damages,\\\" costs and interest. In his separate breakdown of the damages sought, Norman does not specify which damages flow from which Counts. However, the loss of stock is clearly the principal item of damages claimed as a result of the breach of the shareholders agreement. Other damages sought are the balance due under the stock purchase agreement, lost wages, costs of relocation, costs of formation/promotion, medical expenses, legal expenses and punitive damages. None of these damages, except arguably the costs of formation/promotion and some legal expenses, would be proper remedies for breach of the shareholders agreement.\\n. It is immaterial that AAP was not a party to the shareholders agreement. In Green v. Victor Talking Machine Co., 24 F.2d 378 (2d Cir. 1928), the court stated that \\\"despite the fact that [the contract] was made with a shareholder, not with the corporation, nevertheless a breach of [the contractual] duty would give a right of action to the corporation, not to its shareholders.\\\" Id. at 382. As Norman points out, in the other lawsuits between the parties NGK and NPL have consistently asserted that because AAP was not a party to the shareholders agreement it has no rights thereunder. Obviously, NGK and NPL cannot have it both ways; otherwise, nobody would be able to sue for breach of the shareholders agreement. In our holding that Norman does not have an individual right of action it is implicit that AAP would have a right of action against NGK and NPL for breach of the shareholders agreement. Since the corporation is no longer in existence and thus has no capacity to sue, the right of action rests with the directors and shareholders as the corporation's representatives. Cullum v. General Motors Acceptance Corp., 115 S.W.2d 1196, 1202-03 (Tex.Civ.App.1938).\\n. NPL v. AAP and Bank of California v. AAP and NPL. See footnote 4, supra.\\n. AS 09.10.070 reads:\\n\\\"No person may bring an action (1) for libel, slander, assault, battery, seduction, false imprisonment, or for any injury to the person or rights of another not arising on contract and not specifically provided otherwise . unless commenced within two years.\\\"\\nNorman does not dispute the trial court's determination that Counts VI(b) through IX are tort claims and hence subject to the two-year statute of limitations.\"}"

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+"{\"id\": \"10432233\", \"name\": \"BIG LAND INVESTMENT CORPORATION, Appellant, v. LOMAS & NETTLETON FINANCIAL CORPORATION, Appellee\", \"name_abbreviation\": \"Big Land Investment Corp. v. Lomas & Nettleton Financial Corp.\", \"decision_date\": \"1983-01-07\", \"docket_number\": \"No. 6154\", \"first_page\": \"837\", \"last_page\": \"843\", \"citations\": \"657 P.2d 837\", \"volume\": \"657\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T18:59:25.249702+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BURKE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.\", \"parties\": \"BIG LAND INVESTMENT CORPORATION, Appellant, v. LOMAS & NETTLETON FINANCIAL CORPORATION, Appellee.\", \"head_matter\": \"BIG LAND INVESTMENT CORPORATION, Appellant, v. LOMAS & NETTLETON FINANCIAL CORPORATION, Appellee.\\nNo. 6154.\\nSupreme Court of Alaska.\\nJan. 7, 1983.\\nWarren C. Col ver, Warren C. Col ver & Associates, Anchorage, for appellant.\\nJohn C. Siemers, Burr, Pease & Kurtz, Anchorage, for appellee.\\nBefore BURKE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.\", \"word_count\": \"3383\", \"char_count\": \"20279\", \"text\": \"OPINION\\nRABINOWITZ, Justice.\\nIn 1971, Big Land Investment Corporation, the owner of the then partially completed Gold Rush Hotel in Anchorage, found itself in dire financial straits. It had incurred substantial construction debts and was unable to pay its creditors. According to Big Land's general manager, David Grove, the only viable alternative was to sell the hotel, and the only available purchaser was Cox Enterprises, Inc. [\\\"CEI\\\"]. CEI was able to obtain short-term financing for $1,500,000 of the $1,750,000 purchase price from Lomas & Nettleton Financial Corporation [\\\"L & N\\\"], and Big Land agreed to take back a promissory note secured by a trust deed for the balance of the purchase price, $250,000. L & N also loaned CEI an additional $1,100,000 to complete construction of the hotel.\\nAs a condition to advancing CEI the $2,600,000 needed to purchase the hotel and to complete construction, L & N required that its deed of trust securing payment of its loan have priority over Big Land's trust deed. Big Land and CEI therefore executed a subordination agreement which gave L & N's trust deed priority over Big Land's. All parties to the transaction expected that the hotel would be completed within a year or two, and that upon completion the interim financing provided by L & N would be replaced with a twenty-year mortgage financed by Old Colony Cooperative Bank [\\\"Old Colony\\\"].\\nIn addition to the fact that the hotel was not a resounding success, Old Colony's long-term financing fell through in 1975. In 1979, L & N foreclosed and acquired the hotel at the foreclosure sale with an offset bid which approximately equaled the principal and interest then due on its $2,600,000 loan to CEI. Big Land received nothing from the foreclosure sale. It subsequently sued L & N, advancing a variety of claims for relief. Big Land sought either damages from L & N or rescission of the subordination agreement, alleging that L & N had breached express and implied terms of that agreement and had caused the hotel to be foreclosed at a price which was insufficient to satisfy Big Land's $250,000 secured claim. L & N's motion for summary judgment was granted in full. On May 20,1981, judgment was entered dismissing all of Big Land's claims with prejudice. The instant appeal followed.\\nI.\\nFor its first specification of error, Big Land asserts that the superior court erred in granting summary judgment against it when there existed genuine issues of fact as to whether L & N had breached duties owed to Big Land. The underlying premise of this specification of error is that L & N owed Big Land a duty to administer its loan to CEI with due care and had a concomitant duty to refrain from engaging in any conduct with CEI which materially increased the risk that CEI would default on the loan. Big Land relies on the judicially-developed doctrine of conditional subordination, which provides that a senior lienholder whose senior status results from a subordination agreement must refrain from taking actions which impair the subordinated lienholder's security.\\nBig Land claims that L & N, as a construction lender, owed it three implied duties arising out of the subordination agreement. These duties will be discussed separately.\\nA. The duty to monitor CEI's use of the construction loan.\\nBig Land concedes that \\\"[t]here was no evidence presented to the lower court that [the loan proceeds were] used for anything other than development of the property.\\\" This concession accurately describes the state of the record upon which the superior court granted summary judgment against Big Land. Thus, we find no merit in this contention. If the loan proceeds were used to construct the hotel, L & N could not have breached any implied duty on its part to ensure that the loan proceeds were used by CEI to pay construction expenses.\\nB. The duty to administer the loan with due care and in a conventional manner.\\nHere again our review of the record persuades us that Big Land failed to present any evidence as to what L & N did or failed to do prior to withdrawal of the Old Colony loan commitment which might have jeopardized the long-term financing, much less that L & N's actions departed from convention or were taken without due care.\\nC.The duty to avoid taking actions which would increase the risk that CEI would default on the loan.\\nBig Land argues that L & N was obligated not to act in a manner which increased the risk that CEI would default on the senior construction loan, and that several agreements between L & N and CEI materially increased that risk.\\nShortly after Old Colony withdrew its commitment to provide long-term financing, L & N and CEI entered into an agreement which modified the repayment terms of the $2,600,000 loan. Big Land argues that the amended note significantly increased the risk of default.\\nThe term of the amendment to which Big Land objects is that which changed the interest rate from 11% to a floating rate of two percent over prime. Big Land implies that the interest rate under the amendment exceeded that of the original note, that escalating interest payments magnified the risk that CEI would be unable to repay the L & N loan, and that CEI would fall behind on its other obligations. Assuming that Big Land might be entitled to relief if it could show that the 1975 amendment to the note increased the interest rate, the record indicates that the amendment rate of two percent over prime was well below the 11% rate prescribed by the original note. Thus, we conclude that there is no merit in Big Land's contention that L & N breached a duty owing to it by virtue of the modification of the interest rate on the CEI loan.\\nIn addition to the foregoing, Big Land argues that L & N increased the risk that CEI would default on the loan by entering into a forbearance agreement with CEI in 1977. In May 1977, L & N and CEI entered into an agreement by which L & N agreed not to proceed with its foreclosure because CEI had found a buyer willing to pay $4,000,000 for the hotel, an amount sufficient to retire both the L & N and the Big Land debts. A similar agreement was executed in August 1977. Big Land asserts that these forbearance agreements jeopardized its position. In this regard Big Land is claiming that L & N should have foreclosed rather than giving CEI a chance to sell the hotel. Even assuming that this argument were credible, Big Land nonetheless has made no showing that an immediate foreclosure would have left it in a better position.\\nAlternatively, Big Land argues that the forbearance agreements demonstrate L & N's lack of good faith because those agreements set forth a schedule according to which CEI was to pay past and current expenses and debts. The schedule specifically provided that CEI was not to make payments on indebtedness which was subordinate to L & N's loan. Again the record fails to disclose how this provision impaired Big Land's interests. CEI had made no payments on the Big Land loan in the preceding three years and neither intended, nor had the money, to make further payments on that loan at the time that it entered into the forbearance agreements with L & N.\\nThus, we conclude that as to the issue of conditional subordination, Big Land did not meet its obligation to \\\"set forth specific facts showing that [it] could produce evidence reasonably tending to dispute or contradict [L & N's] evidence and thus demonstrate that a material issue of fact exists,\\\" State v. Green, 586 P.2d 595, 606 n. 32 (Alaska 1978). We therefore hold that entry of summary judgment against Big Land was proper as to any claims for relief based on the doctrine of conditional subordination.\\nII.\\nWAS BIG LAND ENTITLED TO RESCIND THE SUBORDINATION AGREEMENT ON THE GROUND THAT OLD COLONY DID NOT PROVIDE LONG-TERM FINANCING?\\nBig Land argues that the superior court erred in granting summary judgment when there existed genuine issues of material fact as to whether Big Land was entitled to rescind the subordination agreement. The primary thrust of Big Land's argument is that the availability of long-term financing from Old Colony was a material element of its agreement to subordinate, and that it therefore is entitled to rescind the subordination agreement for breach of a material condition.\\nA. Would Big Land's note have been paid from the proceeds of the Old Colony loan?\\nBig Land first asserts that the only reason it agreed to subordinate its deed of trust to L & N's trust deed was because it expected that its $250,000 loan would be repaid from the proceeds of the long-term financing to be provided by Old Colony, and that therefore the subordination agreement is without effect because the Old Colony financing did not materialize.\\nThe $250,000 note executed by CEI in favor of Big Land provided for five annual payments of interest and a lump-sum payment of principal at the end of the fifth year. The note contained clauses which accelerated the maturity date upon sale of the hotel or upon CEI's obtaining long-term financing of at least $2,900,000. It is undisputed that the only long-term financing contemplated by the parties at the time of the sale was the Old Colony financing, which was for only $2,600,000. Thus, under the terms of the note Big Land would not have been entitled to payment had the Old Colony commitment been honored because that commitment was for less than $2,900,-000. The subordination agreement itself contains no terms stating that Big Land's agreement to subordinate was conditioned upon repayment of its loan from the proceeds of the Old Colony financing; indeed, Big Land's general manager testified that the parties, when negotiating the terms of the subordination agreement, selected $2,900,000 as the amount of the senior lien because everyone was aware that, unless long-term financing in excess of that amount were obtained, the proceeds of that financing would not be sufficient to repay both the L & N loan plus interest and the Big Land loan.\\nNotwithstanding the fact that none of the relevant documents, which were reviewed and approved by Big Land's attorney, provide that Big Land's note was to have been repaid from the proceeds of the Old Colony financing, Big Land argues that L & N and CEI represented that the note would be repaid from those proceeds and that it agreed to subordinate in reliance on those representations. Here again there is no evidence in the record indicating who, if anyone, made such a representation on behalf of L & N, and thus Big Land's allegation fails as to L & N for want of support. In view of the unambiguous terms of the subordination agreement, we conclude that the superior court correctly rejected Big Land's contention that its agreement to subordinate was expressly conditioned upon payment of its loan from the proceeds of Old Colony's financing.\\nB. Did Old Colony's failure to provide long-term financing defeat the parties' reasonable expectations?\\nBig Land's final argument is that all parties to the sale of the hotel and the loan and subordination agreements were operating under the assumption that Old Colony would provide permanent financing at some time in the not-too-distant future. Big Land asserts that, even had its note not been repaid from the proceeds of the Old Colony loan, its position would have been improved significantly had that loan been made, since the likelihood of CEI's defaulting on a twenty-year mortgage was far less than the likelihood of default on L & N's short-term construction loan. Big Land claims that we should interpret the subordination agreement in light of this factor and set that agreement aside because the parties' reasonable expectations were defeated when Old Colony withdrew its commitment.\\nThere is no doubt that Big Land, CEI, and L & N expected that Old Colony would provide long-term financing; thus the only real question is whether, as a matter of law, Big Land is entitled to avoid the subordination agreement on the ground that Old Colony backed out. Stated differently, the pertinent question is whether Big Land or L & N must bear the burden of an event which, on this record, was not the fault of either of them.\\nThe few courts that have considered this kind of situation have concluded that a lender- who advances funds in reliance on a subordination agreement is entitled to prevail, either because the subordinated party is estopped from denying his agreement to subordinate or because the senior lienholder is likened to a bona fide purchaser. See Dreckshage v. Community Federal Savings & Loan Association, 555 S.W.2d 314 (Mo.1977) (en banc); Comptroller v. Cards Realty Corp., 68 A.D.2d 186, 416 N.Y.S.2d 821 (1979) (per curiam). We agree with these authorities and hold that Big Land was not entitled to any relief because it turned out that Old Colony did not provide long-term financing.\\nAFFIRMED.\\nCONNOR, J., not participating.\\n. The $250,000 note called for interest at 6% per annum payable annually for five years with a balloon payment of the entire principal in five years.\\n. L & N's total interim financing loan was evidenced by a note for $2,600,000 secured by a first deed of trust on the property. The note was payable in full on September 15, 1972, with interest at 11% per annum subject to an increase to 15% per annum in the event CEI could not meet its obligations on the note.\\n. L & N was not a party to the subordination agreement, but that agreement was executed for the benefit of L & N. Under the terms of the subordination agreement, Big Land agreed that its deed of trust would be subordinated to the L & N first deed of trust, or to\\nany amended, extended, or otherwise changed, or substitute first deed of trust whereby the referenced deed of trust may be replaced, altered, increased in face amount to an amount not to exceed $2,900,000.00 or otherwise changed during the lifetime of the deed of trust herein subordinated.\\n. In November 1976, Big Land and L & N initiated separate foreclosure proceedings. CEI sought and obtained an injunction which halted both foreclosures and gave CEI \\\"a reasonable time to straighten up [its] affairs.\\\" In May and August of 1977, L & N twice agreed to forbear prosecution of its judicial foreclosure so that CEI could consummate a pending sale of the hotel to a purchaser willing to pay $4,000,000, a price sufficient to have satisfied both Big Land's and L & N's claims. The sale fell through, and Big Land renewed its foreclosure efforts. When the superior court indicated its willingness to allow Big Land to foreclose, CEI immediately filed for bankruptcy, which automatically stayed the foreclosure. The bankruptcy court subsequently vacated the stay as to both Big Land and L & N in September 1978, and L & N once again commenced foreclosure proceedings.\\n. In Stenehjem v. Cho, 631 P.2d 482, 488 (Alaska 1981), we observed that a subordinating seller's security often is dependent upon the success of the purchaser in developing the property. If the purchaser diverts the proceeds of the senior construction loan, or if the market value of the improvements is less than expected, the value of the property may be insufficient to satisfy both the senior and the subordinating seller's claims upon foreclosure. Although no court has gone so far as to suggest that a senior lienholder, under penalty of losing its senior status, is a guarantor of the success of a construction project, a number of courts have agreed that the senior lienholder must act in good faith and take measures, such as ensuring that the loan proceeds are not diverted by the purchaser-borrower, to protect the subordinated lienholder's security. See, e.g., Middle-brook-Anderson Co. v. Southwest Sav. & Loan Assoc., 18 Cal.App.3d 1023, 96 Cal.Rptr. 338 (1971); Hyatt v. Maryland Fed. Sav. & Loan Assoc., 42 Md.App. 623, 402 A.2d 118 (1979); Cambridge Acceptance Corp. v. Hockstein, 106 N.J.Super. 435, 246 A.2d 138 (Ct.App.Div.1968) (per curiam). See also Fikes v. First Fed. Sav. & Loan Assoc., 533 P.2d 251 (Alaska 1975), where this court placed a similar duty upon a construction lender which had prior knowledge of a third party's interest; the case did not involve a subordination agreement, but its principle may be applicable to subordination agreements.\\n. Big Land does not dispute that $1,500,000 of the L & N loan was used to pay Big Land's creditors.\\n. The record indicates that either L & N or CEI actually convinced Old Colony to extend its loan commitment for several years after September 21,1972, the date on which the commitment was to have expired.\\n. There is, however, evidence tending to show that, after Old Colony backed out, both L & N and CEI made repeated attempts to find alternative long-term financing. Perhaps the most telling observation concerning the problems involved in obtaining long-term financing is Edna Cox's statement that the hotel was plagued with a bad reputation because of numerous fires:\\nWe've had very interested parties!;] usually it's that two different banks were going to give us the commitment. And, it seems like when they contacted the bank up here, whoever the banker was, I've never been able to find out, would say, \\\"Well, don't touch them. That's the old Goldrush that burned four or five times.\\\" We really accumulated, not only our own three fires, but they blamed us for the other two previous fires. So, it was a bad package to sell.\\nWe note that Big Land appears to be arguing that L & N must have done something wrong because Old Colony withdrew its loan commitment which was conditioned upon completion of the hotel, at a time when only two weeks' work was necessary to complete the hotel. Even assuming that completion of the hotel was delayed for several years, Big Land did not show that such delay could be attributed to misconduct or lack of care on L & N's part.\\n.The terms of the original note provided for interest at 15% after default, and thus Big Land is not entirely correct in contending that the rate would have been 11% had CEI and L & N not agreed to amend the note.\\n. Big Land also argues that L & N wrongfully interfered with Big Land's attempts to foreclose its $250,000 Deed of Trust. Big Land made no showing that L & N's action in preventing Big Land from foreclosing its junior security interest was the product of ill will or malice. In our view, L & N was privileged to object to, as well as to take steps to block, Big Land's attempt to foreclose its junior security interest. Compare Bendix Corp. v. Adams, 610 P.2d 24, 30 (Alaska 1980). Given L & N's significant and senior (relative to Big Land) financial interest in the property, it had (absent ill will or malice) the right and privilege to take whatever reasonable steps it deemed necessary to protect its economic interest in the property.\\n. A step in legal reasoning is omitted from Big Land's argument. Essentially, it demands: (1) reformation of the subordination agreement to include a condition, then, (2) rescission for failure of that condition.\\n. In response to L & N's requests for admissions, Big Land agreed that the subordination agreement was not ambiguous. In the instant case, the subordination agreement is completely integrated. This factor furnishes an additional ground for concluding that Big Land is not entitled to relief on the basis of its assertion that its subordination agreement was conditioned upon the receipt of long-term financing from Old Colony. Johnson v. Curran, 633 P.2d 994, 996 (Alaska 1981); National Bank of Alaska v. J.B.L. & K. of Alaska, Inc., 546 P.2d 579, 582-83 (Alaska 1976).\\n. Although Big Land seeks \\\"merely\\\" rescission of the subordination agreement, obviously it is not possible to restore the parties to their pretransaction positions, as rescission is designed to do. Big Land's senior status could, of course, be reinstated, but it is not possible to undo the $2,600,000 loan made by L & N in reliance on Big Land's agreement to subordinate.\"}"

alaska/10436233.json

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+"{\"id\": \"10436233\", \"name\": \"STATE of Alaska, Appellant, v. Travis Dean WILLIAMS, Appellee\", \"name_abbreviation\": \"State v. Williams\", \"decision_date\": \"1982-11-05\", \"docket_number\": \"No. 6025\", \"first_page\": \"1067\", \"last_page\": \"1071\", \"citations\": \"653 P.2d 1067\", \"volume\": \"653\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Court of Appeals\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T22:09:33.045387+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BRYNER, C.J., and COATS and SINGLETON, JJ.\", \"parties\": \"STATE of Alaska, Appellant, v. Travis Dean WILLIAMS, Appellee.\", \"head_matter\": \"STATE of Alaska, Appellant, v. Travis Dean WILLIAMS, Appellee.\\nNo. 6025.\\nCourt of Appeals of Alaska.\\nNov. 5, 1982.\\nCharles M. Merriner, Asst. Atty. Gen., Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for appellant.\\nWilliam H. Fuld and David J. Schmid, Kay, Christie, Fuld, Saville & Coffey, Anchorage, for appellee.\\nBefore BRYNER, C.J., and COATS and SINGLETON, JJ.\", \"word_count\": \"2737\", \"char_count\": \"16397\", \"text\": \"OPINION\\nCOATS, Judge.\\nFollowing Travis Dean Williams' acquittal of a charge of murder in the first degree, the state charged him with two counts of hindering prosecution in the first degree, AS 11.56.770, and with one count of tampering with evidence, AS 11.56.610. Superior Court Judge Ralph E. Moody dismissed the indictment on double jeopardy grounds. The state now appeals, arguing only that it was improper to have dismissed the charge of tampering with evidence.\\nOn the evening of March 10, 1980, the body of Thomas Andrus was found in his burning pickup truck on a road near Peters Creek. Travis Dean Williams was indicted for the murder of Andrus. The state's case before the grand jury consisted of proof that Williams and Andrus were together the night of the homicide. Both were highly intoxicated. One important witness against Williams was Joyce Andrus, Thomas Andrus' wife. She testified that she had last seen her husband alive shortly before the homicide. She had left him at their home, a trailer, with Williams. The investigation of the Andrus homicide established that Andrus had probably been struck in the fact with a vodka bottle and strangled with an appliance cord. Andrus' body was then dragged to his pickup truck which was driven a short distance to the place where it was discovered. The truck was then set on fire. Lucy Moody testified that she saw a man she later identified as Williams run across the street near the burning pickup truck in which Andrus' body was found. Another witness, Donald Ohler, identified Williams as a man he met on the evening of the homicide at the Bella Vista Pizza Parlor, which was located several hundred yards from the burning truck. Ohler gave Williams a ride into town and then back to Peters Creek. During that ride Williams made several statements. He said he did \\\"something very bad tonight\\\" and that he had done \\\"a very nasty thing.\\\" At the scene of the pickup truck Ohler informed the police of his suspicious contact with Williams. Ohler pointed out Williams to Anchorage Police Department Officer Greg Baker, and Baker took Williams into custody. Baker testified that on the way to the police station Williams spontaneously stated, \\\"I ain't got no gun and I didn't rob the son of a bitch.\\\"\\nThe state presented this evidence at trial, except for the critical testimony of Joyce Andrus. She had apparently left the jurisdiction and could not be located to testify at trial. At trial Williams testified in his own defense. He stated that at about 8:00 o'clock on the evening in question, he and Andrus went to Andrus' trailer. They were falling down drunk. Williams stated he just headed for the back bedroom, flopped on the bed, and either passed out or fell asleep. He stated that the next thing he knew, Joyce Andrus woke him screaming, \\\"You got to help me. Tom's dead.\\\" Williams testified that he got up and found Tom laying on the floor with a cord around his neck. Joyce left in the Andrus' Blazer. According to Williams, he then tried to clean up the trailer by wiping up the blood. He then loaded the body in Andrus' pickup truck and drove off. He drove about a mile when the truck died. He could not start the truck so he poured a gallon of chainsaw gas in the cab and set it on fire. He then fled, but was apprehended by the police later that evening.\\nAt the end of the trial, the state filed proposed jury instructions that would have permitted the jury to consider the crimes of hindering prosecution in the first degree and tampering with physical evidence. Williams objected, arguing that these were not lesser included offenses. Trial judge Mark Rowland agreed and refused to instruct on these offenses.\\nThe jury acquitted Williams of first degree murder and of all the lesser homicide offenses. Five days later, Williams was indicted on two counts of hindering prosecution in the first degree and on one count of tampering with evidence. The state now appeals arguing that Judge Moody erred in dismissing the charge of tampering with evidence.\\nWilliams argues that, aside from any double jeopardy claim, Alaska Rule of Criminal Procedure 45, the speedy trial rule, stands as a bar to his prosecution on a charge of tampering with evidence. Williams argued this issue in the trial court, but since Judge Moody decided the double jeopardy claim in Williams' favor claim he found it unnecessary to decide the Criminal Rule 45 issue. Williams continues to assert the double jeopardy claim on appeal but suggests that we do not need to reach that constitutional question if we find that his rights were violated under Criminal Rule 45. We agree with Williams that we should not reach the constitutional double jeopardy issue if the issue can be readily resolved by applying the Alaska Rules of Criminal Procedure.\\nWilliams' argum\\u00e9nt rests on the fact that he was arrested for murder on March 10,1980 and was not indicted for tampering with evidence until nearly ten months later, on January 6, 1981. Criminal Rule 45 requires Williams to be tried within 120 days, less periods which are excluded by the rule. Williams contends his arrest on the murder charge should start the 120 day period running and that his indictment for tampering with evidence took place far beyond the 120 day time period.\\nWe have concluded that Williams is correct in his assertion that his arrest on the murder charge started the 120 day period running. At the time of Williams' prosecution, Criminal Rule 45(c)(1) stated in part:\\n(c) When Time Commences to Run. The time for trial shall begin running, without demand by the defendant, as follows:\\n(1) From the date the defendant is arrested, initially arraigned, or from the date the charge (complaint, indictment, or information) is served upon the defendant, whichever is first . The arrest, arraignment, or service upon the defendant of a complaint, indictment, or information, relating to subsequent charges arising out of the same conduct, or the refiling of the original charge, shall not extend the time, unless the evidence on which the new charge is based was not available to the prosecution at the time the defendant was either initially arrested, arraigned, or served with the original charge, and a showing of due diligence in securing the defendant for the original charges is made by the prosecution. [Emphasis supplied.]\\nJudge Moody found that the evidence which was presented in the indictment for tampering with evidence was essentially the same evidence which the prosecution presented to the grand jury which indicted Williams for murder and at his trial on that charge. This finding is supported by the record. The only substantially different information which the prosecution presented to the second grand jury but did not present to the grand jury which indicted Williams for murder was Williams' trial testimony. In that testimony Williams merely reinforced most of the state's evidence while denying the murder of Andrus. The state's theory at the murder trial was that Williams was with Andrus shortly before the homicide and that he had disposed of Andrus' body. The state asked the jury to infer from these facts and Williams' statements that Williams was the person who killed Andrus. Williams admitted being with Andrus and admitted disposing of Andrus' body. We conclude that the tampering with evidence charge arose from the same conduct as the murder charge and that Williams' arrest on the murder charge started the Criminal Rule 45 time period. See Peterson v. State, 562 P.2d 1350, 1358 (Alaska 1977).\\nWe also agree with Williams that under the circumstances of this case, Criminal Rule 45 was not tolled under the provision of Criminal Rule 45(c)(1) because \\\"the evidence on which the new charge [was] based was not available to the prosecution at the time the defendant was either initially arrested, arraigned, or served with the original charge.\\\" The state conceded at oral argument that there was sufficient evidence to convict Williams of tampering with evidence when he was indicted for murder. We agree that the record supports that conclusion. The state had an extremely strong case against Williams for tampering with evidence. That case was not significantly enhanced by Williams' admission that he had tampered with evidence. Under the circumstances of this case it is clear that Criminal Rule 45 should not have been extended because new evidence was made available to the prosecution at Williams' trial.\\nThe state contends that even if Criminal Rule 45 starts running on the tampering with evidence charge from the time when Williams was arrested on the murder charge, Williams several times waived his rights under Criminal Rule 45. In a memorandum filed in superior court the state argues that only ninety-four days had elapsed because of various continuances requested by or assented to by Williams.\\\" The state argues that the continuances must be deducted under Criminal Rule 45(d)(1), (2)-(3). Williams argues that he only waived his speedy trial rights as to the murder charge and that he never waived any speedy trial rights as to the tampering with evidence charge.\\nWe agree with Williams that the policies set forth in Criminal Rule 45 require us to decide in his favor. A defendant can waive his right to a speedy trial under Criminal Rule 45, but a waiver should generally be only with the defendant's informed consent. See Criminal Rule 45(d)(2). We do not have to decide in this appeal whether the prosecution could have used Williams' waiver of speedy trial to charge him with tampering with evidence before his trial on the murder charge. However, it seems clear that in executing his waivers of his right to speedy trial Williams certainly did not intend to allow the state to try him on the murder charge and then, based upon the same evidence presented at the murder trial, later try him on a theory of tampering with evidence based upon the same conduct. We find that Williams' waivers of speedy trial were ineffective as to a second trial based upon the tampering with evidence charge where the tampering with evidence charges were filed after his murder trial. Since Williams' waivers of speedy trial were ineffective as to the tampering with evidence charge, we conclude that Williams was not brought to trial within the time allowed by Criminal Rule 45. We therefore find that the trial court was correct in dismissing the charge against Williams. Criminal Rule 45(g).\\nThe judgment is AFFIRMED.\\n. AS 11.56.770 provides:\\n(a) A person commits the crime of hindering prosecution in the first degree if he renders assistance to a person who has committed a crime punishable as a felony with intent to\\n(1) hinder the apprehension, prosecution, conviction, or punishment of that person; or\\n(2) assist that person in profiting or benefiting from the commission of the crime.\\n(b) For purposes of this section, a person \\\"renders assistance\\\" to another if he\\n(1) harbors or conceals that person;\\n(2) warns that person of impending discovery or apprehension;\\n(3) provides or aids in providing that person with money, transportation, a dangerous instrument, a disguise, or other means of avoiding discovery or apprehension;\\n(4) prevents or obstructs, by means of force, threat, or deception, anyone from performing an act which might aid in the discovery or apprehension of that person;\\n(5) suppresses by an act of concealment, alteration, or destruction physical evidence which might aid in the discovery or apprehension of that person; or\\n(6)aids that person in securing or protecting the proceeds of the crime.\\n(c)Hindering prosecution in the first degree is a class C felony.\\n. AS 11.56.610 provides:\\n(a) A person commits the crime of tampering with physical evidence if he\\n(1) destroys, mutilates, alters, suppresses, conceals, or removes physical evidence with intent to impair its verity or availability in an official proceeding or a criminal investigation;\\n(2) makes, presents, or uses physical evidence, knowing it to be false, with intent to mislead a juror who is engaged in an official proceeding or a criminal investigation;\\n(3) prevents the production of physical evidence in an official proceeding or a criminal investigation by the use of force, threat, or deception against anyone; or\\n(4) does any act described by (1), (2), or (3) of this subsection with intent to prevent the institution of an official proceeding.\\n(b) Tampering with physical evidence is a class C felony.\\n. Criminal Rule 45(b) provides that \\\"[a] defendant charged with a felony . shall be tried within 120 days from the time set forth in paragraph (c) of this rule.\\\"\\n. The current Criminal Rule 45(c)(1) substitutes \\\"of the original commencement date of the 120 day period\\\" for \\\"the defendant was either initially arrested, arraigned, or served with the original charge.\\\"\\n. Criminal Rule 45(d)(1) \\u2014 <3) reads:\\n(d) Excluded Periods. The following periods shall be excluded in computing the time for trial:\\n(1) The period of delay resulting from other proceedings concerning the defendant, including but not limited to motions to dismiss or suppress, examinations and hearings on competency, the period during which the defendant is incompetent to stand trial, interlocutory appeals, and trial of other charges. No pre-trial motion shall be held under advisement for more than 30 days and any time longer than 30 days shall not be considered as an excluded period.\\n(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. The court shall grant such a continuance only if it is satisfied that the postponement is in the interest of justice, taking into account the public interest in the prompt disposition of criminal offenses. A defendant without counsel shall not be deemed to have consented to a continuance unless he has been advised by the court of his right to a speedy trial under this rule and of the effect of his consent.\\n(3)The period of delay resulting from a continuance granted at the timely request of the prosecution, if:\\n(a) The continuance is granted because of the unavailability of evidence material to the state's case, when the prosecuting attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will be available at the later date; or\\n(b) The continuance is granted to allow the prosecuting attorney in a felony case additional time to prepare the state's case and additional time is justified because of the exceptional complexity of the particular case.\\n. The state contends that Criminal Rule 45 is not a rule of procedure but confers a substantive right on a defendant to be tried within 120 days. The state argues that if Criminal Rule 45 is substantive, the rule is an unconstitutional use of the supreme court rule making power conferred by article IV, \\u00a7 15 of the Alaska Constitution. That section reads:\\nRule-Making Power. The supreme court shall make and promulgate rules governing the administration of all courts. It shall make and promulgate rules governing practice and procedure in civil and criminal cases in all courts. These rules may be changed by the legislature by two-thirds vote of the members elected to each house.\\nThe question of whether Criminal Rule 45 is a substantive rule which is an unconstitutional exercise of the supreme court's rule making power has been before the supreme court twice. Neither time did the court reach the question of the rule's constitutionality. James v. State, 567 P.2d 298, 299-300 n. 3 (Alaska 1977); Peterson v. State, 562 P.2d 1350 (Alaska 1977).\\nUnder these circumstances, where the supreme court has promulgated Criminal Rule 45 and twice had an opportunity to review whether that rule was promulgated in violation of article IV, \\u00a7 15, we believe that the supreme court has determined that Criminal Rule 45 is not an unconstitutional exercise of its rule making power. We accordingly reject the state's argument.\"}"

alaska/10439962.json

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+"{\"id\": \"10439962\", \"name\": \"GENERAL CONSTRUCTION COMPANY, Appellant, v. TYONEK TIMBER, INC., Appellee\", \"name_abbreviation\": \"General Construction Co. v. Tyonek Timber, Inc.\", \"decision_date\": \"1981-06-19\", \"docket_number\": \"No. 5175\", \"first_page\": \"981\", \"last_page\": \"985\", \"citations\": \"629 P.2d 981\", \"volume\": \"629\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-11T02:41:34.706397+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before RABINOWITZ, C. J., and CON-NOR, BURKE and MATTHEWS, JJ., and STEWART, Superior Court Judge.\", \"parties\": \"GENERAL CONSTRUCTION COMPANY, Appellant, v. TYONEK TIMBER, INC., Appellee.\", \"head_matter\": \"GENERAL CONSTRUCTION COMPANY, Appellant, v. TYONEK TIMBER, INC., Appellee.\\nNo. 5175.\\nSupreme Court of Alaska.\\nJune 19, 1981.\\nDennis L. McCarty, Ellis Law Offices, Ketchikan, and Arthur B. McGarry, Oles, Morrison, Rinker, Stanislaw & Ashbaugh, Seattle, for appellant.\\nPhyllis C. Johnson, John M. Conway, Atkinson, Conway, Bell & Gagnon, Anchorage, for appellee.\\nBefore RABINOWITZ, C. J., and CON-NOR, BURKE and MATTHEWS, JJ., and STEWART, Superior Court Judge.\", \"word_count\": \"2066\", \"char_count\": \"12367\", \"text\": \"OPINION\\nMATTHEWS, Justice.\\nOn May 20, 1974, Kodiak Lumber Mills, Inc. (KLM) contracted with General Construction Co. for the construction of a deep water dock at Tyonek to be used for loading ships with wood products obtained from the surrounding area. The work on the dock began a few months thereafter. At the same time Tyonek Timber, Inc. was in the process of building a chip mill for KLM near the dock area.\\nA dispute arose between General and KLM concerning whose responsibility it was under the dock construction contract to haul material to the dock area to protect the dock pilings from the effects of tidal currents. While this dispute remained unresolved, Tyonek entered into an oral agreement with General to transport the material at the price of $9.00 per yard.\\nAfter the oral agreement was reached Tyonek moved the material to the dock area and General placed it around the pilings. Tyonek submitted a bill to General for this service and, when the bill went unpaid, filed suit against General. At the trial, there was no dispute as to the amount of material which Tyonek had hauled. General, however, contended that under the terms of the oral contract Tyonek was to transport the material to the site and place it around the dock pilings. Therefore, General claimed that Tyonek had not substantially performed its contract. In addition, General argued that Tyonek could not recover upon a theory of unjust enrichment because General had not been unjustly enriched since General's obligation under the prime contract with KLM did not cover hauling the material to the site. General suggested therefore that any recovery to Tyonek for unjust enrichment should be sought from KLM, not General.\\nThe case was tried to the court sitting without a jury. The court found that the agreement between Tyonek and General only included hauling the material to the site, not placing it next to the dock pilings. The court went on to examine the terms of the contract between KLM and General, stating:\\nThe question central to a decision in this case is, what was the intent of the parties regarding the scour protection fill? If, as it contends, General was under no contractual obligation to haul the fill, then it appears that Tyonek Timber has no claim against General for hauling what the owner was bound to furnish. If, on the other hand, General was obligated under the contract to furnish and place the fill, then Tyonek Timber is entitled to the agreed on price for furnishing the material.\\nThe court then concluded that as between General and KLM, General was required to haul the material. The court directed entry of judgment in favor of Tyonek against General in the sum of $48,150.00 plus costs and attorney's fees.\\nOn appeal General argues that the trial court erred in two respects:\\n(1) In holding that General was bound under the contract with KLM to haul the scour protection material to the project site, and\\n(2) in holding that KLM did not breach an implied warranty that adequate scour protection material would be available at the gravel pit at the site.\\nGeneral does not challenge the finding of the trial court that Tyonek was not obligated to place the material next to the pilings under the terms of the oral agreement with Tyonek. That finding therefore stands and, in our view, is dispositive of the case.\\nThe conclusions of the court concerning the terms of the contract between KLM and General are not germane to the present case unless Tyonek's status as a corporation separate from KLM is to be disregarded, or unless Tyonek was acting as an agent for KLM in making the oral contract. General argues that the court must have accepted one of these theories. For the following reasons we believe that neither theory could have been appropriately applied to this case.\\nThe trial court did not expressly conclude that Tyonek and KLM should be considered as one entity. Moreover, the court made no findings of fact which would support such a conclusion. Further, the question of whether Tyonek and KLM should be regarded as the same entity was not presented to the trial court either by the pleadings, or the briefs and arguments of counsel.\\nThe evidence presented at the trial which would have been relevant to the issue would not have justified treating Tyonek and KLM as the same corporation. In Jackson v. General Electric Company, 514 P.2d 1170 (Alaska 1973) we noted that the corporate status of a subsidiary can be disregarded\\nwhen the parent uses a separate corporate form to defeat public convenienc\\u00e9, justify wrong, commit fraud, or defend crime. The parent corporation may also be liable for the wrongful conduct of its subsidiary when the subsidiary is the mere instrumentality of the parent. Liability is imposed in such instances simply because the two corporations are so closely intertwined that they do not merit treatment as separate entities. [Footnotes omitted]\\nId. at 1172-73. We noted 11 factors which may be relevant in ascertaining whether a subsidiary is acting as the mere instrumentality of its parent:\\n(a) The parent corporation owns all or most of the capital stock of the subsidiary.\\n(b) The parent and subsidiary corporations have common directors or officers.\\n(c) The parent corporation finances the subsidiary.\\n(d) The parent corporation subscribes to all the capital stock of the subsidiary or otherwise causes its incorporation.\\n(e) The subsidiary has grossly inadequate capital.\\n(f) The parent corporation pays the salaries and other expenses or losses of the subsidiary.\\n(g) The subsidiary has substantially no business except with the parent corporation or no assets except those conveyed to it by the parent corporation.\\n(h) In the papers of the parent corporation or in the statements of its officers, the subsidiary is described as a department or division of the parent corporation, or its business or financial responsibility is referred to as the parent corporation's own.\\n(i) The parent corporation uses the property of the subsidiary as its own.\\n(j) The directors or executives of the subsidiary do not act independently in the interest of the subsidiary but take their orders from the parent corporation in the latter's interest.\\n(k) The formal legal requirements of the subsidiary are not observed.\\nId. at 1173. We stated concerning these factors that it is not necessary that all of them be found in order to conclude that the subsidiary's separate status should be ignored. \\\"A parent corporation which does not permit its subsidiary to exercise an individual status may not expect that the subsidiary's independence will be recognized elsewhere.\\\" 514 P.2d at 1173.\\nIn Bendix Corp. v. Adams, 610 P.2d 24, 32 (Alaska 1980), we alluded to the factors listed in Jackson, but found them to be of secondary importance, stating:\\n[M]ore important than the quantitative approach . is the fact that there is no suggestion anywhere in the record that [the subsidiary] was created to \\\"defeat public convenience, justify wrong, commit fraud, or defend crime.\\\"\\nHere, as in Bendix, no contention is made that KLM used Tyonek to defeat public policy or perpetrate a wrong or fraud or crime. Moreover, under the quantitative approach suggested in Jackson, there is an insufficient showing of interrelatedness. All we are told is that at the time in question 50% of Tyonek's stock was owned by KLM; Tyonek had a four person board of directors two of whom also served as directors of KLM; John Daly, a vice president of KLM, was also vice president of Tyonek; and KLM provided financing to Tyonek which Tyonek used to acquire vari ous pieces of equipment some of which were used to haul the material in question. On the other hand, 50% of Tyonek's stock was owned by Richard and Meredith Sykes, both of whom served as directors of Tyonek. Richard Sykes was president of Tyonek and neither Richard nor Meredith Sykes were officers, directors, or employees of KLM. There was no showing that KLM caused the incorporation of Tyonek; that Tyonek had grossly inadequate capital; that KLM paid the salaries, expenses or losses of Tyonek; that Tyonek had no business except with KLM, or no assets except those which were conveyed by KLM; that Tyonek was held out merely as a division of KLM; that KLM used Tyonek's property as its own; that Richard Sykes took orders from KLM; or that the formal legal requirements of Tyonek as a separate corporation were not observed. On this record, therefore, no conclusion that Tyonek should be treated as the same entity as KLM could be sustained.\\nGeneral's contention that Tyonek was acting merely as an agent for KLM in making the oral contract with General is also unsupportable. To establish an agency relationship between Tyonek and KLM, General must show that Tyonek made the oral contract with it on behalf of KLM and not as a separate corporate entity. The court did not expressly conclude that an agency existed, and made no findings of fact which would support such a conclusion. On the evidence presented, such a conclusion would have been clearly erroneous.\\nJohn Daly testified that Richard Sykes was not authorized to speak for KLM. There is no evidence that either Tyonek or KLM expressly or impliedly represented that Tyonek had the authority to act for KLM. The only evidence, apart from that concerning the interrelationships of the two corporations which we have discussed above, which tends to indicate that Tyonek contracted as an agent of KLM rather than on its own behalf is a statement of John A. Beyer, president of General. He testified that at the meeting at which the oral contract was made \\\"there was Red Bingham, Bill Epping and myself representing General, and John Daly, Cosby Steen and Dick Sykes representing Kodiak.\\\" This assertion, although relevant, was not \\u00bfxplained, and was undercut by other assertions of Beyer. He stated that there often were disputes between Sykes and the people working for General Construction which \\\"caused a kind of unhappy feeling between him and our employees and we frankly never were understanding about what his position was in the matter anyway.\\\" Further, Beyer acknowledged that the oral contract for hauling material was not between General and KLM but between General and \\\"a third party.\\\" The testimony of William H. Epping, another officer of General who was present at the same meeting, supports the view that General understood that it was making a subcontract with Tyonek. Epping was asked and answered as follows:\\nQ. So it was your clear impression as a result of that discussion that, in essence, what had happened was that the aspect of that original contract between Kodiak Lumber Mill and General Construction to place scour protection was subcontracted to Tyonek Timber and that instead of you placing the scour protection for Kodiak Lumber, Tyonek Timber would do that aspect of the contract?\\nA. Correct.\\nIn summary, the court's findings concerning the nature of the contract between KLM and General are irrelevant to this appeal because Tyonek and KLM were separate entities and Tyonek was not merely an agent of KLM in making the oral con tract with General on which this lawsuit was based. Tyonek has performed its obligations under the oral contract and it is entitled to be compensated for its performance.\\nThe judgment is AFFIRMED.\\n. A subsidiary is not presumed to be the agent of its parent corporation. Bendix Corp. v. Adams, 610 P.2d 24, 33 (Alaska 1980).\\n. Beyer was asked and answered as follows:\\nQ. Now the initial contract was between you and Kodiak Lumber Mill; is that correct?\\nA. Correct.\\nQ. Was there any problem with delegating that work to a third party?\\nA. No, there was not because John Daly was right there when the agreement was made and John Daly looked to Dick Sykes for advice constantly and pretty much whatever Dick said John Daly did, so I didn't think there was any particular problem in that regard.\"}"

alaska/10446270.json

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+"{\"id\": \"10446270\", \"name\": \"David SAGANNA, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Saganna v. State\", \"decision_date\": \"1979-05-04\", \"docket_number\": \"No. 4019\", \"first_page\": \"69\", \"last_page\": \"71\", \"citations\": \"594 P.2d 69\", \"volume\": \"594\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T22:44:22.385621+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BOOCHEVER, C. J., and RABI-NO WITZ, CONNOR, BURKE and MATTHEWS, JJ.\", \"parties\": \"David SAGANNA, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"David SAGANNA, Appellant, v. STATE of Alaska, Appellee.\\nNo. 4019.\\nSupreme Court of Alaska.\\nMay 4, 1979.\\nStephen D. Cramer, of Merdes, Schaible, Staley & DeLisio, Fairbanks, for appellant.\\nBill D. Murphree and Rhonda F. Butter-field, Asst. Dist. Attys., Harry L. Davis, Dist. Atty., Fairbanks, Avrum M. Gross, Atty. Gen., Juneau, for appellee.\\nBefore BOOCHEVER, C. J., and RABI-NO WITZ, CONNOR, BURKE and MATTHEWS, JJ.\", \"word_count\": \"759\", \"char_count\": \"4799\", \"text\": \"OPINION\\nPER CURIAM.\\nThis is a sentence appeal. David Sagan-na pleaded no contest to the offense of receiving stolen property having a value of more than $250, consisting of a soapstone carving which had been stolen from the House of Wood in Fairbanks, Alaska. He was sentenced to three years imprisonment, the maximum sentence permissible under the applicable statute, AS 11.20.350(a). The court also strongly recommended that the Division of Corrections permit Saganna to attend the Comprehensive Alcoholism Program for treatment.\\nSaganna argues that the trial court was clearly mistaken in imposing the maximum sentence because the court stated during the sentencing proceedings that Saganna was not the worst type of offender within the class of persons committing this offense.\\nSaganna was twenty-four years old at the time of sentencing. He had worked at various jobs as an adult. It appears that during periodic drinking episodes Saganna tended to run afoul of the law. He had one previous felony conviction, for assault with a dangerous weapon, and twelve misdemeanor convictions on his record.\\nIn the past, we have stated that \\\"maximum sentences should not be imposed without some foundation for characterizing a defendant as the worst type of offender.\\\" Galaktionoff v. State, 486 P.2d 919, 924 (Alaska 1971). In most cases, worst offender characterization will involve factors intrinsic and extrinsic to the particular offense. Our decisions reveal, however, that a person may be characterized as a worst offender based solely on elements intrinsic to the particular crime for which the defendant is being sentenced, see, e. g., Burleson v. State, 543 P.2d 1195, 1200-02 (Alaska 1975) (particularly brutal mayhem offense involving sulfuric acid), or based solely on elements extrinsic to the particular crime, see, e. g., Waters v. State, 483 P.2d 199, 201-02 (Alaska 1971) (defendant's prior criminal record supported worst offender classification even though particular offense, viewed in isolation, would not have). Judge Hodges' comments to Saganna at sentencing go no further than indicating that Saganna's particular offense was rather mild in character, but that his prior. record and history of alcohol abuse required imposition of the maximum sentence. We believe that the record supports characterization of Saganna as the worst type of offender based upon his extensive prior criminal record, a factor we have held to be of \\\"particular significance\\\" to the determination of worst offender status. State v. Wortham, 537 P.2d 1117, 1119 (Alaska 1975).\\nFrom our review of the record, it appears that the trial court imposed the maximum sentence in order to isolate the offender from society and to provide the motivation for him to complete the Comprehensive Alcoholism Program. The court noted that if the defendant completed the program, he would probably be eligible for parole after serving approximately one year of his sentence. The court rejected the possibility of a suspended sentence or a suspended imposition of sentence, in view of the defendant's substantial history of antisocial conduct related to alcohol.\\nOur review of the record leads us to the conclusion that in imposing sentence, the was not clearly mistaken. State, 519 P.2d 811 (Alaska trial court McClain v. 1974).\\nAFFIRMED.\\n. These consisted of four convictions for disorderly conduct, two convictions for being intoxicated on a public highway, two convictions for petty larceny, and one conviction each for aiding an escape, for occupying a building not his own, for disturbing the peace, and for negligent driving.\\n. See State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975) (factors which may be relied on to support worst offender characterization).\\n. Addressing the defendant, the sentencing court stated:\\nYou are certainly not the worst offender, within the class. That on a receiving and concealing case, you're at the bottom of the list in terms of seriousness. This was a very inadept attempt at any criminal conduct. If you did not have a prior history, if you did have an alcohol problem, the court would probably give you a suspended imposition of sentence and a short period of time in custody would be sufficient. But, as I've mentioned, because it is not your first felony conviction, you have a long history, this court feels it's necessary to impose that type of sentence.\"}"

alaska/10447887.json

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+"{\"id\": \"10447887\", \"name\": \"Albert S. VALENTINE, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Valentine v. State\", \"decision_date\": \"1980-05-30\", \"docket_number\": \"No. 4124\", \"first_page\": \"751\", \"last_page\": \"755\", \"citations\": \"617 P.2d 751\", \"volume\": \"617\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T18:25:40.644665+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before RABINOWITZ, C. J., and CON-NOR, BOOCHEVER, BURKE and MATTHEWS, JJ.\", \"parties\": \"Albert S. VALENTINE, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Albert S. VALENTINE, Appellant, v. STATE of Alaska, Appellee.\\nNo. 4124.\\nSupreme Court of Alaska.\\nMay 30, 1980.\\nJames E. Douglas, Offices of Fred J. Baxter, Juneau, for appellant.\\nLarry Weeks, Dist. Atty., Daniel W. Hickey, Chief Prosecutor, and Avrum M. Gross, Atty. Gen., Juneau, for appellee.\\nBefore RABINOWITZ, C. J., and CON-NOR, BOOCHEVER, BURKE and MATTHEWS, JJ.\", \"word_count\": \"2481\", \"char_count\": \"15132\", \"text\": \"OPINION\\nRABINOWITZ, Chief Justice.\\nAlbert Valentine appeals his conviction of manslaughter for the killing of nine-year-old Billy Evenson, his half-brother. The charge arose from an incident when Valentine was babysitting for his four younger siblings and a friend at their apartment in Juneau. Valentine accidentally knocked over a box, and one boy found their mother's old derringer. Everyone started playing with it; Valentine aimed the pistol at the boys and pulled the trigger in jest. One of the boys told him that the gun did not work, and Valentine remembered hearing this from his mother, too. Billy then brought Valentine some ammunition, and Valentine loaded the gun; he went outside and pulled the trigger several times without results. He brought the loaded gun back inside and continued to play with it. According to Valentine's testimony, he did not believe the gun was pointed toward any of the children when he squeezed the trigger and the gun fired, but Billy jumped into the line of fire. Valentine was sentenced to a four-year suspended sentence.\\nOn appeal, Valentine claims error in three rulings of the superior court. He asserts that the superior court erred in denying his requested instruction on the lesser included offense of careless use of firearms; that the trial court abused its discretion in admitting into evidence two autopsy photographs; and that prejudicial prosecutorial misconduct occurred in closing argument which was not cured by the superior court's cautionary instruction.\\nAt trial, Valentine's attorney requested a jury instruction on the lesser included offense of careless use of firearms. This request was denied after extensive discussion between the trial court and Valentine's counsel as to what interpretation was to be placed on the manslaughter and careless use of firearms statutes. We have previously set forth as general principles in considering a claim of error for failure to give a lesser included offense the following:\\nGenerally, it is held that the elements of the included offense must be fewer in number than the elements of the greater offense or, stated differently, that the included offense must be less than the charged offense in terms of its constituent elements. Most courts require that there be some evidence to support the lesser-included offense, and it is usually required that the punishment be less severe for the lesser-included offense.\\nHowever, a lesser included offense instruction is not appropriate when the only element or elements distinguishing the two offenses is uncontestedly present upon the facts of the case. If the defendant is charged with armed robbery, for example, and the presence of a weapon is uncontested, but defendant pleads insanity, no instruction on a lesser included offense of robbery is necessary. For if the jury accepts the defendants' version, they must acquit. If not, the only alternative is to convict for the offense charged, since the uncontested evidence would contradict a conviction for the lesser offense of robbery.\\nAt the time of the offense, AS 11.15.-200(a) defined the crime of careless use of firearms. In Christie v. State, 580 P.2d 310, 316-20 (Alaska 1978), we analyzed this \\\"complicated tri-partite statute\\\" in the context, of a lesser included offense of assault with a dangerous weapon. Valentine claims that the superior court should have instructed the jury on the second part of the statute, which forbids \\\"[unintentionally] discharging a firearm which is pointed or aimed, intentionally and without malice, at a person.\\\" During the course of arguments over jury instructions, Valentine's counsel noted that his client's testimony at trial amounted to an admission of a violation of the second part of the careless use statute in that Valentine was pointing the gun in the direction of his brother and others in the room during the time immediately before the discharge of the gun. As to whether Valentine was intentionally pointing the gun at his brother at the moment of discharge is not certain from the testimony. Valentine's testimony was that he did not have the gun pointed at his brother at the moment he pulled the trigger but that it was off to the side and his brother had moved into the line of fire. However, there was clearly evidence in the record to support a conviction on the lesser offense of careless use of firearms.\\nThe point of debate is on whether the elements of careless use of firearms are, under the facts of this case, within the elements of manslaughter. A resolution of this problem depends on a construction of the manslaughter statutes. At the time of the conviction, there were three statutes that defined elements of the offense of manslaughter. AS 11.15.040 provided:\\nExcept as provided in \\u00a7 10-30 of this chapter [first and second degree murder provisions], a person who unlawfully kills another is guilty of manslaughter . . .\\nAS 11.15.080 provided:\\nEvery killing of a human being by the culpable negligence of another, when the killing is not murder in the first or second degree, or is not justifiable or excusable, is manslaughter, and is punishable accordingly.\\nAS 11.15.200(b) provided:\\nIf death ensues from the maiming or injuring, the person discharging the firearm may, in the discretion of the prosecuting officer or grand jury, be charged with the crime of manslaughter.\\nIn Keith v. State, 612 P.2d 977, Op. No. 2099, (Alaska 1980), we held that AS 11.15.-040 comprehended within its ambit the misdemeanor-manslaughter rule and that AS 11.15.200(b) is a codification of that rule in relation to the misdemeanor of careless use of firearms. Thus, for Valentine to be convicted, the prosecution need only prove that Valentine committed the misdemeanor of careless use of firearms and that Evenson was killed in the perpetration of that misdemeanor. Since the homicide of Evenson was an uncontested occurrence, under this misdemeanor-manslaughter theory of the crime, Valentine could not be guilty of careless use of firearms without also being guilty of manslaughter. In Christie, we noted the Supreme Court of Arizona's statement:\\n[Instructions on lesser offenses are justified only when there is evidence upon which the jury could convict of a lesser offense . . . In other words, the state of the record must not be such that defendant can only be guilty of the crime charged or not be guilty at all.\\nWe believe the latter circumstance exists in this case, and Valentine was not entitled to an instruction on the lesser included offense of careless use of firearms.\\nAs his second assignment of error, Valentine claims the superior court erred in admitting two black and white autopsy photographs which were more prejudicial than probative. Upon our review of the photographs, we conclude that the superior court did not abuse its discretion in admitting the autopsy photographs. Valentine concedes that the photographs did have probative value to corroborate the medical testimony concerning the cause of death and to illustrate the path of the bullet. While we agree that this evidence was not crucial to the state's case, we do not find it so gruesome and shocking as to be \\\"more harmful than illuminating.\\\" Armstrong v. State, 502 P.2d 440, 449 (Alaska 1972). As the Indiana Supreme Court said of another homicide prosecution:\\nSuch a subject is never a nice one to investigate. Any of the details have a decided tendency to horrify and to appall, but a court cannot arrange for lively music to keep the jury cheerful while the state's case in a murder trial is being presented, and gruesome evidence cannot be suppressed merely because it may strongly tend to agitate the jury's feelings.\\nHawkins v. State, 219 Ind. 116, 37 N.E.2d 79, 85 (1941). Thus, we conclude that the superior court did not abuse its discretion in admitting these photographs.\\nValentine's final specification of error is that prosecutorial misconduct resulted in an improper conviction. The prosecutor, in closing argument, stated in part: These statements were immediately objected to by defense counsel, and the superior court instructed the jury to disregard them. We conclude that the superior court's cautionary instruction cured any possible prejudice that could have resulted from this statement and, that in the context of this case, such statement was at most harmless error under the standard we first articulated in Love v. State, 457 P.2d 622, 631 (Alaska 1969).\\nAfter we get past all the tears and remorse, now, the question is, is he guilty? And, if he is guilty; if he did those things, now is the time to convict him. Not sometime in the future, but today.\\nThe judgment of conviction is Affirmed.\\n. One of the boys, however, testified that Valentine was pointing the gun at them.\\n. Christie v. State, 580 P.2d 310, 317 (Alaska 1978) (footnotes omitted).\\n. Id. at 317, n. 22.\\n. The statute read, in relevant part:\\nA person who intentionally, and without malice, points or aims a firearm at or toward a person, or discharges a firearm . pointed or aimed at a person, or points and discharges a firearm at or toward a person or object without knowing the identity of the object and maims or injures a human being, is guilty of the careless use of firearms, and upon conviction is punishable by a fine of not more than $1,000, or imprisonment for not more than one year, or by both.\\nThis statute was repealed by \\u00a7 21, ch. 166, SLA 1978, effective January 1, 1980. See note 5 infra.\\n. These statutes were repealed by \\u00a7 21, ch. 166r SLA 1978, effective January 1, 1980, as part of the implementation of the Criminal Code revision. The new manslaughter statute, AS 11.-41.120, reads:\\nManslaughter, (a) A person commits the crime of manslaughter if he\\n(1) intentionally, knowingly, or recklessly causes the death of another person under circumstances not amounting to murder in the first or second degree; or\\n(2) intentionally aids another person to commit suicide.\\n(b) Manslaughter is a class A felony.\\n. The prosecution argued both an unlawful act theory of the crime and that Valentine was criminally negligent. Valentine's jury instructions offered the alternative theories of culpable negligence and unlawful act manslaughter. The court instructed the jury, as follows, as to the crime of manslaughter in this case.\\nThe Indictment alleges a violation of Section 11.15.040 Alaska Statutes, the pertinent parts of which read as follows:\\n[a] person who unlawfully kills another is guilty of manslaughter .\\nManslaughter, in Alaska, is the unlawful killing of another, voluntary and involuntary. Voluntary manslaughter is the commission of an act in the sudden heat of passion or anger, without legal justification, resulting in death. Involuntary manslaughter is the inadvertent or unintentional killing while committing an unlawful or culpably negligent act, which proximately is the cause for the death or another.\\nManslaughter embraces a killing without malice and intent, in doing some unlawful act not amounting to a felony or naturally tending to cause death or great bodily injury, or in doing some lawful act in a culpably negligent manner, or in omitting to perform a legal duty. Thus, manslaughter is the unlawful killing of a human being without malice, either expressed or implied, and without intent to kill or inflict the injury causing death, committed accidentally in the commission of some unlawful act not felonious, or in the culpably negligent performance of an act lawful in itself.\\nYou are hereby instructed that it is unlawful to intentionally, and without malice, point or aim a firearm at or toward a person, or to discharge a firearm so pointed or aimed at a person.\\nThe term \\\"culpable negligence\\\" as used in these instructions refers to negligent acts which are aggravated, reckless and gross and which are such a departure from what would be the conduct of an ordinarily prudent or careful man under the same circumstances as to be contrary to a proper regard for human life or, in other words, a disregard for human life or an indifference to consequences. The facts must be such that the fatal consequences of the culpably negligent act could reasonably have been foreseen and it must appear that the death was the natural and probable result of a reckless or grossly negligent act.\\n. Christie v. State, 580 P.2d 310, 317 n. 22 (Alaska 1978), quoting State v. Schroeder, 95 Ariz. 255, 389 P.2d 255, 257 (Ariz.1964), cert. denied, 379 U.S. 939, 85 S.Ct. 347, 13 L.Ed.2d 350 (1964).\\n. In general, Alaska R.Evid. 403 provides:\\nAlthough relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\\n. In Stevens v. State, 443 P.2d 600, 603 (Alaska 1968), cert. denied, 393 U.S. 1039, 89 S.Ct. 662, 21 L.Ed.2d 586 (1969), we stated:\\n[A] photograph is admissible in evidence in the discretion of the trial judge, as an aid to the court or jury, after it has been shown to be a faithful representation of whatever it purports to depict, provided it is relevant, and provided its evidentiary value is not outweighed by any prejudice it might create.\\n. However, in reviewing these photographs, we think it appropriate to remind trial courts that they should be open to methods of mini- , mizing the prejudicial impact of evidence if that can be done without destroying its probative value. In this case, the most objectionable photographs showed the open and pulled back chest cavity of the young victim and included views of his head and face. Cf. Commonwealth v. Eckhart, 430 Pa. 311, 242 A.2d 271, 273-74 (1968) (introduction of autopsy photos held to be reversible error).\\n. In his brief, appellant argues:\\n[The prosecutor's statement] implies that the State had information that appellant was the type of person who would commit further serious offenses and, as a consequence, it was only a question of time before he would be on trial again, unless the jury effectively removed him from society. The statement by the prosecution is not by itself grounds for reversal, given the cautionary instruction, but it needs to be evaluated in conjunction with the failure of appellant to receive a lesser included offense instruction and the introduction of the inflammatory autopsy photographs.\\n. The exchange at trial was as follows:\\nMR. DOUGLAS: I object to that, Your Hon- or. 1 find that objectionable.\\nTHE COURT: Would you please stand?\\nMR. DOUGLAS: Yes, Your Honor. I don't like to interrupt the closing argument, but, now is the time to convict him, not some time in the future, I do find objectionable.\\nTHE COURT: I would instruct the jury not to regard that remark.\"}"

alaska/10449516.json

@@ -0,0 +1 @@
+"{\"id\": \"10449516\", \"name\": \"William L. LEVAR, Appellant, v. Mary ELKINS, Appellee\", \"name_abbreviation\": \"Levar v. Elkins\", \"decision_date\": \"1980-01-04\", \"docket_number\": \"No. 3917\", \"first_page\": \"602\", \"last_page\": \"604\", \"citations\": \"604 P.2d 602\", \"volume\": \"604\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T19:32:39.271715+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before CONNOR, BOOCHEVER, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice.\", \"parties\": \"William L. LEVAR, Appellant, v. Mary ELKINS, Appellee.\", \"head_matter\": \"William L. LEVAR, Appellant, v. Mary ELKINS, Appellee.\\nNo. 3917.\\nSupreme Court of Alaska.\\nJan. 4, 1980.\\nAndrew M. Hemenway and Robert J. Ma-honey, Cole, Hartig, Rhodes, Norman & Ma-honey, Anchorage, for appellant.\\nTimothy M. Lynch, Abbott, Lynch, Far-ney & Rodey, Anchorage, for appellee.\\nBefore CONNOR, BOOCHEVER, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice.\", \"word_count\": \"948\", \"char_count\": \"5725\", \"text\": \"OPINION\\nCONNOR, Justice.\\nMary Elkins lived with William Levar in a nonmarital union for more than 20 years. After the relationship ended, Elkins asserted rights to the property which had been acquired during the relationship. To that end she brought suit alleging causes of action in quantum meruit, contract, and equitable division of property.\\nThis case was tried by jury. During the course of trial, Elkins abandoned the theories of quantum meruit and implied partnership as a basis of recovery. Additionally, the court ruled that the question of equitable division of property could not be submitted to the jury. Thereafter, Elkins relied only on a contract theory of recovery. The case was submitted to the jury under instructions directed solely to the question of whether there was a contract between the parties, either express or implied in fact. A verdict was returned for Elkins in the sum of $15,000.\\nOn appeal Levar asserts error in the denial of his motion for a directed verdict at the close of plaintiff's case, and the denial of a motion for judgment notwithstanding the verdict or, in the alternative, a new trial. Both of these issues go to the sufficiency of the evidence. Accordingly, we must determine whether the evidence, viewed in the light most favorable to El- kins, the non-moving party, is such that reasonable persons could not differ in their judgment. Our task is not to weigh the evidence or judge the credibility of the witnesses. Our task is merely to determine whether there is room for diversity of opinion among reasonable people. If so, the question is one for the jury. Whittier v. Whittier Fuel & Marine Corp., 577 P.2d 216 (Alaska 1978). Our review of the record convinces us that the court ruled correctly on both motions.\\nThe case was submitted to the jury on instructions proposed by Levar's counsel. There was conflicting evidence, from which a jury could reasonably find that there was mutual assent and consideration to support a contractual obligation, and that the presumption that the property given and services rendered by Elkins were gratuitous had been overcome. Little would be gained by reviewing that evidence in this opinion. As to these points, there was no error.\\nLevar asserts that the trial court erred in taking judicial notice of a mortality table. Levar objected to the use of the mortality table on the ground that he was not afforded an opportunity to present information relevant to the propriety of taking judicial notice and that the table was inapplicable to Elkins, who suffered from various physical ailments. As to the first point, the court recognized that Levar should have the opportunity to present relevant information on the propriety of taking notice. The record shows, however, that Levar's counsel did not request a delay in the trial to obtain such information.\\nOn Levar's second point, the court instructed the jury concerning the mortality tables, and specifically told the jury to consider evidence pertaining to Elkins' health. In our view, the court acted properly with respect to the mortality table. The weight of authority is that lack of normal health in the person as to whom life expectancy is determined does not render the tables inadmissible, it merely goes to the weight of the evidence. Anno., 116 ALR 416. There was no error.\\nWe find no 'merit in Levar's claim that the court abused its discretion in finding that Elkins was the prevailing party and, thus, entitled to the award of an attorney's fee under Civil Rule 82.\\nAFFIRMED.\\nRABINOWITZ, C. J., not participating.\\n. Elkins testified that in return for services as a housewife and caretaker for Levar's children, and for money contributed over the years, Le-var promised to provide for her for the rest of her life.\\n. Because this case was decided on a contractual theory of recovery, we need not consider the questions arising under the much publicized case of Marvin v. Marvin, 18 Cal.3d 660, 134 Cal.Rptr. 815, 557 P.2d 106 (Cal.1976). An illuminating and comprehensive discussion of this subject can be found in C. Bruch, \\\"Property Rights of De Facto Spouses Including Thoughts on the Value of Homemakers' Services,\\\" 10 Family Law Quarterly 101 (1976).\\n. Civil Rule 43(a)(4)[a] provides:\\n\\\"The judge shall afford each party reasonable opportunity to present to him information relevant to the propriety of taking judicial notice of a matter or to the tenor of the matter to be noticed.\\\"\\nRule 43 was rescinded effective August 1, 1979. (Order No. 366)\\n. None of the cases cited by Levar convince us otherwise. These are Morrison v. State, 516 P.2d 402 (Alaska 1973); Morrow v. Mendleson, 15 Cal.App.2d 15, 58 P.2d 1302 (1936); Fortner v. Koch, 272 Mich. 273, 261 N.W. 762 (1935); and Butler v. Butler, 180 Minn. 134, 230 N.W. 575 (1930).\\nThe latter three cases concerned so-called \\\"select\\\" mortality tables. These are tables \\\"based upon the actual lives of persons in normal health,\\\" (Butler 230 N.W. at 579; Fortner 261 N.W. at 764) or \\\"average good health\\\" (Morrow 58 P.2d at 1305). In contrast, the HEW table in the instant case is based on the entire population and, therefore, does not skew the life expectancy distribution in favor of the appellee. Morrison simply held that the trial court should not depart from a mortality table without some evidence to justify such a departure. (at 406).\"}"

alaska/10451646.json

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+"{\"id\": \"10451646\", \"name\": \"John D. HAYES, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Hayes v. State\", \"decision_date\": \"1978-07-14\", \"docket_number\": \"No. 2814\", \"first_page\": \"221\", \"last_page\": \"223\", \"citations\": \"581 P.2d 221\", \"volume\": \"581\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T22:07:50.826335+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BOOCHEVER, C. J., and RABI-NOWITZ, CONNOR, BURKE and MATTHEWS, JJ.\", \"parties\": \"John D. HAYES, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"John D. HAYES, Appellant, v. STATE of Alaska, Appellee.\\nNo. 2814.\\nSupreme Court of Alaska.\\nJuly 14, 1978.\\nEdgar Paul Boyko, Michael W. Sewright, Edgar Paul Boyko & Associates, Anchorage, for appellant.\\nAnne Carpeneti, Asst. Atty. Gen., Daniel W. Hickey, Deputy Atty. Gen. and Avrum M. Gross, Atty. Gen., Juneau, for appellee.\", \"word_count\": \"918\", \"char_count\": \"5475\", \"text\": \"OPINION\\nBefore BOOCHEVER, C. J., and RABI-NOWITZ, CONNOR, BURKE and MATTHEWS, JJ.\\nMATTHEWS, Justice.\\nJohn D. Hayes was indicted on one count of concealing three stolen radios belonging to Alyeska Pipeline Service Company in violation of AS 11.20.350. He was convicted after a jury trial, sentenced to imprisonment for 18 months and fined $1,000.\\nHayes' first point on appeal is that the trial court should have granted him a judgment of acquittal because the State relied exclusively on hearsay testimony to prove that the concealed radios were owned by Alyeska. This argument must fail for two reasons. First, much of the evidence of ownership was not inadmissible hearsay. Second, no hearsay objection was made. Thus, that evidence of ownership which was hearsay was competent.\\nHayes also contends that one may not be convicted of concealing property which he has stolen. He argues that as of the close of the State's case the only evidence tending to prove that the property was stolen proved that he stole it. He advances this as an alternative reason why his motion for judgment of acquittal ought to have been granted. AS 11.20.350(a) provides in relevant part:\\nA person who . . . conceals money, goods, bank notes, or other thing which may be the subject of larceny and which has been taken, embezzled; or stolen from another person, knowing it to have been taken, embezzled, or stolen, is upon conviction punishable by a fine of not more than $1,000 and by imprisonment for not less than one year nor more than three years. .\\nIt is true that some courts construing similar statutes have imposed a requirement that someone other than the person accused of concealing the property stole it. There is other authority which holds that in a concealment case it is irrelevant whether or not the defendant was the thief. In Eliason v. State, 511 P.2d 1066, 1072 n. 22 (Alaska 1973), this issue was raised on appeal, but not directly decided because no objection was made at trial. We indicated, however, that we would be disinclined to require proof that the concealer of property did not steal it. In accordance with Elia-son, we now hold that AS 11.20.350(a), in cases of concealment, does not require that someone other than the defendant has stolen the property in question. The statute does not express such a requirement, and no reasons commend themselves to us why such a requirement should be taken as implied.\\nIn this case the trial court erroneously instructed the jury that it could find Hayes guilty of illegal concealment as to each of the three radios in question only if it determined that someone else had actually stolen each radio. Hayes contends that there was insufficient evidence to support a conviction based on this instruction because, at least as to two of the radios, \\\"the only evidence was that if indeed anyone had stolen the two radios, appellant had stolen them. . . . \\\" Assuming that Hayes' characterization of the evidence on this point is correct, we fail to see how it is relevant to the validity of his conviction. We will only reverse where the substantial rights of a party have been affected. Insufficient proof of a point which is not an element of the offense charged does not affect substantial rights.\\nThree verdict forms were submitted to the jury. Hayes claims that because he was charged with but one count of concealing stolen property only one verdict form should have been submitted which required the State to prove him guilty of having illegally concealed all three radios. However, since the jury found Hayes guilty on each of the three individual forms, we find that any error was harmless.\\nHayes' final contention is that his sentence of 18 months in jail and a $1,000 fine is excessive. Although this was Hayes' first offense, we are unable to say after consideration of the factors outlined in State v. Chaney, 477 P.2d 441, 444 (Alaska 1970), that the court was clearly mistaken in imposing the sentence it did.\\nAFFIRMED.\\n. E.g., inventories listing by serial number two of the radios, identified as Alyeska property, were introduced in evidence. They plainly fall within the business records exception to the hearsay rule. Civil Rule 44(a)(1).\\n. Reese v. Geiermann, 574 P.2d 445, 446 (Alaska 1978); City of Anchorage v. Nesbett, 530 P.2d 1324, 1336 (Alaska 1975). We reject Hayes' suggestion that the admission of hearsay evidence constitutes \\\"plain error\\\" which we should consider even though not objected to below. It is not error at all for a court to receive hearsay evidence without objection. Diaz v. United States, 223 U.S. 442, 450-52, 32 S.Ct. 250, 251-52, 56 L.Ed. 500, 503-04 (1912).\\n. E.g., People v. Daghita, 301 N.Y. 223, 93 N.E.2d 649 (1950).\\n. E.g., State v. Carlton, 233 Or. 296, 378 P.2d 557 (1963); State v. Carden, 50 Wash.2d 15, 308 P.2d 675, 676 (1957); Walls v. State, 491 P.2d 320, 322 (Okl. Cr. 1971).\\n. Alaska Criminal Rule 47(a) states:\\nHarmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.\\n. Love v. State, 457 P.2d 622, 631 (Alaska 1969).\\n. McClain v. State, 519 F.2d 811, 814 (Alaska 1974).\"}"

alaska/10454889.json

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+"{\"id\": \"10454889\", \"name\": \"Nicola J. FERNANDES, Appellant, v. Raymond F. FERNANDES, Appellee\", \"name_abbreviation\": \"Fernandes v. Fernandes\", \"decision_date\": \"1978-09-29\", \"docket_number\": \"No. 3848\", \"first_page\": \"551\", \"last_page\": \"553\", \"citations\": \"584 P.2d 551\", \"volume\": \"584\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T20:35:25.580797+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BOOCHEVER, Chief Justice, and RABINO WITZ, CONNOR, BURKE and MATTHEWS, Justices.\", \"parties\": \"Nicola J. FERNANDES, Appellant, v. Raymond F. FERNANDES, Appellee.\", \"head_matter\": \"Nicola J. FERNANDES, Appellant, v. Raymond F. FERNANDES, Appellee.\\nNo. 3848.\\nSupreme Court of Alaska.\\nSept. 29, 1978.\\nRoger E. Clark, Alaska Legal Services Corp., Fairbanks, for appellant.\\nAppellee waived appearance.\\nBefore BOOCHEVER, Chief Justice, and RABINO WITZ, CONNOR, BURKE and MATTHEWS, Justices.\", \"word_count\": \"810\", \"char_count\": \"4965\", \"text\": \"OPINION\\nPER CURIAM.\\nNicola and Raymond Fernandes were divorced in 1975. Under the terms of the decree of divorce, Nicola was awarded custody of their then-unborn child. Two years later Raymond filed a motion for modification of the divorce decree, seeking custody of the parties' son, Jeremy G. Fernandes. A guardian ad litem was appointed to represent Jeremy.\\nAfter a two day hearing, the superior court ordered that Raymond be given custody of Jeremy.\\nThe guardian ad litem submitted a declaration of fees to the court. The claim was accepted by the court, and disbursement was made to the guardian in the amount of $1,270.42. Two months later the court, sua sponte, issued an order holding Nicola and Raymond jointly and severally responsible for repayment of the guardian ad litem's fees. Appellant Nicola Fernandes appeals from that order.\\nRule 15.1(d), Alaska Administrative Rules, requires the assigned judge to make a determination of the parties' ability to pay the costs of the guardian ad litem before assessing such costs against them. The court's order here was sua sponte. The parties were not notified that the court was contemplating an order for repayment of the guardian ad litem's fees, nor was a hearing held on the parties' ability to pay. Therefore, appellant Nicola Fernandes, who was represented throughout the custody proceeding by Alaska Legal Services Corporation, was precluded from showing that assessment of the guardian ad litem fees against her would work an \\\"undue financial hardship\\\" on her. Administrative Rule 15.-1(d). Thus, we must remand the case to the superior court for the appropriate determination.\\nWe note another oversight on the part of the superior court. On remand, the court is also to issue an order establishing the liability for the guardian ad litem's fees in accordance with AS 09.65.130(b), which provides:\\nIf custody, support, or visitation is an issue, the order for costs, fees, and disbursements shall be made against either or both parents, except that, if one of the parties responsible for the costs is indigent, the costs, fees, and disbursements for that party shall be borne by the state. If either or both parents are only temporarily without funds, as determined by the court, the court may advance payment for legal representation or other services rendered to the child; however, no repayment may be required for those who are receiving legal services for the indigent. The attorney general is responsible for enforcing collections owed the court, and repayment shall be made directly to the court under the provisions of rules governing the administration of the courts. The court shall, if possible, avoid assigning costs to only one party by ordering that costs of the child's legal representation or other services be paid from proceeds derived from a sale of property belonging to both parties, before a division of property is made.\\nIf the trial court finds that Nicola is indigent, her portion of the costs must be borne by the state. If the trial court further finds that she is receiving legal services for the indigent, the state is precluded by AS 09.65.130(b) from seeking repayment from her.\\nREMANDED for proceedings in accordance with this opinion.\\n. The custody determination is not challenged in this appeal.\\n. Administrative Rule 15.1(d) provides:\\nIf the assigned judge determines that the party or parties having legal responsibility for the support of a child for whom an attorney or guardian ad litem has been appointed are able, without undue financial hardship, to pay the costs of such services, the judge shall:\\n(1) Order that all or an equitable portion of the costs be paid by such party or parties directly to the person providing the services; or\\n(2) Assess as costs to such party or parties all or an equitable portion of the cost to the state of providing such services.\\n. We suggest that the superior court be guided in making its determination by Rule 15(c)(1), Alaska Rules of Children's Procedure, which provides:\\nExamination as to Assets and Liabilities. For the purpose of determining whether a party is financially unable to employ counsel the court shall examine him under oath and on the record with respect to his real and personal assets and liabilities, including cash, accounts receivable, accounts payable, income from salary, wages and other sources, ability to convert assets into cash or credit which could be utilized, directly or indirectly, for the payment of counsel fees and as to any other relevant aspect of his economic status.\\n. This subsection was erroneously omitted from the 1977 supplement to Chapter Nine of the Alaska Statutes.\"}"

alaska/10457494.json

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+"{\"id\": \"10457494\", \"name\": \"Thomas Royal JOHNSON, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Johnson v. State\", \"decision_date\": \"1978-07-07\", \"docket_number\": \"No. 3424\", \"first_page\": \"700\", \"last_page\": \"703\", \"citations\": \"580 P.2d 700\", \"volume\": \"580\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T23:16:23.775817+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BOOCHEVER, C. J, and RABI-NOWITZ, CONNOR,. BURKE and MATTHEWS, JJ.\", \"parties\": \"Thomas Royal JOHNSON, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Thomas Royal JOHNSON, Appellant, v. STATE of Alaska, Appellee.\\nNo. 3424.\\nSupreme Court of Alaska.\\nJuly 7, 1978.\\nStephen R. Cline, Asst. Public Defender, Ketchikan, Brian C. Shortell, Public Defender, Anchorage, for appellant.\\nJames L. Hanley, Asst. Dist. Atty., Larry R. Weeks, Dist. Atty., Avrum M. Gross, Atty. Gen., Juneau, for appellee.\\nBefore BOOCHEVER, C. J, and RABI-NOWITZ, CONNOR,. BURKE and MATTHEWS, JJ.\", \"word_count\": \"1677\", \"char_count\": \"10009\", \"text\": \"OPINION\\nBOOCHEVER, Chief Justice.\\nAppellant Thomas Royal Johnson was convicted by jury on January 24, 1977, of attempted robbery in violation of AS 11.15.-240 and AS 11.05.020 and of assault with a dangerous weapon in violation of AS 11.-15.220. He was sentenced to twelve years imprisonment with parole eligibility after one-third of this time.\\nTwo issues are presented on appeal. The first is whether the out-of-court identifications of Johnson should have been suppressed. The second pertains to the length of sentence.\\nOn June 18, 1976, Michael Wiley, the 14-year-old son of the owners of the Ben Franklin Store in Juneau, had his attention attracted to an unusual customer while working as a clerk at the store. This customer was purchasing a full-face ski mask in the middle of the summer. Wiley talked with this person for approximately five minutes and remembered that the fellow argued with him about the price of the ski mask. During this discussion, Wiley was approximately three feet from the customer in a well-lighted store. One of the reasons that Wiley observed this customer carefully was that he thought he was going to steal the ski mask.\\nA few minutes after the sale of the ski mask, Wiley went across the street to the Harry Race Drug Store in order to meet Tim McCorkle with whom he regularly had lunch. Upon arriving at the drug store, McCorkle, son of the owner of Harry Race Drug, told Wiley about an attempted robbery that he had just witnessed. When McCorkle described the person that had attempted to rob the drug store as having long hair, a beard, and a tan army-type coat, Wiley realized that this was the same individual who had just purchased the ski mask in the Ben Franklin Store across the street. At approximately this time, Lt. James Hasty of the Juneau Police Department arrived at the drug store and talked with the witnesses.\\nOne other police officer, Officer McCracken, had arrived at the store just prior to Lt. Hasty. After receiving a description of the man from John Raker, the pharmacist who was assaulted, McCracken left the store because he believed that on his way to the store he had seen the suspect. Lt. Hasty then asked Wiley to ride about the streets in his patrol vehicle in an effort to spot the suspect. During the approximately seven to eight minute ride in the patrol vehicle, Lt. Hasty received a radio transmission asking if the suspect wore blue bell-bottom pants to which Wiley replied in the affirmative. A short time later, a radio message was received from Officer McCracken saying that he had the person he believed to be the suspect in view in the vicinity of the Juneau Motor Company. Lt. Hasty immediately went to that area, where Wiley positively identified the person as the one who had been in the Ben Franklin Store that morning purchasing the ski mask. Wiley was certain it was the same person since he still had the yellow, white and black ski mask sticking from his pocket. The person who Wiley identified was arrested and found to be Thomas Royal Johnson, the defendant.\\nLt. Hasty then went to the Juneau Police Department where he photographed Johnson and prepared a photo lineup containing twenty-five photographs. All persons in the photo lineup had medium to long hair and facial hair (at least a moustache) and at least nine of the persons in the photo lineup had beards.\\nWithin approximately one-half hour after he was assaulted, John Raker looked at the twenty-five photographs and, within 30 seconds, identified the defendant as the person who had assaulted him. Raker did not observe the defendant at the police station prior to identifying him in the photo lineup. Michael Wiley testified that Raker was present when he was examining the photographs but that Raker was writing his statement at the time and did not see the photographs that Wiley identified. Raker did not recall being present during Wiley's identification.\\nAnother identification procedure occurred on January 4, 1977, when a lineup was arranged by defense counsel at the Juneau Police Department. At this lineup, Raker and Wiley positively identified Thomas Royal Johnson. In addition to these identification procedures, both Raker and Wiley identified the defendant in the courtroom at the time of trial.\\nThree separate identifications are complained of: (1) Wiley's initial identification of Johnson; (2) Wiley's identification of Johnson from a photo lineup within an hour of the arrest; and (3) Raker's identification of Johnson from the photo lineup.\\nOur review of the record convinces us that each of the three questioned identifications was valid and reliable. First, as to the initial identification of Johnson by Michael Wiley, we note that the police wished to identify their prime suspect quickly and had good reason to believe that the man Wiley had seen buying a ski mask was that person. While Wiley's identification of Johnson from a photo lineup may have been influenced by the fact that he had seen Johnson being placed under arrest less than an hour before, any possible taint is not sufficient to suppress the identification in light of the \\\"totality of the circumstances.\\\" Finally, the evidence supports the conclusion that Raker's identification of Johnson from the photo lineup was not contaminated by his presence in the room while Michael was making his identification.\\nJohnson's second argument on appeal is that the sentence'is excessive and the superior court erred in not sending him to a drug rehabilitation program rather than to prison. We have recently rejected the notion that a drug addict must be placed in a drug rehabilitation program rather than be incarcerated. Parks v. State, 571 P.2d 1003, 1005 (Alaska 1977); Fox v. State, 569 P.2d 1335, 1337-38 (Alaska 1977).\\nThe principal duty of a sentencing judge is to determine for the case at hand the priority and interrelationships of the sentencing objectives. Nicholas v. State, 477 P.2d 447, 448 (Alaska 1970). From our review of the record we conclude that the superior court was not clearly mistaken in its sentence.\\n. AS 11.15.240 provides:\\nRobbery. A person who, by force or violence, or by putting in fear, steals and takes anything of value from the person of another is guilty of robbery, and is punishable by imprisonment in the penitentiary for not more than 15 years nor less than one year.\\n. AS 11.05.020 provides:\\nPunishment for attempt. A person who attempts to commit a crime, and in the attempt does any act toward the commission of the crime, but fails, or is prevented or intercepted in the perpetration of the crime, when no other provision is made by 'aw for the punishment of the attempt, upon conviction, is punishable as follows.\\n(1) If the crime attempted is punishable by imprisonment in the penitentiary or state jail, the punishment for the attempt is by the same imprisonment, as the case may be, for a term not more than half the longest period prescribed as a punishment for the crime. If the period prescribed as a punishment for the crime is an indeterminate or life term, the punishment for the attempt shall be fixed by the court at a term not more than 10 years. (2) If the crime attempted is punishable by a fine, the punishment for the attempt shall be by a fine of not more than half the amount of the largest fine prescribed as a punishment for the crime.\\n. At the time of the offense, AS 11.15.220 provided:\\nAssault with a dangerous weapon. A person armed with a dangerous weapon, who assaults another with the weapon, is punishable by imprisonment in the penitentiary for not more than 10 years nor less than six months, or by imprisonment in jail for not more than one year nor less than one month, or by a fine of not more than $1,000 nor less than $100.\\n. Sentence was imposed only on the charge of assault with a dangerous weapon, the court considering a range of punishment between one and forty years.\\n. Johnson also challenges an identification by McCorkle from the photo lineup as a fruit of Wiley's initial identification. In light of our disposition of the other specified identifications, we need not address this contention.\\n. Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401, 411 (1972); Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199, 1206 (1967); Gould v. State, 579 P.2d 535 (Alaska 1978); Noble v. State, 552 P.2d 142, 146 (Alaska 1976).\\n. The court did recommend a drug treatment house \\\"at an appropriate time\\\" during the sentence.\\n. See Cleary v. State, 548 P.2d 952, 954 (Alaska 1976). At the sentencing hearing, the court sentenced the defendant pursuant to the enhanced sentencing provision in AS 12.55.050, which allowed the defendant to be sentenced up to a maximum sentence of forty years on the assault with a dangerous weapon charge and thirty years on the attempted robbery charge because he had previous felony convictions. In addition to the defendant's prior felony convictions, the court had before it his long history of juvenile institutional placement, several psychiatric reports indicating that the defendant was basically an anti-social individual who had a record of assaultive anti-social acts during his institutional placements and the fact that the defendant had been released on parole from the Washington State penitentiary less than a week before committing the offenses in Juneau.\\nAS 12.55.050(2) states:\\nIf the person has previously been convicted of two felonies, then he is punishable by imprisonment for not less than the minimum nor more than twice the longest term prescribed herein for a second conviction of felony.\"}"

alaska/10459713.json

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+"{\"id\": \"10459713\", \"name\": \"CITY OF KENAI, Appellant, v. George FILLER, A.I.A., Appellee\", \"name_abbreviation\": \"City of Kenai v. Filler\", \"decision_date\": \"1977-07-22\", \"docket_number\": \"No. 2685\", \"first_page\": \"670\", \"last_page\": \"677\", \"citations\": \"566 P.2d 670\", \"volume\": \"566\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T21:29:08.779797+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BOOCHEVER, C. J., and RABI-NOWITZ, CONNOR, ERWIN and BURKE, JJ.\", \"parties\": \"CITY OF KENAI, Appellant, v. George FILLER, A.I.A., Appellee.\", \"head_matter\": \"CITY OF KENAI, Appellant, v. George FILLER, A.I.A., Appellee.\\nNo. 2685.\\nSupreme Court of Alaska.\\nJuly 22, 1977.\\nKarl L. Walter, Jr., Groh, Benkert & Walter, Anchorage, for appellant.\\nRobert B. Baker, Robertson, Monagle, Eastaugh & Bradley, Anchorage, for appel-lee.\\nBefore BOOCHEVER, C. J., and RABI-NOWITZ, CONNOR, ERWIN and BURKE, JJ.\", \"word_count\": \"3536\", \"char_count\": \"21203\", \"text\": \"OPINION\\nBURKE, Justice.\\nThis dispute arises out of a contract for architectural services entered into between the appellant City of Kenai and appellee George Filler. Both parties agree that a contract was entered into relating to the development of a civic center. The City's first major argument on appeal is that the trial court erred in finding that the parties amended the original contract to increase the proposed cost and scope of the Kenai Civic Center and thus increase the size of Filler's architectural fee under the payment terms of the original contract. Its second contention is that the trial court erroneously found that the evidence showed that the City had ratified the amended Filler contract and was obligated to pay Filler for the authorized increase in project scope.\\nOn June 2,1971, by Resolution No. 71-25, the Kenai City Council gave their City Manager, Edwin H. Glotfelty, authority to hire Filler as architect for the design of a Kenai Civic Center. Under this resolution, no specific limit was placed on the size of the proposed Civic Center Project.\\nOn June 16, 1971, the City entered into a contract with Filler to provide architectural services relating to the development of this civic center. This agreement was reduced to written form by American Institute of Architects Document B \\u2014 131, \\\"Standard Form of Agreement between Owner and Architect.\\\" This agreement, signed by City Manager Edwin H. Glotfelty and Filler, provided that the total project cost would not exceed $1.6 million and that the architect's fee for the services described in paragraph 1.1 of the contract would be computed as 8% of the \\\"construction costs.\\\" Paragraph 3.1.2 of the contract defined construction cost for a project which is not constructed as the \\\"lowest bona fide bid received for any and all of such work.\\\" Under the contract provisions, payment of 80% of the architect's fee for the services specified in paragraph 1.1 was due if the project entered the bidding or negotiation phase.\\nParagraph 1.2 provided that certain additional services, if authorized by the City, would be performed at additional cost. Such additional services included \\\"providing special analysis of the owner's needs and programming the requirements of the project\\\"; providing financial feasibility or other special studies\\\"; and hiring \\\"special consultants.\\\"\\nPrior to entering into the contract, Filler did not review the City Charter, the City ordinances, except for building regulations, or resolutions authorizing any contracts for architectural services. He appears to have relied solely on the City Manager in Kenai.\\nIn early March of 1972, Filler submitted a schematic design for the Kenai Civic Center to the Kenai City Council. On March 23, 1972, Filler appeared at a public hearing in Kenai. At that meeting, the public indicated dissatisfaction with the limited scope of the planned project. The City Manager and others then mentioned the possibility of obtaining additional money to permit the City to increase the scope of the project to a $2.4 million civic center. Filler apparently was asked to develop two plans. The first plan was within the original project cost of $1.6 million. The second and more elaborate plan was based on a project cost of $2.4 million.\\nOn May 3, 1972, Filler appeared before the Kenai City Council and presented two schematic drawings and two cost estimates. Scheme I was for a civic center project costing approximately $1.6 million; Scheme II provided for a more extensive civic center project costing approximately $2.4 million. On the evening of May 4,1972, Filler appeared before a public hearing in Kenai to present both Scheme I and Scheme II to the City Council and the public. After these meetings, Filler testified that he was left with the impression that the City Council had approved the larger $2.4 million scheme. Consequently, Filler requested a confirmation from the City Manager in the form of a letter indicating that the City wished to go ahead with the larger project. This request was made because of prior problems with the City concerning the payments for increased cost on a previous project. Glotfelty sent Filler the following letter dated June 29, 1972,\\nYou are requested to proceed with the drawings of May, 1972 of the Kenai Civic Center, scheme number two, sheet numbers one and two.\\nIn your Standard Architect Agreement dated June 16, 1971, the City of Kenai specified that the total projected costs was not to exceed $1,600,000.00. We would like this amended to a total projected cost not to exceed $2,400,000.00.\\nCity Manager Glotfelty testified that before he wrote the letter the City Council had approved the amendment at either a regular or special meeting of the council. Thus, he apparently felt he had the authority to amend the original contract. However, Glotfelty also testified that he intended after the letter of June 29th to have a written amendment added to the original contract.\\nAfter receiving the June 29th letter, Filler commenced his design and development drawings for the $2.4 million project. However, it should be noted that Filler admitted that the language \\\"we would like this amended\\\" was not a specific contract amendment but that he interpreted the entire letter as an amendment to the contract.\\nOn September 6, 1972, Filler appeared before the Kenai City Council and presented to them design and development drawings for a $2.4 million project. According to Glotfelty's testimony, the Council instructed him to proceed with the completion of the Scheme II design drawings and specifications and to put the project out to bid.\\nOn October 4, 1972, the Council approved partial payment to Filler based upon a billing for a $2.1 million project, Filler's then current estimate of the total Scheme II project cost. Filler objected by telephone to the City Manager that this payment was insufficient; the City Manager indicated, according to Filler's testimony, that Filler would receive full payment. The City Manager testified that he made partial payment to Filler only because he wanted to speed Filler's process of producing final plans and specifications for Scheme II even though the partial payment is based on a computation of 8% of the $1.6 million project cost of Scheme I.\\nThe project was advertised for bids during the period from the end of October through early November in numerous newspapers of general circulation. All advertisements for bids indicated a project of approximately 37,000 square feet as outlined in Scheme II, the $2.4 million scheme. Five copies of the final plans and specifications (Scheme II) were sent to the City on November 5,1972. These plans and specifications were apparently used by the City to obtain bids for construction of the Civic Center. In November, Filler also presented the City with the architect's final estimate showing an estimated total construction cost of $2,372,000.\\nOn December 11, 1972, bids for the Civic Center project were opened. The low bid for the project without the alternative, optional features was $1,876,000. The lowest bid with all eleven alternatives was $2,417,-000. At the December 20, 1972 Kenai City Council meeting, the City Manager stated to the City Council that the low bid with the first four alternatives was $2,108,000. The Council voted to attempt to proceed with construction and to ask the two low bidders to keep their bids open for a period of sixty (60) days. At the same meeting, the Council apparently approved payment of a partial fee to Filler based upon an estimated construction cost of $2,100,000. It should be noted that the fee payment is listed in the Council'minutes as \\\"Notification of Payment,\\\" and no formal Council action with respect to it is shown.\\nAs of December 11, 1972, the City in its official financial records computed payments to Filler for the Civic Center on the basis of Scheme II cost estimates. Anticipated funding for the Kenai Civic Center did not materialize. Accordingly, the Council passed a resolution on April 18, 1973 rejecting the low bids submitted on the Civic Center.\\nThe minutes of the City Council during all of 1972 and 1973 are silent as to any formal agenda item, approval, or-action by the . Council as to any amendment or changes in the original architectural contract.\\nFiller, on May 6, 1974, filed a complaint in the superior court alleging,that the City of Kenai had failed to pay him $36,505.15, the balance of his architectural fees due him under the allegedly modified contract. Filler contended that his fee should have been computed on the basis of the Scheme II costs of $2.4 million. The City of Kenai countered that no contract modification took place and hence any payment must be based on the Scheme I cost of $1.6 million. The City also counter claimed for alleged fee overpayments made to Filler,based on $2.4 million costs.\\nThe lower court held that the City Council had. approved amendment of the contract and alternatively held -that the Council had ratified the modified contract.\\nThis appeal followed.\\nThe City urges several claims of error on this appeal. It urges that the lower court erred in finding a contract amendment and erred in finding ratification of the contract amendment without specific findings of fact. Given that our affirmance of the lower court on the ratification issue is dispositive of this controversy we find it unnecessary to reach the City's contention that it did not specifically approve the contract amendment according to its City Charter and Ordinances.\\nThe City contends that the trial court failed to enter findings of fact and conclusions of law in order to allow the Supreme Court a basis for review on the issue of ratification. Such a position however, fails upon a reading of the trial court's written decision. In his decision, Judge Buckalew states after enumerating his findings of fact and conclusions of law:\\nIn summary, the Court finds that the City Manager did have express authority and did amend plaintiff's contract. This court further finds that the facts would also warrant a recovery for the plaintiff under a theory of ratification.\\nThe trial court's statement thus appears to incorporate the same findings of fact and conclusions of law utilized for finding of a contract amendment and thus meets the requirements of Moores v. Alaska Metal Buildings, Inc., 448 P.2d 581, 582-83 (Alaska 1968) where this court stated:\\n[a] trial judge [has] the duty under Civil Rule 52(a) to make sufficiently detailed and explicit findings of fact in order to afford this court a clear understanding of the basis for his decision.\\nAn unenumerated summary of Judge Buckalew's findings shows that:\\n\\u2014 Filler was requested to prepare two design schemes.\\n\\u2014 The City through its agent requested Filler to prepare design drawings based on the larger of two Civic Center schemes, i. e., the $2.4 million design.\\n\\u2014 Filler presented these design drawings before the Kenai City Council on September 6, 1972, with the Council on October 4, 1972, approving partial payment to Filler based upon a $2.1 million figure.\\n\\u2014 The City took advantage of the large scope design in its bid advertisements which were published in the latter part of October, 1972, which indicated a project based on the $2.4 million figure.\\n\\u2014 The City Council after bids were opened was advised by the City Manager that total project cost was between $2.35 million and $2.5 million. With this knowledge the Council voted to proceed with construction.\\nWe conclude that the lower court's findings of fact and conclusion of the law sufficiently detailed and explicit as to meet the Moores, supra, standard and therefore find that they meet the requirements of Civil Rule 52(a).\\nThe City also urges that any ratification of an amended contract must be by acts as formal as those necessary for a valid contract in the first instance. However, such a result would place a premium on technical requirement and ignore actual circumstances. McQuillan states:\\nThe ratification of a contract by the municipal corporation may be made by the affirmative action of the proper officials or by any action or non-actibn which in the circumstances amounts to an approval of the contract. To constitute due ratification of an executory contract the general rule is that there must be formal corporate action. But it does not necessarily follow that lack of an affirmative act will exempt the city from liability where the contract has been executed by the other party thereto. The city may be bound by inaction.\\nIn the case at bar, Filler fully performed his part of the contract in preparing a design plan based on specification changes ordered by the City Manager. Even though the City Council was aware that it was working with a design plan which was of increased scope over the plan initially contracted for, it made no effort to indicate that it disapproved of the City Manager's order to Filler to increase the size of the project.\\nThe City also ventures the argument that one dealing with an agent of a municipal corporation does so at his own risk and is required to be aware of any limitations on the agent's authority. It contends that this court adopted this proposition in King v. Alaska State Housing Authority, 512 P.2d 887 (Alaska 1973). We recognize that then Chief Justice Rabinowitz stated that\\n. it is well established that all persons dealing with a public corporation are deemed to know its limitations.\\nHowever, this statement must be read in the context of the cases cited in support of the proposition offered. The supporting authorities are based on fact patterns where the alleged contract was illegal ab initio due to a lack of power on the part of the public agency to enter into the contract.\\nIn King, supra the court relied on Dyson et al. v. Dixon et al., 219 Ga. 427, 134 S.E.2d 1, 2 (Ga.1963) wherein the appellants argued they had a right to certain property sold by a public redevelopment corporation on the basis that the development corporation's agent had promised them a preference. The Georgia court held that since the redevelopment corporation itself could grant no preference neither could its agent.\\nThe second authority relied on by King, supra, State ex rel. Bain v. Clallam County Bd. of Com'rs, 77 Wash.2d 542, 463 P.2d 617 (1970), concerned a union which urged the court to grant a writ of mandamus to force the County Board to honor an oral collective bargaining agreement for a pay increase. Such an increase would have required a transfer between budget accounts. In upholding the right of the Board not to perform the court stated:\\nThe commissioners gave as one reason for declining to perform the tentative oral agreement that their official counsel, the Prosecuting Attorney of Clallam County, had advised them that it would be illegal to grant the pay increase because no emergency existed warranting a departure from the 1968 budget. We are not concerned with and do not pass on whether this court would ultimately sustain the prosecuting attorney's position, but rather whether the commissioners had a legal right to heed his advice.\\nThe record and the findings support the Commissioners on this point.\\nThe third authority cited by the King court, McQuillan on Municipal Corporations, \\u00a7 29.04 at 220-23, qualifies his assertion at \\u00a7 29.104 at 506 by stating that \\\"contracts which are within the scope of the corporate powers but not authorized by proper action of the municipal corporation may be ratified by the proper corporate authorities.\\\" The City urges, citing McQuillan at 527, that \\\"ratification can be made only by an observance of the same formalities and provisions to be complied with in the making of a valid contract.\\\" However, this authority cites Los Angeles Dredging Co. v. City of Long Beach, 210 Cal. 348, 291 P. 839 (1930), a case which also requires only prior legal authority to contract and does not stand for the broader proposition that a contract only becomes effective upon formal compliance rather than functional compliance with statutory requirements to a valid contract.\\nThe City thus urges this Court to release them from their contractual obligation since they did not follow the black letter of their own ordinances which require a ratification to be set on it's Council's agenda and a formal yea-nay vote taken. The record shows that the City knew of the enlarged scope of the project, directed its City Manager to let the bid on the enlarged Scheme II project, partially paid Filler's fee based on a $2.1 million project and then, when they could not find sufficient funding, attempted to disavow any approval of the enlarged project. Given that the City also accepted the benefits of the enlarged project by asking bids while utilizing Filler's plans, the trial court was not clearly in error in finding a ratification of the contract.\\nThe City raises as an additional basis of appeal the contention that the lower court erred in requiring the City to pay Filler $5,500 for a feasibility study and to reimburse Filler for the cost of special consultants. These assertions are, however, without merit. In both situations the City Manager requested the services rendered and the City accepted the benefits.\\nAs a final attack, the City lists seven grounds on which it argues the lower court erred in improperly weighing the evidence. Summarized, the City's seven assertions of error are that the lower court erred in finding:\\n1. That Filler was asked to develop two design plans;\\n2. That the City Manager sent Filler a letter stating the total project cost was amended to a figure not to exceed $2.4 million;\\n3. That Filler was notified that the City Council approved the final specifications and that the project would be put out to bid;\\n4. That the City Council on October 4, 1972, approved partial payment to Filler based upon a $2.1 million cost;\\n5. That on December 20, 1972, the City Council authorized payment of a fee to Filler based on a $2.1 million cost;\\n6. That the low bidder on the civic center project based his bid on Filler's final estimate; and\\n7. That the City Council voted to proceed with construction.\\nThe standard for review of findings of fact was set out by this court in Alaska Placer Co. v. Lee, 553 P.2d 54, 59 (Alaska 1976):\\nThis court will not set aside a finding of fact of a trial judge unless it is clearly erroneous. A finding is clearly erroneous when, although there may be evidence to support it, we are left with a definite and firm conviction on the entire record that a mistake has been made. We must also give due regard to the trial court's opportunity to judge the credibility of the witnesses. (citations omitted)\\nWe are unconvinced that the lower court erred with respect to the seven grounds of error asserted by the City. In fact, the lower court's findings of fact are more than substantiated by the evidence at trial.\\nAFFIRMED.\\n. The City's point that Filler failed to plead ratification falls in the face of Alaska Rule of Civil Procedure 8(f) which states:\\nAll pleadings shall be construed so as to do substantial justice.\\nThus, as Professor Wright states with respect to Federal Rule of Civil Procedure 8(f) the model on which our state rule is patterned:\\n. . . all the Rule requires is 'a short and plain statement of the claim' that will give fair notice of what the plaintiffs claim is and the grounds upon which it rest. (Wright, Law of Federal Courts p. 285 (2nd ed. 1970))\\nFiller's complaint gives fair notice of his claim. See Record on Appeal 1-2.\\n. In Common Wealth Insurance Systems, Inc. v. Kersten, 40 Cal.App.3d 1014, 115 Cal.Rptr. 653, 661 (1974) ratification was defined as\\n. 'the voluntary election by a person to adopt in some manner as his own an act which was purportedly done on his behalf by another person, the effect of which, as to some or all persons, is to treat the act as if originally authorized by him'; ratification may be by conduct which is inconsistent with any reasonable contention on his part other than that he intended approving and adopting the act. (Rakestraw v. Rodrigues, supra, 8 Cal.3d 67, 73, 104 Cal.Rptr. 57, 60, 500 P.2d 1401, 1404.) Voluntary retention of benefits with knowledge of the unauthorized nature of the act constitutes ratification. (Fidelity & Casualty Co. v. Abraham, 70 Cal.App.2d 776, 782-783, 161 P.2d 689; 1 Witkin, Summary of Cal. Law (8th ed.) Agency and Employment, \\u00a7 129, p. 736; Rest.2d Agency, \\u00a7 98, : 99.) Acquiescence or silence may also constitute ratification. (Ralphs v. Hensler, 97 Cal. 296, 303, 32 P. 243; Waldteufel v. Sailor, 62 Cal.App.2d 577, 581, 144 P.2d 894. See Bank of America v. Perry, 41 Cal.App.2d 133, 141, 106 P.2d 53; Rest.2d Agency, supra, \\u00a7 94.)\\n.Record on Appeal 110-12.\\n. Id.\\n. McQuillan, Municipal Corporations \\u00a7 29.106, 520-521 (3rd ed. 1966).\\n. 515 P.2d at 891.\\n. 463 P.2d at 619.\"}"

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+"{\"id\": \"10462063\", \"name\": \"Wilfred POULIN, Appellant, v. Dr. Harvey ZARTMAN, Appellee; Dr. Harvey ZARTMAN, Cross-Appellant, v. Wilfred POULIN, Cross-Appellee\", \"name_abbreviation\": \"Poulin v. Zartman\", \"decision_date\": \"1975-11-12\", \"docket_number\": \"Nos. 2120, 2127\", \"first_page\": \"251\", \"last_page\": \"277\", \"citations\": \"542 P.2d 251\", \"volume\": \"542\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-11T02:07:41.027749+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before RABINOWITZ, C. J., CON-NOR, J., and STEWART, Superior Court Judge.\", \"parties\": \"Wilfred POULIN, Appellant, v. Dr. Harvey ZARTMAN, Appellee. Dr. Harvey ZARTMAN, Cross-Appellant, v. Wilfred POULIN, Cross-Appellee.\", \"head_matter\": \"Wilfred POULIN, Appellant, v. Dr. Harvey ZARTMAN, Appellee. Dr. Harvey ZARTMAN, Cross-Appellant, v. Wilfred POULIN, Cross-Appellee.\\nNos. 2120, 2127.\\nSupreme Court of Alaska.\\nNov. 12, 1975.\\nTheodore R. Dunn and Warren W. Matthews, Jr. of Matthews, Dunn & Baily, Anchorage, James A. Parrish of Parrish Law Office, Fairbanks, for appellant and cross-appellee.\\nJames J. Delaney and Robert L. Eas-taugh of Delaney, Wiles, Moore, Hayes & Reitman, Anchorage, for appellee and cross-appellant.\\n. Apparently respiratory distress syndrome (RDS) and hyaline membranne disease are not synonymous. Rather, RDS is a genera term and HMS is one form of respiratory distress syndrome. A. Schaffer, Diseases of the New-horn 105 (2d ed. 1966).\", \"word_count\": \"13531\", \"char_count\": \"83934\", \"text\": \"OPINION\\nBefore RABINOWITZ, C. J., CON-NOR, J., and STEWART, Superior Court Judge.\\nCONNOR, Justice.\\nThis appeal arises from a medical malpractice action. It raises issues concerning admissibility of evidence, standards of conduct by a physician, and the \\\"informed consent\\\" doctrine.\\nA suit was brought by Wilfred Poulin on behalf of his infant daughter, Courtney Poulin, against Dr. Harvey Zartman. Poulin brought this action for damages alleging that Zartman improperly administered oxygen to Courtney, thereby causing her to become totally blind, and that Zart-man's failure to properly treat jaundice caused severe brain damage in the child. Poulin also contended that' Zartman administered treatment to Courtney without the informed consent of either of Courtney's parents.\\nAfter a trial in the Superior Court in which a jury verdict was rendered against him on August 25, 1973, Poulin moved alternatively for a judgment notwithstanding the verdict or a new trial. These motions were denied, and this appeal followed. Dr. Zartman has filed a cross-appeal claiming error in the denial of costs and attorneys' fees.\\nI. FACTS\\nCourtney Poulin was born at approximately 3:00 p. m. on February 9, 1968. She was a premature infant of about 28 weeks gestation. The baby was delivered by Dr. Claire A. Renn at the Anchorage Community Hospital. Dr. Renn summoned Dr. Harvey Zartman, the pediatrician then on duty, and Dr. Zartman saw Courtney for the first time at 3:30 p. m., one-half hour after her birth.\\nDr. Zartman found the infant in severe respiratory distress and he diagnosed her condition as either \\\"hyaline membrane disease (HMD), or respiratory distress syndrome (RDS)\\\". There is disagreement as to whether Dr. Zartman properly diagnosed HMD, but all witnesses agreed that Courtney Poulin was suffering respiratory distress and did require oxygen. Dr. Zart-man ordered supplemental oxygen at \\\"5 to 8 liters per minute or higher if necessary to keep pink.\\\" The propriety of ordering oxygen to be administered in this manner was one of the central issues in the trial.\\nCourtney continued to receive supplements of oxygen until 12:00 p. m. February 16, 1968. Oxygen-weaning commenced on the afternoon of February 15, 1968, and all oxygen supplements were ended at noon on February 16, 1968. Courtney Poulin subsequently became totally blind. She is suffering from retrolental fibroplasia (RLF). It is undisputed that excessive oxygen results in a higher incidence of RLF. However, there are studies indicating that RLF can occur in premature babies who have had virtually no oxygen supplement at all.\\nAt 7:00 a. m. February 11, 1968, the baby was noted to be jaundiced and this condition continued in varying degrees through at least February 17, 1968. Jaundice may indicate the presence of \\\"indirect bilirubin\\\" in the blood. Indirect bilirubin can cause brain damage. Nevertheless, Dr. Zartman did not regard a bilirubin test as necessary.- Today, Courtney Poulin is severely mentally retarded. Plaintiff contended at trial that the retardation resulted from a disease known as kernicterus, which is caused by elevated bilirubin in the blood. Plaintiff further contended that a \\\"simple, non dangerous\\\" bilirubin test could have detected the condition and thus led to alleviating it. However, plaintiff acknowledges that testimony concerning the cause of Courtney's mental retardation was in conflict.\\nMrs. Poulin, Courtney's mother, was not contacted by Dr. Zartman until February 19, 1968. While Courtney was in the hospital Dr. Zartman did talk with Mr. Pou-lin, but there is conflict as to whether he discussed the risks attendant to oxygen therapy with the father.\\nFollowing Courtney's discharge from the hospital it was noticed that she was not developing properly. She was subsequently diagnosed as being totally blind, resulting from retrolental fibroplasia (RLF), and severely mentally retarded. The Poulins then brought suit against Dr. Zartman.\\nOxygen Administration\\nOne of the key issues at trial concerned whether Dr. Zartman ordered an excessive amount of oxygen for Courtney, thereby causing retrolental fibroplasia (RLF) which resulted in her total blindness. It will be recalled that excessive oxygen has been shown to cause an increased incidence of RLF. In 1968, in Anchorage, Alaska, precise gauges for 'monitoring the amount of oxygen in the blood were not available. Thus, less accurate means of averting excessive oxygen had to be relied upon.\\nAn undisputed index of insufficient oxygen in the blood is the condition known as cyanosis. One who is cyanotic, i. e., oxygen deficient, becomes blue in the mucus membranes, lips, and skin. This can vary in degree with the first indicators being a \\\"duskiness\\\" in appearance. Apparently at the time that oxygen administration was commenced, Courtney was cyanotic. The last reported observation of cyanosis was on February 12, 1968, at 8:30 a. m. Oxygen treatment continued to 12:00 p. m. on February 16, 1968.\\nPlaintiff offered substantial expert testimony endorsing a system of oxygen-minimization referred to as \\\"titration\\\". Essentially this method reduces the oxygen concentration to a point at which a baby begins to turn cyanotic. The level then is raised slightly above that point and periodically the process is repeated. Defendant countered with his own experts, all of whom felt that Dr. Zartman's methodology was adequate. Zartman's methodology apparently consisted of \\\"working down\\\" from a concentration that was wholly adequate to avoid cyanosis, as opposed to \\\"working up\\\" from a concentration that was insufficient to prevent cyanosis, i. e., titration.\\nPoulin produced evidence from the American Academy of Pediatrics which stated that atmospheric oxygen concentration \\\"should be kept at the lowest possible level that will relieve the symptoms for which it is given. If possible, it should not be over 40 percent.\\\" The nurses' records reflect that from 8:30 a. m. on February 12, 1968, to 5:00 p. m. on February 15, 1968, the oxygen concentration was almost always above, and never below, 40 percent. During this 3\\u00bd day period,' the liter flow of 4 was reached at 6:30 p. m. on February 13, 1968. It remained at that flow level for the next 43\\u00bd hours, during which time oxygen concentration was at least 40 percent.\\nDr. Zartman offers three explanations for this high concentration of oxygen. He states that he ordered the baby to be \\\"kept pink\\\" and that if it is not cyanotic it is pink and there is \\\"no gray in-between.\\\" This, of course, begs the question of how much oxygen concentration is the least necessary to keep the baby pink.\\nThe doctor also stresses that throughout this period the baby was experiencing distress known as apnea, a condition of temporary cessation of breathing. Continuous oxygen therapy often will relieve the severity of apnea and many of the experts acknowledged that oxygen therapy is appropriate when apnea is present. Dr. Zartman's brief on appeal does not attempt to justify the quantity of oxygen by the presence of apnea, but only the continuous use of oxygen for nearly 3\\u00bd days following the last recorded incident of cyanosis.\\nFinally, Dr. Zartman points to testimony suggesting that the machine monitoring the air concentrations (a myra oxygen analyzer) was inaccurate. He particularly stresses that due to the construction of the incubator at 4 liters it was \\\"almost impossible\\\" to have a 40 percent concentration of oxygen. Poulin's response is that the oxygen analyzer was never tested and the nurses' notes are in fact the only record available as to what the concentration actually was.\\nIn summary, oxygen can be a dangerous substance, and excessive doses have been associated with a blindness-inducing disease known as retrolental fibroplasia (RLF). Courtney Poulin is blind as the result of RLF. Poulin's experts testified that the preferred method of controlling excessive oxygen in 1968 was titration, i. e., \\\"testing up\\\" from a cyanotic state until the condition is relieved. Dr. Zartman's experts supported his method of monitoring excessive oxygen, i. e., relieve the symptom of deficiency, in this case cyanos-is, then periodically \\\"test down\\\". For at least a 40-hour period, Courtney Poulin received high concentrations of oxygen without any testing, up or down.\\nJaundice, Bilirubin, and Retardation\\nAs previously noted, Courtney experienced continuing jaundice from at least February 11, 1968, to February 17, 1968. Jaundice may indicate elevated bilirubin in the blood. Elevated bilirubin can lead to kernicterus which is a disease causing brain damage. Bilirubin can be detected by a blood test. No such test was ordered. Today, Courtney Poulin suffers from severe mental retardation.\\nDr. Zartman's defense is two-fold in nature. First, he claims that the degree of jaundice observed was insufficient to warrant a bilirubin test. In support of this contention he notes that two other doctors saw the infant and also failed to order the test. Furthermore, head 'nurse Gill testified that the degree of jaundice, apparently a common symptom in newborn infants, was not unusual.\\nZartman's second defense is lack of proof of causation. He solicited expert testimony suggesting that Courtney's symptoms are not reflective of brain damage resulting from excessive bilirubin, but instead suggest mental deficiencies resulting from inadequate oxygen. Poulin himself acknowledges that causation was in, dispute.\\nThe relevance of the aforementioned facts to the legal issues on appeal is as follows. Poulin contends, among other things, that the evidence does not support the verdict. But, standing alone, the evi-dentiary conflicts on the issues of the appropriate method of oxygen administration, the cause of Courtney's mental retardation, and the informed consent doctrine would preclude reversal by this court. However, when the conflicting evidence is examined with an eye to the testimony that was admitted over objection, the instructions that were denied, and the standard of care that was submitted to the jury, the result is more problematic. In the circumstances, a review of each point raised on appeal is imperative.\\nII. LEGAL ISSUES\\nFor the purposes of clarity we have sorted the numerous legal issues into three categories: prejudice, standard of care, and informed consent. These are merely labels of convenience. Appellant urges 14 separate reversible errors by the trial court. The following provides a summary of the questions presented on appeal:\\n(a)Prejudice\\n(1) Did the court err in admitting testimony concerning Patricia Poulin's lack of prenatal care?\\n(2) Did the court err in admitting testimony concerning Wilfred Poulin's occupational and military background?\\n(3) Did the court err in refusing to instruct the jury that Patricia Poulin's failure to obtain prenatal care was irrelevant to Dr. Zartman's negligence or his duty of disclosure ?\\n(4) Did the court err in refusing a supplemental instruction stressing that Courtney Poulin, the infant, and not her parents, was the real party in interest and that she would receive the benefits of any damages awarded ?\\n(5) Did the court err in refusing to consider juror affidavits in support of Pou-lin's motion for a new trial, when those affidavits asserted that the jury was influenced by improper considerations of sympathy and bias?\\n(6) Did the court err in refusing to admit evidence concerning Zartman's liability insurance ?\\n(b)Standard of Care\\n(1) Did the court err in refusing to admit medical textbooks concerning certain substantive issues?\\n(2) Did the court err in instructing the jury that certain medical textbooks could not be used as substantive evidence ?\\n(3) Did the court err in refusing to give instructions holding the defendant to a higher standard of care than normal, and to a nationwide standard of care?\\n(4) Did the court err in refusing instructions concerning the defendant's duty to read nurses' notes and alert nurses to their failure to comply with the doctor's orders?\\n(5) Did the court err in refusing to instruct the jury that Courtney's special susceptibilities did not reduce the standard of care with which defendant must comply?\\n(6)Did the court err in failing to grant a judgment notwithstanding the verdict or new trial on the issue of negligent administration of oxygen?\\n(c)Informed Consent\\n(1) Did the court err in omitting reference to the informed consent issue in the general mandatory instruction?\\n(2) Did the court err in failing to grant a judgment notwithstanding the verdict or new trial on the issue of informed consent?\\n(d)Denial of Costs and Attorney's Fees\\n(1) Did the court err in denying costs and attorney's fees to Dr. Zartman ?\\nIII. PREJUDICE\\nAppellants' first claim of error asserts that the court improperly admitted testimony on Patricia Poulin's lack of prenatal care, and then compounded this harm by refusing to give plaintiff's supplemental instruction 4-A which, paraphrased, states that the mother's lack of prenatal care is irrelevant to the issue of defendant's negligence or breach of duty concerning informed consent.\\nQuestioning concerning the mother's lack of prenatal care arises at two points in the trial. First, during cross-examination of Mrs. Poulin, defense counsel asked her whether she had seen a doctor upon discovering she was pregnant, or at any time prior to Courtney's birth. The mother answered, over objection, that she had not. The second incident occurred during defense counsel's cross-examination of Mr. Poulin. At that time defense counsel, despite repeated objections, was able to establish that the Poulins had not seen a doctor prior to Courtney's birth, and that they had not done so because they favored the concept of \\\"natural\\\" childbirth.\\nThe defense counters any claim of reversible error concerning this testimony on two interrelated grounds. First, defendant asserts that the testimony was clearly relevant to the issues of proximate cause and damages. Second, it is asserted that the inquiry was not extensive and thus any prejudice which may have resulted did not outweigh the relevance of the testimony.\\nThe standard of review on appeal is certain. A trial judge will only be reversed for admitting prejudicial, but otherwise relevant, evidence if he has committed a \\\"clear abuse of discretion.\\\" Davis v. Chism, 513 P.2d 475, 479 (Alaska 1973). Thus, we first must consider the relevance of the testimony and then determine whether its prejudicial effect so outweighed its probative value that admission by the trial judge constituted a \\\"clear abuse of discretion\\\". See, e. g., Love v. State, 457 P.2d 622 (Alaska 1969).\\nAlaska case law defines the test of relevancy. \\\"To be of sufficient relevance for admission, testimony, documents or other evidence must have some tendency in reason to establish a proposition material to the case.\\\" Hutchings v. State, 518 P.2d 767, 769 (Alaska 1974). The dual concepts of logical relevance, i. e., some tendency to establish the ultimate point for which the evidence is offered, and materiality, i. e., germaneness of the ultimate point to issues in the trial, have been emphasized repeatedly in our opinions.\\nZartman asserts that testimony concerning lack of prenatal care and philosophical attitudes concerning childbirth are relevant to the issues of proximate cause and damages. He deduces that conclusion from the undisputed fact that the likelihood of prematurity is higher in the absence of prenatal care and that blindness and brain damage are more prevalent in premature babies than in fullterm babies.\\nHowever, there was no dispute about Courtney Poulin's prematurity. Dr. Zartman was called to treat an infant born at about 26 to 28 weeks of gestation. Likewise, there was no dispute concerning the statistically higher incidence of blindness and brain damage in premature infants. The issue in this case centers on whether the baby's prematurity or Dr. Zartman's care caused Courtney's maladies. The reasons for Courtney Poulin's prematurity are simply not material to any issue in this case. No testimony was offered at any point suggesting that premature babies who lacked prenatal care have a higher incidence of blindness or brain disease than prematures with prenatal care. And certainly the parents' philosophic reasons for failing to obtain prenatal care are both irrelevant and immaterial.\\nTo use the language in Hutchings v. State, 518 P.2d 767, 769 (Alaska 1974), we conclude that this testimony was erroneously admitted, since \\\"[t]o be of sufficient relevance for admission, testimony . must have some tendency in reason to establish a proposition material to the case.\\\" The reasons for Courtney Pou-lin's prematurity are not material to this case. Thus the testimony concerning lack of prenatal care and the Poulins' attitudes towards \\\"natural childbirth\\\" should have been excluded.\\nZartman urges that Poulin has waived any objection to the testimony by submitting an exhibit which itself refers to lack of prenatal care. Appellee cites C. McCormick, Evidence \\u00a7 55, at 128 (2d ed. 1972), for his waiver contention. How ever, McCormick goes on to state that if a party's objection to evidence is overruled (as was the case here) he may then treat this as the \\\"law of the case\\\" and submit his own evidence to explain or rebut the admitted evidence, and such conduct will not constitute a waiver. McCormick, supra, \\u00a7 55, at 128-29.\\nWe turn now to whether admission of this testimony was harmless or prejudicial error. Poulin simply asserts that the testimony, constituting an attack on the parents, prejudiced the jury against rendering a verdict for the child. Zartman goes no further than to state that Civil Rule 61 prohibits reversal for so-called \\\"harmless error.\\\"\\nThere is no doubt that appellant has the burden of proving both error and prejudice. Zerbinos v. Lewis, 394 P.2d 886, 889-90 (Alaska 1965). However the test of \\\"harmless error\\\" is a subtle one. Since the operative language in Civil Rule 61 and Criminal Rule 47(a) is identical, case law in the criminal area is applicable and instructive. The definitive Alaska opinion concerning \\\"harmless error\\\" is Love v. State, 457 P.2d 622 (Alaska 1969).\\nThe Love decision held that harmless error does not mean that \\\"elided from the record, there would be enough evidence to support a [verdict].\\\" It is not this court's function to consider \\\"how the error would have affected us if we had tried the case, but how it may have affected a jury of reasonable laymen,\\\" Love, supra, at 630. See also Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). This standard does not require proof of harm beyond a reasonable doubt. Rather, \\\"the members of this court must necessarily put themselves, as nearly as possible in the position of the jury in order to determine whether, as reasonable men, the error committed probably affected their verdict.\\\" Love, supra, 457 P.2d at 631 n. 15 [citations omitted].\\nWe have carefully reviewed the record and transcripts and familiarized ourselves with the testimony and evidence of both sides. We are impressed by the complexity of the facts which gave rise to this litigation. We also are confident that any jury would appreciate the grave impact which a verdict for either party would have upon the nonprevailing side. Additionally, we have considered that the challenged testimony consumed a very small amount of time in a lengthy trial. There is no indication that Patricia Poulin's lack of prenatal care was mentioned by the defendant during closing argument. In light of the record as a whole, we believe that a reasonable jury would not have been affected by this testimony and that this particular jury in fact was not affected by this testimony. We conclude that this was harmless error.\\nPoulin claims that the trial court erred in failing to give plaintiff's supplemental instruction 4-A. That instruction stated:\\n\\\"The fact that Patricia Poulin did not seek prenatal care prior to the day on which Courtney Poulin was born is irrelevant on the question of defendant's negligence or whether or not defendant breached his duty of disclosure.\\\"\\nIt was clearly designed to correct any error in the admission of testimony regarding lack of prenatal care. Since we have found that the admission of that testimony was harmless error, the propriety of the court's failure to give supplemental instruction 4-A is moot.\\nAppellant next claims that the court erred in admitting testimony concerning Mr. Poulin's military and occupational background.\\nMr. Poulin testified on direct examination concerning what Dr. Zartman had told him about Courtney's condition. The testimony went to the issue of informed consent. On cross-examination Mr. Poulin was asked, among other things, about the reasons for his military discharge (mental unsuitability) and the number of jobs that he had held during the nine-month period that he lived in Alaska (five). Defense counsel elicited these facts over continuing objections from plaintiff's attorney. This finally resulted in an extended in-chambers colloquy with the trial judge. On recalling the jury, defense counsel commenced questioning Mr. Poulin about his philosophy of natural childbirth. This is discussed above and need not be repeated here.\\nDefense counsel then and now justifies this line of questioning on the grounds that it is background testimony designed to \\\"flesh-out\\\" a witness, and impeachment of credibility since Dr. Zartman contested Poulin's statements concerning the content of their conversation. But both at trial and on appeal defense counsel seems uncertain about the precise basis for this questioning. Appellee begins by talking about \\\"background\\\" and \\\"demeanor\\\" going to credibility. The argument then converts into urging that these questions had some bearing on damages. The thrust of this argument seems to be that somehow Courtney's parents' social class has some bearing on her actuarial lifetime earnings. However, this was not the basis for computing earnings-loss damages at trial, for there a pure statistical median was used.\\nPoulin urges that at best the prejudicial value of this testimony outweighed its probative value and at worst flatly violated the proscription against using particular wrongful acts to impeach credibility. That proscription is contained in Civil Rule 43(g) (11). Since Civil Rule 43(g) (11)[b] clearly refutes any claim that the questions are valid as to credibility, and since the issue of damages was beyond the scope of direct examination, the only conceivable justification for this line of questioning rests in providing sufficient background to enable the jury to judge a witness' demeanor.\\nIt has been recognized that background information, such as a person's occupation, place of residence, etc., is useful in placing a witness in his \\\"proper setting\\\" so that a jury may better judge his credibility. Alford v. United States, 282 U.S. 687, 693, 51 S.Ct. 218, 75 L.Ed. 624 (1931). RLR v. State, 487 P.2d 27, 44 (Alaska 1971). But, while such preliminary questioning is generally permitted, \\\"[t]here is a duty to protect [a witness] from questions which go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate.\\\" Alford, supra, 282 U.S. at 694, 51 S.Ct. at 220.\\nBecause we favor the reception of evidence in the absence of strong countervailing considerations, we have on occa sion sustained rulings admitting evidence of an arguably prejudicial nature. However, we also have affirmed the curtailment of wide-ranging cross-examination, and have reversed a trial court which permitted a cross-examiner to paint with an unreasonably broad stroke.\\nBackground or preliminary questions which are designed to discredit the witness as a person, and not as a witness, are improper cross-examination. In the present case Wilfred Poulin testified on behalf of his daughter. Defendant introduced evidence of Poulin's military discharge, which did not result from lying or lack of veracity, but from \\\"mental unsuitability.\\\" Defendant also elicited the fact that plaintiff had held five jobs during a nine month period of time, over jive years ago. These facts would hardly indicate that the witness was therefore likely to commit perjury. Such questioning should not have been allowed.\\nAlthough we have concluded that this evidence was improperly admitted, we do not believe that it warrants a reversal of the judgment. Our reasoning here is similar to that which we have applied regarding the admission of evidence on Patricia Poulin's lack of prenatal care. Specifically, we note that this line of questioning consumed a very small amount of time in a lengthy trial. Nor was it emphasized or even reiterated during closing argument. Under these circumstances, we hold that allowing this line of questioning was harmless error.\\nAppellant next urges that the trial court erred in refusing to give plaintiff's supplemental instruction No. 4 which, paraphrased, stressed that the infant was the real party in interest, and that she, and not her parents, would receive the sole and exclusive benefit of any award. The rejected instruction stated:\\n\\\"You are instructed that the plaintiff in this case is Wilfred Poulin as father and natural guardian of the child Courtney Poulin. In law Wilfred Poulin brings this action solely and exclusively on behalf of Courtney Poulin in a representative capacity. This is done because the law prohibits a minor child from bringing the action in her own name. Neither Wilfred Poulin nor Patricia Poulin are plaintiffs in their own capacity in this action and any damages awarded by you under these instructions will go to the sole and exclusive benefit of Courtney Poulin.\\\"\\nPoulin offers three cumulative points to support his claim of error. He urges that this is an accurate statement of the law; that this court has approved of a \\\"distinguishing\\\" instruction when the probability of confusing parties is high; that it is critical where the probability of prejudice is as high as it is here. We find none of these points persuasive.\\nPoulin asserts that the instruction is an accurate statement of the law, citing Special Order No. 72 of the Superior Court, State of Alaska, Third Judicial District, October 31, 1972. Special Order No. 72 is addressed solely to settlement agreements involving minors. Furthermore, even under this order damages do not go to the \\\"sole and exclusive benefit\\\" of the child but may be reached to pay attorney's fees. However, the order does suggest that the funds are not for the benefit of the parents.\\nAppellant next claims that Aydlett v. Haines, 511 P.2d 1311, 1315 n. 8 (Alaska 1973), recognizes situations where confusion amongst family members requires that the real party in interest be made clear to the jury. The Aydlett case concerned in-tra-family litigation. The portion of the opinion and the facts thereof are so inap-posite to the present case that citation of this case is unpersuasive. Furthermore, numerous instructions to the jury suggest, albeit indirectly, that Courtney, not her parents, is to receive the benefit of the award.\\nPoulin concludes by urging that the prejudice in this case makes the rejection of the instruction reversible error. Since we have held that the contested admissions were harmless error, we do not agree.\\nIn support of his motions for a judgment notwithstanding the verdict and a new trial Poulin submitted affidavits from six jurors. Appellee moved, with supporting authority, that these affidavits be stricken. Apparently this was done. Poulin now contends that it was reversible error for the judge to have refused to consider the affidavits.\\nAt the outset it should be noted that neither side cites any part of the record indicating that the judge \\\"refused to consider\\\" the affidavits. Since Alaska, like virtually all states, recognizes that there may be juror misconduct of sufficient magnitude to warrant reversal, it would be improper for a judge to refuse to read the affidavits. However, appellant appears to have equated the word \\\"consider\\\" with the phrase \\\"rule in plaintiff's favor.\\\" That verbal equation is incorrect. It is our conclusion, based on the language in the order denying the judgment notwithstanding the verdict and new trial, that the trial judge did \\\"consider\\\" the affidavits, but found them lacking in content sufficient to affect the verdict. We now turn to the merits of that conclusion.\\nBoth sides recognize the established and general rule which holds that jurors normally cannot impeach their own verdict. But appellant argues that these affidavits fit within an exception to the general rule, which holds that juror affidavits may be used to impeach a verdict where the affidavits show a bias or prejudice which was falsely denied during voir dire. Appellant further contends that these affidavits reflect the type of jury misconduct which many courts have been willing to censure by requiring a new trial. Neither proposition is supportable on the facts of this case.\\nNone of the six affidavits in the present case suggest any juror bias, for or against either side, at the time of voir dire. The fact that a juror may develop a like or dislike for one side during trial and that this in turn may affect the way that juror votes in the jury room, is a fact which \\\"in heres in the verdict.\\\" The United States Supreme Court has long recognized the folly and chaos which would result from reversing verdicts for that reason.\\nAppellant cites a number of cases from sister states which, he claims, support his arguments. We have reviewed these cases and are unpersuaded. Overt juror misconduct or concealment of bias during voir dire, existed in several cases which appellant relies on. No such impropriety exists here. The case which is most supportive of appellant's claim, Stepp v. Texas & P. Ry. Co., 20 S.W.2d 324 (Tex.Civ.App.1929), has never been cited for the proposition here in issue, and appears to contravene other established case law in Texas.\\nAlaska case law suggests that only serious juror misconduct should be grounds for upsetting a jury verdict. Prior to statehood the Ninth Circuit ruled that juror statements concerning \\\"expressions, arguments, motives and beliefs\\\" should be rejected in the absence of special statutes. Northern Pacific Ry. Co. v. Mely, 219 F.2d 199, 201 n. 3 (9th Cir.1954). The touchstone case in which this court has addressed the issue is West v. State, 409 P.2d 847, 852 (Alaska 1966), where we held that only evidence which \\\"clearly establishes a serious violation of the juror's duty\\\" should be sufficient to impeach a verdict. The evidence in this case does not reveal the type of juror behavior which would warrant a new trial.\\nPoulin argues that the trial court erred in rejecting all evidence relating to insurance.\\nAt a hearing concerning certain pre-trial motions, the court ruled favorably on a defense motion to preclude plaintiff from referring to insurance without first obtaining the court's approval. Appellant in effect contends that this ruling prejudiced him by requiring the jury to speculate on Dr. Zartman's ability to pay. He bolsters this assertion with juror affidavits, previously discussed, and a note which the jurors sent to the judge asking if they could find liability without awarding damages.\\nSummarily, appellant seems to argue that the absence of proof of insurance left the jurors free to reason that 'Dr. Zartman lacked insurance. This, in turn, allegedly created a bias in favor of the defendant, particularly since the requested verdict was large and state aid for the plaintiff was a possibility. Under facts such as these, appellant argues, a blanket ruling precluding any reference to insurance, even on voir dire, offers a larger prejudicial stumbling block to plaintiff than admission, with a warning instruction, would present to defendant.\\nHowever, the court's order does not appear to have precluded reference to insurance absolutely, but rather required appellant to approach the court for approval before embarking on any particular line of questioning concerning insurance. Appellant has referred to no part of the tran script suggesting that he even attempted to raise the issue at trial.\\nDespite this unfavorable fact setting, appellant urges us to modify a rule that has been endorsed by virtually every authority, which has considered the issue. Stated simply, the general rule is that evidence of insurance is precluded in negligence cases. The reason for the rule is either irrelevance or undue prejudice. There are certain recognized exceptions to the rule, but none seem to apply here.\\nAppellant, relying heavily on Professor McCormick's treatise, argues for a more \\\"flexible\\\" rule in which speculation would be dampened by allowing proof of insurance, followed by a cautionary instruction requiring the jury to disregard it. While many have recoiled from this position, the proposal's most appealing quality is its potential for permanently removing the insurance issue from the jury's mind. Unfortunately, authority for appellant's view seems to be limited to McCormick.\\nIn Alaska the issue is one of first impression. Case law in this area certainly leaves a trial court free to adopt McCormick's view should it choose to do so. But the novelty of appellant's position, in light of the complexity of this case and appellant's failure to actively pursue the issue at trial, causes us to conclude that the trial court's order did not constitute reversible error.\\nIV. STANDARD OF CARE\\nThe appellate points, relating to the appropriate medical standard of care with which Dr. Zartman was expected to comply, can be subdivided into three catego-ies: the role of medical textbooks in establishing the proper standard of care; specific instructions concerning the standard of care; sufficiency of the evidence in view of the standard of care.\\n(a) Textbooks\\nAppellant argues that the trial court erred in refusing to admit certain medical treatises to prove substantive propositions, and that the court further erred in instructing the jury to use the medical textbooks for impeachment and not as substantive evidence.\\nAt trial appellant offered a number of medical treatises for the substantive content they contained. The trial judge considered briefs and oral argument on the issue and concluded that these works should not be allowed as direct evidence of the statements contained therein. Although neither side has cited to the transcript, apparently many, if not all, of these medical texts were used during cross-examination by plaintiff. This is asserted in appellee's brief and can be inferred from the trial court's limiting instruction # 9A, which warned the jury not to consider the medical texts used on cross-examination as evidence of the truth of the assertions they contained.\\nAppellant claims that the ruling and the limiting instruction constitutes reversible error. He argues that the treatises were relevant on both the issue of proper oxygen treatment for premature babies and the issue of informed consent. The relevance of the materials was not contested by appellee either at trial or in his brief. Instead, appellee claims that the treatises constitute hearsay which fits within no generally recognized exception to the rule. Appellant urges us to recognize an exception which many legal scholars endorse and which a few states have adopted.\\nHearsay traditionally has been rejected for the primary reasons that it is thought to be both untrustworthy and unnecessary. Usually, if a particular type of hearsay is determined to be highly trustworthy, e. g., a declaration against pecuniary interest, or highly necessary, e. g., a dying declaration, an exception to the hearsay rule allows the evidence to be admitted.\\nHistorically, medical treaties were thought to be either untrustworthy or insufficiently necessary to warrant their admission as direct evidence. Those claiming that such treatises are untrustworthy bolster their contention with the following classic arguments:\\n(1) The author is not under oath, nor is he present for the jury to observe his demeanor.\\n(2) The crucial adversarial tactic of cross-examination, with its virtues for uncovering the truth, is impossible.\\n(3) Medical science is of such a rapidly changing nature that the printed work may be obsolescent.\\nThe opponents of medical treatises go on to urge that the treatises are not necessary, at least when experts can be obtained by the proponents of the textbooks. In some states the doctrine of res ipsa loquitur is claimed to obviate the need for medical treatises to prove breach of the standard of due care.\\nThose who favor the admission of medical treatises counter most of these arguments and in doing so justify medical treatises as both trustworthy and necessary. They first contend that textbooks are trustworthy because:\\n(1) An oath is no guarantee of veracity (nor is demeanor). Furthermore, logic would suggest that one is less motivated to distort the truth in the uncontentious context of scholarly research than in the partisan heat of a courtroom trial.\\n(2) The prime virtue of cross-examination rests in its capacity for \\\"filling out\\\" testimony. This will not be lost since other treatises and experts can be used to complete the picture. In any event, cross-examination is frequently sacrificed in the face of sufficient need, e. g., dying declarations.\\n(3) The assertion that the rapidly changing nature of medicine makes it an improper subject for printed testimony is rejected as contrary to fact.\\nThe proponents then claim a pressing need for this type of evidence. Two reasons usually are given:\\n(1) The costs of expert legal advice would be greatly reduced;\\n(2) The possibility of a \\\"conspiracy of silence\\\" by doctors protecting their own kind would be lessened.\\nWhile the arguments supporting both positions are intriguing, we find it unnecessary to resolve the issue at this time. In the case at bar appellant was able to obtain outstanding experts to testify on his behalf. Furthermore, he did make use of the treatises on cross-examination. Thus it is hard to see how appellant was harmed by the ruling and instruction. We therefore concluded that any claimed error which the trial court may have committed was harmless.\\nAppellant also argues that the treatises were not offered for the truth asserted therein, but to show what Dr. Zart-man knew or should have known about oxygen therapy. This point was also made at trial. In the case of multiple-use testimony, admission always rests in the sound discretion of the trial judge. We do not understand what relevance Dr. Zartman's knowledge of existing medical techniques has to the issue of negligence or informed consent. Appellant cited no malpractice cases suggesting that knowledge is an operative element in this type of suit. Appellee cites Naccarato v. Grob, 12 Mich.App. 130, 162 N.W.2d 305 (1968), which expressly holds that such information is not relevant. In any event, Dr. Zartman's trial position expressly rejected \\\"titration\\\" as being a \\\"dangerous\\\" technique. This hardly suggests lack of awareness of the method on his part. Therefore, any error in this regard was harmless.\\n(b) Instructions Concerning Standard of Care\\nAlaska's normal standard of care for physicians is set forth in AS 09.55.540, which provides as follows:\\n\\\"(a) In a malpractice action based on the negligence of a physician licensed under AS 08.64, or a dentist licensed under AS 08.36, the plaintiff shall have the burden of proving\\n(1) the degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians or dentists practicing the same specialty in similar communities to that in which the defendant practices;\\n(2) that the defendant either lacked this degree of knowledge or skill or failed to exercise this degree of care; and\\n(3) that as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.\\n(b) In malpractice actions there shall be no presumption of negligence on the part of the defendant.\\\" (\\u00a7 1 ch. 49 SLA 1967) (emphasis added)\\nAppellant requested three types of instructions concerning the medical standard of care and each type was rejected. The first type, consisting of two separate instructions, suggested that doctors with \\\"superior knowledge\\\" or certified by a National Board be held to a higher standard than the \\\"similar communities\\\" test set out by statute. The second type,' based on the facts of this case, in essence stated that Dr. Zartman's failure to see that his orders were being properly administered breached the \\\"accepted standards of care.\\\" The third type simply held that any special susceptibilities which Courtney Poulin had did not relieve the doctor of liability for any negligence on his part. As already noted, each instruction was rejected and appellant argues that this constitutes reversible error.\\nDr. Zartman was trained in a large, prestigious medical school in Chicago; he is licensed to practice medicine in five states ; and he has been certified by the American Board of Pediatrics. Appellant argues that doctors with such \\\"superior knowledge\\\" or national board certification should be held to a higher standard than the \\\"similar communities\\\" test of AS 09.-55.540. The trial judge rejected appellant's proposed instruction #15 (on superior knowledge), and supplemental instruction # 7 (on national certification), in favor of an instruction embodying the essential language of the statute. Appellant claims that this constitutes reversible error.\\nWe have reviewed the law on this subject and find that the various states have adopted a myriad of positions, from New Mexico, which applies a strict locality test, to Michigan, which feels that geographic locale is irrelevant in cases involving specialists. The majority of states have adopted a modified locality rule such as the \\\"similar communities\\\" test contained in AS 09.55.540.\\nAppellant contends that AS 09.55.540 sets a \\\"minimum standard\\\" and that those doctors with special skills must be held to account for those special skills. He cites Professor Prosser as supporting that proposition at common law. Prosser does state that \\\"a physician who is possessed of unusual skill or knowledge must use care which is reasonable in the light of his special ability and information\\\" but he adds that \\\"the care required is still only the ordinary care of a reasonable man assuming he has such special knowledge.\\\" The language of AS 09.55.540 takes into account this \\\"objective\\\" higher standard for specialists with the proviso that the standard be based on \\\"physicians practicing the same specialty in similar communities.\\\" (emphasis added)\\nAppellant also argues that nationally certified specialists should be held to a nation al, rather than a geographically localized standard of care. He cites opinions from six states which allegedly support his position. Probably the strongest cases Poulin cites are Carbone v. Warburton, 22 N.J.Super. 5, 94 A.2d 680, 683 (1953); Kronke v. Danielson, 108 Ariz. 400, 499 P.2d 156 (1972); and Pederson v. Dumouchel, 72 Wash.2d 73, 431 P.2d 973 (1967). Those courts clearly endorsed a general standard for specialists. Both Brune v. Belinkoff, 354 Mass. 102, 235 N.E.2d 793 (1968) and McGulpen v. Bessmer, 241 Iowa 1119, 43 N.W.2d 121 (1950), also endorse a general, non-geographical standard, but both courts were impressed by the easy accessibility to major medical centers which the doctors had. Hundley v. Martinez, 151 W.Va. 977, 158 S.E.2d 159 (1967), arguably supports a \\\"similar communities\\\" test since the court merely states that it concurs with the \\\"liberalization\\\" of the locality rule, while it does \\\"not abrogate such rule in all instances,\\\" in qualifying an expert who had never been to the locality in question. 158 S.E.2d at 168.\\nAppellant's argument in this regard is a strong one. But we must reject his claim of error. There are certain initial limits pl\\u00e1ced upon us in the interpretation of statutes. This was dwelt upon in Alaska Mines & Minerals, Inc. v. Alaska Indust. Bd., 354 P.2d 376, 379 (Alaska 1960). There we stated that if a statute is unambiguous and clearly expresses the intent of the legislature, it should not be modified or extended by judicial construction. This was elaborated on in State v. City of Anchorage, 513 P.2d 1104, 1109 (Alaska 1973), where we stated that the legislative \\\"language [must be] so unambiguous as to leave no doubt as to the meaning or scope of the result dictated.\\\" The language of AS 09.55.540 is so clear and unambiguous that we are foreclosed from broadening the standard contained therein through judicial construction.\\nWe now turn to the next claim of error. Appellant submitted two instructions stating in essence that lack of proper supervision could constitute a breach of a doctor's standard of care. The trial judge rejected both instructions and Poulin claims error, relying exclusively on Toth v. Community Hospital, 22 N.Y.2d 255, 292 N.Y.S.2d 440, 239 N.E.2d 368 (1968).\\nAppellant's reliance on the Toth case is very understandable. Not only are the facts of that case quite similar to the facts here, but the instruction there in issue was an obvious pattern for Poulin's supplemental instruction #8. In Toth the doctor had ordered six liters of oxygen for twelve hours, then a reduction to four liters. In fact, the oxygen was not reduced for nearly 30 days. The baby developed RLF, and the parents sued the doctor. The trial judge refused plaintiff's instruction on his duty of supervision, and the jury found in favor of defendant. On appeal New York's highest court reversed because of the trial court's refusal to give the instruction.\\nIn the present case it appears to be undisputed that oxygen should be administered at the lowest possible level that will relieve the symptoms for which it is given. Dr. Zartman ordered oxygen to be administered to Courtney Poulin in an amount \\\"necessary to keep pink.\\\" A number of defense witnesses, including Dr. Zartman himself, acknowledged that some form of periodic down-testing of oxygen was required, although none was expressly ordered. The nurses' records reflect that a liter flow of 4 was reached at 6:30 p. m. on February 13, 1968, and it remained at that flow level until 1:15 p. m. on February 15, 1968. During this 43\\u00be hour period, Dr. Zartman did not attend the baby at all. Doctors Peterson and Tower did visit the child at 2:00-3:00 p. m. on February 14, 1968, but no reduction of liter flow was ordered, despite an apparent absence of cy-anosis. When Dr. Zartman again reexamined the child on February 15, 1968, he ordered her to be weaned from all oxygen.\\nPoulin submitted two instructions concerning Zartman's duty of supervision and both were rejected. Proposed instruction no. 18 stated:\\n\\\"If a physician is aware of a risk in the therapy which he orders and relies upon the nursing staff to follow a procedure to minimize that risk, he will be liable for injury resulting to the patient for the nurses failure to do so, if the nurses do not follow the procedure anticipated and he has an opportunity to discover the deviation from the procedure and he fails to do so.\\\"\\nIn our opinion, the trial court's refusal to give proposed instruction no. 18 was not error, since we find that the instruction is incomplete, if not wholly lacking, as to the crucial element of proximate cause, which is essential to any liability predicated on negligence.\\nHowever, Poulin also submitted proposed instruction no. 8, which provided:\\n\\\"If you find that Dr. Zartman believed that continuous administration of oxygen to Courtney Poulin in an amount greater than that necessary to maintain her pink color would be harmful to her and that the dosage was continued in amounts higher than that necessary to maintain her pink color and you further find that the doctor failed to ascertain that the nurses were not periodically testing the oxygen level, as he anticipated, to determine the minimum level of oxygen then you should find such failure by him not to be in accord with the accepted standards of care and diligence required of physicians and if such failure on his part contributed to cause or to aggravate the injury to Courtney Poulin, you should return a verdict against the doctor.\\\"\\nThis instruction also was rejected, and no instruction by the trial court expressly and specifically called the jury's attention to Poulin's contention that Zartman's lack of supervision may have proximately caused Courtney's blindness, and therefore constituted medical malpractice.\\nWe are gravely concerned that no instruction regarding supervision was given. Dr. Zartman realized that excessive oxygen was dangerous, but he relied on the nursing staff, without the benefit of an explicit order, to periodically reduce the oxygen if the baby remained pink. He had the opportunity during a 43\\u00be hour period to ascertain whether this safety procedure was in fact being carried out, but he did not visit the baby during that time. Dr. Zartman had no personal knowledge of the training and background of the nurses on duty during this critical period, and there is also no indication that he asked the doctors who \\\"filled-in\\\" for him to determine whether the nurses were reducing the oxygen flow, as may have been appropriate.\\nWe are not stating or implying that the omissions enumerated in the preceding paragraph constitute medical negligence. Such a conclusion is within the purview of a jury to determine. However, we believe that in a lengthy and complex case involving two theories of liability which are closely intertwined, yet wholly separate and distinct, it is incumbent upon the trial judge to make clear to the jury, in some manner, that the law recognizes and acknowledges the distinctions in the theories and that the jury must do likewise in rerdering its verdict.\\nIn this case the questions about proper therapeutic procedure, and the proper execution of a particular therapeutic procedure, are closely related. Poulin made two separate requests for instructions which would have highlighted the distinction. While the trial court was not re quired to give either instruction verbatim, we hold that the failure to give any instruction on the issue of medical supervision constitutes error.\\nAppellee argues that the trial court instructed the jury generally on negligence. So did the trial court in Toth v. Community Hospital, supra. But appellee distinguishes the two cases by claiming that in Toth the issue was withheld from the jury, whereas here Poulin argued it to the jury. This argument certainly would not have persuaded the Toth court. There, although plaintiff had not pleaded or argued the \\\"supervision\\\" theory, the court, with one member dissenting, found error. The dissenting judge refused to join the majority because supervision had not been a theory of the case. Here lack of supervision was an obvious theory and the Toth court surely would have found this to be error.\\nAppellee also argues that this was a \\\"specific\\\" instruction of the nature proscribed by this court in Clary v. Fifth Ave. Chrysler Center, Inc., 454 P.2d 244 (Alaska 1969). It is true that we favor general instructions over argumentative, pro and con instructions. Nothing in our present holding contradicts that maxim. However, the ruling in Clary resulted from an instruction requesting the recitation of sixteen separate duties. The case at bar is much less extreme. In addition, the facts in this case gave rise to two distinct theories which a jury might tend to combine in rendering their verdict. Under the circumstances we hold that the failure to give any instruction highlighting the duty of supervision was reversible error.\\nAppellant requested supplemental instruction # 3, which reads as follows:\\n\\\"You are instructed that the fact that the plaintiff was unusually susceptible to injury because of her prematurity does not relieve the defendant from liability for any injuries, disabilities, or damages resulting to the plaintiff proximately caused or contributed to by the defendant's negligence or breach of his duty of disclosure.\\\"\\nThe instruction was rejected and appellant claims this rejection as prejudicial error.\\nPoulin relies on pattern jury instructions in California Jury Instructions \\u2014 Civil (Cal Jic 1959) and Alexander's Jury Instructions in Medical Issues (1966). He also cites three out-of-state cases which allegedly support his position. None of these authorities is persuasive.\\nThe Cal Jic instruction # 14.65 (5th ed. 1969) is under the broad label of \\\"Damages \\u2014 Aggravation of Preexisting condition.\\\" Basically, it is designed to ensure that the unusually susceptible person, sometimes called the \\\"egg-shelled\\\" plaintiff, will receive full recovery for his injuries. Thus it goes to the question of damages once liability is established, not to the scope of duty in establishing liability in the first place. Rubano v. Koenen, 152 Conn. 134, 204 A.2d 407 (1964), Sears Roebuck & Co. v. Daniels, 299 F.2d 154 (8th Cir. 1962) and Meeks v. Yancey, 43 Tenn.App. 667, 311 S.W.2d 329 (1957), are also cited by appellant. They too are concerned with the so-called \\\"egg-shelled\\\" plaintiff. Only jury instruction # 4-23 offered by Alexander in his book entitled Jury Instructions on Medical Issues appears to be on point. However, the Alexander instruction, which is similar to appellant's instruction, was culled from Lemere v. Safeway, 102 Cal.App.2d 712, 228 P.2d 296, 303 (1951). That case also involved an \\\"egg-shelled\\\" plaintiff, and the appeal was based on a claim of insufficient damages at trial. The language which Alexander extracts was at the very end of a lengthy jury instruction which the appellate court approved of in affirming the verdict. Hence, none of Poulin's authority is on point in this case.\\nAppellee argues that evidence on Courtney's prematurity established not merely a susceptibility, but indeed a proximate cause for Courtney's injuries. This was a central theme in Zartman's defense and certainly would appear to be a legitimate jury question.\\nFinally, a careful reading of the instruction reveals that it states in essence that Courtney's susceptibility does not excuse Zartman's negligence. Since Zart-man's negligence is the very thing in issue, the instruction is argumentative and hence improper. Clary v. Fifth Avenue Chrysler Center, Inc., supra. Even the Alexander instruction, which so closely parallels appellant's requested instruction, states that susceptibility does not excuse negligence \\\"if any there was.\\\"\\n(c) Sufficiency of the Evidence\\nAppellant urges that under any standard of care the evidence was such that the jury's verdict was wrong and Judge Buck-alew's denial of a judgment notwithstanding the verdict or, at least, a new trial was reversible error. The record does not support this contention.\\nAppellant correctly cites the test for reviewing a denial of a judgment notwithstanding the verdict. In essence, we must review the record in a light most favorable to appellee, and reverse only if reasonable and fair-minded persons would invariably have found for appellant. City of Fairbanks v. Nesbett, 432 P.2d 607, 609-610 (Alaska 1967).\\nAppellee offers the proper test for the review of a denial of a new trial for alleged insufficiency of evidence. That standard allows reversal only if we determine that the trial judge abused his sound discretion. In this context, such abuse will be found only if evidence supporting the verdict was completely lacking or so slight and unconvincing as to be plainly unreasonable and unjust. Ahlstrom v. Cummings, 388 P.2d 261, 262 (Alaska 1964). Thus only in the absence of an evi-dentiary basis or a miscarriage of justice will we grant a new trial on the grounds of jury error. Mertz v. J. M. Covington Corp., 470 P.2d 532, 536 (Alaska 1970).\\nOur review of the record convinces us that no error was committed in the trial court's denial of a judgment notwithstanding the verdict or new trial. The evidence regarding the proper method of administering oxygen and the need for administering a bilirubin test was in conflict with substantial testimony supporting the approach which Dr. Zartman took. With regard to adequate supervision, we are disinclined to rule on this issue as a matter of law, since we believe that the facts established on this record would support a jury verdict for either side. On the issue of informed consent, which the next section of this opinion addresses in detail, we hold that Poulin's failure to present adequate evidence to prove proximate cause renders unassailable the jury's verdict on this issue.\\nV. INFORMED CONSENT\\nAppellant raises issues concerning informed consent under two separate rubrics. First, he contends that the instructions concerning the basis for liability precluded the jury from ever reaching the issue of informed consent. Second, he contends that the weight of the evidence presented on informed consent, when coupled with the modern version of that doctrine, made a judgment notwithstanding the verdict or new trial imperative. Therefore, it is urged that the denial of the motion for a judgment notwithstanding the verdict or new trial is reversible error.\\nAppellant in essence claims that the \\\"informed consent\\\" doctrine is not a subset of the generic concept of \\\"medical malpractice.\\\" Judge Buckalew's jury instruction # 12 mandated, inter alia, a defense verdict if the jury found no medical malpractice. Appellant claims that this prevented the jury from ever reaching the issue of informed consent and thus constituted reversible error.\\nAppellant's argument on this point is not persuasive. None of the authority which he cites holds that \\\"informed consent\\\" is not an issue in medical malpractice. And, as one court has noted:\\n\\\"The . . . issue for the jury to determine should be whether treatment was given with the informed consent of the patient, and if it was not, the physician . is gtdlty of malpractice no matter how skillfully the treatment may have been administered . .\\\" Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093, 1107 (1960) (emphasis added).\\nEven if the semantic distinction between informed consent and malpractice were not as infirm as it appears to be, appellant's position would still be untenable. He cites several cases holding that faulty formulary instructions cannot be corrected by other instructions. But he fails to cite the numerous Alaska cases which hold jury instructions, when read in their entirety, to be non-reversible. See ERA Helicopters, Inc. v. Digicon Alaska, Inc., 518 P.2d 1057, 1059 (Alaska 1974); Breitkreutz v. Baker, 514 P.2d 17, 27 (Alaska 1973); National Bank of Alaska v. McHugh, 416 P.2d 239 (Alaska 1966); Mitchell v. Knight, 394 P.2d 892 (Alaska 1964). In the case at bar the superior court specifically gave two separate instructions on informed consent. Even more significant is the particular language in the very instruction about which appellant complains. In the first part of the instruction the judge summarized the issues in this case. He stated that plaintiff had alleged negligent medical practice in several respects including the failure to obtain informed consent. Thus, even if informed consent gives rise to a different type of liability than malpractice, the in-stuction rendered that difference immaterial. No harm was done to appellant, and his claim of error on this point must'be rejected.\\nThe next question raised by appellant concerns the proper standards and elements of \\\"informed consent.\\\" It is noteworthy that appellant does not claim any error in instructions on this point.\\nAppellant correctly states that the issue of \\\"informed consent\\\" is one of first impression in Alaska. The only law expounded in Patrick v. Sedwick, 391 P.2d 453 (Alaska 1964), is the seemingly undisputed principle that proximate cause must be shown in order to recover for lack of informed consent. This requires evidence that \\\"plaintiff would have declined the [procedure] \\\" if adequately informed. Patrick v. Sedwick, supra, at 458.\\nAppellant sets forth Dr. Zartman's testimony at his deposition. In that deposition, Zartman stated, inter alia,\\n\\\" . . . I told [the father] that in order to save the baby's life we would have to use oxygen, and I said it was actually a risk, that the baby might be blind, but . it was . academic . . . as to whether one had a live, blind baby or a baby who was dead, and the father agreed completely with my decision\\nAt trial, Poulin denied that' Zart-man had informed him of the risk of blindness. This conflicting testimony presented a valid jury question which cannot be overturned on appeal. But appellant urges that even if Zartman did advise the father of the risk of blindness, the failure to discuss the availability of an \\\"alternative therapy\\\", i.e., titration, was a prima facie material omission justifying a judgment notwithstanding the verdict or new trial.\\nWe need not reach the difficult and complex questions which the briefs raise regarding the duty and scope of disclosure required by the informed consent doctrine. This is because the evidence at trial failed to establish the proximate cause element which is required in any claim based upon lack of informed consent. Specifically, Poulin was asked whether he would have consented to the procedure of titration had he known about it. Although Poulin indicated that he would have consented to the administration of the alternative procedure, he conceivably could have consented to both procedures, leaving the final choice to the doctor. The record fails to establish that, had he known of the alternative, he would have declined the procedure which was employed. Patrick v. Sedwick, supra, 391 P.2d at 458. Therefore, appellant's claim of error is overruled, as proximate causation was not proven at trial.\\nVI. CONCLUSION\\nIn summary we conclude that, with one exception, the trial court's rulings were either not erroneous or were harmless error. However, the failure to give any instruction to clarify and distinguish the duty of supervision from the duties regarding proper methodology and informed consent was reversible error.\\nIt is the recognized rule that when an issue requiring reversal is fairly separable from the other issues involved in the case, we may grant a partial new trial, setting aside only so much of the judgment as is affected by error. The balance of the judgment may remain intact. Corridon v. City of Bayonne, 129 N.J.Super. 393, 324 A.2d 42, 45 (1974); Terminal Const. Corp. v. Bergen County Hackensack River Sanitary Sewer Dist. Authority, 18 N.J. 294, 113 A.2d 787, 812 (1955). Whether the issue requiring reversal is fairly separable from the other issues adjudicated in the trial court depends upon our view of the facts and circumstances of each case. Gyerman v. United States Lines Co., 7 Cal.3d 488, 498 P.2d 1043, 1054, 102 Cal.Rptr. 795 (1972). We have applied these principles in other cases on appeal. City of Fairbanks v. Nesbett, 432 P.2d 607, 613 (Alaska 1967); State v. Stanley, 509 P.2d 279 (Alaska 1973).\\nIt is noteworthy that the court in Toth v. Community Hospital, supra, considered the duty of supervision to be sufficiently distinct from the other malpractice questions presented there that new trial was ordered only as to the duty of supervision issue, the balance of the judgment in favor of the physician remaining intact.\\nWe are of the same view in the case at bar. Consequently, we hold that the issues of methodology and informed consent may not be retried, but a new trial regarding the issue of proper supervision is required. Because of our disposition of the case, we need not reach the question of costs and attorneys' fees which Dr. Zart-man raises in his cross-appeal.\\nAffirmed in part, reversed, in part, and remanded for proceedings consistent with this opinion.\\nERWIN, BOOCHEVER and BURKE, JJ., not participating.\\n. E. g., Dr. David Abramson, Chief of the Division of Newborn Medicine Neonatology, Georgetown University Hospital; Dr. Leonard Krassner, a practitioner and teacher of pediatrics at Yale University School of Medicine; Nurse Jeryl Gagliardi, a clinical specialist in the newborn special case unit at Yale New Haven Medical Center.\\n. E. g., Dr. Charles Barlow, professor of neurology at the Children's Hospital Medical Center of Harvard Medical School; Dr. Thomas Oliver, Chairman of the Department of Pediatrics at the University of Pittsburg and medical director of Children's Hospital in Pittsburg; Dr. Robert Polley, a pediatrician and faculty member at the University of Washington Medical School.\\n. Some of defendant's witnesses actually regarded \\\"titration\\\" as dangerous under the circumstances.\\n. Atmospheric oxygen concentration is the percentage of oxygen in the air. It is not strictly correlated to oxygen liter flow, through there is apparently some rough correlation. In turn, concentration does not necessarily reflect the amount of oxygen actually in the blood stream. A baby experiencing severe respiratory problems might not be able to absorb the oxygen at all. Today the amount of oxygen in the blood stream can be measured. However, in 1968, this sophisticated monitoring was not possible.\\n. During this period Dr. Zartman did not attend the baby at all. Approximately 21 hours after the flow was reduced to 4, Drs. Peterson and Tower did visit the child. No reduction of flow was ordered despite an apparent absence of cyanosis. About 22 hours after their visit (at 1:15 p. m. on February 16, 1968), Dr. Zartman re-examined the child and ordered a weaning from all oxygen.\\n. Dr. Zartman does not directly dispute the contention that 40 percent concentration should be exceeded only when symptoms call for it. Instead, he stresses that the 40 percent figure is a rough rule of thumb and fails to take into account the assimilative capacity of the patient. Thus, he concludes, \\\"many babies require much higher environmental concentrations than 40 percent.\\\"\\n. \\\"The fact that Patricia Poulin did not seek prenatal care j)rior to the day on which Courtney Poulin was born is irrelevant on the question of defendant's negligence or whether or not defendant breached his duty of disclosure.\\\"\\n. This comports with Civil Rule 43(b), which favors the admissibility of evidence in the absence of a clear rule to the contrary.\\n. See, e. g., Kartsfield v. Carolina Casualty Insurance Co., 451 P.2d 576, 578 (Alaska 1969) ; Mitchell v. Knight, 394 P.2d 892, 896 (Alaska 1964). See generally, C. McCormick, Evidence \\u00a7 185, at 434 (2d ed. 1972).\\n. Appellee argues that testimony by one of plaintiff's own experts did establish such a link. However, our review of the cited trans-script shows no correlation to blindness or brain disease and the witness (Nurse Jeryl Gagliardi) concludes that \\\"lack of prenatal care, per se, probably doesn't have as much to do with it.\\\"\\n. Compare Civil Rule 61:\\n\\\"No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.\\\" (emphasis added)\\nwith Criminal Rule 47 (a) :\\n\\\"(a) Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.\\\" (emphasis added)\\n. Cf. In re Cornelius, 620 P.2d 76, 84 (Alaska 1974), applying the criminal \\\"harmless error\\\" test to a review of a disbarment proceeding.\\n.Civil Rule 43(g) (11) provides:\\n\\\"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.\\\" (emphasis added)\\n. Accord, People v. Lane, 21 Mich.App. 185, 175 N.W.2d 313, 314 (1970).\\n. Civil Rule 43(b) provides :\\n\\\"(b) Form and Admissibility. In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules. The admissibility of evidence shall be governed by these rules, or in the absence of rule, by the principles of common law as they may be interpreted by the courts of the state in the light of reason and experience. In the absence of rule, the evidence shall be presented according to the most convenient method prescribed by common law principles, and the principle which favors the reception of the evidence shall govern. The competency and privileges of witnesses shall be governed by these rules, or in the absence of rule, by common law principles.'' (emphasis added)\\n. See e. g., Jakoski v. Holland, 520 P.2d 569, 573-75 (Alaska 1974); Howard v. State, 491 P.2d 154 (Alaska 1971); Veal v. Newlin, Inc., 367 P.2d 155 (Alaska 1961).\\n. See e. g., Davis v. Chism, 513 P.2d 475 (Alaska 1973); Bakken v. State, 489 P.2d 120 (Alaska 1971).\\n. Eubanks v. State, 516 P.2d 726 (Alaska 1973).\\n. See, e. g., Stickel v. San Diego Electric Ry. Co., 32 Cal.2d 157, 195 P.2d 416 (1948); Fugate v. Sears, Roebuck & Co., 12 Ill.App.3d 656, 299 N.E.2d 108 (1973); Warren v. Hynes, 4 Wash.2d 128, 102 P.2d. 691 (1940).\\n. Compare Rose v. B. L. Cartage Company, 110 Ill.App.2d 260, 249 N.E.2d 199 (1969).\\n. See Instructions 10, 21, 25A, 26, 27, 28, 29 and 30.\\n. See West v. State, 409 P.2d 847, 852 (Alaska 1966).\\n. Compare Womble v. J. C. Penney Co., 47 F.R.D. 350 (E.D.Tenn.1969), aff'd 431 F.2d 985 (6th Cir. 1970), which suggests that in that district any affidavit would be improper unless the judge's consent were obtained first.\\n. \\\"Plaintiff's motions for judgment notwithstanding the verdict and for new trial, the grounds asserted therefore, and the memo-randa and affidavits submitted in support and opposition to the motions have been fully examined and considered.\\\"\\n. McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300 (1915); Stein v. New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522 (1953) (dictum).\\n. See Goff v. Kinzle, 148 Mont. 61, 417 P.2d 105 (1966); Hinton v. Gallagher, 190 Va. 421, 57 S.E.2d 131 (1950); Gardner v. Malone, 60 Wash.2d 836, 376 P.2d 651 (1962).\\n. Shipley v. Permanente Hospital, 127 Cal.App.2d 417, 274 P.2d 53 (1954).\\n. Eeduced to their essence, the affidavits in the present case state that the jury would have rendered a verdict for Poulin (at one point the vote was allegedly 11-1 finding Dr. Zartman negligent), but for the fact that the jury was uncertain as to whether they could award less damages than the amount prayed for, disliked the parents, felt that Courtney would be adequately provided for by state aid, and did not want the lawyers and parents to be the primary beneficiaries of the award.\\n. See, e. g., Hogg v. Washington National Insurance Co., 503 S.W.2d 325, 330 (Tex.Civ.App.1973).\\n. See also Kimble v. State, 539 P.2d 73 (Alaska 1975); Martinez v. Bullock, 535 P.2d 1200 (Alaska 1975); Gafford v. State, 440 P.2d 405 (Alaska 1968); West v. State, 409 P.2d 847, 852 (Alaska 1966).\\n. See Annot., 4 A.L.R.2d 761, 767-773 (1949), Later Case Service 489-539 (1971), 31-34 (Supp.1974).\\n. C. McCormick, Evidence \\u00a7 201, at 479-83 (2d ed. 1972).\\n. Id.\\n. The cases which the parties cited are distinguishable as follows: Aydlett v. Haines, 511 P.2d 1311 (Alaska 1973), raised the issue of insurance in dictum and in the context of a discussion on the \\\"collateral source\\\" rule; Ridgeway v. North Star Terminal & Stevedoring Co., 378 P.2d 647 (Alaska 1963), also concerned the \\\"collateral source\\\" rule; Mallonee v. Finch, 413 P.2d 159 (Alaska 1966), upheld the trial court's exclusion of an opponent's admission which was inextricably bound with references to insurance. This court concluded, inter alia, that the exclusion was harmless. In Bertram v. Harris, 423 P.2d 909 (Alaska 1967), where the trial court did what appellant seems to urge, i. e., cautioned the jury to disregard testimony which had been elicited on insurance, this court affirmed.\\n. McCormick himself notes that \\\"the trial judge's discretionary power could still be invoked\\\" if prejudice outweighed the need. McCormick, Evidence \\u00a7 201, at 480 (2d. ed. 1972).\\n. See e. g., C. McCormick, Evidence \\u00a7 296, at 621 (1954); VI J. Wigmore, Evidence \\u00a7 1692 (3rd ed. 1940). See also, Note, Admissibility of Medical Books in Iowa: Expert Witnesses in Hardback Covers, 56 Iowa L. Rev. 1028, 1043 (1971); Note, Medical Treatises as Evidence in Court and in Workmen's Compensation Proceedings, 52 Cornell L.Rev. 316, 322-23 (1967); Comment, Learned Treatises as Direct Evidence: The Alabama Experience, 1967 Duke L.J. 1169 (1967); Recent Developments, 66 Mich.L.Rev. 183, 191-92 (1967).\\n. Alabama allows medical treatises as tlie result of case law. Kansas, Massachusetts and Nevada have allowed this by statute. The Canal Zone and the Virgin Islands also have enacted statutes which adopt a position similar to appellant's. See VI ,1. Wigmore, Evidence \\u00a7 1693 nn. 1 & 2 (3rd ed. 1940 & Supp.).\\n. Alaska has no such doctrine and, in fact, AS 09.55.550 specifically rules out any presumptions of negligence in malpractice cases.\\n. See AS 09.55.540.\\n. These are Massachusetts, New York, Illinois, California and Alaska.\\n. Requested Instruction # 15 provided as follows:\\n\\\"A physician may be possessed with a greater degree of skill, knowledge or intelligence than other physicians practicing in the same specialty in similar communities. In such a case the physician is required to use whatever superior knowledge, skill and intelligence he has and the failure to do so will render him liable for injury to the patient.\\\" (emphasis added)\\n. Requested Instruction # 7 provided as follows :\\n\\\"You are instructed that the degree of knowledge or skill exercised by pediatricians certified as such by the American Academy of Pediatrics is not subject to variation on a geographical basis in this country. Therefore, on the question of the defendant's skill or knowledge, no allowance should be made for the type of community in which he carries on his practice.\\\" (emphasis added)\\n. See generally, Vol. 16 No. 3 Ass'n of Trial Lawyers of America, News Letter 107 (April 1973); D. Louisell & H. Williams, Medical Malpractice \\u00b6 8.06 (1973 & 1973 Supp.); Prosser, Torts \\u00a7 32, 161 (4th ed. 1971); Annot., 21 A.L.R.3d 953 (1968 & 1973 Supp.); Note, An Evaluation of Changes in Medical Standard of Care, 23 Vand.L.Rev. 729 (1970); Waltz, The Rise and Gradual Fall of the Locality Rule in Medical Malpractice Litigation, 18 DePaul L.Rev. 408 (1969); Perdue, The Law of Texas Medical Malpractice: Standard of Care, 11 Houston L.Rev. 22 (1973); Kroll, The Etiology, Pulse and Prognosis of Medical Malpractice, 8 Suffolk L.Rev. 598 (1974); King & Coe, The Wisdom of the Strict Locality Rule, 3 Baltimore L. Rev. 221 (1974).\\n. Gandara v. Wilson, 85 N.M. 161, 509 P.2d 1356 (1973).\\n. Basically the states have taken one of three positions on this issue. The oldest view was the strict locality rule. Under that rule the doctor was held to the standards of the reasonable doctor in that locality only. This view presents many problems, e. g., the town with only one doctor, and the majority of states appear to have adopted the \\\"similar communities\\\" test. An increasing number of states have moved beyond that and have abandoned or reduced the role of geographic locality altogether. Appellant cites several of these cases in his brief.\\n. Naccarato v. Grob, 384 Mich. 248, 180 N.W.2d 788, 791 (1970).\\n. Massachusetts, New Jersey, Iowa, West Virginia, Arizona and Washington. Two states not cited by appellant also appear to endorse his viewpoint. See, e. g., Naccarato v. Grob, 384 Mich. 248, 180 N.W.2d 788, 791 (1970), and Karp v. Cooley, 493 F.2d 408 (5th Cir. 1974).\\nW. Prosser, Torts \\u00a7 32, at 161 (4th ed. 1971).\\n. Id. at n. 30.\\n. The Bru\\u00f1e court points out that New Bed-ford, scene of the alleged malpractice, was a mere 50 miles from Boston. 235 N.E.2d at 798. The McGulpen court noted that Davenport, Iowa, is only 3 to 4 car hours from Chicago. 43 N.W.2d at 127.\\n. Instruction 18 and supplemental instruction 8.\\n. 239 N.E.2d at 375 (Bergan, ,J. Dissenting).\\n. Alexander, Jury Instructions on Medical Issues, 4-23, at 307 (1966).\\n. See also Shetter v. Rochell, 2 Ariz.App. 358, 409 P.2d 74, 83 (1965); Comment, Valid Consent to Medical Treatment: Need the Patient Know?, 4 Duq.L.Rev. 450, 453 (1966).\\n. Instruction No. 12 reads as follows:\\n\\\"The plaintiff claims that defendant Zart-man failed to comply with the proper standard of medical practice and was therefore negligent in one or more of the following respects:\\n1. That as a result of administration of oxygen under the direction and supervision of the defendant the plaintiff developed retrolental fibroplasia causing her to become blind.\\n2. The defendant failed to perform all indicated blood tests which the clinical signs of the plaintiff required and the failure to so act resulted in damage to the plaintiff's central nervous system.\\n3. The administration of oxygen and/or the failure to obtain appropriate blood tests for tlie plaintiff was done without the consent of Wilfred Poulin and/or Patricia Poulin, the parents of the minor plaintiff. Plaintiff also claims that the defendant's conduct was the proximate cause of the injuries to Courtney Poulin.\\nDefendant Zartman denies these claims or allegations.\\nThe foregoing is merely a summary of the claims of the parties, and has been given to you solely to aid you in understanding the issues. It is for you to decide, from all of the evidence in the case, whether any of these claims have been proven.\\nConsequently, the issues to be determined by you in this case are these:\\nFirst: Is the defendant liable for medical malpractice? If your answer to that question is \\\"no\\\", you will return a verdict for the defendant. If your answer is \\\"yes\\\", you will have a second issue to determine, namely : Was such malpractice a proximate cause of any injury to the plaintiff?\\nIf your answer to that question is \\\"no\\\", plaintiff is not entitled to recover, but if your answer to \\\"yes\\\", you will then find what damage plaintiff thus has been caused to suffer, and you will return a verdict in her favor for the amount thereof.\\\"\\nFirst: Is the defendant liable for medical malpractice? If your answer to that question is \\\"no\\\", you will return a verdict for the defendant. If your answer is \\\"yes\\\", you will have a second issue to determine, namely: Was such malpractice a proximate cause of any injury to the plaintiff?\\nIf your answer to that question is \\\"no\\\", plaintiff is not entitled to recover, but if your answer is \\\"yes\\\", you will then find what damage plaintiff thus has been caused to suffer, and you will return a verdict in her favor for the amount thereof.\\\"\\n. The trial court's instruction # 22 stated in essence that there must be a reasonable disclosure of all significant facts necessary for an intelligent and informed consent. Such disclosure should include available choices of treatment and material risks inherent in each choice. Failure to perform this disclosure duty renders the doctor liable for injuries proximately resulting therefrom.\\n. See, e. g., Canterbury v. Spence, 150 U.S.App.D.C. 263, 464 F.2d 772, 790 (1972); Cobb v. Grant, 8 Cal.3d 229, 502 P.2d 1, 11, 104 Cal.Rptr. 505 (1972).\"}"

alaska/10462693.json

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+"{\"id\": \"10462693\", \"name\": \"STATE of Alaska, Appellant, v. Al TRUNNEL, Jr., Appellee\", \"name_abbreviation\": \"State v. Trunnel\", \"decision_date\": \"1976-05-07\", \"docket_number\": \"No. 2637\", \"first_page\": \"550\", \"last_page\": \"553\", \"citations\": \"549 P.2d 550\", \"volume\": \"549\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T18:47:26.628215+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BOOCHEVER, Chief Justice, and RABINOWITZ, CONNOR, ERWIN and BURKE, Justices.\", \"parties\": \"STATE of Alaska, Appellant, v. Al TRUNNEL, Jr., Appellee.\", \"head_matter\": \"STATE of Alaska, Appellant, v. Al TRUNNEL, Jr., Appellee.\\nNo. 2637.\\nSupreme Court of Alaska.\\nMay 7, 1976.\\nStephen G. Dunning, Asst. Dist. Atty., Joseph D. Balfe, Dist. Atty., Anchorage, and Avrum M. Gross, Atty. Gen., Juneau, for appellant.\\nWilliam H. Fuld, Kay, Christie, Fuld & Saville, Anchorage, for appellee.\\nBefore BOOCHEVER, Chief Justice, and RABINOWITZ, CONNOR, ERWIN and BURKE, Justices.\", \"word_count\": \"1873\", \"char_count\": \"11294\", \"text\": \"OPINION\\nBOOCHEVER, Chief Justice.\\nIn this appeal, the State of Alaska seeks our expression of disapproval of the sentences imposed on Mr. Trunnel as being too lenient.\\nAppellee A1 Trunnel, Jr. was convicted upon his plea of nolo contendere to two counts of possession of narcotics and was originally sentenced to ten years imprisonment on each count, to run concurrently. On appeal, this court affirmed his conviction. Trunnel v. State, 535 P.2d 1041 (Alaska 1975). The defendant thereupon filed a timely motion to reduce his sentences under Alaska Rule of Criminal Procedure 35 (a). On July 11, 1975, the superior court reduced Trunnel's sentences by suspending five years of each ten-year sentence, and the State filed a timely notice of sentence appeal.\\nWe first consider the question of whether a sentence appeal may be taken from an order granting or denying a motion to modify sentence under Alaska Rule of Criminal Procedure 35(a). Alaska Rule of Appellate Procedure 21(b) provides:\\nWritten notice of appeal from a sentence of the superior court 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 superior court which imposed the sentence not later than 30 days after sentence was imposed.\\nA sentence is \\\"imposed\\\" at the time it is first announced upon the record by the court.\\n\\\"Imposed\\\" is defined to mean, \\\"to lay on,\\\" and \\\"imposition\\\" is \\\"a placing, putting or laying on\\\" . . . . The imposition of sentence means laying the sentence upon the defendant, that is, the act of sentencing him . .\\nKriebel v. United States, 10 F.2d 762, 764 (7th Cir. 1926).\\nWhen a motion to reduce sentence under Criminal Rule 35(a) is granted, the court in effect vacates the sentence previously imposed upon the defendant and announces a new, lesser sentence. This fits the definition of \\\"imposing\\\" a sentence, and a sentence appeal would lie under the relevant statutes and rules. We therefore hold that the State may appeal a sentence when it is modified by the superior court.\\nAs we have frequently stated, our standard of review on a sentence appeal is to determine whether the trial court's imposition of sentence was clearly mistaken. With this standard in mind, we have examined Trunnel's sentences.\\nThe State contends that concurrent ten-year sentences with five years suspended from each do not meet the proper goals of a criminal sentence, outlined by this court in State v. Chaney, 477 P.2d 441, 444 (Alaska 1970), because the sentences do not sufficiently isolate Trunnel, deter him or others from similar crimes, reaffirm societal norms, nor are the sentences likely to accomplish rehabilitation of Mr. Trunnel.\\nThe pre-sentence report in this case indicates the following: Trunnel is a 48-year-old black who finished the eleventh grade and was married once, briefly. He has a spotty history of legitimate employment and admits that his major source of income for many years has been gambling. Trunnel stated that he is not addicted to narcotics. At the time of the offenses at issue here, he was operating an \\\"after hours\\\" social club.\\nTrunnel's criminal history shows two prior convictions for burglary in 1948 and 1949 when he was 21 and 22 years old. He received three years probation for \\\"Suspicion of Possession of Narcotic Drugs Other than Marijuana\\\" in 1962, and six months imprisonment with a $250.00 fine for \\\"Illegal Possession of Hypnotic Drugs\\\", which he described as diet pills, in 1964. Since 1964, his only convictions have been for traffic violations and gambling offenses.\\nIn relating the length of sentence imposed to the seriousness of a drug offense, we are guided by our decision in Waters v. State, 483 P.2d 199, 201 (Alaska 1971). There we recommended that sentencing judges take into account four groups of drug offenders whose crimes are in the following descending order of seriousness:\\n1. Smuggling or sale of large quantities of narcotics or possession of large quantities for sale.\\n2. Smuggling or sale of small quantities of narcotics, or possession of small quantities for sale.\\n3. Possession of narcotics without intent to sell.\\n4. Marijuana offenses.\\nThe offense for which Trunnel was convicted does not place him within the two most serious categories of drug offenders: the large and small dealers. Instead, he falls into the third category: offenders convicted for possession without intent to sell. The State suggests that Trunnel is a \\\"major\\\" drug dealer in Anchorage. Although there was evidence at the sentencing hearings that some of his associates may have used the premises or out-buildings of the club to hide narcotic drugs and engage in drug dealings, there was no evidence of a type which could be considered in sentencing that Trunnel himself was a drug dealer.\\nWe do not have before us the question of whether the original ten-year sentences with no time suspended were appropriate, but whether the trial court was clearly mistaken in imposing the modified sentences. We reiterate our agreement with the American Bar Association's statement that maximum prison terms ought not to exceed five years except for cases involving particularly serious crimes.\\nWe also agree with the State that Mr. Trunnel deserves substantial sentences in view of his current conviction of two narcotics offenses and his history of unlawful activities. We believe that concurrent ten-year sentences with five years suspended from each are substantial. Such sentences should serve both to deter the appellee and other drug offenders and to reaffirm societal norms while at the same time allowing for rehabilitation of Mr. Trunnel. We therefore hold that the trial court was not clearly mistaken in modifying the sentence.\\nAFFIRMED.\\n. AS 12.55.120(b) provides:\\nA sentence of imprisonment lawfully imposed by the superior court may be appealed to the supreme court by the state on the ground that the sentence is too lenient; however, when a sentence is ap pealed by the state and the defendant has not appealed the sentence, the court is not authorized to increase the sentence but may express its approval or disapproval of the sentence and its reasons in a written opinion.\\nA1 Trunnel has not appealed the sentence imposed by the superior court.\\n. Alaska Rule of Criminal Procedure 35(a) states:\\nThe court may correct an illegal sentence at any time. The court may reduce a sentence within 60 days after the sentence is imposed, or within 60 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 60 days after receipt of an order of the supreme court of the state or of the United States denying an application for relief.\\n. See Corey v. United States, 375 U.S. 169, 84 S.Ct. 298, 11 L.Ed.2d 229 (1963); United States v. Behrens, 375 U.S. 162, 84 S.Ct. 295, 11 L.Ed.2d 224 (1963); Farries v. United States, 439 F.2d 781 (3rd Cir. 1971). These cases hold that reduction of a maximum sentence as provided by 18 U.S.C. \\u00a7 4208(b) (judge sentences first for maximum term and then awaits study by Bureau of Prisons before deciding whether to reduce sentence) is an imposition of sentence from which an appeal can be taken.\\n. State v. Lancaster, Opn. No. 1247 n. 13 (Alaska, March 8, 1976); Perrin v. State, 543 P.2d 413, 415 (Alaska 1975); Bradley v. State, 535 P.2d 1031, 1032 (Alaska 1975); Smith v. State, 531 P.2d 1273, 1276 (Alaska 1975).\\n. The State argues that the original ten-year sentence without suspended time was proper in Trunnel's ease because\\nit is at least very likely, if not conclusively proven, that he falls within the most serious category of drug offenders [as denominated in the case of Waters v. State, 483 P.2d 199, 201 (Alaska 1971)].\\n. We have often condemned reliance on previous \\\"contacts\\\" with the police as well as other offenses for which guilt has not been established. Burleson v. State, 543 P.2d 1195, 1203 (Alaska 1975) ; Griggs v. State, 494 P.2d 795, 798 (Alaska 1972) ; Robinson v. State, 492 P.2d 106, 107 (Alaska 1971) ; Peterson v. State, 487 P.2d 682, 683 n. 1 (Alaska 1971) ; Galaktionoff v. State, 486 P.2d 919, 924 (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).\\n.American Bar Association Standards for Criminal Justice, Standards Relating to Sentencing Alternatives and Procedures. Standard 2.1(b) at 13-14 (approved draft 1968). Donlun v. State, 527 P.2d 472, 475 (Alaska 1974). In the context of drug offenses, see, for example, McClain v. State, 519 P.2d 811 (Alaska 1974) (sentence of four years for one count of manufacturing and one of selling heroin affirmed) ; Daygee v. State, 514 P.2d 1159 (Alaska 1973) (four-year sentence affirmed for possession of a large quantity of marijuana for sale) ; Nickerson v. State, 492 P.2d 118 (Alaska 1971) (sentence of eight years with four suspended for possession and sale of heroin affirmed) ; Nicholas v. State, 477 P.2d 447 (Alaska 1970) (sentence of two years for sale of marijuana affirmed). For a complete study of drug offense sentence review in Alaska, see It. Erwin, Five Tears of Sentence Review in Alaska, 5 TJ.C.L.A.\\u2014 Alaska L.Rev. 1, 11-12, Table III (1975). We have reviewed the sentence in only one other drug case which involved possession and not sale of narcotics, as is true in the instant case. In Whitton v. State, 533 P.2d 266 (Alaska 1975), we approved a ten-year sentence for possession because of aggravating circumstances: the defendant's fourteen previous convictions for other crimes.\\n. State v. Chaney, 477 P.2d 441, 444 (Alaska 1970).\\n. AS 12.55.075(a)(2) requires the court at the time of imposing sentence to prepare a sentencing report including \\\"the reasons for selecting the particular sentence imposed\\\". As stated in this opinion, when a court in effect vacates the sentence previously imposed upon the defendant and announces a new, lesser sentence, he is \\\"imposing\\\" a sentence. AS 12.55.075(a)(2) therefore becomes applicable.\\nThe superior court judge in imposing the revised sentence referred to the briefs and memoranda submitted to the trial court but only specified as reasons for the reduced sentence the fact that between the date of the indictment in 1973 and the date of sentencing, July 11, 1975, the defendant was not involved in violations of a statute, and that when he was allowed to leave the state to attend a funeral in his family, he returned within the period of time allotted to him. The court also indicated a review of the second sentencing hearing but does not state additional reasons derived from such a review which led to the sentence reduction. Since we find that the court in imposing the reduced sentence was not clearly mistaken, we have not elected to remand this case. In future cases, full and explicit reasons should be set forth for imposing a sentence or reduction thereof.\"}"

alaska/10463053.json

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+"{\"id\": \"10463053\", \"name\": \"Eileen Marie MILLER, wife, Michael Paul Miller, son, and Valerie Ann Merriman, stepchild of David Eugene Miller (Deceased), Appellants, v. ITT ARCTIC SERVICES, Liberty Mutual Insurance Company, and Alaska Pacific Assurance Company, Appellees; ITT ARCTIC SERVICES, Liberty Mutual Insurance Company, and Alaska Pacific Assurance Company, Cross-Appellants, v. Eileen Marie MILLER, wife, Michael Paul Miller, son, and Valerie Ann Merriman, stepchild of David Eugene Miller (Deceased), Cross-Appellee\", \"name_abbreviation\": \"Miller v. ITT Arctic Services\", \"decision_date\": \"1978-04-21\", \"docket_number\": \"Nos. 3311 and 3312\", \"first_page\": \"1044\", \"last_page\": \"1049\", \"citations\": \"577 P.2d 1044\", \"volume\": \"577\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T22:12:20.787142+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BOOCHEVER, Chief Justice, and RABINOWITZ, CONNOR, BURKE and MATTHEWS, Justices.\", \"parties\": \"Eileen Marie MILLER, wife, Michael Paul Miller, son, and Valerie Ann Merriman, stepchild of David Eugene Miller (Deceased), Appellants, v. ITT ARCTIC SERVICES, Liberty Mutual Insurance Company, and Alaska Pacific Assurance Company, Appellees. ITT ARCTIC SERVICES, Liberty Mutual Insurance Company, and Alaska Pacific Assurance Company, Cross-Appellants, v. Eileen Marie MILLER, wife, Michael Paul Miller, son, and Valerie Ann Merriman, stepchild of David Eugene Miller (Deceased), Cross-Appellee.\", \"head_matter\": \"Eileen Marie MILLER, wife, Michael Paul Miller, son, and Valerie Ann Merriman, stepchild of David Eugene Miller (Deceased), Appellants, v. ITT ARCTIC SERVICES, Liberty Mutual Insurance Company, and Alaska Pacific Assurance Company, Appellees. ITT ARCTIC SERVICES, Liberty Mutual Insurance Company, and Alaska Pacific Assurance Company, Cross-Appellants, v. Eileen Marie MILLER, wife, Michael Paul Miller, son, and Valerie Ann Merriman, stepchild of David Eugene Miller (Deceased), Cross-Appellee.\\nNos. 3311 and 3312.\\nSupreme Court of Alaska.\\nApril 21, 1978.\\nRobert N. Opland, Opland, Johnston & Arnett, Anchorage, for appellants.\\nRobert L. Eastaugh, Delaney, Wiles, Moore, Hayes & Reitman, Inc. and Michael G. Briggs, Ely, Guess & Rudd, Anchorage, for appellees.\\nBefore BOOCHEVER, Chief Justice, and RABINOWITZ, CONNOR, BURKE and MATTHEWS, Justices.\", \"word_count\": \"3200\", \"char_count\": \"20396\", \"text\": \"OPINION\\nRABINOWITZ, Justice.\\nThis appeal arises out of the denial of benefits to the survivors of David Eugene Miller by the Alaska Workmen's Compensation Board. The superior court upheld the Board's determination. We affirm.\\nDavid E. Miller collapsed on January 20, 1975, while employed by ITT Arctic Services on a project at Fort Wainwright near Fairbanks; he died at a nearby hospital within one and one-half hours of being stricken. Miller had been making \\\"cross connections\\\" for communications circuitry on the third floor of a building. Although testimony of witnesses before the Board is not entirely in agreement regarding details of the day's work, it appears that Miller had been doing primarily fine hand work for nine or ten hours \\u2014 making electrical connections and wrapping the wires around terminals with an electric \\\"gun\\\" weighing a pound or less. No heavy lifting or other vigorous exertion was involved. At about 5:15 p. m., the crew cleaned up the area, carried tools or other items down the 44 steps of the building, and loaded them into a pickup truck. One of Miller's co-workers testified that Miller made two or three trips down the stairs with boxes of equipment and materials and that Miller last carried a box of spare iron parts from the \\\"cable rack.\\\" The \\\"nonworking foreman\\\" for the job testified that Miller made only one trip from the third floor to the pickup \\u2014 carrying his toolbox weighing 30-35 pounds. Miller lifted the box onto the tailgate of the pickup and immediately slumped over the box. He was carried back inside the building by the other members of the crew and subsequently was taken by ambulance to Bassett Army Hospital at Fort Wainwright where he died.\\nMiller's widow, son and stepdaughter filed a claim for workmen's compensation benefits, and a hearing was held before the Alaska Workmen's Compensation Board. The Board concluded that Miller's death was due to intracerebral bleeding \\u2014 the direct result of a ruptured berry aneurysm in his brain. The Board determined that although Miller was in the course of his employment when the aneurysm ruptured, the rupture was not caused by his employment. The Board heard lay and expert testimony which it determined was sufficient to overcome Alaska's statutory presumption of compensability. The Board concluded that, once the presumption had disappeared, the applicants failed to bear their burden of showing a connection between Miller's death and his employment.\\nIn deciding that the presumption of com-pensability had been rebutted, the Board relied upon testimony of Miller's co-worker and foreman that the work performed by Miller on the day of his death required virtually no physical exertion and that the only exertion immediately prior to his attack was carrying a tool box downstairs. In addition, the Board viewed the medical evidence as indicating \\\"that aneurysms rupture spontaneously and at random times around the clock.\\\"\\nMiller's survivors appealed the decision of the Alaska Workmen's Compensation Board, and the superior court affirmed. This appeal followed.\\nMiller's survivors contend that the statutory presumption of compensability was not overcome because no substantial evidence was introduced to show that Miller's death was not work-connected. They also argue for application of the rule that doubts as to the substance of medical testimony must be resolved in favor of claimants; and with respect to testimony in the case at bar, this rule requires the conclusion that no substantial evidence was introduced to overcome the presumption of compensability.\\nThe Alaska Workmen's Compensation Act contains a presumption that an injury is work-connected in the absence of substantial evidence to the contrary. Once substantial evidence is introduced, the presumption drops out and the burden of proving all elements of the claim falls on the claimant. This court has consistently defined \\\"substantial evidence\\\" as \\\"such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\\\" Evidence which is competent or admissible may nevertheless be insufficient to overcome the presumption of compensability; the question whether, the quantum of evidence is substantial is a legal question.\\nIn Fireman's Fund American Insurance Cos. v. Gomes, 544 P.2d 1013 (Alaska 1976) (unexplained murder of bartender at his place of employment), we explained two possible ways of overcoming the presumption of compensability: (1) by affirmative evidence showing that the death was not work-connected, or (2) by eliminating all reasonable possibilities that the death was work-connected. In Gomes, no affirmative evidence was produced to show that Gomes' death was due to non-work-related causes; nor was the employer able to meet \\\"the infinitely more difficult task of eliminating all reasonable hypotheses that the killing was work-related.\\\" In Gomes, the evi dence did not answer the question why the employee had been killed; in the absence of affirmative evidence showing non-work-relatedness, we held that substantial evidence to rebut the presumption had not been introduced.\\nUnlike the situation in Gomes, appellees in the case at bar have introduced affirmative evidence in the form of expert testimony that Miller's death was not work-related. The question remains, however, whether the evidence was sufficient to constitute substantial evidence for purposes of rebutting the statutory presumption of compens-ability.\\nThe adequacy of evidence introduced to overcome the statutory presumption was addressed by this court in Employers Commercial Union Co. v. Libor, 536 P.2d 129 (Alaska 1975). In Libor, the Board had awarded compensation based upon its conclusion that a work-related back injury was the cause of a subsequently discovered herniated disc. We upheld the award and concluded that substantial evidence against the presumption of compensability had not been produced even though one of the two medical experts testified that the initial injury could not, with a reasonable degree of medical certainty, be said to be the cause of the condition for which the claimant sought compensation. However, the witness gave no opinion that the subsequent disability was not work-related. Under those circumstances, we held that the presumption of compensability had not been overcome. The mere inability to state that the disability was work-related did not constitute substantial evidence.\\nThornton v. Alaska Workmen's Compensation Board, 411 P.2d 209 (Alaska 1966), also presented the question whether the presumption of compensability had been overcome by substantial evidence that the employee's death was not work-related. We concluded, in part, that the presumption had not been overcome because neither of the two medical witnesses testified that the employee's exertion had not contributed to his death.\\nIn the case at bar, three physicians testified as to the cause of Miller's death. All three agreed that a ruptured berry aneurysm was the most likely cause of death. However, the three doctors differed as to the connection between Miller's work activity and the subsequent intracerebral bleeding.\\nDr. Partnow, the physician who treated Miller in the hospital emergency room, stated that causes of ruptured berry aneurysms are not well understood. He explained that such aneurysms are statistically more likely to rupture during periods of activity than during periods of repose, but he also noted that people are active for the largest proportion of each day. In Dr. Partnow's opinion, the rupture of a berry aneurysm might be caused by an increase in intracerebral blood pressure due to physical straining; loading a box on the back of a pickup truck was the kind of activity which would result in a noticeable increase in blood pressure. However, he declined to state categorically whether the rupture was related to physical activity:\\nI think that it is something that would have happened anyhow. The concept of somebody walking around with a time bomb in his head appeals to me. Had it not happened then it probably would have happened at another time, again more liable to be associated with physical activity, but certainly not inevitably associated with it.\\nDr. Mead agreed that causes of rupture in aneurysms are not entirely understood. He testified that, based upon his observations, 20 to 40 per cent of such ruptures are associated with exertion. Dr. Mead also noted greater incidence of rupturing when blood pressure is elevated and stated that physical exertion causes an increase in blood pressure. In addition, he specifically concluded that Miller's death was related to the exertion associated with Miller's work. However, Dr. Mead refused to say that the rupture could have been avoided if Miller had not lifted the box into the truck at that moment; that is, a similar or greater strain at a time in the foreseeable future was likely to have caused the aneurysm to rupture. He further agreed with appellee's counsel that a certain degree of inevitability was involved and that risk of rupture was present whether affected persons were involved in day-to-day activities or were at rest. Dr. Mead acknowledged that statistical correlations between physical activity and aneurysm rupture may be affected by relative proportions of time spent asleep and awake.\\nThe third medical expert, Dr. Wilson, stated, \\\"[I]t's only the occasional case where it seems that the specific act of physical activity immediately preceded the bleed. . Most of these occur . at random . . . with respect to activity.\\\" Dr. Wilson also stated that ordinary physical activity does not increase blood pressure \\u2014 although \\\"an enormously heavy amount of lifting . . . might make the blood pressure go up a little bit.\\\" He stated that a single act of lifting a moderately heavy tool box would not alter blood pressure at all. Although Dr. Wilson agreed with the claimant's counsel on cross-examination that no absolutes exist \\\"in this thing,\\\" he stated categorically that no relation existed between Miller's effort and the apparent rupture:\\nIt's my opinion that it had nothing whatsoever to do with it, based on all I know from personal and vicarious experiences through reading and so forth about this disease which we think he had.\\nThe instant case differs from Li-bor and Thornton because Dr. Wilson expressly stated that in his opinion Miller's exertion at work \\\"had nothing whatsoever to do with\\\" Miller's death. His opinion was based upon accurate and complete information concerning the circumstances surrounding Miller's death. Nor was Dr. Wilson's expertise or the reliability of his testimony undercut by the testimony of other experts or by cross-examination. Under such circumstances, we conclude that substantial evidence \\u2014 which a reasonable mind might find adequate to support a conclusion that Miller's death was not related to his employment \\u2014 had been introduced and that the presumption of compensability was overcome. In the absence of the presumption, the claimants must prove all elements necessary to establish the claim.\\nAppellants also argue that the presumption should be sustained because the experts' testimony indicates uncertainty among the medical profession as to the causes of aneurysm rupture. They contend that the rule resolving doubts as to the substance of medical testimony in favor of claimants requires resolving uncertainty in medical evidence in favor of Miller's survivors and, accordingly, no substantial evidence exists to rebut the presumption.\\nOn several occasions we have stated that any doubt as to the substance of medical testimony should be resolved in favor of the claimant. Miller's survivors apparent ly would have us apply the rule whenever the evidence reveals lack of unanimity or shows uncertainty among medical experts about ultimate causation. We are not persuaded that the rule should be applied in such a manner. In Thornton v. Alaska Workmen's Compensation Board, 411 P.2d 209, 211 (Alaska 1966), we noted that doubts should be resolved in favor of the claimant \\\"if there were any doubt as to what the substance of the medical testimony was.\\\" In Thornton, we did not rely upon the rule because the substance of neither physician's testimony was in doubt. We believe the Thornton approach is correct and the rule is properly applicable only when the substance of a particular witness' testimony is in doubt. In such circumstances, any doubt should be resolved in favor of the claimant. To extend the rule beyond the testimony of individual witnesses would unduly interfere with the Board's fact finding function. This we decline to do. We believe the presumption of compensability and the showing of substantial evidence necessary to overcome it adequately protect the humanitarian purposes of the Workmen's Compensation Act.\\nIn the case at bar, Dr. Wilson's testimony that Miller's death was unrelated to his employment cannot be characterized as doubtful or ambiguous. Since the substance of Dr. Wilson's testimony was not in doubt, there was no need for the Board to resolve any questions regarding its content. The Board properly declined to apply the rule to the medical testimony before it.\\nAlthough we have concluded that the employer introduced substantial evidence to overcome the presumption of compensability, the question remains whether the Board's denial of workmen's compensation benefits to Miller's widow and children was correct. In reviewing a determination of the Alaska Workmen's Compensation Board, the applicable standard of review is again the substantial evidence test. That is, the reviewing court may not reweigh the evidence or draw its own inferences from the evidence. If, in light of the record as a whole, there is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, then the order of the Workmen's Compensation Board must be upheld.\\nSince the statutory presumption of compensability has been overcome, it is the applicants' burden to prove all elements necessary to support their claim. The Board considered both testimony of medical experts and testimony of Miller's co-workers and determined that the applicants had failed to show a work-connection. We have carefully reviewed the entire record and have concluded that the same evidence introduced to rebut the presumption of com-pensability is also adequate to support the Board's decision. Even if the substance of testimony given by Dr. Partnow and Dr. Mead is viewed as being in doubt \\u2014 such that it should be resolved in favor of Miller's widow and children \\u2014 substantial evidence remains upon which the Board could reasonably have based its conclusion. The evidence well might support a different decision by the Board; indeed, the cases cited in appellants' brief illustrate the diverse positions taken by workmen's compensation boards and courts in cases where employees have died as a result of aneurysm rupture. However, as a reviewing court, we may not reweigh the evidence or draw our own inferences from it.\\nAffirmed.\\n. The hearing before the Alaska Workmen's Compensation Board was held February 5, 1976. The Board's decision and order were dated June 11, 1976.\\n. The superior court's memorandum of decision was filed December 9, 1976.\\n. A notice of cross-appeal originally was filed by ITT Arctic Services, Liberty Mutual Insurance Company and Alaska Pacific Assurance Company. However, they expressly have abandoned their cross-appeals.\\n. AS 23.30.120(1) provides:\\nIn a proceeding for the enforcement of a claim for compensation under this chapter it is presumed, in the absence of substantial evidence to the contrary, that\\n(1) the claim comes within the provisions of this chapter .\\nSee Fireman's Fund Am. Ins. Cos. v. Gomes, 544 P.2d 1013, 1015 (Alaska 1976); Beauchamp v. Employers Liab. Assurance Corp., 477 P.2d 993 (Alaska 1970).\\n. Anchorage Roofing Co., Inc. v. Gonzales, 507 P.2d 501, 504 (Alaska 1973); see Del Vecchio v. Bowers, 296 U.S. 280, 286-87, 56 S.Ct. 190, 193, 80 L.Ed. 229, 232-33 (1935).\\n. See, e. g., Fireman's Fund Am. Ins. Cos. v. Gomes, 544 P.2d 1013, 1015 (Alaska 1976); Anchorage Roofing Co., Inc. v. Gonzales, 507 P.2d 501, 503 (Alaska 1973); Thornton v. Alaska Workmen's Compensation Bd., 411 P.2d 209, 210 (Alaska 1966).\\n. Fireman's Fund Am. Ins. Cos. v. Gomes, 544 P.2d 1013, 1015 & n. 7 (Alaska 1976).\\nIn the case at bar, appellees argue that any competent affirmative evidence should be sufficient to rebut the presumption of compensability. This court previously has required more than mere competence. The evidence not only must be competent but also must be such that a reasonable mind might accept it as adequate to support a conclusion. Fireman's Fund Am. Ins. Cos. v. Gomes, 544 P.2d 1013, 1016 (Alaska 1976). Professor Larson's view is similar:\\nThe evidence necessary to overcome the presumption must do more than create doubt or set up noncompensable alternative explanations. . . . [I]t must be 'evidence such as a reasonable mind might accept as adequate to support a conclusion.'\\n1 Larson, Workmen's Compensation Law \\u00a7 10.-33(b), at 3-128 (1978).\\n. Fireman's Fund Am. Ins. Cos. v. Gomes, 544 P.2d 1013, 1016 (Alaska 1976).\\n. Id.\\n. In Libor, we concluded that the Board properly could have relied upon the presumption of AS 23.30.130(1); but even in the absence of the presumption, the Board's award would have been adequately supported by the record.\\nSeveral other opinions of this court which consider the presumption of compensability are also useful in evaluating the amount of evidence necessary to be substantial. See, e. g., Anchorage Roofing Co., Inc. v. Gonzales, 507 P.2d 501, 505-06 (Alaska 1973); Beauchamp v. Employers Liab. Assurance Corp., 477 P.2d 993 (Alaska 1970).\\n. Dr. Partnow and Dr. Wilson agreed that whether Miller's death resulted from aneurysm rupture could have been established with certainty by an autopsy. However, no autopsy was performed.\\n. See Fireman's Fund Am. Ins. Cos. v. Gomes, 544 P.2d 1013, 1017 n. 13 (Alaska 1976); Beauchamp v. Employers Liab. Assurance Corp., 477 P.2d 993, 997 n. 12 (Alaska 1970); Thornton v. Alaska Workmen's Compensation Bd., 411 P.2d 209, 211 (Alaska 1966); see also Employers Commercial Union Co. v. Libor, 536 P.2d 129, 131 (Alaska 1975). Federal courts considering cases arising under the Longshoremen's and Harbor Workers' Compensation Act \\u2014 the model for Alaska's Workmen's Compensation Act \\u2014 have utilized a similar rule. See, e. g., In re District of Columbia Workmen's Compensation Act, 180 U.S.App.D.C. 216, 222-226, 554 F.2d 1075, 1081-85, cert. denied, sub nom. J. Frank Kelly, Inc. v. Swinton, 429 U.S. 820, 97 S.Ct. 67, 50 L.Ed.2d 81 (1976); Mitchell v. Woodworth, 146 U.S.App. D.C. 21, 23, 449 F.2d 1097, 1099 (1971); Wheatley v. Adler, 132 U.S.App.D.C. 177, 183-184, 407 F.2d 307, 313-14 (1968); J. V. Vozzolo, Inc. v. Britton, 126 U.S.App.D.C. 259, 262, 377 F.2d 144, 147 (1967); Vinson v. Einbinder, 113 U.S.App.D.C. 246, 256, 307 F.2d 387, 388 (1962), cert. denied, 372 U.S. 934, 83 S.Ct. 880, 9 L.Ed.2d 765 (1963).\\n.See, e. g., Hawkins v. Green Associated, 559 P.2d 118, 120 (Alaska 1977); Beauchamp v. Employers Liab. Assurance Corp., 477 P.2d 993, 994-97 (Alaska 1970).\\n. Hawkins v. Green Associated, 559 P.2d 118, 120 (Alaska 1977); Beauchamp v. Employers Liab. Assurance Corp., 477 P.2d 993, 997 (Alaska 1970).\\n. Beauchamp v. Employers Liab. Assurance Corp., 477 P.2d 993, 994 (Alaska 1970); Cook v. Alaska Workmen's Compensation Bd., 476 P.2d 29, 32 (Alaska 1970).\"}"

alaska/10468269.json

@@ -0,0 +1 @@
+"{\"id\": \"10468269\", \"name\": \"C. Y., INCORPORATED, an Alaska Corporation, Appellant, v. Linda BROWN, Director of the State of Alaska Alcoholic Beverage Control Board, Appellee\", \"name_abbreviation\": \"C. Y., Inc. v. Brown\", \"decision_date\": \"1978-02-24\", \"docket_number\": \"No. 2781\", \"first_page\": \"1274\", \"last_page\": \"1277\", \"citations\": \"574 P.2d 1274\", \"volume\": \"574\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T17:21:49.389578+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BOOCHEVER, Chief Justice, and RABINO WITZ, CONNOR and BURKE, Justices.\", \"parties\": \"C. Y., INCORPORATED, an Alaska Corporation, Appellant, v. Linda BROWN, Director of the State of Alaska Alcoholic Beverage Control Board, Appellee.\", \"head_matter\": \"C. Y., INCORPORATED, an Alaska Corporation, Appellant, v. Linda BROWN, Director of the State of Alaska Alcoholic Beverage Control Board, Appellee.\\nNo. 2781.\\nSupreme Court of Alaska.\\nFeb. 24, 1978.\\nC. R. Kennedy, Kennedy, Azar & Edwards, Anchorage, for appellant.\\nDavid T. LeBlond, Asst. Atty. Gen., Anchorage, Avrum M. Gross, Atty. Gen., Juneau, for appellee.\\nBefore BOOCHEVER, Chief Justice, and RABINO WITZ, CONNOR and BURKE, Justices.\", \"word_count\": \"1756\", \"char_count\": \"10708\", \"text\": \"OPINION\\nBURKE, Justice.\\nThis appeal comes to us after entry of summary judgment in an action for declar atory relief. Appellant, C. Y. Incorporated, plaintiff in the court below, questions the authority of the Alaska Alcoholic Beverage Control Board to require payment of debts owed to the general creditors of a holder of a liquor license before granting its approval for a transfer of that license to appellant.\\nAt the root of this controversy is AS 4.10.330. That section provides:\\nApplication for transfer of licenses.\\n(a) No license may be transferred by the licensee to any other person except with the written consent of the board. Consent for the transfer of a license may be given upon written application therefor.\\n(b) Application for the transfer of ownership of an existing license shall be accompanied by a statement, under oath, executed by the transferor in which he lists all debts and the amounts which he owes to a creditor of the business and taxes due. The board shall promptly inform each creditor of the application and of the amount owed that creditor. The board shall not approve the application for transfer unless all of the debts and taxes are paid, or the transferor gives security for the payment of them satisfactory to the creditor or taxing authority prior to approval of the application. (emphasis added).\\nIn reliance on the foregoing section, the Alcoholic Beverage Control Board, by and through its Executive Director, Linda Brown, refused to approve a transfer of a liquor license from Miles and Katherine Davie to C. Y. Incorporated until all taxes and debts owed to the Davies' creditors had been paid. C. Y. Incorporated thereupon commenced this action, seeking a judgment declaring that AS 04.10.330 does not apply to the form of transfer shown by the evidence.\\nThe events giving rise to this litigation began when Miles and Katherine Davie contracted with C. Y. Incorporated for the installment purchase of the Golden Whale bar in Kotzebue, Alaska. Apparently, the Davies breached the contract and C. Y. Incorporated brought suit to recover possession of the business along with the liquor license. Pending resolution of that litigation, Superior Court Judge Victor D. Carlson, on May 22, 1974, ordered that possession and operation of the Golden Whale be returned to C. Y. Incorporated, allowing it to maintain the premises and continue the business in order to preserve the assets. C. Y. Incorporated then proceeded to pay the Davies $5,000.00 in exchange for a confession of judgment rescinding the contract. The agreement also provided that the Davies would sign all documents necessary for the transfer of the liquor license to C. Y. Incorporated. Judgment was entered on July 15, 1974, by Judge Carlson, requiring the Davies to convey the business back to C. Y. Incorporated, including the liquor license. The Davies were further ordered to sign all documents required to effectuate the transfer, in accordance with their confession of judgment.\\nIn March, 1975, C. Y. Incorporated moved to amend the judgment of July 15, 1975, so as to transfer the liquor license to C. Y. Incorporated by operation of law, on the grounds that the Davies had refused to sign the required transfer documents. On March 6, 1975, Judge Carlson ordered that the liquor license be transferred from the Davies to C. Y. Incorporated, but made such order and transfer \\\"subject to the approval of the Alcoholic Beverage Control Board.\\\"\\nThe filing of the present action followed the Board's later refusal to approve the transfer until the Davies' creditors were paid.\\nIn the superior court, C. Y. Incorporated moved for summary judgment, contending, as it does here, that AS 04.10.330 was inapplicable because it had acquired the liquor license through foreclosure of a security interest, rather than through a voluntary transfer. The superior court denied C. Y. Incorporated's motion for summary judgment, saying in its written order:\\nIt should first be noted that there are genuine issues that would have to be resolved before summary judgment in the plaintiffs favor would be possible. Among them are the issues set out in defendant's Statement of Genuine Issues dated June 4, 1975.\\nAccording to the statement referred to, those issues were:\\n(1) As a factual matter, was the transfer of the Golden Whale liquor license from Miles Davie and his former wife, Catherine Davie, to C. Y. Incorporated in the nature of a voluntary or involuntary transfer?\\n(2) As a factual matter what consideration was given and/or what financial obligations of the Davies did C. Y. Incorporated agree to discharge for the Confession of Judgment obtained from the Davies on or about May 23, 1974, which transferred the liquor license of the Golden Whale to C. Y. Incorporated?\\n(3) As a factual matter, did C. Y. Incorporated retain a security interest in the liquor license it earlier transferred to the Davies?\\nThe superior court then proceeded to grant summary judgment in favor of the defendant, and against the moving party, as permitted by Rule 56(c), Alaska R.Civ.P., saying:\\n[T]he matter can be disposed of as a matter of law in favor of the defendant by assuming, for these purposes only, that the factual situation is as interpreted by the plaintiff. The transfer of the license lies within the provisions of AS 04.10.330 as read in conjunction with AS 09.35.087. Gibson v. Alaska Alcoholic Beverage Control Board, 377 F.Supp. 151 (D.C.Alaska 1974) is not closely analogous to the instant case. This is not a UCC Article 9 transaction that might (without so deciding) remove the matter from the above cited statutes. Further, there is substantial difference in the identity of the parties and the issues. Gibson involved a dispute between a license holder and a secured party over whether or not the secured party, who had relied specifically upon the license for collateral could force a transfer of the license. The analysis of that case does not apply to a dispute between the Board and one seeking transfer of a license.\\nThe foregoing is dispositive of all issues in this matter.\\nFrom the foregoing language, it is not altogether clear whether the superior court based its decision on the conclusion that C. Y. Incorporated had no security interest under the Uniform Commercial Code or whether its decision was simply that any such interest that C. Y. Incorporated might have had was subordinate to the claims of general creditors under AS 04.10.330. In either event, we believe that the court correctly granted summary judgment in favor of appellee.\\nContrary to the thrust of its whole argument, C. Y. Incorporated apparently did not obtain the license through foreclosure of a security interest. What it did was pay the Davies $5,000 for a confession of judgment rescinding the installment sales contract and then took possession of the licensed premises under what, at that time, amounted to a voluntary transfer agreement, albeit one having the sanction of the superior court. The amended judgment, transferring the license by operation of law, was nothing more than an exercise of the court's power to declare done what the Davies had already agreed to do in their settlement agreement with C. Y. Incorporated. Thus, the transfer, despite having certain overtones of a foreclosure, was in fact only a step removed from the ordinary transfer one would see in the event of a repurchase of a liquor license by a former owner. We hold that the requirements of AS 04.10.330 apply to such a transfer.\\nHowever, even if there was genuine foreclosure of a perfected security interest, we would be compelled to reach the same result.\\nAS 09.35.087 provides that \\\"the liquor license of a judgment debtor [is] exempt from execution.\\\" That section, we believe, indicates an overall legislative intent that one general creditor of a liquor license holder should not be allowed to place himself in a preferred position over other general creditors. That policy is further illustrated by the language of AS 04.10.330, indicating that a 11 general creditors of a liquor license holder should be paid before a transfer of the license will be approved. To allow one to avoid the requirements of AS 04.10.330 by the use of an Article 9 security interest, would be to defeat this basic policy, since one general creditor would, by that device, gain priority over others similarly situated. For example, a liquor supplier having sufficient bargaining power to obtain a security interest in a customer's liquor license, before extending credit to the license holder, could place himself in a preferred position over the claims of the license holder's other creditors. For that reason, we further hold that, even if there was a technical foreclosure in this case, the license transfer was subject to the requirements of AS 04.10.330.\\nThe one instance in which the foregoing result seems harsh is the one presented in this case. It would seem that the seller of a liquor license should be afforded greater protection than that given to subsequent creditors of his transferee by AS 04.10.330. However, if the legislature intended to provide greater protection to sellers of liquor licenses it should have done so in terms sufficiently clear to make that intent known. The present statutory scheme fails to indicate that any such exception ):was intended. A healthy respect for the doctrine of separation of powers compels us to leave the development of such an exception to the legislative branch.\\nAFFIRMED.\\nMATTHEWS, J., not participating.\\n. See AS 22.10.020(b).\\n. AS 09.30.050, provides in part: \\\"A judgment by confession may be entered with or without action against a person .for any amount or relief.\\\"\\n. Civil Rule 56(c) provides in part:\\n[Summary judgment shall be entered] if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law. . . . Summary judgment, when appropriate, may be rendered against the moving party.\\n. AS 45.05.\\n. There is no evidence in the record that C. Y. Incorporated filed the financing statement required to perfect a security interest under the U.C.C. See AS 45.05.734.\"}"

alaska/10468470.json

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+"{\"id\": \"10468470\", \"name\": \"Lura Mars WALLACE, Administratrix of the Estate of Ronald Poitras, Deceased, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Wallace v. State\", \"decision_date\": \"1976-12-29\", \"docket_number\": \"No. 2683\", \"first_page\": \"1120\", \"last_page\": \"1126\", \"citations\": \"557 P.2d 1120\", \"volume\": \"557\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T20:50:50.775353+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BOOCHEVER, Chief Justice, and RABINO WITZ, CONNOR and BURKE, Justices.\", \"parties\": \"Lura Mars WALLACE, Administratrix of the Estate of Ronald Poitras, Deceased, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Lura Mars WALLACE, Administratrix of the Estate of Ronald Poitras, Deceased, Appellant, v. STATE of Alaska, Appellee.\\nNo. 2683.\\nSupreme Court of Alaska.\\nDec. 29, 1976.\\nWilliam M. Erwin, Anchorage, for appellant.\\nSanford M. Gibbs, Anchorage, for appel-lee.\\nBefore BOOCHEVER, Chief Justice, and RABINO WITZ, CONNOR and BURKE, Justices.\", \"word_count\": \"3483\", \"char_count\": \"21224\", \"text\": \"OPINION\\nBURKE, Justice.\\nThe issue raised by this appeal is whether the State of Alaska can be held liable for a workman's death when state inspectors discovered the safety violation which was the cause of death but failed to take any action on it. In this case, the trial court granted the state's motion for summary judgment, concluding that persons in the position of safety inspectors should not be held liable when they fail to discover violations of safety rules or, having discovered violations, fail to enforce the law against them. Our recent decision in Adams v. State controls the issues raised in this case, and the superior court's order is reversed.\\nOn April 19, 1972, Ronald Poitras was electrocuted while working on the installation of a water main pipe near Tudor Road in the Muldoon area of Anchorage. Poitras was a pipe layer on the installation project, and it was his job to guide the sixteen inch pipe into a trench which had been excavated to encase it. During this maneuver, the operator of a Koehring \\\"1066\\\" backhoe, which has a twenty foot boom, would lift the pipe from its storage position and lower it into the trench. Po-itras stood above the trench and guided the pipe into position. When, on the day of the accident, the boom of the backhoe hit or came into close contact with a high voltage utility wire owned by Chugach Electric, the boom was immediately electrified. In turn, the steel cable which held the pipe and the pipe itself were electrified, and Poitras, who was guiding the pipe, was electrocuted.\\nDuring the thirty days that the job had been under way, state safety inspectors had visited the installation site on at least seven different occasions. Jorge C. Hix, at that time the Director of Occupational Safety for the State of Alaska, and Robert Smith, the Assistant Commissioner of Labor, had each visited the job at least twice, and three other inspectors had been on the site once. Prior to the accident, the state inspectors who were on the site had enforced the General Safety Code, promulgated by the State Department of Labor; the job had been shut down once because no oiler was there to supervise, and on another occasion, men had been ordered out of the trench being excavated until it could be widened. Although city inspectors were almost constantly present on the site, they did not regulate safety conditions ; they merely monitored the work to insure the correct installation of the pipe. When an unsafe working condition was noticed by an inspector for the city, he would then contact the state safety inspectors to take action on it.\\nOn April 17, 1972, two days before Ronald Poitras' death, Doug Wahto, a state inspector on this job, noticed that the boom of the backhoe was coming within ten feet of the Chugach high voltage power line, in violation of the General Safety Code. He asked Gale Fowler, the backhoe operator, if Fowler realized that he was in violation of the Safety Code, and when Fowler replied affirmatively, Wahto warned him of the dangers of such a violation. Wahto also instructed Fowler to store the pipes on the side of the trench farthest from the high tension line, to minimize the possibility of contact with the line when the backhoe moved the pipe from its storage position into the trench. Wahto filled out a report on this inspection, and when he returned to his office, he discussed the situation with Jack Garrett, the Senior Safety Inspector. Gale Fowler, operator of the backhoe, stated in his deposition that \\\"a couple of times\\\" he had been instructed by state inspectors to \\\"watch the lines.\\\" Melvin Reynolds, the oiler on the job, stated that the boom of the backhoe came within eight to twelve feet of the high tension line every time a piece of pipe was lifted. Other than the oral warnings given to Fowler by Wahto, no action was taken to stop the hazardous operation of the backhoe before Poitras was killed. There were no state inspectors at the job site on the day of the accident.\\nOn April 19, 1973, Lura Mars Wallace, administratrix of the estate of Ronald Po-itras, filed a wrongful death action against the State of Alaska, as well as other defendants. The State moved to dismiss the complaint, and, after the first of two hearings on the matter, requested that the superior court treat the motion as one for summary judgment, based on the pleadings, affidavits, and depositions in the case. On August 4, 1975, the trial court granted the motion for summary judgment, and it is from that judgment that Wallace appeals.\\nThe issue in this case is identical to the one confronted by this court in Adams v. State: whether the state is liable for a failure to enforce safety regulations once it has undertaken an inspection and has discovered safety violations in the course of that investigation. In analyzing this question in Adams, we considered three factors:\\n. whether the state had a duty to take some action with regard to the Gold Rush; whether the state's duty, if any, was owed to the plaintiffs or their decedents; and whether the state, if liable under the first two requirements, is nonetheless immunized by AS 09.50.250, because the actions or inaction complained of were discretionary.\\nThis three-part analysis is equally applicable in the case before us now.\\nI. The State's Duty to Act\\nAfter concluding that preventable accidents were the leading cause of death in the state, the legislature delegated to the Alaska Department of Labor the responsibility for industrial safety. Pursuant to this authority, the Alaska Department of Labor promulgated the General Safety Code (revised June 1969), and sec. 312-20 of that code provided:\\nThe operation of shovels, all-purpose cranes and drag-lines when it is possible to bring any part of the equipment within ten (10) feet of high tension lines is prohibited, except when such high voltage lines have been effectively guarded. Whenever it is necessary to move the shovel under electric wires, ample clearance shall be provided, together with such precautions as may be necessary to prevent contact between any part of the shovel and the wires.\\nThe State Department of Labor was given the authority to enforce all state labor laws and to make inspections for the enforcement of those laws. The Commissioner of Labor had a specific duty to give employers written notice of any discovered violations of the General Safety Code which created a serious hazard to the safety of the employees at the site. The Commissioner also had the authority to close a site and have employees removed from it until the unsafe condition could be corrected.\\nIn Adams, we did not treat the issue of whether state fire officials had a statutory duty to remedy safety hazards discovered at the Gold Rush Hotel. Instead, we found that by undertaking the inspection, the state voluntarily assumed a common law duty to do so with care. We further held that once safety violations were discovered and informally discussed with the Gold Rush management, \\\"the state fire officials had a duty to proceed further with regard to the recognized hazards.\\\" In the case before us now, the State Department of Labor, by conducting safety inspections of the pipe installation site, voluntarily assumed a duty to use due care in attempting to remedy the unsafe condition discovered in the course of inspection.\\nWe do not determine at this time whether the state breached its duty to take steps to abate the hazardous operation of the backhoe. There did, however, exist in this case a course of action for the state officials to pursue which might have averted the result of the dangerous condition. The Department of Labor had the statutory authority to enforce the General Safety Code, and the Commissioner of Labor was specifically authorized to close down sites as a means of enforcing the Code. In fact, this method of enforcement had already been employed on the site. State safety inspectors had previously closed the installation project because no oiler was on the job and, on another occasion, had ordered men from the trench where the pipe was being laid, until it could be widened. The safety hazard of operating the backhoe in close proximity to the high voltage line would have easily been corrected by placement of a high tension barrier over the lines, protecting the backhoe's boom from electrification. However, the reasonableness of the state's failure to attempt to correct the hazardous situation within two days of its discovery, other than by warning the backhoe operator, remains a question for the trier of fact.\\nII. Duty to the Plaintiff's Decedent\\nIn analyzing whether the state's common law duty was owed to the plaintiff and her decedent, we look to the purpose of the inspection. In the instant case, Poitras, a workman, was certainly the intended beneficiary of the safety inspections conducted by the Department of Labor and the foreseeable victim of the uncorrected safety hazard. This is especially apparent in light of the stated legislative purpose to reduce the incidence of deaths caused by preventable work-related accidents. Therefore, Poitras was a member of the class to whom the state specifically owed a duty.\\nIII. The Discretionary Function\\nAlthough the decision to inspect a site is a discretionary act, the negligent performance of that inspection is a ministerial function and thus not immune. Since it was the failure to follow up on the inspection which formed the basis of Wallace's complaint, not the initial decision to inspect, the state would not be immune from liability on the theory that its actions or inaction could be characterized as a discretionary function.\\nIn our consideration of the policy implications of a denial of immunity in Adams, we noted that there sometimes exists a possibility that imposition of liability for negligent inspection might deter the state from undertaking inspections at all. The state in this case has argued that a finding of liability on its part would encourage safety inspectors to avoid inspecting work sites in the future, in order to protect themselves from liability. In this context, the state has also contended 'that once a violation has been detected, the spectre of liability would require an inspector to be present on a construction site at all times to insure that it did not recur. This policy argument is not persuasive, given the sweeping revision of Title 18, making mandatory the enforcement of safety regulations in most instances.\\nThe 1973 amendments to Title 18 established a division of occupational safety and health within the State Department of Labor, and authorized state OSHA inspectors to make unannounced inspections of virtually any establishment. If any employee in the state so requests, the state inspectors have a mandatory duty to inspect the site requested, as long as they have reasonable grounds to believe a safety violation exists on that site. If a violation is discovered upon inspection, the Department of Labor must issue a citation and fix the time for abatement of the hazard. Furthermore, once a citation has been issued, the Department must notify the employer of the proposed penalty for the violation; if the employer does not appeal this penalty to the OSHA review board within fifteen days, then the citation and penalty become final and non-reviewable. Finally, the duties of the Department of Labor have been changed to include mandatory enforcement of occupational safety and health standards which are at least as stringent as those promulgated by the U.S. Secretary of Labor pursuant to the Federal O.S.H.A. The statute itself now specifically prohibits placement of equipment near electrical power lines unless a warning sign is posted and barriers are installed to protect the equipment from being electrified. Because the statute now imposes upon the state a duty to enforce the safety provisions once violations have been discovered, the state's policy argument for retaining its immunity is moot.\\nWe find that the State Department of Labor had a duty to use due care in attempting to abate the hazardous operation of the backhoe near high voltage lines; that this duty was owed to Poitras; and that the state has no immunity under AS 09.50.250. Therefore, the superior court's order granting summary judgment is REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.\\nERWIN, J., did not participate.\\n. 555 P.2d 235 (Alaska 1976).\\n. There is conflicting evidence as to whether the boom of the crane actually came into contact with the Chugach line or merely was sufficiently close to cause electricity ,to arc to the boom.\\n.The oiler's duties include acting as a safety observer; he watches the machine to prevent anything from interfering with it, and he observes the workers in ,the ditch.\\n. 555 P.2d at 239-40.\\n. Prior to amendment in 1973, AS 18.60.010 provided:\\nLegislative intent. (a) The legislature finds that preventable accidents are the leading cause of death in the state, that accidents cause nearly one-fourth of all deaths of the white race in the state and as much as 82 per cent of all deaths in certain age groups; that the proportion of accidental deaths to all deaths is three .times as high in the state as in other parts of the United States where intensive accident prevention campaigns are conducted; and that an unknown but proportionately as great a rate of nonfatal accidents is sustained in the state.\\n(b) For these reasons it is found , and declared necessary to undertake a program to reduce the incidence of preventable accidents in the state.\\n.Prior to amendment in 1973, AS 18.60.020 provided:\\nRules and regulations. The Department of Labor may issue the orders, rules and regulations necessary to carry out the purposes of \\u00a7 10-100 of this chapter.\\n. AS 23.05.060 provides in part:\\nThe department may\\n(1) enforce all state labor laws;\\n. AS 23.05.100 provides in part:\\nThe department may\\n(2) make inspections for the proper enforcement of all state labor laws;\\n.Prior to amendment in 1973, AS 18.60.075 (b) provided:\\nIf the commissioner of labor determines that the condition of an employment site or part of the site creates a serious hazard to the safety of the employees a,t the site, he shall give written notice of the section of the General Safety Code which has been violated to the employer. After notice is given the commissioner of labor may order the employment site or part of the site closed and the employees removed from it until the condition is corrected. Employees shall be permitted on the employment site to correct the unsafe condition.\\n. Id.\\n. 555 P.2d at 240.\\n. Adams v. State, 555 P.2d 235, 241 (Alaska 1976) and cases cited therein at n. 12.\\n. See AS 18.60.010(a), supra n. 5.\\n. Adams v. State, 555 P.2d 235, 244 (Alaska 1976).\\n. AS 18.60.055 provides :\\nDivision of occupational safety and health. There is established in the department a division of occupational safety and health to be administered by a director responsible to the commissioner. Minimum qualifications shall be established for employees of the department acting as safety inspectors. These qualifications shall include, as a minimum requirement, at least five years general work experience in the field they are assigned to inspect.\\n. AS 18.60.083(a)(2) provides:\\n(2) inspect and investigate during regular working hours and at other reasonable times, and with reasonable limits and in a reasonable manner, a place of employment and all pertinent conditions, structures, machines, devices, equipment and materials, and to question privately an employer, owner, operator, agent or employee.\\n. AS 18.60.088 provides in part:\\nEmployee requests for special inspection. (a) An employee or a representative of employees who believe that a violation of a safety or health standard exists that threatens physical harm or that an imminent danger exists, may request an inspection by giving notice of the violation or danger .to the department. The notice shall be in writing and set out with reasonable particularity the grounds for the notice and be signed by the employee or the representative of the employees. If, upon receipt of the notice, the department determines that there are reasonable grounds to believe that a violation or danger exists, the department shall make a special inspection as soon as practicable. If the department determines there are no reasonable grounds to believe that a violation exists, the department shall notify in writing .the employee or the representative of the employees of that determination.\\n. AS 18.60.091, provides in part:\\nCitations, (a) If, upon inspection or investigation, the department believes that an employer has violated a provision of \\u00a7 10-105 of this chapter that is applicable to the employer, the department shall with reasonable promptness issue a citation to the employer. Each citation shall be, in writing and shall describe with particularity the nature of the violation, including reference to ,tlie provisions of the chapter or any order, rule or regulation alleged to have been violated, and shall fix a reasonable time for abatement of the violation. Tlie department may prescribe procedures for the issuance of a notice instead of a citation with respect ,to minor violations which have no direct or immediate relationship to safety or health.\\n. AS 18.60.093 provides in part:\\nEnforcement procedures, (a) If, after an inspection or investigation, the department issues a citation, the commissioner shall, at a reasonable time after the termination of the inspection or investigation, notify the employer by certified mail of the penalty proposed to be assessed and that .the employer has 15 working days within which to notify the commissioner and the OSHA Review Board that he wishes to contest the citation or proposed assessment of penalty. If, within 15 working days from the receipt of the notice issued by the commissioner, the employer fails to notify the OSHA Review Board that he intends to contest the citation, or proposed assessment of penalty, the citation and the assessment, as proposed, shall be considered final and not subject to review by any court.\\n. AS 18.60.030(6) provides:\\nDuties of Department of Labor. The Department of Labor shall\\n(6) establish and enforce occupational safety and health standards that prescribe requirements for safe and healthful working conditions for all employment, including state and local government employment, and the requirements are to be at least as effective as those requirements promulgated by the United States Secretary of Labor under \\u00a7 6 of Public Law 91-596 [29 U.S.C. \\u00a7 651-78] ;\\n. AS 18.60.670 provides :\\nProhibition against placement of equipment near electrical power lines and conductors. No person individually or through an agent or employee may\\n(1) place any type of tool, equipment, machinery or material which is capable of lateral, vertical or . swinging motion, within 10 feet of a high voltage overhead electrical line or conductor;\\n(2) store, operate, erect, maintain, move or transport tools, machinery, equipment, supplies, materials, apparatus, buildings or other structures within 10 feet of a high voltage overhead electrical line or conductor.\\n.AS 18.60.675 provides :\\nPosting of warning sign before operation.\\nNo person individually or through an agent or employee may operate a crane, derrick, power shovel, drilling rig, hoisting equipment, or similar apparatus, any part of which is capable of vertical, lateral or swinging motion, unless tlie operator or his employer posts and maintains in plain view of the operator, a durable warning sign legible at 12 feet, which reads as follows: 'It is unlawful to operate this equipment within 10 feet of high voltage lines.'\\nAS 18.60.680 provides:\\nPlacement of barriers for temporary work. Before a person is going to temporarily engage in work or other activity in closer proximity to a high voltage line or conductor than is permitted by \\u00a7 670 of this chapter, he shall immediately notify the operator or owner of the high voltage line or conductor of the work to be performed and make appropriate arrangements, with payment satisfactory to the operator, for the installation of temporary mechanical barriers, temporary deenergization and grounding of ,tlie conductors, or a temporary raising of tlie conductors. Costs incurred by an operator or owner of a high voltage line or conductor in providing barriers, de-energization, and grounding as specified in this section shall be paid by the person engaging in the work which requires these protective measures.\"}"

alaska/10476803.json

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+"{\"id\": \"10476803\", \"name\": \"Conrad B. MILLER and Lowell P. Jenkins, Appellants, v. NORTH POLE CITY COUNCIL and City Clerk, Appellees\", \"name_abbreviation\": \"Miller v. North Pole City Council\", \"decision_date\": \"1975-03-18\", \"docket_number\": \"No. 2170\", \"first_page\": \"1013\", \"last_page\": \"1017\", \"citations\": \"532 P.2d 1013\", \"volume\": \"532\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T17:36:11.856572+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, JJ.\", \"parties\": \"Conrad B. MILLER and Lowell P. Jenkins, Appellants, v. NORTH POLE CITY COUNCIL and City Clerk, Appellees.\", \"head_matter\": \"Conrad B. MILLER and Lowell P. Jenkins, Appellants, v. NORTH POLE CITY COUNCIL and City Clerk, Appellees.\\nNo. 2170.\\nSupreme Court of Alaska.\\nMarch 18, 1975.\\nJohn Rosie, Fairbanks, for appellants and cross-appellees.\\nBarry W. Jackson, Daniel T. Saluri, Fairbanks, for appellees and cross-appellants.\\nBefore RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, JJ.\", \"word_count\": \"2385\", \"char_count\": \"14243\", \"text\": \"BOOCHEVER, Justice.\\nThis appeal arises out of the denial by the City Council of the City of North Pole of appellants' declaration of candidacy for City Council positions. On October IS, 1973, appellants Miller and Jenkins tendered their declarations of candidacy, along with the $5.00 filing fee, to the North Pole City Clerk who accepted the tender. The declarations were then taken to the City Council, and in a special pre-election meeting held on October 17, 1973, the City Council rejected appellants' declarations of candidacy and disallowed the placing of appellants' names on the ballot for the upcoming election on the ground that appellants failed to satisfy the residency requirements of the North Pole Home Rule Charter Section 2.2(a). On October 18, 1973, a certified letter was mailed to both Miller and Jenkins informing them of the Council's actions.\\nIn a complaint filed on October 23, 1973, Miller and Jenkins sought a declaratory judgment to have themselves declared residents of the City of North Pole. They also sought to have declared invalid the action of the City Council in rejecting their declarations of candidacy, and in designating City Council seats as Seats A, B & C. Shortly thereafter, appellants herein filed a motion for a temporary restraining order which was denied in a hearing held on November 2, 1973. In denying the motion, the court relied on the failure of plaintiffs Miller and Jenkins to show that irreparable harm would result if the restraining order did not issue. The election went ahead as scheduled on November 6, 1973 with Miller and Jenkins receiving a substantial number of write-in votes. On November 26, Miller and Jenkins sought a preliminary injunction to prevent those elected in the recent election from taking office. The preliminary injunction was denied on November 29, 1973, the superior court ruling that granting the injunction would be more harmful than denying it.\\nThe case came to trial on December 20, 1973. Plaintiffs Miller and Jenkins called two witnesses, both of whom testified to plaintiffs' respective voter registration addresses. One of the witnesses, the North Pole City Clerk, testified that Mr. Miller had registered to vote in and had signed the voter sign-in sheet in North Pole municipal elections since 1969. The City-Clerk further testified that Mr. Jenkins had registered to vote and signed the voter sign-in sheet in the 1969 and the 1971 through 1973 North Pole municipal elections.\\nOn January 11, 1974, Judge Taylor signed defendants' proposed findings of fact and conclusions of law to the effect that the City Council acted within its authority in excluding plaintiffs' names from the ballot and that, at trial, the plaintiffs had failed to prove residency within the City of North Pole for the requisite period. The trial court further concluded that since neither plaintiff was qualified to run for office in the election at issue, neither had standing to question the designation of seats on the ballots used therein. Judgment was entered for defendants on January 23, 1974, and attorney's fees in the amount of $750.00 were awarded to defendants. Miller and Jenkins appeal from this judgment, and the City of North Pole and the City Clerk dispute the attorney's fee award on cross-appeal.\\nBefore proceeding to a consideration of the issues presented by the parties to this appeal, we must first deal with the question of mootness. Concerning the designation of seats on the ballot, appellants informed the court at oral argument that the City of North Pole has changed the ballot structure so that seats are no longer designated and candidates now run at large. Since this is the result which appellants wished to achieve by court action, we consider the seat designation no longer before us. Also, as admitted by appellants at oral argument, the case is also moot regarding appellant Jenkins since he died subsequent to the 1973 election and the proceedings below. However, the case is not moot as to Miller. Nor is mootness a bar to our review of the question concerning the City Council's authority to pass on the qualifications of candidates in pre-election meetings. We have previously recognized an exception to the mootness doctrine where it application would remove from judicial review recurring problems in which there is a public interest. The issue pertaining to the City Council's authority comes squarely under that exception.\\nIn determining that the City Council acted within its authority in denying appellants' declarations of candidacy in a pre-election special meeting, the trial court relied on Home Rule Charter \\u00a7 2.2(c) and Ordinance \\u00a7 7 \\u2014 38(d) . We find this reliance misplaced. Each of these provisions empowers the City Council to decide all questions as to the qualifications and election \\\"of its members\\\" (emphasis added). Logically, a person cannot be a member of the Council until he or she has been elected. Since Ordinance \\u00a7 7-38 (d) and Home Rule Charter \\u00a7 2.2(c) authorizes the City Council to judge the election and qualifications of its members, these provisions can only refer to a time subsequent to the election, and therefore provide no authority for such pre-election determination as occurred here. Support for this reading of the North Pole Home Rule Charter provision and Ordinance \\u00a7 7-38 (d) may be found in Banks v. Election Commissioners of Boston. Therein, the court wrote:\\nThe only ground set forth in the demurrers which merits our attention relates to the jurisdiction of the court because of St. 1909, c. 486, \\u00a7 SO, as amended by St. 1924, c. 479, \\u00a7 IS, which in part reads, \\\"The city council shall be the judge of the election and qualifications of its members\\\". . . . It is clear, and no suggestion has been made to the contrary, that by St. 1895, c. 449, \\u00a7 4, the board has all the powers and duties relating to \\\"the determination of the results of elections\\\". Therefore, until the board determines such results and issues a certificate to one whom it has determined to have received the vote necessary for election, there does not exist anyone who is a \\\"member\\\" whose election and qualifications the city council may judge. . . . Up to the point that a certificate has been issued, at least, the matter is in control of the court, which may in proper proceedings direct the board to whom to issue the certificate. An adjudication to this effect does not trench upon the prerogatives of the legislative body, (citations omitted).\\nSimilarly, the Supreme Court of Monroe County, New York has stated:\\nSection 5-7 of such Charter, which provides that the Council \\\"is the judge of the election and qualification of its members\\\" relates to the incoming Council. The legislative body to which a member is elected has the power to judge the election and qualification of its members, not the body in office at the time of the election. . . .No Council may sit in judgment of the qualification of members elected to a succeeding Council. Otherwise, the orderly transition of government could be obstructed, the will of the voters frustrated and public officers perpetuated in office. Accordingly, it is held that the present Council, of which petitioner is not a member, is without jurisdiction to judge his election and qualifications.\\nAs a necessary consequence of our holding that the City Council of North Pole was without authority to pass upon the qualifications of any candidate for City Council before the election, it follows that Miller and Jenkins were improperly deprived of the right to have their names appear on the ballot. The only official authorized to make pre-election determinations of qualification for candidacy, the City Clerk, accepted both appellants' declarations of candidacy thereby implicitly finding compliance with all requirements necessary to candidacy including the requisite residency. Since the City has agreed that should Miller and Jenkins prevail on the question of their qualifications for candidacy a new election would be held, and since we find that the City Clerk's determination that the appellants' were qual ified for candidacy was never properly challenged, we remand to the superior court for the purpose of ordering that the election of November 6, 1973 be nullified as to the seat sought by Mr. Miller and that a new election be held, as expeditiously as possible, to fill the City Council position thus rendered vacant.\\nBecause, under our resolution of the issues involved herein, the City of North Pole and the City Clerk do not prevail on any issue, the lower court award of attorney's fees to them is vacated.\\nReversed.\\n. The minutes of the meeting were as follows : A special meeting was held on October 17, 1973, called for by the City Council, for the purpose of determining the qualifications of the six candidates who filed for councilmen seats in, the upcoming City of North Pole City Elections to be held on November 6, 1973. At this time information was brought forward that Mr. C. B. Miller and Mr. Lowell Jenkins do not meet the residency requirements. Because of this a motion was made by Mr. Cunningham, seconded by Mrs. Ford that Mr. Jenkins and Mr. Miller's names be omitted from the ballot on the ground of violation of Chapter 2, Sec. 2.2, Paragraph (a) of the City of North Pole Home Rule Charter as they are not and have not been residents of the City as required therein. Roll call vote showed unanimous approval.\\nThese minutes were subsequently amended in a regular meeting held on November 5, 1973.\\nMinutes of special meeting of October 17, 1973. Mr. Jackson asked if it was the finding of the city council that Mr. Jenkins and Mr. Miller do not in fact meet the residency requirements. He stated that he would like the minutes to show that it was determined to the council's own satisfaction that they do not meet the residency requirements. Mrs. Ford made a motion to accept the minutes of October 17th, as amended, seconded by Mrs. Lewis and roll call showed unanimous approval.\\n. Section 2.2(a) of the Home Rule Charter states:\\nTo be eligible to file a nominating petition for election to a City office, a person shall be an elector of the City and shall have been a resident of the City or of territory annexed to the City, or shall have had a combination of residence in the City and in the annexed territory for a period of not less than two (2) years preceding the date of the filing of such petition and shall be at least twenty-one (21) years of age.\\n. Doe v. Smith, 487 P.2d 47, 53 (Alaska 1971) ; In re G.M.B., 483 P.2d 1006, 1008 (Alaska 1971).\\n. Section 2.2(c) provides : \\\"The Council shall be the judge of the election and of the qualifications of its members.\\\"\\n. Section 7-38(d) states:\\nAfter the canvass and the filing of the records of the meeting of the canvassing board, the City Clerk shall within two (2) days, make and sign a certificate of election for each person declared thereby to be elected and shall deliver the same to him upon demand. A certificate of election is prima facie evidence of the fact therein contained but the City Council shall decide all questions as to the qualifications and election of its own members.\\n.We are not here confronted with a question involving a council passing on the qualifications of its members. Accordingly, we do not here consider the jurisdiction of the courts over such an issue. See E. McQuillin, Municipal Corporations \\u00a7 12.93 at 412-17 (3rd ed. rev. Dray 1973).\\n. 327 Mass. 509, 99 N.E.2d 755, 757-58 (Mass.1951).\\n. Roche v. Lamb, 61 Misc.2d 633, 306 N.Y.S.2d 515, 517 (Monroe Co.Sup.Ct.1969) (citation omitted). See also Raynovich v. Romanus, 450 Pa. 391, 299 A.2d 301, 303 (Pa.1973) (councilman may not vote for himself nor may he vote on any matter in which he has a personal or pecuniary interest); Robinson v. Hays, 62 S.W.2d 1007, 1008 (Tex.Ct.Civ.App.1933) (determining election contest is quasi-judicial matter requiring exercise of judicial discretion on the part of those making the determination, thus a candidate for re-election to city council who is a party to an election contest cannot participate in official capacity in determining validity of election).\\n.During the course of the hearing on plaintiffs', appellants herein, motion for a temporary restraining order, counsel for the City of North Pole and the City Clerk stated:\\nYour Honor, the city understands that if the plaintiffs are successful after the election is held, that the election would be a nullity, at least as to the seats that they filed for; and that a new election would have to be held. .\\nAgain, at the hearing on the motion for a preliminary injunction, counsel for the defendants, appellees here, said:\\nWe still maintain that we are prepared, if either of these plaintiffs are found by the court to have been illegally deprived of the right to run for office, to have an election for that seat that they desired to run for.\\n. Should any member of the City of North Pole electorate wish to challenge the City Clerk's determination, the proper fashion is by means of a suit filed against the City Clerk to compel removal of Mr. Miller's name from the list of eligible candidates. In the event that such a challenge is made on the basis of Mr. Miller's failure to satisfy the residency requirement of Section 2.2(a) of the North Pole Home Rule Charter, we note at this time our agreement with the trial court's finding that AS 15.05.020(10) does not apply to municipal elections. That section, pertaining to state elections, provides that the address of a voter which appears on his official voter registration card is presumptive evidence of the person's voting residence.\\n. Since City Council positions are for a term of three years, the relief granted is in no sense illusory. We note again that such relief applies only to Mr. Miller, the case being moot with regard to Mr. Jenkins.\"}"

alaska/10549764.json

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+"{\"id\": \"10549764\", \"name\": \"Calvin B. TRUMBLY, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Trumbly v. State\", \"decision_date\": \"1973-11-09\", \"docket_number\": \"No. 1737\", \"first_page\": \"707\", \"last_page\": \"710\", \"citations\": \"515 P.2d 707\", \"volume\": \"515\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T20:33:28.854173+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before RABINOWITZ, C. J., and CONNOR and BOOCHEVER, JJ.\", \"parties\": \"Calvin B. TRUMBLY, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Calvin B. TRUMBLY, Appellant, v. STATE of Alaska, Appellee.\\nNo. 1737.\\nSupreme Court of Alaska.\\nNov. 9, 1973.\\nOlof Hellen and Bryan Timbers, Asst. Public Defenders, Herbert Soli, Public Defender, Anchorage, for appellant.\\nDaniel W. Hickey, Asst. Atty. Gen., John E. Havelock, Atty. Gen., Juneau, for appellee.\\nBefore RABINOWITZ, C. J., and CONNOR and BOOCHEVER, JJ.\", \"word_count\": \"1635\", \"char_count\": \"10110\", \"text\": \"OPINION\\nRABINOWITZ, Chief Justice.\\nAfter having initially been charged with a felony, appellant Trumbly pled guilty to the misdemeanor offense of simple assault. Thereafter, Trumbly was sentenced to 120 days imprisonment. Service of this period of incarceration was suspended and appellant was placed on probation for a period of two years. Among the conditions of probation which were imposed, Trumbly was required to report periodically to his probation officer and was prohibited from leaving a designated geographical area without prior consent of this officer.\\nShortly after imposition of sentence, Trumbly failed to report as required and left the State of Alaska without having obtained the requisite approval. The probation service then moved to revoke Trum-bly's probation. A revocation hearing was held at which Trumbly personally appeared and was represented by counsel. During the course of the hearing, Trumbly admitted that he had not reported as required, and that he had departed the State of Alaska without approval of his probation supervisor. Trumbly's defense to the effort to revoke his probation was that of insanity. It was Trumbly's position that he suffered from a mental disease or defect which deprived him of the substantial capacity to conform his conduct to the conditions of probation. At the hearing Trum-bly produced expert psychiatric testimony in support of this defense. No rebuttal or contradictory psychiatric evidence was introduced by the State of Alaska.\\nOne of the arguments advanced by the state in opposition to Trumbly's defense of insanity was that the defense is inappropriate in a probation revocation proceeding. Enlarging on this thesis, the state contends that the purpose of a probation revocation hearing is not to adjudicate criminal responsibility, and that it is not necessary to show the probationer acted with any particular mens rea in violating the conditions of his probation. Thus, the state would have us conclude that the defense of insanity is not available in a probation revocation hearing since this type of proceeding has been traditionally limited to adjudication of guilt or criminal responsibility.\\nAt the conclusion of the revocation hearing, the superior court decided that Trum-bly's probation should be revoked. Trum-bly was then sentenced to six months incarceration, execution of the sentence was suspended and Trumbly placed on probation. A condition of probation was that Trumbly was to serve 30 days in a correctional facility. Trumbly now brings this appeal from the superior court's revocation of his probation.\\nTaking a narrow view of the case, the superior court's revocation order could be affirmed on the ground that, as trier of the fact, the superior court was not bound to accept Trumbly's expert psychiatric testimony. In other words, it was within the exclusive province of the trial judge, as fact determiner, to evaluate Trumbly's psychiatric testimony and to accord to it such weight as he deemed appropriate. Thus, assuming the defense of insanity is available in a probation revocation hearing, we believe the trial judge could reasonably have discounted Trumbly's expert testimony, and concluded this evidence was insufficient to put the state to the task of proving Trumbly's sanity at the times he failed to report and departed from Alaska without permission.\\nOn the other hand, we think the short answer to Trumbly's contention is that the defense of insanity is irrelevant to the issues which are to be determined in a probation revocation hearing. At such a hearing, the inquiry is focused on whether the probationer engaged in conduct viola- tive of the conditions under which he was permitted to escape incarceration. We are not persuaded that a probationer should be able to prevail upon an assertion that his probation should not be revoked because mental illness renders him unable to conform his conduct to the terms of his probation. Conformity to reasonable and lawful terms of probation is a prerequisite to the continuation of probationary status.\\nA 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. In Morrissey v. Brewer, 408 U.S. 471, 479-480, 92 S.Ct. 2593, 2599, 33 L.Ed. 2d 493 (1973) Chief Justice Burger wrote\\n\\\"The first step in a [parole] revocation decision involves a wholly retrospective factual question: whether the parolee has in fact acted in violation of one or more of the conditions of his parole. Only if it is determined that the parolee did violate the conditions does the second question arise: should the parolee be recommitted to prison or should other steps be taken to protect society and improve chances of rehabilitation.\\nThe requirement that probation revocation follow after a showing of \\\"good cause\\\" requires the trial judge to find that continuation of probationary status would be at odds with the need to protect society and society's interest in the probationer's rehabilitation. Revocation should follow violation of a condition of probation when that violation indicates that the corrective aims of probation cannot be achieved.\\nIn Snyder v. State, 496 P.2d 62, 63 (Alaska 1972), we quoted with approval United States v. Feller, 17 Alaska 417, 424, 156 F.Supp. 107, 110 (1957), where it was said:\\nThe trial judge who imposed the sentence has certainly broad discretionary powers to revoke probation, and the probationer may not complain if he has been given ample opportunity to appear before the Court imposing the sentence, and he has 'been permitted to combat the accusation or charges against him and there has been no abuse of discretion on the part of the Court.\\nReview of the record in the instant case leaves us uncertain as to whether or not the trial court's revocation of Trumbly's probation was arbitrary or reflective of a conscientious judgment which served the ends of justice. More particularly we cannot say with the requisite degree of assurance that a conscientious judgment was made by the trial court in committing Trumbly to prison for a period of 30 days. As was noted previously, Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593 33 L. Ed.2d 484 (1972) and Gagnon v. Scarpelli, 411 U.S. 778/36 L.Ed.2d 656 (1973) illuminate the dual nature of a probation revocation hearing. The first facet of such a hearing involves \\\"a wholly retrospective factual question: whether the parolee has in fact acted in violation of one or more conditions of his parole.\\\" In the case at bar it is undisputed that Trumbly acted in violation of the terms of his probation. The second aspect of the probation hearing requires a determination as to the disposition to be made once violation of the conditions of probation are established. Trumbly's mental state at the time of the violation of the terms of his probation as well as at the time of the revocation hearing is relevant to the resolution of the second issue. It is possible that the superior court in fact considered the evidence relating to Trumbly's mental state in reaching its decision to incarcerate Trumbly. .On the other hand, since we find the record lacking in clarity in this regard, we deem a remand appropriate in order to permit the trial court to review its disposition in light of the foregoing.\\nOne other aspect of the case should be mentioned. At oral argument, this court, on its own motion, questioned counsel concerning the validity of the sentence the superior court entered upon its revocation of Trumbly's probation. Specifically, our questioning focused upon the fact that initially Trumbly was sentenced to 120 days imprisonment, service' of which was suspended and Trumbly placed upon probation for a two-year period. In revoking Trum-bly's probation, the superior court imposed a longer period of incarceration than was called for in the original sentence. More particularly, the superior court imposed a sentence of 6 months with all but 30 days suspended upon probation. In view of the fact that Trumbly did not question the legality of this sentence, we think it appropriate that this question be remanded to the superior court for the purpose of permitting the parties to present arguments regarding the validity of the sentence in question, and to permit the trial court to review the sentence it imposed.\\nRemanded.\\nERWIN and FITZGERALD, JJ., not participating.\\n. In Bowker v. State, 373 P.2d 500, 501-502 (Alaska 1962), we said :\\nWe shall not adopt a rule which would treat medical testimony as conclusive merely because it is not disputed by other medical testimony. The jury should be free to make an independent analysis of the facts on which the expert's opinion rests, and thus exercise their historic function of passing on the credibility of the witness.\\n. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).\\n. AS 12.55.110.\\n. See DiCerbo, When Should Probation Be Revolted? 30 Fed.Prob., June 1966,' at 11; American Bar Association Project on Standards for Criminal Justice, Standards Relating to Probation \\u00a7 5.1 (Approved Draft 1970). Compare Model Penal Code \\u00a7 301:3 (P.O.D. 1962).\\n.In Snyder v. State, 496 P.2d 62, 63 .(Alaska 1972), we further quoted that portion of the Feller case where the court said:\\nWhat is required in such hearings is the exercise of conscientious judgment, and not arbitrary action; that the discretion of the Court has not been abused; and that the facts revealed at the hearing satisfy the Court that the modification or revocation of the sentence, or a part thereof, will serve the ends of justice.\"}"

alaska/10551848.json

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+"{\"id\": \"10551848\", \"name\": \"Russell BREESE, Father and next friend of Michael Breese, a minor, Appellant, v. Elmer C. SMITH, Principal, Main Junior High School, George E. Taylor, Superintendent, Fairbanks North Star Borough School District, et al., Appellees\", \"name_abbreviation\": \"Breese ex rel. Breese v. Smith\", \"decision_date\": \"1972-09-11\", \"docket_number\": \"No. 1614\", \"first_page\": \"159\", \"last_page\": \"177\", \"citations\": \"501 P.2d 159\", \"volume\": \"501\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T19:57:08.735744+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BONEY, C. J\\u201e RABINOWITZ, CONNOR and ERWIN, JJ., and VICTOR D. CARLSON, Superior Court Judge.\", \"parties\": \"Russell BREESE, Father and next friend of Michael Breese, a minor, Appellant, v. Elmer C. SMITH, Principal, Main Junior High School, George E. Taylor, Superintendent, Fairbanks North Star Borough School District, et al., Appellees.\", \"head_matter\": \"Russell BREESE, Father and next friend of Michael Breese, a minor, Appellant, v. Elmer C. SMITH, Principal, Main Junior High School, George E. Taylor, Superintendent, Fairbanks North Star Borough School District, et al., Appellees.\\nNo. 1614.\\nSupreme Court of Alaska.\\nSept. 11, 1972.\\nStephen C. Cowper, Fairbanks, for appellant.\\nCharles E. Cole, Fairbanks, for appel-lees.\\nBefore BONEY, C. J\\u201e RABINOWITZ, CONNOR and ERWIN, JJ., and VICTOR D. CARLSON, Superior Court Judge.\", \"word_count\": \"10766\", \"char_count\": \"66515\", \"text\": \"OPINION\\nRABINOWITZ, Justice.\\nThis appeal requires that we resolve a hair length controversy arising from the enforcement of a junior high school grooming regulation. If the regulation in the case at bar is upheld, the student will be denied a public education unless he conforms his hair style to the regulation's standards.\\nMichael Breese enrolled in the seventh grade class at Main Junior High School in Fairbanks on September 13, 1971, shortly after the fall term had begun. Some three years prior thereto, Elmer C. Smith, principal of Main, had promulgated an unwritten hair regulation which required that male students' \\\"hair must not be down over the ears, over the eyes, . . . [or] over the collar.\\\"\\nFrom the date of his enrollment, the length of Breese's hair violated the school regulation. School officials immediately informed Breese that his hair length was out of conformity with the rule and that his hair would have to be cut. With the knowledge and support of his father, Breese refused to cut his hair to the school standards. Smith suspended Breese from Main on September 21, 1971. Thereafter, Smith recommended to the School Board, Fairbanks North Star Borough School District, that Breese be expelled for wilful disobedience of the hair regulation.\\nOn September 22, 1971, an action in Breese's behalf was commenced in superior court seeking injunctive relief. Five days later, the superior court issued an ex parte temporary restraining order enjoining Smith and the Superintendent of Schools of the Fairbanks North Star Borough School District from denying Breese permission to attend classes until a hearing could be held on Breese's application for a preliminary injunction.\\nOn the evening of October 7, 1971, the School Board convened and held a hearing to consider Smith's recommendation that Breese be expelled. After hearing Smith's testimony and other witnesses called by Smith, no testimony having been adduced in Breese's behalf, the Board accepted the recommendation, and expelled Breese on the following day. Thereafter a hearing on the merits of Breese's application for preliminary injunction was held in the superior court on October 15, 1971. The parties produced conflicting evidence concerning the effects of Breese's hair, the effects of long hair generally, and the causal relationships between long hair, disruptive behavior, and academic performance. The superior court subsequently entered a memorandum opinion and order in which it found the school's hair regulation reasonable, entered judgment against Breese, and dissolved the outstanding temporary restraining order. Breese now appeals the decision of the superior court.\\nInitially, we are confronted with the threshold question of whether this court .possesses appellate jurisdiction to consider the superior court's decision. Breese contends that the lower court's memorandum opinion and order constitute a \\\"final judgment\\\" within the intendment of Rule 6 of the Alaska Supreme Court Rules and AS 22.05.010, and that therefore the jurisdiction of this court is properly invoked. Smith and the School Board, on the other hand, urge that the superior court's decision is not a \\\"final judgment\\\" within the meaning of Rule 6, but rather, is an interlocutory order dissolving an injunction and reviewable only under Rule 23(a). Rule 27 provides that a petition for review must be filed within ten days, or if \\\"good cause\\\" for an extension of time is shown, then within an additional ten day period. Smith and the School Board argue that since review of an interlocutory prder may be obtained only by way of petition for review, and that in the instant case, no such petition was timely filed by Breese, this court lacks appellate jurisdiction and the appeal must be dismissed.\\nWe are persuaded that Breese's interpretation of the superior court's decision is correct. The superior court's memorandum opinion and order constitute a \\\"final judgment\\\" within the meaning of Rule 6. We have in the past interpreted a memorandum opinion as a \\\"final judgment\\\" for purposes of appeal where such opinion \\\"clearly evidences the judge's intent to presently and finally dispose\\\" of the matter pending before him. Here, there is no question that the superior court intended to completely and finally dispose of Breese's complaint for injunctive relief. In its opinion, the superior court did more than merely dissolve the outstanding temporary restraining order; it also considered the parties' claims and evidence, balanced the competing interests in favor of the \\\"orderly management of our schools,\\\" held that the administrative hair regulation is a \\\"reasonable regulation,\\\" and rendered judgment in favor of Smith and the School Board. The superior court, in short, manifested its intention to finally dispose of Breese's claim for relief. We therefore conclude that this court possesses appellate jurisdiction in the case at bar.\\nWe next turn to the merits of this litigation. In regard to this the superior court, in its memorandum opinion and order, stated in part that:\\nThe Board's decision should stand unless it flies in the face of a constitutionally prohibited interference to a citizens [sic] rights. This Court is not persuaded that it has.\\nIn reviewing the superior court's decision, this court is called upon to determine whether the trial court erred in holding that none of Breese's constitutional rights had been violated by the School Board's decision to expel him for wilful disobedience of the hair length regulation in question. Resolution of this issue in turn involves consideration of the question of whether a male junior high school student's decision to fashion his own appearance by adopting a long hair style is constitutionally protected. The trial court found no express constitutional quarantee of the right to wear long hair in school and further concluded that such right could not be found within the parameters of any emerging constitutional notion of \\\"right to privacy.\\\"\\nThe United States Supreme Court has not yet passed on the question of whether a student's personal appearance is constitutionally protected. In the landmark case of Tinker v. Des Moines Independent Community School District, wherein the Supreme Court of the United States held that junior high school students had a right under the first amendment to wear black armbands in school in order to dramatize their opposition to the Vietnam war, the question of hair styles was expressly distinguished. In that case, the Court stated :\\nThe problem posed by the present case does not relate to regulation of the length of skirts or the type of clothing, to hair style, or deportment.\\nSince Tinker, the Supreme Court has consistently declined to consider the matter of school hair regulations and dress code. For example, the Court recently denied a petition for certiorari in Swanquist v. Livingston, thereby leaving a Seventh Circuit decision standing which invalidated a hair regulation. In the same term the Supreme Court's denial of certiorari in Olff v. East Side Union High School District left undisturbed a Ninth Circuit ruling that a public school district's long hair regulation did not violate the first amendment, right to privacy, fundamental liberties or due process rights.\\nThe question of personal appearances in public classrooms is one of the liveliest of current constitutional issues, and the after math of Tinker has witnessed a great proliferation of student-initiated suits in this area. In the absence of a definitive interpretation by the United States Supreme Court on the question of whether students have any constitutionally protected freedom to govern their individual appearances, the various circuits and district courts of the federal judiciary which have considered the matter are in disagreement. Similarly, the decisions of state courts which have considered the issue are also reflective of divergent views.\\nState and federal courts which have invalidated school hair regulations lack uniformity as to the precise nature and source of the students' rights. As a result, a variety of federal constitutional theories have been advanced. Some courts have embraced a first amendment rationale, made applicable to the states under the fourteenth amendment, and have held that long hair is a constitutionally protected form of expression. Others have grounded their opinions on a ninth amendment justification. Under this theory, \\\"re tained rights\\\" under the ninth amendment are binding on the states by virtue of the fourteenth amendment. Still other courts have resorted to the equal protection clause of the fourteenth amendment to invalidate hair regulations for male high school students. Several authorities have struck down hair length regulations as being unconstitutional deprivations of liberty under the due process clause of the fourteenth amendment. The emerging notion of the \\\"right to privacy,\\\" as found within the penumbra of the Bill of Rights mentioned by Justice Douglas in Griswold v. Connecticut, has also been advanced as the constitutional source of a student's right to wear long hair.\\nIn view of the conflict between the circuits in the federal judiciary, and the general lack of consensus among the authorities over federal constitutional theory, counsel for Smith and the School Board urges that this court abstain from deciding whether Breese has any rights under the federal constitution. We are inclined to agree with appellees that in the instant case avoidance of the federal thicket is the better course. We also concur, however, in Judge Breitenstein's observation, made in Freeman v. Flake, that:\\nThe states have a compelling interest in the education of their children. The states, acting through their school authorities and their courts, should determine what, if any, hair regulation is necessary to the management of their schools.\\nThus, whether Breese has a constitutional right to wear long hair and whether the school's hair length regulation is valid will be decided under Alaska's constitution.\\nTwo provisions of Alaska's constitution are relevant in the instant case. First, article I, section 1 affirms that all persons in the state of Alaska are granted certain inherent and natural rights. More precisely, that section states:\\nThis constitution is dedicated to the principles that all persons have a natural right to life, liberty, the pursuit of happiness, and the enjoyment of the rewards of their own industry; that all persons are equal and entitled to equal rights, opportunities, and protection under the law; and that all persons have corresponding obligations to the people and to the State.\\nThe second relevant provision is article VII, section 1, which guarantees all children of Alaska a right to public education. This section of Alaska's constitution provides :\\nThe legislature shall by general law establish and maintain a system of public schools open to all children of the State, and may provide for other public educational institutions. .\\nWhile some of the terms of article 1, section 1 parallel the language of various federal constitutional provisions, we have repeatedly held that this court is not obliged to interpret our constitution in the same manner as the Supreme Court of the United States has construed parallel provisions of the federal Constitution. Thus, in the case at bar, although sound analysis requires that we look to the various federal precedents that have interpreted provisions of the federal constitution that parallel Alaska's constitution, we are not necessarily limited by those precedents in expounding upon Alaska's constitution.\\nGiven this backdrop of constitutional interpretation we begin with the established premise that children are possessed of fundamental rights under the Alaska constitution. Moreover, we have previously stated that children's constitutional rights will not be denied in deference to governmental benevolence or popular social theories. Our decisions in RLR v. State and other cases involving constitutional rights of children are in accord with the United States Supreme Court's statement in Tinker that:\\nStudents in school as well as out of school are \\\"persons\\\" under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State.\\nWe hold that under article I, section 1 of the Alaska constitution's affirmative grant to all persons of the natural right to \\\"liberty,\\\" students attending public educational institutions in Alaska possess a constitutional right to wear their hair in accordance with their personal tastes. In reaching this conclusion, we are cognizant of the fact that the term \\\"liberty\\\" is an illusive concept, incapable of definitive, comprehensive explication. Yet at the core of this concept is the notion of total personal immunity from governmental control : the right \\\"to be let alone.\\\" In 1891, the Supreme Court of the United States embraced Judge Cooley's famous definition of \\\"liberty\\\":\\nNo right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. As well said by Judge Cooley, \\\"The right to one's person may be said to be a right of complete immunity: to be let alone.\\\" (emphasis in the original).\\nMore recently the First Circuit in Richards v. Thurston, held that the right of students to determine their personal appearance is implicit in the liberty assurance of the due process clause. There the court said:\\nWe do not say that the governance of the length and style of one's hair is necessarily so fundamental as those substantive rights already found implicit in the \\\"liberty\\\" assurance of the Due Process Clause, requiring a \\\"compelling\\\" showing by the state before it may be impaired. Yet \\\"liberty\\\" seems to us an incomplete protection if it encompasses only the right to do momentous acts, leaving the state free to interfere with those personal aspects of our lives which have no direct bearing on the ability of others to enjoy their liberty. . . .\\nWe think the Pounding Fathers understood themselves to have limited the government's power to intrude into this sphere of personal liberty, by reserving some powers to the people. The debate concerning the First Amendment is illuminating. The specification of the right of assembly was deemed mere sur-plusage by some, on the grounds that the government had no more power to restrict assembly than it did to tell a man to wear a hat or when to get up in the morning. The x'esponse by Page of Virginia pointed out that even those \\\"trivial\\\" rights had been known to have been impaired \\u2014 to the Colonists' consternation \\u2014 but that the right of assembly ought to be specified since it was so basic to other rights. The Founding Fathers wrote an amendment for speech and assembly; even they did not deem it necessary to write an amendment for personal appearance. We con- elude that within the commodious concept of liberty, embracing- freedoms great and small, is the right to wear one's hair as he wishes. 424 F.2d at 1285 (citations omitted).\\nSimilarly, the Third Circuit reached the same conclusion in Stull v. School Board of Western Beaver Jr.-Sr. H.S.\\nHowever, it is our view that the First Circuit's approach [in Richards v. Thurston] was correct; we therefore prefer to follow it and hold that the governance of the length and style of one's hair is implicit in the liberty assurance of the Due Process Clause of the Fourteenth Amendment.\\nHairstyles have been the subject of great variety and individual taste and have traditionally been left to personal decision; they are the manifestations of our diverse and numerous individual personalities. The United States of America, and Alaska in particular, reflect a pluralistic society, grounded upon such basic values as the preservation of maximum individual choice, protection of minority sentiments, and appreciation for divergent lifestyles. The spectre of governmental control of the physical appearances of private citizens, young and old, is antithetical to a free society, contrary to our notions of a government of limited powers, and repugnant to the concept of personal liberty. It has been observed that \\\"[t]here are few things more personal than one's body and its appearance, and there could be few laws more destructive of the notion that there is a range of decisionmaking within which the individual is autonomous than a rule regulating physical makeup.\\\" Whatever else \\\"liberty\\\" may mean as used in article I, section 1 of the Alaska constitution, we hold that the term at least encompasses the fundamental personal right of students in our public schools to select their own individual hair styles without governmental direction.\\nThis Court takes judicial notice that hairstyles have altered from time to time throughout the ages. Sampson's locks symbolically signified his virility. Many of the Founding Fathers of this country wore wigs. President Lincoln grew a beard at the suggestion of a juvenile female admirer. Chief Justice Hughes' beard furnished the model for the frieze over the portico of the Supreme Court of the United States proclaiming \\\"equal justice under law.\\\" Today many of both the younger and the older generations have avoided the increased cost of barbering by allowing their locks or burnsides to grow to greater lengths than when a haircut cost a quarter of a dollar.\\nWhether hair styles be regarded as evidence of conformity or of individuality, they are one of the most visible examples of personality. This is what every woman has always known. And so have many men, without the aid of an anthropologist, behavioral scientist. psychiatrist, or practitioner of any of the fine arts or black arts.\\nWhile we have concluded that the right of students to fashion their own appearances by wearing their hair in accordance with their own individual preference in public schools is a fundamental constitutional right implicit in the concept of liberty as guaranteed by the constitution of Alaska, we do not hold that such right is absolute. There may be instances in which the state acting through a school administration would be justified in regulating the hair length of its citizenry. We are in accord with the observation made by the court in Bishop v. Colaw that \\\"personal freedoms are not absolute; they must yield when they intrude upon the freedom of others.\\\"\\nGiven our conclusion that a fundamental constitutional right is involved in the case at bar, we next consider the impact of such right on the question of the appropriate standard and burden of proof. In this regard, we have previously held that the state's encroachment upon an individual's constitutional rights is justifiable only upon a showing by the government of a compelling interest. More specifically, in Baker v. City of Fairbanks we indicated that:\\nIf an individual right is vested by the Constitution, the overriding demands of governmental efficiency must be of a compelling nature and must be identifiable as flowing from some enumerated constitutional power.\\nThe compelling interest standard is not a novel requirement in constitutional law, and has often been invoked by the United States Supreme Court in determining the validity of state regulations which violate fundamental federal constitutional rights. The use of this standard of proof is exemplified in Griswold.\\nIn a long series of cases this Court has held that where fundamental personal liberties \\u00e1re involved, they may not be abridged by the States simply on a showing that a regulatory statute has some rational relationship to the effectuation of a proper state purpose. \\\"Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling,\\\" . . . (citations omitted) .\\nWe think the compelling interest standard has merit and should be adopted in cases where a person's individual liberty, as guaranteed by the Alaska constitution, allegedly has been encroached upon. In applying this criterion to the'issues in the case at bar we must determine whether the record disclosed a compelling government interest necessitating the abridgment of the student's constitutionally protected right to fashion his own personal appearance. Once a fundamental right under the constitution of Alaska has been shown to be involved and it has been further shown that this constitutionally protected right has been impaired by governmental action, then the government must come forward and meet its substantial burden of establishing that the abridgment in question was justified by a compelling governmental interest.\\nWe recognize that courts in other jurisdictions have adopted different standards of proof in litigation of this character and have allocated burdens of proof in divergent ways. Some have imposed upon the state a \\\"substantial burden of justification,\\\" under which the state must show the furtherance of an \\\"important or substantial governmental interest.\\\" Other courts have employed the so-called \\\"traditional\\\" equal protection test, and have required that the state merely demonstrate the existence of a \\\"rational basis\\\" for its regulation encroaching upon a student's constitutional rights.\\nSmith and the School Board contend that this court should adopt as an appropriate standard of proof the formula articulated by Justice Harlan in his dissenting opinion in Tinker:\\n. . . I would, in cases like this, cast upon those complaining the burden of showing that a particular school measure was motivated by other than legitimate school concerns. . . .\\nSince we have held that the right \\\"to be let alone\\\" \\u2014 including the right to determine one's own hairstyle in accordance with individual preferences and without the interference of governmental officials or agents \\u2014 is a fundamental right under the constitution of Alaska, we reject the test proposed by Justice Harlan. Adoption of his standard would make this fundamental constitutional right dependent upon the subjective elements of motivation and good faith of school administrators. In short, we think adoption of the compelling interest standard best comports with the kind of ordered liberty which represents the core of Alaska's constitutional heritage and will afford the necessary degree of protection against attempted infringement of the students' individual constitutional right involved in this litigation.\\nBreese established the existence of a fundamental constitutional right and the encroachment thereof by the school hair regulation. We hold that on this record, Smith and the School Board have failed to prove that their interest in promulgating the hair length regulation is compelling. In their attempt to justify the rule, Smith and the School Board produced lay opinion testimony, unsupported by figures or statistics, on the relationships between long hair and disruptive behavior and between long hair and academic performance. That testimony included a few references to specific disturbances involving students with long hair. Absent from the appellee's proof, however, were \\\"hard facts\\\" pertaining to the causal relationship between appearance and behavior. No empirical studies were offered. No testimony from experts such as psychologists or psychiatrists was introduced.\\nInstead, Smith testified that his primary objection to long hair being worn by male students was that it was a deviation from the norm of appearances and caused distractions and disruptions within the school system. He further testified that he believed that good grooming improves personal behavior, that the student with long hair has a poor self-image and consequently his personal behavior is not what it could be, that the long haired student is negative, defensive and in trouble, and that there is a very direct relationship between personal appearance and behavior. Smith also testified that university students with long hair had caused an \\\"excitement\\\" when they visited his school, that he was informed of an instance in which a classroom fight between two boys broke out after one called the other a \\\"pretty boy,\\\" and that he had overheard students who were observing Breese in the hallway say, \\\"isn't he cute\\\" and laugh. A mathematics teacher from Main testified in defendants' behalf and stated that on one occasion, Breese had caused a minor disruption in her class when he got his hair caught in the pins on her bulletin board. The assistant principal of Main testified that in his professional opinion, long haired students are proportionately more of a disciplinary problem than short haired students. He further stated that he believed the long hair of a student could cause a disruption, could become a disciplinary problem. A counselor at Main testified that two boys in her room had caused a disruption by saying that \\\"my hair is longer than yours\\\" and by pulling on each other's hair and fighting. Another counselor from Main, who was also a priest and possessed considerable teaching and administrative experience, testified that when he was a principal at another high school, he experienced more disciplinary problems with students on \\\"hobo day,\\\" a special occasion on which the school dress code was relaxed and students were allowed to wear old clothes. He later admitted, however, that the increased unruly behavior on \\\"hobo day\\\" might have been a function of the holiday atmosphere. He further testified that in his professional opinion, there could be a relationship between long hair and behavior and disciplinary problems. An English teacher at Main testified that the title of the play Hair perhaps has some relationship with an attitude of protest, that long hair on a student interferes with teaching by preventing \\\"eye contact,\\\" and that a student who is constantly flipping his hair back or moving it back out of his eyes creates a distraction. Another English teacher from Main gave her opinion that students' long hair and their behavior \\\"go together.\\\" A teacher testified that \\\"I've had more combs in my classroom lately than I've seen in a chicken yard.\\\" Finally, a juvenile officer of the Fairbanks police department testified that probably more than half of the juvenile males with whom he came into contact had long hair. He acknowledged, however, that \\\"contacts\\\" and \\\"juveniles\\\" were not synonymous, and that the police department kept no figures, percentages or statistics on the length of hair of juvenile offenders.\\nThis evidence offered by Smith and the School Board to justify the hair length regulation, however, was not uncontrovert-ed. Breese offered both lay and expert opinion testimony that rebutted the evidence presented by appellees. Breese's father testified that he wanted his son to have long hair and that he believed his son had a right to wear long hair since the youth was not infringing anyone else's rights. A biology teacher from Lathrop High School testifying in Breese's behalf stated that long haired students did not cause discipline problems, and that they were among the academically superior students who took his advanced biology course. A social studies teacher from Lathrop testified that she could not tell any difference between long and short haired students in deportment, grades, attitude or anything. She further testified that long haired males in her classes did not cause distractions or create disruptions but opined that crew cut males might create a disturbance. A current events and \\\"American Minorities\\\" teacher from Lath-rop testified that she could not see any difference in behavior between the male students in her classes with long hair and those with short hair, and that she did not tend to have more long haired people in her special classes for \\\"underachievers.\\\" A French and social studies teacher from Ryan Junior High gave testimony that she could see no relationship at all between her students' long hair and their behavior. She further testified that the length of a male student's hair had never led to distractions in her class, that long haired stu dents were no better or worse achievers than short haired students, and that long haired students did not give her any more trouble than short haired students. A psychologist who worked in a Fairbanks mental clinic for five years gave her expert opinion that there was no cause and effect relationship between the length of hair and the behavior problems of a child, and that short haired and long haired kids got into trouble with equal frequency. She also testified that her own son, a high school student who wore long hair, was a semi-finalist in the national merit scholarship competition. An assistant professor of education at the University of Alaska, who is a registered psychologist in the state of Alaska, gave his expert opinion that there is no direct causal relationship between hair length and behavior. He further testified that in no case could he actually correlate, let alone find a causative relationship between hair length and personality. Finally, a seventh grade student from Main testified that in the class she shared with Breese, the latter's hair created no distractions and caused no disruptions or talk.\\nWe express no view as to the nature or exact amount of evidence necessary to establish the existence of a compelling state interest. Rather, we conclude only that on the basis of the entire record in the case at bar, Smith and the School Board did not meet the requisite burden of showing a compelling justification for the Main Junior High School hair length regulation. In the absence of any compelling justification, we hold that the school hair length regulation impermissably infringed upon Breese's constitutional right under Alaska's constitution which guaranteed him the liberty of personal choice as to appearance.\\nSeveral courts have found regulations more acceptable where some sort of intra-school \\\"procedure for review of any punishments\\\" has been provided. Similarly, Smith and the School Board argue that the fact that the Board is \\\"democratically elected\\\" acts as a \\\"brake\\\" upon unreasonable and arbitrary actions of schoolmen. In the case at bar the hair regulation was promulgated by a single school official, and was based on his conception of fashion. Even if such a regulation were arrived at and promulgated by a more democratic process, a student's claim to liberty would remain undiminished, for this court is held to a standard of vigilance in the matter of the protection of an individual's constitutional liberties. Protection of personal liberty cannot be left to depend upon the will of the majority for those are antithetical concepts. The tension between the notions of liberty and majority rule is illuminated by Judge Mann in Conyers v. Glenn.\\nThe order appealed from is grounded on the theory that parental authority has been transferred by the will of the majority to the board, and that the board has authority to prescribe the students' dress. The corollary of this proposition is that if these long-haired young, grown to legal age, sufficiently persuade their fellow citizens to elect, by a bare majority, a bare majority of a school board, then that governmental body shall have the authority, by vote of its new majority, to suspend the student who cuts his hair during the term.\\n. We would surmise that many who are not offended in the slightest by the imposition of the collective will on the long-haired boy of today would be early advocates of the short-haired individual's right to be different in a long-haired society.\\nSimilarly, the tension between personal liberty and majority will would not be eliminated by the fact that hair regulations were promulgated by some democratically elected, intra-school body. An attempted justification of this nature was properly rejected by the Seventh Circuit in the very recent case of Arnold v. Carpenter, where the court stated:\\nWe conclude that the democratic process used in adopting the code does not per se justify the denial of [the students'] constitutional right to wear his hair in the mode he chooses.\\nThe superior court's judgment is reversed and the case remanded with directions to enter a judgment in conformity with this opinion.\\nReversed and remanded.\\nBOOCHEVER, J., not participating.\\n. AS 14.30.045 sets forth the statutory grounds for the suspension or denial of admission of a pupil from public schools. More precisely, that enactment provides in relevant part:\\nA school age child may be suspended from or denied admission to the public school which he is otherwise entitled to attend only for the following causes:\\n(1) continued wilful disobedience or open and persistent defiance of reasonable school authority; . . .\\nSuspension and expulsion regulations in effect, but not officially adopted by the School Board, at the time of Breese's ouster, are contained in policy statement number 5110.4, which provides in relevant part:\\n1. Suspension:\\nThe responsibility for suspension rests with the building principals. Suspension shall be for a period of time not to exceed three (3) days. The parent must be notified immediately. A student who has been suspended can be readmitted only after the parents have scheduled a conference with the principal and any necessary members of his staff that are involved with pupil services. Should parents fail to comply and the student remains absent, the parents shall be considered as violators of the Compulsory Attendance Law, and action as dictated by Statute will follow.\\nIf a student fails to correct the conditions that led to his suspension, expulsion may become necessary.\\n2. Expulsion:\\nThe responsibility for expulsion rests with the Board of Education. Expulsion must be recommended by the building principal and the Director of Special Services. A hearing shall be conducted with the parents or guardian to determine the facts regarding pending charges or misconduct. Following such a hearing, the administration will submit its findings, along with recommendations, to the Board of Education concerning all expulsions. Expulsion is for an indefinite period of time, and readmittanee can occur only when it can be established that corrective measures to prevent reoccurrence of the cause have been taken. Readmission from expulsion may be made by the Superintendent of Schools after the parents have met with the school principal and those of his staff working with pupil services. Following such a meeting, the Superintendent of Schools will review the recommendation of the principal and will make a final decision regarding the issue of readmisson. The Board of Education shall be informed regarding all readmissions.\\n. The superior court tried the matter de novo rather than as an appellate tribunal reviewing a determinination of an administrative body. This is made clear by the trial court's remarks made at the preliminary injunction hearing:\\nI believe that this would be in the nature of an action and establish plaintiff's rights under the constitution.\\nLater, at the hearing on the merits, the lower court reiterated his interpretation of the proceedings before him:\\nCourts usually sit in the role of reviewing the record and finding and determining whether there has been a sufficient amount of evidence to support such a finding and is usually not called upon a make an initial judgment in the case. I distinguish this case\\n. Breese's subsequent application for an injunction pending appeal was denied by the superior court on October 29, 1971. After hearing oral argument on the merits of Breese's appeal on December 6, 1971, we issued an order enjoining appellees from denying Breese, on the sole basis of the length of his hair, permission to attend regular classes at Main, pending final determination of this appeal.\\n. Sup.Ct.R. 6 provides :\\nAn appeal may be taken to this court from a final judgment entered by the superior court or a judge thereof in any action or proceeding, civil or criminal, except that the state shall have a right to appeal in criminal cases only to test the sufficiency of the indictment or on the ground that the sentence is too lenient.\\n. AS 22.05.010(a) provides in relevant part:\\nThe supreme court has final appellate jurisdiction in all actions and proceedings. . . . An appeal to the supreme court is a matter of right .\\n. Sup.Ct.R. 23 provides in relevant part:\\nAn aggrieved party may petition this court for review of any order or decision of the superior court, not otherwise appealable under Rule 6, in any action or proceeding, civil or criminal, as follows:\\n(a) From interlocutory orders granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.\\n. Sup.Ct.R. 27(a) provides:\\nA petition for review shall be deemed in time when it is filed with the clerk of this court within ten (10) days after the making of such order or decision. A justice of this court for good cause shown, may extend the time for filing in such cases for an additional period of ten (10) days.\\n. In Re Mountain View Public Utility District No. 1, 359 P.2d 951, 954 (Alaska 1961).\\n. Assuming arguendo that Smith's and the School Board's characterization of the proceeding below is correct and we have a situation where the order in question lacks finality, we would not be bound to dismiss Breese's appeal. As we said in In Re Mountain View Public Utility District No. 1, 359 P.2d 951 (Alaska 1961) :\\nOur rules provide for review of interlocutory orders, and to prevent hardship and injustice this court on its own motion could treat the appeal as a petition for review and decide the questions presented to the same extent and with the same effect as on an appeal. 359 P.2d at 954. (footnotes omitted).\\n. For purposes of this opinion, we accept the parties' definition of \\\"long hair\\\": hair which falls over a male student's eyes, ears or collar.\\n. In this regard, the superior court stated:\\n(No constitutional provision known to this writer makes reference to hair or any appearance per se as does other rights provisions such as speech, assembly, arms, counsel, incrimination, religion, etc.) . . . Accordingly, even if this court were to accept the right as established, the right must still run the gauntlet of a determination of the reasonableness of the administrative regulation .\\n. 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969).\\n. Id. at 507-508, 89 S.Ct. at 737, 21 L.Ed.2d at 738.\\n. No. 18663 (7th Cir., May 27, 1971), cert. denied, 404 U.S. 983, 92 S.Ct. 445, 30 L.Ed.2d 367 (1971).\\n. 445 F.2d 932 (9th Cir.), cert. denied, 404 U.S. 1042, 92 S.Ct. 703, 30 L.Ed.2d 736 (1972).\\n. King v. Saddleback Junior College District, [also Olff], 445 F.2d 932 (9th Cir. 1971); see also, Jackson v. Dorrier, 424 F.2d 213 (6th Cir.), cert. denied, 400 U.S. 850, 91 S.Ct. 55, 27 D.Ed.2d 88 (1970) ; Breen v. Kahl, 419 F.2d 1034 (7th Cir.1969), cert. denied, 398 U.S. 937, 90 S.Ct. 1836, 26 L.Ed.2d 268 (1970) ; Stevenson v. Board of Educ. of Wheeler County, Georgia, 426 F.2d 1154 (5th Cir.), cert. denied, 400 U.S. 957, 91 S.Ct. 355, 27 L.Ed.2d 265 (1970) ; Ferrell v. Dallas Indep. School Dist., 392 F.2d 697 (5th Cir.), cert. denied, 393 U.S. 856, 89 S.Ct. 98, 21 L.Ed.2d 125 (1968).\\n. Hair regulations have been invalidated by the First Circuit, Richards v. Thurston, 424 F.2d 1281 (1st Cir. 1970) ; the Third Circuit, Stull v. School Board of the Western Beaver Jr. Sr. H. S., 459 F. 2d 339 (3d Cir. 1972); the Fourth Circuit, Massie v. Henry, 455 F.2d 779 (4th Cir. 1972) ; the Seventh Circuit, Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969), cert. denied, 398 U.S. 937, 90 S.Ct. 1836, 26 L.Ed.2d 268 (1970) ; Swanquist v. Livingston, No. 18663 (7th Cir., May 27, 1971), cert. denied 404 U.S. 983, 92 S.Ct. 445, 30 L.Ed.2d 367 (1971) ; Crews v. Clones, 432 F.2d 1259 (7th Cir. 1970) ; Arnold v. Carpenter, 459 F.2d 939 (7th Cir. 1972) ; and the Eighth Circuit, Bishop v. Colaw, 450 F.2d 1069 (8th Cir. 1971).\\nHair regulations have been upheld by the Fifth Circuit, Ferrell v. Dallas Indep. School Dist., 392 F.2d 697 (5th Cir.), cert. denied, 393 U.S. 856, 89 S.Ct. 98, 21 L.Ed.2d 125 (1968); Wood v. Alamo Heights Indep. School Dist., 433 F.2d 355 (5th Cir. 1970) ; Stevenson v. Board of Educ. of Wheeler County, Georgia, 426 F.2d 1154 (5th Cir.), cert. denied, 400 U.S. 957, 91 S.Ct. 355, 27 L.Ed.2d 265 (1970); Karr v. Schmidt, 460 F.2d 609 (5th Cir.1972); the Sixth Circuit, Jackson v. Dorrier, 424 F.2d 213 (6th Cir.), cert. denied, 400 U.S. 850, 91 S.Ct. 55, 27 L.Ed.2d 88 (1970) ; Gfell v. Rickelman, 441 F.2d 444 (6th Cir. 1971) ; the Ninth Circuit, King v. Saddleback Junior College Dist., 445 F.2d 932 (9th Cir. 1971) ; Olff v. East Side Union High School Dist., 445 F.2d 932 (9th Cir.1971), cert. denied, 404 U.S. 1042, 92 S.Ct. 703, 30 L.Ed.2d 736 (1972); and the Tenth Circuit, Freeman v. Flake, 448 F.2d 258 (10th Cir.1971).\\nSee also, Note, 84 Harv.L.Rev. 1702, 1703 n. 4 (1971).\\n. State court cases in which school hair regulations have been successfully attacked by student litigants include: Komadina v. Peckham, 13 Ariz.App. 498, 478 P.2d 113 (1970); Meyers v. Areata Union High School Dist., 269 Cal.App. 2d 549, 75 Cal.Rptr. 68 (1969) ; Finot v. Pasadena City Bd. of Educ., 250 Cal. App.2d 189, 58 Cal.Rptr. 520 (1967) ; Yoo v. Moynihan, 28 Conn.Sup. 375, 262 A.2d 814 (1969); Conyers v. Glenn, 243 So.2d 204 (Fla.App.1971); Murphy v. Pocatello School Dist. #25, 94 Idaho 32, 480 P.2d 878 (1971); Laine v. Dittman, 125 Ill.App.2d 136, 259 N.E.2d 824 (1970).\\nState court student challenges to hair regulations were unsuccessful in Leonard v. School Comm. of Attleboro, 349 Mass. 704, 212 N.E.2d 468 (1965); Shows v. Freeman, 230 So.2d 63 (Miss.1969).\\n. See generally Note, 84 Harv.L.Rev. 1702 (1971); Comment, 55 Iowa L.Rev. 707 (1971); Goldstein, Reflections on Developing Trends in the Law of Student Rights, 118 U.Pa.L.Rev. 612 (1970).\\n. See, e. g., Breen v. Kahl, 419 F.2d 1034, 1036 (7th Cir. 1969), cert. denied, 398 U.S. 937, 90 S.Ct. 1836, 26 L.Ed.2d 268 (1970) ; Meyers v. Areata Union High School Dist., 269 Cal.App.2d 549, 75 Cal.Rptr. 68 (1969).\\n. See, e. g., Breen v. Kahl, 419 F.2d 1034, 1036 (7th Cir. 1969), cert. denied, 398 U.S. 937, 90 S.Ct. 1836, 26 L.Ed.2d 268 (1970); Komadina v. Peckham, 13 Ariz. App. 498, 478 P.2d 113 (1970); Murphy v. Pocatello School Dist. #25, 94 Idaho 32, 480 P.2d 878 (1971); Laine v. Dittman, 125 Ill.App.2d 136, 259 N.E.2d 824 (1970).\\n. The ninth amendment of the Constitution of the United States provides:\\nThe enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.\\nThe ninth amendment for purposes of constitutional litigation, was recently revived from obscurity by Justice Goldberg's concurring opinion in Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510, 516 (1965).\\n. See, e. g., Ferrell v. Dallas Indep. School Dist., 392 F.2d 697, 705 (5th Cir. 1968) (Tuttle dissenting); Calbillo v. San Jacinto Junior College, 305 F. Supp. 857 (S.D.Tex.1969); Miller v. Gillis, 315 F.Supp. 94 (N.D.Ill.1969) ; Zachry v. Brown, 299 F.Supp. 1360 (N.D. Ala.1967). See generally Note, Long Hair and the Equal Protection Clause: King v. Saddleback Junior College District, 1 U.C.L.A.-Alaska L.Rev. 134 (1972).\\n. See, e. g., Stull v. School Bd. of Western Beaver Jr.-Sr. II. S\\\" 459 F.2d 339 (1972) ; Richards v. Thurston, 424 F. 2d 1281 (1st Cir.1970); Conyers v. Glenn, 243 So.2d 204 (Fla.App.1971); Sims v. Colfax Community School Dist., 307 F.Supp. 485 (S.D.Iowa 1970) ; Griffin v. Tatum, 300 F.Supp. 60 (M.D.Ala.1969); Breen v. Kahl, 296 F.Supp. 702 (W.D.Wis.1969) ; Westley v. Rossi, 305 F.Supp. 706 (D.Minn.1969).\\n. 381 U.S. 479, 484-485, 85 S.Ct. 1678, 14 L.Ed.2d 510, 514-515 (1965).\\n. Crossen v. Fatsi, 309 F.Supp. 114 (D.Conn.1970); Yoo v. Moynihan, 28 Conn.Sup. 375, 262 A.2d 814 (1969); Note, 84 Harv.L.Rev. 1702, 1711 (1971). Similarly some writers contend that such right is one of the \\\"fundamental rights\\\" not explicitly enumerated in the Bill of Rights but located within the \\\"emanations\\\" of those guarantees. See Griswold v. Connecticut, 381 U.S. at 484, 85 S.Ct. 1678, 14 L.Ed.2d at 514-515; Note, supra note 23, at 143-49. Finally, at least one scholar has argued that under a non-constitutional analysis, school boards lack legitimate \\\"power to dictate the length of boys' hair.\\\" Gold-stein, The Scope and Sources of School Board Authority to Regulate Student Conduct and Status: A Non-constitutional Analysis, 117 U.Pa.L.Rev. 373, 400, 422 (1969).\\n. 448 F.2d 258 (10th Cir.1971).\\n. Id. at 261.\\n. Compare the following language of the due process clause of the fourteenth amendment, which provides:\\n[N]or shall any State deprive any person of life, liberty, or property, without due process of law .\\nand the due process clause of the fifth amendment which provides:\\nNo person shall . be deprived of life, liberty, or property, without dun process of law . with the language of the Declaration of Independence:\\nWe hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.\\n. Specifically in Roberts v. State, 458 P. 2d 340 (Alaska 1969), this court said: [AY] e are not limited by decisions of the United States Supreme Court or the United States Constitution when we expound our state constitution; the Alaska Constitution may have broader safeguards than the minimum federal standards. 458 P.2d at 342-343 (footnote omitted).\\nMore recently, we reiterated this position in Baker v. City of Fairbanks, 471 P.2d 386 (Alaska 1970), stating that: [W]e have recognized that we are at liberty to make constitutional progress in Alaska by our own interpretations, as long as we measure up to the national standards which are required by the United States Supreme Court. It is our duty to move forward in those areas of constitutional progress which we view as necessary to the development of a civilized way of life in Alaska. 471 P.2d at 403.\\nSee also State v. Browder, 486 P.2d 925, 936 (Alaska 1971).\\n. RLR v. State, 487 P.2d 27 (Alaska 1971); see Doe v. State, 487 P.2d 47 (Alaska 1971).\\n. In RLR v. State, 487 P.2d 27 (Alaska 3971), we noted:\\nIf an honest analysis of constitutional requirements leads us to believe that they apply to children, we lack authority to withhold their application in deference to a popular social theory. 487 P.2d at 31 (footnote omitted).\\n. 487 P.2d 27 (Alaska 1971).\\n. 393 U.S. at 511, 89 S.Ct. at 739, 21 L.Ed.2d at 740. IVe note that children have also been accorded constitutional status under the federal Constitution by the United States Supreme Court. Tinker v. Des Moines Indep. Community School Dist.. 393 U.S. 503, 89 S.Ct. 733. 21 L.Ed.2d 731 (1969). Compare In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 18 L.Ed.2d 527, 538 (1967) with Ginsberg v. New York, 390 U.S. 629, 637, 88 S.Ct. 1274, 20 L.Ed.2d 195, 202 (1968). We further cite with approval Judge James E. Doyle's observation:\\nCautious counsel to avoid judicial involvement in serious constitutional issues merely because they concern younger people, in my view, is neither prudent, expedient, or just. It is time to broaden the constitutional community by including within its protections young people whose claim to dignity matches that of their elders. Breen v. Kahl, 296 F.Supp. 702, 708 (W.D.Wis.1969).\\n. See E. Griswold, The Right to be Let Alone, 55 Nw.U.L.Rev. 216 (1960).\\n. Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 35 L.Ed. 734, 737 (1891). Justice Douglas amplified this interpretation of \\\"liberty\\\" in Olff v. East Side Union High School Dist., 404 U.S. 1042, 1144, 92 S.Ct. 703, 704-705, 30 D.Ed.2d 736, 737 (1972) :\\nThe, word \\\"liberty\\\" is not defined in the Constitution. But . it includes at least the fundamental rights \\\"retained by the people\\\" . One's lmir style, like one's taste for food, or one's liking for certain kinds of music, art, reading, recreation, is certainly fundamental in our constitutional scheme \\u2014 a scheme designed to keep government off the backs of people.\\n. 424 F.2d 1281 (1st Cir. 1970).\\n. Id. at 1284-1285. The court wont on to make the following observation:\\n. 459 F.2d 339 (3d Cir.1972).\\n. Id. at 347.\\n. In Richards v. Thurston, 304 F.Supp. 449, 451 (1969) Judge Wyzanski noted the following:\\n. 84 Harv.L.Rev. 1702, 1711 (1971). In his dissent in Ferrell v. Dallas Indep. School Dist., 393 U.S. 856, 89 S.Ct. 98, 21 L.Ed.2d 125, denying cert. to 392 F.2d 697 (5th Cir. 1968) Justice Douglas wrote:\\nI suppose that a nation bent on turning. out robots might insist that every male have a crew cut and every female wear pigtails. But the ideas of \\\"life, liberty, and the pursuit of happiness,\\\" expressed in the Declaration of Independence, later found specific definition in the Constitution itself, including of course freedom of expression and a wide zone of privacy. I had supposed those guarantees permitted idiosyncrasies to flourish, especially when they concern the image of one's personality and his philosophy toward government and his fellow men.\\n. In interpreting our constitution as we do today, we are merely fulfilling our judicial obligation enunciated in Baker v. City of Fairbanks, 471 P.2d 386 (Alaska 1970) :\\n[W]e are under a duty, to develop additional constitutional rights and privileges under our Alaska Constitution if we find such fundamental ' rights and privileges to be within the intention and spirit of our local constitutional language -and to be necessary for the kind of civilized life and ordered liberty which is at the core of our constitutional heritage. 471 P. 2d at 402 (footnote omitted.)\\n.The Eighth Circuit observed in part in Bishop v. Colaw, 450 F.2d 1069 (8th Cir. 1971) that:\\nOf the justifications advanced by the school administrators in support of the regulations, only those relating to swimming pool sanitation and shop class safety bear any rational relation to the length of a student's hair. The school administration has failed to show why these particular problems cannot be solved by imposing less restrictive rules, such as requiring students to wear swimming caps or shop caps. 450 F.2d at 1077.\\nWe are also in agreement with Smith's and the School Board's position that:\\nStudents cannot be permitted to attend class with contagious diseases, armed with dangerous weapons, or unclothed. Neither can they be permitted to speak at will.\\n. 450 F.2d 1069 (8th Cir. 1971).\\n. Id. at 1075.\\n. 471 P.2d 386 (Alaska 1970).\\n. Id. at 394.\\n. See, e. g., Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Dunham v. Pulsifer, 312 F. Supp. 411 (D.Vt.1970).\\n. 381 U.S. 479, 497, 85 S.Ct. 1678, 14 L.Ed.2d 510, 523 (1965). See also Shapiro v. Thompson, 394 U.S. 618, 638, 89 S.Ct. 1322, 22 L.Ed.2d 600, 617 (1969).\\n. In accord with our holding is the conclusion reached in Note, 55 Iowa D.Rev. 707 (1971) :\\nSince the wearing of long hair may be important to the identity and dignity of students, it should be given consti tutional protection as [a] fundamental interest under the due process clause. If the student's choice of hair style is regarded as an interest entitled to special protection under the due process clause, the state must have a compelling subordinating interest in regulations, and the state must bear a substantial burden of justification. 55 Iowa L. Rev. at 710 (footnote omitted).\\n.See, e. g., Breen v. Kahl, 419 F.2d 1034, 1036 (7th Cir. 1969), cert. denied, 398 U.S. 937, 90 S.Ct. 1836, 26 L.Ed.2d 268 (1970); Crews v. Clones, 432 F.2d 1259, 1263 (7th Cir.1970).\\nCourts adopting this standard have been defining \\\"substantial burden of justification\\\" in accordance with the language of United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) :\\n[A] government regulation is sufficiently justified if it is within the constitutional power of the Government ; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. 391 U.S. at 377, 88 S.Ct. at 1679, 20 L.Ed.2d at 677.\\nSee Note, 84 Harv.L.Rev. 1702, 1705 n. 19 (1971).\\n. See, e. g., Miller v. Gillis, 315 F.Supp. 94, 100 (N.D.Ill.1969). Smith and the School Board urge that we adopt a test which would sustain the validity of the hair length regulation if persuaded that such regulation bears a rational relation to a constitutionally permissible objective.\\n. 393 U.S. at 526, 89 S.Ct. at 747, 21 L.Ed.2d at 749 (Harlan dissenting).\\n. We are not unmindful of Justice Bran-d\\u00e9is' warning in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (dissenting opinion), that good faith and lofty motivations often conceal the greatest danger to liberty.\\nExperience should teach us to be most on our guard to protect liberty when the government's purposes are beneficient. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. 277 U.S. at 479, 48 S.Ct. at 572-573, 72 L.Ed. at 957.\\n. Ordinarily, the imposition of a new standard and burden of proof by an appellate court necessitates the remanding of a case on appeal for further pi'oceed-ings in conformity with the new test. This sound judicial policy seeks to avoid any unfairness and surprise to the parties. Here, however, it is unnecessary to remand the instant case for further proceedings under the \\\"compelling interest\\\" test since the justifications underlying the remand policy do not exist. Smith and the School Board are not unfairly affected by the instant standard since they have presumably introduced their best available evidence at trial; that is, their case would remain the same and would not vary with different evi-dentiary formulae. Nor are they unduly surprised since Breese initially pleaded the existence and violation of a fundamental constitutional right, and since federal and Alaska authorities have in the past invoked the compelling state interest standard of proof when such rights have been violated. Furthermore, we note that other appellate courts which invalidated hair length regulations have not, as a matter of practice, remanded cases for further proceedings under newly imposed standards of proof. See, e. g., Stull v. School Bd. of Western Beaver Jr.-Sr. H. S., 459 F.2d 339 (3d Cir. 1972); Bishop v. Colaw, 450 F.2d 1069 (8th Cir. 1971); Richards v. Thurston, 424 F.2d 12S1 (1st Cir. 1970); Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969), cert. denied, 398 U.S. 937, 90 S.Ct. 1836, 26 L.Ed.2d 268 (1970); Laine v. Dittman, 125 Ill.App.2d 136, 259 N.E.2d 824 (1970).\\n. We note that there is a trend in long hair cases towards requiring the production of \\\"hard facts\\\" in order to justify school regulations. One scholar observes that:\\nThese hair and dress cases, as well as Tinker, also exhibit the final and most important trend discussed here: the increasing demand that [a] school administration justify a regulation, not by conjecturing about the adverse consequences to the educational structure without the rule, but by presenting hard foots. Contrary to the beliefs of many people, the courts are not so much saying that the schools cannot act to achieve traditional aims \\u2014 to prevent disruption, for example \\u2014 but they are saying that they will no longer take an administrator's unsupported word that absent a given rule, regulation, or procedure, disruption will take place.\\nGoldstein, Reflections on Developing Trends in the Law of Student Rights, supra note 19, at 617 (emphasis added).\\n. See, e. g., King v. Saddleback Junior College Dist., 445 F.2d 932, 935 (9th Cir.1971).\\n. We agree that courts should not be too quick to interfere with the functions of other public agencies, such as school boards. In this regard we are not unmindful of Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968), where the Supreme Court of the United States per Justice Portas said:\\nJudicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint. . . . By and large, public education in our Nation is committed to the control of state and local authorities. Courts do not and c\\u00e1nnot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values. 393 U.S. at 104, 89 S.Ct. at 270, 21 L.Ed.2d at 234 (footnotes omitted).\\nSee also Conyers v. Glenn, 243 So.2d 204, 209-210 (Fla.App.1971).\\n. In this regard we note our reluctance to adopt a viewpoint that would sustain a hair length regulation because the length of an individual's hair caused the majority or a substantial number of others to be disorderly. As Professor Zecheriah Chaffee, Jr., wrote in Free Speech in the United States (1941) 151-52. it is absurd to punish a person \\\"because his neighbors have no self-control and cannot refrain from violence.\\\"\\n. 243 So.2d 204 (Fla.App.1971).\\n. Id. at 205-206.\\n. Arnold v. Carpenter, 459 F.2d 939 (7th Cir. 1972). See also Bishop v. Colaw, 450 F.2d 1069, 1077 (8th Cir. 1971) (where the dress code had been accepted by the majority of the school community) ; and Massie v. Henry, 455 F.2d 779 (4th Cir. 1972) (where the long hair regulation had been \\\"recommended by a student-faculty-parent committee.\\\"). Compare Wood v. Alamo Heights Indep. Scliool Dist., 308 F.Supp. 551 (W.D. Tex.1970).\\n.459 F.2d at 943.\"}"

alaska/10562585.json

@@ -0,0 +1 @@
+"{\"id\": \"10562585\", \"name\": \"Floyd NICHOLAS, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Nicholas v. State\", \"decision_date\": \"1970-12-11\", \"docket_number\": \"No. 1321\", \"first_page\": \"447\", \"last_page\": \"452\", \"citations\": \"477 P.2d 447\", \"volume\": \"477\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T21:49:38.009072+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, }}\\u25a0\", \"parties\": \"Floyd NICHOLAS, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Floyd NICHOLAS, Appellant, v. STATE of Alaska, Appellee.\\nNo. 1321.\\nSupreme Court of Alaska.\\nDec. 11, 1970.\\nDavid Backstrom, Asst. Public Defender, Fairbanks, for appellant.\\nThomas Keever, Asst. Dist. Atty., Fairbanks, for appellee.\\nBefore BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, }}\\u25a0\", \"word_count\": \"2714\", \"char_count\": \"16240\", \"text\": \"OPINION\\nERWIN, Justice.\\nThis is an appeal from a sentence of two years' imprisonment imposed on appellant for his conviction upon his plea of guilty to the crime of sale of marijuana in violation of AS 17.12.110.\\nIn the recent case of State v. Chaney, 477 P.2d 441 (Alaska 1970), this court noted that the following objectives are included within the goals of Alaska constitutional provisions concerning penal administration :\\nWithin the ambit of this constitutional phraseology are found the objectives of rehabilitation of the offender into a noncriminal member of society, isolation of the offender from society to prevent criminal conduct during the period of confinement, deterrence of the offender himself after his release from confinement or other penological treatment, as well as deterrence of other members of the community who might possess tendencies toward criminal conduct similar to that of the offender, and community condemnation of the individual offender, or in other words, reaffirmation of societal norms for the purpose of maintaining respect for the norms themselves, (footnote omitted).\\nTo make a reasoned sentence decision, the sentencing judge must determine the priority and relationship of these objectives in any particular case.\\nWhile unjustifiable disparities in the sentencing of criminal offenders may be a serious problem to many observers of the criminal process, the key word is \\\"unjustifiable\\\", for reasonable disparity is necessary to achieve the purposes of sentencing. Some range of sentencing alternatives must be provided to allow adjustment for the special facts of each crime as well as the record and character of each convicted individual.\\nIt should be clear at the outset that the standard of review concerning the exercise of sentencing discretion by the trial judge requires of necessity a broad view, for it is not the purpose of appellate review to enforce uniformity or to chill initiative on the part of the trial judge in attempting to arrive at a proper sentence. As explained by Judge Lawrence E. Walsh, an opponent of sentence review, there is a possibility of harm from the very act of review itself in that all judges may attempt to arrive at a happy medium rather than attempting through the personal initiative, experience and training peculiar to trial judges to formulate a program best suited to the individual in view of his background and the nature of the crime. '\\nThis court recognizes that the primary responsibility for sentencing must remain with the trial judge. The objectives of sentence review will be achieved only if the sentence that is initially fixed is based on the conscientious effort of the trial judge to arrive at the sentence which best suits the case at hand.\\nBut respect for the discretion of the trial judge will not prevent this court from making our own examination of the record and we will modify the sentence if we are convinced that the sentencing court was clearly mistaken in imposing the sanction it did.\\nIn the case at bar, appellant was indicted in March of 1969 on two counts: Count I alleging the sale of marijuana and Count II the sale of LSD. The appellant pled guilty to sale of marijuana and the second count was dismissed. While appellant had no prior convictions, there is an indication in the presentence report that he had psychiatric problems and the probation officer, the district attorney, and the defense counsel all agreed on a recommended sentence of probation provided that the appellant be given psychiatric counseling and that the appellant maintain employment or full-time school.\\nThe appellant was 22 years of age at the time of sentencing, had been born near Galena, Alaska, and had resided in a series of foster homes almost from the time that he had been 3 years old until he had reached the age of majority. The appellant had done sufficiently well in high school to obtain a Bureau of Indian Affairs scholarship to the University of Alaska where his record can only be characterized as spotty. He flunked out of the University of Alaska in two separate occasions, but was able to complete approximately 27 credit hours of course work.\\nThe appellant spent the first half of the year 1968 in and around the Fairbanks area working at janitorial work and firefighting in the summer and living with friends and acquaintances for short periods of time. In September of 1968 he again returned to the University of Alaska on a probationary basis and was supported by the Bureau of Indian Affairs for the third time but was not able to procure the necessary average to remain at the University of Alaska. After the time of the offense herein, the appellant was living in an apartment by himself which was paid for by the Bureau of Indian Affairs and he was working for the University of Alaska as a fire watch guard in the new library, a position which was obtained through the assistance of the probation office. Previous to this period of time, after leaving the University, the subject had been floating around, staying at different friends' homes, borrowing money and not working.\\nThe employment history of the defendant is very inconsistent. He showed very little responsibility, often failing to show up on time or notify his employer when he was unable to come to work, and as a result was unable to continue for any period of time in any job.\\nThe offense in question here was committed on March 1, 1969, at 1:15 a. m. at the International Coffee Shop in Fairbanks. Nicholas approached the table at which his employer at that time, Charles Gilford, Investigator McCoy of the Alaska State Troopers, Investigator Robert Lee, and Investigator Joseph Turner were seated. The conversation was at first general and then switched to narcotics in the Fairbanks area and the appellant stated that he could get any kind of narcotics they wanted. He was asked if he could get some hashish and he replied that he had some on him and he reached into his left pocket and pulled out a substance which later proved to be marijuana. A sale was consummated for $10 and the substance changed hands. Nicholas was then asked by Investigator Robert Lee if he could get acid and, Nicholas replied, \\\"Sure, do you want some?\\\" The investigator, Lee, asked how much, and Nicholas replied \\\"$2.50.\\\" Upon receipt of the money, Nicholas reached into his pocket and gave him a tablet which he stated was LSD.\\nSeveral different personal references were obtained from Nicholas and were interviewed by the Division of Corrections, and all of the references spoke very highly of him.\\nAt the sentencing hearing on June 12, 1970, all of these facts were brought out at some length and all participants at the hearing, the State, the Division of Corrections and the Public Defender, recommended a sentence of four years to be suspended with the defendant to be placed on probation providing for either steady work or full-time school activity. The court, after considering the whole matter, noted that it did not agree with the conclusion of the report, and pointed out that the offense was a serious one and that there was nothing in the background of the defendant that would indicate that supervised probation would lead the defendant into a realization of the incorrectness of his behavior:\\nWell, I've read the report here \\u2014 the probation officer's report and I \\u2014 I can't agree with the conclusions that it reaches. In the first place, the amount of effort that communities are expending and have been expending for several years in trying to suppress or do what they can to reduce this drug traffic has been intense enough to become matters of common knowledge to almost anybody and I can only conclude that somebody who'd fly dead into the face of something like that must necessarily have little or no respect to the law.\\nI regard it as something more than the \\u2014 actually just the garden variety, the run of the mill, anymore, of our criminal statutes. I don't think this court has the panic in it as to the threat of what drugs are but it was more the attitude of the communities generally that certainly should suggest to anyone of average intelligence and according to this psychiatric report. Doctor examining this young man thought that he was highly intelligent. So I can only conclude that he perceives and did then perceive those things which people normally would do. I'd suggest that in this report that this is just a happenstance, experimental first occasion involvement. I suggest that this is hard for the Court to accept in view of the fact that the matter of drugs comes up and I \\u2014 in the matter of being able to supply them, and have you got any hashish and \\u2014 it just so happens that this defendant had some of that. And do you have any LSD? Well, it just so happens that he had some of that. Well, people just don't go carrying around hashish and LSD and other kinds of drugs, if there were others, and two out of two he was able to supply, in their pockets, spare just as a flyer.\\nI look at the background of this young man, find that he just floated around. He has made three or four attempts to try to stay in school. He's went from job to job to job. I don't find anything there that recommends him. It's for these reasons that I cannot agree with the conclusions reached by the Division of Corrections.\\nIn this particular case, the trial judge felt that the protection of the public, the very nature of the crime itself, the fact that the defendant had in his possession more than one type of drug indicating that this was not a chance transaction, and an existing community problem with sale and possession of dangerous drugs, taken together with the defendant's background which showed neither permanent ties in the community nor any serious desire either to work or to go to school, were sufficient to overcome any possible advantage of probation. It would appear that the trial judge attempted to balance the various factors inherent in sentencing in arriving at a sentence of two years. While the reasons given are less than precise, we are not convinced the trial court was clearly mistaken in imposing the sentence it did. Therefore, the sentence imposed by the superior court is affirmed.\\n. Alaska Const, art. I \\u00a7 12 provides in part: \\\"Penal administration shall be based on the principle of reformation and upon the need for protecting the public.\\\"\\n. 32 F.R.D. 249, 258 (Symposium of Appellate Review of Sentences, 2nd Cir. 1962). See ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Sentencing Alternatives and Procedures, \\u00a7 2.5(c) (Approved Draft 1968) ; Model Penal Code, \\u00a7 2.5, art. 7 (1962).\\n. Note, Appellate Review of Primary Sentencing Decisions: A Connecticut Case Study, 69 Yale L.J. 1453, 1455 (1960) ; Chapter Y, Guides for Sentencing by National Council on Crime and Delinquency (1957).\\n.Weigel, Appellate Revisions of Sentences : To Make the Punishment Fit the Crime, 20 Stan.L.Rev. 405 (1968) ; Mueller and Poole, Appellate Review of Legal But Excessive Sentences: A Comparative Study, 21 Van.L.Rev. 411, 412 (1968); ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Appellate Review of Sentences, \\u00a7 1.2 at 29-30 (Approved Draft 1968) (hereinafter cited as Standards Relating to Appellate Review of Sentences) .\\n. \\\"The answer is that this proposal won't eliminate intemperance; it will eliminate severity. Now it may be, as I've said, that severity is a bad thing. People of good faith can differ on this, but I can tell you that no judge is going to go out on a limb with a heavy sentence, no matter how badly deserved, if he is going to be reviewed and if the outcome of that review can be a conclusion that he's sadistic, that he's vicious or savage, or whatever else you want to call it, even if there's dissenting opinion . It doesn't make a judge willing to go out on a limb the next time. And then there's the other thing. I mean as we moderate and get toward this happy medium and get all these 400 judges, who have their own odd personal ideas about what's good for the community \\u2014 if we get them homogenized and put them down towards the median sentence, Congress will have something to say about this and we'll end up with more mandatory sentences. \\u215c \\\"\\nRemarks of the Hon. Lawrence E. Walsh before the Judicial Conference of the Second Circuit, 32 F.R.D. 276, 281 (1962).\\n. An argument often advanced against appellate review is that the appellate court is in no position to review sentences because it has no opoprtunity to observe the attitude of the defendant and make a personal assessment of his character. The point is, of course, valid in a few cases, especially where there has been a long trial at which the defendant testified. Clearly, the trial judge has had an opportunity which is entitled to weight in reviewing the correctness of that sentence and this is a factor which will be weighed by the appellate court in review in those particular cases. Unfortunately, there is often little opportunity in the great majority of cases for the sentencing judge to observe the demeanor of the defendant where he pleads guilty, for such contacts are limited in time and scope and both the sentencing and reviewing court are in a similar position. See Note, Ap-plate Review of Primary Sentencing Decisions : A Connecticut Case Study, 69 Yale L.J. 1453,1465, nn. 65 & 66 (1960) ; Sobeloff, The Sentence of the Court: Should There Be Appellate Review, 41 ABA J. 13 (1955).\\n. See State v. Chaney, 477 P.2d 441 (Alaska 1970). The background of AS 12.55.-120 is expressed by the Alaska State Legislature in the House Judiciary Committee Report which specifically notes broad powers of review:\\nThis bill draws on the concepts for appellate review of criminal sentences contained in proposed federal legislation. Such legislation is expected to .be enacted into law during the 1969 session.\\nThe majority of the courts have held that where a sentence imposed by a trial judge is within the limits prescribed by statute and otherwise legal, an appellate court cannot review the discretion of the trial judge exercised in determining the sentence, even though it may appear in retrospect to have been too severe or too lenient.\\nEnactment of House Bill No. 281 would provide the jurisdiction and substantive guidelines required to provide for appellate review of sentences in Alaska. The supreme court of Alaska would promulgate detailed rules of procedure providing for the preparation and forwarding of the record, hearing procedures, etc. In general, it is expected that these rules would be identical with those proposed to implement the federal legislation. \\u215c\\nJudiciary Comm. Report on House Bill 281, Journal of the Alaska House of Representatives at 665 (1969).\\nAt the time that the Alaska act was passed, two rather comprehensive studies of appellate review of sentences had been undertaken, see Standards Relating to Appellate Review of Sentences (Tentative Draft 1967); Standards Relating to Appellate Review of Sentences (Approved Draft 1968), and at least two federal sentencing conferences had been held. See Sentencing Institute, Ninth Circuit, 39 F.R.D. 523 (1965); Sentencing Institute, Second Circuit, 41 F.R.D. 467 (1956). The standards thus proposed and which apparently were adopted by the legislature of Alaska in promulgating AS 12.55.120 provided for an independent review of the record to ascertain whether or not a sentence is clearly mistaken. See Standards Relating to Appellate Review of Sentences, \\u00a7 3.1 (Approved Draft 1968).\\n. The trial judge did not discuss the relative merit of probation and imprisonment for rehabilitation purposes, or the likelihood of further criminal conduct by the appellant. While some of this information may be inferred from the record, it would be helpful to this court in reviewing sentences that these areas be specifically discussed by the sentencing judge.\"}"

alaska/10563164.json

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+"{\"id\": \"10563164\", \"name\": \"GREATER ANCHORAGE AREA BOROUGH and State of Alaska, Petitioners, v. PORTER AND JEFFERSON, Respondent\", \"name_abbreviation\": \"Greater Anchorage Area Borough v. Porter & Jefferson\", \"decision_date\": \"1970-05-22\", \"docket_number\": \"No. 1285\", \"first_page\": \"360\", \"last_page\": \"360\", \"citations\": \"469 P.2d 360\", \"volume\": \"469\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-11T02:39:36.347012+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before DIMOND and RABINOWITZ, JJ., and FITZGERALD, Superior Court Judge.\", \"parties\": \"GREATER ANCHORAGE AREA BOROUGH and State of Alaska, Petitioners, v. PORTER AND JEFFERSON, Respondent.\", \"head_matter\": \"GREATER ANCHORAGE AREA BOROUGH and State of Alaska, Petitioners, v. PORTER AND JEFFERSON, Respondent.\\nNo. 1285.\\nSupreme Court of Alaska.\\nMay 22, 1970.\\nSheila Gallagher, Eric Wohlforth, of McGrath & Wohlforth, and John Have-lock, of Ely, Guess, Rudd & Havelock, Anchorage, for petitioner Greater Anchorage Area Borough.\\nCharles K. Cranston, Asst. Atty. Gen., Anchorage, for intervenor-petitioner State of Alaska.\\nWill Key Jefferson, Anchorage, for respondent Partnership.\\nBefore DIMOND and RABINOWITZ, JJ., and FITZGERALD, Superior Court Judge.\", \"word_count\": \"194\", \"char_count\": \"1291\", \"text\": \"PER CURIAM.\\nPorter and Jefferson, a partnership, instituted this action challenging the existence of the Greater Anchorage Area Borough. The partnership has been represented throughout by Will Key Jefferson.\\nThe superior court denied the Borough's motion to dismiss. Review has been sought, and oral argument was heard May 2, 1970. Review is granted.\\nThe partnership of Porter and Jefferson has concededly paid no taxes and does not appear on the assessment rolls of the Borough. For this reason the partnership of Porter and Jefferson has no standing.\\nThe order of the superior court is reversed and the case remanded to the superior court with directions to enter an order dismissing the action.\\nBONEY, C. J., and CONNOR, J., not participating.\"}"

alaska/10568315.json

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+"{\"id\": \"10568315\", \"name\": \"William P. STANLEY, d/b/a Alaska Traffic Consultants and Sea-Land Service, Inc., Appellants, v. FABRICATORS, INC., Appellee\", \"name_abbreviation\": \"Stanley v. Fabricators, Inc.\", \"decision_date\": \"1969-10-06\", \"docket_number\": \"No. 1061\", \"first_page\": \"467\", \"last_page\": \"475\", \"citations\": \"459 P.2d 467\", \"volume\": \"459\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T21:34:23.391338+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before NESBETT, C. J., and DIMOND, RABINOWITZ, BONEY and CONNOR, JJ-\", \"parties\": \"William P. STANLEY, d/b/a Alaska Traffic Consultants and Sea-Land Service, Inc., Appellants, v. FABRICATORS, INC., Appellee.\", \"head_matter\": \"William P. STANLEY, d/b/a Alaska Traffic Consultants and Sea-Land Service, Inc., Appellants, v. FABRICATORS, INC., Appellee.\\nNo. 1061.\\nSupreme Court of Alaska.\\nOct 6, 1969.\\nAllen McGrath, Anchorage, for appellants.\\nCharles E. Tulin, Anchorage, for ap-pellee.\\nBefore NESBETT, C. J., and DIMOND, RABINOWITZ, BONEY and CONNOR, JJ-\", \"word_count\": \"4431\", \"char_count\": \"27287\", \"text\": \"NESBETT, Chief Justice.\\nWe are required in this appeal to apply a number of provisions of the Uniform Commercial Code in determining the validity of two attachments of equipment. A detailed statement of pertinent facts must necessarily precede any discussion of the legal issues raised.\\nAppellee Fabricators, Inc., an Oregon corporation, leased certain dough manufacturing equipment to Pelton's Spudnuts, a Utah corporation located in Salt Lake City, Utah. Pelton's then subleased the same equipment to Foodcrafters, Inc., an Alaska corporation, which used the equipment to manufacture dough products for sale in the Anchorage area of Alaska.\\nThe terms of the leases were identical except that the lease between appellee and Pelton's provided that if Pelton's exercised its option to cancel the lease because of an average decrease in demand for the manufactured products, that Pelton's should give a 30-day written notice and crate and ship the equipment to appellee at Seattle. Each lease stated that, \\\"This is a contract of rental only and not a sale, conditional or otherwise.\\\" The period was for 60 months at a rental of $1,288 per month (preamble) and each lease stated that:\\nLessee shall have the option to purchase said equipment and personalty during the term of his lease for a cash price of $58,000.00 less 75% of all sums paid as rental herein.\\nDuring the terms of the leases and in February of 1968, Foodcrafters, Inc. lost its contract to supply the military base in Anchorage. On March 4, 1968, Lyndon Sikes, President of Foodcrafters, called in representatives of Sea-Land Sales of Alaska and informed them that the equipment was to be shipped back to the continental United States and requested their inspection and advice. The evidence established that Sea-Land Sales of Alaska, a corporation, was the exclusive sales agent for Sea-Land Service, Inc., a Delaware incorporated water carrier, and for Sea-Land Freight Service, Inc., a motor carrier. Sea-Land Sales shared the same office space and accounted to Sea-Land Service, Inc., but was not a subsidiary of that corporation. Sikes advised the Sea-Land Sales representatives that he was going out of business; that the equipment was leased from Pelton's and was to be returned to Seattle and possibly to Utah. Upon returning to their office the representatives of Sea-Land Sales informed Sea-Land Service, Inc. that Food-crafters was going out of business and planned to ship the equipment collect.\\nOn March 8, 1968, Sikes wrote to Pel-ton's advising them that Foodcrafters was going out of business, enclosing estimates on crating from various moving companies and offering to assist in the crating for a fee. On March 15, 1968, Mr. Pelton came to Anchorage with his plant manager and engineer to take charge of dismantling and crating the equipment. Pelton employed A-l Moving and Storage on Sikes' recommendation and worked with them with his assistants in dismantling and crating. Sikes kept the warehouse keys and occasionally assisted. The majority of the work had been completed by the time Pelton departed for Japan on March 17, leaving instructions with A-l to complete the work. A-l completed loading the equipment in the vans furnished by Sea-Land Service, Inc. at Foodcrafters' loading dock. The vans were picked up by Sea-Land Service, Inc. on March 19 and 22 as they.were filled. A-l's invoice listed Foodcrafters as shipper and their bill was sent to Sea-Land Service, Inc., and subsequently to Pelton's. Sea-Land Service, Inc. issued three straight non-negotiable bills of lading, one on March 19 and two on March 22. All were signed by Sikes on behalf of Foodcrafters as consignor with appellee Fabricators, Inc., Seattle, Washington, named as consignee.\\nOn March 25, 1968, Sea-Land Service, Inc. filed suit against Foodcrafters for the sum of $900 alleging a debt past due and attached the Spudnut equipment which was then in its vans in its possession.\\nOn April 10, 1968, Fabricators Inc. assigned \\\"all of its right, title and interest\\\" in its lease with Pelton's to National Oven Products of Washington. On April 23, 1968, Pelton's Spudnuts, Inc. wrote to Allen McGrath, Esq., counsel for appellant, explaining the lease arrangements, advising that the attached equipment belonged to Fabricators, Inc., enclosing copies of the leases, demanding release of the attachment, and advising that Sea-Land Service, Inc. would be held accountable for damages resulting from delay in making shipment. On April 26, 1968, V. Burda, an attorney of Salem, Oregon, wrote to McGrath advising that the attached equipment was owned by appellee Fabricators, Inc.; that Foodcrafters had no interest in the property, and asking to be advised what further action was required in order to release the attachment.\\nOn June 10, 1968, summary judgment was entered against Foodcrafters and in favor of Sea-Land Service, Inc. On June 17, 1968, Fabricators, Inc. filed with the state police and served McGrath with a \\\"Notice of Third Party Claim\\\" with an attached affidavit and copy of the Food-crafters-Spudnuts lease. The district court set the time for hearing as August 15, 1968.\\nOn July 1, 1968, McGrath, acting as attorney for appellant William P. Stanley, sued Foodcrafters in the superior court on an alleged past indebtedness and on July 11, 1968, caused the Spudnut equipment to be again attached. Fabricators, Inc. sought to challenge both attachments and entered the case by filing a complaint in intervention pursuant to Civil Rule 24. Hearing was also set for August 15, 1968, and on motion the cases were consolidated for hearing and trial on that date.\\nAfter hearing some ten witnesses during trial, the trial judge dissolved the attachments of Sea-Land Service, Inc. and William P. Stanley, holding, among other things, that the lease and the sublease were security interests within the meaning of the Uniform Commercial Code, AS 45.05.-002 to 45.05.794.\\nAlthough the .agreements were called leases, the trial court was correct in finding that they were security agreements since they contained provisions conferring the right to purchase the equipment at any time during the 60 month terms of the leases for the sum of $58,000 less 75% of all sums paid as rental at the rate of $1,288 per month. During the last month of the term total rents paid would be $77,-280. Seventy-five per cent of this amount would be $57,960. This indicates that the purchase option could be exercised for $40. Relative to $58,000, this is a nominal consideration and under clause B of AS 45.05.-020(37) demonstrates that the leases in question were in fact security agreements. These facts bring the agreements within the rule of interpretation laid down in United Rental Equipment Co. v. Potts & Callahan Contracting Co. which we adopt.\\nAppellants argue however, that the security interests thus created were never perfected because the interests never attached under AS 45.05.736 which provides that a security interest is perfected when it has attached and when all applicable steps required for perfection have been taken; under AS 45.05.722 which provides that a security interest cannot attach' until there is agreement that it attach and value is given and debtor has rights in the collateral; and AS 45.05.020(3) defining \\\"agreement\\\" as the bargain of the parties in fact as found in their langauge or by implication from other circumstances including course of dealing or usage of trade or course of performance.\\nWe cannot agree. The agreements were entered into on December 1, 1966. Possession of the equipment was delivered to the lessee which transferred it to the sublessee Foodcrafters, which paid .a monthly rental of $1,288 per month for a period of over 14 months until it was forced to cancel the agreement in accordance with an option contained therein. The fact that all of the parties entered into performance of the agreements on the date of execution and continued in faithful performance according to the terms of the agreements for a period of over 14 months is convincing proof that they intended that their respective interests attach upon execution of the agreements. This having been their intent, and value having been given by the lessor and sublessor by delivery of possession of the equipment and by the sublessee by the faithful payment of rental, and the sub-lessee having acquired a contingent equity in the equipment, it follows that the security interests of the parties had attached under the above quoted provisions of the Uniform Commercial Code. The fact that the witness Burda was the only witness who testified that it was his intent that a security agreement be created is not controlling in view of the fact that the agreements were unequivocally worded to create immediate rights and liabilities in the parties, and of the intent which can be otherwise implied from the circumstances of their subsequent conduct.\\nAppellants' next point is that appellee did not perfect its security interest by taking possession of the equipment.\\nIt was conceded at trial that appellee did not file the financing statement provided for in the Uniform Commercial Code but it was contended by appellee that it had perfected its security interest in the equipment by assuming possession under the provisions of AS 45.05.734 which provides that a financing statement must be filed in order to perfect a security interest except when possession of the collateral is in the secured party.\\nWe decide that the trial court was correct in holding that appellee's security interest was perfected by possession of the collateral. Under the terms of the agreement between appellee and Spudnut, upon notification of Spudnut by Foodcrafters that it was exercising its option to cancel, Spudnut had the obligation to crate and ship the equipment to appellee at Seattle Washington. As Pelton of Spudnut and his assistants, acting as the agents of Fabricators, assisted by A-l Moving, dismantled and removed the equipment from Foodcrafters' building, to which Sikes of Foodcrafters retained the key, and placed it in Sea-Land's vans, the security interest of Fabricators became perfected under the provisions of AS 45.05.734(a) (1). By the time Pelton departed Anchorage on March 17, 1968, most of the equipment had been removed from the building and placed in vans. The balance of the removing and loading was performed by A-l Moving at Pelton's direction and was completed by March 22, 1968. It follows from these facts that appellee's security interest was perfected at the time Sea-Land Service, Inc.'s attachment of March 25, 1968, and Stanley's attachment of July 11, 1968, issued. The perfection of security interest thus attained was prior to and independent of that which might have been attained by the issuance of non-negotiable bills of lading on March 19 and March 22 which is discussed briefly later in this opinion.\\nAppellants' next point is that the trial court erred in holding that appellants had knowledge of appellee's security interest at the time they caused their attachments to issue.\\nWe agree with the interpretation of the facts made by the trial court when it found :\\nMr. Lyndon Sykes, [sic] president of Foodcrafters met with Mr. Rude and Mr. Hoehn of Sea-Land Sales of Alaska, Inc. on March 5, 1968 to discuss the shipping arrangements. According to Mr. Hoehn, Sea-Land Sales of Alaska, is not related in the corporate structure to Sea-Land Freight Service, Inc. and Sea-Land Service, Inc., the actual carriers who performed the shipping service. However, he testified that his concern acts exclusively as sales agent for the carriers named and for no others. Mr. Hoehn testified that he was advised by Mr. Sykes [sic] that the latter was going out of business and that he was moving the machinery out for the owners in Salt Lake City. Mr. Rude, district sales manager for Sea-Land Sales of Alaska, Inc., was present at the luncheon meeting with Mr. Sykes [sic]. He said that Mr. Sykes [sic] stated that the equipment was leased and that it was going to be forwarded to Mr. John Urban of Auburn, Washington.\\nAt the luncheon meeting, there was what appears to have been a comprehensive discussion of the details of the shipment\\nMr. Sykes [sic] testified that he had informed Mr. Hoehn and Mr. Rude of the property interest in the equipment which was the subject of the shipment. While Mr. Hoehn and Mr. Rude were not employees of Sea-Land Service, Inc., the attaching creditor, they were employees of Sea-Land Sales of Alaska, Inc., a corporation not owned by the carrier. However the manner in which Sea-Land Sales of Alaska conducted its business, with apparent consent of the carrier, that is, use of the trade name, use of office space in the carrier's building, telephone listing with a group of related companies, and the fact that the sole business of Sea-Land Sales of Alaska, Inc., is the sale and promotion of contracts for the carriage of merchandise for the carrier constitutes such an agency relationship that notice to the sales company must be held to constitute notice to the carrier, or at the very least, the carrier is estopped from denying the agency relationship\\nThus, I find that, through notice given by Mr. Sykes, [sic] and by taking possession of goods by Mr. Pelton, petitioner acquired a perfected security interest prior to plaintiff's attachment\\nAS 45.05.732(a) (2) provides that an unperfected security interest is subordinate to the rights of a person who becomes a lien creditor without knowledge of the security interest and before it is perfected. Since Sea-Land Service, Inc. did receive notice on March 5, 1968, of Pelton's interest in the equipment through its agent Sea-Land Sales, it follows that appellee's security interest was not subordinate to Sea-Land Service, Inc.'s attachment of March 25, 1968.\\nAppellant also argues that a lien creditor's knowledge of a secured party's interest has significance only if the secured party subsequently perfects its security interest. We do not agree. The wording of AS 45.05.732(a) (2) seems to plainly provide that an unperfected security interest shall be superior to the interest of a lien creditor acquired with knowledge of the security interest. It appears to be the intent of the section that only when the lien creditor becomes such without knowledge of the security interest and before the security interest is perfected shall the unperfected security interest be subordinate.\\nAppellant argues that the fact that Sea-Land Service, Inc. may have had \\\"notice\\\" of an existing security interest in the equipment through its agent Sea-Land Sales, is not sufficient to subordinate its lien since AS 45.05.732(a) (2) requires that it have had \\\"knowledge\\\" of the unperfect-ed security interest before it could be held to be subordinate thereto. Appellant relies upon AS 45.05.020(25) which states that\\na person has 'notice' of a fact when (A) he has actual knowledge of it; (B) he has received a notice or notification of it; or (C) from all the facts and circumstances known to him at the time in question he has reason to know that it exists; a person 'knows' or has 'knowledge' of a fact when he has actual knowledge of it.\\nand upon AS 45.05.020(27) which states\\nnotice, knowledge, or a notice or notification received by an organization is effective for a particular transaction from the time when it is brought to the attention of the individual conducting that transaction, and in any event from the time when it would have been brought to his attention if the organization had exercised due diligence.\\nin arguing that since \\\"knowledge\\\" means actual knowledge and since the Sea-Land Sales representatives did not actually advise representatives of Sea-Land Service, Inc. of the unperfected security interest, it did not have \\\"knowledge\\\" within the meaning of AS 45.05.732(a) (2).\\nAppellant cites the official comment of the drafters of the Uniform Commercial Code on what is AS 45.05.020(27) as follows :\\n27. New. This makes clear that reason to know, knowledge or a notification, although 'received' for instance by a clerk in Department A of an organization is effective for a transaction conducted in Department B only from the time when it was or should have been communicated to the individual conducting that transaction.\\nWhat appellant overlooks is that \\\"notice,\\\" as well as \\\"knowledge,\\\" as defined by AS 45.05.020(25), include \\\"actual knowledge\\\" and that during the conversation between representatives of Sea-Land Sales and Sikes of Foodcrafters, Sikes directly informed them that the equipment was owned by Pelton, was leased, and would have to be returned to Seattle or Utah. This amounted to the communication of \\\"actual knowledge\\\" to Sea-Land Sales which was \\\"knowledge\\\" as well as \\\"notice\\\" under AS 45.05.020(25). The knowledge thus obtained by agents of Sea-Land Service, Inc. was of considerable importance in evaluating the payment responsibility of the consignee and should have been communicated to the principal corporation immediately upon their reporting on the results of their call. The fact that the agents only passed on \\\"limited information\\\" to their principal does not prevent imputing the \\\"knowledge\\\" they obtained to their principal.\\nAppellant next argues that the trial court erred in holding that appellant Stanley had knowledge of appellee's security interest at the time of his July 11, 1968, attachment.\\nNo error was committed. The letter of April 23, 1968, from Pelton's Spudnuts to Allen McGrath, Esq., who was then counsel for Sea-Land Service, Inc. and later counsel for Stanley, enclosed a copy of the sublease between Pelton's and Foodcraft-ers and explained the lease and sublease arrangement between the parties. The letter pointed out that Foodcrafters had no further interest in the property and that it was owned by appellee. The letter of April 26, 1968, from Burda to McGrath likewise explained the lease arrangement and specifically pointed out that the equipment was owned by appellee and that Food-crafters had no interest in it.\\nThe trial court was correct in holding that the knowledge of the ownership of the equipment and the financial relationship of the parties acquired by Mc-Grath as attorney for Sea-Land Service, Inc. was of such a nature and was acquired under such circumstances that it could have been communicated to Stanley without violating the attorney-client rela tionship which existed between McGrath and Sea-Land Service, Inc., and that such knowledge would therefore be imputed to Stanley. Since Stanley had implied, if not actual, knowledge of appellee's security interest in the equipment at the time his July 11, 1968, attachment issued, the attachment was not valid.\\nSince the matter has not been adequately briefed we shall not attempt to attach significance to the fact that on April 10, 1968, appellee had assigned its interest in its lease with Pelton's to National Oven Products of Washington.\\nAlthough not urged at the trial, appellee has urged on appeal that its security interest was perfected when Sea-Land Service, Inc. issued non-negotiable straight bills of lading while the equipment was in its possession.\\nAppellee relies upon AS 45.05.738(c) which provides among other things that a security interest in goods in the possession of a bailee other than one who has issued a negotiable document for the goods is perfected by the issuance of a document in the name of the secured party.\\nThere is no doubt but that Sea-Land Service, Inc. was a bailee within the definition of that term by AS 45.05.534(a) (1) which states:\\n(1) 'bailee' means the person who by a warehouse receipt, bill of lading, or other document of title acknowledges possession of goods and contracts to deliver them .\\nwhen the equipment in question was loaded in its vans and Sea-Land Service, Inc. issued the non-negotiable bills of lading of March 19 and 22, 1968, naming appellee Fabricators, Inc. as consignee, appellee's security interest would thereby have become perfected if it had not in fact already been perfected as the equipment was removed from Foodcrafters' building and placed in Sea-Land's vans which was accomplished by March 22, 1968.\\nThe last point to consider is appellants' contention that appellee's conduct between the date of the Sea-Land Service, Inc. attachment on March 25, 1968, and the attachment by appellant William P. Stanley, was a dishonest attempt to exert what had been a secret lien in order to defeat a valid attachment and that it did not act in \\\"good faith\\\" as defined in AS 45.-05.020(19). Appellants have not indicated the statutory origin of the claimed obligation of good faith owed to them by appel-lee. AS 45.05.029(19) merely defines \\\"good faith\\\" as \\\"honesty in fact in the conduct or transaction concerned.\\\" AS 45.05.024 states:\\nEvery contract or duty within this chapter imposes an obligation of good faith in its performance or enforcement.\\nAS 45.05.020(11) defines a \\\"contract\\\" as \\\"the total legal obligation which results from the parties' agreement.\\\" AS 45.05.-020(3) defines \\\"agreement\\\" as \\\"the bargain of the parties in fact as found in their language or by implication from other circumstances .\\\" Appellants contend that appellee's bad faith was demonstrated by its failure before trial to specifically claim a security interest rather than under the general terms of its lease. A study of the record does not indicate that appellee had had any intention of misleading appellants. We find no violation of the statute in the facts of this case.\\nThe judgment below is affirmed.\\n. AS 45.05.020(37) provides in part:\\n[A]n interest in personal property or fixtures which secures payment or performance of an obligation unless a lease or consignment is intended as security, reservation of title un der the lease or consignment is not a 'security interest,' whether a lease is intended as security is to be determined by the facts of each case; however, (A) the inclusion of an option to purchase does not of itself make the lease one intended for security, and (B) an agreement that upon compliance with the terms of the lease the lessee shall become or has the option to become the owner of the property for no additional consideration or for a nominal consideration does make the lease one intended for security.\\n. See Comment, Equipment Leasing Under the U.C.C., 13 U.C.L.A.L.Rev. 125, 130-34 (1965), and cases cited therein; 1 G. Gilmore, Security Interests in Personal Property 338 (1965).\\n. 231 Md. 552, 191 A.2d 570 (1963).\\n. AS 45.05.736 states:\\nWhen security interest is perfected; continuity of perfection, (a) A security interest is perfected when it has attached and when all of the applicable steps required for perfection have been taken.\\n. AS 45.05.722 states in part:\\nWhen security interest attaches; after-acquired property; future advances. (a) A security interest cannot attach until there is agreement (\\u00a7 20(3)) that it attach and value is given and the debtor has rights in the collateral.\\n. AS 45.05.020(3) in part states:\\n'agreement' means the bargain of the parties in fact as found in their language or by implication from other circumstances including course of dealing or usage of trade or course of performance as provided in chapter (\\u00a7\\u00a7 28 and 64).\\n. Spivak, Secured Transactions Under the Uniform Commercial Code 33 (1962), published by Joint Committee on Continuing Legal Education of the ABA and ALI; W. Warren, 3 California Commercial Law 41-49 (1966) ; Summers, Secured Transactions Under the Uniform Commercial Code, 42 Ore.L.Rev. 1, 8 (1962).\\n.AS 45.05.734 in pertinent part states:\\nWhen filing is required to perfect security interest; security interests to which filing provisions do not apply, (a) A financing statement must be filed to perfect-all security interests except the following:\\n(1) a security interest in collateral in possession of the secured party under \\u00a7 740 of this chapter.\\nSee also AS 45.05.740 which states in part:\\nWhen possession 6y secured party perfects security interest without filing. A security interest in letters of credit and advices of credit (\\u00a7 506(b) (1)), goods, instruments, negotiable documents, or chattel paper may be perfected by the secured party's taking possession of the collateral. A security interest is perfected by posession from the time possession is taken without relation back and continues only so long as possession is retained unless otherwise specified in \\u00a7 690-794 of this chapter.\\n. Paragraph 11 of the agreement between appellee and Spudnut stated in part:\\nupon said cancellation, and at Lessee's expense, crate the subject equipment and ship same to Lessor at Seattle, Washington.\\n. See U.C.C. \\u00a7' 9-305, c 2 and U.C.C. \\u00a7 9-205, o 6.\\n. See National Bank of Alaska v. Sprinkle, 3 N.C.App. 242, 164 S.E.2d 611, 617 (1968).\\n. AS 45.05.732(a) (2) in pertinent part states:\\nPersons who tahe priority over unper-fected security interests; 'lien creditor.' (a) an unperfected security-interest is subordinate to the rights of \\u215c (2) a person who becomes a lien creditor without knowledge of the security interest and before it is perfected * \\u215e *.\\n. See Bloom v. Hilty, 427 Pa. 463, 234 A.2d 860, 861-64 (1967) and Felsenfeld, Knowledge as a Factor in Determining Priorities Under the Uniform Commercial Code, 42 N.X.U.L.Rev. 246, 255-56 (1967).\\n. AS 45.05.738(c) states:\\nA security interest in goods in the possession of a bailee other than one who has issued a negotiable document for the goods is perfected by issuance of a document in the name of the secured party or by the bailee's receipt of notification of the secured party's interest or by filing as to the goods.\\n. The parties have not briefed and we shall therefore not attempt to consider the question of whether Pelton's assumption of possession of the equipment on March 15, 1968, in response to Foodcrafters' notice of option to cancel the agreement, did not render moot any further consideration of the question of a security interest under the provisions of AS 45.05.786 which states:\\nUnless otherwise agreed, a secured party has on default the right to take possession of the collateral. In taking possession, a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action. If the security agreement so provides, the secured party may require the debtor to assemble the collateral and make it available to the secured party at a place to be designated by the secured party which is reasonably convenient to both parties. Without removal, a secured party may render equipment unusable, and may dispose of collateral on the debtor's premises under \\u00a7 788 of this chapter.\\n. See also AS 45.05.040(a) (2) which states: 'good faith' in the case of a merchant means honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade.\"}"

alaska/10571627.json

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+"{\"id\": \"10571627\", \"name\": \"UNITED BONDING INSURANCE COMPANY; Stewart & Fritz, Inc.; and Charles A. Stewart and Anita Stewart, Appellants, v. Walter G. CASTLE, d/b/a Castle Company, Appellee\", \"name_abbreviation\": \"United Bonding Insurance Co. v. Castle\", \"decision_date\": \"1968-08-22\", \"docket_number\": \"No. 876\", \"first_page\": \"454\", \"last_page\": \"458\", \"citations\": \"444 P.2d 454\", \"volume\": \"444\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T20:03:10.515510+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.\", \"parties\": \"UNITED BONDING INSURANCE COMPANY; Stewart & Fritz, Inc.; and Charles A. Stewart and Anita Stewart, Appellants, v. Walter G. CASTLE, d/b/a Castle Company, Appellee.\", \"head_matter\": \"UNITED BONDING INSURANCE COMPANY; Stewart & Fritz, Inc.; and Charles A. Stewart and Anita Stewart, Appellants, v. Walter G. CASTLE, d/b/a Castle Company, Appellee.\\nNo. 876.\\nSupreme Court of Alaska.\\nAug. 22, 1968.\\nH. Russel Holland, of Stevens & Holland, Anchorage, for appellants Stewart & Fritz and Charles and Anita Stewart.\\nRichard O. Gantz and Robert C. Erwin, of Hughes, Thorsness & Lowe, Anchorage, for appellant United Bonding Ins. Co.\\nKenneth McCaskey, of Robison, Mc-Caskey & Strachan, Anchorage, for ap-pellee.\", \"word_count\": \"2202\", \"char_count\": \"12801\", \"text\": \"OPINION\\nBefore NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.\\nDIMOND, Justice.\\nThe state contracted with appellant, Stewart & Fritz, Inc., for placing fill for a parkway apron at the Homer airport. Stewart & Fritz made an agreement with appellee, Castle Company, to furnish trucks and a loader for the job. The parties disagreed over the amount due Castle, and the latter brought this suit for recovery of monies due under the agreement.\\nSuit was filed by Castle against appellant, United Bonding Insurance Company, the surety of the payment bond of Stewart & Fritz. United Bonding then filed a third party complaint against Stewart & Fritz which was dismissed when the latter intervened as a defendant in the action. The jury returned a verdict in favor of Castle, and both Stewart & Fritz and United Bonding have appealed.\\nStewart & Fritz Appeal\\nFill was to be hauled by Castle with its trucks from two places, one located about one mile from the job site, referred to as the short haul, and the other, somewhat less than three miles from the job site, referred to as the long haul. There was no dispute as to the number of truck loads hauled to the job site, there being 3,208 short hauls and 2,288 long hauls. The dispute arose over the amount Castle was to be paid for hauling the fill. Stewart & Fritz's version of the agreement was that Castle was to be paid SO cents a yard on the short haul and 90 cents a yard on the long haul, with quantities to be measured after the fill was in place and compacted. On the other hand, Castle's version of the agreement was that he was to be paid $5.00 a load for the short haul and $9.00 a load for the long haul, with quantities to be measured as they were placed in the trucks prior to compaction at the fill site.\\nAccording to Stewart & Fritz's version of the agreement, the total amount due Castle for gravel hauling was $19,829.00. According to Castle's version of the agreement, the total amount due would have been $36,632.00. The jury's verdict reflected that the total recovery attributable to gravel hauling was $32,969.00. This latter figure could be arrived at, Stewart & Fritz contend, only by the jury rejecting both Stewart & Fritz's and Castle's versions of the agreement, and by computing Castle's recovery on the basis of 9 uncompacted yards per truckload, at the price of 50 cents a yard for the short haul and 90 cents a yard for the long haul. Stewart & Fritz argue that since the jury rejected the two theories of the agreement that had been presented by the parties, it was pure speculation on the jury's part and the remaking of the contract to compute Castle's recovery on the basis that the jury appears to have used. In short, the point made by Stewart & Fritz on this appeal is that the verdict and judgment should be set aside because the verdict was contrary to the weight of the evidence.\\nTo hold that the verdict was contrary to the weight of the evidence is equivalent to saying that under the evidence the jury could not reasonably have decided as they did. To reach such a conclusion it would have to appear that evidence to support the verdict was completely lacking or was so slight and unconvincing as to make the verdict plainly unreasonable and unjust.\\nWe cannot reach that conclusion. Castle testified that there was to be paid $5.00 a load for the short haul and $9.00 a load for the long haul. But he also testified that his understanding of the agreement was for SO cents a yard for the short haul and 90 cents a yard for the long haul, and he had converted this into certain amounts for. each load apparently on the basis that each load consisted of 10 yards. The evidence was in dispute as to the number of yards of fill in a truckload. Evidence on behalf of Stewart & Fritz tended to show that each load consisted of 3 loader buckets, and that this amounted to 7 yards of fill. On the other hand, Castle testified that each loader bucket held 3 yards, which would mean that with 3 loader buckets for each load a load would consist of 9 yards.\\nThis evidence, together with Castle's testimony as to the SO cents and 90 cents a yard payments to be made for the short and long hauls, respectively, would mean that the jury had reason for finding that payment was to be made on the basis of 9 yards for each load at the SO cents and 90 cents figures testified to. Furthermore, this also shows an evidentiary basis for a determination that payment was to be made on the basis of uncompacted yardage, i. e., on the basis of the number of yards of loose fill in each truckload. Castle's testimony that payment was to be made on the basis of a certain amount per yard, which he converted into a certain amount for each load, could be construed by the jury as meaning that Castle understood the agreement as contemplating payment on the basis of each truck load of fill before it was dumped at the job site and compacted. Unless this is what Castle understood the agreement to be, there would be no point to his converting the price per yard to a certain sum per load. This could indicate to the jury that Castle understood that payment was to be made on the basis of the number of yards of fill that was contained in a truck at the time the truck was loaded, and not the number of yards of fill after dumping and compaction.\\nThere was an evidentiary basis for the jury's decision, which turned upon disputed facts. We hold that the verdict was not contrary to the weight of the evidence. As to Stewart & Fritz, the judgment must be affirmed.\\nUnited Bonding's Appeal\\nCastle's complaint alleged that United Bonding had \\\"issued a bond on behalf of Stewart & Fritz, Inc. in connection with a contract with the State of Alaska This allegation was admitted by United Bonding in its answer to the complaint. In addition, the complaint alleged that pursuant to statute Stewart & Fritz, as principal, and United Bonding, as surety, had \\\"delivered to [the] State the Performance and Payment bonds, conditioned as required by statute.\\\" This allegation was denied in United Bonding's answer to the complaint on the ground that United Bonding lacked knowledge or information sufficient to form a belief as to the truth of such allegation.\\nAt the close of Castle's evidence, United Bonding's counsel said, \\\"We move for judgment at this time.\\\" No reasons were stated. The court denied the motion. At the close of all the evidence, counsel moved for \\\"dismissal as to United on the basis that this liability is based upon a bond and the bond has not been put into evidence, there's no testimony on the bond. \\\" The court stated: \\\"I'm going to submit the case to the jury I'm going to order the bond to be filed. \\\" After the jury had returned its verdict against Stewart & Fritz and United Bonding, the court reopened the case to permit the introduction in evidence of the original payment bond which had been in the possession of the state. United Bonding's motion for judgment notwithstanding the verdict was denied.\\nOn this appeal United Bonding contends that Castle failed to introduce any evidence as to the execution, delivery and acceptance of the payment bond, and therefore by the time the case went to the jury there had been presented nothing in the way of evidence from which the jury could find that United Bonding was obli gated to Castle as a surety of Stewart & Fritz. For this reason United Bonding contends that the court erred in refusing to grant judgment in its favor. In addition, United Bonding argues that the court, in permitting the introduction in evidence of the bond after the jury had rendered its verdict, denied United Bonding a jury trial on the issues of execution, delivery and acceptance of the bond.\\nIn interrogatories propounded to United Bonding by Castle this question was asked:\\n2. Did you furnish a payment bond for State of Alaska said bond having been executed on February 12, 1965 and signed by Francis Sprague, attorney in fact, and attested by Mary Miller?\\nThe answer of United Bonding was \\\"yes\\\". This constituted an admission by United Bonding that a payment bond had been executed and delivered to the state on the project involved in this action.\\nThe pre-trial order provided in part:\\nThe bonding company, United Bonding Insurance, has claimed for indemnification from the prime contractor and it has been stipulated between the bonding company and the prime contractor that any judgment recovered by the plaintiff against the bonding company may be recovered against the prime contractor.\\nIf there were to be indemnification from Stewart & Fritz to United Bonding on any judgment found against the latter, this implies that there was a principal-surety relationship between the parties, which in turn leads to the conclusion that a payment bond was in effect. In addition, no mention was made in the pre-trial order that execution or delivery or acceptance of the bond was in issue. The purpose of pre-trial is to clearly define all issues to be tried and decided \\u2014 hidden issues or defenses are not to be tolerated. Issues not presented at pre-trial may not be later raised at the trial. United Bonding was precluded from raising an issue as to the execution or delivery or acceptance of the payment bond in question by reason of its failure to raise the issue at pre-trial proceedings.\\nThere is yet another reason why it was unnecessary for Castle to prove by direct evidence the existence of the payment bond. AS 36.25.010(a) requires that before a state contract may be awarded, the contractor must furnish to the state a payment and performance bond. The evidence shows that the state made progress payments to Stewart & Fritz, the prime contractor. Since under the statute just mentioned the awarding of the contract, and necessarily the making of payments under the contract, is conditioned upon the furnishing of a payment and performance bond, it may be concluded from the fact that payments were made under the contract that the required bond had been furnished the state. Such a conclusion is based upon the presumption that official duty has been regularly performed \\u2014 that state officials would not have awarded the contract and made progress payments to Stewart & Fritz had the required bond not been filed.\\nThere was a sufficient basis for the jury to find that United Bonding was obligated to Castle as surety on a payment bond without the necessity of Castle introducing the bond in evidence.' Hence, United Bonding was not denied a jury trial on the issue of the execution, delivery and acceptance of the bond, and the trial court did not err in refusing to grant judgment for United Bonding.\\nThe judgment is affirmed.\\n. At 50 cents a yard for 3,208 short hauls and 90 cents a yard for 2,288 long hauls, using 9 uncompacted yards for each truck load, Castle would have earned $32,969.-00, which is the figure reflected by the jury's verdict.\\n. Alaska Brick Co. v. McCoy, 400 P.2d 454, 457 (Alaska 1965).\\n. Ahlstrom v. Cummings, 388 P.2d 261, 262 (Alaska 1964).\\n. Lumbermens Mut. Cas. Co. v. Continental Cas. Co., 387 P.2d 104, 111 (Alaska 1963).\\n. Blanken v. Bechtel Properties, Inc., 194 F.Supp. 638 (D.D.C.1961), aff'd, 112 U.S.App.D.C. 97, 299 F.2d 928 (D.C.Cir. 1962) ; McCarthy v. Lerner Stores Corp., 9 F.R.D. 31 (D.D.C.1949).\\n. AS 36.25.010(a) provides :\\nBefore a contract exceeding $2,000 for the construction, alteration, or repair of a public building or public work of the state is awarded to a contractor, the contractor shall furnish to the state the following bonds, which become binding upon the award of the contract to that contractor:\\n(1) a performance bond with a corporate surety qualified to do business in the state, or at least two individual sureties who shall each justify in a sum equal to the amount of the bond; the amount of the performance bond shall be equivalent to the amount of the payment bond;\\n(2) a payment bond with a corporate surety qualified to do business in the state, or at least two individual sureties who shall each justify in a sum equal to the amount of the bond for the protection of all persons who supply labor and material in the prosecution of the work provided for in the contract\\n. Irwn v. Radio Corp. of America, 430 P.2d 159, 161 (Alaska 1967).\"}"

alaska/10575254.json

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+"{\"id\": \"10575254\", \"name\": \"Arthur Vernon WATSON, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Watson v. State\", \"decision_date\": \"1966-04-07\", \"docket_number\": \"No. 571\", \"first_page\": \"22\", \"last_page\": \"27\", \"citations\": \"413 P.2d 22\", \"volume\": \"413\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-11T02:39:16.322700+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before NESBETT, C. J., and DIMOND' and RABINOWITZ, JJ.\", \"parties\": \"Arthur Vernon WATSON, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Arthur Vernon WATSON, Appellant, v. STATE of Alaska, Appellee.\\nNo. 571.\\nSupreme Court of Alaska.\\nApril 7, 1966.\\nJohn R. Strachan, Josephson & Strachan, Anchorage, for appellant.\\nWarren C. Colver, Atty. Gen., Juneau^ John K. Brubaker, Dist. Atty., Anchorage, for appellee.\\nBefore NESBETT, C. J., and DIMOND' and RABINOWITZ, JJ.\", \"word_count\": \"3054\", \"char_count\": \"18063\", \"text\": \"RABINOWITZ, Justice.\\nAppellant was indicted for the first degree murder of Marion T. Grissom. After trial by jury he was found guilty of murder in the second degree. Appellant appealed and in Watson v. State of Alaska this, court reversed his conviction and remanded, the case for a new trial.\\nAppellant's conviction was reversed because of error committed by the trial court in admitting certain hearsay evidence regarding appellant's temper. At appellant's-first trial the prejudicial hearsay evidence-was received under the following circumstances :\\nA state police officer testified that Mrs.. Watson was in bed when he arrived at the scene. Approximately two hours later, near the end of the police investigation, she came into the living room, saw blood on the floor and asked what it was. When told that it was blood, she asked, 'From what?' She was informed that her husband had shot Grissom. The police officer testified that she then exclaimed,. 'Oh, no', and turning to her husband said, 'It's your temper, your temper has done it again.' Another police officer also testified to essentially the same thing.\\nThis court rejected the state's contention that Mrs. Watson's statement was admissible under the res gestae exception to the hearsay rule. It was further held': that the admission into evidence of this statement of Mrs. Watson was prejudicial error. This conclusion was reached on the basis that:\\nA jury would naturally assume that a wife, more than anyone else, would have a special familiarity with her husband's character and temperament. The purport of Mrs. Watson's statement was that she believed that Grissom had been killed because her husband had lost control of his temper. This aspect was emphasized by the district attorney in his argument to the jury. We cannot say with any degree of assurance that this expression of belief, coming from the lips of Watson's wife, did not cause the jury to entertain grave doubts that Watson was speaking the truth when he said that he had shot Grissom in self-defense. There must be a new trial.\\nUpon remand and retrial of the second degree murder charge, appellant was again found guilty of second degree murder. Appellant appeals from this second conviction.\\nIn the present appeal appellant asserts that the trial court committed error in denying his motion for a new trial once he had shown that members of the jury had read a newspaper article, which appellant characterizes as \\\"prejudicial,\\\" in the jury room before reaching their verdict.\\nThe record discloses that on Friday, November 6, 1964, which was the last day of the trial before the jury was given the case for deliberation, the Anchorage Daily Times printed an article concerning appellant's first trial. This article in its pertinent parts stated that:\\nThe state Supreme Court unanimously reversed the conviction saying Judge Hubert Gilbert's court had erred in admitting hearsay evidence from a state police officer on remarks Watson's wife made when told Watson had killed Gris-som.\\nThe remarks attributed to Mrs. Watson were 'Oh, no, it's your temper, your temper has done it again.'\\nThe Supreme Court ordered a new trial.'\\nApproximately two weeks after the jury had returned its verdict in the second trial, appellant filed a supplemental memorandum in support of a motion for judgment of acquittal or in the alternative for a new trial. In this supplemental memorandum, appellant for the first time brought to the attention of the trial court the possibility that the jury might have read the November 6, 1964, article which appeared in the Anchorage Daily Times before they reached their verdict.\\nSix affidavits from jurors were filed in support of appellant's motion for a new trial. The affidavit of juror Gene R. Jones is one of the more significant of these affidavits. In his affidvait, Mr. Jones stated in part:\\nOn the afternoon of November 6, 1964, I remember going downstairs in the State Court Building and buying an Anchorage Daily Times from the blind fellow who has the concession stand.\\nI took this newspaper back to the jury assembly room as the jury was out of the courtroom on that date from 2:00 P.M. to approximately 4:00 P.M.\\nIn this Anchorage Daily Times newspaper of November 6, 1964, I remember reading an item pertaining to the State of Alaska vs. Arthur V. Watson case.\\nTwo other jurors made affidavits to the same effect as the affidavit of juror Ob-loy.\\nOur review of the record of the second trial, the newspaper article in question, and the jurors' affidavits, convinces us that appellant is entitled to a new trial.\\nIn our recent opinion in West v. State, we alluded to the fact that \\\"It is the overwhelming weight of authority that a juror generally cannot impeach the jury's verdict by his testimony or affidavit.\\\" In> the West case we concluded that the facts-there did not warrant permitting the juror to impeach his verdict.\\nOf significance to this appeal is that portion of our opinion in West v. State ' where Chief Justice Nesbett wrote:\\nExceptions to the general rule have been made and it has been held that the-type of misconduct which may impeach a verdict is fraud, bribery, forcible coercion or any other obstruction of justice. Whether the verdict should be set aside- and a new trial ordered rests in the sound discretion of the trial judge, but generally the verdict should stand unless the evidence clearly establishes a serious violation of the juror's duty and deprives a party of a fair trial.\\nWe hold that appellant's showing in support of his motion for a new trial demonstrates that a case has been made out for an exception to the general rule which prohibits jurors from impeaching their ver- \\u2022diets. 'We are of the further opinion that in view of the record in this case appellant's showing clearly establishes that he was deprived of a fair trial by virtue of the jury's knowledge of the contents of the November 6, 1964, article which appeared in the Anchorage Daily Times.\\nAt the second trial appellant did not .adduce any evidence on his own behalf. .After the state had completed its case in chief appellant rested without offering any evidence. At no point in the transcript of the trial can there be found any reference \\u2022to appellant's temper or to any statement by appellant's wife alluding to appellant's .temper.\\nOn the basis of the showing made by ap-pellant in moving for a new trial, it is reasonable to conclude, and we so find, that \\\"the very same evidence which we found to be erroneously and prejudicially received in the first trial was once again \\u2022erroneously considered by the jury in appellant's second trial.\\nAt the second trial the prejudicial character of this statement of Mrs. Watson's was equally as great. The state's case .against the appellant was primarily based -upon circumstantial evidence. As in the first trial, the issues of whether or not the homicide was justifiable and whether or mot the appellant acted in self-defense were -submitted to the jury. Here the very statement, which by virtue of the law of the case had previously been determined to be inadmissible and prejudicial, was actually before the jury without the knowledge of either the trial court or the respective counsel. Thus none of the traditional .safeguards inherent in the presence and function of the trial judge and the respective opposing counsel were present to counteract this prejudicial and inadmissible hearsay statement of appellant's wife reported in the November 6 newspaper article.\\nOn this issue we think the opinion of the Supreme Court of the United States in Marshall v. United States is apposite. The question in the Marshall case was \\\"whether exposure of some of the jurors to newspaper articles about petitioner was so prejudicial in the setting of the case as to warrant the exercise\\\" by the Supreme Court of its supervisory power to order a new trial. In the Marshall case, petitioner had been charged with unlawfully dispensing a drug in violation of federal law. During the course of the trial, newspaper accounts as to petitioner's prior illegal practice of medicine had reached the jurors. It is also pertinent to note that at the trial the judge had ruled that evidence of petitioner's prior illegal practice of medicine was so prejudicial that it should not be received into evidence.\\nIn a per curiam opinion in Marshall, the Supreme Court stated:\\nThe trial judge has a large discretion in ruling on the issue of prejudice resulting from the reading by jurors of news articles concerning the trial. Holt v. United States, 218 U.S. 245, 251, 31 S.Ct. 2, 6, 54 L.Ed. 1021, 1029, 20 Ann. Cas. 1138. Generalizations beyond that statement are not profitable, because each case must turn on its special facts. We have here the exposure of jurors to information of a character which the trial judge ruled was so prejudicial it could not be directly offered as evidence. The prejudice to the defendant is almost certain jp be as great when that evidence reaches the jury through news accounts as when it is a part of the prosecution's evidence. Cf. Michelson v. United States, 335 U.S. 469, 475, 69 S. Ct. 213, 218, 93 L.Ed. 168, 173. It may indeed he greater for it is then not tempered by protective procedures.\\nIn the exercise of our supervisory power to formulate and apply proper standards for enforcement of the criminal law in the federal courts we think a new trial should be granted.\\nNot unlike the Marshall case, the record of appellant's second trial discloses that the jurors were exposed to \\\"information of a character\\\" which this court had previously held so prejudicial as to require a new trial. Unlike the Marshall case, the trial judge in the case at bar had no opportunity to ascertain the impact of this evidence and to adopt appropriate protective measures before the jury was discharged. The prejudicial circumstances are stronger in this appeal than in the Marshall case. Under our concomitant supervisory power to formulate standards for the enforcement of criminal law in the courts of the State of Alaska, we are of the opinion that the trial court erred in not granting appellant's motion for new trial.\\nAppellant also asserts as error the trial court's failure to grant his motions for judgment of acquittal made after the state had rested its case in chief and renewed after the jury had returned its verdict of guilty of murder in the second degree. We are of the opinion that the trial court correctly denied appellant's motions for acquittal. In Davis v. State, this court adopted the rule that when\\n[Ajppellants are challenging the sufficiency of the evidence to support the verdict and judgment, which is presented by the motions for acquittal, this court may consider only those facts heretofore recited which are most favorable to-the state and such reasonable inferences as the jury may have drawn therefrom.\\nSubsequently in Jennings v. State, we had occasion to again refer to the rule enunciated in the Davis case. In this later opinion we stated:\\nThe test set down in the Davis case is equivalent to the rule established in Bush v. State, to the effect that a case should be submitted to the jury only if fair minded men in the exercise of reasonable judgment could differ on the question of whether guilt had been established beyond a reasonable doubt. If they could not differ, but must necessarily have such a doubt, then a judgment of acquittal should be granted.\\nViewing the facts and reasonable inferences therefrom in the light most favorable to the state, we are of the opinion that the evidence adduced by the state precluded the granting of appellant's motions for acquittal under the Davis and Jennings tests.\\nIn support of his contention that acquittal should have been granted, appellant also-argues that the state's evidence failed to-exclude every reasonable hypothesis excepting that of guilt. This contention is-disposed of by what we have said above as-to the evidence being sufficient to preclude \\u215b\\u215b granting of appellant's motion for ac\\u2022quittal.\\nFor the reasons above stated, the conviction of appellant is reversed and the cause remanded for a new trial.\\n. 387 P.2d 289 (Alaska 1963).\\n. Id. at 290-291.\\n. Supra note 1, at 291. The state alternatively sought to sustain the admissibility of this evidence on the basis of\\nthe rule that when an accused is silent in the face of an accusatory or inculpa-tory statement, both the statement and the accused's failure to deny its truth are admissible in a criminal action as evidence of acquiescence by the accused in the truth of the statement or as indicative of a consciousness of guilt.\\nIn Watson v. State, supra note 1, at 291-292, this court held that the above rule had no applicability to the facts of the-case.\\n. Supra note 1, at 292.\\n. After remand the trial court concluded that the jury's verdict of guilty as to the second degree murder resulted in an acquittal as to the first degree murder charge.\\n. The trial court denied appellant's motion for a new trial on this ground and sentenced appellant to fifteen years' imprisonment.\\n. This article appeared on page 10 of the November 6, 1964, edition of the Anchorage Daily Times. The headline of the article read \\\"New Watson Trial Begins.\\\"\\n. Mr. Doe P. Dosephson, who was appellant's trial counsel at the second trial, states in an affidavit which he filed in support of appellant's motion for a new trial that:\\nIt was not until several days following the jury verdict that affiant learned from juror, Mary Lou Obloy, by telephone, that the newspaper articles in question had been available to the jurors. That my [sic] reason of this, conversation with Mary Lou Obloy, af-fiant directed F. X. Wirth, Jr. and D. V. (James) Childers, investigators, to inquire of members of the jury panel in this case regarding the newspaper articles in question. That accordingly, af-fiant had no opportunity to bring the question of the newspaper articles and their reading by the jurors to the attention of this court prior to the time the jury was excused to deliberate. I remember that the article stated that the original trial had been declared a mistrial by a higher court due to the allowance of hearsay evidence being introduced. X remember reading that this hearsay evidence was a statement made, I believe, by a police officer that Mrs. Watson had made some statement to the effect that Mr. Watson had an extreme temper. I remember this item being brought up in the jury room and someone making a statement to the effect that most of the testimony we had was hearsay testimony. I don't recall who made this statement. X could have taken this above-mentioned newspaper into the jury room. I do not recall speeifi-eally.\\nJuror Mary Lou Obloy, in her affidavit, stated in part:\\nI also heard someone, I am not certain who it was, say that if Watson took the stand he might lose Ms temper or fly off the handle, or words to that effect.\\n.Juror Lois Turinsky said substantially the same thing in her affidavit. She stated:\\nI distinctly remember hearing the remark from someone that Watson might lose his temper if he took the stand', or words to that effect. I do not remember offhand who made this statement.\\nJuror Adele Kelly, in her affidavit, stated in part:\\nI heard someone say that if Watson went on the stand, he might lose his temper or maybe fly off the handle while he was being questioned. I do not remember exactly who made this statement but I wondered at the time how anyone would know that he had a temper such as this indicated.\\nJuror Prances Prazier's affidavit related that she heard someone say \\\"that the other trial was declared a mistrial because of hearsay evidence.\\\" Juror Martin P. Pliehler's affidavit was to the effect that juror Gene Jones purchased a newspaper on Priday and brought it back to the jury room.\\n. 409 P.2d 847 (Alaska, January 21, 1966).\\n. Id. at 852. Por the policy reasons underlying this rule, we cited McDonald v. Pless, 238 U.S. 264, 267, 35 S.Ct. 783, 59 L.Ed. 1300, 1302 (1915).\\n. Supra note 10, at 852.\\n. Supra note 10, at 852.\\n. AS 11.15.100 provides:\\nThe killing of a human being is justifiable when committed by any person\\n(1) to prevent the commission of a felony upon him, or upon his wife, \\u215d.\\nBesides evidence of physical injuries on the persons of the decedent (other than the fatal bullet wound) appellant and appellant's wife, the record discloses that William Kitchens testified that appellant told him that the decedent \\\"was rapin' his wife, and he shot him.\\\" The former Chief of Police of Kenai, Alaska, testified that appellant told him that Grissom had charged toward him at the time of the shooting.\\n. 360 U.S. 310, 312-313, 79 S.Ct. 1171, 1173, 3 L.Ed.2d 1250, 1252 (1959).\\n. Supra note 15, at 312-313, 79 S.Ct. at 1173, 3 L.Ed.2d at 1252.\\n. 369 P.2d 879, 881 (Alaska 1982).\\n. The rule articulated in Davis, supra, lias been subsequently applied in Bush v. State, 397 P.2d 616, 618 (Alaska 1964); Eaton v. State, 390 P.2d 218, 219 (Alaska 1964); Daniels v. State, 388 P.2d 813, 816 (Alaska 1964); Hanrahan v. City of Anchorage, 377 P.2d 381, 384 (Alaska 1962); Goss v. State, 369 P.2d 884 (Alaska), cert. denied, 371 U.S. 843, 83 S.Ct. 75, 9 L.Ed.2d 79 (1962).\\n. 404 P.2d 652 (Alaska 1965).\\n. Id. 404 P.2d at 654.\\n. In Davis v. State, supra note 17, 369 P.2d at 882, this court held that when the prosecution's case is based on circumstantial evidence it is\\nincumbent upon the state to produce evidence of circumstances which excluded every reasonable hypothesis except that of guilt. In other words, the circumstantial evidence had to be such as to exclude every reasonable theory consistent with Davis' innocence.\\n. Jennings v. State, supra note 19, 404 P.2d at 654.\"}"

alaska/10575406.json

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+"{\"id\": \"10575406\", \"name\": \"Phil BIELE, John R. Murphy, Neil Peterson, Frank Sarber, and Norman D. Tate, Appellants, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Biele v. State\", \"decision_date\": \"1962-05-29\", \"docket_number\": \"No. 152\", \"first_page\": \"811\", \"last_page\": \"814\", \"citations\": \"371 P.2d 811\", \"volume\": \"371\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T23:47:14.645837+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before NESBETT, C. J., and DIMOND and AREND, JJ.\", \"parties\": \"Phil BIELE, John R. Murphy, Neil Peterson, Frank Sarber, and Norman D. Tate, Appellants, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Phil BIELE, John R. Murphy, Neil Peterson, Frank Sarber, and Norman D. Tate, Appellants, v. STATE of Alaska, Appellee.\\nNo. 152.\\nSupreme Court of Alaska.\\nMay 29, 1962.\\nRobert J. Annis, of Robertson, Monagle, Estaugh & Annis, Juneau, for appellant.\\nJack O\\u2019Hair Asher, Dist. Atty., Juneau, for appellee.\\nBefore NESBETT, C. J., and DIMOND and AREND, JJ.\", \"word_count\": \"1877\", \"char_count\": \"11033\", \"text\": \"DIMOND, Justice.\\nThe appellants are commercial fishermen. After a trial by jury in the district magistrate court, they were convicted of a misdemeanor of taking or attempting to take fish in an area closed to fishing, in violation of the Fish and Game Code of Alaska and regulations of the Alaska Board of Fish and Game. On appeal to the superior court, the convictions were affirmed, and a further appeal has been taken to this court.\\nAppellants urge reversal on two grounds: (1) that their constitutional privilege against self-incrimination was violated; and (2) that a news broadcast of proceedings had at the trial, heard by three members of the jury, was seriously prejudicial.\\n1.S elf-Incrimination.\\nThe events which gave rise to the first point on appeal occurred during the direct examination of Robert Lowe, a witness for the state. As an Assistant Attorney General of Alaska he had investigated the reported fishing violation, and in the course of the investigation questioned each of the appellants. He testified that he told them he was investigating a fishing violation that had occurred during the week of July 17, 1960, that they need not make any statements, that any statements they did make could be used against them as evidence in a court of law, that they were not under arrest, and that if they did not want to answer questions they did not have to. He went on to state what the appellants had told him regarding their presence on the fishing boat SURF during the period July 19, 20 and 21, I960, and then near the close of the direct examination testified as follows:\\n\\\"Q. Now, did you make it absolutely clear to these defendants what violations that you were checking?\\n\\\"A. I told them that we were checking a fishing violation that occurred during the week' \\u2014 the fishing week, of beginning the 18th. Of course, at that particular time we were investigating, I didn't have all the details.\\n\\\"Q: Did you \\u2014 did they understand that they were under suspicion of being interrogated as to this particular violation ?\\n\\\"A. .I'm sure there was no misunderstanding there, because of.some of the statements that they didn't wish to make.\\n\\\"Q. Did any of them\\u2014\\n\\\"MR. ANNIS: I beg your pardon?\\n\\\"A. (By Mr. Lowe) I said that I am sure that there was no misunderstanding because of some of the statements that \\u2014 or questions that I asked, that they did not wish to answer.\\\"\\nAt this point appellants' counsel asked to have the jury excused, and then moved for a mistrial on the ground that the appellants' privilege against self-incrimination had been violated. The motion was denied, and the magistrate instructed the jury to disregard the testimony.\\nThe substance of what transpired at this point in the trial, as appellants state in their briefs, is this: the jury learned that appellants had not wished to answer \\\"some\\\" questions, and because of this, that the witness had reached the conclusion appellants knew he was investigating a particular fishing violation. It is argued that this testimony caused the jury to draw an inference of guilt by reason of the appellants' refusal to answer questions involving the violation with which they were later charged. Appellants contend this violated the intent of the constitutional provision that no person shall be compelled in a criminal proceeding to be a witness against himself.\\nIn support of this argument reliance is placed on a 1955 decision of the United States Court of Appeals for the Fifth Circuit. In Helton v. United States, a defendant had been charged with crimes relating to the illegal acquisition and production of marijuana. Evidence was produced showing that in a police search of the defendant's home marijuana had been found in a tobacco can in the pocket of a raincoat in a closet, and also under the dashboard in his automobile. In addition, some was found growing in the back yard of his home.\\nThe defendant did not take the stand. Over objections of counsel, a police officer was allowed to testify that defendant had made no explanation as to how the can of marijuana got in the raincoat in the closet, that he had offered no explanation as to how the marijuana stalks got in the back yard, and that he had not explained how the marijuana got in the automobile. The court of appeals held that such testimony was an attempt to convict the defendant by his silence, by having the jury draw an inference of guilt from his refusal to explain, in violation of the spirit, if not the letter, of the Fifth Amendment.\\nThis decision is clearly distinguishable from the case at hand. In Helton the trial court had permitted, over continuous objections repeated statements by a police officer that the accused had failed to explain incriminating facts. In this case there is only one unresponsive statement from the witness Lowe to the effect that appellants had not wished to answer \\\"some\\\" questions. What the questions were \\u2014 whether they related to incriminating facts \\u2014 was not disclosed. In Helton the trial judge did not instruct the jury to disregard the testimony. In this case such instruction was given. Finally, in the Helton case there was an incident of other testimony, considerably more prejudicial than that relating to the defendant's failure to explain. A witness had testified that when he questioned the defendant regarding marijuana in and around his home, the defendant had told him that \\\"he had been smoking marihuana intermittently very seldom for the past four or five years.\\\" The appellate court found that this evidence was so highly prejudicial \\u2014 was calculated to leave such an impression on the jury \\u2014 that a mistrial ought to have been ordered. In this case we find nothing even remotely resembling an error of such magnitude.\\nThe circumstances here simply do not warrant a finding that Lowe's brief, innocuous and rather vague testimony could have appreciably influenced the jury to convict appellants by reason of their silence. But even assuming that what the witness said ought not to have been said in front of the jury, the guilt of appellants is so plain that a, far more serious blunder in the conduct of the trial would be necessary to require a reversal. It was established through appellants' own admissions that they were on board the vessel SURF as commercial fishermen on the day the violation took place. It was clearly proved through the testimony of two eyewitnesses for the state that the identical vessel with a crew of five had put out a seine net in an attempt to take fish, which were present in large number, in an \\u00e1rea closed to commercial fishing. These witnesses were not impeached, their testimony was not contradicted, and the appellants did not put on a defense. In the light of- this record it is scarcely conceivable that the jury could have reached a verdict other than that of guilty. The alleged prejudicial testimony was of little or no consequence.\\n2. The News Broadcast.\\nAn evening news broadcast of proceedings at the first day of trial was made by radio and television. The following morning appellants' counsel moved for mistrial on the ground that the news report, although factually correct, contained a conclusion of the reporter which would have been prejudicial if heard by the jury. The motion was denied.' Counsel requested the magistrate to examine the jurors to determine whether or not they heard the broad cast, but he made it clear he did not want them examined as to any effect the report may have had on them. Following counsel's suggestion, the magistrate asked the jury if any had heard the broadcast, and three indicated they had. He then instructed those jurors to disregard the broadcast, and reminded them they were to make a determination on the case solely on the evidence presented in court and the instructions. This instruction had been approved by appellants' counsel.\\nAs we stated in Oxenberg v. State, the fundamental question to be determined in an instance of this type is whether the news report was prejudicial \\u2014 whether it is likely that the jury's verdict was affected by reason of what the reporter had said. Such likelihood does not appear. We have examined the entire transcript of the testimony referred to in the broadcast, and find that it was an accurate report of what transpired in court, as appellants concede.\\nAppellants, however, argue that the report was prejudicial because it contained in part a \\\"comment on the testimony of the state's witnesses.\\\" To a limited extent such comment was made by the reporter. But it was fair comment, and we see nothing in it that reasonably could have influenced the jury to find appellants guilty.\\nIt is also argued that the report had a prejudicial effect because it included \\\"only excerpts of the most damaging parts of the state's evidence, without including other features of the cross-examination.\\\" The result of this argument is that no person charged with a criminal offense could ever receive a fair trial unless (1) the public was kept completely uninformed of what took place in court, or (2) unless the publicity given to what occurred at the trial always included a report of facts which favored the defense. The concept of a fair trial does not require us to go that far.\\nThe appellants have failed to show any prejudice resulting to them from the news broadcast. We hold that the magistrate did not abuse his discretion in denying the motion for mistrial.\\nThe judgment is affirmed. The stay of judgment as to appellant, Norman D. Tate, ordered by this court on June 30, 1961, is vacated.\\n. SLA 1959, ch. 94, art. I, \\u00a7 28.\\n.This \\\"privilege\\\" referred to is that con-' forred by the Alaska Constitution,- art. I, \\u00a7 9, which provides in part that \\\"No person shall be compelled in any criminal proceeding to be a witness against himself.\\\"\\n. Two other witnesses for the state had previously testified they observed the vessel STJR.F and her crew of five engage in illegal fishing during the evening of July 19.\\n. Alaska Const. art. I, \\u00a7 9, supra note 2.\\n. 221 F.2d 338 (5th Cir. 1955).\\n. The Fifth Amendment to the federal constitution provides that no person \\\"shall be compelled in any criminal case to be a witness against himself.\\\" This is virtually identical with the language of the prohibition found in the Alaska Constitution, art. I, \\u00a7 9, which provides that \\\"No person shall be compelled in any criminal proceeding to be a witness against himself.\\\"\\n. Nash v. United States, 54 F.2d 1006 (2d Cir.), cert. denied, 285 U.S. 556, 52 S.Ct. 457, 76 L.Ed. 945 (1932).\\n. Opinion No. 36, 362 P.23 893, 899-900 (Alaska), cert. denied, 368 U.S. 56, 82 S.Ct. 189, 7 L.Ed.2d 128 (1961).\\n. Marrone v. State, No. 27, 359 P.2d 969, 976-978 (Alaska 1961).\"}"

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+"{\"id\": \"10581529\", \"name\": \"STOCK & GROVE, INCORPORATED, Appellant, v. CITY OF JUNEAU, a Municipal Corporation, Appellee\", \"name_abbreviation\": \"Stock & Grove, Inc. v. City of Juneau\", \"decision_date\": \"1965-06-21\", \"docket_number\": \"No. 535\", \"first_page\": \"171\", \"last_page\": \"177\", \"citations\": \"403 P.2d 171\", \"volume\": \"403\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-11T02:39:00.982508+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before NESBETT, C. J., and DIMOND and RABINO WITZ, JJ.\", \"parties\": \"STOCK & GROVE, INCORPORATED, Appellant, v. CITY OF JUNEAU, a Municipal Corporation, Appellee.\", \"head_matter\": \"STOCK & GROVE, INCORPORATED, Appellant, v. CITY OF JUNEAU, a Municipal Corporation, Appellee.\\nNo. 535.\\nSupreme Court of Alaska.\\nJune 21, 1965.\\nDonald L. Craddick, Faulkner, Banfield, Boochever & Doogan, Juneau, for appellant.\\nShirley F. Meuwissen, Stabler, Gregg & Meuwissen, Juneau, for appellee.\\nBefore NESBETT, C. J., and DIMOND and RABINO WITZ, JJ.\", \"word_count\": \"3973\", \"char_count\": \"23548\", \"text\": \"NESBETT, Chief Justice.\\nThe suit below was for additional payment for work done under a construction contract for the laying of sewer lines in the City of Juneau, Alaska. At the close of the testimony of plaintiff-appellant's first witness the trial judge granted defendant-ap-pellee's motion to dismiss the first thirteen paragraphs of the complaint. Only paragraph fourteen, stating a claim not pertinent to this appeal remained to be tried \\\"after\\\" dismissal.\\nAppellant presents two questions for decision:\\n(1) Did the trial judge err in dismissing paragraphs 1-13 of the complaint without permitting plaintiff to present its other, witnesses ?\\n(2) Were the findings of fact and conclusions of law entered by the c.ourt suf ficiently detailed and explicit to satisfy the requirements of Civil Rule 52(a) ?\\nIn paragraphs 1 through 13 of its complaint appellant claimed reimbursement for unpaid balances due it for additional work performed under its contract as follows:\\n(1) For backfilling and mechanically tamping 816.8 cubic yards of earth in the amount of $4,900.80.\\n(2) For removing and replacing 248.76 square yards of concrete pavement in the amount of $7,462.80.\\n(3) For removing and replacing 16.72 square yards of bituminous surfacing in the amount of $501.60.\\n(4) For removing and replacing 2,289.7 vertical square feet of rubble rock, also known as Rip-Rap, in the amount of $9,158.80.\\nIn its answer appellee denied that any of the above work was done pursuant to the requirements of the contract; alleged in an affirmative defense that payment in full had been made for all work done pursuant to the contract and in a second affirmative defense alleged that appellant was estopped from making any claim because of any misunderstanding it might have had in reading the contract documents prior to submitting its bid.\\nIt is clear from the record that appellant's unpaid claims were based on the back-filling, tamping and replacement of paving required because of sewer trench excavations which exceeded 2' 3\\\" in width. Appellant's interpretation of sections 2-06 and 2-06(a) of the contract specifications, which stated:\\n2-06. TRENCFI EXCAVATION, to lines and grades shown on the drawings, banks vertical from bottom of trench to at least 18 inches above top of pipe, width of trenches to be 2 feet \\u2014 3 inches.\\na. Unclassified Excavation. Unless otherwise designated, all trench excavation will be considered to be unclassified. Additional payment will be allowed for rock excavation. The material known locally as \\\"blue clay\\\" and similar conglomerates are not classified as rock.\\nwas that the width of trenches was to be 2' 3\\\" from the bottom of the trench to a point 18\\\" above the top of the pipe, but from that point upward to the top, the trench sides could be sloped in accordance with standard construction practice, the degree of slope being determined by the type of earth material encountered and the amount of sluffing.\\nAppellee's interpretation of the above quoted specifications seems to have been that trench width, at least for the purpose of computing compensation, was to be limited to 2' 2\\\".\\nTrench widths greater than 2' 3\\\" at and near the top of the trench which required more backfilling, tamping and replacement of surface pavement than had been estimated by appellee accounted for the additional amounts demanded by appellant.\\nAppellant's first and only witness was R. D. Stock, president of appellant corporation. His testimony, insofar as is pertinent to the issues before us was: that he prepared the bid which resulted in the award of the contract to appellant; that the .only area of the specifications that troubled him in preparing the bid was section 6-13 defining the method of measuring rip-rap; that he did not attempt to obtain an interpretation of that section from the project engineers before submitting a bid; that his interpretation of sections 2-06 and 2-06 (a) was that the trench excavation was to be 2' 2\\\" in width at the bottom and upward to a point 18\\\" above the sewer pipe and from that point upward to the top of the trench, although the excavation sides were to be vertical as possible, it was nevertheless permissible for the sides to slope outward because of sluffing; that his interpretation of section 6-04 of the specifications, which stated:\\n6-04. ADDITIONAL FOR MECHANICAL TAMPING.\\na. Measurement will be by the cubic yard by the method of average end areas measured from the surface of the ground to a plane one foot above the top of the pipe and for the width of the trench specified in areas where mechanical tamping is called for on the drawings.\\nb. Payment will be made at the unit price bid per cubic yard for \\\"Additional for Mechanical Tamping\\\" completed and accepted. No additional payment will be made for mechanical tamping which may be required to obtain specified soil density under sewer encasements or other areas not noted on the drawings.\\nwas that payment would be made based on a trench cross section at the top which involved sloping sides; that his interpretation of section 5-07 of the specifications which stated:\\n5-07. REMOVAL AND REPLACEMENT OF CONCRETE PAVEMENT. Remove concrete pavement to the allowable width of the trench. Compact and backfill as outlined in the section of these specifications entitled EXCAVATION, TRENCHING AND BACKFILLING. After approval of the backfill by the Engineer, cut back the pavement for an additional 18-inches sawing the break back joint for a depth of at least 2-inches before making the break. Replace the pavement for this width with Class A, Grade X concrete for the thickness equal to the original thickness of the pavement cut plus two inches. Construct concrete curbs to the section and with a finish to match the existing curb. Concrete shall be made with Type III, High Early Strength, cement. Replacement of concrete curbs shall be considered as incidental to pavement removal and replacement.\\nwas that concrete pavement would be removed to whatever extent was necessary to dig the trench, keeping the trench as narrow as possible, but that payment would be based on the amount actually removed and replaced; that his interpretation of section 5-09 dealing with the removal and replacement of bituminous surfacing, the first sentence of which stated:\\nWhere the pipeline is constructed in or across travelways with bituminous surfacing, the existing bituminous surface with base shall be removed to> the same width as the allowable width of the trench.\\nwas that appellant would be paid for the replacement of all bituminous surfacing that it had been necessary to remove in order to dig the trench. Mr. Stock gave testimony of a similar nature with respect to work done which was governed by other provisions of the contract. He testified that several different interpretations of the specification concerning removal of rip-rap had been given by engineers of appellee, the latest interpretation not being compatible with reason according to the witness, and that it was customary in the construction business for trench excavations to have sloping sides to avoid the danger to workmen from sluffing. On cross-examination Mr. Stock testified that he had not, prior to submitting his bid, requested an interpretation of any of the contract provisions in accordance with page IB-3, section- 9 of the contract, -which stated:\\n9. If any person who contemplates submitting a bid for this Contract is' in doubt as to the true meaning of any part of the plans, specifications, or other proposed Contract Documents, he may submit to the Engineers a written request for an interpretation thereof. The person submitting the request will be responsible for its prompt delivery. Any interpretation- of the proposed documents will be made only by Addendum duly issued and a copy of such Addendum will be mailed or delivered to each person receiving a set of such documents. The Owner and/or Engineers will not be responsible for any other explanations or' interpretations of the proposed documents. .\\nAt the request of counsel for appellee, the witness read certain provisions of the contract, one of which was a certification that the bidder had carefully examined the drawings, specifications and other contract documents, had investigated the location, character and extent of the work to be done, that he was familiar with the type of work to be done and that he proposed to perform the contract requirements for the prices listed in the unit price schedule. The witness admitted that the contract plans furnished to bidders contained estimates of the amounts involved with respect to each of the items for which additional payment was being requested and that he had.not checked the accuracy of these estimates prior to bidding. He testified that in many instances it was not possible to do this because of lack of information, admitting again that he had certified that he had examined the plans and specifications, was familiar with the work and that he would do it according to the plans and specifications. On redirect Mr. Stock testified that the work was bid on the basis of unit prices and not on lump sums;. that if the bidding had been on the basis of lump sums it would have been necessary to prepare takeoffs or 'estimates of the total amounts involved; that he did not think it would have been possible to have excavated and ended up with a trench 2' 2\\\" in width \\\"all the way through\\\" unless he -had used drive sheeting which must be driven before the excavation, is extremely expensive and was not called for in the contract by implication or otherwise.\\nWhen court reconvened after the noon recess the judge stated:\\nAt the commencement of the trial this morning, defense counsel moved to dismiss the complaint for the reason that it does not state a claim upon which relief can be granted. Court has taken that motion under advisement pending certain testimony on behalf of the plaintiff. Although the complaint may have been subject to such a motion prior to time of trial, it was not made. For that reason the Court did take it under advisement pending certain evidence which was to be presented by the plaintiffs herein. I find, based upon the law and the facts from the testimony, that it is necessary to grant the motion to dismiss as to plaintiff's complaint, paragraphs number 1 through 13. This is based upon the contents of the complaint itself, and secondly upon the defendant's second affirmative defense, and most, especially, upon the testimony of R. D. Stock and I cannot find, in the light of the complaint, the testimony and the law concerning these matters as I am able to find it, that in the light of that testimony this plaintiff could prevail on the first 13 paragraphs. It is further noted, although perhaps not compelling, that the complaint is difficult in that it does not set forth its separate claims as to counts as is required, although this may not be, in itself, grounds for dismissal for failure to state a claim, it is noteworthy at least for counsel's ' information in preparing such matters in the future.\\nThe only finding of fact made by the court pertinent to this appeal was I (3) which stated:\\nThe testimony of R. D. Stock showed the plaintiff had no right to relief under the Complaint, paragraphs 1 through 13.\\nThe only conclusion of law entered which is pertinent to this appeal is No. I which stated:\\nDefendant is entitled to a Judgment of Dismissal of paragraphs 1 through 13 of the Complaint for failure to state a claim upon which relief can be granted considering the following:\\n(1) The contents of the Complaint;\\n(2) the defendant's second affirmative defense; and\\n(3) most especially, the testimony of R. D. Stock.\\nIn our opinion thhe court erred in granting dismissal under the circumstances.\\nPlaintiff's theory of the case was that the contract provisions, with one possible exception, were not ambiguous, but should have been interpreted in the light of what was standard practice in the construction industry. Specifically, his theory was that the specification on trench excavation width only limited trench width to 2' 3\\\" for compensation purposes from the bottom of the trench to a point 18\\\" above the sewer pipe. From that point upward to the top of the trench, the specification should be interpreted as allowing for a sloping outward of the trench sides. R. D. Stock was qualified as an expert in construction practices and testified that the top portion of an excavation always sluffs, or caves, and that it is standard construction practice to slope the sides outward as a safety measure to protect workmen in the trench. Counsel for appellant had informed the court during Mr. Stock's testimony that an engineer witness would be called to testify in detail with respect to the sloping trench sides.\\nCounsel for appellee in her opening statement and thereafter seems to have ignored appellant's theory of the case and emphasized the view that in order to prevail appellant would need to prove that the contract was ambiguous and therefore needed to be interpreted; that no allegation of ambiguity was contained in the complaint; that no recognized theory of the case had been set out in the complaint and moved that it be dismissed for failure to state a claim. Dttring cross-examination counsel for appellee's questions generally were framed.to obtain answers which emphasized the fact that Mr. Stock had certified that he had examined the plans and specifications, was familiar with the work and would perform it according to the specifications and that he had not checked the accuracy of the estimates furnished by appellee on the plans as to the amounts involved with respect to the items for which additional payment was demanded.\\nThe views of this court can perhaps best be explained by making specific observations on the various reasons given by the trial court for dismissing the complaint.\\n(1) Appellant's complaint was not defective or inartfully drawn, in fact, it was carefully and artfully drawn. After pleading the contract, performance by appellant, acceptance by appellee and what it claimed to be a tender of part payment by appellee, appellant then set out in separate numbered paragraphs, with respect to each item for which additional compensation was claimed, the following:\\n(a) That a certain amount of work was performed under pertinent terms of the contract, each pertinent term being pleaded as a separate exhibit;\\n(b) That appellant had received payment for a specific portion of the \\u00abwork performed;\\n(c) That its claim for payment of the balance of its claim had been rejected.\\n(2) Appellant did not plead that any of the terms of the contract specifications were ambiguous or misunderstood by appellant prior to submitting its bid. Appellant made this clear in its opening statement and out lined the legal theory upon which it was proceeding when its counsel stated:\\nMR. CRADDICK: May it please the Court, the complaint we feel is quite fair. It sets forth all the applicable contract provisions and it states that the work was done under those contract provisions. The provisions are not ambiguous to us, they have a clear meaning. The reason that we are in Court is because the defendant happens to disagree with what is our interpretation of the contract. Now, we shall show through witnesses, that this disagreement was not brought home to the plaintiff, until after the work was done. Now, when you have a contract, it is to be interpreted on the basis of the meaning that the contract would actually convey to a reasonably intelligent bidder acquainted both with the industry practice and the surrounding circumstances, and that, of course, is the reason we are in Court today. It is obvious that any person could come in Court and say that I read the contract and interpreted as being so, well, that may be, but it would have to be a reasonable interpretation and that, of course, is why we have our expert witness here to show that our interpretation of the contract is indeed a reasonable one. We agree the ambiguity here, if anything, is slight. The contract terms are quite clear. What we are going to do is show that the contract terms mean what they say\\u2014 what we say they mean, not what the city says they mean.\\nThat the clear and unambiguous terms of a contract may be interpreted by the general and accepted usage of the trade or business involved is the general rule of law. Appellant was attempting to prove, as it was obligated to prove, what it contended was the accepted practice in the construction industry with respect to the sloping of the sides of trench excavations. Mr. Stock's testimony as an expert was relevant, and if believed, supported appellant's theory of the case.\\n(3) A study of the entire transcript of testimony with relation to appellee's second affirmative defense of estoppel fails to disclose a sound basis for the trial court's conclusion that the testimony of Mr. Stock had established that defense or had disproved his own theory of recovery.\\nThe testimony tended to support appellant's theory of recovery and, to a degree, may have provided support for appellee's affirmative defense of estoppel, at least with respect to the claim for removal and replacement of rubble rock.\\nWe express no opinion on the merits of the issues. Dismissal was premature. Under the circumstances appellant should have been permitted to complete the presentation of his case before consideration was given to a motion to dismiss.\\nWe also agree with appellant that the findings of fact and conclusions of law were not adequate to satisfy the requirements of Civil Rule 52(a). It is not possible to determine with any certainty what facts were found by the court and as a result the conclusion of law serves no helpful purpose.\\nIn Dickerson v. Geiermann we said 368 P.2d at page 219:\\nIt is the duty of a trial court to deal adequately with and state with clarity what it finds as facts and what it holds as conclusions of law. The findings and conclusions should be so explicit as to give this court a clear under standing of the basis for the decision made. [Footnotes omitted.]\\nThe judgment below is reversed and the case remanded for further proceedings consistent with the views expressed herein.\\n. Civ.R. 52(a) in pertinent part states:\\nIn all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment \\u215c .\\n. Quoted supra this page.\\n. At this point the witness was using a blackboard diagram to illustrate his testimony. It would have been helpful to a clearer understanding of a transcript of the testimony if counsel for appellant, or the trial judge, had described the diagram for the record and on those occasions when the witness pointed or referred to the diagram, to have stated into the record an explanation sufficient to acquaint a reader of the transcript with the full import of the testimony.\\n.Spenard Plumbing & Heating Co. v. Wright, 370 P.2d 519, 523-24 (Alaska 1962) ; 5 Williston, Contracts \\u00a7 648 (3d ed. 1961) and case authority there cited.\\n. Civ.R. 41(b); See Trusty v. Jones, 369 P.2d 420 (Alaska 1962); Rogge v. Weaver, 368 P.2d 810 (Alaska 1962).\\n. 368 P.2d 217 (Alaska 1962); Hamilton v. Lotto, 391 P.2d 948, 949 (Alaska 1964).\"}"