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Natalie B. MANELICK, Appellant, v. Gregory A. MANELICK, Appellee

Manelick v. Manelick

2002-11-22

No. S-9986

259

266

59 P.3d 259

59

Pacific Reporter 3d

Alaska Supreme Court

Alaska

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

CAP

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

Natalie B. MANELICK, Appellant, v. Gregory A. MANELICK, Appellee.

Natalie B. MANELICK, Appellant, v. Gregory A. MANELICK, Appellee. No. S-9986. Supreme Court of Alaska. Nov. 22, 2002. Peggy A. Roston, Law Office of Peggy A. Roston, Anchorage, for Appellant. Maryann E. Foley, Law Office of Maryann E. Foley, Anchorage, for Appellee. Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

3954

24148

OPINION CARPENETI, Justice. I. INTRODUCTION In this appeal of the superior court's property division, Natalie Manelick challenges the superior court's valuation of her medical practice. Because the superior court failed to make findings as to the marketability of the goodwill of that practice, we reverse the superior court's valuation of goodwill and, because the record demonstrates that the goodwill was not marketable, we hold that no value may be assigned to it. Because both parties agree, we hold that the superior court erred in failing to include a debt the parties owed on a piano in the property division order. Finally, we hold that the superior court did not err in assigning a marital car a value of zero. II FACTS AND PROCEEDINGS A. Facts On July 31, 1997 Natalie B. Manelick filed for divorcee from her husband, Gregory A. Manelick. Natalie and Gregory were married on July 11, 1987, and have three children. Natalie and Gregory accumulated a substantial amount of property and debt, including Natalie's medical practice, Gregory's military pension, and property and related debt in Alaska and Pennsylvania. Natalie started a private medical practice as an internist in 1989. Natalie provided her medical services out of both her Wasilla medical clinic and Palmer Valley Hospital, where she has hospital privileges. The value of the medical practice was hotly contested during the divorce proceedings. Gregory was in the military from 1978 until 1992, when he retired under a "Voluntary Separation Incentive" annuity program. Since Gregory earned part of this retirement during the marriage, the portion earned from July 11, 1987 until his retirement was marital property. Natalie and Gregory acquired a house in Palmer, a truck and camper, a Land Rover, and a piano, all of which had outstanding debt. The parties had $258,000 left to pay on their home mortgage and $44,228 on a home improvement loan. They also owed $89,868 on the truck and camper and $56,000 on the Land Rover. In addition, the parties owed the Internal Revenue Service $1,971.57. The piano is not recorded on the listing of marital properties but $7,000 is owed on it, even though it is apparently worth only $8,000. The marital estate also includes an 8.82 acre parcel in Palmer, three horses, personal property, three large parcels of property in Pennsylvania, and a retirement account, none of which carries any debt and the division of which is not at issue on appeal. B. Proceedings Trial was held August 30-September 1, 1999 before Superior Court Judge Rene J. Gonzalez. The parties put their agreement as to child support, custody and visitation on the record on August 30, 1999 and the superior court accepted this agreement as in the best interests of the children. The parties stipulated to a partial decree of divorce on December 10, 1999, dissolving the marriage. Both Natalie and Gregory submitted reports and presented expert testimony as to the value of Natalie's medical practice. Jacquelyn M. Briskey, a certified public accountant, served as an expert witness for Natalie in valuing her medical practice. Briskey opined that the fair market value of the practice as of December 31, 1998 was $156,497. Briskey's opinion was based on two methods of valuation: the capitalization of excess earnings method and a market approach method. The capitalization of excess earnings method is a method used to value intangible assets, such as goodwill. It is done by taking adjusted net income, as shown by tax returns, and subtracting an average rate of return on net assets (total assets-total liabilities = net assets). This amount is the total excess earnings, which are then reduced to present value. The excess earnings (intangible assets) are added to the net assets, reduced to present value, to calculate the fair market value of the practice. Briskey opined that under this method Natalie's work at the hospital must be considered separately from the value of the practice because she was essentially a part-time employee of the hospital, since her privileges were individual to her and not transferable. Under the market approach, one compares similar businesses and sales to determine the value of the business. Briskey testified that there were no transfers of medical practices in Alaska to compare to Natalie's practice and that other certified public accountants had stated that doctors have walked away from practices because there was no market for medical practices in this state. Briskey testified that the dearth of doctors in the Palmer area allowed a new doctor to come in with his or her own equipment and have a full schedule almost immediately. - Using both methods, Briskey concluded that Natalie's practice was worth only as much as the tangible assets minus the practice's liabilities ($156,497) because of the shortage of doctors in the area and the fact that much of Natalie's income is derived from her non-transferable privileges that allow her to perform surgery at the hospital Briskey calculated Natalie's salary from her practice to be approximately $146,160. Ronald E. Greisen, also a certified public accountant, valued the practice for Gregory. Greisen valued the practice as of July 31, 1997 using the capitalization of excess earnings method. Greisen valued the tangible assets at $188,788 and the intangible assets at $297,000, giving the practice a fair market value of $485,733. Greisen credited Natalie with a maximum salary of $126,410 in 1996. The superior court disagreed with Bris-key's opinion that Natalie's income from work done at the hospital should not be included in the total gross income of her medical practice. The superior court relied on several facts to support its position: Natalie was not an employee of the hospital, she did not receive a W-2 income statement from the hospital, her services were billed by her medical office, and payments were paid directly to her office. Thus, the superior court found that Briskey's valuation of the practice was too low. At the same time, the superior court did not accept Greisen's opinion either. The superior court found that Greisen's computation of Natalie's compensation was too low and that his computation of fixed assets was based on incomplete information. The superior court found that Natalie's salary was $140,000. The court accepted Greisen's computation of $138,733 as the tangible asset value, and the court valued the excess earnings of the practice at $221,692 when reduced to present value. Using the capitalization of earnings method, these valuations led to a fair market value of $360,425. Based on this valuation and the valuation of the other marital property, the superior court then divided the marital estate in what it considered to be a just and equitable manner. Natalie was awarded the medical practice, the family home, the Land Rover, the truck and camper, the three horses, and the personal property in the family home. Natalie was also assigned the debts on these items and the money owed to the IRS. Gregory was awarded his military retirement, all of the property in Pennsylvania, the property in Palmer, the Fidelity retirement account, the personal property in his possession, a post-separation distribution of funds from a joint checking account, and an increase in credit card debt. In order to equalize the division of marital property, Natalie was ordered to pay Gregory $178,063. Due to the lack of liquidity of Natalie's assets, the parties were ordered to enter into a reasonable agreement for the payment of this sum. IHH. STANDARD OF REVIEW The superior court has broad discretion in fashioning a property division. "The valuation of available property is a factual determination that should be reversed only if clearly erroneous." A finding of fact is clearly erroneous when we are left with a definite and firm conviction that the trial court has made a mistake. We will reverse the superior court's determination of what property is available for division only if we find an abuse of disceretion based on our review of the entire record. The superior court's equitable allocation of property is also reviewed under an abuse of discretion standard. We review the denial of a motion for reconsideration for an abuse of discretion. We will find an abuse of discretion only when we are left with a definite and firm conviction that the trial court erred after reviewing the whole record. IV. DISCUSSION A. The Superior Court Erred by Overvaluing Natalie's Medical Practice at $360,425. The superior court erred in undervaluing the tangible assets of the practice at $138,733. In Wanberg v. Wanberg, we explained that division of marital assets involves a three-step process: (1) the trial court determines what specific property is available for distribution; (2) the court then determines the value of this property; and (3) the court decides what allocation is most equitable. In Merrill v. Merrill, we held that the trial court must make "sufficiently detailed and explicit findings 'to give the appellate court a clear understanding of the basis of the trial court's decision, and to enable it to determine the ground[s] on which the trial court reached its decision. " Natalie argues that, in total, the superior court overvalued her medical practice. But her complaint as to the valuation of the tangible assets by the superior court is that the court selected a value that was too low. Natalie argues that the superior court erred when it found that the tangible assets of the practice had a fair market value of $138,738, rather than the $156,497 figure that her expert testified to. Natalie asserts that, since Greisen used the list of assets found in the tax returns for 1992-1996 and looked to no other source, his list of assets was inaccurate and, therefore, so was his valuation. In contrast, Briskey relied on three separate sources to value the fixed assets: the list from the tax returns, a list from Natalie's bookkeeper, and a list prepared by Natalie herself. Briskey stated that she primarily relied on the list prepared by Natalie. The superior court acknowledged that "Greisen's computation of fixed assets is questionable as it is based on incomplete information." - Nonetheless, the court used Greisen's figure for the tangible asset value in which the fixed asset figure was one component. Because the superior court acknowledged that Greisen's figures were questionable and did not attempt to obtain a more accurate figure, it was error to use these figures. We therefore adopt Briskey's valuation, $156,497, of the net assets. 2. The superior court did not err in finding that the practice has goodwill as calculated by the capitalization-of-the-excess-earnings method. Natalie argues that the superior court erred when it found that the practice bad goodwill value. She claims that the practice actually had no value beyond its tangible assets. In Moffitt v. Moffitt, we held that the valuation of goodwill is a two-step process. First, "the trial court must decide whether good will exists." Second, if the superior court determines that goodwill exists, it "then must determine whether the good will could actually be sold to a prospective buyer. If the trial court determines either that no good will exists or that the good will is unmarketable, then no value for good will should be considered in dividing the marital assets." To be clearly erroneous, a superior court's findings of fact with regards to goodwill must be entirely unsupported by the record. Here, the superior court heard testimony from two experts: Briskey and Greisen. Briskey stated in her report that Natalie's revenue from hospital procedures should not be considered in valuing the practice because Natalie was really acting as a part-time employee of the hospital, her privileges were individual to her and not transferable, and the privileges were renewable at the discretion of the hospital every two years. Briskey testified that Natalie's practice was "a special case really because she's got income in there that really isn't comparable to other internal medicine or other practices of this nature." Briskey went on to state that "if you are trying to compare [Natalie's] practice with other practices, you have to extract that other income." Because Briskey would extract revenues from procedures done at the hospital, her analysis concluded that the practice would actually have a net loss instead of net income. Greisen disagreed with Briskey's conclusion that the income from Natalie's work at the hospital should not be included in the excess earnings analysis. Greisen testified that Briskey's conclusion that Natalie's work at the hospital was separate from her prac tice was a fiction because, in reality, all of Natalie's activities comprised one practice. Greisen believed that Briskey used a novel approach that he had never seen before in the medical profession, even though it is common for doctors to have several locations of practice. Based on this evidence, the superior court came to the conclusion that Natalie was not an employee of the hospital, she received no compensation from the hospital, and her practice billed and received all payments for procedures Natalie did at the hospital We have upheld a trial court's determination of goodwill based on the capitalization of excess earnings method and qualified expert testimony. Because Natalie is not contesting Greisen's qualifications as an expert witness and there was ample testimony by Greisen to allow the superior court to find that Greisen's evaluation was sound, the trial court did not clearly err in determining that the practice possessed goodwill. Therefore, we uphold the superior court's finding that the practice had goodwill. 3. The superior court erred in finding that the, practice's goodwill was marketable. Natalie argues that the superior court erred in valuing her practice above the fair market value of the tangible assets because the goodwill is personal to her and she would be unable to sell the practice for anything more than the value of the tangible assets. Because there is more demand for physicians than there are physicians to meet the demand, Natalie argues that there is no reason for a physician wishing to open a practice in the Wasilla/Palmer area to buy an existing practice. Natalie argues that a new doctor merely has to obtain equipment and office space and open the office doors to have a full-time practice, so there is no reason for a physician to pay extra for goodwill. Natalie presented evidence at trial that the practice's goodwill was not marketable. Briskey testified that she talked with several CPA's in the Anchorage area who indicated that they did not know of any recent sales of medical practices. Briskey also stated that she was told of two doctors who walked away from their practices after they were unable to find buyers. Briskey spoke with the doctor who now shares the practice with Natalie, Dr. Cooney. According to Briskey, Dr. Coo-ney stated that there was no reason for her to buy into the practice. Natalie testified that she was able to convince Dr. Cooney to share office space with her by providing free office space to Dr. Cooney for four months and then requiring only one-third of the rent for another two months before Dr. Cooney started paying one-half of the rent. Natalie also testified that the region where she practices is under-served and that she had been trying to get another physician into her practice almost since she started in 1989 but that because there was so much demand for doctors in the area, no one would buy into her practice. Natalie testified that she had 6,000 patients, that she had not been taking new patients for the last several years, and that any internist would only have to buy some equipment and open the office doors to have a practice. wIn response to this Alaska-specific evidence, Gregory offered only evidence based on a nationwide seale. Greisen testified that a physician "coming to practice without having a practice and if their alternative was hanging their sign out that says I'm a doctor and wait for the patients to come, they're not going to make the average salary of [$]126,-410." Greisen admitted that he did not have any market data on medical practices in Alaska, but used nationwide data to determine the marketability of Natalie's practice. Greisen also admitted that he was unaware of any practices that had been sold in the area. Greisen offered no other testimony as to the marketability of the practice's goodwill. We have held that if the superior court determines that goodwill exists it "then must determine whether the good will could actually be sold to a prospective buyer." Where no market exists for goodwill, it should be considered to have no value. Here, the superior court made no findings regarding whether there was actually a market for the goodwill of the practice. Because the trial court did not make "sufficiently detailed and explicit findings 'to give the appellate court a clear understanding of the basis of the trial court's decision, and to enable it to determine the ground[s] on which the trial court reached its decision,' " we must reverse its valuation of goodwill. The superior court failed to make any findings regarding the marketability of the practice's goodwill. Because Natalie offered substantial evidence that the goodwill would not be marketable and Gregory failed to counter that evidence on a regional scale in terms of the Wasilla/Palmer area, or even in terms of Alaska as a whole, the superior court clearly erred in determining that Natalie's practice had a value beyond its tangible assets. Therefore, because Natalie presented substantial evidence that her practice had no marketable goodwill and Gregory presented no substantial evidence to the contrary, the superior court should have adopted Bris-key's opinion that the practice had no value beyond the value of its net assets. We thus hold that the practice has a fair market value of $156,497. B. The Superior Court Erred in Failing To Include the Loan for the Piano in the Property Distribution. Natalie argues that the superior court erred in failing to include the loan for the piano on the list of Habilities. Gregory agrees that the property distribution order should be amended to include the $7,000 piano debt. To that must be added a $3,000 credit (reflecting the piano's fair market value) to Natalie's net property value, giving a net loss to Natalie of $4,000. On remand, we direct the superior court to amend the property order to reflect this change. C. The Superior Court Did Not Err in Valuing the Range Rover at Zero Value instead of a Negative Value. - Natalie asserts that it was clear error to assign the Range Rover a value of $56,000 when she presented evidence at trial that the car was worth only $45,000. Instead, Natalie argues that the superior court should have assigned the car a negative value of $11,789.12, the value of the car minus the balance on the car loan as of December 5, 1996. Gregory argues that, since the Range Rover was purchased only eight months before trial, the superior court was within its discretion in using the promissory note to value both the Range Rover and the balance of the debt instead of requiring more information from the parties or accepting Natalie's testimony of the value.. "The valuation of marital property is a factual determination 'which will not be set aside unless it is clearly erroncous.' " The superior court used the promissory note and the balance of the debt on the car to value the car. Natalie testified that the car was worth about $45,000 at the date of separation. Natalie offered no other evidence of the value of the car. Specifically, Natalie did not offer any expert testimony or documentation as to the value of the Range Rover and neither did Gregory. Also, neither party offered any evidence of the balance on the loan as of the date of trial. The superior court was not required to procure its own evidence on the value of the Range Rover. We hold that the superior court did not clearly err in adopting the value reflected on the promissory note instead of relying on Natalie's testimony. We affirm the superior court's valuation of the Range Rover. V. CONCLUSION Because the superior court failed to make findings as to the marketability of the goodwill of Natalie's medical practice, we REVERSE its conclusion concerning the value of the practice. Because the evidence allows no other conclusion, we hold that the practice had no marketable goodwill. We adopt the net asset value of $156,497. Because the piano debt was not included in the property division, we REMAND this issue so that the court may amend the list accordingly. We AFFIRM the superior court's valuation of the Range Rover. On remand the court should adjust the property division in accordance with this opinion. If the court decides to continue to divide the parties' property equally, the equalizing payment due Gregory from Natalie will be approximately $74,099. If the court determines that it is no longer just to divide the parties' property equally, the court is authorized to make adjustments in the property division supported by appropriate findings of fact and conclusions of law. . Edelman v. Edelman, 3 P.3d 348, 351 (Alaska 2000). . Berry v. Berry, 978 P.2d 93, 95 (Alaska 1999) (citing Cox v. Cox, 882 P.2d 909, 913-14 (Alaska 1994)). . Dingeman v. Dingeman, 865 P.2d 94, 96 (Alaska 1993). . Berry, 978 P.2d at 95. . Id. . Harrelson v. Harrelson, 932 P.2d 247, 250 (Alaska 1997). . Morgan v. State, Dep't of Revenue, 813 P.2d 295, 297 n. 4 (Alaska 1991). . 664 P.2d 568 (Alaska 1983). . Id. at 570. . 368 P.2d 546 (Alaska 1962). . Id. at 548 (quoting Irish v. United States, 225 F.2d 3, 8 (9th Cir.1955)); see also Alaska R. Civ. P. 52(a) (stating in pertinent part "[in 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 ."). . 749 P.2d 343 (Alaska 1988). . Id. at 347. . Id. . Id. . Id. . See Miles v. Miles, 816 P.2d 129, 131 (Alaska 1991) (stating that "the trial court used an accepted method of business valuation, capitalization of excess earnings, to determine whether goodwill exists. Based on the testimony of William's expert witness, Ronald Griesen, the superior court found that Miles & Associates possessed no goodwill value. Because Greisen was qualified as an expert in business valuation, we find no error in the court's acceptance of his testimony." (citations omitted)). . Moffitt, 749 P.2d at 347. . Miles, 816 P.2d at 131. . Merrill v. Merrill, 368 P.2d 546, 548 (Alaska 1962) (quoting Irish v. United States, 225 F.2d 3, 8 (9th Cir.1955]); see also Alaska R. Civ. P. 52(a) (stating in pertinent part "[iJn 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 . See Lacher v. Lacher, 993 P.2d 413, 421 (Alaska 1999) (stating "[when dividing property between divorcing parties, the trial court must distribute all assets acquired during marriage."). . Sloane v. Sloane, 18 P.3d 60, 64 (Alaska 2001) (quoting Musser v. Johnson, 914 P.2d 1241, 1242 (Alaska 1996)). . Calculated by deducting from Natalie's net recovery, $613,243, the over-valuation of her practice, $203,928 ($360,425-$156,497) and the net negative value of the piano, $4,000, for a new net recovery of $405,315. This, when added to Gregory's net recovery of $257,117, represents the total net marital property. A 50/50 division would thus be $331,216 [($405,315 + $257,-117)/2]. This exceeds Gregory's net recovery by $74,099.

6895775

Jorge MORENO, Petitioner, v. STATE of Alaska, Respondent; Mary Hicks, Petitioner, v. State of Alaska, Respondent

Moreno v. State

2015-01-30

Nos. S-15067, S-15070

1134

1148

341 P.3d 1134

341

Pacific Reporter 3d

Alaska Supreme Court

Alaska

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

CAP

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

Jorge MORENO, Petitioner, v. STATE of Alaska, Respondent. Mary Hicks, Petitioner, v. State of Alaska, Respondent.

Jorge MORENO, Petitioner, v. STATE of Alaska, Respondent. Mary Hicks, Petitioner, v. State of Alaska, Respondent. Nos. S-15067, S-15070. Supreme Court of Alaska. Jan. 30, 2015. Josie Garton and John Page, Assistant Public Defenders, Anchorage, and Quinlan Steiner, Public Defender, Anchorage, for Petitioners. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions & Appeals, Anchorage, and Michael C. Ger-aghty, Attorney General, Juneau, for Respondent. Before: FABE, Chief Justice, WINFREE, STOWERS, and MAASSEN, Justices.

7968

49521

OPINION STOWERS, Justice. I. INTRODUCTION "Trial errors to which the parties did not object are reviewed for plain error." In Adams v. State we held that plain error is "an error that (1) was not the result of intelligent waiver or a tactical decision not to object; (2) was obvious; (8) affected substantial rights; and (4) was prejudicial. These consolidated cases require us to clarify the standard for determining when a defendant intelligently waived an objection or made a tactical decision not to object. Defendants in two eriminal cases failed to object to errors at trial: in Moreno v. State, the admission of improper testimony regarding Jorge Moreno's exercise of his right to be free from compelled self-inerimination; in Hicks v. State, the lack of a jury unanimity instruction when the prosecutor directed the jury that it could find Mary Hicks guilty of either of two episodes of allegedly driving under the influence of aleohol. Moreno and Hicks each sought plain error review, and in each case the court of appeals held that the defendant failed to show that the error was not the result of defense counsel's tactical decision not to In Moreno, the court of appeals also applied a presumption that where the record is silent or ambiguous, defense counsel's inaction is tactical and precludes plain error review. Moreno and Hicks filed petitions for hearing before this court, arguing that the burden of proof should be on the State to show that their counsels failures to object were the result of tactical decisions. They also contended that the court of appeals erroneously speculated on the purported tactical benefits they received due to their attorneys' lack of objections. Finally, they each requested an evidentiary hearing to develop the record on this issue. We granted review to determine whether to apply an evidentiary presumption or to place a burden of proof on a party to establish that a defendant's lack of objection at trial was or was not the result of defense counsel's intelligent waiver or tactical decision not to object. But we conclude that our case law compels neither result. Today we hold that defense counsel's tactical reason for failing to object, or counsel's intelligent waiver of an objection, should be plainly obvious from the record before foreclosing the reviewing court's consideration of the remaining plain error elements. We therefore reverse the court of appeals' decisions on this issue. But we conclude that Moreno suffered no prejudice despite the error in his case, and we affirm the court of appeals' decision upholding Moreno's conviction on this alternate ground. We remand Hicks's case to the court of appeals for further proceedings consistent with this opinion. II. FACTS AND PROCEEDINGS A. Moreno v. State Jorge Moreno was charged with possession and delivery of methamphetamine and illegal sale of alcohol in a local option community. trial, Moreno's attorney asked the investigating officer whether the police had been able to verify that Moreno owned a jacket that contained a methamphetamine pipe. The officer replied that Moreno had refused to speak to the police. Moreno's attorney did not object to the officer's statement; instead, the attorney interrupted the officer and directed the officer to reply "[yles or no." Moreno was convicted, and he appealed arguing that the officer's reference to his silence was impermissible. The court of appeals concluded that Moreno's attorney's question elicited the officer's testimony and that counsel "apparently made a tactical decision not to object to the officer's answer." Both the State and the court of appeals identified potential reasons why Moreno's counsel failed to object. The State argued that Moreno likely sought "to impeach the police investigation and to lay a foundation for arguing that the [State had not proved that Moreno knowingly possessed the pipe." The court also offered its own possible explanations: that the defense attorney perceived the officer had made an inadmissible comment and chose to preserve "at least one colorable issue" on appeal or that the attorney recognized an objection would have focused the jury's attention on Moreno's silence. The court of appeals additionally examined whether Moreno had suffered any prejudice from his counsel's failure to object. The court of appeals interpreted Adams as holding that a reviewing court should consider the following factors in determining whether a prosecutor's comments on a defendant's silence resulted in harmless error: (1) [Whether the convietion depended primarily on resolution of conflicting witness testimony; (2) whether any comments on the defendant's silence were made during the prosecutor's elosing argument; (8) whether the reference was "express" rather than "brief and passing"; and (4) whether the evidence was "directly elicited by the prosecutor's questioning." [ ] The court of appeals examined these factors and concluded that the alleged error in Moreno's case was harmless beyond a reasonable doubt. Moreno petitioned the court of appeals for rehearing, arguing that the court improperly placed the burden on him to prove that his counsel did not make a tactical decision to withhold an objection to the officer's testimony. The court of appeals denied his petition, reasoning that the plain error doctrine required the court to "focus on . a serious potential for tactical inaction." * The court relied on its decision in Borchgrevink v. 'State, which held that "when the record is silent or ambiguous . [an appellate court] applies] a presumption that the defense attorney's action (or, more precisely, inaction) was tactical." Moreno petitioned this court for hearing. We granted the petition and consolidated it with Hicks's petition. B. Hicks v. State Mary Hicks was arrested for and convicted of driving under the influence. At her trial a village public safety officer testified that, while responding to a report that Hicks was driving under the influence, he located Hicks's truck parked in a spot at her friend's house that he knew. had recently been vacant. He also testified to observing Hicks enter the truck and start the engine. He stated that Hicks then exited the truck and ran back inside the friend's house. The officer spoke with Hicks at the friend's house, determined that she was intoxicated, and arrested her. During closing arguments at Hicks's trial, the prosecutor told the jury that it could find Hicks guilty of either of the two distinct driving or operating incidents: driving to the friend's house or starting the parked truck in front of the friend's house This was obvious error under the Alaska Constitution's due process clause," which we have interpreted to bestow on a criminal defendant the "right to have jurors 'all agree that the defendant committed a single offense. " Hicks did not object to the prosecutor's statement or ask the court to instruct the jury that it had to unanimously agree on one offense to return a guilty verdict. The jury convicted Hicks of driving under the influence. Hicks appealed, arguing plain error. Before the court of appeals, the State proffered two possible tactical reasons for Hicks's failure to object. First, the State asserted that "had she raised the issue in the trial court, the State might have sought to amend the indictment to charge her with two separate felony offenses." Second, the State argued that Hicks's defense focused on attacking the strength of the evidence of the second incident when the officer observed Hicks start her engine. The court of appeals concluded that Hicks's attorney made a tactical decision not to object because an objection would have emphasized that the jury could convict Hicks based solely on the evidence of her driving under the influence, which did not rely on the officer's disputed testimony.* Hicks filed a petition for hearing. We granted Hicks's petition and consolidated it with Moreno's petition. III. STANDARD OF REVIEW These consolidated petitions present only questions of law to which we apply our independent judgment." We will adopt the rule of law that "is most persuasive in light of precedent, reason, and policy." IV. DISCUSSION A. It Was Error To Apply A Presumption On A Silent Or Ambiguous Record That Defense Counsel Made A Tactical Decision Not To Object And To Place The Burden On Defendant To Disprove This Presumption. In Johnson #. State, we explained why a general rule requiring a party in trial to object to a perceived error is necessary to preserve that error as a point on appeal: Typically, a litigant or defendant must raise an objection in the trial court in-order to preserve that argument for appeal. This general preservation rule is a prudential gate-keeping doctrine adopted by the courts to serve important judicial policies: ensuring that there is "a ruling by the trial court that may be reviewed on appeal, . afford[ing] the trial court the opportunity to correct an alleged error," and creating a sufficient factual record "so that appellate courts do not decide issues of law in a factual vacuum." [ ] "But the general preservation rule is not absolute, and it is subject to [certain] exceptions, such as the plain error doe trine." The plain error doctrine allows an appellate court to review issues not otherwise preserved where "there was [an] obvious and prejudicial error below affecting substantial rights that did not result from 'intelligent waiver or a tactical decision not to object.' Under Alaska Criminal Rule 47(b), "[pllain errors or defects affecting substantial rights may be noticed [sua sponte by the trial court] although they were not brought to the attention of the court." When the trial court fails to correct an error on its own initiative, however, plain error review on appeal operates "to mitigate . the harsh effects of a rigid application of the adversary method of trial." ~ We use a four-part test when determining whether to review a defendant's claim of plain error' The appellate court must find the error "(1) was not the result of intelligent waiver or a tactical decision not to object; (2) was obvious; (8) affected substantial rights; and (4) was prejudicial." Plain error review operates as a safety valve allowing an appellate court to review unobjected-to errors "involviing] such egregious conduct as to undermine the fundamental fairness of the trial and contribute to a miscarriage of justice." . These consolidated cases concern the tactical-decision prong of the plain error test announced in Adams. While the re mainder of the plain error test involves substantive requirements an appellate court must conclude are present to reverse on the basis of plain error, the tactical-decision prong acts as a bar to substantive review, preventing defense counsel from deliberately bypassing the contemporaneous-objection rule as part of a trial strategy. " We will not afford a defendant an after-the-fact review of a claim of error when defense counsel made a tactical decision not to object or engaged in strategic gamesmanship to avoid the trial court's correction of the error in the first instance. In Hicks, the court of appeals coneluded that "Hicks hald] not shown that she did not make a tactical decision to forgo a jury unanimity instruction" because (1) it "appear[ed] that the defense attorney tried to focus on the weakness in the State's proof" of one of the incidents; and (2) had Hicks raised the issue earlier, "the trial court might have allowed the State to add a second count of driving under the influence. " In Moreno, the court of appeals reasoned that "when the record is silent or ambiguous . [the court] appllies] a presumption that the defense attorney's inaction was tactical." The court also speculated as to Moreno's counsel's reasons for not objecting and stated that the test was whether, based on the record, "there is a serious potential for tactical inaction." As explained below, neither approach accords with our prior case law up to and including Adams. 1. The tactical-decision case law from 1960-1980 In Rank v. State, we examined whether allowing trial testimony regarding the defendant's failure to take a lie detector test was reversible error where defense counsel did not object to this evidence at trial. We reviewed the trial transcript and concluded that Rank's counsel "went into the subject [of his client's failure to take the test] in great detail in his cross-examination of a [State witness and when [Rank] testified in his own defense." Based on this clear indication in the record of defense counsel's tactics, we reasoned that "Rank had presumably taken the position that to explore the subject in detail would be advantageous to his cause. + ° But on appeal Rank "adopt[ed] the totally inconsistent position that he hald] suffered a grave disadvantage." We held that Rank was "bound by the choice he first made in the court below. He hald] waived any error that might otherwise have occurred when testimony regarding the polygraph was first brought into the case by a [SItate witness." In Noffke v. State, the trial judge received a question from the jury and responded by giving the jury a supplemental instruction without contemporaneously notifying the defendant and his counsel of the question or the court's answer. Unlike in Rank, we noted "[tlhere [was] nothing in the record to show that appellant's trial counsel had any knowledge . of the fact that the trial judge had given the jury this supplemental instruction" and consequently held that "it would work an injustice to appellant to hold that he is now precluded from questioning the propriety of the supplementary instruction" by not contemporaneously objecting to preserve the issue for appellate review. In both Rank and Nojffke, we focused on whether the record on its face clearly indicated defense counsel's obvious knowledge of the error. In Hammonds v. State, defense counsel failed to object when a police officer testified to statements the defendant made after an inadequate Miranda warning. Similar to Rank and Noffke, the issue before us was "not merely one of a technical failure to object in the trial court." The trial record plainly indicated that defense counsel was aware of the requirements of Miranda and that he could have excluded his client's statements by objecting, but chose not to object because the statements were potentially ex- We concluded that there was "a clear intimation of a deliberate design to knowingly [forgo] a constitutional claim" and "[sJuch a deliberate act on the part of counsel amount[ed] to a waiver of appellant's constitutional right." " In other words, because counsel's failure to object was "an intelligent waiver of a known right," Hammonds could not complain on appeal that his Fifth Amendment privilege against self-incrimination was infringed upon because the record indicated that his counsel was aware of the requirements of Miranda and allowed the admission of his client's statements despite the constitutional violation. Then in Gafford v. State, another lie detector case, the record revealed that Gafford's counsel had informed the court that he had decided not to request an instruction on the inadmissibility of information about the lie detector test because he. "did not want 'to underline' the lie detector answer" elicited during cross examination. We held "In view of the decision made at trial by his counsel, . appellant is now precluded from asserting that it was error for the trial court not to have instructed the jury to disregard [the witness's] reference to a lie detector [test]. Finally, in Pulakis v. State, the trial court, without objection from defense counsel, admitted testimony regarding two lie detector tests the defendant took. We considered Pulakis's counsel's actions throughout the course of trial and concluded they "presented] a more compelling factual situation for finding an intelligent waiver of a known right than existed in Rank." For example, defense counsel (1) questioned prospective Jurors intensively on the subject of polygraph examinations; (2) elicited responses favorable to Pulakis's position; (8) minimized the importance of the polygraph evidence in his opening statement and closing argument; and (4) made no objection to the qualifications of the expert witness on the results of the polygraph examination or to the admissi- bility of that testimony. We noted that "Tin fact, counsel stated explicitly that there was no objection to the admission of the written report of the expert witness," and "[ojn eross-examination, . counsel obtained significant admissions from the expert about the unreliability of the polygraph test." " Defense counsel also requested highly favorable jury instructions on the issue, which were given by the superior court. We concluded "that this entire pattern of events demonstrate[d] a clear, intelligent waiver of any privilege to exclude this evidence" based on defense counsel's trial strategy, thus precluding plain error review. These cases make clear that for an appellate court to decline plain error review because defense counsel made a tactical decision, it must be plainly obvious from the record on its face: (1) that counsel had an obvious awareness or knowledge of the error, and (2) that counsel made an intentional or tactical decision not to object to the error. Our case law has remained consistent on this point. 2. The tactical-decision case law from 1980-2000 In Owens v. State, the prosecution arranged for a radio broadcast on Sitka's only radio station in an effort to locate an anonymous caller to testify. Unfortunately, the station broadcast the message during the morning hours before jurors were due to report for the trial. Owens brought the broadcast to the court's attention the next day, but opposed the prosecution's suggestion that the court make a general inquiry of the jurors. The superior court noted on the record that "it would respect Owens'[s] request not to have the jury queried in a general manner, but pointed out that Owens, by his tactical decision, was depriving the court of the ability to take any actions necessary to cure the harm caused by jury exposure to the inadmissible evidence. " The superior court "indicated that it considered Owens to be waiving the jury exposure issue by objecting to a general inquiry of the jurors." On appeal we stressed that because Owens objected to a procedure that would have cured any possible prejudice, he waived his right to raise this issue on appeal under plain error review. It was Owens's attorney's intentional decision not to cure the error in the first instance that barred further plain error review. In Moss v. State, a defense witness refused to testify and defense counsel asked that the witness be held in contempt. The court took a short recess, during which defense counsel was permitted to confer with the witness. Following the recess, defense counsel did not renew his attempt to compel the witness to testify under threat of contempt, made no further mention of the witness or counsel's proposed line of inquiry, and instead rested Moss's case. " On appeal Moss argued that the trial court should have compelled the witness to testify, that its failure to do so violated Moss's constitutional rights to due process and to confrontation, and that the court's failure to hold a hearing concerning the proposed testimony was plain error. We summarily dismissed these contentions, concluding: [Wle believe that{,] given the tactical reasons that may have supported a decision to withdraw the witness, it was incumbent upon counsel to renew his attempt to obtain the witness{'s] testimony following the recess. During the recess counsel may have learned that the witness would not testify in a manner helpful to the defense and thus have decided not to proceed further with him.... [ClJounsel's decision to rest his case at that point is inconsistent with the present claim of errors[ ] In other words, we concluded that Moss's counsel made a tactical decision when he chose to forgo asking the court to compel the witness's testimony after speaking to the witness. While speculating somewhat on counsel's rationale for this particular trial strategy, we were careful to point out that the record reflected counsel's intentional choice not to go forward with this witness. Thus, Moss is distinguishable from Moreno and Hicks where, on a silent or ambiguous record, the court of appeals applied a presumption that defense counsels' inaction was tactical In Moss, the record reflected that defense counsel made an affirmative decision to withdraw a witness and rest his client's case after conferring with the witness. We did not apply a presumption that defense counsel's inaction was tactical; rather, we recognized that defense counsel's action of withdrawing the witness was tactical. In Dorman v. State, we discussed the distinction between cases where defense counsel deliberately injects error at trial or makes a tactical decision not to object, and cases where defense counsel's lack of objection could have no tactical benefit. During closing arguments at Dorman's trial, the prosecutor commented that the jury should infer guilt from the fact that Dorman remained silent between the time of his arrest and the time he was advised of his Miranda rights. Dorman's counsel failed to object." We noted that Dorman's counsel (1) failed to object to identical testimony during trial; (2) mentioned Dorman's Miranda rights during cross-examination; (8) asked for no curative instruction at the time; and (4) made no motion for a mistrial. Despite Dorman's counsel's awareness of Miranda, we held the failure to object was not tactical because Dorman had not "injected the issue of his silence into the case" and there could be no benefit to him in letting the potentially incriminating silence into evidence. In addressing whether counsel may have been inviting error, we concluded: There is no basis for the inference that defense counsel was trying to further Dor-man's case by failing to object to the final argument comment, unless it is implied that defense counsel invited error for the purpose of obtaining a reversal on appeal. That conclusion, however, is not one which should be lightly inferred in any case, for i#t would preclude review of the most fundamental defects under the plain error doctrine.... [ ] In other words, we explicitly refrained from construing counsel's inaction as a tactical decision absent a clear indication in the record. Without an affirmative act by counsel indicating his awareness of the existence of a known right and some indication in the record of a conscious failure to preserve the issue, we conducted the remainder of the plain error analysis." Finally, in Raphael v. State, the prosecutor told the trial judge at an ex parte hearing that the State's key witness was likely to recant, was intoxicated, and should be incarcerated until she testified. Without first notifying Raphael or his attorney of the prosecutor's statements, the trial judge granted the prosecutor's request, jailing the key witness and placing her children in protective custody. Raphael was convicted and appealed, arguing that the trial court denied him due process given the potentially coercive effect of the witness's incarceration on her testimony and his right to be present at the hearing! The State responded that Raphael abandoned his right to appeal his absence from the ex parte hearing (and the hearing's allegedly coercive effect on the key witness's testimony) because his attorney failed to object to, and thus preserve, these alleged errors during trial" The State argued that the tactical-decision prong should bar further review because Raphael's failure to object might have been tactical and Raphael could have obtained a benefit from his failure to object. We rejected such speculation because it "assume[d] that Raphael's attorney had a - sufficiently accurate view of the scope of the error and deliberately chose to waive any objection. We compared the situation in Raphael to Noffke v. State, where we held that defense counsel's failure to object was not a tactical decision because the record failed to demonstrate that defense counsel was aware of the error asserted on appeal. And we noted that we had requested that both parties search the trial record for "any evidence, . of [Raphael's attorney's] knowledge of the ex parte hearing and the surrounding cireumstances," but that "[nleither party found any such references. Based on the lack of support in the record for the conclusion that defense counsel knew the full extent of the constitutional errors and deliberately chose not to object, we could not say that Raphael's attorney's decision not to object was tactical. Because plain error review was not foreclosed by any tactical decision not to object, we held that the error complained of (1) was obvious; (2) was substantially prejudicial; and (@) undermined the fundamental fairness of the trial and contributed to a miscarriage of justice. Concluding there was plain error, we remanded Raphael's case for a new trial. In sum, these cases consistently demonstrate our reluctance to foreclose plain error review on tactical-decision grounds. Evidence of a tactical decision not to object to a trial error must be plainly obvious from the record to persuade an appellate court that a defendant's otherwise meritorious substantive claim of error should not trigger appellate review. This rule was further underscored in Adams v. State. 3. The tactical-decision analysis in Adams v. State, 2011 All parties agree that our decision in Adams governs the outcome of the present cases. Moreno and Hicks argue that Adams's reliance on Dorman, Owens, Pu-lakis, and Hammonds indicates that we intended defense counsel's tactical decisions to operate as implied waivers of future appeals, with the State bearing the burden of proving that a decision was tactical. Moreno and Hicks also read Adams as precluding plain error review where the benefit conferred on the defendant is readily apparent on the record. The State does not read Adams as requiring proof of an express or implied waiver or a discernable benefit on the defendant. According to the State, nothing in Adams suggests that these are the only types of tactical decisions that will preclude plain error review. The State instead attempts to factually distinguish Adams and the cases it relied on to convinee us to adopt the court of appeals' line of cases. Adams began its analysis of the plain error rule by discussing how our cases "have consistently held that plain error does not exist where the right at issue was intelligently waived or the defendant's decision not to object to the error was strategic or tactical. We underscored our analysis in Dorman that where there is "no evidence" that defendant's failure to object was strategic, there is "no basis for inferring that the failure to object was tactical 'unless it is implied that defense counsel invited error for the purpose of obtaining a reversal on appeal " " And we stated that this implication "is not one which should be inferred lightly, for it would preclude review of the most fundamental defects under the plain error doctrine." This statement recognized the central focus of plain error review: [The rule] [is] intended to ensure that litigants have a means for the prompt redress of miscarriages of justice, and it applies only when the error was so plain that the trial court and prosecutor were derelict in countenancing it, even absent the defendant's timely assistance in detecting it. It also reflects a careful balancing between the Court's intention of encouragling] all trial participants to seek a fair and accurate trial the first time around and the Court's insistence that obvious injustice be promptly redressed.[ ] In Adams, we cautioned that appellate courts should concentrate on the substantive requirements of plain error review: the obvious nature of the error, the substantial rights the error affected, and the prejudice that resulted from the error. Inferring a tactical decision or intelligent waiver of a known right on a silent or ambiguous record would serve only to impede substantive review of the error. Adams and the cases it relied upon thus stand at odds with the court of appeals' conclusion in Moreno that "when the record is silent or [the court] appliies] a presumption that the defense attorney's . inaction . was tactical." It was also error to place the burden on the defendant to negate the possibility that his attorney's failure to object was tactical. The same error was made in Hicks, where the court of appeals held that "Hicks must . show that the error was not the result of her attorney's tactical decision not to object." We have never placed this burden on the defendant. Hicks cited our analysis in Khan v. State, but Khan only reaffirmed the "Adams rule" that "includ[es} an inquiry into whether the defendant's non-objection was tactical, [which] better respects the trial process and the role of counsel." Whether the defendant made a tactical decision not to object or intelligently waived an opportunity to object must be plainly obvious from the face of the record, not presumed in the face of a silent or ambiguous record. The records in Moreno and Hicks do not reveal plainly obvious evidence of tactical decisions not to object by defense counsel. Because the court of appeals improperly placed the burden on Moreno and Hicks to prove that their attorneys did not make tactical decisions, and because the court of appeals improperly applied a presumption of tactical inaction in the case of a silent or ambiguous record in Moreno, we reverse the court of appeals' conclusions regarding the tactical-decision determination in both cases. B. We Affirm The Court Of Appeals' Conclusion That The Error In Moreno's Case Was Not Prejudicial. In Moreno, the court of appeals also addressed the prejudice prong of plain error review. The court held that admitting the arresting officer's statement regarding Moreno's decision to remain silent did not result in prejudice because admitting the statement was harmless beyond a reasonable doubt." Moreno argues that the court of appeals erred in reaching that conclusion. Adams considered what would constitute prejudice and held that constitutional violation will always af-feet substantial rights and will be prejudi-clal unless the State proves that it was - harmless beyond a reasonable doubt. An error that is not constitutional in nature will be prejudicial if the defendant proves that there is a reasonable probability that it affected the outcome of the proceeding.! [ ] We identified several factors that a reviewing court must consider in determining whether a trial court's failure to take remedial action regarding a prosecutor's comments on a defendant's silence constituted harmless error. These include (1) whether the conviction depended primarily on conflicting witness testimony; (2) whether the comment occurred during closing argument; (8) whether the comment was "express" rather than "brief and passing"; and (4) whether the evidence was "directly elicited by the prosecutor's questioning." Moreno was convicted at trial of delivery and possession of methamphetamine. On cross-examination, Moreno's defense attorney asked the investigating officer whether the officer had been able to identify the owner of a jacket that contained a methamphetamine pipe. The officer replied that there were "no identifying items [in the jacket] and the defendant refused to speak to us about it, but we did photograph where that-that came out of," at which point the defense attorney interrupted and directed the officer to answer yes or no. (Emphasis added.) This was the only reference 'in the entire course of trial implicating Moreno's constitutional right to be free from self-iincrimination J By comparison, in Adams, the prosecutor made two remarks on eross-examination that directly addressed Adams's post-arrest silence: [PROSECUTOR]: And then you refused to talk to police any further. Correct? [ADAMS]: That's right. [PROSECUTOR]: Okay. Until today? [ADAMS]: I was exercising my right [ ] And then again: [PROSECUTOR]: Now, new information that we heard from you today is everything that happened in your apartment, correct? Would you agree to that? From your perspective? ' [ADAMS]: What do you mean by everything? [PROSECUTOR]: Well, we didn't know anything about what happened in your apartment from you, because you didn't talk to police, until after hearing all the evidence so far in the case.[ ] And dufing closing argument, the prosecutor again pointed to Adams's silence to argue that Adams's testimony was less credible than the victim's. The prosecution's conduct in Adams was egregious, continued over a protracted period, and went to the core of the prosecution's theory of the case, namely, that Adams was not credible and "changed his decision not to talk when he learned about the DNA evidence indicating that he had sex with [the underage victim]. The facts in Moreno are far less compelling: the officer's comment was elicited by defense counsel; it was made in passing; and the prosecutor did not refer to it during his closing argument. Accordingly, we agree with the court of appeals that the officer's testimony "had little impact on Moreno's trial" and was "harmless beyond a reasonable doubt" under the four factors of Adams that a reviewing court considers when determining whether a court's failure to address a prosecutor's comments on a defendant's silence was harmless error. .We thus affirm the court of appeals' decision in Morero on this alternate ground. v. CONCLUSION We REVERSE the court of appeals' decisions foreclosing plain error review in both Hicks and Moreno, but we AFFIRM the court of appeals' decision in Moreno on the alternate ground that the error was not prejudicial. We REMAND Hicks for further proceedings consistent with this opinion. BOLGER, Justice, not participating. . Khan v. State, 278 P.3d 893, 896 (Alaska 2012) (citing Adams v. State, 261 P.3d 758, 764 (Alaska 2011)). . Adams, 261 P.3d at 764. . Moreno v. State, Mem. Op. & J. No. 5819, 2013 WL 120907, at *1 (Alaska App. Jan. 9, 2013), reh'g denied, 2013 WL 120907, at *5 (Alaska App. Feb. 7, 2013). . Hicks v. State, Mem. Op. & J. No. 5911, 2013 WL 203264, at *1 (Alaska App. Jan. 16, 2013). . Moreno, 2013 WL 120907, at *2-3; Hicks, 2013 WL 203264, at *3-4. . Moreno, 2013 WL 120907, at *5 (concluding that when a litigant pursues a claim of plain error on a silent or ambiguous record, the court will "focus on whether there is a serious potential for tactical inaction" because where "an attorney makes a conscious decision not to object to inad-missable evidence in order to gain a tactical advantage . the attorney is unlikely to make this decision a matter of record" (emphasis added)). . Moreno v. State, Nos. S-15067/15070 (Alaska Supreme Court Order, June 10, 2013). . Moreno, 2013 WL 120907, at *1. A local option community is one that has elected to prohibit the sale, importation, or possession of alcoholic beverages. See AS 04.11.491. . Id. at *1-2 (discussing the defense attorney's question: "And at no point during your investigation did you determine who that jacket belonged to?" and the officer's reply: "Correct, ma'am. There [were] no identifying items [in the jacket] and the defendant refused to speak to us about it, but we did photograph where that-that came out of. ." (emphasis omitted)). . Id. at *1. .) Id. at "1-2. . We have held that questions or comments by the State about a defendant's pre-arrest silence are generally inadmissible under Alaska Rule of Evidence 403 and that questions or comments by the State on a defendant's post-arrest silence are prohibited by article I, section 9 of the Alaska Constitution. Adams v. State, 261 P.3d 758, 765-67 (Alaska 2011). It is unclear whether Moreno had been arrested when police questioned him about the jacket. Moreno, 2013 WL 120907, at *2, . Moreno, 2013 WL 120907, at *1. . Id. at *2-3. . Id. at *2 . 1d. at *3. . Id. . Id. . Id. . Id. at *5. . Id. . See Hicks v. State, Mem. Op. & J. No. 5911, 2013 WL 203264, at *1 (Alaska App. Jan. 16, 2013). . Id. . Id. . Id. . Id. at *1-2. . Id. at *3. . Alaska Const art. I, § 7 ("No person shall be deprived of life, liberty, or property without due process of law."). . Id. at *5 (omissions in original) (quoting Borchgrevink v. State, 239 P.3d 410, 421 (Alaska App.2010)}. . Moreno v. State, Nos. S-15067/15070 (Alaska Supreme Court Order, June 10, 2013). . Khan v. State, 278 P.3d 893, 899 (Alaska 2012) (quoting State v. James, 698 P.2d 1161, 1167 (Alaska 1985)). . Hicks, 2013 WL 203264, at *3. . Id. at *1., . Id. at *4. . Id. . Id. . Id. at *1, *4. . Moreno v. State, Nos. S-15067/15070 (Alaska Supreme Court Order, June 10, 2013). . State v. Doe A, 297 P.3d 885, 887 (Alaska 2013), as modified on denial of reh'g (Apr. 10, 2013). . Id. (quoting Ford v. Municipality of Anchor age, 813 P.2d 654, 655 (Alaska 1991)) (internal quotation marks omitted). . 328 P.3d 77, 82 (Alaska 2014) (alteration in original) (footnotes omitted) (quoting Alexander v. State, 611 P.2d 469, 478 (Alaska 1980) and Pierce v. State, 261 P.3d 428, 433 (Alaska App. 2011). * . Id. . Id. (quoting Adams v. State, 261 P.3d 758, 764 (Alaska 2011)). . Cf. Adams, 261 P.3d at 764 (noting that "Alaska Criminal Rule 47(b) allows appellate courts to notice '[pJlain errors or defects affecting substantial rights . although they were not brought to the attention of the court'" without restricting the rule's application to appellate proceedings (alterations in original) (emphasis added) (quoting Alaska R.Crim. P. 47(b))). We recently clarified in Johnson that plain error is a "prudential exception[ ]" to the general preservation rule; in other words, we retain inherent discretion to hear such appeals under the rubric of plain error as a common law doctrine. Johnson, 328 P.3d at 82 & n. 24. . Dorman v. State, 622 P.2d 448, 459 (Alaska 1981) (alteration in original) (quoting Bargas v. State, 489 P.2d 130, 133 (Alaska 1971)) (internal quotation marks omitted). ~ . Adams, 261 P.3d at 764. . Id. . Id. (alteration in original) (quoting Raphael v. State, 994 P.2d 1004, 1015 (Alaska 2000)) (internal quotation marks omitted). . We recently revisited the plain error test in Johnson v. State, 328 P.3d 77 (Alaska 2014), where we reiterated Adams's holding that "we will review unpreserved claims for plain error and reverse the trial court where there was obvi ous and prejudicial error below affecting substantial rights that did not result from 'intelligent waiver or a tactical decision not to object.' " Id. at 82 (quoting Adams, 261 P.3d at 764). . E.g., Hammonds v. State, 442 P.2d 39, 42, and 43 n. 16 (Alaska 1968) ('There is here a clear intimation of a deliberate design to knowingly [forgo] a constitutional claim. Such a deliberate act on the part of counsel amounts to a waiver of appellant's constitutional right which is binding on appellant."). . Id. at 42-43. . Hicks v. State, Mem. Op. & J. No. 5911, 2013 WL 203264, at *3-4 (Alaska App. Jan. 16, 2013). . Moreno v. State, Mem. Op. & J. No. 5819, 2013 WL 120907, at *5 (Alaska App. Jan. 9, 2013), reh'g denied, 2013 WL 120907, at *5 (Alaska App. Feb. 7, 2013) (omissions in original) (alterations added) (quoting Borchgrevink v. State, 239 P.3d 410, 421 (Alaska App.2010)). . Id. at *2-3. , Id. at *5. . We divide our discussion of the tactical-decision case law into three categories: (1) cases from 1960 to 1980; (2) cases from 1980 to 2000; and (3) the tactical-decision analysis in Adams v. State, 261 P.3d 758 (Alaska 2011). We discern no significant changes in our tactical-decision analysis from one period to the next but have divided our discussion into these sections to assist the reader. . 373 P.2d 734, 735 (Alaska 1962), overruled in part on other grounds by Shafer v. State, 456 P.2d 466 (Alaska 1969). . Id. at 736. . Id. . Id. . Id. . 422 P.2d 102, 103 (Alaska 1967). . Id. at 106-07. . 442 P.2d 39, 40-41 (Alaska 1968). . Id. at 43. . Id. at 42 (referring to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which held that statements obtained from defendants during interrogation in a police-dominated atmosphere, without full warning of constitutional rights, were inadmissible in violation of their Fifth Amendment privileges against self-incrimination). . Id. (emphasis added). . Id. at 43 (emphasis added). . 440 P.2d 405, 410 (Alaska 1968), overruled on other grounds by Fields v. State, 487 P.2d 831 (Alaska 1971). . Id. . 476 P.2d 474, 477 (Alaska 1970). . Id. at 480. . Id. . Id. . Id. . Id. . 613 P.2d 259, 260 (Alaska 1980). . Id. . Id. . Id. . 1d. . Id. at 262 ("We conclude that the trial court here could have cured any possible prejudice with an instruction to the jury that they were to determine guilt or innocence solely on the basis of the evidence admitted at trial. Because Owens objected to this procedure, he has waived his right to raise on appeal this issue." (footnote omitted)). We note that the trial judge in Owens did a commendable job making a clear record on this issue. Best practices for trial judges who become aware of an attorney's probable tactical decision not to object (or not to request a curative instruction) include making an inquiry and findings on the record outside the presence of the jury. . 620 P.2d 674, 677 (Alaska 1980). . Id. . Id. . Id. . Id. at 677-78. . Id. . Hicks v. State, Mem. Op. & J. No. 5911, 2013 WL 203264, at *4' (Alaska App. Jan. 16, 2013); Moreno v. State, Mem. Op. & J. No. 5819, 2013 WL 120907, at *5 (Alaska App. Jan. 9, 2013), reh'g denied, 2013 WL 120907, at *5 (Alaska App. Feb. 7, 2013). . Moss, 620 P.2d at 677-78. . 622 P.2d 448, 457-58 (Alaska 1981) (comparing Davis v. State, 501 P.2d 1026 (Alaska 1972) and Hammonds v. State, 442 P.2d 39 (Alaska 1968) with Bargas v. State, 489 P.2d 130 (Alaska 1971)). . Id. at 456. There had also been testimony regarding Dorman's reactions to questions after he had been informed of his Miranda rights, despite Dorman's counsel's objections. Id. at 452. The trial court prohibited the prosecutor from referencing that testimony during closing arguments. Id. , Id. at 457. . Id. . Id. at 458. . Id. at 458 (emphasis added). We also noted Dorman's counsel's "many objections" to testimony regarding Dorman's silence after receiving a Miranda warning compared to Dorman's counsel's failure to object to testimony regarding Dor-man's silence before receiving a Miranda warning. Id. We stated that this discrepancy further indicated that counsel's failure to object to evidence of Dorman's pre-Miranda-warning silence was not invited error. Id. . Id. ('Thus, since the failure to object to the final comment has not been shown to have been a tactical or strategic decision, the [S}tate's argument does not compel us to disregard the error. We must still, of course, determine whether this remark constituted plain error."). . 994 P.2d 1004, 1006 (Alaska 2000). . Id. . Id. . Id. at 1015. . Id. ("Specifically, the State contends that Raphael could have hoped that [the complaining witness's] incarceration would make her hostile toward the prosecution and cause her to slant her testimony in his favor."). . Id. . Id. at 1016 (citing Noffke v. State, 422 P.2d 102, 106-07 (Alaska 1967)). . Id. at 1016 n. 53 (emphasis added) (explaining our request that the parties provide supplemental briefing on whether the record contained any evidence of defense counsel's knowledge of the hearing, apart from the trial court's limited description of it). . Id. . See id. at 1015. . Id. at 1015-16. . See, eg., Hammonds v. State, 442 P.2d 39, 42-43 (Alaska 1968). . 261 P.3d 758, 773 (Alaska 2011). . Moreno and Hicks cite Adams's discussion of Dorman, where we explained: "[Where a defendant 'neither injected the issue of his silence into the case nor obtained a benefit from the prosecutor's inculpatory comment,' there [was] no basis for inferring that the failure to object was tactical 'unless it is implied that defense counsel invited error for the purpose of obtaining a reversal on appeal.'" Adams, 261 P.3d at 773 (quoting Dorman v. State, 622 P.2d 448, 458 (Alaska 1981)). . The State argues that we should explicitly adopt the court of appeals' standard for deciding whether a failure to object was tactical. Under this standard, the court of appeals reviews the trial court record for any "plausible" tactical reason for defense counsel's failure to object, Borchgrevink v. State, 239 P.3d 410, 422 (Alaska App.2010), and "unless the record precludes the possibility that counsel's actions may have been tactical, a finding of plain error is rarely appropriate." Massey v. State, 771 P.2d 448, 453 (Alaska App.1989). Under the court of appeals' approach, if the court can divine a conceivable tactical reason or the record is silent or ambiguous, that court applies a presumption that the defense attorney's decision was tactical, and then the burden shifts to the defendant to prove that counsel's decision was not tactical. Borchgre-vink, 239 P.3d at 421. . Adams, 261 P.3d at 770. . Id. at 773 (quoting Dorman, 622 P.2d at 458). . Id. (emphasis added) (quoting Dorman, 622 P.2d at 458) (internal quotation marks omitted). . Larry Cunningham, Appellate Review of Un-preserved Questions in Criminal Cases: An Attempt to Define the "Interest of Justice," 11 J.Apr Prac. & Process 285, 298 (2010) (third alteration in original) (footnote omitted) (quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)) (internal quotation marks omitted). . Adams, 261 P.3d at 770, 773 (noting that "our [earlier] cases . consistently defined] plain error as error that affects substantial rights and is obviously prejudicial," but noting that three substantive requirements must now be met: there "must be error .; the error must be obvious, meaning that it should have been apparent to any competent judge or lawyer; . the error must affect substantial rights, meaning that it must pertain to the fundamental fairness of the proceeding; and . the error must be prejudicial"). . Moreno v. State, Mem. Op. & J. No. 5819, 2013 WL 120907, at *5 (Alaska App. Jan. 9, 2013), reh'g denied, 2013 WL 120907, at *5 (Alaska App. Feb. 7, 2013) (quoting Borchgrevink, 239 P.3d 410, 421 (Alaska App.2010)). . Id. . Hicks v. State, Mem. Op. & J. No. 5911, 2013 WL 203264, at *4 (Alaska App. Jan. 16, 2013) (citing Khan v. State, 278 P.3d 893, 901 (Alaska 2012). . Id. at *4 (citing Khan, 278 P.3d at 901). . Khan, 278 P.3d at 901. . We note that the court of appeals recently discussed the tactical-decision principle in Anderson v. State, 337 P.3d 534, 543-44 (Alaska App.2014). We had previously remanded the Anderson case to the court of appeals for its reconsideration of this issue in that case. The court of appeals decided not to reconsider its earlier determination of the tactical decision in that case in light of its alternative holding that the jury instruction error in Anderson was harmless beyond a reasonable doubt. Id. at 544. . Moreno, 2013 WL 120907, at *3. . Adams v. State, 261 P.3d 758, 773 (Alaska 2011). . Id. at 774-75 (quoting Van Hatten v. State, 666 P.2d 1047, 1056 (Alaska App.1983)). . Moreno, 2013 WL 120907, at *1. . See Alaska Const. art. I, § 9 ("No person shall be compelled in any criminal proceeding to be a witness against himself."); Moreno, 2013 WL 120907, at *2 ("Evidence of a defendant's post-arrest silence in response to police questioning is generally inadmissible under Article I, see- . tion 9 of the Alaska Constitution. In addition, a defendant's pre-arrest silence will usually be inadmissible under Alaska Evidence Rule 403 because its probative value is inherently low and the danger of unfair prejudice is inherently high." (footnote omitted)). We note that the court of appeals did not explicitly determine whether Moreno was under arrest when he was questioned about the jacket, but assumed that he was, at the very least, detained when the questioning occurred. Moreno, 2013 WL 120907, at *2. The court of appeals therefore analyzed the officer's comment under the higher "harmless beyond a reasonable doubt" standard employed when the alleged error implicates a constitutional right. See id.; see also Adams, 261 P.3d at 771. Because our decision to affirm the court of appeals' conclusion in Moreno regarding the lack of prejudice would be the same under either the pre- or post-arrest standard as stated in Adams, 261 P.3d at 773, whether Moreno was under arrest at the time of his statement is irrelevant. . Adams, 261 P.3d at 770. . 14. . Id. at 762. . Id. . Moreno, 2013 WL 120907, at *3.

10371573

Robert C. SHARP, Appellant, v. STATE of Alaska, Appellee

Sharp v. State

1992-07-17

No. A-3068

718

727

837 P.2d 718

837

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:15:02.151835+00:00

CAP

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

Robert C. SHARP, Appellant, v. STATE of Alaska, Appellee.

Robert C. SHARP, Appellant, v. STATE of Alaska, Appellee. No. A-3068. Court of Appeals of Alaska. July 17, 1992. George E. Weiss, Anchorage, for appellant. Nancy R. Simel, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

5377

32424

OPINION MANNHEIMER, Judge. Following a jury trial in the Anchorage superior court, Robert C. "Chris" Sharp was convicted of four counts of sexual abuse of a minor in the first degree, AS 11.41.434(a), and one count of felony failure to appear, AS 12.30.060(1). The sexual abuse charges were premised on Sharp's molestation of four young girls, J.B., S.E., M.P., and J.G., all of whom had been entrusted to Sharp's mother, a day-care provider. Following his indictment, Sharp fled Alaska after manufacturing an apparent suicide in Turnagain Arm. (Sharp's parents were his accomplices in this endeavor: see Jean and Homer Sharp v. State, Memorandum Opinion No. 2370 (Alaska App., March 11,1992)). This effort to avoid prosecution resulted in Sharp's indictment for failure to appear. Sharp appeals both his convictions and his sentence. We affirm. Sharp lived with his parents, Homer and Jean Sharp. The elder Sharps ran a daycare center out of their home. Sharp's mother was the primary care taker; however, when she was absent or was not feeling well, Sharp would take over. J.G. started attending Jean Sharp's daycare center in December 1982, when she was six months old. Around November 1984, J.G. complained that her "butt" hurt; J.G. used the word "butt" to refer to both her vaginal and anal areas. J.G.'s mother noticed that her daughter's vaginal area was red and irritated. Her doctor told her that this was common with small girls who were inexperienced in wiping themselves after using the toilet. Mrs. G brought the vaginal irritation to the attention of the Sharps, who speculated that it might be due to the soap they were using to bathe J.G. Six months later, J.G. complained to her mother that "Chris" was putting soap on her butt and making it sore. Then, in November 1985, after watching her father urinate,. J.G. declared that "Chris has a monster in his pants . just like Daddy". J.G. then reiterated that Chris put soap on her butt and made it sore. J.G.'s mother immediately withdrew her from the daycare center. Sharp's trial was held almost three years later, in September 1988. At that time, J.G. was six years old. When J.G. testified at trial, she remembered being at the Sharps' home but could not remember anything about the sexual abuse, nor could she remember telling her mother any of the things Mrs. G. had testified to. J.G. also failed to identify Sharp when he was pointed out to her. To support its allegation that J.G. had been sexually abused, the prosecution presented the testimony of Dr. Clinton Lilli-bridge, a pediatrician who had examined J.G. on November 18, 1987. The doctor testified that young girls normally have a round hymenal opening of three to four millimeters in diameter. However, J.G.'s hymen had an irregular opening, about nine millimeters wide and six millimeters in height, with a deep tear on one side. Dr. Lillibridge stated that this deformity and injury had probably been caused by a repeated, forceful penetration by an object .the size of a finger. He concluded that the condition of J.G.'s hymen was consistent with its being penetrated by a man's finger when she was two to three years old. Another child, S.E., started attending the Sharps' day-care center when she was six months old and continued attending until she was about two and one-half years old. On Friday, August 7, 1987, S.E. spent the day at the Sharps' and then was going to spend the night at the house of one of her friends, M.P.. When M.P.'s mother came to pick up the two children from the daycare center, she heard them talking about how Sharp had touched them. B.P., M.P.'s mother, testified that when she picked M.P. and S.E. up on August 7, 1987, M.P. told her, "Chris hurt [S.E.] and she was crying." S.E. did not want to talk about the incident, but she indicated that Chris had hurt her. B.P. asked M.P. if Chris had hurt her too, and M.P. responded, "He hurt me a long time ago." B.P. notified S.E.'s mother, and the two women called the police. At Sharp's trial, S.E. identified Sharp as a "big boy" who had babysat her and other children at his house. S.E. said that Sharp had touched her. According to S.E., Sharp told all the other children to go upstairs and take a nap, but he kept S.E. and anoth er girl downstairs. Sharp then put a blanket over S.E.'s head; when she cried, he told her to be quiet. Sharp removed S.E.'s shorts and underwear and threw them in the bathroom; then he put lotion on her private parts. S.E. stated that when Sharp touched her private parts it felt cold and then hot. S.E. said that the thing touching her did not feel like a man's hand or finger. S.E. did not remember feeling any pain, and said it was hard to tell if he put anything inside her. Later that same day, S.E. told her friend, M.P., about the touching, and M.P. told her that Chris had done it to her lots of times. M.P. attended the Sharps' day-care center from June 1984 until August 1987. M.P. testified that Sharp had hurt her in the bathroom lots of times with a white "needle" that was about six inches long. She stated that the white needle had a "circle end" and that its front was sharp. M.P. said Sharp would fetch this object from a shelf in his room; he then would get lotion and get "ready to do it." Sharp would put the lotion on her private parts and "rub it around." Chris would then poke the needle in M.P.'s private parts; M.P. said that this hurt her "really bad". M.P. said that Sharp would not stop when she asked him to; when she cried, Sharp would tell her to be quiet. M.P. failed to identify Sharp at trial, even after he was pointed out to her. M.P. later identified the "white needle" as an electric toothbrush holder. She also identified a bottle of Keri lotion as being the one used during the sexual abuse. M.P. and S.E. were taken to Humana Hospital where they were examined by Dr. Mark Moeller. Dr. Moeller asked each of the girls what had happened to them. M.P. told Dr. Moeller, "Chris poked something into me where I go pee," pointing toward her genitals. Dr. Moeller found that M.P.'s vaginal opening was larger than normal and that it was a bit of red. Dr. Moeller testified that M.P.'s injury was consistent with her having been penetrated with an object the diameter of a dime, and that it probably had occurred from several days to a week earlier. S.E. also told Dr. Moeller that Chris put something into her where she pees. When she pointed to her genitals, S.E. started crying and grabbed her mother. Dr. Moel-ler testified that S.E.'s hymen was approximately five to six millimeters wide, and that, in his training, four millimeters was the upper normal limit. He also noted that S.E.'s labia majora and minora were irritated from a fairly recent occurrence, within the previous twenty-four hours. Dr. Moel-ler believed that this irritation was consistent with S.E.'s being penetrated by a foreign object, and not just the result of an abrasion or irritation. The fourth victim, J.B., attended the Sharps' day-care center from June 1987 until August 10, 1987. In late July, J.B.'s mother asked her if anyone "had been messing with her." J.B. responded, "Yes, Chris." However, J.B. dropped the subject immediately, leaving her mother unsure whether J.B. had been truthful. When J.B.'s mother went to pick her up on August 10, Jean Sharp told her about allegations that her son had molested some of the children in her home. Later that day, J.B. told her mother that Chris Sharp had pulled her pants down once but had never taken her underwear off. J.B. stated that Chris rubbed his penis on her leg when she was wearing only underwear and that he was trying to mess with her "gina". At Sharp's trial, J.B. testified that Sharp had touched her genitals with his hand, that it hurt her when he did this, and that she hated it. She stated that Sharp had done this one time when everyone else was out of the house. J.B. was uncertain whether or not Sharp put his hand inside her, and she stated that her panties never came off. When asked whether or not she had told her mother that she had seen Sharp's penis, J.B. first denied it and then admitted it. When asked if this incident had truly happened, J.B. said yes, but then she added that Sharp had never taken his private part out of his pants in front of her. Dr. Lillibridge examined J.B. on August 13, 1987. When he started to examine J.B.'s vaginal area, she became apprehensive and needed reassurance from her mother. This reaction is abnormal in a child J.B.'s age but is observed in children who have been sexually abused. J.B.'s hymenal opening was irregular and jagged, not a normal round opening. To Dr. Lillibridge, this indicated that something the size of an adult male finger had penetrated J.B. more than two days before the exam. The doctor testified that J.B.'s injury was not consistent with rough-housing, washing of the genitals, or masturbation. Sharp was initially charged with three counts of sexual abuse of a minor for the incidents involving S.E., M.P., and J.B.. Later, count IV was added for the sexual abuse of J.G.. Sharp's trial was scheduled for May 31, 1988. On May 20, 1988, Anchorage Police Officer Hans Roelle was given a jacket that had been found at McHugh Creek. The jacket contained a letter and Sharp's driver's license. Roelle went to Sharp's house to return the jacket. There, he met Jean and Homer Sharp; the elder Sharps acted peculiarly about the jacket but would not respond to Roelle's questions except to tell him that Sharp was on bail release for a felony charge. The following day, Officer Barry Croy was dispatched to meet Homer Sharp at the Potter Marsh Weigh Station. Homer Sharp told Croy that he had found a car which he believed his son had been driving; he said that the car was locked but there appeared to be a note in the front seat. Croy helped Homer Sharp unlock the car; inside, they found a suicide note, apparently written by Sharp, and an empty bottle of whiskey. The police began searching for Sharp. Jean Sharp soon arrived. Both she and Homer told the police that they thought their son had walked into the inlet or been kidnapped and killed by drug dealers. On May 23, 1988, the prosecutor learned that Sharp was missing and she obtained a bench warrant for his arrest. On May 31, Sharp did not appear for trial. The trial date was vacated but the bench warrant continued in effect. Three weeks later, on June 14, 1988, Sharp was located and arrested in Charleston, South Carolina. He was returned to Anchorage on June 27, 1988, and was indicted on a fifth count, felony failure to appear. As noted above, Sharp was convicted on all five counts. Sharp's initial argument on appeal is that he received ineffective assistance from his trial attorney. Sharp has never litigated this claim in a petition for post-conviction relief under Criminal Rule 35.1. Claims of ineffective assistance can rarely be determined from the trial record alone. An attorney's actions are presumed competent. Risher v. State, 523 P.2d 421, 424 (Alaska 1974); State v. Jones, 759 P.2d 558, 567-570 (Alaska App.1988). Moreover, an attorney's trial decisions — including which potential defenses to pursue, whether to object to the evidence offered by the government, how to cross-examine government witnesses, and whether and how to present a defense case — generally rest on considerations of strategy and trial tactics that are not directly addressed in open court. For these reasons, this court will seldom entertain an ineffective assistance of counsel claim raised for the first time on appeal. Barry v. State, 675 P.2d 1292, 1295-96 (Alaska App.1984). Sharp acknowledges this general rule but nevertheless asks us to address his various claims of attorney incompetence as matters of plain error. With one exception, we find that Sharp has failed to adequately brief his claims of ineffective assistance; his brief to this court mentions various claims of attorney incompetence in passing, but Sharp fails to provide substantive legal discussion of how each instance might demonstrate ineffective assistance of counsel. See Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d 406, 411 & n. 8 (Alaska 1990). The one exception is Sharp's claim that his trial attorney incompetently failed to object to Dr. Lillibridge's testimony that a hymenal opening of greater than four millimeters strongly indicates that a child had been sexually abused. We find that Sharp's discussion of this point is adequate to allow meaningful appellate review. We therefore decide this claim of ineffective assistance, but we decline to reach the merits of Sharp's other allegations of ineffective assistance of counsel. As described above, Dr. Lillibridge testified at Sharp's trial, without objection, that if a child has a hymenal opening greater than four millimeters' diameter, this is substantial evidence of sexual abuse. Sharp argues that Dr. Lillibridge's opinion is inadmissible under the test for scientific evidence announced in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), and adopted in Pulakis v. State, 476 P.2d 474, 478 (Alaska 1970). See also Contreras v. State, 718 P.2d 129, 134-36 (Alaska 1986). That is, Sharp asserts that most practitioners of pediatric medicine do not recognize the validity of inferring sexual abuse from the size of a child's hymenal opening. Because no objection was made to Dr. Lillibridge's testimony at Sharp's trial, we review the challenged testimony under a plain error standard. To demonstrate plain error, Sharp must show that no competent judge or attorney could have failed to see that Dr. Lillibridge's opinion fell outside the realm of generally accepted medical judgments. Potts v. State, 712 P.2d 385, 394 n. 11 (Alaska App.1985); Marrone v. State, 653 P.2d 672, 675-681 (Alaska App.1982). Sharp has not demonstrated this. Dr. Lillibridge testified that the "Cant-well study", a survey of children's hymenal openings, found that among children with hymenal openings greater than four millimeters' diameter, 80 percent had been sexually abused. Dr. Lillibridge also testified that the American Medical Association's Council on Practice had published findings that supported the Cantwell study's conclusion. Dr. Lillibridge further testified that his own examinations of thousands of children during his quarter-century career as a pediatrician corroborated the medical literature's four-millimeter benchmark. . During cross-examination by Sharp's attorney, Dr. Lillibridge explained that an enlarged hymenal opening does not conclusively establish sexual abuse, but the medical profession views an enlarged opening as evidence of abuse. Dr. Lillibridge's testimony was supported by the later testimony of Dr. Mark Moeller; Dr. Moeller stated (again, without objection) that, according to his medical training, a hymenal opening greater than four millimeters in diameter is abnormal. Given this record, Sharp has failed to show plain error in the admission of Dr. Lillibridge's testimony that a hymenal opening of greater than four millimeters' diameter was abnormal and that sexual abuse might be inferred from an abnormally enlarged hymenal opening. Sharp's second argument on appeal concerns his challenge to a prospective member of the jury. During jury selection, Sharp challenged seven members of the venire for cause; the superior court granted six of these challenges and denied one. On appeal, Sharp argues that this one denial constituted an abuse of discretion. To obtain reversal of a judgement because of an assertedly erroneous ruling on a challenge to a prospective juror, Sharp must show "that he has exhausted his peremptory challenges and has suffered material injury from the action of the court"— i.e., "that as a result [of the court's ruling] one or more objectionable jurors sat on the case". Bohna v. Hughes, Thorsness, Gantz, Powell, & Brundin, 828 P.2d 745, 762 (Alaska 1992). Sharp cannot show that he was prejudiced by the trial court's ruling. Sharp used only four of his peremptory challenges during jury selection; he accepted the panel when he still had six peremptory challenges remaining. See Alaska Criminal Rule 24(d). Because Sharp could have used one of his remaining peremptory challenges to remove the juror in question, Sharp was not prejudiced by the superior court's denial of his challenge for cause. Sharp next argues that the superior court erroneously allowed various witnesses (parents and doctors) to testify concerning out-of-court statements made by the four victims. We find that Sharp has not sufficiently briefed this issue to preserve it for appeal. Sharp's brief does not identify the particular statements he believes should have been excluded. Our review of the record shows that Sharp did not object to much of this testimony. Further, it is clear that at least some of the victims' statements were not hearsay at all. For example, J.G.'s statement that "Chris has a monster [i.e., a penis] in his pants" was not introduced to prove the matter asserted; rather, this statement was circumstantial evidence that sexual abuse had occurred (by tending to prove that J.G. had seen Sharp's penis). Alaska Evidence Rule 801(c). Finally, Sharp's discussion of the governing law is sketchy at best. He asserts in a conclusory manner that the identity of a child's sexual abuser can never be established through hearsay statements of the victim — an overbroad assertion with several exceptions. For these reasons, we decline to reach the merits of Sharp's challenge to the testimony describing out-of-court statements of the four victims. Bohna v. Hughes, Thorsness, supra; Kristich v. State, 550 P.2d 796, 804 (Alaska 1976); Gudmundson v. State, 763 P.2d 1360, 1362 (Alaska App.1988). Sharp's final attack on his conviction concerns the superior court's decision to join the five counts for trial. On March 4, 1988, Sharp moved for severance of Count IV, the abuse of J.G., on the ground that it was dissimilar and unconnected to the other three sexual abuse charges, and because it was remote in time from the other charges. Judge James A. Singleton, sitting as a superior court judge, granted Sharp's motion, relying on Johnson v. State, 730 P.2d 175 (Alaska App.1986). In Johnson, this court held that a defendant was entitled to automatic severance upon request when the sole basis for joinder was the similar nature of the charged offenses, even when the evidence of the various charges would be cross-admissible at separate trials. However, on May 28, 1988 (three days before Sharp's original trial date), the legislature amended Alaska Criminal Rule 8(a). Ch. 66, § 8-9, SLA 1988. Rule 8(a) now allows joinder of similar offenses if the government can demonstrate before trial that evidence of each offense will likely be cross-admissible. The legislature's declared intent was to overrule Johnson and "permit multiple offenses to be joined for trial when evidence of one offense is admissible to prove another." 1988 House Journal at 2332. As explained above, Sharp's original trial date was vacated when he fled Alaska. When Sharp was recaptured, his trial was set for the end of August. On August 22, 1988, a week before trial, Sharp moved to sever the four remaining joined counts (Counts I, II, III, and V). The state opposed this motion and responded with a motion to rejoin Count IV in light of the amendment to Criminal Rule 8(a). Superi- or Court Judge Peter A. Michalski ordered all five counts joined for trial. Sharp moved for reconsideration of joinder at the end of the State's case; this motion was denied. A trial court's decision on joinder or severance is not to be disturbed absent an abuse of discretion and a showing of prejudice. Abdulbaqui v. State, 728 P.2d 1211, 1218-19 (Alaska App.1986). The current version of Criminal Rule 8(a), when read in conjunction with Criminal Rule 13, provides: Joinder of Offenses. Two or more offenses may be [joined for trial] if the offenses charged, whether felonies, misdemeanors or both, (1) are of the same or similar character and it can be determined before trial that it is likely that evidence of one charged offense would be admissible to prove another charged offense, (2) are based on the same act or transaction, or (3) are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan. Sharp mistakenly argues that he was entitled to automatic severance of Counts I through IV under Johnson. As just explained, the Johnson decision was overturned by the legislature. Moreover, even if Sharp's case had been governed by the previous version of Rule 8(a) and the holding in Johnson, joinder would still have been proper. The automatic severance rule of Johnson applied only when the sole basis for joinder was the first clause of Rule 8(a) — similar offenses. There was no automatic severance when joinder was premised on the second or third clauses of the rule — offenses based on the same transaction, or based on related transactions constituting parts of a common plan or scheme. Yearty v. State, 805 P.2d 987, 991 (Alaska App.1991); Newcomb v. State, 800 P.2d 935, 943 (Alaska App.1990). Sharp's sexual abuse of the four children took place at his mother's day-care center; Sharp apparently used his position as chief lieutenant at the day-care center to obtain access to young children. Thus, Sharp's acts of abusing several young children could reasonably be viewed as separate instances of a common scheme or plan. See Oswald v. State, 715 P.2d 276, 279-280 (Alaska App.1986), where this court held that evidence of the defendant's sexual propositions to various teenage girls could be admitted under Evidence Rule 404(b) as evidence of his plan or scheme to exploit his position as a "counselor" to run-away teenagers. Even though Criminal Rules 8(a) and 13 allow joinder of two or more charges, a defendant can nevertheless obtain severance under Criminal Rule 14 by showing that the jury's ability to fairly decide the individual charges will be substantially impaired if the jury hears evidence relating to other charges at the same time. Sharp argues that this was true in his case. However, one of the issues litigated at Sharp's trial was identity — that is, whether, assuming the children had been abused, Sharp could be identified beyond a reasonable doubt as the one who had abused them. Sharp's sexual abuse of various children attending his mother's day-care center would have been admissible, even at separate trials, on the issue of identity. Yearty, 805 P.2d at 991. Judge Michalski so found when he denied Sharp's motion for reconsideration of the joinder issue. This leaves Count V, the charge of failure to appear. As this court noted in Newcomb, 800 P.2d at 943, evidence of Sharp's feigned suicide and flight from Alaska was relevant to deciding whether he had been the one who sexually abused the children. Conversely, evidence of Sharp's sexual abuse of the children was relevant to deciding what his intent and motivation were when he failed to appear for his trial. Sharp has not shown that Judge Michal-ski abused his discretion when he ordered the five counts joined for trial. We turn now to Sharp's sentencing arguments. The portion of Sharp's brief that deals with his sentence is devoted mainly to arguing that he received ineffective assistance of counsel at sentencing. For the reasons explained above, we decline to reach this claim. The remaining claim is Sharp's argument that his sentence is excessive. For his four sexual abuse convictions, Sharp was sentenced to a composite term of 32 years with 16 years suspended. Judge Michalski imposed a consecutive 1 year's imprisonment for Sharp's failure to appear, making a total sentence of 17 years to serve and another 16 years suspended. Sharp was a first felony offender who was convicted of sexually abusing four children; the evidence indicated that he had abused the children many times over a period of two years or more. In State v. Andrews, 707 P.2d 900 (Alaska App.1985), aff'd 723 P.2d 85 (Alaska 1986), this court recognized a benchmark sentencing range of 10 to 15 years to serve for first offenders convicted of aggravated instances of child sexual abuse. This court defined an "aggravated" case as one in which the defendant had abused multiple victims, or had committed multiple assaults on a single victim, or had inflicted serious injury to one or more victims. Andrews, 707 P.2d at 913-14. For example, in Koenig v. State, the companion case decided in Andrews, the defendant was a public school teacher who sexually abused several 8- and 9-year-old children. Because Koenig had been in a position of authority over his victims, because the children were particularly vulnerable due to their youth, and because Koe-nig had abused several children, this court concluded that his case was aggravated and approved a sentence of 15 years to serve with an additional 5 years suspended. Andrews, 707 P.2d at 911, 917. Sharp relies on White v. State, 773 P.2d 211, 217-18 (Alaska App.1989), for the proposition that first offenders should rarely receive sentences of more than 10 years' imprisonment. However, the 10-year ceiling mentioned in White, and actually announced in DeGross v. State, 768 P.2d 134, 139-140 (Alaska App.1989), and Pruett v. State, 742 P.2d 257, 265-66 & n. 10 (Alaska App.1987), applied to first offenders convicted of class A felony offenses. The 10-year rule did -not apply to defendants convicted of first-degree sexual abuse of minors, which is an unclassified felony — otherwise, White, DeGross, and Pruett would have been inconsistent with the benchmark sentencing range announced in Andrews. Moreover, the 10-year rule applied in White, DeGross, and Pruett was expressly disapproved by the Alaska Supreme Court in State v. Wentz, 805 P.2d 962, 966 (Alaska 1991). Sharp's sexual abuse sentences total 16 years to serve, slightly more than the upper limit of the benchmark range announced in Andrews. However, on several occasions this court has affirmed sentences of more than 15 years to serve for first offenders in exceptional cases. This court summarized these exceptional cases in Howell v. State, 758 P.2d 103, 107 (Alaska App.1988): In several exceptionally aggravated cases we have approved sentences in excess of the ten- to fifteen-year benchmark for first offenders. These cases have involved multiple offenses and multiple victims. Even so, we have never approved a first offender sentence of more than twenty years of unsuspended incarceration except when the defendant used a significant amount of violence, had previously been incarcerated for a substantial period, or both. For example, in Lewis v. State, 706 P.2d 715 (Alaska App.1985), the defendant was a 45-year-old Boy Scout leader who abused two dozen victims over a period of four years. The defendant had no prior record, and he used no violence against the children; moreover, Lewis's victims were older than the ones involved in Koenig (Andrews). However, Lewis abused more victims than Koenig, and the abuse occurred over a longer period of time. For these reasons, the Court viewed Lewis's crimes as more aggravated than Koenig's; it held that Lewis's sentence should not exceed 25 years with 5 suspended. In Seymore v. State, 655 P.2d 786 (Alaska App.1982), this court upheld a sentence of 20 years to serve for a defendant who sexually penetrated his stepdaughter on three occasions and who had previously been charged with engaging in sexual contact with her. And in Qualle v. State, 652 P.2d 481 (Alaska App.1982), the court upheld a sentence of 21 years for a defendant who had two children perform sex acts with each other and with him, who photographed them so he could sell the pictures to child pornography magazines, and who admitted that he had previously abused his own three children. Finally, in Dymenstein v. State, 720 P.2d 42 (Alaska App.1986), the defendant was an older adult who had engaged in lengthy sexual abuse of a child. He subjected his victim to group sex and had her pose for pornographic photography. The victim suffered severe emotional damage. The sentencing investigation revealed that the defendant had abused two other children as well. Dymenstein refused to admit that any sexual abuse had occurred or that he had any problem — demonstrating a poor prognosis for rehabilitation. Id. at 47. This court approved a sentence of 18 years to serve. It is, of course, arguable that Sharp's offenses are not as egregious as the offenses presented in Lewis and Dy-menstein. However, the 10- to 15-year benchmark range established in Andrews is not an inflexible rule of law, but rather an historically based starting point for analyzing Sharp's sentence under the particular facts of his case. If there are articula-ble and valid reasons for imposing a sentence outside that benchmark range, the resulting sentence will not be clearly mistaken. Williams v. State, 809 P.2d 931, 938-35 (Alaska App.1991). Sharp's case shares many of the attributes that led this court to uphold lengthy sentences in Lewis and Dymenstein. Judge Michalski found that Sharp's offenses were "predatory" in nature; Sharp chose pre-school-age children (3½ to 5 years old) who were particularly vulnerable. Sharp used his position of authority at his mother's day-care center to obtain access to the children. Judge Michalski concluded that the number of Sharp's victims, coupled with the length of time over which he abused them, demonstrated the ingrained nature of Sharp's problem and his correspondingly high level of danger to society. Moreover, throughout the pre-sen-tence investigation and the sentencing proceedings, Sharp denied that he had engaged in any sexual conduct with the children; Judge Michalski found that Sharp's inability to admit his problem indicated that rehabilitation would be a lengthy process. For these reasons, we conclude that Judge Michalski was not clearly mistaken when he sentenced Sharp to serve 16 years for sexual abuse of the children. We also uphold Judge Michalski's decision to impose a consecutive 1-year term for Sharp's attempt to avoid prosecution by feigning suicide and fleeing Alaska. Sharp's elaborately prepared flight, besides constituting a separate crime, also indicated that he had poor prospects for rehabilitation. Sharp's failure to appear was among the most serious offenses within its class. Sharp's intent was to avoid prosecution on very serious criminal charges. He not only failed to appear in court, but he fled the jurisdiction of Alaska. Hoping to deceive the Alaska authorities into concluding that it was fruitless to pursue him, Sharp manufactured evidence to make it appear that he had committed suicide. Moreover, Sharp enlisted the aid of his parents in this scheme. The maximum sentence for failure to appear on felony charges is 5 years' imprisonment, AS 12.30.060(1), the same maximum sentence established for class C felonies. The circumstances discussed in the last paragraph suggest a sentence greater than the 1 year's imprisonment Sharp received for this crime. Judge Michalski was not clearly mistaken when he sentenced Sharp to a consecutive 1-year term for failure to appear. This leaves the 16 additional years that Judge Michalski imposed but suspended. This court must examine the propriety of Sharp's entire sentence, including the suspended time. However, in his brief, Sharp addresses himself exclusively to the length of time he must serve; he does not argue that the 16 years of suspended time is excessive. We therefore review this aspect of Sharp's sentence for plain error only. We do not find plain error. The judgement of the superior court is AFFIRMED. . White was, in fact, convicted of kidnapping, an unclassified felony. However, both this court and the superior court which sentenced White treated the kidnapping as a de minimis offense and concentrated primarily on the burglary, robbery, and assaults that White committed. 773 P.2d at 218 n. 1.

10403179

TRUSTEES FOR ALASKA, Nunam Kitlutsisti, Dinyea Corporation, Village of Minto, Alaska Independent Fishermen's Marketing Association, Alaska Center for the Environment, Southeast Alaska Conservation Council, Friends of the Earth, Plaintiffs/Appellants, v. STATE of Alaska, Alaska Department of Natural Resources, Esther Wunnicke, Commissioner, Department of Natural Resources, Defendants/Appellees, Alaska Miners Association, Fairbanks North Star Borough and Joseph E. Vogler, Defendants-Intervenors/Appellees

Trustees for Alaska v. State

1987-05-01

No. S-1142

324

342

736 P.2d 324

736

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:15:56.629960+00:00

CAP

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

TRUSTEES FOR ALASKA, Nunam Kitlutsisti, Dinyea Corporation, Village of Minto, Alaska Independent Fishermen’s Marketing Association, Alaska Center for the Environment, Southeast Alaska Conservation Council, Friends of the Earth, Plaintiffs/Appellants, v. STATE of Alaska, Alaska Department of Natural Resources, Esther Wunnicke, Commissioner, Department of Natural Resources, Defendants/Appellees, Alaska Miners Association, Fairbanks North Star Borough and Joseph E. Vogler, Defendants-Intervenors/Appellees.

TRUSTEES FOR ALASKA, Nunam Kitlutsisti, Dinyea Corporation, Village of Minto, Alaska Independent Fishermen’s Marketing Association, Alaska Center for the Environment, Southeast Alaska Conservation Council, Friends of the Earth, Plaintiffs/Appellants, v. STATE of Alaska, Alaska Department of Natural Resources, Esther Wunnicke, Commissioner, Department of Natural Resources, Defendants/Appellees, Alaska Miners Association, Fairbanks North Star Borough and Joseph E. Vogler, Defendants-Intervenors/Appellees. No. S-1142. Supreme Court of Alaska. May 1, 1987. Eric Smith and Robert W. Adler, Anchorage, for plaintiffs/appellants. Robert M. Maynard and Mark P. Worcester, Asst. Attys. Gen., Anchorage, Harold M. Brown, Atty. Gen., Juneau, for defendant/appellee State of Alaska, Alaska Dept, of Natural Resources, and Esther Wunnicke, Com’r, Dept, of Natural Resources. James N. Reeves, Bogle & Gates, Anchorage, for defendant/appellee Alaska Miners Ass’n. Ronald A. Zumbrun, Robin L. Rivett, and James S. Burling, Pacific Legal Foundation, Sacramento, Cal., and Michael B. Markham, Borough Atty., Fairbanks, for defendant/appellee Fairbanks North Star Borough. Thomas R. Wickwire, Fairbanks, for defendant/appellee Joseph E. Vogler. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

11483

70322

OPINION MATTHEWS, Justice. Alaska was granted the right to select 103,350,000 acres of land from the United States under section 6(a) and (b) of the Alaska Statehood Act, Pub.L. No. 85-508, 72 Stat. 339 (1958) (set out in a note preceding 48 U.S.C. § 21 (1982)). Mineral deposits in selected lands were also conveyed, subject to certain restrictions. Section 6(i) of the Act provides: All grants made or confirmed under this Act shall include mineral deposits. The grants of mineral lands to the State of Alaska under subsections (a) and (b) of this section are made upon the express condition that all sales, grants, deeds, or patents for any of the mineral lands so granted shall be subject to and contain a reservation to the State of all of the minerals in the lands so sold, granted, deeded, or patented, together with the right to prospect for, mine, and remove the same. Mineral deposits in such lands shall be subject to lease by the State as the State legislature may direct: Provided, That any lands or minerals hereafter disposed of contrary to the provisions of this section shall be forfeited to the United States by appropriate proceedings instituted by the Attorney General for that purpose in the United States District Court for the District of Alaska. This case presents issues concerning the meaning of the section 6(i) grant and restrictions, and of appellants' standing to bring an action in state court to construe the meaning of the Alaska Statehood Act. I. PROCEEDINGS BELOW The appellants are a coalition of environmental, Native, and fishing groups. They filed an action in superior court seeking a declaration that the state's mineral leasing system violates section 6(i) in that the state does not require payment of either rent or royalties in leases of lands subject to section 6(i), and that the state has incorrectly construed the section 6(i) restrictions to apply only to lands known to contain minerals at the time of state selection rather than to all selected lands which contain minerals. All parties moved for summary judgment. The trial court ruled that the appellants did not have standing, that section 6(i) is enforceable only by the Attorney General of the United States, and that the state's mineral management system does not violate section 6(i). The court did not rule on the question whether the section 6(i) restrictions apply to all state-selected -lands containing minerals or merely to those known to contain minerals at the time of selection. We conclude that appellants have standing to maintain this declaratory judgment action, that the state's mineral leasing system violates section 6(i) because it does not require the payment of rent or royalties on mining leases, and that section 6(i) applies only to those lands known to have been mineral in character at the time of state selection. II. STANDING TO MAINTAIN DECLARATORY JUDGMENT ACTION A. Standing "Standing questions are limited to whether the litigant is a 'proper party to request an adjudication of a particular is-sue_'" Moore v. State, 553 P.2d 8, 24 n. 25 (Alaska 1976) (quoting Flast v. Cohen, 392 U.S. 83, 100-01, 88 S.Ct. 1942, 1952-53, 20 L.Ed.2d 947, 961 (1968)). Standing in our state courts is not a constitutional doctrine; rather, it is a rule of judicial self-restraint based on the principle that courts should not resolve abstract questions or issue advisory opinions. Id. The basic requirement for standing in Alaska is adversity. Id. The concept of standing has been interpreted broadly in Alaska. We have "departed ¡from a restrictive interpretation of the standing, requirement," , Coghill v. Boucher,. 511, P.2d 1297, 1303 (Alaska 1973), adopting instead an approach "favoring increased accessibility to judicial forums." Moore v. State, 553 P.2d at 23; see also State v. Lewis, 559 P.2d 630, 634 n. 7 (Alaska) (and cases cited therein), cert. denied, 432 U.S. 901, 97 S.Ct.-. 2943, 53 L.Ed.2d 1073 (1977). Our cases have discussed two different kinds of standing. One is interest-injury standing; the: other is citizen-taxpayer standing. > Under the interest-injury approach, a plaintiff must have an interest adversely affected by the conduct complained of. Such an interest may be. economic, Moore, 553 P.2d at 24; Wagstaff v. Superior Court, Family Court Division, 535 P.2d 1220, 1225 (Alaska 1975), or it may be intangible, such as an aesthetic or environmental interest. Lewis, 559 P.2d at 635. The degree of injury to the; interest need not be great; " '[t]he basic idea . is that an identifiable trifle is enough for standing to fight out a question of principle; the trifle is the basis for standing and the principle supplies the motivation.' " Wagstaff, 535 P.2d at 1225 & n. 7 (quoting Davis, Standing: Taxpayers and Others, 35 U.Chi.L.Rev. 601, 613 (1968)). In the instant case, the appellants assert that they have standing as citizens or taxpayers, rather than because their interests are injured. In prior cases, we have often permitted taxpayers or citizens to challenge governmental action based on their status as taxpayers or citizens. In many such cases, standing has been assumed and not discussed. We have, however, explic itly addressed taxpayer-citizen standing on other occasions. For example, in Coghill v. Boucher, 511 P.2d 1297 (Alaska 1973), registered voters (one of whom was also a poll watcher) were allowed to challenge certain proposed vote-counting procedures. In finding standing, we stated: In the case at bar, we conclude that a retreat to restrictive notions of standing, as urged by appellee, would not advance the public's vital interest in maintenance of the integrity of vote-tallying procedures during statewide elections. Denial of standing to appellants in the instant case would have the effect of unduly limiting the possibility of a popular check upon executive control of the election process. If registered voters and poll watchers are foreclosed from seeking judicial review of administrative regulation of this sensitive aspect of our governmental system, then it may well be that any review of executive activity in this area would be completely foreclosed, particularly in the event that candidates or political parties were unwilling to challenge such administrative actions. We decline to restrict the public's access to Alaska's courts in such a manner. Id. at 1304. We also discussed the question of taxpayer standing in Lewis, 559 P.2d 630. At issue was the legality of a three-way land trade between the state, the federal government, and a native regional corporation. Our characterization of the plaintiffs' interest in Lewis applies in this case. "Here, plaintiffs are seeking to protect mineral resources in land originally selected from the federal government under the Statehood Act. Their interest in the state's retention of mineral rights in state lands is no less significant than the aesthetic and environmental values sought to be vindicated in Sierra Club [v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)] and [United States v.] SCRAP [,412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973) ]." 559 P.2d at 635. We declined to decide whether standing should be allowed in all taxpayer or citizen actions, but we allowed taxpayer standing in Lewis. Several factors influenced our conclusion: the land transfer allegedly violated specific constitutional limitations, the transfer was significant in size and in its potential economic impact on the state, and no one seemed to be in a better position than the plaintiffs to complain of the illegality of the transaction. Id. In Carpenter v. Hammond, 667 P.2d 1204 (Alaska), appeal dismissed, 464 U.S. 801, 104 S.Ct. 45, 78 L.Ed.2d 67 (1983), we affirmed, in an alternative holding, the standing of a citizen to challenge the reapportionment of a House District in which she did not reside or vote. We stated: In the instant case, Carpenter alleges that District 2 violates a specific constitutional limitation and that the disputed transaction (the drawing of election district lines) arguably will have a significant impact on the state. Here the dispute over District 2 has been fully briefed, argued at trial and on appeal, and there is no one in a better position than Carpenter to litigate these issues. In our view, Carpenter also meets the standing criteria of Lewis. Id. at 1210 (footnote omitted). Gilman v. Martin, 662 P.2d 120 (Alaska 1983), involved a challenge to a municipal sale of land. We upheld taxpayer standing, stating that "[a]ny resident or taxpayer of a municipality has a sufficient interest in the disposition of a significant number of acres of the municipality's land to seek a declaratory judgment as to the validity of the disposition." Id. at 123. In Hoblit v. Commissioner of Natural Resources, 678 P.2d 1337 (Alaska 1984), we held that plaintiff did not have standing as a taxpayer to challenge the sale of some twenty acres of state land. We distinguished Gilman on the grounds that the amount of acreage involved in Hoblit was not "significant." 678 P.2d at 1341. Similarly, we distinguished Lewis because the " 'magnitude .of the transaction and its potential economic impact on the State' which were determinative in Lewis are simply lacking here." Id. We remanded for a determination as to whether or not the plaintiff had standing because of his status as an adjoining land owner. Id. at 1341-42. This review of taxpayer-citizen standing in Alaska clearly demonstrates that taxpayer-citizen status is a sufficient basis on which to challenge allegedly illegal government conduct on matters of significant public concern. Taxpayer-citizen standing has never been denied in any decision of this court, except on the basis that the controversy was not of public significance, or on the basis that the plaintiff was not a taxpayer. However, Lewis and Carpenter suggested, without deciding, that taxpayer-citizen standing may be dé-nied even in cases of public significance under certain circumstances. In our view, taxpayer-citizen standing cannot be claimed in all cases as a matter of right. Rather, each case must be examined to determine if several criteria have been met. First, the case in question must be one of. public significance. On measure of significance may be that specific constitutional limitations are at issue, as in Carpenter and Lems. That is not an exclusive measure of significance, however, as statutory and common law questions may also be very important. Second, the plaintiff must be appropriate in several respects. For example, standing may be denied if there is a plaintiff more directly affected by the challenged conduct in question who has or is likely to bring suit. The same is true if there is no true adversity of interest, such as a sham. plaintiff whose intent is to lose the lawsuit and thus create judicial precedent upholding the challenged action. Further, standing may be denied if the plaintiff appears to be incapable, for economic or other reasons, of competently advocating the position it has asserted. The instant case is undoubtedly one of public significance. If appellants prevail, the state must change its method of making state land available for mining. Some 50,000 existing mining claims may be affected. Under the current system, according to the appellants, the state is illegally giving up more than $100,000 annually in royalties. Further, the state is at risk of forfeiting to the United States extensive areas of state lands. The state has correctly acknowledged the significance of this case. We turn now to consider whether appellants are appropriate parties to bring this suit. They are well represented by competent counsel who have forcefully presented their position. They are not sham plaintiffs; their sincerity in opposing the state's mineral disposition system is unquestioned. On the other hand, the state argues that there is a potential plaintiff with a more direct interest in the validity of the state's system. The state contends that the Attorney General of the United States may bring a forfeiture proceeding under section 6(i) and that this possibility means that appellants lack standing. In our view, the mere possibility that the Attorney General may sue does not mean that appellants are inappropriate plaintiffs. In Carpenter, a resident and voter of the House District in question would theoretically have been more interested in litigating the question whether the district was malapportioned than was the non-resident plaintiff in that case. However, no such person had filed suit. We noted that the issues had been fully presented at trial and on appeal by the plaintiff, and held that she had standing. 667 P.2d at 1210. Similarly, in Coghill v. Boucher, we suggested that candidates or political parties might be more interested than registered voters and poll watchers in challenging the vote-counting procedures at issue. However, they had not done so. We noted that if the plaintiffs were not afforded standing, "it may well be that any review of executive activity in this area would be completely foreclosed." 511 P.2d at 1034. Thus, the crucial inquiry is whether the more directly concerned potential plaintiff has sued or seems likely to sue in the foreseeable future. The Attorney General has not sued nor are there any indications that he plans to do so. Moreover, the appellants' interest in this suit is different than the Attorney General's would be if suit were brought in the United States District Court pursuant to section 6(i). Appellants are interested in preserving to the state the economic value of these lands. The Attorney General, however, would be bringing an action for forfeiture of these lands, contrary to appellants' interest. For these reasons we conclude that appellants have standing as taxpayer-citizens to maintain this action. B. A Declaratory Judgment Action Interpreting the Provisions of Section 6(i) May be Maintained. There has been much litigation concerning the meaning and scope of various statehood act land grants and their restrictions. There have been frequent questions of ownership of the granted lands as between private or governmental contest ants. Much of this litigation has occurred in the state courts. The question presented in this case is whether Congress intended to preclude all litigation concerning the meaning of section 6(i) by enacting the proviso which reads: That any lands or minerals hereafter disposed of contrary to the provisions of this section shall be forfeited to the United States by appropriate proceedings instituted by the Attorney General for that purpose in the United States District Court for the District of Alaska. In our view, this question must be answered in the negative. It is clear that Congress intended that only the U.S. Attorney General could bring forfeiture proceedings and that such proceedings could only be brought in the United States District Court for the District of Alaska. No inference can be drawn, however, from either the context or the history of the Statehood Act that forfeiture proceedings were meant to be the only means by which a judicial interpretation of the meaning of section 6(i) could be obtained. The sole reference to the land grant forfeiture provision which we have found in the legislative history appears in the Senate Report accompanying a 1954 bill providing for the admission of Alaska into the Union, S. 50, 83d Cong., 2d Sess. (1954): The Attorney General is authorized to take appropriate proceedings for forfeiture of any of the lands granted to the State which are disposed of contrary to these restrictions. In making the above provision, the committee has followed the practice prevalent in a number of mining States — a practice that has stood the test of time and experience. S.Rep. No. 1028, 83d Cong., 2d Sess. 32 (1954). This reference is to the forfeiture clause of the Act of January 25,1927 (commonly called the School Lands Act of 1927, 44 Stat. 1026, codified at 43 U.S.C. § 870(b) (1982)), which extended to public land states grants of certain numbered school sections which were mineral in character. This clause has not prevented judicial interpretation of the School Lands Act in non-forfeiture proceedings. . We hold that the identical language in section 6(i) has a similar, non-preclusive effect. It would be unusual in the extreme if a state court could not construe the meaning of its state's Statehood Act. In the absence' of any indication that Congress intended to bar our state courts from interpreting section 6(i), we conclude that appellants' declaratory judgment action seeking an interpretation of section 6(i) may be maintained. III. THE STATE'S DISPOSITION OF MINERALS VIOLATES SECTION 6(i) OF THE STATEHOOD ACT Having determined that appellants have standing to bring this declaratory • action, we now turn to their arguments on the merits. Their arguments may be summa rized as follows. Section 6(i) of the Statehood Act provides that the state must reserve to itself all of the minerals in the mineral lands granted to the state pursuant to section 6(a) and (b) of the Act. Furthermore, section 6(i) provides that "[m]ineral deposits in such lands shall be subject to lease by the State as the State legislature may direct." Appellants argue that because the state does not require the payment of rent or royalties from those miners whom the state permits to locate and extract hardrock minerals, the state violates section 6(i) of the Act. Appellants also argue that the state has violated section 6(i) by defining "mineral lands" subject to the lease requirement to mean those lands known to be of mineral character at the time of state selection, rather than all lands selected which are ultimately discovered to be of mineral character. The appellants' arguments raise questions concerning the meaning of section 6(i), and of Congress's intent in granting the state mineral rights on the one hand, but restricting the state in its method of disposing of those minerals on the other. To answer these questions, we look to the plain language of section 6(i), to the legislative history of the Statehood Act, and to cases construing section 6(i). We also look to general principles of mining law to understand-the framework within which section 6(i) must be analyzed. A. General Principles of Mineral Disposition When Congress passed the Alaska Statehood Act, there were three methods for disposition of minerals located on federal lands: location, lease, and sale. Only locations and leases are relevant in the instant case. The location system is the oldest method of mineral disposition. It originated on the public domain as a matter of custom and was institutionalized by various statutes, the most important of which was the Mining Law of 1872. Under the location system, the first claimant who discovers a valuable mineral deposit on unappropriated public domain, stakes and files a mining claim, and pursues it, has a legally protected interest. The locator is entitled to produce minerals from the deposit without paying rent or royalties, and has the right to obtain fee simple title by means of a patent issued by the United States government. 1 American Law of Mining § 30.01, at 30-3 (2d ed. 1985) (all references to American Law of Mining are to the 1985 edition unless otherwise noted). Mineral leasing is the primary alternative to the location system. The Mineral Lands Leasing Act of 1920, 30 U.S.C. § 181-263 (1982), is the most important statute governing mineral leases; in many respects it has become the model for other federal mineral leasing acts. 1 American Law of Mining § 20.01, at 20-6-7. The Mineral Leasing Act was passed to supersede the location system as to the minerals it covers because of Congress's perception that important revenues were being lost under the older system. Under the Mineral Leasing Act, competitive leases are issued on lands known to contain valuable mineral deposits. 30 U.S.C. § 262, 272, 283. Bidders buy competitive leases from the government for a premium established at a public sale. 43 C.F.R. § 3521.2-2, 3521.2-4, 3521.2-5 (1985). Where valuable mineral deposits are not known to exist, a prospecting permit may be issued to the first qualified applicant. See 43 C.F.R. § 3510.0-3. If the permittee discovers a valuable mineral deposit, the permittee may be rewarded with a preference right lease. 43 C.F.R. § 3520.1-1. No premium is charged the lessee of a preference right lease for the privilege of leasing. However, both com petitive and preference right lessees must pay an annual rental fee and a production royalty, which is a specified percentage of the gross value of the leased substance produced. 30 U.S.C. § 262,. 283. Appellants contend that although section 6(i) requires the state to lease mineral lands, and presumably to obtain rents or royalties, the state does not in fact receive any revenues when it grants miners the right to produce hardrock minerals from state lands. Thus, appellants argüe that the state's mineral disposition method is for all practical purposes a location system, except that miners may not receive patent to the mineral estate. The state responds that section 6(i) does not require a revenue-producing rent or royalty; rather, that choice is left to the state legislature's discretion. The state also asserts that it receives as consideration the continued exploration and development of its lands and the benefits that come from an active mining industry. We shall next consider the language of section 6(i) and its legislative history to glean Congress's intent in its grant and restriction of mineral lands. B. Origin of Section 6(i) As we have already explained in part IIB of this opinion, the restrictive language in section 6(i) was derived from the 1927 School Lands Act. In Lewis, we discussed the School Lands Act in another context: In 1955, the Territory of Alaska, through its legislature, provided for a constitutional convention. Elected delegates adopted a Constitution on February 5, 1956, which was ratified by the -people of Alaska on April 24, 1956.' This Constitution adopted by the people of Alaska served as the basis for subsequent petitions to-Congress for'statehood and constituted an offer to accept the privileges and responsibilities of that status in accordance with its terms. Throughout the process of drafting the Constitution and its adoption, there was considerable public controversy surrounding the issue of federal control over Alaska's power to dispose of its mineral resources. In statehood legislation for other states, Congress had limited land grants to non-mineral lands. Public lands, which were known to be chiefly valuable for commercial mineral production at the time of the grants, were retained in federal ownership for management and disposition under a theoretically unified system of federal mineral law. In part to avoid the litigation over titles which had resulted from this policy, Congress passed the School Lands Act of 1927, 43 U.S.C. § 870. This act extended the original statehood land grants to embrace lands mineral in character. These additional grants, however, were made subject to a mineral alienation condition which prohibited state disposal of land without a reservation of minerals and permitted a forfeiture action instituted by the Attorney General on behalf of the United' States in the event of such disposal [43 U.S.C. § 870(b)]. Although the constitutions of most states were written after passage by Congress of the relevant enabling acts, Alaska's Constitution was drafted in the absence of a pre-existing act. While the delegates were therefore unsure of the particular restrictive language which might be chosen by Congress, they were aware of the history of federal control over state disposition of mineral lands and the likelihood that the United States would insist on retaining its usual powers. To many of the delegates and the people of the state, these restrictions were unpopular. 559 P.2d at 636 (footnotes omitted). Thus, we see in the School Lands Act language echoed fifty-one years later in section 6(i) of the Alaska Statehood Act: a requirement that grantee states reserve the mineral interest when disposing of granted lands, and a provision allowing grantee states to dispose of minerals only by lease. Implicit in this quotation from Lewis are several points which must be emphasized. First, prior to the enactment of the School Lands Act, the statehood land grants of many western states did not include certain "school lands" sections which were known to be mineral in character at the time for vesting. Andrus v. Utah, 446 U.S. 500, 508, 100 S.Ct. 1803, 64 L.Ed.2d 458, 465 (1980); see also 3 American Law of Mining § 60.06[2], at 60-11-13. Second, if lands vested which were in fact of mineral character, but whose mineral character was not known at the time of vesting, the state owned the lands and minerals contained therein. United States v. Wyoming, 331 U.S. at 443, 67 S.Ct. at 1321, 91 L.Ed. at 1593. Third, in United States v. Sweet, 245 U.S. 563, 572-73, 38 S.Ct. 193, 195, 62 L.Ed. 473, 481 (1918), the Supreme Court held that congressional grants of school lands to a state conveyed no title to lands known to be of mineral character, even if the grant did not expressly reserve such mineral lands to the federal government. In other words, states received title to lands of known mineral character only when Congress expressly granted "mineral lands." Finally, the School Lands Act of 1927 served as an express congressional grant of school lands of known mineral character. Most importantly, the term "mineral lands" as used in the School Lands Act is a term of art, and refers to the time that the mineral character of the lands was appreciated, not to the ultimately discovered nature of the lands. See also Slaughter Memorandum infra p. 340. C. Alaska Constitutional Response to Section 6(i)'s Restrictions The School Lands Act restrictions had already been incorporated into the Alaska statehood bills pending in the 84th Congress when the delegates for the Alaska Constitutional Convention met in the winter of 1955-56. The restrictions were controversial because they signalled a change from the existing location-patent system to a leasing system. Ultimately, however, the benefits of statehood were seen to outweigh the doubts of some of the delegates concerning the section 6(i) restrictions. The state constitution was adopted containing a provision expressly consenting to the section 6(i) restrictions. However, the framers also sought to preserve key elements of the existing location-patent system should Congress permit. Thus, they adopted Article VIII, § 11, which provides: Discovery and appropriation shall be the basis for establishing a right in those minerals reserved to the State which, upon the date of ratification of this constitution by the people of Alaska, were subject to location under the federal mining laws. Prior discovery, location, and filing, as prescribed by law, shall establish a prior right to these minerals and also a prior right to permits, leases, and transferable licenses for their extraction. Continuation of these rights shall depend upon the performance of annual labor, or the payment of fees, rents, or royalties, or upon other requirements as may be prescribed by law. Surface uses of land by a mineral claimant shall be limited to those necessary for the extraction or basic processing of the mineral deposits, or for both. Discovery and appropriation shall initiate a right, subject to further requirements of law, to patent of mineral lands if authorized by the State and not prohibited by Congress. The provisions of this section shall apply to all other minerals reserved to the State which by law are declared subject to appropriation. According to one commentator (also a delegate to the Constitutional Convention): In part, this provision was inserted in the hope that Congress might recede from its restriction. On the other hand, delegates who concurred in the policy limiting permanent disposal of minerals went along with the proposal because they assumed Congress would stand firm. Most also saw the provision as a demonstration to miners, who might otherwise object to the constitution, that any restrictions applicable to alienation of mineral lands were being imposed from outside and were not the convention's doing. V. Fischer, Alaska's Constitutional Convention 134 (1975). Congress did not recede from the section 6(i) restrictions. The people of Alaska ratified the constitution in 1956. The Statehood Act was passed by Congress and signed into law on July 7, 1958. Section 8(b) of the Act required the voters to vote in favor of three propositions, one of which was that: (3) All provisions of the Act of Congress approved [July 7, 1958] reserving rights or powers to the United States, as well as those prescribing the terms or conditions of the grants of lands or other property therein made to the State of Alaska, are consented to fully by said State and its people. Alaska Statehood Act § 8(b)(3). The voters accepted each proposition at the election held on August 26, 1958, and Alaska subsequently became a state on January 3,1959. See generally Lewis, 559 P.2d at 636-39. Having examined the origin of section 6(i) and the unsuccessful efforts of Alaska's Constitutional Convention to avoid its restrictions, we now turn to the legislative history for an understanding of Congress's intent underlying section 6(i)'s grant of mineral lands and leasing restrictions. D. Congress Intended that Alaska Receive Rents and Royalties from Section 6(i) Mineral Leases to Ensure the New State's Economic Viability The primary purpose of the statehood land grants contained in section 6(a) and (b) of the Statehood Act was to ensure the economic and social well-being of the new state. Udall v. Kalerak, 396 F.2d 746, 749 (9th Cir.1968), cert. denied, 393 U.S. 1118, 89 S.Ct. 990, 22 L.Ed.2d 123 (1969); United States v. Atlantic Richfield Co., 435 F.Supp. 1009, 1016, 1021 n. 47 (D. Alaska 1977), aff'd, 612 F.2d 1132 (9th Cir.), cert. denied, 449 U.S. 888, 101 S.Ct. 243, 66 L.Ed.2d 113 (1980). One of the principal objections to Alaska's admittance into the Union was the fear that the territory was economically immature and would be unable to support a state government. For example, opponents of statehood claimed that "Alaska is not capable of sustaining statehood unless it is heavily subsidized by the other 48 States of the Union." 104 Cong.Rec. 9498 (1958) (statement of Rep. Smith). Similarly, another opponent to statehood argued that "The prevailing doubt of Alaska's ability to support itself is evidenced by the generous special considerations which are made for it in this statehood act." 104 Cong.Rec. 12,297 (1958) (statement of Senator Talmadge). The congressmen who favored statehood conceded that it would impose an additional financial burden on the territory, but they maintained that the Statehood Act sufficiently provided for Alaska's financial well-being. The land grant of 103,350,000 acres was perceived by these congressmen as an endowment which would yield the income that Alaska needed to meet the costs of statehood. Representative Dawson said that: All grants include the mineral rights, but these rights must be retained by the State if the lands pass into private ownership. In other words, the mineral rights will always belong to the people of Alaska, and never to private individuals.... These provisions are the foundation upon which Alaska can and will build to the enormous benefit of the national economy shared by her sister States. We cannot make Alaska a "full and equal" State in name and then deny her the wherewithal to realize that status in fact. 104 Cong.Rec. 9361 (1958). The importance of mineral revenue to the new state is also highlighted by the following colloquy between Representative Miller and Alaska Territorial Senator William Egan: Miller: Do you see where you would get much income out of this 103 million acres you might select around, bearing in mind most of the forests and good land has been set aside by the Government now, or by the military? How much income would you derive from that to begin with? Egan: As to how much income would be derived, that would be entirely problematical, depending on the values that would be found there.... There are known deposits of almost every type of mineral. . I feel there would be development. . Statehood for Alaska: Hearings Before the Subcomm. on Territorial and Insular Affairs of the House Comm, on Interior and Insular Affairs, 85th Cong., 1st Sess. 201-02 (1957) (remarks of Rep. Miller and William Egan, Alaska Territorial Senator and President of the Alaska Constitutional Convention). That Congress recognized the financial burden awaiting the new state is clear from its debates. It is equally clear that the large statehood land grant and the grant of the underlying mineral estate were seen as important means by which the new state could meet that burden. Congress, then, granted Alaska the mineral estate with the intention that the revenue generated therefrom would help fund the new state's government. The leasing restriction in section 6(i) was intended to further the goal of state revenue production. As we have discussed, the restriction was taken from the 1927 School Lands Act. That language was copied advisedly so that Alaska would be on an equal but not a favored footing with other public land states with respect to the disposition of mineral lands. The School Lands Act leasing requirement was expressly intended to be productive of pro ceeds, rents, and royalties, and congressional history indicates that the same result was intended in Alaska. Further, in congressional hearings, the section 6(i) leasing requirement was equated with the "leasing procedures as provided under the Leasing Act of 1920." As previously noted, the federal Mineral Leasing Act was passed rejecting the location system for certain minerals in order to provide revenue to the United States. Moreover, although the mineral leasing systems of other states differ from the federal mineral lands leasing system, they are uniform in requiring the payment of rent, or royalties, or both. 3 American Law of Mining § 63.054(d), at 63-28. State statutes may be divided into two principal categories describing the manner of payment of consideration for a lease; first, those that require both rents and royalties but credit the former against the latter or cease rental when the payment of royalties begins; second, those that require both rents and royalties as distinct and independent considerations. Id. at 63-29 (footnotes omitted). We therefore conclude that the leasing requirement in section 6(i), considered in the context of the School Lands Act, the Mineral Leasing Act, other statehood mineral grants, and mineral leasing systems in other states, mandates a system under which the state must receive rent or royalties for its mining leases. Although Alaska law requires mining leases for extracting hardrock minerals on those mineral lands thought to be subject to section 6(i), the statutes do not require the payment of rent or royalties. AS 38.05.205, .210. Alaska Statute 38.05.-205(b) speaks of an annual rental of not less than the annual labor requirement which would be imposed if the lease were a location. However, no rent actually needs to be paid, because the lessee may credit the value of annual labor performed against the rental. Annual labor is required to ensure that the claim is worked so that the miner does not locate numerous claims and obtain the right to exclude others. 2 American Law of Mining § 7.2, at 102 (1st ed. 1983); Chambers v. Harrington, 111 U.S. 350, 353, 4 S.Ct. 428, 430, 28 L.Ed. 452, 453 (1884) ("Clearly, the purpose was . to require every person who asserted an exclusive right to his discovery or claim to expend something of labor or value on it as evidence of his good faith and to show that he was not acting on the principle of the dog in the manger."). It is not a source of revenue to the landowner. Alaska's mineral leases are in substance indistinguishable from state mining locations. Because they do not require rents or royalties, the state hardrock mineral leasing laws do not meet the leasing requirement of section 6(i). E. The Section 6(i) Leasing Requirement Applies Only to Statehood Grant Lands Whose Mineral Character was Known at the Time of State Selection. The appellants argue that the section 6(i) leasing requirement applies to all lands granted under section , 6(a) and (b) which contain minerals. Their argument may be summarized as follows. Under the first sentence of section 6(i), all mineral deposits in selected lands are conveyed regardless of when the deposit's existence is first known. The term "mineral lands" in the second sentence of section 6(i), to which "such lands" in the third sentence of section 6(i) relates, refers to the same subject as the "mineral deposits" grant of the first sentence. Thus, all lands containing minerals are subject to the leasing requirement, regardless of when the minerals are discovered. We agree with appellants that the grant language of the first sentence of section 6(i) contains the key to understanding the scope of the leasing requirement. We do not agree, however, that the grant language was intended to convey mineral deposits in selected lands whose mineral character was unknown at the time of selection. Unknown deposits would be conveyed automatically as a part of the section 6(a) and (b) grants without the use of the section 6(i) grant language. The section 6(i) grant was necessary so that known mineral deposits would be conveyed. See notes 19-21 and accompanying text, supra. This interpretation is confirmed by the Senate Report on an early statehood bill (S. 50, 83d Cong., 2d Sess., (1954)) which states: By the terms of previous statehood bills, and of S. 50 as introduced, the State was to have been permitted, under the land-grant provisions of those bills, to select large acreages of land, but in all previous bills, the State would have been estopped from choosing . those lands known or even believed to be mineral in character. These severe limitations in previous statehood bills on the State's right to select were not always apparent from the bare language of those measures. Yet they existed within the legal and judicial interpretations which have heretofore been given as to the meanings of certain words and phrases of these previous proposed statehood bills. If all the resources of value were withheld from the State's right of selection, such selection rights would be of little value to the new State. As a part of this new approach toward statehood, your committee has felt obligated to broaden the right of selection so as to give the State at least an opportunity to select lands containing real values, instead of millions of acres of barren tundra. To attain this result, the State is given the right to select lands known or believed to be mineral in character (subsection k of section 5)... , S.Rep. No. 1028, supra n. 24, at 6. The Report explains that subsection 5(k), the precursor to section 6(i), "provides that all grants made or confirmed under the act shall include mineral deposits. Thus, the fact that the lands desired by the State are known or believed to be valuable for minerals will not preclude the State from exercising its right of selection with respect to them under the several grants." Id. at 32. The need for and the meaning of the grant language is also confirmed in the Slaughter Memorandum: The bills in the 84th Congress for the admission of Alaska into the Union contain a provision which affirmatively declares that the land grants made or confirmed by those bills shall include mineral deposits, and which then proceeds to impose certain express restrictions upon the manner in which Alaska may administer any mineral lands so obtained by it..... The reasoning which prompted the adoption of the provision in question by the Senate Committee is understood to be (1) that mineral deposits must be expressly mentioned in order for mineral lands to be encompassed by a Congressional land grant to a State; and (2) that Alaska should not be accorded greater freedom in the administration of mineral lands than that accorded existing States having Congressional land grants.... With respect to those situations where, as was true of the Utah grants and the California school section grant, the law making the grant neither affirmatively included nor affirmatively excluded mineral lands, the Supreme Court has held that the failure to mention mineral lands was tantamount to an express exclusion of them from the grant.... The members of the Senate Committee on Interior and Insular Affairs who took an active part in the study of S. 50, 83d Congress, considered that, in the light of the holdings of the Supreme Court, statutory language expressly including mineral deposits within the contemplated land grants to Alaska would probably be necessary in order for these grants to encompass mineral lands. Slaughter Memorandum, supra n. 25, at 1-6 (citation omitted). Thus, the grant of mineral deposits in the first sentence of section 6(i) and the term "mineral lands" as used in the second sentence of section 6(i) both relate to mineral deposits in lands of known mineral character. Appellants cite as support for their interpretation testimony of a representative of the Alaska Miners' Association before the House Subcommittee on Territorial and Insular Affairs on March 15, 1957. The representative, Mr. Franklin, assumed that mandatory leasing applied to all lands selected under what is now section 6(a) and (b) of the Statehood Act. See supra n. 24. Several congressmen seemed to join in this assumption. However, the question whether all lands selected under section 6(a) and (b), or merely those lands known to be mineral in character at the time of selection, would be subject to mandatory leasing was not addressed. Appellants also point out that S. 50, as amended by the Committee on Interior and Insular Affairs (83d Cong., 2d Sess. (1954)), and H.R. 2536 (83d Cong., 2d Sess. (1954)), which closely followed the language of S. 50, contained a final sentence which provided: "For the purposes of this subsection the mineral character of lands granted to the State of Alaska shall be determined at the time patent issues and the patent shall be conclusive evidence thereof." This language was stricken at the request of Delegate Bartlett who stated: That amendment is offered at the suggestion of the Governor of Alaska and the Land Commissioner of Alaska. They were somewhat apprehensive about the rapidity with which lands would move to the new State if the requirement remained in that the mineral character of all the land would have to be determined in advance. And the rights of the United States, the attorneys tell me, are adequately protected in the foregoing part of that subsection. Hawaii-Alaska Statehood: Hearings Before the Committee on Interior and Insular Affairs, 84th Cong., 1st Sess. 332 (1955) (statement of Delegate Bartlett) (hereafter "Interior Committee Hearings "). The committee chairman asked Delegate Bartlett: "It is your view, Mr. Bartlett, that language is surplusage and is not necessary?" Delegate Bartlett answered: "I do not think it is surplusage, but I will agree with the Governor and the Commissioner of Lands of Alaska, that had best be deleted." Id. The appellants argue that by agreeing to the deletion of this language, Congress must either have intended to utilize the traditional test of mineral lands or to define mineral lands as those containing minerals no matter when the minerals are discovered. The argument continues that since Congress was aware that considerable litigation had resulted under the enabling acts of other states as to whether lands were or were not mineral in character, Congress could not rationally have intended to employ the traditional test. While we agree that administrative problems would be avoided if the section 6(i) limitations applied to all lands granted under section 6(a) and (b), we think it is reading too much into the deletion of the quoted language to conclude that Congress meant by the deletion to change the meaning of "mineral lands" as used in the second sentence of the section. The "determination at patent" language demonstrates that Congress intended the section 6(i) limitations to apply only to section 6(a) and (b) lands of known mineral character. If this were not so there would be no reason for the determination of mineral character at patent. There is no suggestion that Congress intended to change the meaning of "mineral lands" in the second sentence by deleting the final sentence. Both the Chairman and Delegate Bartlett referred to this amendment as "pro forma," a characterization which could not accurately be used if the amendment were intended to change the definition of mineral lands. Interior Committee Hearings, supra p. 341, at 331, 333. Appellants' final point is that construing "mineral lands" to mean all lands where minerals are found would further the congressional policy of assuring that the State of Alaska not squander the resources which it was granted. While it is true that the broader definition of mineral lands advocated by appellants would extend the protection of the section 6(i) restrictions, that does not mean that those restrictions were meant to have the reach which appellants contend. The context and history of section 6(i) heretofore cited persuades us that its restrictions were intended to apply only to lands whose mineral character was known at the time of selection. CONCLUSION We conclude that appellants have standing to maintain this declaratory judgment action, that the state's mineral leasing system violates section 6(i) of the Statehood Act because it does not require the payment of rent or royalties on mining leases, and that section 6(i) applies only to those lands known to have been mineral in character at the time of state selection. Appellants' state constitutional and public trust theories depend on the meaning of the grant and restrictions of section 6(i). Since section 6(i) directly controls, we have no occasion to examine those theories further. For the above reasons, the judgment is REVERSED and this case is REMANDED with directions to enter a declaration in accordance with this opinion and for such other further proceedings as may be appropriate. . Appellants also contend that section 6(i) has become part of the Constitution of Alaska, and has created public trust duties. Thus, appellants argue, to the extent that section 6(i) has been violated, so has the Alaska Constitution and the public trust. . E.g., Thomas v. Bailey, 595 P.2d 1 (Alaska 1979) (land.grant initiative challenged by citizens and taxpayers); Abrams v. State, 534 P.2d 91 (Alaska 1975) (taxpayer and citizen suit challenging legislative formation of Eagle River-Chugiak Borough); Boucher v. Engstrom, 528 P.2d 456 (Alaska 1974) (citizen suit to enjoin placement of capital move initiative on ballot); Boucher v. Bomhoff, 495 P.2d 77 (Alaska 1972) (citizen challenge to the wording of a referendum question); Jefferson v. Asplund, 458 P.2d 995 (Alaska 1969) (taxpayer suit challenging public professional service contract); Jefferson v. Greater Anchorage Area Borough, 451 P.2d 730 (Alaska 1969) (taxpayer suit challenging a bond issue); Suber v. Alaska State Bond Committee, 414 P.2d 546 (Alaska 1966) (taxpayer suit challenging public mortgage adjustment program); Walters v. Cease, 394 P.2d 670 (Alaska 1964) (citizen suit to enjoin referendum relating to formation of local government units); DeArmond v. Alaska State Development Corporation, 376 P.2d 717 (Alaska 1962) (taxpayer suit challenging the legality of public corporation); Starr v. Hagglund, 374 P.2d 316 (Alaska 1962) (citizen suit to enjoin capital move initiative). Some of these cases were subsequently recognized as taxpayer standing suits. See K & L Distributors, Inc. v. Murkowski, 486 P.2d 351, 353 n. 1 (Alaska 1971) (characterizing Jefferson v. Asplund, 458 P.2d 995, and Greater Anchorage Area Borough v. Porter and Jefferson, 469 P.2d 360 (Alaska 1970), as taxpayer standing actions); Moore, 553 P.2d at 24 n. 26 (citing Jefferson v. Greater Anchorage Area Borough, 451 P.2d 730, as an example of taxpayer standing). . Hoblit, 678 P.2d 1337. . Greater Anchorage Area Borough v. Porter and Jefferson, 469 P.2d 360. . The Utah Supreme Court relied in part on Lewis and adopted a discretionary denial approach in Jenkins v. Swan, 675 P.2d 1145, 1150-51 (Utah 1983): If the plaintiff does not have standing under the first step [that is, interest-injury standing], we will then address the question of whether there is anyone who has a greater interest in the outcome of the case than the plaintiff. If there is no one, and if the issue is unlikely to be raised at all if the plaintiff is denied standing, this Court will grant standing. See, e.g., State v. Lewis, Alaska, 559 P.2d 630, 635 (1977). When standing is predicated on the assertion that the issues involve "great public interest and societal impact," we will retain our practical concern that the parties involved have the interest necessary to effectively assist the court in developing and reviewing all relevant legal and factual questions. The Court will deny standing when a plaintiff does not satisfy the first requirement of the analysis and there are potential plaintiffs with a more direct interest in the issues who can more adequately litigate the issues. The third step in the analysis is to decide if the issues raised by the plaintiff are of sufficient public importance in and of themselves to grant him standing. The absence of a more appropriate plaintiff will not automatically justify granting standing to a particular plaintiff. This Court must still determine, on a case-by-case basis, that the issues are of sufficient weight, see Jenkins v. Finlinson, Utah, 607 P.2d 289 (1980), and that they are not more properly addressed by the other branches of government. Constitutional and practical considerations will necessarily affect our decisions in cases where a plaintiff who lacks standing under step one nevertheless raises important public issues. These are matters to be more fully developed in the context of future cases. . See, e.g., Carpenter, 667 P.2d at 1210; Gilman, 662 P.2d at 123; lewis, 559 P.2d at 635. . See, e.g., Coghill v. Boucher, 511 P.2d 1297 (taxpayer's challenge of lieutenant governor's promulgation of regulations under elections statute). . See Flast v. Cohen, 392 U.S. 83, 100, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947, 962 (1968) ("federal courts will not entertain friendly suits . or those which are feigned or collusive"). . One reason for the adversity requirement is to insure that the issues Eire well presented. As the Utah Supreme Court said, "When standing is predicated on the assertion that the issues involve 'great public interest and societal impact,' we will retain our practical concern that the parties involved have the interest necessary to effectively assist the court in developing and reviewing all relevant legal and factual questions." Jenkins, 675 P.2d at 1150-51. In the analogous context of class action suits, one important criterion of a party's ability to effectively represent the class is its capacity, for economic and other reasons, to competently advocate its position. See 3B J. Moore and J. Kennedy, Moore's Federal Practice § 23.07[1.-1], at 23-215 (1985) (under Fed.R.Civ.P. 23(a)(4), "it has become routine to inquire into the competence, experience and vigor of the representative's counsel"). . E.g., Boyce v. Pima County, 24 Ariz. 259, 208 P. 419 (1922); Jensen v. Dinehart, 645 P.2d 32 (Utah 1982); cf. State v. University of Alaska, 624 P.2d 807 (Alaska 1981). .E.g., Rodgers v. Berger, 55 Ariz. 433, 103 P.2d 266 (1940) (appeal from suit by private mining claimant against state and other private claimants to quiet title in mining claim on land granted under statehood act; in trial court, state alleged it was owner because land was a school section; state did not appeal trial court's judgment for plaintiff); Texas Pacific Coal & Oil Co. v. State, 125 Mont. 258, 234 P.2d 452 (1951) (corporation's suit against state to quiet leasehold title to oil and gas deposits under certain school land acquired by state under state enabling act); cf. Lassen v. Arizona, 385 U.S. 458, 87 S.Ct. 584, 17 L.Ed.2d 515 (1967) (appeal from Arizona Supreme Court ruling in case between two state executive agencies to compel compensation to trust created under New Mexico-Arizona Enabling Act); State v. Walker, 61 N.M. 374, 301 P.2d 317 (1956) (suit between State Highway Commission and Commissioner of Public Lands concerning rights of way or easements over state trust lands granted under New Mexico Enabling Act); Ross v. Trustees of University of Wyoming, 30 Wyo. 433, 222 P. 3 (1924) (suit between governor and trustees concerning land granted and confirmed by act of admission for university purposes). . The proviso in the School Lands Act states: That any lands or minerals hereafter disposed of contrary to the provisions of this section shall be forfeited to the United States by appropriate proceedings instituted by the Attorney General for that purpose in the United States district court for the district in which the property or some part thereof is located. 43 U.S.C. § 870(b) (1982). This proviso is discussed in more detail in part IIIB of this opinion, infra p. 333. . E.g., Rodgers, 103 P.2d 266; Jensen, 645 P.2d 32. . The sale method pertains to certain varieties of sand and gravel and other common materials. 30 U.S.C. § 601 (1982). . Act of May 10, 1872, ch. 152, 17 Stat. 91. Portions of the Mining Act appear at 30 U.S.C. § 22-24, 26-30, 33-35, 37, 39-42, 47 (1982). ."[R]oyalties and rentals" were required 'so that the Government may not be passing to title the natural resources without receiving something in return therefor." H.R.Rep. No. 1059, 65th Cong.3d Sess., at 20. (1919). . The fees usually vary from 25c to $1.00 per acre, depending on the mineral. 1 American Law of Mining § 20.09[5]; see also 30 U.S.C. § 262, 283. . Act of January 25, 1927 (An Act Confirming in States and Territories Title to Lands in Aid of Common or Public Schools), ch. 57, 44 Stat. 1026, 43 U.S.C. § 870-71 (1982). 43 U.S.C. § 870(b) (1983) provides: The additional grant made by this section is upon the express condition that all sales, grants, deeds, or patents for any of the mineral lands so granted shall be subject to and contain a reservation to the State of all the coal and other minerals in the lands so sold, granted, deeded, or patented, together with the right to prospect for, mine, and remove the same. Mineral rights in such lands shall be subject to lease by the State as the State legislature may direct, the proceeds and rents and royalties therefrom to be utilized for the support or in aid of the common or public school: Provided, That any lands or minerals hereafter disposed of contrary to the provisions of this section shall be forfeited to the United States by appropriate proceedings instituted by the Attorney General for that purpose in the United States district court for the district in which the property or some part thereof is located. . Title to surveyed sections vested at statehood; title to unsurveyed sections vested upon completion of an official survey. United States v. Wyoming, 331 U.S. 440, 443, 67 S.Ct. 1319, 1321, 91 L.Ed. 1590, 1593 (1947). . And as used in the Alaska Statehood Act § 6(i). See part HIE of this opinion, infra p. 339. . The School Lands Act did not completely eliminate litigation of the question whether lands were of known mineral character at the time of survey, however, because the state's interest in lands of known mineral character vested on the effective date of the School Lands Act, rather than at the time of survey. See, e.g., Rogers, 130 P.2d 268. .Alaska Const., art. XII, § 13 states: AH provisions of the act admitting Alaska to the Union which reserve rights or powers to the United States, as well as those prescribing the terms or conditions of the grants of lands or other property, are consented to fully by the State and its people. . See also 104 Cong.Rec. 9360-61 (1958) (further remarks of Rep. Dawson; remarks of Rep. O'Brien); 104 Cong.Rec. 12,012 (1958) (remarks of Sen. Jackson). The 103,350,000 acre grant ultimately provided in section 6(a) and (b) of the Statehood Act was one of unprecedented size whether considered either absolutely or as a percentage of the total land area of the state. H.R.Rep. No. 624, 85th Cong., 1st Sess. (1957), reprinted in vol. 1 Alaska Statutes "History of Alaska Statehood," at 20. As the colloquy between Representative Miller and William Egan suggests, another rationale for the unprecedented size was that the federal government had already reserved the most valuable land and the new state would, in effect, have second choice. In the House, Representative Saylor said that "the choice areas, more than 95 million acres, have been reserved for Federal agencies." 104 Cong. Rec. 9340 (1958). In Senate discussion of the federal reservations, Senator Robertson read a portion of the House report on the Act: "[T]his tremendous acreage of [federal] withdrawals might well embrace a preponderance of the more valuable resources needed by the new State to develop flourishing industries with which to support itself and its people." 104 Cong.Rec. 12,019 (1958). Thus, the large grant of 103 million acres was deemed necessary because the lands available for state selection were perceived to be only marginally productive. Furthermore, Congress recognized that the agricultural potential of the statehood grant land was limited. In debate, Senator Byrd commented: "In all of the more than 365 million acres of land in Alaska, only 2 million or about one-half of 1 percent, are arable." 104 Cong. Rec. 12,336 (1958). Because Congress realized that agricultural development would not yield the revenue that Alaska would need to support statehood, the Act contained the provision granting the new state title to the mineral estate underlying the land grants. Senator Kuchel said in debate: I believe, however, on the basis of the values of property in Alaska as they have been estimated, the tremendous wealth in the ground in minerals ., the State of Alaska will be able to make maximum use of the property which it will obtain under the bill from the Federal Government. This provision constitutes one additional assurance. I feel sure that economically the new government will succeed. 104 Cong.Rec. 12,035 (1958). . Appellants and the state agree that the third sentence of section 6(i) requires that mineral deposits be disposed of only by lease. Inter-venor Alaska Miners Association argues that the "shall be subject to lease" language is merely permissive: "[A]ll that this sentence requires is that 'leasing' be one of the mechanisms through which these lands would be made available for mining development. It does not require that leasing be the only disposal mechanism." (Emphasis in original.) The Miners' position on this point is contradicted by the structure of section 6(i). If the third sentence was not meant to express the exclusive method of mineral disposition, it need not have been set forth at all. Further, the legislative history demonstrates a uniform belief that section 6(i) required leasing. For example, the Senate Committee Report concerning language that eventually became section 6(i) states: Subsection (k) [of S. 50, 83d Cong., 2d Sess. (1954) ] provides that all grants made or confirmed under the act shall include mineral deposits. Thus, the fact that the lands desired by the State are known or believed to be valuable for minerals will not preclude the State from exercising its right of selection with respect to them under the several grants. However, in order to give an added measure of protection to the new State government, which inevitably will be inexperienced and untried, the committee amendment provides for certain restrictions upon the disposition by the State of mineral lands which it may select under the 100-million acre grant provided in subsection (b) or the 2,550,000-acre grant made in subsection (c). The restrictions are that the State must retain title to all the minerals in these lands, whenever any of them are sold or granted. The State may dispose of the minerals in these lands only by lease in such manner as the State legislature may direct. S.Rep. No. 1028, 83d Cong., 2d Sess. 32 (1954) (emphasis added). The Miners' argument that Congress intended the "shall be subject to lease" provision to be permissive is belied by the Miners' testimony objecting to this provision before the House Subcommittee on Territorial and Insular Affairs on March 15, 1957: Following is the statement of the Alaska Miners Association relative to mandatory leasing of mineral rights on all lands reserved to the new State of Alaska. We . believe that the grant of mineral rights on all these lands was done to aid the new State in meeting the added expense of statehood.... We believe that the well-intended actions contained in the enabling legislation will have an adverse effect and the mandatory leasing of mineral rights by the new State of Alaska under the conditions imposed would irreparably damage the development of Alaska's mineral resources.... We believe that the Legislature of the State of Alaska should be allowed to determine the disposition of the mineral rights on all State lands except those specifically reserved for schools.... All lands so claimed [by the state] shall have the mineral deposits reserved to the State and it shall be mandatory that the State lease the mineral rights; forfeiture of rights could result if disposed of contrary to provisions in the bills. Statehood for Alaska: Hearings on H.R. 50, H.R. 628, and H.R. 849 Before the Subcommittee on Territorial and Insular Affairs, 85th Cong., 1st Sess. 217-18 (1957) (statement of Glen D. Franklin, Chairman, Legislative Committee, Alaska Miners Association) (emphasis added) (hereafter "Hearings on H.R. 50 "). Thus, it is clear that the Miners Association recognized in 1957 that section 6(i)'s provision requiring that mineral lands be subject to leasing was a mandatory provision. Their argument to the contrary today is without merit. . In other words, the thought was that Alaska should be allowed to obtain mineral lands only if it would administer them in substantially the same manner that States now having mineral land grants are required to administer the lands obtained by them under those grants. This is evident from the close parallelism between the conditions proposed to be imposed upon Alaska and those contained in the 1927 [School Lands] act. Memorandum from Herbert J. Slaughter, Chief, Branch of Reference, Division of Legislation, Department of the Interior, to the Honorable E.L. Bartlett, at 7-8 (Nov. 7, 1955) (regarding the mineral lands provision of the Alaska Statehood bills) (hereafter "Slaughter Memorandum"). . S.Rep. No. 1028, supra n. 24 (noting the "similar provision for the protection of the mineral school lands," in the School Lands Act); Slaughter Memorandum, supra n. 25. In State v. Lewis, we explained that The lands to be selected by the state included mineral lands so as to be consistent with the rights granted other states as a result of the School Lands Act of 1927_ The restrictions placed by Congress on alienation of Alaska's lands were of the same import as those set forth in that Act and applicable to other states. 559 P.2d at 638. . Hearings on H.R. 50, supra n. 24, at 220 (Rep. Aspinall); see also id. at 231 (Rep. Abbott). . See, e.g., Oklahoma Statehood Act, Act of June 16, 1906, 34 Stat. 267, 273 (expressly including mineral lands, but prohibiting state from disposing of such mineral lands except by short-term lease). Statehood mineral grants are to be considered in light of the mining policies in existence at the time the grants are enacted. Utah v. Bradley Estates, 223 F.2d 129, 130 (10th Cir.1955). .The state argues that the language in the third sentence of section 6(i), "as the state legislature may direct," gives the state the discretion not to charge rent or royalties. It cites as authority for this proposition language from the Slaughter Memorandum. The memorandum first discusses earlier Alaska statehood proposals allowing the state to sell lands it selected, including mineral rights, with a reservation of a royalty on all minerals produced therefrom. Concerning these proposals, the memorandum states: These earlier proposals, it will be noted, differ in a number of respects from the restrictions contained in the bills now pending. In particular, the current language expressly calls upon Alaska to adopt a mineral leasing system, while the earlier versions permitted the mineral deposits to be disposed of along with the surface, provided a royalty interest was reserved by the State. On the other hand, the current language does not attempt to prescribe maximum or minimum rates of royalty as did the earlier versions, but appears to leave the terms of leasing wholly to the discretion of the State legislature. From a practical standpoint, this second difference may be more important than the first, since if the Alaska legislature is left, as H.R. 2535 and S. 49 now intend to provide, with the untram-melled [sic] right to frame its own mineral leasing laws, it can, if it so ch[o]oses, establish priorities that will tend to keep the surface and mineral rights in the same hands and can, in general, fit the provisions of its mineral leasing system to whatever may be its concepts of the public interest. Slaughter Memorandum, supra n. 25, at 9-10. We are unable to read this language in Slaughter's memorandum as broadly as the state suggests. The memorandum does not suggest that the state was free from the duty to charge rent or royalties. In fact, Slaughter states that "Alaska should not be accorded greater freedom in the administration of mineral lands than that accorded existing States having Congressional land grants." Id at 2. As noted previously, other states under the School Lands Act were required to lease mineral lands in order to generate rents and royalties. . "Hardrock" minerals are those which were subject to location under federal mining laws as of the beginning of statehood, January 3, 1959. A.S. 38.05.185. . A letter authored by John Sims, Director of State Office of Mineral Development, described the proposed state leasing system which is now reflected in AS 38.05.205 as a system "which allows a miner on State land virtually all the rights and privileges of the 1872 Federal Mining Law with the express exclusion of patent right." Letter from John Sims, Director, Alaska Office of Mineral Development, to Howard J. Grey, Executive Director, Alaska Miners Association (Feb. 23, 1981). . The report of the Committee on Interior and Insular Affairs on H.R. 7999, which became the Statehood Act, in language reminiscent of the Senate Report makes the same point: If the resources of value are withheld from the State's right of selection, such selection rights would be of limited value to the new State. The committee members have, therefore, broadened the right of selection so as to give the State at least an opportunity to select lands containing real values instead of millions of acres of barren tundra. To attain this result, the State is given the right to select lands known or believed to be mineral in character (sec. 6(i)). H.R.Rep. No. 624, 85th Cong., 2d Sess. (1957), reprinted in 1958 U.S.Code Cong. & Admin. News 2933, 2939. The Committee thus used the phrase "lands known or believed to be mineral in character" as synonymous with the "mineral deposits" language in the first sentence of section 6(i). . For convenience, we have referred to the relevant event as the time of selection. Wheth er this is the time that the state files its selection application, or some later event such as the tentative or final approval of the selection, is not an issue in this case or on which we express an opinion. Further, we observe that there is room for debate concerning how much must be known about the mineral character of selected lands to qualify them as mineral lands. We also intimate no view on this question as it is not before us. . The intervenors raise several other points in defense of the judgment below. We have examined each of them and find that they lack merit.

10358170

Ralph Edward ZIMIN, Appellant/Cross-Appellee, v. Martha Lee ZIMIN, Appellee/Cross-Appellant

Zimin v. Zimin

1992-07-31

Nos. S-4425, S-4443

118

124

837 P.2d 118

837

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:15:02.151835+00:00

CAP

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

Ralph Edward ZIMIN, Appellant/Cross-Appellee, v. Martha Lee ZIMIN, Appellee/Cross-Appellant.

Ralph Edward ZIMIN, Appellant/Cross-Appellee, v. Martha Lee ZIMIN, Appellee/Cross-Appellant. Nos. S-4425, S-4443. Supreme Court of Alaska. July 31, 1992. M. Ashley Dickerson, Dickerson & Gibbons, Inc., Anchorage, for appellant/cross-appellee. Janet D. Platt, Law Offices of Janet D. Platt, Anchorage, for appellee/cross-appel-lant. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

3356

20982

OPINION MOORE, Justice. In this divorce proceeding, Ralph Zimin challenges two aspects of the trial court's division of marital property. He first argues that equitable division is inappropriate in this case because the parties were only married for 32 months. Alternatively, he claims that the court erred in valuing the property available for distribution. He also appeals the court's custody and child support awards. Martha Zimin cross-appeals, arguing that the court erred in denying her request for attorney's fees and costs. We find no fault in the trial court's handling of all these issues and therefore affirm. I. Facts and Proceedings Martha and Ralph were married in October 1986. Their daughter, Stacey Lee Zi- min, was born October 3, 1987. The parties permanently separated almost three years later in June 1989, when Martha filed for divorce. During the marriage, Ralph worked as a commercial fisherman in South Naknek. When he was not fishing, Ralph also worked for an oil service company on the North Slope. Martha worked as a telephone apprentice prior to the marriage. During the marriage, she was a homemaker and the primary caretaker of Stacey. After the parties separated, Martha returned to work as a telephone apprentice on a seasonal basis. Both parties brought property into the marriage. Ralph's premarital property included a timeshare in Hawaii, a Gillnetter boat, and a 1984 truck. Martha entered the marriage with a house and a neighboring lot in Palmer and a 1980 Chevy Citation. All of this premarital property was burdened with outstanding debt which the parties made payments on during the marriage. The parties also acquired property during the marriage, including a lot in South Naknek, two fishing skiffs, miscellaneous fishing equipment and a 1983 Ford LTD. They constructed. a house on the South Naknek property. They also built a shed on Martha's Palmer property. The parties opened a number of bank accounts during the marriage, both joint and individual, and also maintained separate accounts which they had opened prior to the marriage. A divorce trial was held before Judge Michalski. At trial, Ralph proposed that he and Martha simply retain the property in their possession, arguing that equitable division was inappropriate for a short marriage under this court's decision in Rose v. Rose, 755 P.2d 1121 (Alaska 1988). He therefore offered no evidence establishing the current value of any of the property. Martha agreed that they should retain the property in their possession, but argued that the marital contributions to the property should be equitably divided. She explicitly argued that appraisals of many of the assets were not feasible in this case because of their remote location and therefore proposed that the value of the marital share of the parties' property be determined by calculating how much the outstanding debt on each item had been reduced during the marriage. In addition to the property dispute, Ralph sought joint custody of Stacey. Martha opposed joint custody on the grounds that she and Ralph had a history of poor communication following the separation. The child custody investigator recommended giving Martha sole legal and physical custody of Stacey. The investigator testified that Martha and Ralph had significant problems discussing the child's welfare. He also concluded that joint custody would not be successful. Finally, the parties disputed the proper income figure which should be used to calculate Ralph's child support. Martha argued that Ralph's adjusted income in 1990 was approximately $50,205. Ralph argued that $25,651 which he placed in a Capital Construction Fund (and later withdrew for the purpose of buying a boat engine) was properly deducted from his adjusted annual income. He further maintained that his child support obligation should be based on his average income over the past ten years (approximately $32,045) because, as a fisherman, his income fluctuates from year to year. At the close of the trial, Judge Michalski awarded Martha sole legal and physical custody of Stacey. He granted Ralph visitation rights and ordered him to pay child support based on an adjusted annual income of $50,205. He ruled that the $25,651 deposited in Ralph's Capital Contribution Fund should be included in Ralph's income for the purposes of determining child support. Judge Michalski also adopted Martha's proposed property division. He found that the marital funds used to make payments on premarital property, the marital funds used to acquire new property during the marriage and the marital funds deposited in accounts during the marriage were all part of the marital estate and available for distribution. He valued the total marital estate at $99,887.78. He calculated this figure based solely on the amount of payments made during the marriage and did not attempt to place a present value on the assets themselves. Since the marital contribution to the property retained by Ralph gave him a greater share of the marital estate, Judge Michalski ordered Ralph to pay Martha $33,700.60 to effectuate a 50/50 division. Both parties were ordered to pay their own attorney's fees. On February 5, 1991, Judge Michalski issued his written findings of fact and conclusions of law. Ralph appealed the court's decision on all issues. Martha cross-appealed the trial court's denial of her request for attorney's fees and costs. II. Discussion 1. The Division of Property In general, trial courts are expected to use a three-step process when equitably dividing marital property. Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska 1983). First, the court determines what property is available for distribution. Second, the court values the property. Third, the court equitably divides the property. Id. However, we have recognized an alternative approach for marriages of short duration where there has been no significant commingling of assets. Rose v. Rose, 755 P.2d 1121 (Alaska 1988). Ralph argues that the trial court erred in failing to apply the Rose approach in this case. His position is without merit. Unlike the parties in Rose, Ralph and Martha significantly commingled their assets. Furthermore, Martha stopped working as a telephone apprentice during the marriage to become a homemaker. It is clear that Ralph and Martha did not maintain "completely separate economic identities" during their 32 month marriage. See Bell v. Bell, 794 P.2d 97, 102 (Alaska 1990) (holding that the Rose approach is inappropriate where parties bought and improved property together and jointly made payments on premarital property). Therefore, the trial court properly made its property division under the three-step Wanberg analysis. Ralph's second challenge is to the methodology the court adopted in determining the value of the marital estate. In the absence of evidence establishing the current value of any of the assets, the court valued the marital portion of the various assets based on the debt payments made during the marriage. In doing so, the trial court recognized that this method did not take into account the post-marital appreciation or depreciation of the property. We have previously disapproved of property divisions which fail to consider appreciation and depreciation. See Bell v. Bell, 794 P.2d 97 (Alaska 1990). However, in this case, the parties failed to present any evidence of the present value of the disputed property, making such a determination impossible. It is the duty of the parties, not the court, to ensure that all necessary evidence is presented at trial. Hartland v. Hartland, 777 P.2d 636, 640 (Alaska 1989) (reviewing courts cannot continue to reverse and remand dissolution cases where the parties had an adequate opportunity to introduce evidence but failed to do so). Furthermore, in this case, the court specifically found that current appraisals of much of this property would not be economically feasible because of its remote location. On this record, we conclude that the trial court did not abuse its discretion in valuing the marital estate as it did. 2. Child Support The trial court determined Ralph's child support obligation based on an adjusted gross income of $50,205. It based this figure in part on the nine month 1990 tax estimate prepared by Ralph's accountant. However, the court also included in this figure the $25,651 which Ralph had deposited in a Capital Construction Fund and deducted from his projected 1990 income. We conclude that the trial court properly included the $25,651 as part of Ralph's 1990 income for the purpose of calculating his support obligation. The commentary to Civil Rule 90.3 states that certain amounts the IRS permits a taxpayer to deduct from income (such as the accelerated component of depreciation expenses, depreciation of real estate, investment tax credits, or any other business expenses determined by the court to be inappropriate) should not be deducted from the obligor's income when calculating child support. Alaska R.Civ.P. 90.3, Commentary III(B). Since the goal of the Rule 90.3 guidelines is to obtain a realistic estimate of an obligor's adjusted annual income, these funds should be included in Ralph's 1990 income for the purposes of calculating child support. To hold otherwise would severely understate Ralph's most current income figures. Ralph also argues that the trial court should have based its calculation on his average income over the past ten years because, as a fisherman, his income fluctuates from year to year. The commentary to Rule 90.3 states that in cases where an obligor's income is erratic, the trial court may choose to average the obligor's income over a number of years. Alaska R.Civ.P. 90.3, Commentary III(E). We recognize that it is difficult to apply the Rule 90.3 guidelines to an obligor parent who works in a seasonal business. Nevertheless, although income averaging is clearly appropriate in such cases, a ten-year average is generally not a reliable indicator of an obli-gor parent's current earning capacity. We therefore conclude that the trial court did not err in rejecting Ralph's proposed ten-year average and basing its support award on his 1990 projected earnings. If Ralph is unable to meet his support obligation in the future, he may move to modify the award. See Kowalski v. Kowalski, 806 P.2d 1368, 1372 (Alaska 1991). 3. Custody The trial court awarded Martha sole legal and physical custody of Stacey. On appeal, Ralph argues that the trial court abused its discretion in failing to award joint custody. We have previously held that cooperation between parents is essential if joint custody is to be in the child's best interests. Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1189 (Alaska 1987). In this case, there is ample evidence in the record supporting the trial court's finding that the parties could not communicate sufficiently to make a joint custody arrangement work. We conclude that the trial court did not abuse its discretion in awarding sole custody to Martha. In the alternative, Ralph argues that the court erred in not allowing him to keep Stacey during the day when Martha is working. In Lone Wolf, 741 P.2d at 1190-91, we held that, in the absence of specific findings indicating that more liberal visitation was inappropriate, it was an abuse of discretion to limit an unemployed father to weekend visitation when the mother worked a seven day work schedule during which time she rarely saw the children. We observed that "[t]he cooperation necessary to allow more liberal visitation is far less than that needed for joint custody." Id. at 1191. However, in this case, the trial court specifically found that the parties' inability to communicate would make even the level of visitation ordered by the court a challenge. We conclude that the trial court did not abuse its discretion either in awarding sole custody to Martha or in failing to award Ralph greater visitation than it did. 4. Attorney's Fees and Costs The trial court's discretion in awarding attorney's fees is broad and its decision will not be disturbed on appeal unless it is "arbitrary, capricious, manifestly unreasonable, or stems from an improper motive." Tobeluk v. Lind, 589 P.2d 873, 878 (Alaska 1979); Rostel v. Rostel, 622 P.2d 429, 432 (Alaska 1981). On cross-appeal, Martha contends that the trial court erred in denying her request for attorney's fees because her earning capacity is significantly lower than Ralph's. On the record presented, Ralph does appear to have a greater earning capacity than Martha. However, in deciding whether a fee award is appropriate, the court must also consider the parties' relative economic situations as well as their earning capacity. See Rhodes v. Rhodes, 754 P.2d 1333, 1336 (Alaska 1988). As a result of the divorce, Ralph must pay Martha approximately $33,000. This award is substantial when compared to Ralph's annual income. In light of this, we conclude that the court's denial of fees and costs did not constitute an abuse of discretion. AFFIRMED. . During trial, Ralph did attempt to present expert testimony as to the value of the Gillnetter boat, but the trial court refused to hear this testimony because Ralph had not complied with Martha's discovery requests for this information. A trial court has broad discretion to sanction a party who evades discovery. See Bachner v. Pearson, 479 P.2d 319 (Alaska 1970) (court has discretion to exclude evidence for failure to comply with discovery order). . The Merchant Marine Act of 1936 permits a taxpayer who owns an eligible vessel to set up a Capital Construction Fund by agreement with the Secretary of Transportation or the Secretary of Commerce. See 46 U.S.C.App. § 1177(1989). The fund is established for the construction or reconstruction of American vessels. Id. Taxable income is reduced by certain amounts deposited for the taxable year in such a fund. 26 U.S.C. § 7518(c)(1)(A) (1989). Withdrawals from the funds for construction or reconstruction of a vessel are not taxable, but the amount of such withdrawals reduces the basis of the vessels. 26 U.S.C. § 7518(f)(2)-(3) (1989). Other non qualifying withdrawals are taxable. See generally J Fed. Tax Coordinator 2d (Res.Inst. Am.) 30,091-94 (1991). . These rights are as follows: Ralph has visitation during alternate weekends, alternate major holidays, and two weeks of continuous visitation during the winter, spring and summer pri- or to the time Stacey is in school. Once Stacey starts school, Ralph may have six continuous weeks of visitation during the summer. . In Rose, the parties were married for eighteen months. During the marriage, they maintained separate savings and checking accounts. Id. at 1124. Both parties continued working and their pay checks were deposited directly to their respective accounts. Each party made payments on premarital property out of their own accounts. Id. The trial court found that the parties had not functioned economically as a unit and awarded each party the assets each had acquired with premarital funds as well as money earned during the marriage but kept in separate bank accounts. Id. at 1123-24. On appeal, we observed: [I]n marriages of short duration, where there has been no significant commingling of assets between the parties, the trial court may, without abusing its discretion, treat the property division as an action in the nature of rescission, aimed at placing the parties in, as closely as possible, the financial position they would have occupied had no marriage taken place. Id at 1125. .Ralph and Martha maintained a number of joint accounts. They bought the South Naknek property together. Both parties contributed to improvements on the South Naknek and Palmer properties. Both parties made payments on premarital property from marital earnings. . On appeal, Ralph does not specifically challenge the trial court's failure to classify each asset as either marital or separate property. The trial court's approach is unusual in that it did not identify whole assets as marital or separate property. Instead the court identified the "marital portion" of the various assets as being available for distribution. Essentially, the trial court used a version of the "source of funds" approach adopted in a number of jurisdictions. See Tibbetts v. Tibbetts, 406 A.2d 70 (Me.1979); Shank v. Shank, 182 W.Va. 271, 387 S.E.2d 325 (1989). Under this approach, property is classified according to the classification of the funds used to purchase it: property acquired with separate funds is separate; property acquired with marital funds is marital. Property purchased on debt is classified according to the funds used to pay off the debt. Thus it is "acquired" over time. See generally Brett R. Turner, Equitable Distribution of Property § 5.07 (Supp.1991). Although we do not adopt the source of funds rule per se, it is not inconsistent with our statutes and caselaw. AS 25.24.160(a)(4) places all property acquired during the marriage, whether joint or separate, before the court for purposes of division. This statute also authorizes invasion of premarital holdings "when the balancing of the equities between the parties requires it." Id. When one spouse has made pecuniary contributions to the separate property of the other spouse, all or some of that property may be equitably divided on divorce. Vanover v. Vanover, 496 P.2d 644, 648 (Alaska 1972); Brooks v. Brooks, 733 P.2d 1044, 1053 (Alaska 1987). Since it is clear that the trial court could have reached the same result under our rules of equitable division and it is also clear that the court deviated from the traditional analysis because the parties failed to present any evidence establishing the current value of the property, we do not believe that the trial court's analysis constitutes an abuse of discretion. . In Bell, the trial court applied the Rose approach and permitted each party to retain the assets in his or her possession. However, the court ordered the husband to reimburse the wife for contributions made by the wife for property retained by the husband. We reversed, holding that the lower court had erred in applying the Rose approach because the parties had significantly commingled their assets and instructed the trial court to divide the property under Wanberg on remand. We also held that reimbursement was inappropriate when it failed to account for appreciation and depreciation, noting: We also doubt the propriety of using a reimbursement remedy where the value of the assets to which there has been mutual contribution by the parties greatly depreciate or appreciate in value. To do so may result in one party bearing the entire loss (should there be depreciation) or enjoying the entire gain (should there be appreciation). Id. at 102 (citation omitted). . Child support determinations are within the broad discretion of the trial court and will only be reversed when we are left with a definite and firm conviction that a mistake has been made. Pattee v. Pattee, 744 P.2d 658, 662 (Alaska 1987); Richmond v. Richmond, 779 P.2d 1211, 1216 (Alaska 1989). . Ralph rejected Martha's offer to average his income over a three-year period. However, we believe that a three-year average would provide an accurate estimate of a parent's current earning capacity when a parent's income is subject to yearly fluctuations. . The trial court is vested with broad discretion in child custody decisions. Gratrix v. Gratrix, 652 P.2d 76, 79 (Alaska 1982). Such decisions will only be reversed for abuse of discretion or erroneous factual findings. Id. at 79-80. . We review visitation awards under the same standard applied in other custody matters. Lone Wolf, 741 P.2d at 1190. . The court determined that Ralph had an annual adjusted income of $50,205 in 1990. Although the court did not make specific findings concerning Martha's earning capacity, she apparently earned approximately $30,000 in 1990 working as a telephone apprentice. . Martha also argues that her fees were unreasonably increased by Ralph's vexatious and bad faith conduct. In Kowalski v. Kowalski, 806 P.2d 1368 (Alaska 1991), we observed that "[c]onduct justifying [an increased fee award for bad faith or vexatious conduct] must be such that the parties are prevented from litigating the action on an equal plane." Id, at 1373. Although the record does indicate that Ralph repeatedly failed to provide Martha with basic financial information during discovery, his conduct was not so egregious that the trial court's denial of fees was manifestly unreasonable.

10403239

J & L DIVERSIFIED ENTERPRISES, INC., Appellant, v. MUNICIPALITY OF ANCHORAGE, Tony Knowles and Chip Dennerlein, Appellees

J & L Diversified Enterprises, Inc. v. Municipality of Anchorage

1987-05-01

No. S-1188

349

353

736 P.2d 349

736

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:15:56.629960+00:00

CAP

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

J & L DIVERSIFIED ENTERPRISES, INC., Appellant, v. MUNICIPALITY OF ANCHORAGE, Tony Knowles and Chip Dennerlein, Appellees.

J & L DIVERSIFIED ENTERPRISES, INC., Appellant, v. MUNICIPALITY OF ANCHORAGE, Tony Knowles and Chip Dennerlein, Appellees. No. S-1188. Supreme Court of Alaska. May 1, 1987. Robert A. Breeze, Robert A. Breeze & Assoc., Anchorage, for appellant. Donald W. Edwards, Deputy Mun. Atty., and Jerry Wertzbaugher, Mun. Atty., Anchorage, for appellees. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

2017

12591

OPINION MOORE, Justice. Appellant J & L Diversified Enterprises, Inc. (J & L) challenges the dismissal of its complaint alleging abuse of process against appellees Municipality of Anchorage and two of its employees. J & L's complaint is based upon the Municipality's decision to delay issuance of a plat approval. We hold that AS 09.65.070(d)(3) immunizes appellees from a suit for damages resulting from such delay. Therefore, we affirm. I. J & L is a land developer. In 1982, J & L obtained an option to purchase and develop for residential use a parcel of land in Anchorage. J & L applied for and received approval of a subdivision plat from the Anchorage Platting Board. After the plat application was approved, the Municipality appealed the Platting Board's decision. The Municipality maintains that it took its appeal because the Platting Board's findings and conclusions were unsupported by evidence. J & L contends that the Municipality brought its appeal "solely to coerce J & L into accepting a new plat with different terms and conditions than that approved by the Platting Board." Approximately one month after J & L's subdivision plat was approved and shortly after the Municipality appealed that approval, J & L returned to the Platting Board requesting approval of a substitute plat. This substitute plat apparently resulted from negotiations between J & L and the Municipality. The substitute plat application was subsequently tabled by the Platting Board. J & L asserts that the decision to appeal approval of the initial plat and to attempt to negotiate a mutually acceptable substitute plat delayed development of the parcel. Eventually, J & L had to relinquish its purchase and development rights on the parcel. J & L subsequently filed this action in the superior court naming the Municipality, its mayor, and another municipal employee as defendants. J & L alleged that municipal officials knew that it faced financing deadlines and that increased development costs would result from any substantial delay. J & L further alleged that it was forced to abandon its development plans because of Anchorage's dilatory tactics and that this abandonment resulted in monetary damages. J & L sought to recover over $250,-000 in development costs, an unspecified amount for lost profits, and $1,000,000 in punitive damages. The trial court dismissed J & L's complaint pursuant to Alaska R.Civ.P. 12(b)(6), on the ground that AS 09.65.070(d)(3) granted immunity to Anchorage and its employees. J & L appeals, arguing that the trial court erred in dismissing the complaint because AS 09.65.070 does not grant immuni ty for actions arising from, alleged abuse of civil proceedings. II. The trial court dismissed J & L's action for failure to state a claim for relief, Alaska R.Civ.P. 12(b)(6), based on the affirmative defense of statutory immunity. We have previously held that a complaint can be dismissed under Rule 12(b)(6) if an affirmative defense clearly appears on the face of the complaint. Martin v. Mears, 602 P.2d 421, 428 (Alaska 1979); Nizinski v. Currington, 517 P.2d 754, 755 n. 6 (Alaska 1974). The face of J & L's complaint makes clear that defendants are a municipality and its employees, and that the claim is one for damages based upon the defendants' appeal of the Platting Board decision. Therefore, the complaint was properly dismissed pursuant to Rule 12(b)(6) if we find that the claim is among those barred by statute. III. We have not previously been called upon to construe AS 09.65.070(d)(3). Our starting point for interpretation of a statute is the language of the statute construed in light of the purpose of its enactment. Commercial Fisheries Entry Comm'n v. Apokedak, 680 P.2d 486, 489-90 (Alaska 1984). The statute reads: (d) No action for damages may be brought against a municipality or any of its agents, officers or employees if the claim . (3) is based upon the grant, issuance, refusal, suspension, delay or denial of a license, permit, appeal, approval, exception, variance or other entitlement, or a rezoning. J & L's complaint seeks damages and is based upon the delay in approval of its plat. The plain language of the statute appears to preclude the action. J & L contends that its complaint is not based upon the delay in approval itself, but is based upon wrongful use or abuse of the zoning appeal process. J & L asserts that the Municipality's appeal was "improper, spurious and entered into only for coercive purposes, and was, in fact and in law, without basis" and that defendants acted "contrary , to law and with animus toward Plaintiff...." We will accept as true all well-pleaded material allegations of a non-moving party in our review of a dismissal on the pleadings. State v. Jennings, 555 P.2d 248, 251 (Alaska 1976). At common law, municipalities were generally held immune from liability for malicious institution of suit, although not without exception. See generally 18 E. McQuillen, Municipal Corporations § 53.62 at 383-84 (3d ed. 1984) and cases cited therein. In Alaska, however, municipal tort liability is determined by statute. AS 09.65.-070; see Wilson v. Municipality of Anchorage, 669 P.2d 569, 571 (Alaska 1983). J & L argues that the statutory scheme of AS 09.65.070 generally imposes liability on municipalities with limited exceptions provided in AS 09.65.070(d). These exceptions, it urges, should be narrowly construed. Thus, because the statute does not expressly except municipalities from liability for abuse of process or wrongful use of civil proceedings, a complaint which alleges such causes of action should not be barred. J & L observes that, in contrast with municipal immunity, the legislature expressly immunized the state from liability for abuse of process and malicious prosecution. AS 09.50.250(3). We do not agree that AS 09.65.070(d)(3) can be so narrowly construed that an allegation of abuse of process will remove an otherwise barred action from its operation. The purpose of the statute is to protect the public treasury by barring actions seeking money damages for injuries alleged to be the result of municipal licensing, permitting, entitlement and zoning procedures and decisions. The statute was part of an enactment expanding municipal immunity in 1977 in response to several decisions of this court holding cities liable in hotel fires based on their fire inspection programs. See Municipality of Anchorage, A Case for Limited Municipal Tort Immunity in Alaska 2-3, SB 249, 10th Leg., 1st Sess. (1977) (citing Adams v. State, 555 P.2d 235 (Alaska 1976), and State v. Jennings [cited as City of Fairbanks v. Nordale Hotel, Inc.], 555 P.2d 248 (Alaska 1976)). An explanation of the bill provided to the legislature by attorneys for seven Alaskan cities, including Anchorage and Juneau, stated: "The threat of suit for damages should not play any part in the decision of a municipal official or body to issue, deny, or suspend a permit or privilege of any nature.... This section would not limit the applicant's or permittee's right to go to court to force the issuance, grant, etc., if it is one to which the person is entitled." Explanation of HB 354 and SB 249 Relating to Suits Against Local Governments 3-4, SB 249, 10th Leg., 1st Sess (1977) (emphasis added). The statute thus immunizes municipalities and their employees from actions for damages which are based upon municipal permitting, licensing, entitlement and zoning procedures. However, a party threatened with damage from such procedures may sue for injunctive or declaratory relief pursuant to AS 09.65.070(d)(1). This result protects the individual's right to relief from a wrongful decision while protecting public funds and preventing the possibility that the threat of a lawsuit may influence a municipal decision. There is nothing unusual about immunizing governmental bodies from even bad faith acts. Malice or bad faith is an element of a number of torts from which AS 09.50.250(3) immunizes the state. The federal government is similarly immunized by 28 U.S.C. § 2680(h) (1982). Similarly, courts hold prosecutors absolutely immune for acts "intimately associated with the judicial phase of the criminal process." Taylor v. Kavanagh, 640 F.2d 450, 452 (2d Cir.1981). Thus, an accused person has no tort remedy against a prosecutor, even if the prosecutor uses false evidence, suborns perjury or coerces witnesses, id., despite 42 U.S.C. § 1983 (1982) which holds "every person" answerable for the violation of another's civil rights. Imbler v. Pachtman, 424 U.S. 409, 417, 96 S.Ct. 984, 988, 47 L.Ed.2d 128, 136 (1976). In short, the operative fact of J & L's complaint is the decision to delay approval of its plat. The statute does not distinguish between actions based upon whether the complaint alleged a negligent, intentional, or malicious act, because such distinctions are irrelevant to its purpose. The action alleged here is "based upon" the delay of an approval. Decisions on land use frequently involve parties with large financial stakes in the outcome. An unfavorable decision could mean that such a party would lose its preliminary investment in a project (which may be substantial) and its potential profit from the project (which may be enormous). Alaska Statute 09.65.070(d)(3) ensures that municipalities can make land use (and other permitting) decisions without the risk of being liable for these losses. It also ensures that municipalities need not incur significant legal expense to defend against developers' suits, but can have such suits promptly dismissed. Unlike, for example, the conditional privilege to publish defamatory statements in the public interest, this statutory immunity is not lost through abuse. Cf. Urethane Specialities, Inc. v. City of Valdez, 620 P.2d 683, 689 (Alaska 1980) (common law privilege to speak out in public interest protects city from defamation action by "fly-by-night" business). The legislature could, and did, shield municipalities absolutely from financial liability for permitting, licensing and zoning decisions even if made in bad faith. A party injured by such a bad faith decision may seek his remedy in a suit for injunctive or declaratory relief pursuant to AS 09.65.-070(a). We conclude that AS 09.65.070(d)(3) provides an absolute shield from financial liability for delay in approval of a subdivision plat, regardless of possible bad faith acts by a municipality or its employees. Therefore, we agree with the superior court that this action must be dismissed pursuant to Alaska R.Civ.P. 12(b)(6). AFFIRMED. . J & L also contends Anchorage does not have standing to appeal a decision of its Platting Board. We find that Anchorage does have standing to appeal a decision of its Platting Board pursuant to Anchorage Municipal Code § 21.30.020(A)(2), which provides that decisions in planning and zoning matters can be appealed by "any governmental agency or unit." . In Wilcox v. Fairbanks North Star Borough, 603 P.2d 903, 905 n. 2 (Alaska 1979), we suggested that AS 09.65.070(d)(3) could bar an action for damages arising out of the Borough's denial of permits. However, the action had been brought before the statute became effective. Therefore, the statute was not at issue in that case. .We impliedly recognized an action for wrongful use of civil proceedings in Eidelson v. Archer, 645 P.2d 171, 173 (Alaska 1982). We have not previously stated the elements of either wrongful use of civil proceedings or abuse of process (or their cousin, malicious prosecution). For the majority view on these actions, see P. Keeton, Prosser and Keeton on Torts, § 120, 121 (5th ed. 1984). . Furthermore, we note that AS 09.65.070(d)(3) would not immunize municipal officials from criminal prosecution if their 'Rad faith" amounted to accepting bribes or other illegal acts. . E.g., malicious prosecution, abuse of process, libel, slander, misrepresentation, and deceit. AS 09.50.250(3). See P. Keeton, Prosser and Keeton on Torts (5th ed. 1984) for elements of these causes of action. . We need not decide whether Anchorage is also immune under AS 09.65.070(d)(2), which provides for discretionary function immunity.

6960979

Tommie PATTERSON, Appellant, v. Sheila COX and Ford Motor Company, Appellees

Patterson v. Cox

2014-05-09

No. S-14853

1118

1123

323 P.3d 1118

323

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:19:49.086852+00:00

CAP

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

Tommie PATTERSON, Appellant, v. Sheila COX and Ford Motor Company, Appellees.

Tommie PATTERSON, Appellant, v. Sheila COX and Ford Motor Company, Appellees. No. S-14853. Supreme Court of Alaska. May 9, 2014. Rehearing Denied June 12, 2014. Tommie Patterson, pro se, Anchorage, Appellant. John R. Dean, Law Office of John R. Dean, Anchorage, for Appellee Sheila Cox, and John B. Thorsness, Clapp, Peterson, Tiemessen, Thorsness & Johnson LLC, Anchorage, for Appellee Ford Motor Company. Before: FABE, Chief Justice, WINFREE, MAASSEN, and BOLGER, Justices.

2877

17782

OPINION BOLGER, Justice. I. INTRODUCTION Tommie Patterson's 1997 Ford Explorer was struck from behind when he braked to avoid a car stalled in his lane of travel on Gambell Street in Anchorage. He sued the owner of the stalled vehicle and subpoenaed her for trial, but she refused to appear. We conclude that the superior court should have issued a warrant or an order to show cause to compel the appearance of this party. In addition, the superior court instructed the jury on Patterson's products liability claim against Ford Motor Company, but this claim was erroncously omitted from the special verdict form. We reverse the superior court's judgment and remand for a new trial. II. FACTS AND PROCEEDINGS A. Facts Early in the morning of December 11, 2006, Sheila Cox was traveling south on Gambell Street in Anchorage when her Dodge Neon ran out of gas. Cox left her car in the road while she went to a nearby gas station. It is disputed whether Cox pulled over to the right or turned on her warning lights after she stopped. At about the same time, Tommie Patterson was also traveling south on Gambell Street, returning home from work. He was driving his 1997 Ford Explorer behind a truck in the right southbound lane. When he passed Fifteenth Street, the truck signaled and merged into the left lane. Immediately afterwards, Patterson saw Cox's car stopped in the right lane ahead of him, but he had no time to merge left to avoid it. Patterson stopped his vehicle as quickly as he could. It is unclear from the record whether he struck the back of the Neon, but Katie Rutledge, who was driving behind Patterson, rear-ended Patterson's SUV after Patterson braked. Patterson testified that, although his seatbelt was on before the accident, it came unlatched during the collision. When Cox returned with gas, she noticed that two SUVs had collided immediately behind her car. She left the scene of the accident after she observed that her own car had not been damaged. B. Proceedings Patterson filed suit against Cox and Ford Motor Company in the Anchorage superior court. In his complaint against Cox, Patterson alleged that Cox acted negligently when she left her car in a traffic lane. As to Ford, Patterson alleged that, when Rutledge's vehicle struck his, Patterson's "seatbelt failed causing plaintiff severe bodily injury, including but not limited to his neck{,] left shoulder[,] and back." After receiving several adverse rulings during pre-trial motion practice, Patterson filed multiple motions asking Superior Court Judge William F. Morse to recuse himself. Judge Morse denied all of these motions. His decision not to recuse himself was reviewed and upheld by two other superior court judges. Patterson's claims against Cox and Ford were tried in front of a jury from August 7 to August 17, 2012. Although Patterson sought to have Cox testify, Cox disobeyed a subpoena and never appeared. Several times during trial, Patterson asked the superior court to address Cox's failure to appear. When the court mentioned that it could "sen[d] a trooper out and have her arrested," Patterson seemed to approve, and he became frustrated when the court decided not to issue a bench warrant. He insisted that "if Ms. Cox is under subpoena, she should appear." In the end, the superior court decided to give a curative jury instruction as a remedy for Cox's failure to appear: [Plaintiff, Tommie Patterson, issued a subpoena to defendant, Sheila Cox, requiring her to appear and testify at trial. Cox did not comply with the subpoena and did not testify. In evaluating the evidence you may consider the failure of Cox to appear and testify. You may, but need not determine that if Cox had testified her testimony would have been helpful to Patterson. You may, but need not consider the absence of Cox and the likelihood that her testimony would have been favorable to Patterson in deciding whether Patterson has met his burden of proof as to Cox. Patterson did not object to this instruction. At the end of trial, the superior court submitted instructions and a special verdict form to the jury. The verdict form asked the jury to answer the following questions regarding liability: (1) Was defendant Sheila M. Cox negligent? (3) Was defendant Ford Motor Company negligent? The jury unanimously answered both questions "No." Based on the jury's verdict, the superior court entered judgment in favor of the defendants. Patterson now appeals. III DISCUSSION A. The Special Verdict Form Provided To The Jury Was Plainly Erroneous. Patterson argues on appeal that "Itlhe Superior Court's instructions to the jury were probative, confusing, and misunderstood; and were designed in favor of the Appellees to prejudice Appellant." We normally review jury instructions de novo. However, as Ford points out in its brief, Patterson did not object to the jury instructions during trial. Therefore, we review the instructions for plain error only. "[Pllain error exists when the jury instruction obviously created a high likelihood that the jury would follow an erroneous theory resulting in a miscarriage of justice." But even a plain error will not be grounds for reversal if it is harmless. Patterson argues that the superior court "erred by never instructing the jury on product defect or manufacture defect of the seat and seatbelt." Although the superior court did in fact instruct the jury on products liability, our review of the record reveals that the special verdiet form mischaracterized the law applicable to this case. In his complaint, Patterson alleged that, after Rutledge's car collided with his vehicle, his "seatbelt failed causing [him] severe bodily injury." Because the pleadings of pro se litigants are held to a less stringent standard than those of lawyers, this allegation was sufficient to state a claim sounding in negligence and strict products liability. And this is how the parties litigated Patterson's claim against Ford at trial. Patterson requested a verdict form that included questions regarding his products liability claim. But the superior court adopted a form similar to Ford's proposal. With respect to Ford's liability, the verdict form asked the jury only: "Was defendant Ford Motor Company negligent?" The form included no question about strict products liability. Therefore, even if the jury would have found for Patterson based on a strict products liability theory, the form provided no opportunity for it to do so. For that reason, the special verdict form was plainly erroneous. Of course, if no reasonable jury could have found for Patterson on his products liability claim, the superior court's omission would be harmless. But the superior court denied Ford's motion for a directed verdict on this issue. Based on our review of the record, we are not convinced that the evidence was insufficient to support a verdict in Patterson's favor. Therefore, we are compelled to conclude that the omission of Patterson's strict products liability claim from the special verdict form was plain, prejudicial error and that his claims against Ford must be remanded for a new trial. B. The Superior Court Should Have Issued A Warrant Or An Order To Show Cause To Secure Cox's Appearance At Trial. On appeal, Patterson renews his argument that the superior court should have issued a bench warrant to compel Cox to appear at trial. We review the application of rules of procedure and statutes de novo. Alaska Rule of Civil Procedure 90(b) provides For every contempt other than [contempts subject to summary punishment], upon a proper showing on ex parte motion supported by affidavits, the court shall either order the accused party to show cause at some reasonable time, to be therein specified, why the accused party should not be punished for the alleged contempt, or shall issue a bench warrant for the arrest of such party. The failure of a witness to obey a subpoena is a contempt of court. Therefore, when a party makes a proper showing that a witness has disobeyed a subpoena, the trial court should issue an order to show cause or a bench warrant for the arrest of the witness. Patterson did not submit a formal motion requesting that the court hold Cox in contempt. But when the court told him that it could have Cox arrested and brought to the courthouse, Patterson approved of that suggestion. And when the court indicated that it was not inclined to provide that remedy, Patterson expressed frustration. He insisted that "if Ms. Cox is under subpoena, she should appear." Because Alaska courts "relax some procedural requirements" in cases involving pro se litigants, the superior court should have treated these statements as a proper request that the court invoke its contempt power to enforce Cox's subpoena. We conclude that the failure of the superior court to issue an order to show cause or a bench warrant was error. Cox argues that any error was harmless because the superior court permitted the introduction of a recorded statement made by Cox before trial and issued a curative jury instruction. But the recorded statement was very favorable to Cox. And it is at best speculative that the curative instruction-which provided that the jury "may" draw an adverse inference from the fact that Cox did not testify-had the same effect on Cox's credibility as compelling her to testify in front of the jury. Live testimony is especially important where, as here, the resolution of factual issues depends on the relative credibility of the witnesses. Because the jury's determination whether Cox was negligent could very well have turned on whether it believed her statements, there is a significant risk that the court's curative instruction was an inadequate substitute for live testimony. Because the failure to issue a bench warrant to secure Cox's presence at trial was prejudicial error, we reverse and remand Patterson's claims against Cox for a new trial. C. Patterson's Recusal Motions Were Properly Denied. Patterson also argues that the trial judge was biased against him and should have been disqualified from presiding over his case. A judge's conclusion that he is capable of conducting a fair trial is reviewed for abuse of discretion. Patterson alleges that the trial judge represented him in 1982, when the trial judge was at the public defender's office, and that this prior representation disqualified him from presiding over this case. In his order denying Patterson's recusal motion, the trial judge wrote, "I do not recall having ever represented Patterson, although it is possible that, as an assistant public defender, I filled in for another attorney on a matter involving Patterson." But even if it is true that the trial judge represented Patterson in the 1980s, Alaska law does not require recusal. Alaska Statute 22.20.020(2a)(5) provides that "[a] judicial officer may not act in a matter in which . a party, except the state or a municipality of the state, has retained or been professionally counseled by the judicial officer as its attorney within two years preceding the assignment of the judicial officer to the matter." Patterson alleges that the trial judge represented him in 1982, which was 26 years before Patterson filed the complaint in this case. Patterson also claims that the trial judge displayed "racial hate" for Patterson, both when the trial judge allegedly represented Patterson as a public defender and during this trial And he alleges that the trial judge was involved in a "conspiracy" with counsel for Ford and was taking bribes from the defendants. But Patterson offered no evidence to substantiate these allegations, and the record reveals none. Patterson also alleges that the trial judge's bias was evident from his "relentless favoritism in granting motions and pleadings for" Ford and Cox. "But a ruling against a party, even an incorrect ruling, is not evidence of judicial bias." Therefore, the fact that the trial judge frequently ruled against Patterson does not, by itself, demonstrate that recusal was required. Finally, Patterson argues that the trial judge should have recused himself because his participation in the trial created the appearance of bias. We review "a request for disqualification of a judge based on the appearance of impropriety" de novo. Importantly, where "a party alleges the appearance of bias, a 'greater showing is required for recusal. Patterson does not make that showing. The trial judge acknowledged that his continued participation in the case "may raise concerns about the appearance of impropriety in that reasonable persons could question whether I could remain impartial in light of such serious allegations by Patterson." But requiring a judge to recuse himself merely because one party has made extreme and baseless accusations against that judge would make it easy for a persistent litigant to secure a recusal that would not otherwise be required. And, as the trial judge noted, to require recusal under these circumstances would be to reward "intemperate and unfounded behavior." - Therefore, the trial judge's recusal was not necessary to avoid the appearance of impropriety. IV. CONCLUSION We REVERSE the superior court's judgment and REMAND for a new trial. STOWERS, Justice, not participating. . Patterson also sued Rutledge, the driver of the vehicle that rear-ended Patterson's SUV, but the parties settled that claim before trial. . Cummins, Inc. v. Nelson, 115 P.3d 536, 541 (Alaska 2005). . Roderer v. Dash, 233 P.3d 1101, 1110 (Alaska 2010). . Khan v. State, 278 P.3d 893, 896 (Alaska 2012) (internal quotation marks and alterations omitted). . See Sowinski v. Walker, 198 P.3d 1134, 1160 (Alaska 2008) ("To overturn a jury instruction or special verdict form, we must conclude not only that the instruction or special verdict form was legally erroneous, but also that the verdict would probably have been different but for the error."). . See Gilbert v. Nina Plaza Condo Ass'n, 64 P.3d 126, 129 (Alaska 2003) ("It is well settled that in cases involving a pro se litigant the superior court must relax procedural requirements to a reasonable extent."). . Cf. Wilkerson v. State, Dep't of Health & Soc. Servs., 993 P.2d 1018, 1021-22 (Alaska 1999) (pro se litigant's constitutional claims were properly presented, even where his arguments were "conclusory" and he "failed to identify or apply the tests courts use in reviewing the constitutionality of laws."). . Joseph v. State, 26 P.3d 459, 477 (Alaska 2001) (special verdict form was erroneous where, contrary to law, it did not permit the jury to consider whether state officials were negligent in preventing a prisoner's suicide if the jury found that the suicide was intentional); see also Sowinski, 198 P.3d at 1163 (special verdict form was erroneous where it permitted the jury "to award [plaintiff] damages to which she was not entitled under a [negligent infliction of emotional distress] theoty"). . See McBride v. Sears, Roebuck & Co., 306 Minn. 93, 235 N.W.2d 371, 374 (1975) (declining to reach claims about jury instructions and special interrogatories because "the evidence was, as a matter of law, insufficient to support a verdict for the plaintiff). . Alyssa B. v. State, Dep't of Health & Soc. Servs., 165 P.3d 605, 612 n. 18 (Alaska 2007). . Kinn v. Alaska Sales & Serv., Inc., 144 P.3d 474, 483 (Alaska 2006). . AS 09.50.010(10) ("[Dlisobedience of a subpoena duly served, or refusing to be sworn or answer as a witness" is a contempt of court.); Alaska R. Civ. P. 45(F) ("Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued."). . Kaiser v. Sakata, 40 P.3d 800, 803 (Alaska 2002). . Cf. Bonamarte v. Bonamarte, 263 Mont. 170, 866 P.2d 1132, 1136 (1994) (limitations on cross-examination are only permissible where a case does not turn on credibility determinations). . Greenway v. Heathcott, 294 P.3d 1056, 1063 (Alaska 2013) ("A judge must recuse himself or herself if there is bias."); see also AS 22.20.020(a) (listing grounds for judicial disqualification). . Hymes v. DeRamus, 222 P.3d 874, 880 (Alaska 2010); see also Phillips v. State, 271 P.3d 457, 459 (Alaska App.2012). . To support this allegation, Patterson relies on an affidavit submitted by Yvette M. Richards, Patterson's former girlfriend. However, the Richards affidavit demonstrates only that Richards was represented by William Morse in 1982. . Peterson v. Swarthout, 214 P.3d 332, 339 (Alaska 2009). . Id. ("[When a party seeks a judge's recusal for bias, he or she must show that the judge's actions were the result of personal bias developed from a nonjudicial source." (internal quotation marks omitted)). . See Greenway, 294 P.3d at 1063. . Griswold v. Homer City Council, 310 P.3d 938, 941 (Alaska 2013). . Greenway, 294 P.3d at 1063 (quoting Lacher v. Lacher, 993 P.2d 413, 420-21 (Alaska 1999)); see also Alaska Code Jud. Conduct 3(E)(1) ("[A] judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned. ."). . Patterson's appellate brief makes several other allegations of prejudicial error. Because we reverse the superior court's judgment on the grounds discussed above, we do not reach these other arguments.

6955377

Leo A. REGNER, Appellant, v. NORTH STAR VOLUNTEER FIRE DEPARTMENT, INC.; Jeff Tucker, "Fire Chief"; Jerry Hanson, "Fire Commander" at the scene; North Pole Fire Department; Buddy Lane, "Fire Chief," Appellees

Regner v. North Star Volunteer Fire Department, Inc.

2014-04-11

No. S-14794

16

23

323 P.3d 16

323

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:19:49.086852+00:00

CAP

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

Leo A. REGNER, Appellant, v. NORTH STAR VOLUNTEER FIRE DEPARTMENT, INC.; Jeff Tucker, "Fire Chief"; Jerry Hanson, "Fire Commander" at the scene; North Pole Fire Department; Buddy Lane, "Fire Chief," Appellees.

Leo A. REGNER, Appellant, v. NORTH STAR VOLUNTEER FIRE DEPARTMENT, INC.; Jeff Tucker, "Fire Chief"; Jerry Hanson, "Fire Commander" at the scene; North Pole Fire Department; Buddy Lane, "Fire Chief," Appellees. No. S-14794. Supreme Court of Alaska. April 11, 2014. Rehearing Denied May 7, 2014. Leo A. Regner, pro se, Fairbanks, Appellant. Laura L. Farley, Farley & Graves, P.C., Anchorage, for Appellees North Star Volunteer Fire Department, Jeff Tucker, and Jerry Hanson. Zane D. Wilson, Cook Schuhmann & Groseclose, Inc., Fairbanks, for Appellees North Pole Fire Department and Buddy Lane. Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.

4088

25574

OPINION STOWERS, Justice. I. INTRODUCTION On December 81, 2008, a fire broke out at a mobile home owned by Leo Regner near North Pole. The North Star Volunteer Fire Department, the North Pole Fire Department, and the Fort Wainwright Fire Department responded to the fire but were unable to prevent damage to the mobile home. Regner sued the fire departments and several of their employees, alleging negligence. Regner voluntarily dismissed his claim against the Fort Wainwright Fire Department and its employee, and the remaining defendants (the "defendants") moved for summary judgment on the basis that they were immune from suit. The superior court granted complete summary judgment on the grounds that: (1) the individual defendants were immune from suit; (2) the fire departments were immune from suit for their discretionary decisions; and (8) Regner failed to offer any evidence of negligence to rebut the defendants' "conclusive showing" that all firefighting activity was done in accordance with generally accepted firefighting practices. Regner appeals only the superior court's decision that he failed to make a sufficient showing of negligence to defeat summary judgment. Because the defendants did not move for summary judgment on the merits of Regner's negligence claims and the merits of those claims were not otherwise addressed in the summary judgment proceedings, we reverse. Because Regner did not appeal the superior court's immunity decisions, we do not address the merits of those decisions, but we note that the superior court's discretionary function immunity decision did not address all of the allegedly negligent actions that the defendants argued were subject to immunity. These remaining claims are remanded for decision. II. FACTS AND PROCEEDINGS This appeal concerns a mobile home fire that occurred on December 31, 2008, just outside of North Pole. On the afternoon of the fire, Leo Regner, the mobile home's owner, received a phone call from the tenant living in the home informing him that water was not coming out of her kitchen faucet. Regner determined that the water line had frozen in the -45°F temperature. The water line ran from a small adjacent well house to the underside of the mobile home. Reg-ner went underneath the mobile home, removed the insulation, and used a small han-dheld propane torch to apply direct heat to the water line. When this proved unsuccessful, Regner and the tenant entered the well house, and Regner used the torch to heat the line from inside. Regner noticed that this process caused a black insulation board inside the well house to "glow[ ] a little" and smolder, so he seratched out the glowing spot with his finger until it was cool to the touch. The tenant informed Regner that she thought she smelled smoke, but Regner responded that he did not smell anything, and the tenant concluded she was simply noticing the smell of the torch. After successfully restoring water flow to the kitchen sink, the two left the residence and drove to Fairbanks to run errands. At approximately 5:53 p.m. the North Star Volunteer Fire Department was dispatched to a reported structure fire at Regner's mobile home. Although Regner's property is outside of their jurisdictions, the North Pole Fire Department and the Fort Wainwright Fire Department were also dispatched pursuant to mutual aid agreements with the North Star Volunteer Fire Department. The North Pole Fire Department was the first to arrive on the seene. The North Star Volunteer Fire Department arrived soon after and assumed command of the fire, with Deputy Chief Jerry Hanson serving as the officer in command. The first firefighters to arrive on the scene, North Pole Fire Department Deputy Chief Geoffrey Coon and Captain David Dan-iell, were unaware whether the mobile home was occupied. Coon immediately observed "a single-wide trailer with a small addition" and "not a whole lot of smoke." Coon walked up to the front door and observed "a small amount of fire" between the mobile home and the well house. By removing his glove and feeling the front door, Coon determined there was a moderate amount of heat coming from inside the mobile home. Coon then opened the door and discovered smoke and heat. Daniell led the firefighters in performing "an initial interior attack." Daniell and two other firefighters entered the mobile home with a pressurized hose while "crawling on [their] . knees and staying underneath the heat and smoke." The firefighters performed a "search pattern," which Daniell de-seribed as a typical procedure whereby a crew follows the walls of a building until they discover victims or fire. The crew followed the wall in a right-hand search pattern, entering the bedroom, then the living room, and then the bathroom, where they discovered the fire and "started fighting the fire in the hallway by the bathroom." Daniell testified that the majority of the fire was in the bathroom, and it took the crew "ten minutes or less from the time [they arrived] on the scene" to get the fire under control. Daniell determined that fire from the well house spreading to the insulation underneath the mobile home had caused the bathroom fire, so he and his crew remained inside to access the insulation and the "hidden fires." While Daniell and the crew fought the fire from inside the mobile home, other firefighters performed "outside firefighting fune-tions," such as "assisting pulling [the fire hose] line so the guys [could] advance down the hallway, . pulling the second line, . trying to set up a positive pressure fan," and speaking to Regner. Coon prepared the pressure fan, performed a "walk-around" of the mobile home, and broke out the windows in order to create ventilation and to allow gas and smoke to exit the home. The outside firefighters did not apply water to the outside of the mobile home while the other firefighters were fighting the fire from inside; both Daniell and Coon explained that it is dangerous for water to be sprayed from outside when firefighters are inside a building. After the firefighters "attacked" the fire inside the mobile home, there was only "a very small fire [remaining outside and in the well house] that took less than 10 gallons to put out." Coon explained, "[Wle put the fire out from the inside of the trailer to the outside of the trailer and then finished up on the outside." The entire fire was extinguished at approximately 6:45 p.m., 52 minutes after the fire departments were dispatched to the property. Regner learned about the fire when, driving back from Fairbanks, he received a phone call from a neighbor informing him that two fire trucks had just pulled up to the mobile home. He arrived at the property a few minutes later and saw two fire trucks and "a glowing fire with sparks between the well-house wall and exterior [mJobile [hlome wall." Regner described initially observing a big glowing ball that was four to six inches in diameter that had not yet erupted into flames. Regner also stated that he saw at least one firefighter standing outside, one firefighter dragging a hose outside, and a hose going inside the mobile home. Regner perceived that other firefighters had already entered the mobile home.. According to Regner, he immediately realized that his earlier attempt to scratch out the smoldering in the well house must have been unsuccessful, and he knew the fire originated in the well house. Regner got out of the car and ran over to firefighters standing near the well house to ask them to apply water to the well house, but the only hose outside was collapsed. When the firefighters did not respond, Regner entered the mobile home and "[hJoller{ed] at [the firefighters] to bring [the] pressurized hose outside," but it was too dark for Regner to see anything, and one of the firefighters pushed Regner out of the mobile home. When his further efforts to get firefighters to apply water to the well house proved unsuccessful, Regner decided to take matters into his own hands: he entered the well house "with the intent to [apply] water from the water pump" to the glowing spot, but he quickly discovered that the power had been shut off and the spigot was not producing water. Regner then exited the well house and jumped on top of the structure in an effort to kick snow from the roof of the well house onto the outside glowing spot-which, according to Regner, was flaming at this point. His efforts proved unsuccessful, and another firefighter approached him and asked him to leave the scene. Regner could not recall ever seeing flames or smoke inside of the well house. After more unsuccessful requests that firefighters apply water outside, Regner again tried to enter the mobile home, but he was pushed outside by a firefighter wearing a breathing apparatus, and Regner was unable to see what the firefighters were doing inside. Regner's ears were getting cold at this point, so he walked next door to the neighbor's house to borrow a hat. Convinced something was "drastically wrong" with the firefighters' procedure, Regner asked the mobile home's tenant to accompany him to the scene of the fire to serve as a witness. Upon returning, Regner saw "four or five foot flames above the well-house roof"; this was the only fire Regner ever witnessed. Regner again tried to enter the mobile home to ask the firefighters to bring the pressur ized hose outside and apply water to the well house, but he was "pushed back outside." The firefighters instructed Regner to return in twenty minutes, at which point their operation would be complete. Regner reluctantly left the scene for the second time and returned just as the last fire truck was leaving. Regner, the tenant, and fire commander Hanson surveyed the damage to the mobile home. The well house was completely intact except for the outer wall adjacent to the mobile home. A North Star Volunteer Fire Department incident report estimated the property damage at $10,500, though a contractor Regner hired estimated the repair costs at $145,000. Regner did not have insurance. Regner wrote letters to and visited with members of the fire departments and various local political entities; he demanded an investigation and sought "to hold the Fire Department[s] accountable for their malicious behavior (rather eriminal behavior)." Unsatisfied with the responses he received, Regner filed suit, pro se, against the North Star Volunteer Fire Department, the North Pole Fire Department, and the Fort Wainwright Fire Department, as well as four individuals employed by these departments. Regner asserted that the North Star Volunteer Fire Department and the North Pole Fire Department. adamantly would not apply water to the glowing wall of the well house, and let it turn into a blaze, letting it burn for [80] to 45 minutes, until the flames melted the metal siding of the mobile home and entered the structure, totally destroying the bathroom, interior walls, appliances, furniture, curtains, windows, etc., all the renter['s] appliances, belongings and personal effects[,] etc. Regner also implied that the three fire departments were involved in a conspiracy against him. Regner requested the defendants be ordered to repair or replace the damaged property and to pay for "loss of rental income and the sum of $225,000.00, plus costs and interest for punitive damages, . for [Regner's] costs and stress incurred while conducting informal and formal investigations, . for [his] time as pro per attorney," and for future costs. Regner voluntarily dismissed his claims against the Fort Wainwright Fire Department and its employee. The remaining defendants moved for summary judgment on the grounds of immunity. The superior court granted complete summary judgment to all of the defendants on April 30, 2012, and entered final judgment on June 4, 2012. The court concluded that the individual defendants were immune from suit pursuant to AS 09.65.070(c) The court applied AS 09.65.070(d)(2) to conclude that both fire departments were "municipalit{ies]" as defined by the statute and that both were immune from suit for their discretionary acts, which the court found to include "the decision of how many fire departments would respond to the fire" and "the policy of using one fire department to 'cover' while another department fights a fire." Finally, the court ruled that all the defendants were entitled to summary judgment on the issue of negligence because Regner failed to offer "any evidence of negligence to rebut the defendants' conclusive showing that all firefighting activity was done in accordance with generally accepted firefighting practices." Proceeding pro se, Regner appeals only the superior court's conclusion that he failed to make a sufficient showing of negligence to defeat summary judgment. III. STANDARD OF REVIEW We review a grant of summary judgment de novo, reading the record in the light most favorable to, and drawing all reasonable inferences in favor of, the non-moving party "We will affirm a grant of summary judgment if there are no genuine issues of material fact and the prevailing party was entitled to judgment as a matter of law." "The moving party has the 'entire burden' of proving that it is entitled to summary judgment." IV. DISCUSSION A. The Superior Court Erred By Granting Summary Judgment On The Merits Of Regner's Negligence Claims. In their motion for summary judgment, the defendants asserted only that Reg-nex's claims failed because the individual firefighters were immune from suit and all of the decisions made and actions taken in the course of fighting the fire were subject to discretionary function immunity. Nevertheless, the superior court sua sponte addressed the issue of negligence and concluded that Regner offered "only unfounded speculation" in support of his negligence claims and that there was "no evidence that the defendants breached their duty or that they caused Reg-ner any injury." Regner argues that the superior court erred by granting summary judgment in favor of the defendants on his negligence claims because there are genuine issues of material fact that can be decided only by trial. The defendants respond that the firefighting tactics employed in combating the fire were not negligent as a matter of law and, in any case, they were immune from Regner's claims. In order to prove his negligence claims, Regner must show that: (1) the defendants owed him a duty of care, (2) the defendants breached this duty, (8) he was injured, and (4) his injury was the factual and proximate result of the defendants' breach. But on a motion for summary judgment "the movant has the burden of showing that there is an absence of a factual dispute on a material fact and that this absence of a dispute constitutes a failure of proof on an essential element." Because the defendants did not move for summary judgment on the merits of Regner's negligence claims, the defendants have obviously not met their burden. Equally obvious, because the defendants moved for summary judgment only on the basis of immunity, Regner was not put on notice that he needed to adduce facts, other than those relating to the applicability of the immunity statutes, in order to survive summary judgment. Accordingly, because issues of negli-genee were not raised in the summary judgment motion, the superior court erred by granting summary judgment in favor of the defendants on the merits of Regner's negli-genee claims. We reverse the grant of summary judgment on Reguer's negligence claims and remand for further proceedings. B. The Superior Court's Immunity Decisions Do Not Dispose Of All Of Regner's Claims. The superior court granted immunity to each of the individually named defendants under AS 09.65.070(c), which protects fire department employees from tort claims aris ing from the execution of their duties. The court also granted discretionary function immunity to the fire departments under AS 09.65.070(d)(2) with regard to two specific decisions Regner challenged. Because Reg-ner does not challenge the superior court's immunity decisions on appeal, we do not address the merits of these decisions. But the superior court's grant of discretionary function immunity did not dispose of all of Regner's claims against the fire departments. Thus, the superior court could not grant complete summary judgment on the basis of immunity. On remand, the court must further consider the motion for summary judgment on immunity grounds in light of the fire departments' actions and decisions that Reg-ner challenges. Alaska Statute 09.65.070(d)(2) immunizes municipalities and their agents, officers, and employees from civil liability for claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty . whether or not the discretion involved is abused." In determining which municipal decisions qualify as "discretionary functions" protected from suit, we have consistently distinguished between planning decisions and operational decisions. A planning decision "involves policy formulation" and is protected from liability, whereas an operational decision "involves policy execution or implementation" and is not entitled to immunity. Thus, the "decision to engage in an activity is an immune 'planning' decision, while the decisions undertaken in implementing the activity are operational, as long as the implementation does not involve the consideration of policy factors." "Under the planning/operational test, liability is the rule, immunity the exception. " In Angnabooguk v. State, we addressed certain firefighting decisions that were properly considered "discretionary" for purposes of state discretionary function immunity. We rejected the argument that all firefight ing decisions are necessarily discretionary because they all involve policy formulation. Instead, we observed that certain "aspects of firefighting . can have an obvious planning or policy basis." Such aspects may include "the number and location of fire stations, the amount of equipment to purchase, the size of fire departments, and other aspects involving the allocation of financial resources." "[OIn-the-scene firefighting tactical decisions" such as the decision whether to use a backfire may also be discretionary "because they entail resource allocation decisions or considered decisions of firefighting policy that are properly vested in the officials in charge. By contrast, we explained that other firefighting decisions that do not involve considerations of policy "are clearly operational." We suggested that such decisions likely include the decision to use lower water pressure, rendering a sprinkler system inoperable, the decision not to build a firewall, and the decision not to post lookouts to watch a burnout. The decisions specifically challenged by Regner were: (1) the number of fire trucks and firefighters allocated to fight the fire; (2) using one fire department to "cover" another fire department; (8) the decision to enter the mobile home and apply water inside before addressing the fire outside; (4) the refusal to apply water to the well house in direct disregard of Regner's demands; (5) the refusal to allow Regner to combat the fire himself; and (6) the decision to let the fire "turn into a blaze . until the flames melted the metal siding of the mobile home and entered the structure." The superior court concluded that "the decision of how many fire departments would respond to the fire was a policy decision entitled to discretionary function immunity," as was "the policy of using one fire department to 'cover' while another department fights a fire." As explained above, Regner does not contest these two rulings on appeal, but the superior court did not address the other decisions Regner challenged, and we are unable to conclude that the court implicitly found that the remaining decisions were immune planning decisions. Because the superior court did not address all of the challenged fire department decisions, we remand so that it can do so. v. CONCLUSION For the foregoing reasons we REVERSE the superior court's grant of summary judgment on Regner's negligence claims and REMAND for further proceedings consistent with this opinion. . We refer to the appellee fire departments and fire department employees collectively as the "defendants" to avoid confusion when discussing the separate actions of individual fire department employees, individual fire departments, and the fire departments collectively. . There is no legal entity known as the "North Pole Fire Department"; rather, the City of North Pole operates a fire department as part of its city operations. The superior court rejected North Pole's argument for summary judgment on the basis that it was incorrectly named, finding that the wording was "close enough" to provide "ample notice" of potential liability. North Pole does not challenge this finding on appeal. For purposes of consistency this opinion refers to the "North Pole Fire Department" to describe the actions taken by the fire department. . AS 09.65.070(c) provides: An action may not be maintained against an employee or member of a fire department operated and maintained by a municipality or village if the claim is an action for tort or breach of a contractual duty and is based upon the act or omission of the employee or member of the fire department in the execution of a function for which the department is established. . AS 09.65.070(d)(2) provides: An action for damages may not be brought against a municipality or any of its agents, officers, or employees if the claim . is based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty by a municipality or its agents, officers, or employees, whether or not the discretion involved is abused. . Russell ex rel. J.N. v. Virg-In, 258 P.3d 795, 801 (Alaska 2011) (citing Schug v. Moore, 233 P.3d 1114, 1116 (Alaska 2010). . Smith v. State, 282 P.3d 300, 303 (Alaska 2012) (quoting Cragle v. Gray, 206 P.3d 446, 449 (Alaska 2009)) (internal quotation marks omitted). . BR. v. State, Dep't of Corr., 144 P.3d 431, 433 (Alaska 2006) (quoting Barry v. Univ. of Alaska, 85 P.3d 1022, 1025-26 (Alaska 2004)). . See Kelly v. Municipality of Anchorage, 270 P.3d 801, 803 (Alaska 2012) ('In order to succeed on a negligence claim, a plaintiff must prove duty, breach of duty, causation, and harm." (citing Lyons v. Midnight Sun Transp. Servs., Inc., 928 P.2d 1202, 1204 (Alaska 1996))). . Greywolf v. Carroll, 151 P.3d 1234, 1241 (Alaska 2007) (citations omitted). . See B.R., 144 P.3d at 433 ("[UJnless the moving party points to undisputed facts or admissible evidence establishing a prima facie case entitling it to summary judgment as a matter of law, the opposing party has no obligation to produce evidence supporting its own position." (citation omitted)). . CL id. at 437 n. 31 (discussing superior court's obligation to independently examine the record before concluding that movant is entitled to complete summary judgment). . See, eg., Pauley v. Anchorage Sch. Dist., 31 P.3d 1284, 1285 (Alaska 2001) (defining discretionary actions as "those that require personal deliberation, decision and judgment" (citations and internal quotation marks omitted)); City of Seward v. Afognak Logging, 31 P.3d 780, 786 (Alaska 2001) (citing Adams v. City of Tenakee Springs, 963 P.2d 1047, 1050 & n. 3 (Alaska 1998)); State, Dep't of Transp. & Pub. Facilities v. Sanders, 944 P.2d 453, 456 (Alaska 1997) (noting that we identify those actions entitled to immunity "by examining whether the act or function can be described as 'planning' or 'operational'" (quoting State v. Abbott, 498 P.2d 712, 720-22 (Alaska 1972))). . Kiokun v. State, Dept. of Pub. Safety, 74 P.3d 209, 215 (Alaska 2003) (citing Sanders, 944 P.2d at 456); see Afognak Logging, 31 P.3d at 786 ("Discretionary function immunity precludes liability for harm caused by the type of planning decisions that involve policy formulation. In contrast, operational decisions-those made while executing or implementing existing policies-are not immune." (internal citations omitted)). . Angnabooguk v. State, 26 P.3d 447, 456 (Alaska 2001) (emphasis added). . Sanders, 944 P.2d at 456 (quoting Johnson v. State, 636 P.2d 47, 64 (Alaska 1981)). . 26 P.3d at 454-59. . Id. at 456. . - Id. at 458 (quoting Harry Stoller & Co., Inc. v. City of Lowell, 412 Mass. 139, 587 N.E.2d 780, 785 (1992)) (internal quotation marks omitted). . - Id. at 458-59 (citations omitted); see Adams v. City of Tenakee Springs, 963 P.2d 1047, 1051 (Alaska 1998) (holding that city's decision whether to allocate funds to hire firefighters was an immune planning decision). . Angnabooguk, 26 P.3d at 459 (citation omitted). . Id. , Id. (citing Harry Stoller & Co., Inc., 587 N.E.2d at 784). . Id.

6955422

Glen ALSWORTH, Sr. and Lorene "Sue" Anelon, Petitioners, v. Victor SEYBERT, John Holman, Kimberly Williams, George G. Jacko, and Rick Delkittie, Sr., Respondents

Alsworth v. Seybert

2014-04-25

No. S-14978

47

58

323 P.3d 47

323

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:19:49.086852+00:00

CAP

Before: WINFREE, STOWERS, and BOLGER, Justices, and MATTHEWS and EASTAUGH, Senior Justices.

Glen ALSWORTH, Sr. and Lorene "Sue" Anelon, Petitioners, v. Victor SEYBERT, John Holman, Kimberly Williams, George G. Jacko, and Rick Delkittie, Sr., Respondents.

Glen ALSWORTH, Sr. and Lorene "Sue" Anelon, Petitioners, v. Victor SEYBERT, John Holman, Kimberly Williams, George G. Jacko, and Rick Delkittie, Sr., Respondents. No. S-14978. Supreme Court of Alaska. April 25, 2014. Rebecca J. Hozubin and Michael A. Mob-erly, Law Office of Hozubin & Moberly, Anchorage, for Petitioners. Timothy A. McKeever and Seott Kendall, Holmes Weddle & Bareott, P.C., Anchorage, for Respondents. Before: WINFREE, STOWERS, and BOLGER, Justices, and MATTHEWS and EASTAUGH, Senior Justices. Sitting by assignment made under article IV, section 11 of the Alaska Constitution and Alaska Administrative Rule 23(a).

6121

39025

OPINION WINFREE, Justice. I. INTRODUCTION A group of citizens sued two borough assembly members, alleging various violations of borough and state conflict of interest laws and the common law conflict of interest doe-trine. After the borough took official action facilitating the assembly members' defense, the citizens moved to enjoin the assembly members from using their official positions to defend the lawsuit or pursue personal financial gain. The superior court granted a preliminary injunction under the balance of hardships standard, concluding that the citizens faced the possibility of irreparable harm if the injunction were not granted and that the assembly members were adequately protected by the injunction. The injunction barred the assembly members from taking various actions in their official capacities, including speaking about a local mining project. The assembly members filed a petition for review, which we granted. They argue, inter alia, that the superior court applied the wrong preliminary injunction standard and that the injunction violates their free speech rights. We agree. The court should have applied the probable success on the merits standard because the injunction does not adequately protect the assembly members, and the injunction imposes an unconstitutional prior restraint on speech. Shortly after oral argument, we vacated the portion of the preliminary injunction barring the assembly members from taking certain official acts or speaking about the mining project. We now vacate the injunction in full. II. FACTS AND PROCEEDINGS A. Facts Petitioner Glen Alsworth, Sr. is the Lake and Peninsula Borough (Borough) Mayor and, as such, is a voting member of the Borough Assembly. Alsworth owns and operates Lake Clark Air, an air taxi business serving the Bristol Bay region. Lake Clark Air has received considerable business from the Borough, the Borough's School District (School District), and Pebble Limited Partnership; the latter two entities are Lake Clark Air's largest revenue sources. Als-worth also owns and operates The Farm Lodge, which has received income from the School District and Pebble Limited Partnership. Petitioner Lorene "Sue" Anelon was, during all times relevant to the complaint in this case, a voting member of the Borough Assembly. Anelon lost her reelection bid in November 2012 and no longer is on the Assembly. Anelon has been employed by Iliamna Development Corporation since at least 2006. Tliamna Development Corporation's primary client is Pebble Limited Partnership. The Respondents are registered voters in the Borough. Respondent Victor Seybert is also a voting member of the Borough Assembly. We refer to the Respondents collectively as "Seybert." The Borough Assembly approves the Borough's and the School District's annual budgets. The Assembly, during Alsworth's and Anelon's tenures, enacted resolutions supporting Pebble Mine's development and subleasing Borough property to Northern Dynasty Mines, the parent company of Pebble Limited Partnership. On at least one occasion, Alsworth gave a speech, ostensibly in his official capacity as Mayor, advocating for Pebble Mine. B. Proceedings Seybert filed the present lawsuit against Alsworth and Anelon in May 2012. In an unverified complaint, to which several hundred pages of unauthenticated documents were attached, Seybert alleged Alsworth and Anelon: (1) violated AS 39.50.090, Lake and Peninsula Borough (L & PB) Code § 220.0904, L & PB Charter § 15.01, and the common law conflict of interest doctrine. by participating in Assembly decisions from which they benefit directly and using their official positions to promote Pebble Mine; and (2) violated AS 89.50.020 and .030 by failing to properly report gifts and income. Seybert sought various forms of injunctive and legal relief The Borough's attorney entered an appearance and filed an answer for Alsworth and Anelon in early June. Sometime after the lawsuit was filed, an unsigned "open letter" on official Borough letterhead was mailed to Borough residents refuting the claims against Alsworth and Anelon. The Borough Assembly did not authorize the letter. Shortly thereafter, the Borough Assembly announced it would hold a June 12 vote on Resolution 12-09 to undertake Alsworth and Anelon's legal defense. The Resolution set forth the Borough's rationale in providing the defense: (1) "the Borough [did] not believe that the allegations set out in the Complaint [were] true"; (2) the Alaska Municipal League Joint Insurance Association (AMLJIA) had denied Alsworth and Anelon coverage for the lawsuit; and (8) the financial burden "cases of this kind" impose on assembly members "is so onerous and burdensome that it is highly likely that the prospect of having to defend themselves against these kinds of claims will deter qualified, competent persons [from] serving as Borough Assembly members." On June 11 Seybert filed a motion for a temporary restraining order and preliminary injunction, requesting expedited consideration of the motion in advance of the Assembly vote on the Resolution. The motion recited the complaint's allegations and cited the open letter, use of the Borough attorney, and the upcoming Assembly vote on Resolution 12-09 as evidence that Alsworth and Anelon were using Borough resources for personal gain. Seybert asked the court to enjoin Als-worth and Anelon from: (1) authorizing, approving, accepting, or using any Borough resources to defend against the current lawsuit or to investigate, attack, or question the allegations or plaintiffs in the lawsuit; (2) speaking in favor of Pebble Mine while acting in an official capacity, or taking any official action against those who oppose Pebble Mine; (8) voting or failing to declare a conflict of interest when any matters come before the Borough Assembly related to the lawsuit; and (4) voting, taking official action, or failing to declare a conflict of interest on matters in which Alsworth or Anelon has a significant financial interest. The superior court did not rule on the motion before the Assembly voted to approve Resolution 12-09 on June 12. Seybert filed a supplemental memorandum on June 183 expressing concern that the "invalid" Resolution would facilitate Alsworth and Anelon's misuse of Borough resources. Alsworth and Anelon, proceeding with new counsel retained by the Borough, opposed the temporary restraining order and preliminary injunction on June 20. They argued: (1) the claim was not properly before the court because the Borough had not been joined under Alaska Civil Rule 19(a); (2) Seybert had not complied with Rule 65's requirement that an applicant file a verified complaint or affidavit proving specific facts in support of a motion for a temporary restraining order or preliminary injunction; (8) Seybert was not likely to succeed on the merits; (4) Seybert had not demonstrated irreparable injury; (5) Seybert unjustifiedly delayed seeking injunctive relief; and (6) the balance of equities and public interest favored abstention. AMLJIA shortly thereafter agreed to fund Alsworth and Anelon's defense, despite continuing to contend that "there [was] no coverage with respect to any of the claims asserted." Alsworth and Anelon asked Seybert to dismiss his motion for a temporary restraining order and preliminary injunction because the Borough no longer would be funding their defense, but Seybert refused. The superior court held a hearing on Seybert's motion on August 20. During arguments, Sey-bert's counsel announced that Respondent Rick Delkittie, Sr. recently had received an email supporting Alsworth that had been sent from one of Anelon's relatives to an anonymous email list. Alsworth and Ane-lon's counsel did not address the email claim. Following the hearing, the superior court issued a written order granting the motion for a preliminary injunction. The court explained that, although Seybert's motion "lacks a 'verified complaint" or affidavit proving specific facts," Rule 65 requires such evidence only for temporary restraining orders, and the court could consider "hundreds of pages of exhibits that were filed with the Complaint" in granting a preliminary injunetion. The court specifically found Alsworth had a significant financial interest in the Borough's and School District's transportation budgets, and that Alsworth and Anelon had significant financial interests in advance-ing Pebble Mine's development. The court also found that Resolution 12-09 "was not lawfully enacted" and that, although the court could not bind the Borough, "it has the authority to enjoin both defendants from accepting Borough funds." It concluded that "[alny promise or transmittal of Borough funds made for the purpose of convincing [AMLJIA] to reverse its coverage decision regarding this proceeding . is invalid and unlawful," and Borough funds could not be transmitted to AMLJIA for the purpose of securing AMLJIA's coverage of Alsworth and Anelon. The superior court then applied the balance of hardships standard in granting the injunction. The court identified five irreparable harms Seybert would face absent an injunction: (1) use of Borough money to fund Alsworth and Anelon's defense under Resolution 12-09; (2) risk that AMLJIA's coverage would not preclude expenditure of Borough funds under Resolution 12-09; (8) unauthorized use of the Borough's letterhead to defend the lawsuit and attack the plaintiffs; (4) unauthorized use of the Borough's address and email lists to defend the lawsuit and attack the plaintiffs; and (5) Alsworth's and Anelon's potential failures to fully and timely disclose their incomes in their financial disclosures. The court also found Alsworth and Anelon would be adequately protected because the injunction would only require them "to comply with the law." It thus concluded that the balance of hardships "weigh[ed] heavily in favor of granting plaintiffs' requested preliminary injunction." The preliminary injunction imposed ten orders: 1. Based on the above Findings of Fact and Conclusions of Law, the plaintiffs' Motion for a Preliminary Injunction is granted, and defendants' [sic] Glen Alsworth Sr. and Lorene "Sue" Anelon are ordered to immediately cease and desist from any and all uses of their official positions in the Lake and Peninsula Borough for personal or financial gain. More specifically, they are enjoined from taking the actions that are set out below. 2. They may not authorize, approve, accept or use any Borough funds or resources to defend against this lawsuit, including (a) the time and efforts of the Lake and Peninsula Borough Attorney, (b) Lake and Peninsula Borough staff, property, equipment, website, letterhead or any other resources, (c) Lake and Peninsula Borough mailing and emailing lists, and (d) any method of mailing, emailing, distribution or publication paid for in whole or in part by the Lake and Peninsula Borough; 3. They may not authorize, approve, accept, or use any Borough funds or resources purportedly appropriated to defend this lawsuit through Borough Resolution #12-09, which this court finds was not lawfully enacted. 4. The defendants may not authorize, approve, accept or use any Borough funds transmitted by the Borough through [AMLJIA] for the specific purpose of securing that entity's agreement to reverse its coverage decision regarding their defense in this proceeding. They can accept AMLJIA funds for their legal fees that do not otherwise fall into that category. 5. They may not use any Borough facilities, property or other resources or staff to investigate, attack or question the allegations in this lawsuit or plaintiffs in this lawsuit. 6. While acting in any official capacity as the Borough Mayor and/or being a member of the Borough Assembly, they may not speak in favor of (or against) or endorse the Pebble Mine Project or any entities with an interest in the success of the Pebble Mine Project or take any official action against those who oppose the Pebble Mine Project and/or related entities. 7. They shall not fail to declare a conflict of interest and/or take official actions when any matters come before the Borough Assembly related to this lawsuit. 8. The defendants shall not fail to declare a conflict of interest and/or take official action on matters in which they have a significant financial interest, including, with regard to Glen Alsworth Sr., the transportation budget of the Lake and Peninsula School District and the transportation budget of the Lake and Peninsula Borough, and for both Mr. Alsworth and Ms. Anelon, any votes relating, directly or indirectly, to the Pebble Mine Project. 9. They may not vote on any matters before the Borough Assembly in which defendants have a significant financial interest, including, with regard to Mr. Als-worth, the transportation budget of the Lake and Peninsula School Board and the transportation budget of the Lake and Peninsula Borough, and for both Mr. Als-worth and Ms. Anelon, any votes relating, directly or indirectly, to the Pebble Mine Project. 10. They shall not fail to file timely, complete and accurate Public Official Financial Disclosures as required by law. (Emphasis in original.) Alsworth and Anelon moved for reconsideration, which the superior court denied. Alsworth and Anelon then petitioned this court for review, arguing: (1) the injunction impermissibly restricts their freedom of speech and infringes on their legislative immunity; (2) the superior court erred in applying the balance of hardships preliminary injunction standard because there is no threat of irreparable harm and Alsworth and Anelon are not adequately protected under the injunction; and (8) the superior court erred by finding that the Borough is not an indispensable party. We granted the petition. III. STANDARD OF REVIEW Although we "review the issuance of preliminary injunctions for abuse of discretion," "we review de novo the superior court's legal determinations in issuing the preliminary injunction." We apply our independent judgment to constitutional law issues, and consider precedent, reason, and policy." IV. DISCUSSION A. The Superior Court Erred In Its Preliminary Injunction Standard. A plaintiff may obtain a preliminary injunction by meeting either the balance of hardships or the probable success on the merits standard . The balance of hardships standard requires balancing the harm the plaintiff will suffer without the injunction against the harm the injunction will impose on the defendant. A preliminary injunction is warranted under that standard when three factors are present: "(1) the plaintiff must be faced with irreparable harm; (2) the opposing party must be adequately protected; and (8) the plaintiff must raise serious and substantial questions going to the merits of the case; that is, the issues raised cannot be frivolous or obviously without merit." Our rationale in adopting the balance of hardships rule in A.J. Industries demonstrates that a court is to assume the plaintiff ultimately will prevail when assessing the irreparable harm to the plaintiff absent an injunetion, and to assume the defendant ultimately will prevail when assessing the harm to the defendant from the injunction: "Where the questions presented by an application for an interlocutory injunction are grave, and the injury to the moving party will be certain and irreparable, if the application be demied and the final decree be in his fovor, while if the injunction be granted the injury to the opposing party, even if the final decree be in his favor, will be inconsiderable, or may be adequately indemnified by a bond, the injunction usually will be granted." [ ] Accordingly, the balance of hardships standard applies only where the injury which will result from the temporary restraining order or the preliminary injunction can be indemnified by a bond or where it is relatively slight in comparison to the injury which the person seeking the injunction will suffer if the injunction is not granted. Where the injury which will result from the temporary restraining order or the preliminary injunction is not inconsiderable and may not be adequately indemnified by a bond, a showing of probable success on the merits is required.... [ ] The superior court concluded in this case that the balance of hardships militated in favor of granting the preliminary injunction. The court identified five forms of irreparable harm Seybert would suffer if the injunction did not issue. Alsworth and Anelon argue the superior court's irreparable harm finding was in error, but we do not need to address this issue because we decide this case on the "adequately protected" prong. The superior court summarily concluded the injunction would not cause unnecessary harm to Alsworth or Anelon: "The defendants are adequately protected because plaintiffs are essentially asking only that defendants be required to comply with the law. The court does not see how any harm could occur from ordering them to comply with laws that already govern them." Alsworth and Anelon assert three harms from the injunction: (1) the injunction reduces the number of members available to conduct Borough business because Alsworth and Anelon are prohibited from taking official actions on matters related to Pebble Mine, the Borough budget, and the School District budget; (2) the injunction interferes with Alsworth's and Anelon's abilities to perform their functions as elected officials to the detriment of voters' expectations; and (8) the injunction hinders free debate within the Borough by limiting the subjects on which Alsworth and Anelon may speak. Seybert counters that the preliminary injunction does not interfere with official duties or free debate because state and Borough laws already prohibit the enjoined actions. The superior court erred by considering the injunetion's harms to Alsworth and Ane-lon under the assumption that the enjoined actions will ultimately be found to be illegal. We addressed an analogous situation in State v. Kluti Kaah Native Village of Copper Center, where the plaintiff sought an injunction ordering the State to comply with the law and refrain from enforcing "an illegal regulation." We held the superior court erred in its "adequately protected" analysis because it failed to consider the injunction's interference with the State's "role as protector of the resource" and with the interests of other subsistence users, notwithstanding the alleged illegality of the State's actions. The proper inquiry under the balance of hardships standard is not whether the injunction merely orders a defendant to comply with the law, but whether, assuming the defendant will ultimately prevail, "the injury which will result from the . injunction can be indemnified by a bond or . is relatively slight in comparison to the injury which the person seeking the injunction will suffer if the injunction is not granted. Enjoining the listed actions-speaking about Pebble Mine, conducting official Borough business, accepting Borough money for legal defense-imposes serious harm on Als-worth and Anelon. Alsworth's and Ane-lon's injuries are not "relatively slight in comparison" to Seybert's alleged injury in the absence of the injunction, nor can they be indemnified by a bond. Our statement in an earlier case rings true here: "issuance of this injunction is a zero-sum event, where one party will invariably see unmitigated harm to its interests." The superior court should have applied the probable success on the merits test, not the balance of hardships test. Because the superior court applied the wrong standard, we vacate the preliminary injunction in full. B. Paragraph Six Of The Preliminary Injunction Is A Prior Restraint On Speech In Violation Of Article I, Section 5 Of The Alaska Constitution. Even though we vacate the injunetion in full, we explain our earlier order vacating the portion of the preliminary injunction barring certain official action and speech by additionally holding that the in-junetion's restriction on Alsworth's and Ane-lon's speech on Pebble Mine is an impermissible prior restraint on speech. Paragraph Six of the preliminary injunction prohibits Alsworth and Anelon from "speak[ing] in favor of (or against) or endors[ing] the Pebble Mine Project or any entities with an interest in the success of the Pebble Mine Project or tak[ing] any official action against those who oppose the Pebble Mine Project and/or related entities." Alsworth and Anelon argue these prohibitions violate their rights to freedom of speech under article I, section 5 of the Alaska Constitution. Seybert counters that: (1) elected officials have no protected right to expression in their official capacities; (2) Alsworth's and Anelon's speech about Pebble Mine does not qualify as protected speech; (8) the injunction is a valid restriction on speech because it is merely enforcing laws that pass intermediate serutiny; and (4) Alsworth waived his speech rights by participating in the enactment of Borough laws restricting the speech at issue. 1. Paragraph Six imposes an impermissible prior restraint on speech. The First Amendment broadly protects the "freedom of expression upon public questions." "[The Alaska Constitution protects free speech at least as broad[ly] as the U.S. Constitution and in a more explicit and direct manner." Preliminary injunctions against speech are prior restraints, and "[alny system of prior restraints of expression bear[s] a heavy presumption against its constitutional validity." This is true even when the speech is alleged to violate an otherwise constitutional law. - Preliminary injunctions are almost always held to be unconstitutional burdens on speech because they involve restraints on speech before the speech has been fully adjudged to not be constitutionally protected. A preliminary injunction barring speech may be permissible only if the trial court has fully adjudicated and determined that the affected speech is not constitutionally protected. Nothing in the record indicates that the superior court evaluated, much less conclusively determined, whether Alsworth's or Anelon's speech concerning Pebble Mine is unprotected under the Alaska Constitution. Paragraph Six thus imposes an unconstitutional prior restraint on Alsworth's and Ane-lon's speech in violation of their rights under article I, section 5 of the Alaska Constitution and must be vacated. 2. Alsworth's and - Anelon's official speech is not unprotected simply because they are elected officials. Seybert argues Alsworth's and Anelon's speech about Pebble Mine is not protected because "[the protected speech rights of elected public officials and public employees under the First Amendment and the Alaska Constitution are limited to speech on matters of legitimate public concern"; and "any speech by Alsworth in his official capacity regarding the Pebble Project is speech on a topic of personal interest," not public concern. Seybert's argument is based on a line of cases holding public employees do not enjoy broad First Amendment protection against employer discipline when they speak on matters of private concern during the performance of their official duties. Sey-bert urges this court to extend the rule to elected officials' speech. While a few trial courts have extended the principle to limit elected officials' speech rights, neither the U.S. Supreme Court nor this court has done so, and other courts have expressly declined the invitation. - Limiting elected officials speech protections runs counter to the jurisprudence of the U.S. Supreme Court and this court. The U.S. Supreme Court held in Bond v. Floyd that legislators' First Amendment rights are as broad as those of private citizens. This court held similarly in Tho-ma v. Hickel, concluding that the governor enjoys the same speech rights under the U.S. and Alaska constitutions as do his critics in the citizenry. Alsworth and Anelon enjoy no less speech protection as elected officials than do private citizens under article I, seetion 5 of the Alaska Constitution. Because Alsworth's and Anelon's positions as elected officials do not render their speech regarding Pebble Mine unprotected, the preliminary in-junetion amounts to a prior restraint on speech not yet adjudged to be unprotected. v. CONCLUSION Based on the foregoing, we REVERSE the superior court's preliminary injunction. FABE, Chief Justice, and MAASSEN, Justice, not participating. . We base our fact recitation on the superior court's factual findings, in turn based primarily on unauthenticated documents attached to Respondents' unverified superior court complaint. Because no one contests these facts on appeal, we assume them to be accurate. . We refer to Pebble Limited Partnership's current mineral exploration in the Borough as Pebble Mine. . AS 39.50.090(a) provides in relevant part: A public official may not use the official position or office for the primary purpose of obtaining personal financial gain or financial gain for a spouse, dependent child, mother, father, or business with which the official is associated or in which the official owns stock. AS 39.50.100(a) provides a private right of action to enforce the conflict of interest statute: "A qualified Alaska voter may bring a civil action to enforce any of the sections of this chapter." . L & PB Code § 2.20.090 provides, in relevant part: A member of the assembly shall declare a substantial financial interest he or she has in an official action and ask to be excused from a vote on the matter. The presiding officer shall rule on the request for abstention (excusal). The decision of the presiding officer on the request may be overridden by the majority vote of the assembly. . L & PB Charter § 15.01(A) provides, in relevant part: "Prohibition. No elected official may vote on any question on which he has a substantial financial interest." . See Carney v. State Bd. of Fisheries, 785 P.2d 544, 547-49 (Alaska 1990) (applying common law conflict of interest doctrine from Marsh v. Town of Hanover, 113 NH. 667, 313 A.2d 411, 414 (1973). Unlike AS 39.50.090, which focuses on a public official's intent, a common law con flict of interest exists "where a potential exists for a public officer to influence the outcome of a matter in which he has a direct personal and pecuniary interest," regardless of the official's intent. Marsh, 313 A.2d at 414; accord Carney, 785 P.2d at 548. . AS 39.50.020(a) provides, in relevant part: "A public official . shall file a statement giving income sources and business interests, under oath and on penalty of perjury...." AS 39.50.030 specifies the statement's required contents. . Seybert, Alsworth, and Anelon recused themselves from voting on Resolution 12-09, leaving only four of the seven Assembly members to vote on the Resolution. Three members voted in favor of the Resolution and one member voted against it. Seybert alleged the Resolution was invalid because state and Borough laws provide that actions of a governing body may be adopted only by "a majority of the total membership of the body"; a majority of the seven-member Assembly requires at least four affirmative votes, and the Resolution garnered only three. AS 29.20.160(d); L & PB Charter § 2.08(B); L & PB Code § 2.08.010(E). . Rule 65(b) allows a court to grant a temporary restraining order without notice to the adverse party "only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition," and (2) the applicant explains why notice should not be required. Rule 65(a) governs preliminary injunctions and makes no reference to affidavits or verified complaints. Our evidentiary standard at the preliminary injunction stage remains an open question, and we decline to determine that standard in this case. See, e.g., Acevedo v. Burley, 994 P.2d 389, 393-94 (Alaska 1999) (Eastaugh, J. dissenting) (asserting motion lacking "any affidavit or equivalent document (verified motion or memorandum)" was insufficient to "establish any facts that would have entitled [plaintiff] to an injunction"); State v. Kluti Kaah Native Vill. of Copper Ctr., 831 P.2d 1270, 1273 (Alaska 1992) (noting "single affidavit containing the obviously self-interested statements of a single [plaintiff] . cannot establish with any genuine certainty" that plaintiffs would suffer irreparable harm). But see Univ. of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 LEd.2d 175 (1981) (''The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held. Given this limited purpose, and given the haste that is often necessary if those positions are to be preserved, a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits."); Michael J. Lichtenstein, Settling the Law in the Circuits: Presenting Hearsay Evidence in a Preliminary Injunction Hearing, 29 Am. J. Triar Apvoc 415 (2005) (explaining several circuits allow use of inadmissible hearsay evidence to support preliminary injunction motions). . See State, Div. of Elections v. Metcalfe, 110 P.3d 976, 978 (Alaska 2005) (explaining balance of hardships standard is applied only when plaintiff faces danger of irreparable harm, opposing party is adequately protected, and plaintiff raises serious and substantial questions going to the merits of the case). . City of Kenai v. Friends of Recreation Ctr., Inc., 129 P.3d 452, 455 (Alaska 2006) (citing Metcalfe, 110 P.3d at 978). Under the abuse of discretion standard, " 'an injunction will not be disturbed unless contrary to some rule of equity, or the result of improvident exercise of judicial discretion.'" Kluti Kaah, 831 P.2d at 1272 n. 4 (quoting Alaska Pub. Utils. Comm'n v. Greater Anchorage Area Borough, 534 P.2d 549, 557 (Alaska 1975) (quoting Prendergast v. N.Y. Tel. Co., 262 U.S. 43, 50-51, 43 S.Ct. 466, 67 L.Ed. 853 (1923))); cf. Friends of Recreation Ctr., 129 P.3d at 455 ("We will find an abuse of discretion only when we are left with a definite and firm conviction, after reviewing the whole record, that the trial court erred in its ruling." (quoting DeSalvo v. Bryant, 42 P.3d 525, 528 (Alaska 2002)) (internal quotation marks omitted)). . Friends of Recreation Ctr., 129 P.3d at 455 (citing People ex rel. Gallo v. Acuna, 14 Cal.4th 1090, 60 Cal.Rptr.2d 277, 929 P.2d 596, 626 (1997)). . Bridges v. Banner Health, 201 P.3d 484, 489 (Alaska 2008) (citing Alaska Pub. Interest Research Grp. v. State, 167 P.3d 27, 34 (Alaska 2007); Alaska Legislative Council v. Knowles, 21 P.3d 367, 370 (Alaska 2001)). . A.J. Indus., Inc. v. Alaska Pub. Serv. Comm'n, 470 P.2d 537, 540 (Alaska 1970), modified in other respects, 483 P.2d 198 (Alaska 1971). We adopted the balance of hardships standard as an alternative to the rule "requiring a clear showing of probable success'" on the merits. Id. . Id. . Kluti Kaah, 831 P.2d at 1273 (quoting Messerli v. Dep't of Natural Res., 768 P.2d 1112, 1122 (Alaska 1989)) (internal quotation marks omitted). . 470 P.2d at 540 (emphasis added) (quoting Ohio Oil Co. v. Conway, 279 U.S. 813, 815, 49 S.Ct. 256, 73 L.Ed. 972 (1929). . State v. United Cook Inlet Drift Ass'n, 815 P.2d 378, 378-79 (Alaska 1991) (citations omitted) (citing A.J. Indus., 470 P.2d at 540; Alaska Pub. Utils. Comm'n v. Greater Anchorage Area Borough, 534 P.2d 549, 554 (Alaska 1975)). . - The superior court did not expressly conclude Seybert had raised "serious and substantial questions going to the merits of the case"-the third prong of the balance of hardships standard-but we infer the superior court so concluded because the issues Seybert had raised are not "frivolous or obviously without merit." See Kluti Kaah, 831 P.2d at 1273 (quoting Messerli, 768 P.2d at 1122) (internal quotation marks omitted). . Cf. A.J. Indus., 470 P.2d at 540 (quoting Ohio Oil Co., 279 U.S. at 815, 49 S.Ct. 256) (noting "adequately protected" inquiry should presume defendant will ultimately prevail). . 831 P.2d at 1271. . Id. at 1273. . United Cook Inlet Drift Ass'n, 815 P.2d at 378-79 (citing A.J. Indus., 470 P.2d at 540; Alaska Pub. Utils. Comm'n, 534 P.2d at 554). . We consider the injunction's impact on Ane- ' lon as it would have applied at the time the superior court issued its order, although the injunction may no longer have any practical impact on Anelon due to her reelection defeat. We do not need to decide the relevance of the injunction's current impact on Anelon because we vacate the injunction in full. . United Cook Inlet Drift Ass'n, 815 P.2d at 379. . State, Div. of Elections v. Metcalfe, 110 P.3d 976, 979 (Alaska 2005). . See id. . We do not consider whether the superior court could have granted this injunction under the probable success on the merits standard. See State v. Kluti Kaah Native Vill. of Copper Ctr., 831 P.2d 1270, 1275 (Alaska 1992) (concluding vaca-tur is appropriate remedy when superior court applies incorrect preliminary injunction standard). . N.Y. Times Co. v. Sullivan, 376 U.S. 254, 269, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). . Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d 183, 198 (Alaska 2007) (alteration in original) (footnotes omitted) (quoting Vogler v. Miller, 651 P.2d 1, 3 (Alaska 1982); Messerli v. State, 626 P.2d 81, 83 (Alaska 1980)) (internal quotation marks omitted). . See, eg., Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 66-68, 109 S.Ct. 916, 103 L.Ed.2d 34 (1989); Vance v. Universal Amusement Co., 445 U.S. 308, 316, 100 S.Ct. 1156, 63 L.Ed.2d 413 (1980) (per curiam); Org. for a Better Austin v. Keefe, 402 U.S. 415, 419-20, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971); Auburn Police Union v. Carpenter, 8 F.3d 886, 903 (1st Cir.1993). . Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963); see also Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 390, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973) (''The special vice of a prior restraint is that communication will be suppressed, either directly or by inducing excessive caution in the speaker, before an adequate determination that it is unprotected by the First Amendment."); Kritz, 170 P.3d at 205 ("Both the federal and Alaska Constitutions look with disfavor on broad-based prior restraint rules...."). . Fort Wayne Books, 489 U.S. at 66, 109 S.Ct. 916 ("[Olur cases firmly hold that mere probable cause to believe a legal violation has transpired is not adequate to remove books or films from circulation [via preliminary judgment]."). . See, eg., id. at 66-68, 109 S.Ct. 916; Vance, 445 U.S. at 316, 100 S.Ct. 1156 (expressing concern that a defendant "would be required to obey such an order pending review of its merits and would be subject to contempt proceedings even if the [speech] is ultimately found to be [protected)"). See generally, Mark A. Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 DUKE LJ. 147, 169-180, 199-210 (1998). Permanent injunctions, on the other hand, may be valid restrictions on speech because "the order will not have gone into effect before [the court's] final determination that the actions of [the defendant are] unprotected." - Pittsburgh Press Co., 413 U.S. at 390, 93 S.Ct. 2553. . San Antonio Cmty. Hosp. v. S. Cal. Dist. Council of Carpenters, 125 F.3d 1230, 1239 (9th Cir.1997). But see id. at 1240 (Kozinski, J., dissenting) (noting the case "is the first ever (so far as I am aware) to uphold a preliminary injunction against speech covered by Sullivan"). . The U.S. Supreme Court has suggested that a preliminary injunction against speech might be permissible if special procedural safeguards are in place to ensure that no protected speech is enjoined, but the injunction in this case contains no safeguards whatsoever. Vance, 445 U.S. at 317, 100 S.Ct. 1156. . See, eg., Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006); Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cnty., Ill., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Wickwire v. State, 725 P.2d 695, 700-03 (Alaska 1986); State v. Haley, 687 P.2d 305, 311-14 (Alaska 1984). . See, e.g., Hartman v. Register, No. 1:06-CV-33, 2007 WL 915193, at *6 (S.D.Ohio Mar. 26, 2007) Hogan v. Twp. of Haddon, No. 04-2036(JBS), 2006 WL 3490353, at *6 (D.N.J. Dec. 1, 2006). . See Siefert v. Alexander, 608 F.3d 974, 991 (7th Cir.2010) (Rovner, J., dissenting in part) ("Nether this court nor the Supreme Court, however, has ever held that these decisions limiting the speech of public employees can be applied to elected officials' speech, including the speech of elected judges."); Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d 183, 202-04 (Alaska 2007) (applying Pickering and Connick to public employee speech, but not to elected official speech); see also Rangra v. Brown, 566 F.3d 515, 522 (5th Cir.2009) ("The district court's premise that the First Amendment's protection of elected officials' speech is limited just as it is for the speech of public employees, however, is incor rect"), vacated as moot, 584 F.3d 206 (5th Cir.2009) (en banc). . 385 U.S. 116, L.Ed.2d 235 (1966). 136-37, 87 S.Ct. 339, 17 . 947 P.2d 816, 821, 824 (Alaska 1997). . Seybert offers no legal authority establishing that voting for speech-restricting laws waives one's speech rights; accordingly, his argument that Alsworth waived his speech right by helping to enact the Borough's conflict of interest laws fails. . We also note that enjoining the Borough May- or from speaking in an official capacity on a subject the Borough has officially endorsed-Pebble Mine-seems to lack any basis whatsoever. . Because we vacate the injunction based on the incorrect application of the preliminary injunction standard and on free speech grounds, we do not address Alsworth and Anelon's additional arguments that the injunction violates their legislative immunity and that the superior court erred by not joining the Borough as an indispensable party.

6955438

Raymond BOULDS, Appellant, v. Elena NIELSEN, Appellee

Boulds v. Nielsen

2014-04-25

No. S-14887

58

65

323 P.3d 58

323

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:19:49.086852+00:00

CAP

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

Raymond BOULDS, Appellant, v. Elena NIELSEN, Appellee.

Raymond BOULDS, Appellant, v. Elena NIELSEN, Appellee. No. S-14887. Supreme Court of Alaska. April 25, 2014. Kenneth J. Goldman, Law Office of Kenneth J. Goldman, P.C., Palmer, for Appellant. Marguerite Humm, Alaska Legal Services Corporation, Anchorage, for Appellee. Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.

3399

21027

OPINION WINFREE, Justice. I. INTRODUCTION Raymond Boulds and Elena Nielsen were unmarried cohabitants for 16 years and raised children together. When their relationship ended, they litigated child custody and property ownership. The superior court determined which tangible personal property was domestic partnership property and divided that property equally between the parties. The superior court also considered three employment benefits that Boulds accumulated during his relationship with Nielsen: an insurance death benefit, a 401(k) retirement account, and a union pension. The court determined that the insurance death benefit and the 401(k) retirement account were not domestic partnership assets and belonged to Boulds alone. But the court determined that the union pension was a domestic partnership asset and was subject to division. Because Boulds appealed to this court, the superior court has not yet issued an order dividing the union pension. Boulds argues that federal law prohibits dividing his union pension with a non-spouse, and that the superior court misapplied Alaska law by examining only Boulds's own initial intent to share the union pension with Nielsen for the benefit of their children. We conclude that federal law does not bar Nielsen from receiving a share of the union pension and that the superior court did not err in determining Nielsen was entitled to half of the union pension under Alaska law. We therefore affirm the superior court's decision and remand for the final division of the union pension. II. FACTS AND PROCEEDINGS Raymond Boulds and Elena Nielsen began cohabiting in 1998 and separated in 2009; they never married. Boulds and Nielsen have three children together. Boulds also raised Nielsen's son from a prior relationship as his own child. During their relationship, Boulds worked on the North Slope and Nielsen was a stay-at-home mother. Although Nielsen worked as a waitress when the parties met, she began receiving disability income in 1996. This money was spent on the household and children. Boulds claimed Nielsen as a dependent on his taxes for at least some of the years they were together. During the relationship Boulds accumulated three employment benefits through his employer: an insurance death benefit, a 401(k) retirement account, and a union pension governed by the federal Employee Retirement Income Security Act (ERISA) When Boulds was first hired by his employer, he listed Nielsen as his intended pre-retirement death beneficiary for the union pension, even though the form specified that only a spouse, child, parent, or sibling could be listed. Boulds's employer told him approximately one year later that he could not list a cohabitant. He then listed his children as the beneficiaries. After the relationship ended the parties engaged in a series of child custody and property division proceedings. Trial was held on several days from December 2010 to June 2012. The superior court entered findings of fact and conclusions of law on August 30, 2012, incorporating its July 28, 2011 oral property division. The court determined that the employment death benefit and 401(k) account were Boulds's separate property and that the union pension was partnership property. The court divided the domestic partnership assets equally, but has not yet issued an order dividing the union pension. III DISCUSSION Boulds argues that the superior court erred in determining that Nielsen was entitled to part of his union pension for two reasons: (1) ERISA prohibits division of a federal retirement account with a non-spouse; and (2) the court erred by determining that the parties intended the union pension to be a partnership asset. We con-elude neither argument has merit. A. ERISA ERISA prohibits assignments of pensions except pursuant to a qualified domestic rela-ERISA defines a tions order (QDRO) QDRO as a domestic relations order that "creates or recognizes the existence of an alternate payee's right to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan," and that fulfills several other requirements which are not disputed in this appeal. A domestic relations order "[rJelates to the provision of . marital property rights to a spouse, former spouse, child, or other dependent of a participant." "Alternate payee" as used in the definition of a QDRO is identical to the categories of recipients listed in the domestic relations order definition. Boulds argues that the superior court lacked authority to award any of the union pension to Nielsen because "it is illegal under ERISA," which Boulds argues preempts state law. We assume Boulds is contending that eohabitants cannot hold "marital property" and that Nielsen does not qualify under the enumerated domestic relations order recipient categories. Boulds is incorrect. The superior court did not err when it divided the union pension between cohabitants under Alaska law, and this outcome is not inconsistent with ERISA. The Court of Appeals for the Ninth Cireuit examined a similar situation in Owens v. Auto. Machinists Pension Trust, which concerned an unmarried couple who had cohabited for 30 years. A Washington state court determined that the woman should receive half of the man's monthly payments from an ERISA-covered pension acquired during the relationship. When the woman sought her portion, the pension fund administrator notified her that because the couple had not been married, the trial court's order was not enforceable under ERISA. The woman filed and prevailed on a declatory judgment action in federal district court, and the plan administrator appealed to the Ninth Cireuit. The Ninth Cireuit started its analysis by noting that ERISA only recognizes orders that relate to "marital property rights" and concern an "alternate payee," which is defined to include an "other dependent." The case therefore turned on the meaning of "marital property rights" and whether the woman was an "other dependent." The court reasoned that because federal law does not define "marital property rights," the court must apply Washington law to define the term. The court concluded that "Washington recognizes quasi-marital relationships for purposes of property division." It explained that Washington acknowledges that these quasi-marital relationships occur when the relationship is stable, cohabitative, and both parties know they are not lawfully married. Washington limits property division between cohabitants to what would have been possible "'had the parties been married" The Ninth Cireuit concluded that because Washington allows property to be distributed after a cohabitative relationship ends, the state provides "marital property rights" to cohabitants. Under Washington law, the pension was a "marital property right." Next, the court looked to the Internal Revenue Service's definition of an "other dependent" to determine whether the woman was an "other dependent" under ERISA. The Internal Revenue Code defines "other depen-dant" to include "(aln individual (other than . the spouse . of the taxpayer) who, for the taxable year of the taxpayer, has the same principal place of abode as the taxpayer and is a member of the taxpayer's household." The Ninth Cireuit held that the woman was an "other dependent" as defined by the IRS, and therefore an "alternate payee" under ERISA. We adopt the Ninth Circuit's reasoning. First, we ask whether Alaska provides a "marital property right" to cohabitants. Alaska, like Washington, provides for marital-like property distribution following a cohabitative relationship. Whether Nielsen and Boulds's relationship satisfies the requirements necessary for their property to be "marital" for ERISA's purposes under Alaska law is addressed below. We then ask whether Nielsen falls into one of the qualifying classes of payees under ERISA. Boulds claimed Nielsen as a dependent on his taxes and they shared a residence; Nielsen therefore qualifies as an "other dependant" under LRC. § 152(d)(2)(H), one of the classes of alternate payees permitted under ERISA. Boulds's argument that an order dividing the union pension cannot meet the requirements of 29 U.S.C. § 1056(d)(8)(B) therefore fails. Federal law does not preclude distribution of part of the union pension to Nielsen, provided Nielsen is entitled to it under Alaska law. We now address this question. B. The Parties' Intent We made clear in Bishop v. Clark that the first step in dividing an unmarried couple's property is to examine the couple's intent. We quoted our adoption of the Oregon Supreme Court's standard that "'a division of property accumulated during a period of cohabitation must be begun by inquiring into the intent of the parties, and if an intent can be found, it should control that property distribution'" We summarized the types of evidence courts have reviewed when determining explicit and implicit intent: In determining the intent of cohabiting parties, courts consider, among other factors, whether the parties have (1) made joint financial arrangements such as joint savings or checking accounts, or jointly titled property; (2) filed joint tax returns; (8) held themselves out as husband and wife; (4) contributed to the payment of household expenses; (5) contributed to the improvement and maintenance of the disputed property; and (6) participated in a joint business venture. Whether they have raised children together or incurred joint debts is also important.[ ] In the present case, the superior court expressly applied Bishop to determine the parties' intent with respect to various assets and debts. The court held that the union pension was intended to be a partnership asset and thus subject to division between Boulds and Nielsen. Specifically, the court explained: Mr. Boulds did, at one point in time during the relationship, list Ms. Nielsen as his beneficiary for this policy. That . is significant evidence to this Court of his intent to hold that asset as a partnership asset. Now Mr. Boulds has testified that that was not his intent, that his intent was merely . to list Ms. Nielsen so that when she received the benefit, she could use it for the benefit of the children. And I heard that testimony, but it doesn't really change my analysis because that testimony tells me that he considered her to be a trusted partner in that he would trust her to use the benefit for the benefit of their children. And so that demonstrates to me that there was an intent for them to work together toward a mutual goal, a [meritorious] goal, the protection of their children, the financial protection of their children. And so I find that Ms. Nielsen has met her burden of proof to establish that the [union pension] is a partnership asset. Boulds contends that the superior court misapplied Bishop by considering only his intent, when case law requires that both parties' intent be examined. In Boulds's view the required intent is "akin to a 'meeting of the minds' in contract theory." Boulds makes much of the fact that Nielsen was uninvolved in the couple's financial decisions, Nielsen did not contribute directly to the union pension, and listing Nielsen as a beneficiary to the union pension "was a unilateral act which Nielsen only became aware [of] after it was done according to her testimony." We reject Boulds's assertion that evidence of Nielsen's intent or knowledge with respect to the particulars of the parties' financial situation is necessary to determining intent under Bishop. Our holding in Reed v. Parrish is instructive." There we explained that "the [Bishop] factors are not exclusive; they reflect the factual cireumstances of the case." Today we further clarify that the intent of the cohabiting parties as articulated in Bishop does not mean that each party's intent necessarily must be analyzed separately for every individual piece of property. In some cases, the parties' intent with respect to all or broad classes of property will be easy to infer based on evidence that "the parties formed a domestic partnership and intended to share in the fruits of their relationship as though married justifying an equal division of their property." We emphasize that simply living together is not sufficient to demonstrate intent to share property as though married, and, moreover, that parties who intend to share some property do not presumptively intend to share all property-even when the Bishop factors tilt heavily toward finding partnership property, other evidence may show that the parties had no such intent for particular pieces of property. But when the parties have demonstrated through their actions that they intend to share their property in a marriage-like relationship, a court does not need to find specific intent by each cohabitant as to each piece of property. The superior court's determination that the parties intended to share the union pension as if they were married, like they shared their other property, was not in error. There was testimony that the parties wore wedding and engagement rings at various times. The court heard undisputed testimony that Boulds supported Nielsen financially. Boulds claimed Nielsen as a dependent on his taxes for at least some of the years they were together. Boulds worked outside the home, while Nielsen worked inside the home raising their children. Boulds apparently took on much of the financial responsibility for the couple, while Nielsen saw to other matters. Boulds listed Nielsen as his intended pre-retirement death beneficiary until he was told she could not be listed. The superior court concluded that the couple had a common goal of using the pension fund to finance raising the children. Ample evidence "support[s] a finding that the parties were in a domestic partnership and intended to share property as though married." Boulds also implies that the superior court erred when it held that the parties intended to share the union pension without making specific findings supporting each of the Bishop factors. Such specific findings are not necessary. We will remand for additional fact-finding when "there are not sufficient findings to allow our review of . the parties' intent." But that is not the case here. The superior court made sufficient findings of intent for our review; it applied Bishop and concluded that the parties in tended to share the union pension. The superior court's analysis was correct. IV. CONCLUSION We AFFIRM the superior court's determination that Nielsen is entitled to half of Boulds's union pension and we REMAND for the superior court to determine payment. . 29 U.S.C. § 1001-1461 (2006). ERISA governs payment of federal pension plans to individuals other than the pension holder (termed "alternate payees"), id. § 1056(d)(3)(A), and defines a "qualified domestic relations order" as "creat[ing] or recogniz[ing] the existence of an alternate payee's right to . receive all or a portion of the benefits payable with respect to a participant under a plan," id. § 1056(d)(3)(B)G). An "alternate payee" is defined as "any spouse, former spouse, child, or other dependent of a participant who is recognized by a domestic relations order as having a right to receive . the benefits." Id. § 1056(d)(3)(K). . ERISA's effect on division of a retirement account is a question of law we review de novo. Madonna v. Tamarack Air, Ltd., 298 P.3d 875, 878 (Alaska 2013) (citing Curran v. Progressive Nw. Ins. Co., 29 P.3d 829, 831 (Alaska 2001)) (statutory interpretation reviewed de novo). "[We adopt the rule of law that is most persuasive in light of precedent, reason, and policy." Wood v. Collins, 812 P.2d 951, 955 n. 5 (Alaska 1991) (quoting Langdon v. Champion, 745 P.2d 1371, 1372 n. 2 (Alaska 1987) (internal quotation marks omitted)). . "When two people reside together in an intimate relationship, the property they acquire while cohabiting should be distributed according to the parties' express or implied intent." Jaymot v. Skillings-Donat, 216 P.3d 534, 544 (Alaska 2009) (citing Bishop v. Clark, 54 P.3d 804, 811 (Alaska 2002)). We determine the parties' intent by applying law to facts, a de novo review. Id. (citing Bishop, 54 P.3d at 810-11, 811 n. 11). In the absence of an express agreement, we " 'closely examine the facts in evidence to determine what the parties implicitly agreed upon.'" Id. (quoting Bishop, 54 P.3d at 811). . 29 U.S.C. § 1056(d)(1), (3). . Id. § 1056(d)(3)(B)M(D. . See id. § 1056(d)(3)(B)(i)(IT), (d)(3)(C)-(D). . Id. § 1056(d)(3)(B)Gi)(D). . - See id. § 1056(d)(3)(K) (alternate payee is "any spouse, former spouse, child, or other dependent of a participant"). Given this, Boulds apparently only disputes whether the QDRO will satisfy the prerequisite definition of a domestic relations order. . Boulds also argues that the division is not permitted under Alaska law because authority for courts to divide pensions comes from AS 25.24.160(a)(4) and is strictly limited to dividing pensions between formerly married couples. We made clear in Bishop that AS 25.24.160(a)(4) applies only to married couples, and does not apply to cohabiting couples. 54 P.3d at 812. But in Reed v. Parrish we upheld a trial court's determination that many assets, including a retirement account, were domestic partnership assets. 286 P.3d 1054,1057-58 (Alaska 2012). There is no reason under Alaska law to hold that the union pension is not subject to distribution under domestic partnership law. . We are not quick to find preemption. In Clauson v. Clauson we cautioned against using federal law too freely, noting that the U.S. Su preme Court "has refused to override state law unless preemption is 'positively required by direct [federal] enactment' or the particular law does 'major damage' to 'clear and substantial' federal interests." 831 P.2d 1257, 1262-63 (Alaska 1992) (alteration in original) (quoting Hisquierdo v. Hisquierdo, 439 U.S. 572, 581, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979)). . 551 F.3d 1138, 1139-40 (9th Cir.2009). . Id. at 1141. . Id. . Id. at 1141-42. . Id. at 1144-46; see 29 U.S.C. § 1056(d)(3)(B)(i)(I) (QDRO "recognizes the existence of an alternate payee's right"); id. § 1056((d)(3)(B)Gi)(I)) (domestic relations order relates to "marital property rights"); id. § 1056(d)(3)(K) (alternate payee includes "other dependent"). . Owens, 551 F.3d at 1144-46. . Id. at 1145 (citing In re Marriage of Pennington, 142 Wash.2d 592, 14 P.3d 764, 769 (2000)); see also Connell v. Francisco, 127 Wash.2d 339, 898 P.2d 831, 834-37 (1995) (en banc). . Id. . Id. (quoting Connell, 898 P.2d at 836). . Id. at 1146. . Id. at 1145. . Id. at 1146. . LRC. § 152(d)(2)(H) (2012). . Owens, 551 F.3d at 1147. . See, eg., Bishop v. Clark, 54 P.3d 804, 811 (Alaska 2002); Wood v. Collins, 812 P.2d 951, 956 (Alaska 1991). . 29 U.S.C. § 1056(d)(3)(B)G)(D); id. § 1056(d)(3)(B)Gi)(I), id. § 1056(d)(3)(K). . 54 P.3d at 811. . Bishop, 54 P.3d at 811 (quoting Wood, 812 P.2d at 956 (quoting Beal v. Beal, 282 Or. 115, 577 P.2d 507, 510 (1978) (en banc))). . Id. at 811 (citations omitted). . 286 P.3d 1054 (Alaska 2012). . - Id. at 1058 (citation omitted). . When we have focused on a single asset it was because the parties have disputed only one asset. See, e.g., Tolan v. Kimball, 33 P.3d 1152, 1154-56 (Alaska 2001) (examining whether parties intended house to be partnership asset). . Reed, 286 P.3d at 1057. . Our holding does not rest on the fact that Nielsen was listed as a beneficiary; there was ample evidence before the superior court that the parties intended to share the union pension under Bishop, even if Boulds had never listed Nielsen as his beneficiary. We note that under this analysis, Boulds's 401(k) account actually may have been partnership property as well. The superior court concluded: that the 401(k) was Boulds's alone because there was no evidence in the record that he had ever listed Nielsen as a beneficiary. Such a listing is not necessary when there is sufficient evidence showing that under the Bishop factors the couple intended to share property. But because the ownership of the 401(k) account was not cross-appealed, we do not reach this question. . Reed, 286 P.3d at 1057. . Jaymot v. Skillings-Donat, 216 P.3d 534, 546 (Alaska 2009). . If there is concern that the pension administrator will refuse to honor'the domestic relations order even in light of Owens v. Auto. Machinists Pension Trust, 551 F.3d 1138, 1147 (9th Cir.2009), discussed supra pp. 5-8, the court may require an equalization payment from Boulds to Nielsen reflecting the present value of her share of the union pension.

6955359

Max and Peggy ESPELAND, Appellants, v. ONEWEST BANK, FSB; Indymacfederal Bank, FSB; Indymac Mortgage Services; and Alaska Trustee LLC, Appellees

Espeland v. Onewest Bank, FSB

2014-03-28

Nos. S-14571, S-14931

2

16

323 P.3d 2

323

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:19:49.086852+00:00

CAP

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

Max and Peggy ESPELAND, Appellants, v. ONEWEST BANK, FSB; Indymacfederal Bank, FSB; Indymac Mortgage Services; and Alaska Trustee LLC, Appellees.

Max and Peggy ESPELAND, Appellants, v. ONEWEST BANK, FSB; Indymacfederal Bank, FSB; Indymac Mortgage Services; and Alaska Trustee LLC, Appellees. Nos. S-14571, S-14931. Supreme Court of Alaska. March 28, 2014. Rehearing Denied May 7, 2014. Max and Peggy Espeland, pro se, Anchorage, Appellants. Seott J. Gerlach, Delaney Wiles, Inc., Anchorage, for Appellees OneWest Bank FSB and IndyMac Mortgage Services. Richard N. Ullstrom, Routh Crabtree Olsen-Alaska, Inc., Anchorage, for Appellee Alaska Trustee, LLC. Before: FABE, Chief Justices, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.

8152

51201

OPINION STOWERS, Justice. I. INTRODUCTION In 2005 Max and Peggy Espeland refinanced their home with E-Loan, Inc. Shortly thereafter, their loan was purchased by another bank and securitized. The Espelands eventually defaulted on the loan and their home was sold in a non-judicial deed of trust foreclosure. The Espelands brought an action in the superior court to void the sale, arguing mainly that inconsistencies in and multiple transfers of the loan and security documents caused defects in the chain of title. The superior court disagreed and granted summary judgment against the Espelands. The Espelands filed an appeal. Thereafter, the Espelands moved for relief from judgment, citing fraud by the defendants. The superior court denied this motion. The Espelands filed a second appeal, and we consolidated the two appeals for decision. Because the Espelands have not produced any evidence of defects with the chain of title or with the foreclosure, we affirm the superior court's grant of summary judgment. Because after reviewing the record we see no evidence of fraud or malfeasance, we affirm the superior court's denial of the motion for relief from judgment: II. FACTS AND PROCEEDINGS In 2004 Max and Peggy Espeland purchased an 8,000 square foot, eight bedroom, ten bathroom home for $775,000. The previous owners, the Schefers, had been using the property as a bed and breakfast, and the Espelands intended to do the same. Neither Max nor Peggy had any experience running a small business or working in the hospitality industry, but they were hoping to "jump in there and . make it happen." Max ran a directional drill for Norcon, and Peggy did not work apart from her duties caring for the bed and breakfast. Max's work was intermittent and entailed frequent stretches of unemployment, but he believed he was earning about $70,000 annually when they purchased the property. The Espelands originally financed the purchase with a loan from Bridge Capital To obtain the loan, they aggregated Max's salary and the $80,000 a year that the Schefers told them the property earned. They made this choice even though Max testified he understood that the Schefers meant $80,000 before expenses, not after, To make the down payment, the Espelands borrowed $50,000 from Peggy's parents, which they mischaracterized in their loan application to Bridge Capital as a gift. By 2005 the Espelands were having trouble meeting their payments and wanted to refinance their loan. After looking at options, they chose E-Loan, Inc. In the loan application, Max stated that he had a month ly salary of $10,000 without mentioning that his yearly salary was much less than $120,000 due to his frequent periods of unemployment. - E-Loan agreed to refinance $790,000 at a lower interest rate, which dropped the Espelands' monthly payment from $7,172 to $5,088. The Espelands signed a Promissory Note creating an obligation to repay their loan and a Deed of Trust giving the lender, through the trustee under the Deed of Trust, the right to sell the property if the Espelands failed to repay the loan. The reference date on the Deed of Trust was September 15, 2005, and it was notarized four days later on September 19, 2005. The Deed of Trust lists E-Loan, Inc. as the lender, Pacific Northwest Title as the trustee under the Deed of Trust, and Mortgage Electronic Registration Systems, Inc. (MERS) as the "nominee for Lender and Lender's successors and assigns. As nominee, "MERS was listed in the public record as the holder, nominally, of the beneficial interest in the property [under the Deed of Trust]." The actual beneficial interest in the property was held by the lender, E-Loan. A. Transfer Of The Rights Connected To The Loan In October 2005, one month after the origination of the loan, E-Loan transferred all of its rights-both its servicing rights and its beneficial interest -to IndyMac Bank. E-Loan endorsed the Promissory Note in blank, and IndyMac Bank later added its name to the endorsement. MERS internally recorded the transfer of the Deed of Trust and remained the nominal beneficiary of record, but was now the nominee for IndyMac Bank, not E-Loan. Shortly after acquiring the rights to the Espelands' loan, IndyMac Bank and Deutsche Bank National Trust Co. signed a pooling and servicing agreement securitiz-ing the mortgage. This agreement sold the Promissory Note and the beneficial interest under the Deed of Trust to Deutsche Bank; the contractual servicing rights remained with IndyMac Bank. The original Promissory Note was transferred from IndyMae Bank to Deutsche Bank at this time, again endorsed in blank. MERS, still the nominee, although now for Deutsche Bank, internally recorded the transfer of the beneficial interest in the Deed of Trust. After this transfer, Deutsche Bank held the Promissory Note and the beneficial interest under the Deed of Trust, MERS continued to be listed in the public record as the nominal holder of the beneficial interest under the Deed of Trust, and Indy-Mac Bank continued to be the servicing agent for the loan. B. The Espelands Default On Their Loan Roughly three years later, in December 2008, the Espelands ceased making payments on their loan. IndyMae Bank contacted the Espelands and informed them that they were in default. The Espelands unsuccessfully attempted to negotiate with IndyMac Bank for a reprieve or loan modification. The record suggests that the Espelands were completely unable to make even a portion of their monthly payments; Peggy testified that after they ceased making payments, they were unable to save any money toward curing the default. In January 2009, a month after stopping payment, the Espelands sent a Qualified Written Request to IndyMac Bank under the Real Estate Settlement Procedures Act (RESPA) They asked for: (1) all doew-ments pertaining to the origination of the loan, including the loan history, fees, and the amount paid out of the escrow account; (2) an explanation of how all the payments were applied; and (8) the names and contact information for any investor or broker that purchased the securitized loan, as well as the agreements signed and the assignments made. IndyMac Bank responded by providing the Espelands with a payment history, the "requested disclosures, [and] copies of requested closing documents." IndyMac Bank refused to provide any of the other information, stating that "[these requests go well beyond what is required to be produced pursuant to a Qualified Written Request and will not be provided." IndyMac Bank explained that "[gJenerally, we will not provide copies of internal documents and notations, guidelines or other information/materials supplied to us by third parties in connection with the organization of this loan." The Espelands received the letter but never responded or followed up. Meanwhile, IndyMac Bank had been in distress since 2008 and was under control of the Office of Thrift Supervision, becoming IndyMac Federal Bank. The Office of Thrift Supervision appointed the Federal Deposit Insurance Corporation (FDIC) as receiver, and in March 2009 the FDIC sold all of IndyMac Federal Bank's assets to OneWest Bank. For the Espelands, this was only a transfer of the servicing rights for their loan because that was the only interest IndyMac Federal Bank retained. In other words, this was a transfer of the contractual right to perform a service for Deutsche Bank, not a transfer of property. MERS internally recorded the transfer of servicing rights, and on April 15, 2009, IndyMac Federal Bank informed the Espelands that the new servi-cer of their loan was OneWest Bank. C. - The Non-Judicial Foreclosure In early April 2009, OneWest Bank referred the foreclosure to Alaska Trustee, LLC, a company that performs non-judicial foreclosures. Foreclosure was ordered in the name of IndyMac Federal Bank, One West Bank's predecessor.! Alaska Trustee performed a routine title search and found that, although the foreclosure had been ordered in IndyMac Federal Bank's name, MERS was still the record holder of the beneficial interest under the Deed of Trust- publicly, MERS was the owner of record. First American Title, the insurer for the foreclosure, required that the Deed of Trust be assigned from MERS to IndyMac Federal Bank in order to give clear title in the public record. On April 22, 2009, MERS assigned its nominal beneficial interest in the Deed of Trust to IndyMac Federal Bank by assigning it the Deed of Trust. As nominal holder of the beneficial interest, IndyMac Federal Bank held only legal title, but this gave it the right to "take any action required by the lender" by "law or custom," including "the right to foreclose and sell the Property." On April 21, 2009, IndyMac Federal Bank used its power as nominal beneficiary to substitute Alaska Trustee for Pacific Northwest Title as the trustee for the Espelands' Deed of Trust. When Alaska Trustee recorded both doeu-ments on May 6, 2009, it recorded the assignment of the Deed of Trust from MERS to IndyMac Federal Bank before it recorded the Substitution of Trustee. Alaska Trustee recorded a Notice of Default the same day. In addition, OneWest Bank had a power of attorney granted by Deutsche Bank to facilitate the foreclosure sale. The foreclosure was postponed three times, but the Espelands were unable to cure their default. On October 13, 2009, one day before the foreclosure sale, the Espelands sought a preliminary injunction barring the sale, which was denied by the superior court. At the sale on October 14, OneWest Bank was the sole bidder and purchased the property for $647,010.68. At the time of the foreclosure, Deutsche Bank held the Promissory Note and the beneficial interest under the Deed of Trust, IndyMac Federal Bank held the nominal beneficial interest under the Deed of Trust, OneWest Bank was the servicing agent for Deutsche Bank, and Alaska Trustee was the trustee under the Deed of Trust. D. The Superior Court Proceedings 1. Summary judgment The Espelands filed their first amended complaint on June 9, 2010, which, in relevant part, alleged that defects in the chain of title invalidated the foreclosure and that OneWest Bank violated RESPA by not responding to the Espelands' Qualified Written Request. Both sides moved for summary judgment. Before oral argument, the Espelands filed a late expert-witness declaration from Neil Garfield. The court declined to consider Garfield's statement because it was unsworn. The superior court denied the Espelands' motion for summary judgment and granted summary judgment to OneWest Bank. It found no defects in the chain of title that would prevent Alaska Trustee from foreclosing. The superior court declined to address the Espelands RESPA claim because the Espelands had failed to exhaust the required administrative claims process, and thus the superior court did not have jurisdiction to consider the claim. The superior court issued a judgment on May 8, 2012. The Espe-lands filed an appeal from that judgment, contesting the grant of summary judgment and the court's refusal to consider the declaration from Neil Garfield. 2. Motion for relief from judgment The Espelands also filed a Motion for Relief from Judgment or Order in the superior court under Alaska Civil Rule 60(b). They primarily sought relief under Rule 60(b)(8) on the grounds that OneWest Bank, Alaska Trustee, and IndyMac Federal Bank were "collectively engaging in fraudulent misrepresentation, alteration and/or the production of forged documents to make a claim of ownership." They alleged that 45 pages of log notes produced in discovery were correspondence between the parties and were "evidence of drafting and altering documents in an attempt to deceive the Plaintiffs and the Court." The superior court denied the Espelands motion for relief from judgment. The court ruled that although the Espelands' allegations "if proven would constitute fraud," the evidence they presented "does not meet the clear and convincing standard." The court noted that many of their fraud claims were substantially similar to the fraud claims already ruled on and rejected in their motion for summary judgment, and to overcome that ruling the Espelands would have had to introduce new evidence, which they did not. The Espelands filed a second appeal, arguing that "the trial court in this case failed to give proper consideration to the entire record of the proceedings before it in conjunction with the specific evidence of fraud contained in the redacted documents submitted by the Appellees." We consolidated the Espelands' two appeals for decision. In both appeals the Espe-lands are proceeding pro se. III. STANDARD OF REVIEW We review the "grant of a summary judgment motion de novo, affirming if the record presents no genuine issue of material fact and if the movant is entitled to judgment as a matter of law." In this examination, we draw all reasonable inferences in favor of the nonmovant. In order to survive a motion for summary judgment, the party opposing summary judgment must present more than "unsupported assumptions and speculation." The party "must set forth specific facts showing that there is a genuine issue of material fact." And, this court may affirm on any ground in the record, not only those argued by the parties. We "apply our independent judgment to questions of law, adopting the rule of law most persuasive in light of precedent, reason, and policy." We review the denial of a Rule 60(b)(8) motion for abuse of discretion. We also review a trial court's decision to admit or exclude evidence for abuse of discretion. An abuse of discretion exists only if we are "left with a definite and firm conviction on the whole record that the trial judge has made a mistake." IV. DISCUSSION The Espelands are challenging three of the superior court's rulings. First, they argue that the court erred when it declined to admit the declaration of their expert, Neil Garfield. Second, they argue that the court erred when it granted summary judgment to the defendants. They contend that chain of title defects, RESPA violations, and an inadequate sale price create genuine issues of material fact. Third, the Espelands contend that the court erroneously denied their motion for relief from judgment under Rule 60(b)(3) and did not give full consideration to the evidence before it. A. The Superior Court Did Not Abuse Its Discretion When It Declined To Consider Neil Garfield's Declaration. The Espelands filed a late motion to admit the declaration of a new expert witness 11 days before oral argument on the cross-motions for summary judgment. Garfield pro fessed to be an expert on the mortgage crisis and lending law, and his declaration discussed alleged defects in the chain of title for the Espelands' loan documents. The court declined to consider the declaration, in part because it found the declaration both sworn and unsworn. Further, the superior court found the declaration "untimely and unjustified." The court noted that the Espelands submitted Garfield's declaration well past the deadline for expert submissions and without adequate excuse, even though they had retained Garfield over two months prior. The court also found that Garfield's declaration was incomplete because it referred to "included documents" that were not submitted with the declaration. The Espelands argue that the superi- or court refused to consider Garfield's declaration "primarily because it disagreed with some of his conclusions, regardless of his expertise in the specific field of law underlying this suit." Although the court arguably found some of Garfield's conclusions not credible, which on summary judgment would be improper," because the superior court alternatively provided several legitimate reasons for rejecting Garfield's declaration-the declaration's untimeliness incompleteness, and unreliability-we conclude that the court did not abuse its discretion in refusing to consider the declaration. B. The Superior Court Properly Granted Summary Judgment For The Defendants. The Espelands' main contention is that defects in the chain of title of their loan documents invalidated the foreclosure. Secondarily, they argue that OneWest Bank violated RESPA by failing to respond to their Qualified Written Request, and that the foreclosure sale of the property did not meet legal requirements. In order to raise a genuine issue of material fact, the Espelands were required to show specific, admissible facts, not mere speculation. They failed to do this. 1. There are no genuine issues of material fact regarding the chain of title and authority to foreclose. The Espelands argue that OneWest Bank and Alaska Trustee did not have authority to foreclose. They point to alleged defects in the notarization of the Deed of Trust, the transfers from E-Loan to IndyMac Bank and then to OneWest Bank, the Substitution of Trustee, and the assignment of the Deed of Trust from MERS to IndyMac Federal Bank. However, the Espelands failed to produce any facts supporting these allegations. A close examination of the loan's chain of title reveals that OneWest Bank had authority to initiate the foreclosure, and Alaska Trustee had authority to process the foreclosure. a. - The loan origination The Espelands signed a Promissory Note creating the obligation to repay their loan and a Deed of Trust giving the lender, through the trustee, the right to sell the property if they failed to repay the loan. The Espelands argue that (1) the Deed of Trust was deficient because it was notarized on a different day than its internal reference date, and (2) the Promissory Note was defective because "there was a genuine issue of fact as to the identity of the original lender identified by the Appellees as 'E-Loan.'" The Espelands also question the transfer between E-Loan and IndyMac Bank. The Espelands first argument stems from that fact that the Deed of Trust refers to itself as "this document, which is dated September 15, 2005," when in fact it was not notarized until September 19, 2005. The Espelands claim this discrepancy shows that the notary was not present when the document was signed, and hence there was notary fraud in the origination of the loan. This argument is unavailing. As the superi- or court correctly concluded, "Alaska's notary law does not prohibit a person from signing a document which refers to itself by a date other than the date the person actually signed." A notary may notarize a document signed on a different day so long as the signer appears before the notary and acknowledges the signature. Moreover, the Deed of Trust was signed on September 19, the date that the document was notarized, so there is no reason to believe that the notary was not present. Next, the Espelands argue that the there was a genuine issue of material fact regarding the identity of the lender. The Espelands contend that "OneWest and Deutsche Bank are far more connected than is being admitted and that they are, in fact, merely instrumentalities of an entity that has yet to be revealed and which also included IndyMac Federal, the prior holder of the Deed of Trust." This argument also fails to raise a genuine issue of material fact. Alaska law does not require that the lender be revealed in order for the transfer to be valid. Thus, the "identity" of E-Loan does not have any legal bearing on whether the loan it initiated was a legitimate loan. Finally, the Espelands question the transfer of the Promissory Note and Deed of Trust from E-Loan to IndyMac Bank. But there is no genuine issue of material fact regarding the occurrence of this transaction. E-Loan endorsed the Promissory Note in blank and gave it to IndyMac Bank. Indy-Mac Bank later added its name to the endorsement, as permitted under - AS 45.03.205(c). In addition to IndyMac Bank's special endorsement, evidence of the sale can be found in MERS's records. Also, OneWest Bank employee Charles Boyle reviewed OneWest Bank's records of the loan and attested in an affidavit that the records reflect the transfer. In contrast, the Espe-lands failed to present any facts in support of their contention that this transfer did not occur. b. The loan securitization In November 2005 IndyMac Bank and Deutsche Bank securitized the loan through a pooling and servicing agreement. The Espelands argue that the securitization gives "rise to a number of genuine issues of material fact that preclude summary judgment." Mainly, they argue that "there was insufficient evidence presented to the trial court that Deutsche [Bank] was the legal owner and holder of the note and Deed of Trust." They also contend that there is a genuine issue of material fact whether "the asset pool receive[d] the loan in accordance with the [Pooling and Servicing Agreement] terms, transferring physically from the Originator to the Sponsor to the Depositor to the Trust, with all intervening endorsements to the Custodian." There is ample, undisputed evidence that the transfer of the Promissory Note from IndyMac Bank to Deutsche Bank occurred. MERS's records show the transfer. Charles Boyle stated in his affidavit that IndyMac Bank physically transferred the Promissory Note to Deutsche Bank at this time. Ronal-do Reyes, an employee of Deutsche Bank, submitted an affidavit attesting to the existence of the agreement and Deutsche Bank's possession of the original Promissory Note. Deutsche Bank produced the Promissory Note, endorsed in blank, from its files and delivered it to OneWest Bank, which presented it to the court, accompanied by an affidavit from a OneWest Bank employee stating that he received the Promissory Note from Deutsche Bank and personally reviewed Deutsche Bank's records. The Espelands adduced no evidence to dispute these facts. The Espelands' second argument, that Deutsche Bank did not "receive the loan in accordance with the [Pooling and Servicing Agreement] terms," is also unavailing. The Espelands do not provide any evidence that casts doubt on the validity of the transfer. Given the undisputed evidence discussed above, there is no reason to doubt that Deutsche Bank "receive[d] the loan in accordance with the [Pooling and Servicing Agreement] terms." c. The transfer of servicing rights to OneWest Bank The Espelands argue that "there was no evidence offered that there was ever a proper assignment to OneWest [Bank]." However, the record reveals no genuine issue of material fact whether the transfer occurred. In March 2009 the FDIC sold all of IndyMac Federal Bank's assets to OneWest Bank. When OneWest Bank acquired IndyMac Federal Bank's assets, it executed a Servicing Business Asset Purchase Agreement for IndyMac Federal Bank's contractual service-ing rights These contractual servicing rights included the servicing rights for the Espelands' loan. OneWest Bank provided the superior court with a copy of the Purchase Agreement and a copy of the notice it sent to the Espelands informing them that it was their new servicer. MERS recorded the transfer of servicing rights. In addition, OneWest Bank employees J.C. San Pedro and Charles Boyle attested to the transfer in affidavits. Thus, there was ample evidence that the servicing rights were assigned to OneWest Bank, making it the servicing agent for Deutsche Bank. d. The non-judicial foreclosure In December 2008 the Espelands ceased repaying their loan. The following April OneWest Bank requested that Alaska Trustee initiate a non-Jjudicial foreclosure under IndyMac Federal Bank's name. As is routine, Alaska Trustee sought title insurance for the foreclosure. Because the Deed of Trust's holder of record was still MERS, First American Title would not insure the foreclosure until the holder of record matched the name in which the foreclosure was ordered-IndyMac Federal Bank. The Servicing Business Asset Purchase Agreement executed between IndyMac Federal Bank and OneWest Bank contractually obligated IndyMac Federal Bank to help OneW-est Bank foreclose. MERS assigned the Deed of Trust to IndyMac Federal Bank on April 22, 2009, thereby transferring its nominal beneficial interest. IndyMac Federal Bank then used its power as nominal benefi-clary to substitute Alaska Trustee as the trustee under the Espelands'® Deed of Trust. The Espelands contend that there are three genuine issues of material fact; (1) whether MERS had the power to transfer the nominal beneficial interest to IndyMac Federal Bank; (2) whether the substitution of trustee under the Deed of Trust was operative; and (8) whether OneWest Bank had authority to foreclose if the foreclosure was ordered in IndyMac Federal Bank's name. First, the Espelands argue that "[bJlecause MERS was never the lawful holder or as-signee of the note, the assignment of the mortgage to Indymac is a nullity, and MERS was without authority to assign the power to foreclose to Indymac." But the Espelands' Deed of Trust granted MERS, as nominal holder of the beneficial interest, the right to "take any action of [the] Lender" including "the right to foreclose and sell the Property." As nominee, MERS had the authority to take any action that the actual beneficiary could have taken, including transferring its nominal beneficial interest to another party. The Espelands have cited no Alaska authority to the contrary. MERS had the power to assign the Deed of Trust and thereby transfer its nominal beneficial interest to IndyMac Federal Bank. Second, the Espelands argue that IndyMac Federal Bank's substitution of Alaska Trustee for Pacific Northwest Title under the Deed of Trust was invalid because it was executed on April 21, 2009, one day before IndyMac Federal Bank received the nominal beneficial interest from MERS. In their view, IndyMac Federal Bank attempted to execute the substitution before it had the power to do so. This argument also fails. A new trustee succeeds to the powers of the old trustee at "the time the substitution is filed for record." Therefore, the proper inquiry is into the relationship of the parties at the moment the substitution is recorded, not the moment that it is executed. The superior court found that on the day the two documents were recorded, May 6, 2009, the assignment of the Deed of Trust from MERS to IndyMac Federal Bank was recorded one minute before IndyMac Federal Bank's Substitution of Trustee. Thus, at the time that the Substitution of Trustee was recorded, IndyMac Federal Bank had the power to substitute the trustee. Finally, the Espelands contend that OneWest Bank and Alaska Trustee still did not have the authority to foreclose. They argue, among other things, that because the foreclosure was ordered in IndyMac Federal Bank's name, OneWest Bank was without authority. But as the superior court correctly found, the "question of 'why' the foreclosure was initiated in the name of IMFB [IndyMac Federal Bank] is not relevant to this Court's determination of the legality of the transaction." The two parties that actually needed authority to participate in the foreclosure-OneWest Bank and Alaska Trustee-had authority. Thus it is irrelevant which nominal beneficiary was ordered to foreclose on the Deed of Trust. Alaska Statute 45.08.8301 provides that "[a] person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument." Despite not being the "owner" of the Promissory Note, both OneWest Bank and Alaska Trustee were entitled to enforce the Deed of Trust: OneWest Bank as Master Servicer for Deutsche Bank, and Alaska Trustee as the trustee under the Deed of Trust appointed by the nominal beneficiary, IndyMac Federal Bank. As detailed earlier, there were no defects in OneWest Bank's assumption of the servicing rights, The Pooling and Servicing Agreement between Deutsche Bank and In-dyMac Bank defines the "Master Servicer" as "IndyMac Bank . and its successors and assigns." The purchase of IndyMac Federal Bank's assets made OneWest Bank the "successor" of IndyMac Federal Bank. Further, the Purchase Agreement between IndyMac Federal Bank and OneWest Bank provided that OneWest Bank would have "all Servicing Rights accruing to [IndyMac Federal Bank] under the Servicing Agreements including all rights to . take other rightful actions in respect of breaches [and] defaults." The Pooling and Servicing Agreement not only authorized the "Master Servicer" to foreclose, it required it to foreclose. The Espelands have presented no evidence tending to refute these facts. As the trustee under the Espelands' Deed of Trust, Alaska Trustee had authority to conduct the foreclosure. In the Deed of Trust, the Espelands granted the trustee a "power of sale" for the property. In the event of a default, the "trustee shall sell the property at public auction." This right was originally granted to Pacific Northwest Title and then transferred to Alaska Trustee by IndyMac Federal Bank in the Substitution of Trustee recorded May 6, 2009. Once Alaska Trustee received its appointment on May 6, it was empowered to proceed with the nonjudicial deed of trust foreclosure in accordance with the Deed of Trust's "power of sale" provision. In addition, the Espelands challenge the fact that the original Promissory Note was not present at the foreclosure. However, AS $4.20.070 and AS 34.20.080 provide the requirements for a sale by a trustee, and they do not require the loan instrument be present at the sale. After carefully examining the transfers of rights and interests surrounding the Espe-lands' loan, we conclude that there were no defects in the chain of title giving rise to genuine issues of material fact, OneWest Bank had authority to initiate the foreclosure as Master Servicer for Deutsche Bank, and Alaska Trustee had authority to perform the foreclosure by virtue of its role as trustee under the Deed of Trust. Thus, both entities acted within their authority during the foreclosure process. 2. The superior court properly declined to consider the Espelands' RESPA claim. The Espelands argued in the superi- or court that OneWest Bank violated RESPA when it did not answer their Qualified Written Request in full, but the superior court declined to address this claim because the Espelands failed to exhaust their administrative remedies. The superior court was correct because IndyMac Bank was in FDIC receivership when the Espelands made their Qualified Written Request. The federal appellate courts that have considered the issue have uniformly held that debtors' RESPA actions are subject to administrative exhaustion if the bank is in FDIC receivership. Thus, the Espelands were required to exhaust their administrative remedies before the superior court could have jurisdiction over the RESPA claim. 2. The Espelands' arguments regarding the sale of the property are waived. The Espelands argue that the sale price at the foreclosure was inadequate and that Alaska Trustee misled them into thinking the sale would be stayed pending the outcome of their case. The Espelands never raised their inadequate-sale-price argument in the superior court. And, after they filed their First Amended Complaint, the Espe-lands abandoned their argument that Alaska Trustee misled them into thinking the sale of their home would be postponed. These arguments are waived because, as we have repeatedly held, "a party may not raise an issue for the first time on appeal." C. The Superior Court Did Not Abuse Its Discretion When It Denied The Espelands' Motion For Rule 60(b)(3) Relief. The Espelands' second appeal stems from their motion to the superior court for Alaska Civil Rule 60(b)(8) relief from judgment or order. Under Rule 60(b)8B), a litigant can receive relief from a court order or judgment by showing "fraud, . misrepresentation, or other misconduct of an adverse party" by clear and convincing evidence. The fraud must have "prevented the losing party from fully and fairly presenting his case or defense." The superior court found that the Espelands failed to present clear and convincing evidence of fraud, and denied their motion for relief. The Espelands argue that; (1) the log notes show fraud by clear and convincing evidence; (2) the court failed to consider the use of "notorious robo-signers"; and (8) the court failed to consider their arguments as a whole. After examining the record, including the disputed log notes, we conclude that the superior court did not abuse its disceretion-nothing presented by the Espelands raises an inference of fraud, much less clear and convincing evidence of fraud. 1. The log notes do not show fraud by clear and convincing evidence. The Espelands claim that the log notes contain evidence of fraudulent alteration of numerous documents including the Notice of Default, the 2009 Substitution of Trustee, the 2009 Assignment of the Deed of Trust, the Trustee's Deed, an unspecified Affidavit of Mailing, the payment history, and the foreclosure sale postponement letters. However, the Espelands do not state where exactly in the 45 pages of log notes they believe the evidence of fraud is located. On close reading, the log notes do not suggest any fraud in any of the documents; indeed, the log notes appear to support the documents. Next, the Espelands argue that there are discrepancies between the log notes and the affidavits submitted by Alaska Trustee and OneWest Bank in support of their authority to foreclose. In their motion to the superior court, the Espelands quoted several log notes that contain requests for a copy of the Promissory Note showing the endorsement from E-Loan to IndyMac Bank. According to the Espelands, these quotes are "convincing proof of efforts to endorse the un-endorsed, un-delivered Promissory Note in 2009-2010." The Espelands allege these quotes contradict affidavits of employees at OneWest Bank and Deutsche Bank that the Promissory Note was "endorsed and delivered to the Trust, during the 11-11-2005 to 11-80-2005 Pooling and Servicing Agreement window." The log notes clearly state that the copy of the Promissory Note that OneWest Bank had in its database did not show an endorsement to IndyMac Bank. However, the fact that the copy in OneWest Bank's database was not endorsed does not mean that the actual Promissory Note itself was not endorsed. Nor do the log notes contradict the affidavits' claim that the Promissory Note was in Deutsche Bank's possession. As the superior court found, the log notes reveal that OneWest Bank persistently and repeatedly asked for a copy of the original Promissory Note showing the endorsement for about a year without success. The superior court declined "to interpret the insistent nature of the communication as evidence of collusion to produce fraudulent records." We agree that the log notes may provide evidence of procrastination, but not of fraud. We also conclude that nothing in the log notes contradicts any of the affidavits or indicates that the Promissory Note was transferred incorrectly. 2. The Espelands did not present admissible, relevant evidence that any of the documents involved in their loan were "robo-signed." The Espelands also argue that the use of "notorious robo-signers" supports a finding of fraud. They level specific allegations against Erica Johnson Seck, who signed the June 2010 Assignment of Deed of Trust, and Eric Tate, who signed the 2009 Substitution of Trustee. But the Espelands provided no evidence supporting their accusations that Tate is a "robo-signer," and although the Espelands provided more support for Seck, the document signed by Seck-the Assignment of the Deed of Trust in 2010-was unnecessary for the foreclosure. As further evidence that some documents were "robo-signed," the Espelands allege that certain documents were executed in different states than where they were notarized. They contend that the documents "imply same-day execution and notarization, by signers of Indymac and MERS in California and Virginia, and notaries in Texas and Minnesota." While the documents in question state that they were notarized in Texas and Minnesota, they do not indicate where they were executed and none contains any reference to California or Virginia. Thus, there is no merit to the Espelands' claim that the involvement of alleged "robo-signers" and different states of execution prove fraud by clear and convincing evidence. 3. - The superior court did not fail "to give proper consideration to" the Espelands' evidence. The Espelands argue that in denying their motion for Rule 60(b)(8) relief, the superior court "failed to give proper consideration to the entire record of the proceedings before it in conjunction with the specific evidence of fraud contained in the redacted documents." This argument is likely in response to the superior court's statement that "[aldditionally, the [pllaintiffs'® claims of fraud and misrepresentation are substantively similar to claims made in the [plaintiffs' original Motion to Void Non-judicial Foreclosure and rely on the same evidence." The court then noted that it had "already ruled that such claims lack merit." To prevail on a Rule 60(b)(8) motion, the Espelands need not prove that they would have prevailed but for the fraud or misconduct. Nonetheless, "a litigant is not prevented from fully and fairly presenting his or her case where misconduct 'had little bearing on the merits of the case.' " Here, the Espelands argued many of the same fraud claims in their Rule 60(b)(8) motion that they raised in their summary judgment proceedings, but they did not present any new evidence with respect to those claims. Therefore, their allegations have little bearing on the merits of the case-the superior court had already found them meritless based on the same evidence (or lack of evidence) presented during the summary judgment proceedings. The burden rested on the Espelands to prove fraud by clear and convincing evidence, but instead they rehashed the arguments made and rejected previously. Consequently, the superior court did not abuse its discretion when it denied the Espe-lands' Rule 60(b)(8) motion-a Rule 60(b)(8) motion is not the appropriate forum to revisit arguments already made and found to be without merit. VI. CONCLUSION We AFFIRM the superior court's grant of summary judgment against the Espelands and its denial of their motion for Rule 60(b) relief, . In its findings, the superior court described MERS as: "a private corporation that administers the MERS System, a national electronic registry that tracks the transfer of ownership interests and servicing rights in mortgage loans." Under MERS, the lender assigns its beneficial interest to MERS or appoints MERS its nominee; MERS is then the mortgagee of record. '"The lenders retain the promissory notes, as well as the servicing rights to the mortgages. The lenders can then sell these interests to investors without having to record the transaction in the public record." In essence, MERS makes it easier for lenders to transfer their interests in mortgages by removing the burden of recording. The term "mortgage" generally refers to the conveyance of title to property as security for the payment of a loan or debt, and also loosely refers to the loan or debt itself. Brack's Law Dictionary 1101-02 (Ith ed.2009). Here the specific instruments are the Promissory Note (loan) and the Deed of Trust (security interest). . A "nominee" is "[a] person designated to act in place of another" or "[al party who holds bare legal title for the benefit of others." Buack's Law Dictionary 1149 (9th ed.2009). . A mortgage "servicer" is an entity that performs services for the beneficiary such as collecting monthly payments. Id. at 1105. . The "beneficial interest" is the "right or expectancy in something (such as a trust or an estate), as. opposed to legal title to that thing," Id. at 885; in other words, the beneficial interest is the ultimate right to be repaid on the loan. A "beneficiary" is the "person for whose benefit property is held in trust." Id. at 176. . - "In blank" (of an endorsement) is "not restrict ed to a particular indorsement." Id. at 828. Black's Law Dictionary also defines "blank in-dorsement" as an "indorsement that names no specific payee, thus making the instrument payable to the bearer and negotiable by delivery only." Id. at 844. "Indorsement" is an alternate spelling for "endorsement." Id. at 607. The Alaska Statutes use the word "endorsement," and we follow this convention. See, eg., AS 45.03.205. c . "Pooling" is a "grouping of assets, such as mortgages, that serves as a basis for the issuing of securities." THE American Hertrace Dictionary or tHe Encuse Lancuace 1370 (defin 5) (5th ed.2011). . "Securitizing" is defined as "convert[ing] (assets) into negotiable securities for resale in the financial market." Brack's Law Dictionary 1475 (9th ed.2009). . 12 U.S.C. § 2605(e) (2010). . See Failed Bank Information: Information for IndyMac, FS.B., and IndyMac Federal Bank, F.S.B., Pasadena, CA, Fepmrar Deposit Insurance Corporation, - http://www.fdic.gov/bank/individual/ failed/IndyMac.html (last updated Nov. 20, 2013). . It is unknown why OneWest Bank asked for foreclosure in the name of IndyMac Federal Bank and not its own. The superior court speculated, "Perhaps it [was] because at the time OneWest initiated the foreclosure on April 3, 2009, the Espelands had not yet been notified that ownership of the servicing rights had been transferred from IMFB to OneWest, and OneW-est believed this would have been confusing." . Rose Santiago, an employee of Alaska Trustee, stated in her affidavit that "[i]t is common for the actual ownership of the loan to change hands without a corresponding assignment being recorded unless and until the loan goes into foreclosure." . The actual beneficial interest-the ultimate "right or expectancy'"-remained with Deutsche Bank. See Buack's Law Dictionary 885 (Oth ed.2009). The assignment of the Deed of Trust to IndyMac Federal Bank simply made IndyMac Federal Bank the new nominal owner of record. . OneWest Bank produced the log notes to the Espelands during discovery in October 2010. The log notes are a collection of records memorializing the performance of routine actions (such as updating a document or collecting a payment), notifications about the status of the foreclosure, requests for actions to be taken, and snippets of correspondence. . Erkins v. Alaska Trustee, 265 P.3d 292, 296 (Alaska 2011) (internal quotation marks omitted). . Id. . Boyko v. Anchorage Sch. Dist., 268 P.3d 1097, 1103 (Alaska 2012) (quoting Perkins v. Doyon Universal Servs., LLC, 151 P.3d 413, 416 (Alaska 2006)). . Kelly v. Mun. of Anchorage, 270 P.3d 801, 803 (Alaska 2012). . Kuretich v. Alaska Trustee, LLC, 287 P.3d 87, 88 (Alaska 2012). . Shaffer v. Bellows, 260 P.3d 1064, 1068 (Alaska 2011). . Vezey v. Green, 171 P.3d 1125, 1128 (Alaska 2007). . Jones v. Bowie Indus., Inc., 282 P.3d 316, 324 (Alaska 2012). . Alaskan Adventure Tours, Inc. v. City & Borough of Yakutat, 307 P.3d 955, 959-60 (Alaska 2013) (internal quotation marks omitted). . The declaration was originally submitted to the court unnotarized, and later when it was notarized the first sentence of the notarized version still read, "My name is Neil Franklin Garfield, and this Declaration is made unsworn under the penalty of perjury." . Yost v. State, Div. Of Corps., Bus. & Prof'l Licensing, 234 P.3d 1264, 1276 (Alaska 2010) ("Credibility is a factual issue . properly determined by the factfinder at trial, not a matter of law determined by the court in summary judgment."); see also Meyer v. State, Dep't of Revenue, Child Support Enforcement Div. ex rel. N.G.T., 994 P.2d 365, 367 (Alaska 1999) ('The court does not weigh the evidence or witness credibility on summary judgment."). . We need not decide whether the declaration was sworn or unsworn. We have noted, however, that "Rule 56(c) emphasizes the importance of affidavits, as opposed to unsworn allegations, with regard to summary judgment." - Benneft v. Weimar, 975 P.2d 691, 694 (Alaska 1999). . Boyko v. Anchorage Sch. Dist., 268 P.3d 1097, 1103 (Alaska 2012) (quoting Perkins v. Doyon Universal Servs., LLC, 151 P.3d 413, 416 (Alaska 2006)); Kelly v. Mun. of Anchorage, 270 P.3d 801, 803 (Alaska 2012). « . The Espelands consistently use the word "standing," but as standing relates only to judicial foreclosures, we will assume they mean "authority" to conduct the non-judicial foreclosure. . - On appeal, the Espelands argue very generally that there were defects in the chain of title. While the Espelands did not precisely articulate their notarization argument on appeal, it was a central issue in the superior court. Because the Espelands are now proceeding pro se (they were represented by counsel in the superior court), we construe their general arguments to include the specific arguments presented to the superior court and address this issue. . AS 44.50.062(5). . The Espelands do not-cite to any law that would require such a disclosure. Conveyances of land, mortgages, and deeds of trust are dealt with extensively under AS 34.20.010-.160, and nowhere in these statutes is there such a disclosure requirement. . The Espelands cite a Massachusetts case for the proposition that blank endorsements are invalid, US Bank Nat'l Ass'n v. Ibanez, 458 Mass. 637, 941 N.E.2d 40, 53 (2011) (holding blank transfers of real property are impermissible under Massachusetts law), but this case is inappo-site as Alaska permits in-blank endorsements under AS 45.03.205(b). . AS 45.03.205(c) provides that "[the holder may convert a blank endorsement that consists only of a signature into a special endorsement by writing, above the signature of the endorser, words identifying the person to whom the instrument is made payable." . The second half of the Espelands' contention bears no resemblance to the laws regarding trusts and real property as laid out under AS 34.40.110: Alaska law does not require the physical transfer of the original loan instrument. Therefore, we will disregard this argument. . See Failed Bank Information: Information for IndyMac, FS.B. and IndyMac Federal Bank, F.S.B., Pasadena, CA, FrEoerat Deposit Insurance Corp., - http://www.fdic.gov/bank/individual/failed/ IndyMac.html. (last updated Nov. 20, 2013). . The actual beneficial interest-the ultimate ownership - rights-remained - with Deutsche Bank. The assignment of the Deed of Trust to IndyMac Federal Bank simply made IndyMac Federal Bank the new owner of record in order to give it clear title in the public record. . Again, the Espelands do not specifically make this argument on appeal; instead they generally argue there were defects in the transfer. The issue was central and argued at length in the superior court when the Espelands were represented by counsel. We again give them the benefit of their pro se status and address this issue as if it had been more fully argued on appeal. . AS 34.20.120(c). . - Additionally, as the nominal beneficiary, Indy-Mac Federal Bank itself had the power to foreclose. Most federal courts and state courts that have considered the issue have found that the nominee has the power to foreclose. See, e.g., Trent v. Mortg. Elec. Registration Sys., Inc., 288 Fed.Appx. 571 (11th Cir.2008); Morgera v. Countrywide Home Loans, Inc., No. 2:09CV01476-MCE-GGH, 2010 WL 160348, at *8 (E.D.Cal. Jan. 11, 2010); In re Huggins, 357 B.R. 180 (Bankr.D.Mass.2006); Mortg. Elec. Registration Sys., Inc. v. Revoredo, 955 So.2d 33 (Fla.App.2007); In re Sina, No. A06-200, 2006 WL 2729544 (Minn.App. Sept. 26, 2006); Mortg. Elec. Registration Sys., Inc. v. Ventura, No. CV 054003168S, 2006 WL 1230265 (Conn.Super. Apr. 20, 2006). . The Agreement states that "[the Master Servi-cer shall use reasonable efforts in accordance with the Servicing Standard to foreclose on or otherwise comparably convert the ownership of assets securing such of the Mortgage Loans as come into and continue in default." . Failed Bank Information: Information for In-dyMac, F.S.B., and IndyMac Federal Bank, F.S.B., Pasadena, CA, Feperat Deposit Insurance Corp, - http://www.fdic.gow/bank/individual/failed/ IndyMac.html (last updated Nov. 20, 2013). . See, eg., McCarthy v. F.D.I.C., 348 F.3d 1075, 1079-80 (9th Cir.2003) (noting uniformity of circuits). . Hymes v. DeRamus, 222 P.3d 874, 889 (Alaska 2010) (quoting Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280 (Alaska 2001). . Babinec v. Yabuki, 799 P.2d 1325, 1328 n. 3 (Alaska 1990). . Id. at 1333. . McCall v. Coats, 777 P.2d 655, 658 (Alaska 1989) (quoting Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir.1978)). . The Espelands only cite to the notes in their entirety. In their motion to the superior court they provided a list of quotes from the log notes without explaining what they believe is incriminating about each quote. . The log notes record that on April 20, 2009, an anonymous user sent a message stating "attached is the [Substitution of Trustee], please properly execute and return to our office. Thanks." This date coincides with the execution date on the Substitution of Trustee. . Some of the log notes quoted by the Espe-lands reference "allonges," which are "slip[s] of paper sometimes attached to a negotiable instrument for the purpose of receiving further in-dorsements when the original paper is filled with indorsements." Buack's Law Dictionary 88 (9th ed.2009). The Espelands argue that "[the existence of proper allonges to the chain of title is essential." - But when the Promissory Note was produced, all endorsements were present on the back of the Note, making any argument regarding allonges inapposite.. . "Robo-signing" does not have an exact definition. | It refers to various illegal practices used by some in the foreclosure industry to process foreclosure documents faster. Elizabeth Renuart, Property Title Trouble In Non-Judicial Foreclosure States: The Ibanez Time Bomb?, 4 Wm. & Mary Bus L.Rev. 111, 124-26 (2013). One New York court defined "robo-signer" as "a person who quickly signs hundreds or thousands of foreclosure documents in a month, despite swearing that he or she has personally reviewed the mortgage documents and has not done so." OneWest Bank, F.S.B. v. Drayton, 29 Misc.3d 1021, 910 N.Y.S.2d 857, 859 (N.Y.Sup.Ct.2010). . This assignment was executed six months after the foreclosure occurred and was not the basis for any of the parties' authority to foreclose. . Alaskan Adventure Tours, Inc. v. Yakutat, 307 P.3d 955, 961 (Alaska 2013). . Id. (quoting McCall v. Coats, 777 P.2d 655, 658 (Alaska 1989)).

6961109

Marjorie ACHMAN, on behalf of Charles T. Kemp III, Appellant, v. STATE of Alaska, Appellee

Achman ex rel. Kemp v. State

2014-05-09

No. S-14830

1123

1131

323 P.3d 1123

323

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:19:49.086852+00:00

CAP

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

Marjorie ACHMAN, on behalf of Charles T. Kemp III, Appellant, v. STATE of Alaska, Appellee.

Marjorie ACHMAN, on behalf of Charles T. Kemp III, Appellant, v. STATE of Alaska, Appellee. No. S-14830. Supreme Court of Alaska. May 9, 2014. Jason A. Weiner, Gazewood & Weiner, P.C., Fairbanks, for Appellant. Susan M. West, Assistant Attorney General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Appellee. Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.

4047

25176

OPINION MAASSEN, Justice. I. INTRODUCTION Charles Kemp attempted suicide while in administrative segregation at the Anchorage Correctional Complex. He survived but suffered a serious brain injury. His mother, Marjorie Achman, sued the Alaska Department of Corrections (DOC), alleging both a negligent failure to protect Kemp from self-harm and medical malpractice. The superior court granted summary judgment to DOC and awarded attorney's fees to DOC as the prevailing party. Achman appeals; we affirm. II. FACTS AND PROCEEDINGS A. Facts Charles Kemp was arrested for vehicle theft on January 183, 2008, and jailed at the Anchorage Correctional Complex. He initially gave a false name, but DOC soon identified him through his fingerprints and discovered that he was in violation of conditions of his parole. He was retained at the jail. On March 11 or 12, Kemp was sent to administrative segregation for fighting with another inmate. On March 29, while still in segregation, he attempted suicide. Corree-tions officers found him unconscious in his cell. They performed CPR until emergency medical personnel arrived and transported him to Alaska Regional Hospital, where he was diagnosed with an anoxic brain injury. Kemp remained in the hospital until April 15, when he was discharged and returned to the medical segregation unit at the Anchorage Correctional Complex. DOC Medical Director Dr. Rebecca Bingham discussed Kemp's case with his treating physician, then authorized further evaluations and therapy. DOC also assigned Kemp a 24-hour caregiver. On May 2, Kemp was returned to the general population, though he continued to have the assistance of the 24-hour caregiver. On May 8 he was returned to administrative segregation after he stuck his finger in another inmate's food and acted aggressively. He claimed not to remember these events when interviewed the next day by a mental health clinician; the clinician recommended that Kemp be moved to the mental health unit, and he was. Kemp was released from DOC custody on bail on May 16, 2008. He now lives with his mother and stepfather in White Plains, Missouri. Because of his brain injury, he cannot live independently. B. Proceedings Kemp's mother, Marjorie Achman, sued the State of Alaska, alleging that DOC was negligent in failing to protect Kemp from self-harm and in failing to provide necessary medical care after his suicide attempt. DOC moved for summary judgment. It presented evidence, including the affidavits of two DOC physicians, that Kemp's suicide attempt was not reasonably foreseeable and that DOC provided proper medical care after Kemp's discharge from the hospital. Achman's initial opposition presented no evidence but simply argued that negligence actions generally are not susceptible to summary judgment; she predicted that "specific facts will be revealed that will show that there is a genuine issue for trial." In a supplemental opposition, however, Achman presented the affidavit of Jeff Eiser, an expert in "contemporary corrections industry standards and practices," and an affidavit and excerpts from the deposition of Dr. Carl Orfuss, a physician who had also been retained as an expert. The supplemental opposition asserted that there were genuine issues of material fact as to whether DOC had violated its own policies requiring at least daily medical visits to prisoners in segregation, whether Kemp had received adequate mental health sereening before his suicide attempt, and whether he had received adequate medical care afterwards. In a supplemental reply, DOC presented an affidavit from the jail's nursing supervisor, who attested that Kemp had received medical visits at least twice daily while in segregation. The superior court granted DOC's motion for summary judgment. Achman filed a motion for reconsideration, which the superior court denied. The court then awarded DOC, as the prevailing party, $24,297.49 in attorney's fees and $6,539.74 in costs but stayed the judgment pending appeal. Achman appeals the grant of summary judgment and the award of attorney's fees. III. STANDARDS OF REVIEW "We review a grant of summary judgment de novo." "We review the facts in the light most favorable to the non-moving party and draw all factual inferences in the non-moving party's favor." We will affirm a grant of summary judgment "when there are no genuine issues of material fact, and the prevailing party . [is] entitled to judgment as a matter of law." We review an award of Rule 82 attorney's fees for abuse of discretion. An abuse of discretion exists if the award "is arbitrary, capricious, manifestly unreasonable or the result of an improper motive." IV. DISCUSSION A party is entitled to summary judgment "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 a judgment as a matter of law." The moving party "has the burden of showing that there is an absence of a factual dispute on a material fact and that this absence of a dispute constitutes a failure of proof on an essential element." Once the moving party has presented a prima facie case, the non-moving party "must set forth specific facts showing that admissible evidence could be produced that reasonably tends to dispute or contradict the moving party's evidence in order to demonstrate the existence of a dispute of material fact." A. - There Is No Genuine Issue Of Material Fact As To Whether DOC Reasonably Should Have Foreseen Kemp's Suicide Attempt. Jailers owe their prisoners a duty "to exercise reasonable care for the protection of [the prisoners'] lives and health," which "encompasses a duty to prevent self-inflicted harm that is reasonably foreseeable." The "jailer must exercise a higher degree of care when the jailer knows or reasonably should have foreseen that the prisoner was incapacitated, suicidal, or otherwise in danger." In support of its motion for summary judgment, DOC presented evidence that Kemp's attempted suicide was not reasonably foreseeable. Dr. Bingham, DOC's clinical director, testified by affidavit that she had reviewed Kemp's "DOC medical records from January 2008 through May 16, 2008, when he was released from DOC custody," and that based on that review she concluded: (1) that Kemp's initial sereening for suicide risk at the time he was booked into jail showed no sign that he was "likely to harm himself"; (2) that prior to his suicide attempt "(there were no signals of clinical depression or psychosis"; (8) that Kemp "did not request mental health counseling" while in jail; and (4) that nothing in Kemp's file "suggests that he should have been monitored as a suicide risk." On appeal, Achman points to two categories of evidence that she claims raise a genuine issue of material fact; (1) Kemp's medical and DOC records preceding his 2008 incarceration, and (2) Kemp's possession of several books, including the Bible and a novel. 1. DOC records Achman argues that DOC should have reasonably foreseen Kemp's suicide attempt because he had been diagnosed with suicidal ideation between 1995 and 2001. In support of this argument, however, Achman cites only to the report of her expert, Dr. Orfuss, and his review of Kemp's medical history. There is no evidence that the particular medical records on which Dr. Orfuss relies were, or should have been, in DOC's possession at the time of Kemp's attempted suicide, nor does Achman explain why DOC should otherwise have been aware of that earlier diagnosis. Achman also asserts that her son wrote a letter to the DOC parole board in 2005, three years before the events at issue here, in which he talked about having contemplated suicide. But the documents supporting this assertion were never actually presented to the superior court and are not now in the record, and we therefore cannot consider them. Indeed, Achman did not present an argument based on her son's earlier history with DOC until she filed a motion for reconsideration following the entry of summary judgment, when she quoted from the letter to the parole board but did not submit the letter itself. Even had the superior court been required to consider new evidence on reconsideration (which it was not), the un supported factual assertion in Achman's motion for reconsideration was not enough to create a genuine issue of material fact that could defeat summary judgment. 2. Books Achman argues that Kemp's possession of several books, including the Bible and the novel A Lesson Before Dying, "should have led [DOC] to be concerned about Mr. Kemp's mental state while in administrative segregation." The superior court rejected this argument because Achman did not present expert or other evidence "that possession of those books somehow foreshadows suicide." We must draw all reasonable inferences from the evidence in favor of the non-moving party, but Achman fails to explain why a risk of suicide is a reasonable inference to be drawn from the possession of these two books, and the reasonableness of such an inference is not apparent. B. There Is No Genuine Issue Of Material Fact As To Whether DOC Negligently Failed To Follow Its Own Policies. DOC Policy 807.02(VII)(E)(1) states that "[a] health care staff member shall visit segregation units at least daily during routine rounds or while dispensing medication." Achman argues that DOC was negligent because it failed to follow this policy. The evidence related to this issue included segregation logs, health care progress notes, and the affidavit of Cheryl Vargo, the nursing supervisor at the Anchorage Correctional Complex. Vargo attested in her affidavit that she had "reviewed the [DOC] medical records pertaining to Charles Kemp's incarceration in 2008, including his nursing and pharmaceutical records," and from this review had concluded that "Mr. Kemp was personally visited at least twice a day in his cell by a nurse" while he was in segregation. Achman challenges Vargo's testimony by pointing to a six-day gap in the health care progress notes between March 23 and March 29, the day of Kemp's attempted suicide. DOC Policy 807.02(VID(E)®) states that "[hljealth care staff shall record all segregation visits in the Segregation Log and all health care actions in the appropriate medical record." (Emphasis added.) The segregation logs do in fact support the statement in Vargo's affidavit that Kemp received two or three medical visits nearly every day he was in segregation. The health care progress notes on which Achman relies do not purport to be a daily log, and no witness testified that they should be so construed. Again, Achman's argument alone is not enough to create an issue of fact. C. The Superior Court Did Not Err In Granting Summary Judgment On The Medical Malpractice Claim. Achman alleged in her complaint that DOC "failed to provide the necessary medical treatment Mr. Kemp needed after being discharged from Alaska Regional Hospital." In an action for medical negligence, the plaintiff has the burden of establishing the degree of care ordinarily exercised under the cireumstances by health care providers in the defendant's field or speciality, that the defendant failed to exercise this degree of care, and that the defendant's failure to exercise this degree of care proximately caused the plaintiffs injuries. - Ordinarily, the plaintiff is required to present expert testimony in support of the claim that the defendant failed to exercise the required degree of care. DOC supported its motion for summary judgment on the medical malpractice claim with the affidavits of its clinical director, Dr. Bingham, and its medical director, Dr. Henry Luban, both of whom described the medical care Kemp received following his discharge from the hospital, asserted that the medical care met the appropriate standard of care, and concluded that Kemp's injuries, though very unfortunate, were not the result of medical neglect. In her opposition, Achman presented the affidavit of her expert, Dr. Orfuss. Dr. Or-fuss opined that Kemp, following his hospital discharge, had "obvious cognitive and physical deficits from his anoxic brain injury" and "was not able to walk, talk, or feed himself." Dr. Orfuss was of the opinion that Kemp "needed constant supervision and was at risk for hurting himself and others," and that he "should have been placed in the medical ward for ongoing treatment and medical care." Based on the information he had reviewed, Dr. Orfuss concluded that DOC breached the duty to provide this care and generally "failed to provide adequate medical attention to Mr. Kemp after his attempted suicide." As the superior court noted, "[o}rdinarily, such an affidavit would be sufficient to create a question of material fact to survive summary judgment." But Dr. Orfuss's opinion about the level of DOC's medical care was based on his belief that "[uJpon Mr. Kemp's return to [the Anchorage jail, he was housed in general population and not in the medical ward." Dr. Orfuss also testified at his deposition that Kemp had received no rehabilitation services. But these factual assumptions were mistaken, as DOC's records indisputably showed. According to the records, Kemp was placed in medical segregation upon his hospital discharge and kept there until May 2; during this time he was evaluated for occupational, speech, and physical therapy and attended a number of sessions; when he was returned to the general population he was assigned a 24-hour caregiver; he remained in the general population until May 8, when he was placed in administrative segregation because of behavioral issues; and a day later he was returned to the mental health unit in medical segregation, where he remained until his release on May 16. Dr. Orfuss's opinion that Kemp "was housed in general population and not in the medical ward" upon his hospital discharge was based not on the DOC records but rather, as he explained in his deposition, on the allegations of the complaint. Counsel for Achman conceded at the summary judgment hearing that Dr. Orfuss had not reviewed Kemp's DOC medical records at the time he formed his opinions, and the attorney conceded that Kemp had in fact been returned to the medical ward upon his discharge from the hospital. The superior court asked, "So the expert opinion that you offer is based on undisputedly mistaken facts?" - Achman's counsel conceded this to be true. Because Dr. Orfuss's opinion lacked a sufficient foundation in the facts of the case, the superior court found that it was inadequate to "reasonably contradict the State's evidence that Kemp received proper medical care." Affidavits submitted on summary judgment "must be based upon personal knowledge, set forth facts that would be admissible evidence at trial and affirmatively show that the affiant is competent to testify to the matters stated." "Specifically, opinion testimony and hearsay statements that would be inadmissible at trial are inadmissible in a motion for summary judgment." Expert opinions are admissible at trial only if they will "assist the trier of fact to understand the evidence or to determine a fact in issue." An expert's opinion does not need to be based on otherwise admissible evidence, but the facts or data "must be of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." Dr. Orfuss's opinion that DOC failed to meet the applicable standard of medical care plainly misunderstood what Kemp's medical care had actually been. An expert opinion that is not based on the actual facts of the case is unlikely to assist the trier of fact to understand the evidence or determine a fact in issue, as is required for its admissibility under Alaska Evidence Rule 703. Like the superior court, therefore, we conclude that Dr. Orfuss's affidavit was insufficient to create a genuine issue of material fact. On appeal, Achman attempts to recast Dr. Orfuss's opinion as supporting a claim that Kemp's return to the general population, even if it did not happen immediately upon his discharge from the hospital, was still too soon. But Dr. Orfuss's report, his affidavit, and his later deposition testimony all confirm his mistaken factual assumption that Kemp had never been housed in the medical ward. It may be that Dr. Orfuss found DOC's medical care to be inadequate even after having learned what it was, as Achman's counsel advised the trial court during oral argument. But an expert opinion in support of the plaintiff's position-and based on the actual facts of the case-does not appear in the record. Achman's medical malpractice claim fails for another reason: she failed to demonstrate a genuine issue of material fact regarding causation. Achman claims that causation is shown by evidence that (1) following his suicide attempt Kemp was eventually returned to the general population at the Anchorage Correctional Complex, (2) while there he engaged in inappropriate behavior, and (8) he had to be reassigned to the mental health ward. It is true that these facts are undisputed. But Achman presented no evidence tending to show that Kemp's behavioral problems and consequent return to the mental health ward were due to medical malpractice. As the superior court correctly found, none of Achman's expert witnesses "opined that Kemp's damages were in any way aggravated by negligent medical care following [Kemp's] return to DOC eustody," and DOC was entitled to summary judgment on this ground as well. E. The Superior Court Did Not Abuse Its Discretion In Its Attorney's Fees Award. In support of its motion for Rule 82 attorney's fees, the State asserted that it had incurred actual reasonable fees of $121,487.44. The superior court awarded the State 20% of that amount pursuant to Rule 82(b)(2). Achman contends that the award was excessive because the court should have applied the discretionary factors of Rule 82b)(®8)-particularly "other equitable factors deemed relevant" under Rule 82(b)(@8)(K)-given Kemp's disability and lack of. income. However, attorney's fee "[alwards made pursuant to the schedule of Civil Rule 82(b) are presumptively correct," and the (b)(8) adjustments are discretionary. There is nothing in the record from which we could conclude that the superior court was arbitrary, capricious, or manifestly unreasonable when it awarded attorney's fees pursuant to the schedule and declined to apply the discretionary factors of Rule 82(b)(8). v. CONCLUSION For the foregoing reasons we AFFIRM the judgment of the superior court. . Kalenka v. Jadon, Inc., 305 P.3d 346, 349 (Alaska 2013) (citing Fraternal Order of Eagles v. City & Borough of Juneau, 254 P.3d 348, 352 (Alaska 2011). . Id. (citing Fraternal Order of Eagles, 254 P.3d at 352). . Id. (quoting Fraternal Order of Eagles, 254 P.3d at 352) (internal quotation marks omitted). . Weilbacher v. Ring, 296 P.3d 32, 37 (Alaska 2013) (citing Hopper v. Hopper, 171 P.3d 124, 129 (Alaska 2007)). . Id. (quoting Hughes v. Foster Wheeler Co., 932 P.2d 784, 793 (Alaska 1997)) (internal quotation marks omitted). . Alaska R. Civ. P. 56(c). . Greywolf v. Carroll, 151 P.3d 1234, 1241 (Alaska 2007) (citations omitted). . Id. . Joseph v. State, 26 P.3d 459, 466-67 (Alaska 2001) (citations omitted). . State, Dep't of Corr. v. Johnson, 2 P.3d 56, 60 (Alaska 2000) (internal quotation marks omitted). . At oral argument on the summary judgment motion, Achman's attorney conceded that Dr. Orfuss had not reviewed DOC's medical records, which would have shown what DOC knew or should have known about Kemp's mental health. Dr. Orfuss did not reach any other conclusions regarding the foreseeability of Kemp's suicide attempt. . "The record on appeal consists of the entire trial court file, including the original papers and exhibits filed in the trial court, the electronic record of proceedings before the trial court, and transcripts, if any, of the trial court proceedings." Alaska R.App. P. 210(a). "Material never presented to the trial court may not be added to the record on appeal." Id. . Koller v. Reft, 71 P.3d 800, 805 n. 10 (Alaska 2003) (citing Dunn v. Dunn, 952 P.2d 268, 271 n. 2 (Alaska 1998)) (noting that it is not appropriate to submit new evidence on a motion for reconsideration, and this court therefore does not consider such evidence on appeal); Magden v. Alaska USA Fed. Credit Union, 36 P.3d 659, 663 (Alaska 2001) (citing Neal & Co. v. Ass'n of Vill. Council Presidents Reg'l Hous. Auth., 895 P.2d 497, 506 (Alaska 1995)) (observing that Rule 77(k) cannot "be used as a means to seek an extension of time for the presentation of additional evidence on the merits of the claim"). . "We . do not rely on unsupported assertions of fact in memoranda for purposes of our review of summary judgment." Peterson v. State, Dep't of Natural Res., 236 P.3d 355, 363 n. 15 (Alaska 2010); see also Brock v. Rogers & Babler, Inc., 536 P.2d 778, 783 (Alaska 1975) ("Assertions of fact in pleadings and memoranda are not admissib{le] evidence and cannot be relied upon for the purposes of summary judgment."). . A Lesson Before Dying is a popular, prizewinning novel about confronting racial injustice in 1940s Louisiana. See Michael Swindle, Lou{-siana Justice, L.A. Times, May 30, 1993, http:// articles.latimes.com/1993-05-30/books/bk-41358_1_louisiana-justice (reviewing Emwest J. GamEs, A Lesson Berorg Dvinc (1993)). Achman does not address the novel's content or explain why its possession should have caused concern; she apparently seeks an inference of mental instability based solely on the book's title. . Kalenka v. Jadon, Inc., 305 P.3d 346, 350 (Alaska 2013); Alakayak v. British Columbia Packers, Ltd., 48 P.3d 432, 449 (Alaska 2002). . Achman's jail operations expert, Jeff Eiser, opined, among other things, that DOC was negligent because its policies do not comply with the American Correctional Association Performance, Based Standards for Adult Local Detention Facilities. Achman does not, however, pursue this argument on appeal. . The segregation logs and health care progress notes do not appear to have been authenticated in the trial court, but their authenticity is not challenged on appeal, and both parties rely on them. . The segregation log for March 20, 2008, lacks a signature in the section for medical visitors. Kemp's health care progress note for that date, however, shows a "Med Review"" and a prescription for "Naproxen 250 mg." The records thus support Vargo's affidavit testimony, and no evidence contradicts it. . Peterson v. State, Dep't of Natural Res., 236 P.3d 355, 363 n. 15 (Alaska 2010); Brock v. Rogers & Babler, Inc., 536 P.2d 778, 783 (Alaska 1975). . AS 09.55.540(a). . Hertz v. Beach, 211 P.3d 668, 680 (Alaska 2009); see also Midgett v. Cook Inlet Pre-Trial Facility, 53 P.3d 1105, 1115 (Alaska 2002) (citing Kendall v. State, Div. of Corr., 692 P.2d 953, 955 (Alaska 1984)) ("We have held that, where negligence is not evident to lay people, the plaintiff in a medical malpractice action must present expert testimony to establish the claim."). . Kelly v. Municipality of Anchorage, 270 P.3d 801, 804 (Alaska 2012) (quoting Broderick v. King's Way Assembly of God Church, 808 P.2d 1211, 1215 (Alaska 1991)) (internal quotation marks omitted). . Broderick, 808 P.2d at 1215. . Alaska R. Evid. 702(a). . Alaska R. Evid. 703. . See Gen. Motors Corp. v. Harper, 61 S.W.3d 118, 130 (Tex.App.2001) (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995)) ("When an expert's opinion is based on assumed facts that vary materially from the actual, undisputed facts, the opinion is without probative value and cannot support a verdict or judgment."); Rothweiler v. Clark Cnty. 108 Wash.App. 91, 29 P.3d 758, 763 (2001) ("In the context of a summary judgment motion, an expert must support his opinion with specific facts, and a court will disregard expert opinions where the factual basis for the opinion is found to be inadequate."). . In fact, Dr. Orfuss testified that Kemp should never have been returned to jail at all, a position that Achman declines to endorse on appeal. DOC was required to keep Kemp in custody; following his suicide attempt, the district court issued successive orders for Kemp to be held on $2,500 bail. . In addition to Dr. Orfuss, Achman presented the opinion of Carl Gann, an expert in rehabilitation counseling and life-care planning. Gann discussed Kemp's damages but did not opine on causation. . Williams v. Fagnani, 228 P.3d 71, 77 (Alaska 2010). . Id. (citing McGlothlin v. Municipality of Anchorage, 991 P.2d 1273, 1277 (Alaska 1999). . See Weilbacher v. Ring, 296 P.3d 32, 37 (Alaska 2013).

6961203

Brett CONLEY and Marina Conley, Appellants and Cross-Appellees, v. ALASKA COMMUNICATIONS SYSTEMS HOLDINGS, INC., Appellee and Cross-Appellant

Conley v. Alaska Communications Systems Holdings, Inc.

2014-05-09

Nos. S-14194, S-14213

1131

1147

323 P.3d 1131

323

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:19:49.086852+00:00

CAP

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

Brett CONLEY and Marina Conley, Appellants and Cross-Appellees, v. ALASKA COMMUNICATIONS SYSTEMS HOLDINGS, INC., Appellee and Cross-Appellant.

Brett CONLEY and Marina Conley, Appellants and Cross-Appellees, v. ALASKA COMMUNICATIONS SYSTEMS HOLDINGS, INC., Appellee and Cross-Appellant. Nos. S-14194, S-14213. Supreme Court of Alaska. May 9, 2014. Michael W. Flanigan, Flanigan & Bataille, Anchorage, for Appellants and Cross-Appel-lees. Richard W. Maki and David H. Shoup, Tindall Bennett & Shoup, P.C., Anchorage, for Appellee and Cross-Appellant. Before: FABE, Chief Justice, WINFREE, STOWERS and MAASSEN, Justices.

10340

63757

OPINION WINFREE, Justice. I. INTRODUCTION A tractor-trailer driver was injured while unloading cargo. The driver sued the receiving company for damages, arguing that the company negligently trained its forklift operator, the operator was negligent, and the operator caused his injuries. A jury found the company was negligent, but also found that the negligence was not a substantial factor in causing the driver's injuries. The driver appeals, arguing that the superior court erred by admitting propensity evidence regarding his safety record; denying a res ipsa loquitur instruction; and denying motions for directed verdict, judgment notwithstanding the verdict, and a new trial. We affirm the superior court's rulings. II. FACTS AND PROCEEDINGS A. Facts In 2007 Brett Conley drove a tractor-trailer for Lynden Transport, Inc. While working for Lynden, Conley delivered two reels of innerduct to the Alaska Communications Systems (ACS) equipment yard in Anchorage. Danisa Rudolph, an ACS warehouse employee, operated the forklift to unload the reels from the Lynden trailer. ACS protocol called for Rudolph, as the forklift operator, to hold a "toolbox meeting" with Conley to advise him how she intended to conduct the lift and what his role would be. Rudolph did not hold the meeting. Conley signaled Rudolph to begin unloading. Rudolf placed the forks under one of the reels on the trailer and lifted the reel, but it is unclear whether she fully tilted the load back so that the reel would rest against the forklift mast. Conley signaled Rudolph to back up. She backed up approximately six to eight feet and began lowering the reel to the ground. Conley signaled Rudolph to stop and he began removing the chain that ran through the reel's opening back to the trailer. Despite having been trained not to do so, Conley stepped in front of the reel while removing the chain. As Conley pulled the chain, the reel began to tilt toward him. He tried to steady the reel, but it was too big; as he turned around to get out of the way, the reel fell onto his lower back. Conley suffered three fractured ribs, a punctured lung, a chipped hip socket, and several broken lumbar vertebrae. Following the incident Conley appeared to experience neurological symptoms. He was referred to a neurologist, was diagnosed with a motor neuron condition called Amyotrophic Lateral Sclerosis (ALS, or Lou Gehrig's disease), and was given a prognosis of 18 to 36 months to live. But when Conley began improving, he was referred to another neurologist for a second opinion. That neurologist concluded Conley did not have ALS, but instead had a trauma-induced motor neuron syndrome caused by the accident. B. Proceedings Conley sued ACS and Rudolph, alleging that Rudolph had negligently operated the forklift and that ACS had negligently failed to provide Rudolph adequate equipment and training. ACS filed a third-party complaint against Lynden, seeking fault allocation and damages apportionment based on Lynden's negligent training and retention of Conley as an employee. The parties agreed ACS could dismiss its third-party claim against Lynden while still allowing the jury to consider allocation of fault to Lynden. The parties also stipulated to dismiss Conley's claims against Rudolph. Conley filed a pretrial motion in limine to exclude evidence relating to "[pJrior work incidents or write-ups [involving Conley's work at Lynden] unrelated to the facts of this accident" and filed a written objection to ACS's proposed Trial Exhibit 2085, a compilation of Conley's write-ups for past misconduct and accidents while working for Lyn-den. ACS responded that the evidence was relevant to Lynden's negligence in retaining Conley and to the cause of the motor neuron disease. In reply, Conley's primary arguments were that ACS's negligence was a superseding cause negating the relevance of any of his previous work-related incidents and that any prior incident unrelated to the accident at ACS was not relevant. The superior court denied the pretrial motion without comment. - Conley did not object when ACS referred to the evidence during opening statements, used the evidence while examining witnesses during trial, and referred to the evidence during closing arguments. When ACS moved to admit Exhibit 2085 during trial, Conley's attorney stated, "[nlo objection." At no time before or during trial did Conley request an instruction to the jury that the evidence be considered for limited purposes. At the close of trial, Conley moved for a directed verdict that he had "established that the accident caused his back injury, [and] his orthopedic injuries," and that he was "entitled to any damages connected to those injuries." The superior court denied the directed verdiet motion. Conley requested a jury instruction based on the res ipsa loquitur doctrine, providing that the jury could infer ACS was negligent if Conley demonstrated that "(1) the event that caused the harm does not ordinarily happen unless someone is negligent, [and] (2) the harmful event was caused by something that was under the defendant's exclusive control." ACS opposed the proposed instruction, arguing that res ipsa loquitur was inapplicable because each party offered a complete explanation of the accident and that Conley's proposed instruction omitted the third element: proof the plaintiff did not contribute to or cause the accident. The superior court refused to issue the instruction, reasoning that the third element was not met in light of evidence that Conley's negligence could have contributed to the accident. The jury returned a special verdict finding that ACS was negligent, but that ACS's negligence was not a substantial factor in causing Conley's harm. Conley moved for judgment notwithstanding the verdiet (JNOV) and a new trial on all issues other than negligence. The superior court denied both motions. Conley appeals, arguing that it was error to admit evidence of his past work-related incidents; to reject the res ipsa loquitur in struction; and to deny the motions for a directed verdict, JNOV, and new trial. ACS cross-appeals a number of the superior court's evidentiary rulings, but, because we affirm the judgment, we do not reach ACS's cross-appeal issues. III. DISCUSSION A. Evidence Of Conley's Past Incidents Conley filed a pretrial motion in limine for a protective order barring evidence of past incidents at Lynden and filed a written objection to Trial Exhibit 2085, a compilation of write-ups of Conley's work-related misconduct and accidents. The write-ups doeu-mented that Conley: (1) slipped on ice while working; (2) exhibited abusive behavior toward a supervisor; (8) took excessive breaks and was not performing quickly enough; (4) dropped a heavy metal dock plate on his foot and in a fit of anger threw a hammer; (5) ran a forklift into a sprinkler system, causing $500 in damages; and (6) forgot to load three items onto a delivery truck. _ Conley argued the evidence was inadmissible because it was irrelevant and unrelated to the dissimilar accident at issue, it was evidence of prior bad acts to prove character, and its probative value was outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, or causing undue delay. ACS opposed the motion, arguing that the evidence was relevant to whether Lynden negligently retained Conley as an employee and to whether Conley suffered motor neuron disease symptoms prior to the accident, and that the evidence was more probative than prejudicial. The superior court denied the pretrial motion without explanation. The court was not required to explain its ruling, and we assume the court accepted ACS's arguments that: (1) the evidence would not be offered solely for propensity purposes, but rather as support for its theories that Lynden was negligent and at least partly responsible for the accident and that Conley showed motor neuron disease symptoms prior to the accident; and (2) the evidence was more probative than prejudicial. Conley did not request a limiting instruction-although it seems apparent he would have been entitled to one had he requested it-restricting the use of the evidence only to ACS's claims that Lynden was negligent and that Conley showed motor neuron disease symptoms before the accident, and not to ACS's claim that Conley himself was negligent. Conley did not object or request a limiting instruction when ACS referred to the evidence during opening statements, and he did not object or request a limiting instruction when ACS actually used the evidence with witnesses. When ACS moved to admit Ex hibit 2035 into evidence, Conley's attorney stated, "InJo objection" without requesting a limiting instruction. Conley did not object or request a limiting instruction when ACS referred to the evidence during closing arguments. On appeal Conley argues that the evidence was inadmissible propensity evidence not offered for a proper purpose and that its probative value was outweighed by the danger of unfair prejudice. Conley asserts that ACS's actual use of the evidence for propensity purposes demonstrates that denying his pretrial motion was not harmless error. ACS responds that the superior court did not abuse its discretion by denying the pretrial motion in limine and that Conley failed to preserve for appeal the issue of how the evidence was used at trial because he neither objected nor requested a limiting instruction during trial. Conley replies that he had no obligation to object during trial because the superior court had previously denied his motion in limine to preclude the evidence. We agree with ACS. Alaska Evidence Rule 404(b)(1) governs the admission of propensity evidence and provides: "Evidence of other . acts is not admissible if the sole purpose for offering the evidence is to prove the character of a person in order to show that the person acted in conformity therewith." (Emphasis added.) That rule, however, also provides that evidence of prior acts may be admitted for a proper purpose, "including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." (Emphasis added.) If a court determines such evidence is admissible for a proper purpose, Alaska Evidence Rule 408 then requires the court to weigh the probative value of the evidence against the danger of unfair prejudice. The first question we must ask is whether the superior court erred by determining that the disputed evidence was relevant to ACS's two trial theories ACS explained to the superior court that Conley stood out in terms of safety problems, that he violated safe working procedures, and that he performed slowly, "exhibitled] slurred speech, and would occasionally fall or stumble like he was intoxicated." ACS contended that some of this evidence was relevant to apportioning fault to Lynden "for negligently employing a driver who was either careless or unable to perform safely." ACS also contended that some of this evidence was relevant to the cause of Conley's motor neuron condition-noting motor neuron disease symptoms such as "[sllowness and difficulty of movement, slurred speech and clumsiness, seemingly characteristic of drunkenness, and angry outbursts," ACS said it would use the evidence of Conley's records to show that his motor neuron disease predated the accident. ACS also noted that "[blecause of its effect on the body and motor coordination, people with ALS are prone to accidents." Further, ACS submitted an opinion from one medical doe-tor that "[the cause of ALS is . not known," and that "[t]he chance that ALS was actually caused by trauma in this case is exceedingly small." The doctor explained that "[Conley's] ALS quite possibly started before his injury," noting that "[tlhere had been at least one observation of speech difficulty before the accident by a superior at work [and] [there had also been observations of shortness of breath, slowness at work, and difficulty with speech and movement." ACS submitted deposition testimony from another medical doctor that in determining the cause of Conley's motor neuron condition, he would place weight on evidence of stumbling or slurred speech. When the superior court considered Conley's pretrial motion, each piece of disputed evidence could reasonably be seen to have some permissible relevance: (1) the write-up for abusive behavior towards a supervisor could suggest emotional outbursts symptomatic of motor neuron disease, but is less probative of Lynden's knowledge of Conley's attitude toward safety; (2) the accident report that Conley's foot slipped off a forklift brake could be probative of Lynden's knowledge of Conley's carelessness when loading and unloading cargo or of coordination problems from a preexisting motor neuron disease; (8) the verbal warning that Conley was performing slowly and lacked initiative could be probative of difficult movement caused by a motor neuron disease; (4) the warning letter that Conley "need[ed] to pay closer attention when loading trailers" could indicate that Lynden should have known he was careless when loading and unloading cargo, but is less probative of the motor neuron disease; (5) the injury report for a slip and fall on ice could indicate coordination problems from a preexisting motor neuron disease, but it is less probative of his carelessness and Lynden's negligence; (6) the warning letter that Conley dropped a dock plate on his foot and threw a hammer could indicate that Lynden should have known Conley was careless when loading and unloading cargo, and the accident and outburst could be probative of a motor neuron condition. Conley's opening brief to us regarding the denial of the motion in limine does not mention ACS's pretrial contention that the proffered evidence was relevant to its trial theory that he exhibited signs of a motor neuron disease prior to the accident. Any argument that the proffered evidence directed to that issue was not relevant is waived. Conley's argument that the proffered evidence was not relevant to ACS's claim that Lynden negligently trained and retained him as an employee essentially is limited to the following statements: None of the evidence was relevant as to the key issue in this case, which was why did the reel fall off of the fork lift forks onto Conley, nor were probative as to whether the specific actions of Conley in approaching the reel to remove his chains was negligent. None of the write ups demonstrated that Lynden . was put on notice of conduct on the part of Conley that was related to his actions which ACS alleged was a cause of the accident. The first statement is simply wrong. There were two relevant key issues-the timing and cause of Conley's motor neuron disease, and whether Lynden was negligent and a legal cause of the accident such that fault could be attributed to it. The second statement goes more to the weight to be given the evidence rather than its admissibility, and certainly some of the evidence related to Conley's work loading and unloading cargo. While the evidence varied in its probative value, ACS at least demonstrated that the evidence was relevant to non-propensity purposes. And even if the incidents were not all highly probative, they went to important issues. Accordingly, we conclude that the superior court did not err at the pretrial stage in determining that the disputed evidence was relevant to ACS's trial theories. The second question we must ask is whether the superior court abused its discretion in determining that the probative value of the evidence outweighed the danger of unfair prejudice. Conley would have us review the superior court's decision based on how ACS actually used the evidence at trial, arguing that ACS's use of the evidence as propensity evidence demonstrates not only the danger of unfair prejudice, but actual unfair prejudice, and that the superior court therefore abused its discretion by denying his motion in li-mine. But the superior court's decision was based on its pretrial weighing of the probative value of the evidence and the danger of unfair prejudice from the presentation of that evidence in the manner and for the purpose proffered. The superior court could reasonably assume that ACS would present the evidence for its stated purposes and that if ACS strayed from those purposes during trial, Conley would object and, if necessary, request a limiting instruction. The superior court's denial of the motion in limine did not mean ACS's use of the evidence at trial was unfettered, and Conley's failure to take appropriate action when ACS improperly used the evidence during trial does not mean the superior court abused its discretion before trial by denying the motion in limine. And Conley does not argue on appeal that when the superior court denied the motion in li-mine and Conley then failed to ask for any kind of limiting order regarding use of the evidence, the superior court committed plain error by not sua sponte placing limits on ACS's proposed use of the evidence. In light of what was before the superior court in connection with the pretrial motion in limine-inceluding the reasonable assumptions that ACS would follow the rules in its presentation of the disputed evidence and that Conley would, if he deemed it necessary, raise appropriate objections and ask for appropriate limiting instructions-and in light of Conley's failure to make any argument to us in his opening brief that ACS's proposed use of the evidence on the motor neuron disease issue violated Alaska Evidence Rules 402-404, we cannot say that "the potential danger predominated so greatly as to leave us firmly convinced that admitting the challenged evidence amounted to a clear abuse of discretion." Based on all of the foregoing, and the required deferential standard of review, we affirm the superior court's pretrial denial of Conley's motion in limine. We now turn to Conley's assertion that ACS's actual use of the evidence during trial itself warrants reversal. Conley asserts that ACS used the evidence for propensity purposes in several instances. For example, in examining one witness ACS asked, "Mr. Conley was one of the people who stood out in terms of safety problems of the Lynden drivers? - Right?" With another witness ACS asked, "[Wlould you agree . that he kind of has got a pretty spotty record, including for safety?" then stated, "He's not a very » safe guy to begin with." In its closing argument, ACS listed the past incidents and said, "Mr. Conley is somebody who would do this. No one else in the history of these unloads . had gone in front of a reel while it was still up on the forks. Mr. Conley was impatient, he was angry, he did things he knew not to do...." But Conley neither objected nor requested curative instructions during these instances. Conley argues that under Landers v. Mu-mnicipality of Amchorage he had no obligation to object to the use of the evidence during trial because the superior court already had ruled on its admissibility pretrial. Landers involved a lawsuit over destruction of personal property in which the superior court granted a motion in limine to exclude evidence of the property's sentimental and emotional value. The defendant argued on appeal that the plaintiff waived his right to challenge the ruling on the motion in limine because he did not object to certain jury instructions that reflected the ruling. We concluded that failing to object to the instructions did not prevent us from reviewing the motion in limine. Landers is distinguishable from this case for two reasons. First, the argument in Landers was that the failure to object to the jury instruction prevented us from reviewing the pretrial ruling. ACS concedes we can review the pretrial ruling here, but argues that Conley waived the right to challenge the actual use of the evidence at trial. Second, unlike the single-issue discrete category of damages in Landers, here we have two distinct issues: (1) the superior court's decision to allow the disputed evidence for the permissible purposes ACS proffered; and (2) ACS's actual use of the disputed evidence for impermissible purposes. - The - superior court's decision to allow admission of the disputed evidence for certain permissible purposes was not a decision that the disputed evidence could be used for impermissible purposes. Conley was obligated to stay vigilant to ACS's evidence use during trial and to object to possible violations of the evidence rules. Because Conley failed to object to the improper uses of the past incidents and write-ups, that issue was not preserved for appeal. Absent a preserved evidentiary objection, we reverse the use of evidence only if we conclude there was plain error. But Conley does not argue that the superior court committed plain error by not sua sponte limiting ACS's attorney's use of the disputed evidence during trial. Conley argues that the superior court erred in its initial pretrial ruling and that Conley was powerless to object when ACS impermissibly used the evidence during trial. Having already resolved those arguments, we do not consider plain error. B. Res Ipsa Loquitur Instruction Conley challenges the superior court's rejection of his proposed res ipsa loquitur instruction. Jury instruction decisions generally involve questions of law to which we apply our independent judgment. The res ipsa loquitur doctrine applies only "when an accident ordinarily does not occur in the absence of negligence." It allows a plaintiff claiming negligence to rely upon cireamstances surrounding an injury as an inferential bridge for establishing breach of a duty of care. However, a plaintiff cannot rely on res ipsa loquitur if the evidence furnishes a complete explanation of the accident. That is, "if the evidence discloses the cireumstances of the accident to the extent that there is nothing left to infer, then the doctrine of res ipsa loquitur, which is founded upon inference, is no longer needed." Although res ipsa loquitur is not precluded merely because a litigant offers a possible explanation of the events, it is precluded where a witness directly involved in the incident completely describes the cireum-stances. For example, we rejected res ipsa loquitur in a suit arising from a car accident when the driver testified to the events surrounding the accident and in a suit arising from an airplane crash when the passenger testified to the pilot's specific acts prior to the crash. Here both Conley and Rudolph witnessed the accident and testified about their perceptions of the event. Rudolph testified that she lifted the reel with the forklift, moved the reel away from the trailer and lowered it to a few inches above the ground. She explained how Conley signaled for her to stop, how he stepped in front of the reel and pulled on a chain through the center, and how the reel toppled. Conley described the same events from his perspective. Though neither explained exactly what caused the reel to fall, they presented the jury with a complete, eyewitness account of the accident's circumstances. Both parties presented other testimony relying on these eyewitness accounts to explain the accident's cause. Because the jury received a complete account of the accident's cireumstances, there was no need for res ipsa loquitur's inferential bridge to breach of duty and the superior court did not err in declining to issue that instruction. C. Directed Verdict, JNOV, And New Trial Motions Conley argues that the superior court erred by denying his motion for a directed verdict at the close of the evidence, his motion for judgment notwithstanding the verdict (JNOV), and his motion for a new trial. We first address the directed verdict and JNOV motions, then turn to the new trial motion. The denial of a directed verdict or JNOV is reviewed de novo. "Where such a motion is evidence based, a trial court can . grant the motion [only when] the evidence is such that, when viewed in the light most favorable to the nonmoving party, reasonable people could not differ in their judgment; an appellate court must use the same test. Conley asked the superior court to direct a verdict that he had "established that the accident caused his back injury, [and] his orthopedic injuries," and that he was "entitled to any damages connected to those injuries." After the jury verdict, Conley renewed the argument in a motion for JNOV. ACS opposed both motions, arguing that Conley had not established who was at fault for the accident. We agree with ACS: Whether the accident caused Conley's orthopedic injuries was not the threshold question for the jury; the threshold question was whether ACS's negligenece-not the accident generally-eaused the injuries. Conley's special verdiet form read: "Was defendant, ACS's negligence a substantial factor in causing harm to the plaintiff, Brett Conley?" The real heart of Conley's argument is that the jury could not return a sustainable verdict by finding that ACS was negligent, but that its negligence was not a substantial factor in causing Conley's harm. Conley argues that "given the evidence at trial, no reasonable juror could decide that ACS's negligence was not a cause of [Conley's] injury." Conley essentially argues that in finding negligence but not causation, the jury returned an inconsistent verdict. But we have said that "[wle will not disturb a jury verdict if there is a theory which reconciles the apparent inconsistencies." In moving for JNOV, Conley asked, "How could defendant's forklift operator being negligent not be the cause of the accident?" But ACS reconciles any apparent inconsistency, pointing out that the jury could have found that ACS was negligent on other grounds and that this negligence was not a substantial factor in causing Conley's injuries. First, there was evidence that Rudolph did not negligently operate the forklift Both Rudolph and Conley testified that the forks were fully tilted back, correctly positioning the reel on the lift. Witnesses, including one of Conley's experts, asserted that there was no possibility the reel could have fallen off the lift if the forks were properly positioned. But ACS's engineering expert testified that even with the forks properly positioned, if the chain running through the reel got caught in a manner lending Conley a mechanical advantage, Conley could have caused the reel to fall when he pulled on the chain. Conley testified that when he tried to remove the chain it "bound a little bit," so he "gave it a good pull" and then dropped the chain, all before the reel fell over. In a pretrial statement introduced at trial, Conley said he realized he "kind of pulled [the chain] too hard." Although Conley argues that ACS's expert testimony is speculative and could not form the basis of the jury's opinion, we do not agree. Based on Conley's own testimony, the jury could have found suffi-client facts to support the expert opinion. Second, the jury could have found ACS negligent because Rudolph failed to hold a "toolbox meeting" before unloading the reel to ensure that Conley was apprised of proper unloading procedures, or, as Conley's forklift expert testified, because ACS inadequately trained Rudolph. Neither of those theories necessarily contradicts the jury's finding of no causation. In light of Conley's testimony that he had transported similar reels "hundreds" of times and that he had been taught not to stand where a load could fall on him and not to approach a reel unless it was secure, the jury could have concluded that Rudolph's failure to instruct Conley on unloading procedures at a "toolbox meeting" had no bearing on the conduct leading to the accident. Similarly, in light of testimony that Rudolph properly operated the forklift, the jury could conclude that ACS's failure to adequately train Rudolph was not a cause of the accident. Considering this evidence in the light most favorable to ACS, the jury could have con cluded that ACS was negligent but that ACS's negligence did not cause Conley's injuries. Therefore we cannot agree that "no reasonable juror could decide that ACS's negligence was not a cause of [Conley's] injury." The superior court did not err in denying a directed verdict and JNOV. Conley also argues that the superior court erred in denying his motion for a new trial. The decision to grant or deny a new trial is within the trial court's discretion. - We will "disturb the [superior] court's exercise of discretion only in the most exceptional cireumstances to prevent a miscarriage of justice"; that is, "when evidence to support the verdict was completely lacking or was so slight and unconvincing as to make the verdict plainly unreasonable and unjust." Again we view the evidence in the light most favorable to the non-moving par-1337. Conley raises three arguments in support of his motion for a new trial. As in the JNOV argument, Conley asserts that the evidence "was so slight and unconvincing" as to not support the jury's finding of no causation. But as outlined above, viewing the evidence in favor of ACS, the jury could have found ACS negligent in a manner that did not cause Conley's injuries. The evidence of no causation was not so slight and unconvine-ing as to make the verdict unreasonable and unjust. Conley also argues that a new trial is warranted because of the admission of prejudicial propensity evidence and the rejection of his res ipsa loquitur instruction. We addressed both of those issues above and found no reversible error. Therefore the superior court did not err in denying Conley's motion for a new trial. v. CONCLUSION We AFFIRM the superior court's judgment. CARPENETI, Justice, not participating. . Marina Conley, his wife, joined him in bringing suit. . See Alaska R. Evid. 402 ("Evidence which is not relevant is not admissible."); of. Alaska R. Evid. 401 (''Relevant evidence means 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."). . See Alaska R. Evid. 404(b)(1) ("Evidence of other . acts is not admissible if the sole purpose for offering the evidence is to prove the character of a person in order to show that the person acted in conformity therewith.") (emphasis added). . See Alaska R. Evid. 403 ("Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."). . See Alaska R. Civ. P. 52(a) ("Findings of fact and conclusions of law are unnecessary on decisions of motions . 41(b)."). except as provided in Rule . Cf. supra note 3. . See, e.g., Hoekzema v. State, 193 P.3d 765, 771 (Alaska App.2008) ("[The judge] offered no explanation for his ruling. We therefore presume that the judge adopted the prosecutor's argument...."). . See Alaska R. Evid. 105: When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. In cases tried to a jury, evidence inadmissible as to one party shall not be admitted as to other parties until the court has made all reasonable efforts to effectively delete all references to the parties as to whom it is inadmissible. (Emphasis added.) . - "We review a trial court's rulings on a motion in limine according to the underlying relief sought in the motion." Heynen v. Fairbanks, 293 P.3d 470, 474 (Alaska 2013). The relief sought in Conley's motion in limine-preclusion of evidence-generally calls for abuse of discretion review. Id. (citing State v. Doyle, 735 P.2d 733, 739-40 (Alaska 1987).) But whether the trial court "applie[s] the correct legal standard is a question of law to which we apply our independent judgment." Ayuluk v. Red Oaks Assisted Living, Inc., 201 P.3d 1183, 1194 (Alaska 2009). . - Alaska R. Evid. 404(b)(1). . Cf. supra, note 4; see, eg., Ayuluk, 201 P.3d at 1194-96. We review such balancing for abuse of discretion, see, e.g., id. at 1194, and have stated that we review a Rule 403 decision by "ba-lancling] the danger of unfair prejudice against the probative value of the evidence 'to determine whether the potential danger predominated so greatly as to leave us firmly convinced that admitting the challenged evidence amounted to a clear abuse of discretion under . Rule 403.'" Brandner v. Hudson, 171 P.3d 83, 87 (Alaska 2007) (quoting Bluel v. State, 153 P.3d 982, 987 (Alaska 2007)). The dissent argues that Rule 404(b)(1) carries with it a presumption against the admissibility of prior bad acts for any purpose due to the potentially significant prejudicial impact. The dissent relies exclusively on pre-1991 Alaska criminal case law stating that Rule 404(b)(1) is a rule of exclusion, not inclusion, of evidence of prior crimes. See, e.g., Oksoktaruk v. State, 611 P.2d 521, 524 (Alaska 1980); Lerchenstein v. State, 697 P.2d 312, 315 n. 2 (Alaska App.1985), aff'd 726 P.2d 546 (Alaska 1986). The dissent acknowledges the Legislature amended Rule 404(b) in 1991, and we note that the court of appeals has held the amendment transformed the rule from one of exclusion to one of inclusion. Pavlik v. State, 869 P.2d 496, 498 n. 1 (Alaska App.1994); see also Gehrke v. State, Mem. Op. & J. No. 5685, 2011 WL 746459, at *4 n. 10 (Alaska App. Mar. 2, 2011) ("[Tlhe rule regarding evidence of other crimes was regarded as a rule of exclusion . [and] the rule has since been amended to make it one of inclusion." (emphasis in original)). The dissent suggests that the rule change is limited to criminal cases and has no application in civil cases and that the presumption of exclusion applies here. But see Ayuluk, 201 P.3d at 1194-95 (applying Rules 403 and 404(b) to reverse exclusion of evidence without mentioning presumption of exclusion). These issues were not raised in the superior court, were not raised on appeal, were not briefed by the parties, and are not properly before us. We leave these issues for another day. . Kingery v. Barrett, 249 P.3d 275, 285 (Alaska 2011) (stating party waives legal arguments by "inadequately briefing them"); Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n. 3 (Alaska 1991) ("[Where a point is given only a cursory statement in the argument portion of a brief, the point will not be considered on appeal."). . For purposes of Conley's appeal, we accept his argument that ACS actually used the evidence as propensity evidence directed at Conley rather than as evidence of Lynden's negligence or the timing of Conley's motor neuron disease. . Cf., Alaska R. Evid. 105 ("When evidence which is admissible . for one purpose but not admissible . for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.") (emphasis added); see also Sowinski v. Walker, 198 P.3d 1134, 1160 (Alaska 2008) (explaining limiting instruction is required only if requested). The dissent contends that the superior court had an independent obligation "to inform the parties of the permissible non-propensity purpose and to offer them an appropriate limiting instruction to ensure that the jurors considered the evidence only for non-propensity purposes." Because Conley did not raise this issue of first impression on appeal and neither party had reason to brief it to us, we do not consider it here, but rather leave it for another day. . Brandner, 171 P.3d at 87. . 915 P.2d 614 (Alaska 1996). . Id. at 615-16. . Id. at 617. . Id. . Id. . See Laidlaw Transit, Inc. v. Crouse ex rel. Crouse, 53 P.3d 1093, 1102-03 (Alaska 2002) (holding that to preserve issue for appeal defendant needed to object at trial to expert testimony exceeding scope of pretrial ruling); see also State v. Thomes, 697 A.2d 1262, 1264 (Me.1997) (holding that defendant failed to preserve issue for appeal when pretrial ruling admitted evidence for a limited purpose, evidence presented at trial exceeded that purpose, and defendant failed to object). . Alaska R. Evid. 103(d); see also Adams v. State, 261 P.3d 758, 764 (Alaska 2011). To rise to the level of plain error, the error must be obvious, must be prejudicial, must affect substantial rights, and cannot be the result of an intelligent waiver or a strategic decision not to object. Khan v. State, 278 P.3d 893, 900 (Alaska 2012) (citing Adams, 261 P.3d at 771). . The dissent argues that the trial testimony ACS actually adduced did not support its pretrial assertions about the relevance of the proffered evidence. But even assuming this to be the case, it does not mean that the superior court erred in its pretrial ruling based on what was presented to it at that time. And had Conley made an objection during trial or asked the superior court to revisit its evidentiary ruling in light of actual trial testimony, he might well have obtained appropriate relief. He did not do so, and he does not now argue that the superior court committed plain error by not sua sponte taking action. We therefore do not address this issue. . L.D.G., Inc. v. Brown, 211 P.3d 1110, 1118 (Alaska 2009) (citing Pagenkopf v. Chatham Elec., Inc., 165 P.3d 634, 646 n. 50 (Alaska 2007)). . Falconer v. Adams, 974 P.2d 406, 414 n. 12 (Alaska 1999) (citing State Farm Fire & Cas. Co. v. Municipality of Anchorage, 788 P.2d 726, 730 (Alaska 1990)). . Id. . Widmyer v. Se. Skyways, Inc., 584 P.2d 1, 11 (Alaska 1978). . Crawford v. Rogers, 406 P.2d 189, 193 (Alaska 1965). . See Widmyer, 584 P.2d at 11-12 (reasoning that a possible explanation of events did not preclude res ipsa loquitur instruction when there were no survivors to testify, there was no direct evidence of accident's cause, and there was heavy reliance on expert witnesses); see also State Farm, 788 P.2d at 731 (allowing a res ipsa loquitur instruction when there were no eyewitnesses and only expert inferences as evidence of incident's cause). . Evans v. Buchner, 386 P.2d 836, 837 (Alaska 1963) (holding res ipsa loquitur inapplicable in car accident suit when driver "explained to the best of his recollection everything that occurred prior to the [car] overturning"). . Crawford, 406 P.2d at 193-94 (holding res ipsa loquitur inapplicable in airplane crash suit when passenger described pilot's conduct that could have caused airplane to go into a spin). . Borgen v. A & M Motors, Inc., 273 P.3d 575, 584 (Alaska 2012); Cameron v. Chang-Craft, 251 P.3d 1008, 1016-18 (Alaska 2011). . Borgen, 273 P.3d at 584 (citing Cameron, 251 P.3d at 1016-18; Lynden, Inc. v. Walker, 30 P.3d 609, 612 (Alaska 2001); Mullen v. Christiansen, 642 P.2d 1345, 1348 (Alaska 1982)). . Yang v. Yoo, 812 P.2d 210, 215 (Alaska 1991); see also Borgen, 273 P.3d at 585 ("To give effect to the jury trial right in civil cases, a court must determine, by examining the pleadings, instructions, arguments, and evidence, whether there is a logical view of the case that harmonizes what seems at first to be an inconsistent verdict.") (quoting Schmit v. Stewart, 601 P.2d 256, 256 (Alaska 1979) (internal quotation marks omitted)). . Marron v. Stromstad, 123 P.3d 992, 998 (Alaska 2005) (citing Kava v. Am. Honda Motor Co., 48 P.3d 1170, 1173 (Alaska 2002)). . Id. (quoting Getchell v. Lodge, 65 P.3d 50, 53 (Alaska 2003)) (quotation marks omitted). . Id. (citing Kava, 48 P.3d at 1173). . See id. . In his statement of points on appeal, Conley asserted that the superior court erred in denying a JNOV or new trial as to the absence of Conley's and Lynden's comparative negligence. Because these arguments were not addressed in Conley's briefing, we do not consider them here. Patrawke v. Liebes, 285 P.3d 268, 271 n. 7 (Alaska 2012) ("[WJhere a point is given only a cursory statement in the argument portion of a brief, the point will not be considered on appeal." (alteration in original) (quoting Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n. 3 (Alaska 1991))).

10365113

Jeanette JAMES, Jed T. Williams, and Sheila J. Williams, Appellants, v. STATE of Alaska, Appellee

James v. State

1991-07-19

No. S-3515

352

360

815 P.2d 352

815

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Jeanette JAMES, Jed T. Williams, and Sheila J. Williams, Appellants, v. STATE of Alaska, Appellee.

Jeanette JAMES, Jed T. Williams, and Sheila J. Williams, Appellants, v. STATE of Alaska, Appellee. No. S-3515. Supreme Court of Alaska. July 19, 1991. Thomas R. Wickwire, Fairbanks, for appellants. Cameron M. Leonard, Asst. Atty. Gen., Fairbanks and Douglas B. Baily, Atty. Gen., Juneau, for appellee. Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.

5014

31572

OPINION RABINO WITZ, Justice. I. FACTS AND PROCEEDINGS This is an appeal from a grant of summary judgment. Accordingly, the facts are presented in the light most favorable to appellants. In 1980, the Alaska Department of Natural Resources (DNR) conducted the Pot-latch Ponds land lottery. However, the legality of the lottery was challenged and, after a timely appeal, we held the lottery invalid. State v. Weidner, 684 P.2d 103 (1984). Lottery proceedings continued during the appellate process, but no conveyances were permitted until the case was concluded. Beginning in 1982, during the pendency of Weidner, the DNR began investigating possible means of curing the embroiled lottery. One alternative was a reoffer. In 1982, Jerry Brossia, head of the Fairbanks office of the DNR, drafted a "John Doe" letter indicating the state's intention to conduct a reoffer. Brossia's letter stated in part, If the reevaluation process results in a reoffer of [the] Potlatch Ponds disposal, it is the State's intention to offer a preference right to the original Potlatch Ponds "winners" in accordance with AS 38.05.035(b)(2). The preference right will entitle the Potlatch Pond "winner" to purchase the parcel he was originally drawn for in lottery # 3. This statute allows the Director of the Division of Land and Water Management to grant a preference right to a designated parcel of state land to an individual who has been done an inequity [by] the errors or omissions of a state or federal agency.... Although we will continue to appeal [the superior court's] ruling, in order to avoid a similar challenge to a new offering of Potlatch Ponds, we will have to avoid the "errors" which [the superior court] found with the original disposal. As a result, some changes may be made; we hope the changes will be minor. Of course, if a particular parcel is eliminated in the reof-fering, we would grant the winner of that parcel the option of a preference right to a comparable parcel elsewhere, or that person may choose to decline a preference right in the hope that the Supreme Court decides [Weidner] in favor of the original disposal. In April 1982, Dick LeFebvre, a deputy director at DNR, wrote directly to Potlatch Ponds lottery winners and notified them of the state's intentions relating to the reof-fer. LeFebvre's letter indicated that the reoffer was still in the "planning process," and that "previous winners whose parcels are determined in the process to be best suited for agricultural disposal and who have not relinquished their parcel, will be eligible for consideration for a preference right to purchase the parcel they would have otherwise obtained had the [Weidner] suit not been filed." The letter further stated, If the land is determined unsuitable in a parcel previously awarded it will not be available in the new offering but if the individual has not previously relinquished the parcel, the individual will be granted a preference right to another parcel from the lands available for disposal within the management plan.... The letter also notified lottery participants of an upcoming meeting to discuss topics raised in the letter. Thereafter, several public meetings were held in which DNR officials discussed the proposed reoffer with Potlatch Ponds winners. At the first of these meetings, with Jeanette James and "Bud" Williams (Jed Williams' father) in attendance, Bob Cannon, a DNR official, "indicated preference rights would [be] given to parcel 'winners' in the new lottery [but that these] (must be applied for and approved by the Commissioner of DNR)...." LeFebvre added that "to be eligible for a preference right the 'winner' must first relinquish any previous rights." Three subsequent meetings between the public and DNR officials were held in 1982. At these meetings the DNR again stated that a possible resolution would allow Potlatch Ponds lottery winners to apply for a preference right "to purchase that land again," but "that preference right will have to be okayed by first the director of . Land and Water Managment and secondly by the Commissioner of Natural Resources." In 1985, Division of Land and Water Management Director Hawkins wrote a letter to Potlatch Ponds winners confirming the DNR's commitment to the plans outlined in the Brossia document and the Le-Febvre letter. Hawkins' letter stated, in part, as follows: Requested Action: To hereby grant preference rights to all people whose names were drawn in the 1980 lottery for Pot-latch Ponds parcels and, as of the date of this decision, have not relinquished their parcel[s]. Legal Authority: A.S. 38.05.035(b)(2) requires that this decision demonstrate that an error or omission occurred, resulting in inequitable detriment, and that the claimant was diligent and had no control over the situation. Decision: . [I]t is my decision to allow each individual Potlatch Ponds parcel winner, who had not already relinquished a claim to a parcel, the right to apply for a preference right of purchase for the agricultural interests to the Potlatch Ponds parcel each originally claimed, or another parcel of similar size or value, pursuant to AS 38.05.035(b)(2). In March of 1987, Commissioner Brady acted on the matter, issuing a memorandum decision which stated in part: Decision: . 2. The following procedures will be used to implement the Director's Decision dated 5/24/85: a. Each individual Potlatch Ponds parcel winner who had not already relinquished a claim to a parcel, may apply for a preference right for purchase of one parcel of state land of any size or value from a selection pool . available from state land parcels ., or each individual may apply for the agricultural rights to the Potlatch Ponds parcel each originally claimed.... c. To establish a selection priority a lottery drawing will be held.... d. Applicants will be required to sign a notarized form relinquishing any interest they may hold in their Potlatch Ponds parcel and a release of liability to any present or future claims arising as a result of the 1980 Potlatch Ponds Lottery. In May 1987, DNR held- a lottery to determine the order in which previous Pot-latch Ponds "winners" could apply for a preference right. Several of the previous winners, including appellants, chose not to participate. Appellants sued the state in superior court, ultimately relying on a theory of promissory estoppel. Their fundamental contention was that Hawkins' 1985 letter granted or promised to grant them preference rights to their original or comparable parcels. Appellants argued that the Commissioner's decision, which they viewed as only granting the right to apply for a preference right in a new lottery not involving comparable parcels, was an inadequate substitute for the parcels of similar size and value promised by Hawkins, and that their reliance on the Director's promise supported a claim based on a theory of promissory estoppel. The state moved for summary judgment arguing, inter alia, that there had been no promise of a grant of preference rights to parcels comparable to those offered originally; rather, that only a right to apply for preference rights was promised by Director Hawkins' decision. The superior court granted the state's motion for summary judgment, rejecting appellants' promissory estoppel claim on the grounds that there was no issue of material fact as to detrimental reliance and that certain alleged reliance damages were legally inadequate for purposes of establishing promissory estoppel. We affirm. II. SUMMARY JUDGMENT AS TO PROMISSORY ESTOPPEL Appellants argue that they reasonably relied upon promises made by representatives of the state to the effect that they would receive either their original or comparable parcels. Promissory estoppel is recognized in Alaska. See, e.g., Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1284 (Alaska 1985). In Zeman, we identified the following four elements of the promissory estoppel cause of action: 1) The action induced amounts to a substantial change of position; 2) it was either actually foreseen or reasonably foreseeable by the promisor; 3) an actual promise was made and itself induced the action or forbearance in reliance thereon; and 4) enforcement is necessary in the interest of justice. Id. at 1284 (citing State v. First Nat'l Bank of Ketchikan, 629 P.2d 78, 81 (Alaska 1981); 1A A. Corbin, Corbin on Contracts § 200 at 215-21 (1963)); see also Glover v. Sager, 667 P.2d 1198, 1202 (Alaska 1983); Slaymaker v. Peterkin, 518 P.2d 763, 766 (Alaska 1974). In rejecting appellants' promissory estop-pel claim, the superior court ruled that "the stated reliance is factually inadequate; the actions are legally inadequate as a matter of law." The superior court further stated that "the opposition to the State's motion . for summary judgment raises no factual issues." More specifically, the superior court granted summary judgment against appellants' promissory estoppel claim on the ground that there was no genuine issue of material fact as to the existence of an unsatisfied promise supporting the alleged reliance. Thus, we must determine whether, viewing the facts in the light most favorable to appellants, there is a genuine issue of material fact as to whether the evidence discloses an actual promise inducing reliance for promissory estoppel purposes. Zeman, 699 P.2d at 1284. (A) Can Brossia's letter constitute a basis for asserting promisory estoppel against the state? Before the superior court, appellants contended that the state made its first promise to them in 1985, when Director Hawkins announced his decision. Although this contention expressly waived reliance upon any earlier "promises" in the superior court, appellants now argue that the 1982 letter drafted by Jerry Brossia constituted a separate and earlier promise that the participants would receive "comparable" parcels. We reject this argument for two reasons. First, appellants expressly waived it in open court. Second, the argument that appellants relied upon the Brossia letter is without support in the record. Brossia's letter cannot be considered a promise because it was not sent to anyone. The letter was addressed to "John Doe" and was apparently a preliminary draft of the subsequent letter issued by Deputy Director Dick LeFebvre, which was sent directly to Potlatch lottery participants. There is, however, no indication in the record that any Potlatch Ponds lottery winner ever saw Brossia's letter. Instead, the state introduced the draft letter as an exhibit attached to its memorandum in support of its motion for summary judgment, as evidence of the state's intention as of 1982 to plan and conduct a reoffer. Despite appellants' claim that "the state as serted [in its memorandum in support of its motion for summary judgment] that this letter advised the lottery winners of its plan to conduct a reoffer," the state did not in fact cite Brossia's letter for that purpose, but only to show that internal state planning mechanisms were in motion in 1982. In short, because there is no indication that any of these appellants ever saw Brossia's letter, and because appellants expressly declined reliance on the letter in the superior court, we do not view the Brossia draft "John Doe" letter as a source of appellants' reliance. Rather, like the superior court, we analyze appellants' promissory estoppel claim as grounded in reliance on Hawkins' 1985 letter. (B) Are the requirements of promissory estoppel satisfied? The essential portion of the 1985 letter from Director Hawkins, from which appellants distill a promise that they would receive preference rights to their original or comparable parcels, is as follows: Requested Action: To hereby grant preference rights to all people whose names were drawn in the 1980 lottery for Pot-latch Ponds parcels and, as of the date of this decision, have not relinquished their parcel.... [I]t is my decision to allow each individual . the right to apply for a preference right of purchase for the . parcel each originally claimed, or another parcel of similar size or value, pursuant to AS 38.05.035(b)(2). Appellants contend that the quoted text constituted a "present grant" of preference rights, or at least induced their reasonable reliance on the promise that they would eventually receive their original or similar parcels. In response, the state argues that Director Hawkins' letter could not, as a matter of law, constitute a present grant of a preference right, and the appellants' promissory estoppel claim predicated on the letter is, as the superior court ruled, legally insufficient. In our view, the superior court ruled correctly. Appellants' promissory estoppel claim must fail for several reasons. Director Hawkins' letter cannot fairly be read as containing a promise that appellants would receive their original or similar parcels. Instead, it promised that a reoffer would be held and that, after relinquishment, participants could apply for a preference right. The state has kept that promise. Moreover, since Hawkins' letter referenced the statute which requires the Commissioner's approval as a prerequisite to a binding grant of a preference right, the state could not reasonably foresee appellants' reliance. See Zeman, 699 P.2d at 1284. Finally, in the factual context of this case, we are not persuaded that the interests of justice require that the state do more than it has for appellants. (i) Hawkins did not promise to grant preference rights. To make out a claim for promissory estoppel, one must show "that an actual promise was made." Zeman, 699 P.2d at 1284. Here, no promise of a grant of a preference right was made. The opening paragraph of the Director's letter states that the "requested action" is that the Director "hereby grant" preference rights; yet in the concluding paragraph only the right to apply for a preference right is promised. A common sense reading of the letter indicates that a grant of preference rights was the action requested, not the action taken. The action taken was that Hawkins informed appellants that they could apply for a preference right. Moreover, Hawkins' letter could not, as a matter of law, grant preference rights to appellants. The statute referred to in the letter, AS 38.05.-035(b)(2), requires that the Commissioner expressly approve a Director's grant of a preference right before that right becomes valid. AS 38.05.035(b)(2)(A). In short, Hawkins lacked authorization on his own to grant preference rights. Therefore, since Hawkins' letter referenced the applicable statute, the letter was clear with respect to the status of the preference rights at issue: they would have to be approved by the Commissioner. In short, we conclude that Hawkins' letter did not grant or promise to grant preference rights to appellants. (ii) The promises actually made by the state were kept. The right to apply for a preference right was all that was ever promised by the state. As the superior court held, that promise was in fact fulfilled by the Commissioner's implementing letter. Where the state's promises are kept, promissory estoppel principles do not justify imposition upon the state of a duty to do more than was promised. See State v. First National Bank of Ketchikan, 629 P.2d 78, 81-82 (Alaska 1981). (iii) Appellants' reliance was not reasonably foreseeable by the state. Because the Director's letter was sufficient to put appellants on notice that Hawkins was without authority to grant preference rights on the state's behalf, AS 38.05.-035(b)(2)(e), appellants' promissory estoppel claim is, in our view, legally insufficient on an additional ground. Appellants have not shown, as required by Zeman, that their reliance "was either actually foreseen or reasonably foreseeable by the promisor." Zeman, 699 P.2d at 1284. In Messerli v. Department of Natural Resources, 768 P.2d 1112 (Alaska 1989), overruled on other grounds, Olson v. State, Dep't of Natural Resources, 799 P.2d 289 (Alaska 1990), we addressed a related issue, and concluded that certain plaintiffs seeking to employ an equitable estoppel theory could not have reasonably relied upon the Director's decision since he had not obtained the Commissioner's express approval: [W]e believe the court erred in finding reasonable reliance by Messerli on the Director's decision to expand the search area. The statute authorizing preference rights clearly states that the Director can only act with the Commissioner's express approval. AS 38.05.-035(b)(2). Former AS 38.05.035(a)(14) [now AS 38.05.035(e) ] required the Commissioner's consent before the Director could dispose of state land. It is presumed that Messerli knew the law. See State v. Alaska Land Title Ass'n, 667 P.2d 714, 725 (Alaska 1983), cert. denied, 464 U.S. 1040, 104 S.Ct. 704, 79 L.Ed.2d 168 (1984). Additionally, Messerli was assisted by counsel and a land consultant. . Thus, Messerli's reliance on the Director's expansion of the search area was unreasonable. Because Mes-serli's reliance was unreasonable, he could not establish the elements of estop-pel. Id. at 1121. To make a case for equitable estoppel, it must be established that the claimant's reliance was reasonable. See Municipality of Anchorage v. Schneider, 685 P.2d 94, 97 (Alaska 1984). On the other hand, a promissory estoppel claimant need not establish that his or her reliance on the alleged promise was reasonable; instead, he or she must show that his or her reliance was either foreseen or reasonably foreseeable by the promisor. Zeman, 699 P.2d at 1284. In the instant case, we need not reach the constructive notice point of Messerli. Here, the Director wrote to appellants and informed them that "it is my decision to allow each individual . the right to apply for a preference right . pursuant to AS 38.50.035(b)." He thus put appellants on actual notice that their ability to obtain a preference right was controlled by AS 38.-05.035(b). The state could reasonably presume that a lay person would either read the statute or consult an attorney to determine his or her rights. We conclude that the state did not foresee, and would not reasonably have foreseen, that appellants would rely on Director Hawkins' letter. By citing the applicable law, the state, in our view, fulfilled any obligation it had to inform appellants of the true status of its promise. Since none of the appellants can establish that the state should reasonably have foreseen their reliance, and because there is no evidence in the record suggesting the state actually foresaw such reliance, we hold that appellants have failed to make out a legally sufficient claim based on the promissory estoppel theory. The state could not have foreseen appellants' reliance given the state of the law, the content of Director Hawkins' letter, and the context of the ongoing meetings concerning the lottery. III. THE SUPERIOR COURT'S DENIAL OF APPELLANTS' MOTION TO AMEND THEIR COMPLAINT Appellants also contend that the superior court erred by denying their second motion for leave to amend their complaint. The difference between the amended and proposed second amended complaints was that the original complaint named only Jed and Sheila Williams in their individual capacities, whereas the amended complaint would have named the "Williams' Farm Partnership." The state opposed the motion. The state acknowledged that at its deposition of Jed Williams it had learned that "the whole family went into this deal together." Nevertheless, the state argued that it would be prejudiced were it required to prepare to defend against a partnership, rather than appellants in their individual capacities, at that late date in the proceedings. Leave to amend has traditionally been freely granted. Betz v. Chena Hot Springs Group, 742 P.2d 1346, 1348 (Alaska 1983); Wright v. Vickaryous, 598 P.2d 490, 495 (Alaska 1979). We review denials of leave to amend under an abuse of discretion standard. Rutledge v. Alyeska Pipeline Serv. Co., 727 P.2d 1050, 1054 (Alaska 1986); Shooshanian v. Wagner, 672 P.2d 455, 458 (Alaska 1983); Estate of Thompson v. Mercedes-Benz, Inc., 514 P.2d 1269, 1271 (Alaska 1973). The superior court's exercise of its discretion in such matters will be overturned only if we are left with a "definite and firm conviction" that the court erred. Betz, 742 P.2d at 1348. Appellants argued that "[t]he new complaint would not . raise any new questions of whether the other partners relied upon any State representations in making their investments." They further emphasized that "[n]o new reliance issues are raised because Bud Williams, Plaintiffs father, attended meetings, monitored the State's position and relayed its representations to Plaintiffs Jed and Sheila Williams." With these materials before it, the superior court denied the motion. In light of appellants' admission that the addition of the partnership as a party plaintiff would not involve any new evidence of reliance, we conclude that the amendment issue has been mooted by our holding that appellants failed to establish that element of their promissory estoppel claim. Given that the reliance issues are admittedly identical for appellants and the proposed additional plaintiff, the failure of the appellants to establish the factual predicate for a promissory estoppel claim moots the issue of amendment. In these circumstances, granting or denying leave to amend cannot change the disposition of appellants' or the proposed new plaintiff's claims, since in no event would the elements of promissory estoppel have been proved. IY. THE SUPERIOR COURT'S AWARD OF ATTORNEY'S FEES Appellants' final point is that the superior court erred in its assessment of attorney's fees against them. Thorstenson v. ARCO Alaska, Inc., 780 P.2d 371 (Alaska 1989), addressed the effect of a disproportionate fee award in a case involving multiple plaintiffs. There the superior court had ordered a single plaintiff remaining in the case to pay 75% of defendant's total fee incurred in defending against two plaintiffs. Because this fee was "grossly disproportionate," we found an abuse of discretion, and noted the "perverse incentives" which would result from any other ruling. Id. at 377. The instant case is not analogous to Thorstenson. Here appellants were made to bear less than 2% more than their proportional share of the state's fees. Disproportion of this magnitude is unlikely to create the "perverse incentives" underpinning our decision in Thorstenson. Moreover, the total fee award of $9,550 compensated the state for less than 20% of its actual total fees. In short, this attorney's fee award was not "grossly disproportionate." Under these circumstances, we hold that the superior court did not abuse its discretion in ordering appellants to pay a slightly disproportionate share of attorney's fees. AFFIRMED. . On appeal from a grant of summary judgment, we must decide whether there is a genuine issue of material fact and whether the moving party is entitled to judgment on the established facts. See, e.g., Sea Lion Corp. v. Air Logistics of Alaska, Inc., 787 P.2d 109, 116 (Alaska 1990); Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985). All reasonable inferences of fact from proffered materials must be drawn against the moving party and in favor of the non-moving party. Walt v. State, 751 P.2d 1345, 1348 n. 2 (Alaska 1988). . Essentially, lottery winners were to be given the opportunity to purchase agricultural rights to parcels located in the Potlatch Ponds area, 15 miles Northeast of Fairbanks on Chena Hot Springs Road, at a price of $100.00 per acre less residency discounts of 5% per year of residency, up to a maximum of the lesser of 50% or $25,-000. . We invalidated the lottery for noncompliance with a local subdivision ordinance requiring borough approval of local subdivision sales. See State v. Weidner, 684 P.2d 103, 110-11 (Alaska 1984). . Brossia's letter appears never to have been released publicly prior to the institution of this litigation. . This text of what was said at the meeting is taken from handwritten "meeting Notes," which purport to record the minutes of the DNR meeting. . Although appellants' claims were consolidated in the superior court with those of other lottery participants, only the claims of Jeanette James, Jed Williams, and Sheila Williams are appealed. . Appellants' initial complaint in superior court included a negligence claim which has been abandoned for purposes of this appeal. . Jeanette James sought damages for time spent preparing the action. Jed and Sheila Williams sought damages for monies spent in reliance upon the state's alleged promises. With respect to the Williams' claims, the superior court ruled that since "[t]he opposition to the State's motion . for summary judgment raises no factual issues[,] . [t]he materials documented by the State as to the nature of the promise, the records of the earlier meetings, [and] the terms of the offer, stand unchallenged." The superior court held that all that was promised to these land lottery participants was the opportunity to apply for a preference right, which had been provided in the Commissioner's memorandum decision. With respect to James, the superior court found that "James incurred no expense, and bases her entire claim upon her service [to] civic organizations." Thus, the court ruled that "[t]he timing and the stated reliance [are] factually inadequate; the actions are legally inadequate, as a matter of law." .Both parties cite precedents discussing not only promissory estoppel but also the related doctrine of equitable estoppel. The primary difference between promissory and equitable es-toppels is that the former is offensive, and can be used for affirmative enforcement of a promise, whereas the latter is defensive, and can be used only for preventing the opposing party from raising a particular claim or defense. See Bubbel v. Wien Air Alaska, Inc., 682 P.2d 374, 380 n. 7 (Alaska 1984). Despite this important difference, relevant analogies can be drawn between the two doctrines, since equitable estop-pel involves proof of elements similar to the elements of a promissory estoppel claim. Compare Messerli v. Department of Natural Resources, 768 P.2d 1112, 1121 (Alaska 1989), overruled on other grounds, Olson v. State, Dep't of Natural Resources, 799 P.2d 289 (Alaska 1990) with Zeman, 699 P.2d at 1284. It is undisputed that the primary thrust of appellants' claim is offensive rather than defensive, for they seek enforcement of alleged promises by the state. . We have arguably recognized the availability of promissory estoppel against a governmental entity. See State v. First Natl Bank of Ketchikan, 629 P.2d 78, 80-81 (Alaska 1981) (reversing summary judgment against government on promissory estoppel theory because cited promise was in fact kept). The state points out that several federal courts have questioned the applicability of the promissory estoppel doctrine against the federal government. See Jablon v. United States, 657 F.2d 1064, 1069-70 (9th Cir.1981) ("We have not discovered, and the parties have not cited, any precedent in this circuit for an independent cause of action against the government founded upon promissory estop-pel.") However, as the court in Jablon observed, there is at most a division among the circuits as to the viability of promissory estop-pel against the federal government, not a firm rule against such suits. Id. at 1069 n. 9. Several circuit courts have suggested the availability of this theory. See, e.g., Robbins v. Reagan, 780 F.2d 37, 53 (D.C.Cir.1985) (elements of promissory estoppel claim against government not sufficiently established to warrant remand); Reamer v. United States, 532 F.2d 349 (4th Cir.1976) (rejecting particular application, but not availability of theory of promissory estoppel); Kaye v. United States, 467 F.2d 415, 418-19 (D.C.Cir.1972) (remanding to permit trial on promissory estoppel theory). . AS 38.05.035(b) provides that: The director may.... (2) grant preference rights for the lease or purchase of state land without competitive bid in order to correct errors or omissions of a state or federal administrative agency when inequitable detriment would otherwise result to a diligent claimant or applicant due to situations over which the claimant or applicant had no control; the exercise of this dis cretionary power operates only to divest the state of its title to or interest in land and may be exercised only (A) with the express approval of the commissioner. . . The Commissioner's letter required relinquishment by appellants of their claims. That requirement was consistent with the state's pri- or promises, and is within the power of the DNR to impose. See Messerli, 768 P.2d at 1119—20. Moreover, the record does not support appellants' contention that the state promised them that the reoffer would consist of lands near Fairbanks. The state never promised appellants land in a particular location, and indeed, in 1982 alerted appellants that it might give them "land in another area." . We further conclude that there is an additional basis for sustaining the superior court's grant of summary judgment. Under Zeman, the court must be persuaded that the interests of justice require enforcement of the promise before finding promissory estoppel. Zeman, 699 P.2d at 1284. We have held in an analogous situation that because the state's promises were kept, the interests of justice cannot require further enforcement of appellants' purported understanding of those promises. See State v. First Natl Bank of Ketchikan, 629 P.2d 78, 81-82 (Alaska 1981). Here, as indicated above, we are not persuaded that the interests of justice require that appellants be granted their requested relief. . The opposition to the motion to amend reads in part, Whether or not the oral agreements and transactions within the Williams family created a partnership is a new legal issue which the amended complaint would inject into this suit. (See AS 32.05.020.) The new complaint would also raise the question of whether the other "partners" relied upon any state representations in making their respective investments. Finally, it is not self-evident that one partner can recover losses suffered by other partners who are not parties to the suit. These are all new issues, which would further complicate the already complex litigation.... Should the court allow the amendment, the state would be prejudiced by the need to conduct discovery regarding the alleged partnership, and to litigate its existence if appropriate. . Such a renewed discovery effort would distract undersigned counsel from necessary trial preparation, in the last few weeks before trial. . We review attorney's fees awards under an abuse of discretion standard. Cooper v. Carlson, 511 P.2d 1305, 1309 (Alaska 1973). Under Civil Rule 82(a)(1), the trial court has discretion to determine the amount of the fee award. Generally, a fee award constitutes an abuse of discretion only when it is "manifestly unreasonable." Haskins v. Shelden, 558 P.2d 487, 495 (Alaska 1976).

10346705

Matthew J. DRAKE, Appellant, v. STATE of Alaska, Appellee

Drake v. State

1995-07-28

No. A-5120

1385

1389

899 P.2d 1385

899

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Matthew J. DRAKE, Appellant, v. STATE of Alaska, Appellee.

Matthew J. DRAKE, Appellant, v. STATE of Alaska, Appellee. No. A-5120. Court of Appeals of Alaska. July 28, 1995. Heather O’Brien and Blair McCune, Asst. Public Defenders, and John B. Salemi, Public Defender, Anchorage, for appellant. Kenneth M. Rosenstein, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

2228

13443

OPINION MANNHEIMER, Judge. Matthew J. Drake was indicted on three counts of misconduct involving a controlled substance; two counts of misconduct involving a controlled substance in the third degree, AS 11.71.030(a)(1), and one count of misconduct involving a controlled substance in the fourth degree, AS 11.71.040(a)(2). He asked the superior court to dismiss these charges under Alaska's speedy trial rule, Criminal Rule 45. When the superior court denied Drake's motion to dismiss, Drake entered pleas of no contest to one count of third-degree misconduct and one count of fourth-degree misconduct, reserving his right to appeal the superior court's denial of his motion to dismiss. See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974). We uphold the superior court's ruling and thus affirm Drake's convictions. Drake was arrested on October 28, 1992. Under the 1992 version of Criminal Rule 45(c), Drake was entitled to be brought to trial by the 120th day following his arrest, not counting the periods of time excluded under Rule 45(d). On November 13, 1992, Drake filed a pleading that he styled, "Motion to Compel Discovery of Rule 16 Materials". In this motion, Drake asked the superior court to order the State to disclose "[t]he full name and all aliases of N-517" — the police designation for the confidential informant who had purchased cocaine and marijuana from Drake. Drake also sought production of "[t]he current address, phone number, and employer of N-517", as well as "[a]ny materials relating to [any] contacts between any law enforcement officer [or agency] and N-517" and "[a]ll accounting records for all salaries, . rewards, and other benefits given or to be given to N-517". Five days later, on November 18, 1992, Drake was arraigned in superior court in front of Superior Court Judge Charles K. Cranston. Judge Cranston was informed that Drake had been arrested on October 28th; the judge then declared that the time for bringing Drake to trial under Rule 45 would expire on February 25,1993. Drake's attorney accepted the judge's calculation (which was correct). The defense attorney then called Judge Cranston's attention to the pending discovery motion: DEFENSE ATTORNEY: Your Honor, there's just two other quick matters, if I could.... First of all, Your Honor, we filed a motion to compel [discovery] . while this matter was still pending in the district court. Your Honor, what we'd just ask the court to do [now] is to treat that motion as moot. The [prosecutor] and I will be . working through that [discovery request]. If there are parts of that discovery that we're going to need to have a battle over, Your Honor, we'll refile that motion. I don't think there's any reason for the court to spend further time . THE COURT: So, this order that's loose in the file, [to compel] discovery, I should just mark as moot? DEFENSE ATTORNEY: Yes, Your Honor. The order compelling discovery. THE COURT: Okay. On January 14, 1993, the parties appeared in court for the omnibus hearing. At that time, Drake's attorney told the court that pre-trial discovery was complete, and he affirmed that Drake's case should remain set for trial on the February calendar. The parties next appeared in court on February 25th for trial call. The following colloquy occurred: THE COURT: What's the situation in this case[?] PROSECUTOR: Your Honor, at this point there are — there's not been a [negotiated] disposition[.] [T]he State's ready for trial if [the defense attorney] is ready for trial. DEFENSE ATTORNEY: Yeah, . at this point [we are] ready for trial — asked to have the matter set on. I'm sure [the prosecutor] and I will be talking. We've both been extremely busy[.] If it can be resolved [without trial], it sure will be. THE COURT: Would a status hearing tomorrow . be of any assistance^] DEFENSE ATTORNEY: Not from our perspective, Your Honor. If it — we'll be notifying the court if it is resolved. THE COURT: Okay. What I'm going to do, then, I'll set [this case] for trial to begin Tuesday morning, April 2nd. PROSECUTOR: [Do you mean] March 2nd? THE COURT: Is that the 2nd of March? [Yes,] Tuesday, March 2nd. PROSECUTOR: Your Honor, there may be other cases . that have more pressing Rule 45 [problems]. Could . the order for trial be determined at the end of the court's hearing? THE COURT: Okay.... What I'll do is set it for trial the week of March 1st [with] its trailing status vis-a-vis other eases . yet to be determined. DEFENSE ATTORNEY: Yes, Your Honor. However, the parties returned to court the very next day (February 26th). At that time, Drake's attorney informed Judge Cranston that he believed Rule 45 had expired the day before. The defense attorney reminded the court that Drake had been arrested on October 28, 1992. The defense attorney then argued that none of the intervening time was excludable under Rule 45(d), that Rule 45 had run the previous day (February 25th), and that therefore the charges against Drake would have to be dismissed. Judge Cranston ultimately denied Drake's motion to dismiss, and Drake entered his Cooksey plea. Because Drake was arrested on October 28, 1992, February 25, 1993 was the 120th day for Rule 45 purposes — the last day for bringing Drake to trial unless some event or combination of events interrupted the ticking of the Rule 45 clock. In this case, there are two events that tolled Rule 45: Drake's motion to compel discovery, and his attorney's acceptance of a March 1st trial date at the trial call hearing held on February 25th. Rule 45(d)(1) declares, in general, that the period of time needed to litigate pretrial motions is excluded from the Rule 45 calculation. As described above, Drake filed a pre-trial motion to compel the State to disclose information and records relating to its informant. This motion, filed on November 13, 1992, was pending for 5 days — until Drake orally withdrew it at his arraignment on November 18th. If these 5 days are excluded from the Rule 45 computation, then February 25, 1993 was only the 115th day. Because the Rule 45 clock definitely stopped running one day later (February 26th) when Drake orally moved to dismiss the charges, see Spencer v. State, 611 P.2d 1, 4-5 n. 6 (Alaska 1980), it follows that Drake was brought to trial within the time limit of Rule 45. Drake argues that this reasoning is flawed because his "Motion to Compel Discovery" was not the kind of motion contemplated by Rule 45(d)(1). He points out that in Miller v. State, 706 P.2d 336 (Alaska App.1985), this court held that the tolling provisions of Rule 45(d) did not apply to a defense request for pre-trial discovery under Criminal Rule 16(b). However, the facts of Miller are readily distinguishable from the facts of Drake's case. In Miller, the State argued that the Rule 45 clock had been tolled when the defendant served a request for discovery on the prosecutor's office. The State asserted (1) that the defendant's discovery request transcended the bounds of disclosure required by Criminal Rule 16(b), (2) that court action was required to resolve the discovery request, and (3) that the discovery request therefore tolled Rule 45. This court rejected the State's argument, stating: We disagree with the state's characterization of Miller's discovery request. On the whole, the language of Miller's ["] terrogatory and Request for Production["] . is taken directly from Criminal Rule 16(b)(l)-(4). The fact that Miller's discovery request was for evidence which the state was under obligation to provide in accordance with Criminal Rule 16, that Miller did not request action of the court, and that the court never took any action, leads us to conclude that there was no discovery motion pending[.] Therefore, we hold that the trial court erred in excluding the twenty-four days from . [the] speedy trial computation^] Miller, 706 P.2d at 339 (footnote omitted). The court then added that it was "therefore not necessary . to decide whether [Crimi nal Rule 45(d)(1) ] applies to discovery motions which do require court action." Id. Unlike Miller, who served a discovery "request" on the State, Drake filed a discovery "motion" with the court. This was not an idle difference in phrasing. In his motion, Drake explicitly declared that the State had failed to provide him with the requested information and materials, and he explicitly called upon the court to issue an order compelling the State to disclose the information and materials. That is, Drake's motion asked the court to affirmatively intervene in the pre-trial discovery process: his motion ended with the assertion that "a [court] order compelling production is appropriate and necessary". We therefore reach the issue left open in Miller. We hold that, under Criminal Rule 45(d)(1), the running of Rule 45 is tolled by the filing of a discovery motion that requires court action. The State never filed a response to Drake's motion; Drake withdrew the motion before the response time had run. We note, however, that the information and documents listed in Drake's motion are not explicitly covered by the provisions of Criminal Rule 16(b). We further note that much of the information Drake sought is potentially protected from disclosure by Alaska Evidence Rule 509(a), the evidence rule that grants the government a limited privilege "to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of law". By its terms, Drake's motion asked the court to intervene in the pre-trial discovery process and compel the State to disclose information that it apparently had already declined or failed to disclose. A motion that calls for court intervention in the discovery process is not substantially different from other types of motions included among the "other proceedings concerning the defendant" referred to in Rule 45(d)(1). Moreover, given the content of Drake's discovery request, the court could properly assume that, absent a stipulated resolution, litigation would be required to resolve the discovery issues raised in Drake's motion. For these reasons, we uphold the superior court's decision that Rule 45 was tolled for the 5 days during which Drake's discovery motion was pending. Additionally, Drake's case presents an alternative reason for upholding the superior court's decision. At Drake's arraignment, the superior court explicitly declared February 25, 1993 to be the 120th day for Rule 45 purposes. Yet at the trial call held on February 25th, Drake's attorney (who had represented Drake throughout the proceedings) told the court that he was still pursuing a negotiated settlement with the State, and he assented to having Drake's case called again for trial on March 1st. If an attorney assents to a trial date knowing that the proposed date will violate Rule 45, the attorney thereby waives the potential Rule 45 objection to holding the trial on that date. Andrew v. State, 694 P.2d 168, 171 (Alaska App.1985), aff'd as modified, 718 P.2d 471 (Alaska 1986); DeMille v. State, 581 P.2d 675, 677 (Alaska 1978); Buffington v. State, 745 P.2d 78, 79-80 (Alaska App.1987). Drake's attorney waived any claim that Rule 45 expired on February 25th when he assented to the superior court's suggestion that a renewed trial call be held on March 1st. Drake argues that his attorney's action should not be deemed a waiver because the record does not show that the State would have been ready to go to trial on February 25th if Drake had insisted on that date. Drake's argument overlooks the prosecutor's statement at the February 25th hearing: 'Your Honor, at this point . there's not been a [negotiated] disposition^] [T]he State's ready for trial if [the defense attorney] is ready for trial." More importantly, it does not matter if the State was ready to take Drake to trial on February 25th or not: the superior court was entitled to rely on the defense attorney's agreement to the later trial date. A contrary rule — one that would allow an attorney to agree to postponement of the trial date, then return to court the next day and allege a violation of Rule 45 — "would give rise to an unacceptable potential for manipulation of the rule in a manner that thwarts the ends of justice". State v. Jeske, 823 P.2d 6,10 (Alaska App.1991). The judgement of the superior court is AFFIRMED. . Criminal Rule 45(d) reads, in pertinent part: Excluded Periods. The following periods shall be excluded in computing the time for trial: (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.

10344253

K.E., Appellant, v. J.W., Appellee

K.E. v. J.W.

1995-07-14

No. S-6381

133

135

899 P.2d 133

899

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

K.E., Appellant, v. J.W., Appellee.

K.E., Appellant, v. J.W., Appellee. No. S-6381. Supreme Court of Alaska. July 14, 1995. Mary-Ellen Zalewski, Anchorage, for appellant. Allan Beiswenger, Robinson, Beiswenger & Ehrhardt, Soldotna, for appellee. Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ. :

1416

8271

OPINION MATTHEWS, Justice. Appellant K.E. argues that appellee J.W. should be equitably estopped from denying paternity of K.E.'s daughter L.E. J.W. was unable to father children at the time of L.E.'s birth. L.E. was conceived through natural insemination with the aid of a surrogate father. J.W. and K.E. began a romantic relationship in 1987 or 1988. J.W. had undergone a vasectomy before the relationship began and was incapable of naturally fathering children. J.W. expressed a continuing desire to marry K.E. starting soon after the relationship began. Before meeting J.W., K.E. had a child, B.E., by a man to whom she was never married, B.S. K.E. wished to have another child and consequently was reluctant to marry J.W. In March 1990, K.E. and J.W. discussed K.E.'s desire to have another child. They specifically discussed adoption, artificial insemination, vasectomy reversal, and the conception of the child through natural means by a surrogate father. K.E. decided that the least expensive and fastest option would be to have the child naturally fathered by B.S., B.E.'s father. While J.W. was hurt and distressed by K.E.'s plan, he did not feel that he had a right to stop her, as "it was her body" and they were not married. K.E. had sexual intercourse with B.S. in Hawaii and became pregnant in June or July of 1990. After K.E. told J.W. that she was pregnant, they made plans to get married. K.E. and J.W. were married on August 25, 1990. The child, L.E., was born on March 19, 1991. J.W. spent between 90 and 180 days with L.E. in the first two years of her life, as his occupation often took him away from the family. When they were together, J.W. acted as a father toward L.E., and they treated each other with love and affection. L.E. called J.W. "Papa." J.W. and K.E. never represented to anyone that J.W. was L.E.'s natural father. J.W.'s and KE.'s close associates know that J.W. is not L.E.'s natural father. K.E. planned to eventually tell L.E. who her natural father was. J.W. and K.E. became separated in the first half of 1993. J.W. filed for divorce on June 4, 1993. K.E. filed a motion to establish a child support obligation in favor of L.E. on the part of J.W. In support of the motion, K.E. argued that (1) J.W. is equitably estopped from denying paternity because he represented to L.E. that he was her father, (2) J.W. expressly agreed to support L.E., and (3) J.W.'s consent to K.E.'s insemination by a surrogate gives rise to a duty of support. After a trial, the superior court made extensive findings of fact and ruled that J.W. has no child support duty toward L.E. K.E. appeals. Equitable estoppel is the only theory which K.E. argues on appeal. The elements of equitable estoppel are (1) representation of a position by conduct or word, (2) reasonable reliance thereon by another party, and (3) resulting prejudice. Jamison v. Consolidated Utilities, Inc., 576 P.2d 97, 102 (Alaska 1978). Where it is argued that a putative father should be estopped from denying paternity based on representations made to the child, the representation and reliance elements of equitable estoppel are met if (1) the husband represented directly or implicitly to the child that he is the father, (2) the husband intended his representation to be ac cepted and acted on by the child, (3) the child relied on the representation and treated the husband as a father and gave his love and affection to the husband, and (4) the child was ignorant of the true facts. Wright v. Black, 856 P.2d 477, 481 (Alaska 1993); H.P.A. v. S.C.A, 704 P.2d 205, 208 (Alaska 1985); Clevenger v. Clevenger, 189 Cal.App.2d 658, 11 Cal.Rptr. 707, 714 (Cal.App.1961). The child can suffer prejudice as a result of relying on the husband's representations in any of the following three ways: (1) the child may be deprived of the mother's potential action to hold the natural father responsible for the support of the child; (2) the child may suffer serious and lasting emotional injury from the denial of paternity; or (3) the child may suffer a social injury from the removal of the status of legitimacy. See Wright, 856 P.2d at 481; Clevenger, 11 Cal. Rptr. at 714-15. In this case, none of these three forms of prejudice have been shown. First, the husband's representation may deprive the child of a potential action to hold the natural father responsible for support by keeping the child's mother from attempting to find the natural father, see Clevenger, 11 Cal.Rptr. at 714, or by causing the mother to forego commencing an action against the natural father until after the applicable statute of limitations has expired. K.E. already knows that B.S. is L.E.'s natural father. The statute of limitations applicable to a potential paternity action by K.E. or L.E. against B.S. will not expire until three years after L.E. reaches the age of majority. See Hawaii Rev.Stat. § 584-6 (1992). Second, in order for the child to suffer serious and lasting emotional injury from the denial of paternity, the husband's representations must continue long enough to truly establish the paternal relationship of the husband and the child. See Clevenger, 11 Cal.Rptr. at 717; In re Marriage of Johnson, 152 Cal.Rptr. 121, 123 n. 1 (Cal.App.1979). In this ease, J.W. spent only 90 to 180 days with L.E. after L.E. was born. J.W. filed for divorce from K.E. and stopped visiting L.E. when L.E. was only two years old. Under these circumstances the paternal relationship between J.W. and L.E. could not have been truly established. Third, L.E. will not suffer a social injury from removal of the status of legitimacy. J.W. has not held L.E. out as his legitimate child. K.E.'s close associates are aware of the true circumstances surrounding L.E.'s conception. The status of legitimacy has not been removed because it never existed. Since K.E. did not establish the prejudice element of her equitable estoppel claim, the judgment of the superior court is AFFIRMED. . K.E. also argues that several of the superior court's findings of fact are clearly erroneous. We do not need to address this contention because our disposition of this appeal would be the same regardless of whether we accept the challenged findings at face value or whether we accept K.E.'s characterization of the events and circumstances described in the challenged findings. . In her brief on appeal K.E. does not argue estoppel based on representations made by J.W. to her prior to the conception of the child. Cf. L.M.S. v. S.L.S., 312 N.W.2d 853 (Wis.App.1981) (husband prohibited from denying pafemity where he had consented to wife's impregnation by a third party and agreed to treat the child as his). In her reply brief K.E. raises a policy argument based on the assertion that J.W. "did nothing to try and stop [K.E.] from proceeding with a plan on which she believed they both agreed." This argument is waived as it was not raised in K.E.'s opening brief. See Dewey v. Dewey, 886 P.2d 623, 628 n. 11 (Alaska 1994); Hitt v. J.B. Coghill, Inc., 641 P.2d 211, 213 n. 4 (Alaska 1982). Moreover, the trial court's findings are inconsistent with the imposition of a duty to object to K.E.'s impregnation by a third party on J.W. or an express or implied promise by J.W. that he would treat the resulting child as his. The court found: 14. This situation [K.E.'s plan to conceive a child with B.S.] hurt and distressed [J.W.] but he did not feel he had a right to stop her since "it was her body" and they were not married. 19. At no time prior to or after L.E.'s birth did the parties ever formalize an agreement, written, oral or otherwise regarding [J.W.'s] responsibilities to L.E. The parties never came to a "meeting of the minds." 31. [J.W.] never agreed, either expressly or by implication, that he would provide support for L.E. in the event of his divorce from [K.E.]. As these findings are not challenged on appeal and have evidentiary support, this estoppel argument would not succeed even if it were properly raised.

11768559

Shirley J. COULSON, Appellant, v. MARSH & McLENNAN, INC., Charles Anderson, Jackie Brunton, and Anderson-Brunton Insurance Brokers, Inc., Appellees; Marsh & McLennan, Inc., Cross-appellant, v. Shirley J. Coulson, Cross-Appellee

Coulson v. Marsh & McLennan, Inc.

1999-02-26

Nos. S-7888, S-7998

1142

1151

973 P.2d 1142

973

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Shirley J. COULSON, Appellant, v. MARSH & McLENNAN, INC., Charles Anderson, Jackie Brunton, and Anderson-Brunton Insurance Brokers, Inc., Appellees. Marsh & McLennan, Inc., Cross-appellant, v. Shirley J. Coulson, Cross-Appellee.

Shirley J. COULSON, Appellant, v. MARSH & McLENNAN, INC., Charles Anderson, Jackie Brunton, and Anderson-Brunton Insurance Brokers, Inc., Appellees. Marsh & McLennan, Inc., Cross-appellant, v. Shirley J. Coulson, Cross-Appellee. Nos. S-7888, S-7998. Supreme Court of Alaska. Feb. 26, 1999. Jody Patrick Brion, Leutwyler, Brion & Associates, Anchorage, for Shirley J. Coul-son. Amy R. Menard, Gilmore & Doherty, Anchorage, for Marsh & McLennan, Inc. Laura L. Farley, Le Gros, Buchanan & Paul, Anchorage, for Charles Anderson, Jackie Brun-ton, and Anderson-Brunton Insurance Brokers, Inc. Before MATTHEWS, Chief Justice, and COMPTON, EASTAUGH, FABE, and BRYNER, Justices.

4671

28742

OPINION EASTAUGH, Justice. I. INTRODUCTION Marsh and McLennan, Inc. (MMI) sold its "book of business" to Anderson-Brunton Insurance Brokers, Inc. (ABIB). ABIB offered employment to MMI employee Shirley Coulson, but she declined the offer. Alleging that personal property was taken from her office after she declined ABIB's offer, Coul-son sued MMI and ABIB. Her claims were resolved against her by partial summary judgments, a directed verdict, and jury verdicts. Because Coulson has not shown that it was error to grant summary judgment to defendants or that any alleged error prejudiced her, we affirm on all issues she raises in her appeal. On MMI's cross-appeal, we vacate the attorney's fees award and remand. II. FACTS AND PROCEEDINGS MMI is a national insurance brokerage firm that had an office in Anchorage. It employed Shirley Coulson as an insurance account executive in its Anchorage office. When MMI sold its book of business to ABIB in 1992, ABIB took over MMI's Anchorage office space. ABIB offered employment to Coulson, who declined the offer on May 4,1992. Immediately after she declined the offer, ABIB asked her to leave the office; Coulson was to return later for her personal property. Coulson claimed that when she returned several days later to clean out her office and desk, she discovered that some of her personal files and her insurance reference materials were missing. She informed Charles Anderson, an ABIB owner, that an important file marked "Shirley" was not in her office. ARlB retrieved this file and returned it to her. No other materials were returned to her. Coulson sued MMI, ABIB, and ABIB's principals, alleging: invasion of privacy, conversion, negligent infliction of emotional distress (NIED), intentional infliction of emotional distress (IIED), intentional interference with prospective economic advantage, breach of the implied covenant of good faith and fair dealing, employment discrimination, and negligence. She sought an order directing the defendants to return her files and personal effects, monetary damages exceeding $50,000 for her common law claims, punitive damages, and attorney's fees and costs. The superior court granted summary judgment to ABIB on Coulson's claims of IIED, intentional interference with prospective economic advantage, and breach of the implied covenant of good faith and fair dealing; and on the issue of punitive damages. The court granted ABIB summary judgment on Coul-son's NIED claim, but reinstated the claim on reconsideration. The court also granted summary judgment to MMI on all claims except negligence. A jury trial was then conducted on Coul-son's invasion of privacy, conversion, negligence, and NIED claims against ABIB, and on Coulson's negligence claim against MMI. When Coulson concluded her ease in chief, the superior court granted MMI a directed verdict on Coulson's negligence claim. The court submitted Coulson's claims against ABIB to the jury, which returned special verdicts for ABIB on each claim. Coulson appeals. III. DISCUSSION A. "In Camera" and Discovery Issues In January 1995 Coulson moved to compel production of documents which ABIB had objected to producing in discovery. She also asked the court to compel MMI to produce an unredacted copy of the purchase agreement. Defendants opposed her motions and ABIB moved for a protective order. The superior court ordered in camera review of the documents. They consisted of documents written by officers of ABIB concerning the employment status of MMI employees, copies of ABIB corporate records, and related documents. They include an unre-dacted copy of the MMI-ABIB sales agreement. The superior court never stated specifically whether the documents submitted for in camera review had to be produced. Nor did the court state whether it had reviewed the documents before it granted partial summary judgment to ABIB and MMI. Coulson argues on appeal that the superior court failed to consider the in camera evidence before granting partial summary judgment to ABIB. She also claims the court failed to review the documents within pertinent time limits. Finally, she argues that it was error not to compel production of unre-dacted copies of corporate records and the MMI-ABIB purchase agreement. The confidential appellate excerpt contains the documents produced for in camera review, and apparently includes the documents which were the subject of Coulson's motion to compel. Whether to conduct an in camera examination of documents lies within the dis cretion of the trial court. We review the denial of a motion to compel discovery for abuse of discretion. We generally review discovery orders under the deferential abuse of discretion standard, but we apply our independent judgment in deciding whether the trial court weighed the appropriate factors, because that is a legal question. 1. Waiver of issue We first reject appellees' argument that, by failing to demand a ruling before proceeding to trial, Coulson waived a claim that the superior court failed to rule on her motion to compel. Coulson preserved the issue by requesting a ruling on her motion on three occasions: in her December 1995 opposition to ABIB's summary judgment motion, at the May 1996 oral argument, and in her June 24, 1996, reconsideration motion. 2. Harmless error To prevail on appeal, Coulson must show that the alleged errors had a substantial influence on the outcome of the case. If not, any error is deemed harmless and we must affirm. We note preliminarily that trial courts should enter express rulings on motions to compel. They should also indicate whether they have reviewed documents supplied in camera and whether they have relied on them in ruling on motions. Failure to do so can cause needless and avoidable confusion on appeal about what happened in the trial court, and may require remand, if not reversal. But given the circumstances here, we conclude that any possible error was harmless. Coulson has only generally alleged on appeal how the documents might be pertinent. She asserts they could have helped establish that she was treated worse than other MMI employees who were offered severance pay; could have substantiated her implied covenant and negligence claims against MMI in the handling of the closing of the office; could have shed light on how Charles Anderson defined "proprietary"; and could have indicated whether ABIB had an ongoing relationship with MMI and was MMI's agent with respect to taking Coulson's property. Having reviewed the documents submitted in camera, we conclude that they shed no light on any of these issues except, perhaps, the question of whether ABIB was MMI's agent for any purpose. We nonetheless assume for the sake of discussion that the documents might have been relevant to those issues, as Coulson argues. She claims the documents could have helped her defeat ABIB's summary judgment motion. But the jury verdict and MMI's partial summary judgment rendered any possible error harmless. First, any error was harmless as to Coulson's claims against MMI. The superior court granted summary judgment to MMI on Coulson's claims for invasion of privacy, conversion, NIED, and IIED, reasoning that ABIB was not MMI's agent. Ultimately, ABIB itself was found not liable for these torts. Excepting special circumstances, if the acts of an agent do not make the agent liable, the principal cannot be liable for the acts of the agent either. Coulson has articulated no special circumstances and no theory by which MMI could be liable for non-tor-tious acts of ABIB. Accordingly, any evidence supporting the contention that ABIB was an agent of MMI is immaterial to Coul-son's tort claims. Second, any possible error was harmless as to Coulson's claims against ABIB. The documents were irrelevant to her implied covenant claim against ABIB because Coulson had no contract with ABIB; she therefore had no implied covenant claim against ABIB. ABIB's alleged agency relationship with MMI was also irrelevant to an implied covenant claim against ABIB, because even if it was MMI's agent, ABIB owed Coulson no duties under an implied covenant. Moreover, any claim that ABIB as agent of MMI was liable to Coulson for breach of the implied covenant of good faith and fair dealing could succeed only if there was in fact a breach of that covenant. The superior court granted summary judgment to MMI because there was no breach of the covenant. For reasons discussed in Part III.C.l, the superi- or court did not err in granting summary judgment to MMI on that claim. Because there was no breach of the implied covenant of good faith and fair dealing, any error in failing to compel production of documents bearing on agency did not prejudice Coulson. Since Coulson's agency-based claims would have failed on their merits even if the documents had been produced unredacted, any error was harmless. Because we dispose of the in camera issue on harmless error grounds, we need not consider the other arguments proffered by MMI and ABIB in support of affirmance, or Coulson's argument that a failure to conduct in camera review requires reversal. We therefore affirm on all issues relating to the in camera evidence and Coulson's motion to compel. 3. Rule 56(f) continuance Alaska Civil Rule 56© allows a party opposing summary judgment to seek additional time to gather and submit evidence to justify the party's opposition. Coulson argues that the superior court erred by entering partial summary judgment for MMI and ABIB without ordering a Rule 56(f) continuance. She claims that she was entitled to a Rule 56© continuance because the superior court had not ruled on her motion to compel when MMI and ABIB sought summary judgment. Any possible error in failing to grant a continuance was harmless. Coulson would not have prevailed even if the documents submitted in camera had been produced to her. See supra, Part III.A.2. B. Agency Issues The superior court granted summary judgment to MMI on the ground that ABIB was not MMI's agent. When she moved for reconsideration, Coulson submitted later-found evidence that purported to show that ABIB was MMI's agent. The superior court denied Coulson's reconsideration motion. Coulson argues that it was error to hold that ABIB was not MMI's agent and to deny Coulson's motion for reconsideration. Be cause Coulson's claims would have failed even if ABIB had been MMI's agent, see supra, Part III.A.2, any error in granting summary judgment was harmless. We therefore need not determine whether the superior court erred when it ruled that ABIB was not MMI's agent and denied Coulson's reconsideration motion. C. Summary Judgment Issues Coulson contends that the superior court erroneously granted partial summary judgment to MMI and ABIB. We consider each of the dismissed claims. 1. Implied covenant of good faith and fair dealing Coulson first argues that it was error to grant summary judgment to ABIB and MMI on Coulson's implied covenant claims, and to focus on the fact that ABIB did not employ Coulson. She asserts that the implied covenant arose in the MMI-ABIB contract of sale, and that she was a named beneficiary of that contract who was entitled to its benefits. She argues that she might have been able to show that she was an intended beneficiary had she been able to see the evidence submitted for in camera review. She apparently theorizes that the MMI-ABIB agreement contemplated that she would receive something more, perhaps severance pay, than a job offer from ABIB. The agreement required ABIB to offer Coulson full-time employment, but did not specify the terms to be offered. It also stated that "Seller shall be responsible for any severance pay, vacation pay or other benefits such employees may be entitled to under the law or Seller's policies and procedures as set forth in Seller's Employee Handbook." We conclude from the record and the in camera documents that no evidence permitted a reasonable inference that the agreement contemplated that Coulson would receive any benefit other than a job offer. Coulson conceded at her deposition that the Handbook contained no policy or procedure for severance payments to employees, and recognized that no promises or verbal representations were made to her by MMI with regard to severance. Because ABIB offered her employment, she received everything the agreement required. There was consequently no breach of the implied covenant. The superior court correctly granted summary judgment to MMI on this claim. The superior court granted summary judgment to ABIB on the implied covenant claim because ABIB had never employed Coulson. Because there was no evidence that Coulson was denied any fundamental benefit of the MMI-ABIB agreement, the superior court correctly concluded that there was no breach of the implied covenant. ABIB was therefore entitled to summary judgment on the implied covenant claim for the same reason MMI was. 2. Intentional infliction of emotional distress Coulson argues that the superior court erroneously granted summary judgment to ABIB and MMI on her IIED claims. An IIED claim requires evidence that "[t]he offending party, through extreme or outrageous conduct, . intentionally or recklessly cause[d] severe emotional distress or bodily harm to another." A plaintiff must show severe injury, and the superior court must determine as a threshold matter whether the emotional distress is sufficiently severe to submit the claim to the jury. Coulson testified at her deposition that the loss of the files did not cause her to suffer any embarrassment, humiliation, or economic disadvantage. That concession required dismissal of her IIED claims. Given the jury's finding that ABIB and its principals did not damage or interfere with Coulson's right to possess the personal property, we also hold that the superior court did not err in concluding that the defendants did not engage in the extreme or outrageous conduct required for IIED. We therefore affirm on this issue. 3. Punitive damages Coulson argues that the superior court erroneously granted summary judgment to ABIB and MMI on her punitive damages claims. The superior court concluded that Coulson failed to establish the prerequisites for this claim and granted summary judgment to ABIB and MMI. Because Coulson has failed to prevail on the merits of any of her tort claims, the appropriateness of punitive damages for those claims is a moot question. We therefore affirm on this issue. 4. Intentional interference mth prospective economic advantage Coulson argues that the superior court erred by granting summary judgment to ABIB on her claim of intentional interference with prospective economic advantage. She testified that she lost no clients as a result of the loss of files. The superior court relied on Coulson's testimony to dismiss the claim. Coulson does not dispute this finding and she does not explain why the superior court erred by granting summary judgment on these grounds. No evidence supported a finding of interference with prospective economic advantage. We therefore affirm on this issue. 5. Invasion of privacy, conversion, and negligent infliction of emotional distress The superior court granted summary judgment in favor of MMI on all of Coulson's claims except negligence, because there was no agency relationship between MMI and ABIB. Coulson contends that summary judgment was inappropriately granted to MMI on the claims of invasion of privacy, conversion, and NIED, because ABIB acted as MMI's agent when her files were allegedly taken. Coulson's arguments do not warrant reversal. Any error in granting summary judgment to MMI was rendered harmless by the jury's verdict. Because the jury found that ABIB was not liable for these torts, MMI could not be liable for these torts even if ABIB was MMI's agent. See supra, Part III.A.2. 6. Employment discrimination Coulson contends that it was error to grant summary judgment to MMI on her employment discrimination claim. Relying on federal employment discrimination law, she contends that she "made a prima facie showing that she was treated differently, and worse, than other employees, and demonstrated the specter of impermissible factors playing a role in her employer's decisions." Coulson did not establish a prima facie case of disparate treatment. She fails to allege that she was treated differently based on her status as a member of a protected class. The superior court granted sum mary judgment to MMI because Coulson failed to make a prima facie case even if the facts she alleged were true: Assuming for purposes of this motion that Plaintiff was the only employee required to take a 25% cut in pay and was the only employee subject to a three year covenant not to compete, Plaintiff fails to provide a legal basis that such an offer amounted to a legally actionable claim for discrimination. Coulson's discrimination claim seems to be predicated on the fact that she did not receive severance pay from MMI. MMI has explained why Coulson did not receive severance pay from MMI: only employees who did not receive offers for full-time employment from ABIB were offered severance pay. MMI made the same argument to the superior court in seeking summary judgment, and supported that argument with an affidavit in which Charles Anderson affied that those former MMI employees who were offered employment would not receive severance pay from MMI. The superior court referred to this argument in its order for summary judgment to MMI. Coulson has not demonstrated how MMI's explanation is flawed or why the superior court should not have accepted it. We therefore affirm on this issue. D. Prior Bad Act Issue At trial, Coulson sought to introduce evidence that Anderson had copied confidential client lists belonging to his previous employer when he left that employment to join MMI. The superior court excluded the evidence because it was prejudicial, irrelevant, lacked probative value, and had "only a speculative connection to conduct alleged in this ease." Coulson contends that it was error to exclude the evidence, because it showed Anderson's state of mind, his intent to convert her property, the identity and motive of the person who removed her files, and the absence of mistake. This was evidence of an alleged prior bad act. It was propensity evidence excludable under Alaska Evidence Rules 403 and 404. The superior court did not abuse its discretion in excluding it on the ground that it was more prejudicial than probative. E. Verdict Form, Coulson's claims against ABIB for invasion of privacy, conversion, negligence, and NIED were submitted to the jury with ABIB's proposed special verdict form. The form specified the elements necessary for each of Coulson's claims, and required the jury to answer straightforward "yes or no" questions. Using the form, the jury returned a verdict for ABIB on each claim. Coulson argues that the superior court abused its discretion by adopting the detailed verdict form, rather than using a simple form that would have asked whether Coulson had met her burden of proof on each claim. She claims that the special verdict form confused the jury. There was nothing wrong with the special verdict form. It allowed the jury to evaluate the elements of each claim. We affirm. F. MMI's Cross-Appeal After three days of trial, MMI moved for a directed verdict. The superior court granted the motion. After two more days of trial, the claims against ABIB were submitted to the jury, which found for ABIB. Applying Alaska Civil Rule 82(b), the superi- or court awarded MMI twenty percent of its actual attorney's fees, but awarded ABIB thirty percent of its actual attorney's fees. MMI's counsel affied that MMI's actual attorney's fees were $64,365. MMI argues in its cross-appeal that it was eiror to award MMI less than thirty percent of its actual and reasonable attorney's fees. Rule 82(b)(2) provides in part that, In eases in which the prevailing party recovers no money judgment, the court shall award the prevailing party in a ease which goes to trial 30 percent of the prevailing party's reasonable actual attorney's fees which were necessarily incurred, and shall award the prevailing party in a case resolved without trial 20 percent of its actual attorney's fees which were necessarily incurred. Rule 82(b)(3) itemizes factors that permit deviation from Rule 82(b)(2), but requires a court to "explain the reasons for the variation." Because no written finding accompanied the order awarding fees, we presume that the superior court did not rely on Rule 82(b)(3). The superior court consequently must have reasoned that the case against MMI was "resolved without trial" for purposes of Rule 82(b)(2) because the court awarded MMI only twenty percent, rather than thirty percent, of its actual attorney's fees. Having awarded ABIB thirty percent of its actual attorney's fees, the superior court appears to have interpreted Rule 82(b)(2) to limit the presumptive thirty-percent rate to parties receiving favorable jury verdicts or trying their cases to completion. MMI argues that the case against it did in fact go "to trial" for purposes of Rule 82(b)(2), given that its trial lasted three days, and ended only when its directed verdict motion was granted. We agree. We therefore vacate MMI's attorney's fee award and remand for entry of either an award of thirty percent of MMI's fees under Rule 82(b)(2), or written findings under Rule 82(b)(3) to justify a deviation from Rule 82(b)(2). IV. CONCLUSION Because Coulson would have lost even if she had been able to prove that ABIB was MMI's agent, we AFFIRM on the in camera, continuance, agency, and summary judgment issues. Because the superior court did not err by excluding evidence of Anderson's alleged prior bad act under Evidence Rule 403 or by using the detailed verdict form, we also AFFIRM on these issues. On MMI's cross-appeal, we VACATE the award of attorney's fees for MMI, and REMAND for the proceedings described in Part III.F. . See Capital Info. Group v. State, Office of Governor, 923 P.2d 29, 37 n. 5 (Alaska 1996). . See Stone v. International Marine Carriers, Inc., 918 P.2d 551, 554 (Alaska 1996) (citing R.E. v. State, 878 P.2d 1341, 1345 (Alaska 1994)). . See In re Mendel, 897 P.2d 68, 72 n. 7 (Alaska 1995). . See Myers v. Robertson, 891 P.2d 199, 207-08 (Alaska 1995). . See Veal v. Newlin, Inc., 367 P.2d 155, 157 n. 8 (Alaska 1961) ("Harmless error must be disregarded."); see also Alaska R. Civ. P. 61. . We note that there was no argument in the superior court that would have required the superior court to grant Coulson's motion to compel and to order the documents produced unredact-ed. . The court granted summary judgment to ABIB on the IIED and punitive damages claims. The jury returned a verdict in favor of ABIB on the claims of invasion of privacy, conversion, negligence, and NIED. . See, e.g., Restatement (Second) of Agency § 212 cmt. c (1958) ("The master may be liable although the actor is not liable. This is true in those cases in which liability is based upon knowledge of facts which the master has but which the servant does not have."). . Cf. Restatement (Second) of Agency § 219(1) (1958) ("A master is subject to liability for the torts of his servants committed while acting in the scope of their employment."); id. § 215 ("A master or other principal who unintentionally authorizes conduct of a servant or other agent which constitutes a tort to a third person is subject to liability to such person."); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 69, at 499-501 (5th ed.1984) (discussing liability of masters for torts committed by servants). . See Continental Ins. Co. v. Bayless & Roberts, Inc., 608 P.2d 281, 287-88 (Alaska 1980) (stating that claims supervisor who was not party to insurance contract was not bound by implied covenant of good faith and fair dealing). . See Alaska R. Civ. P. 56(f); Parson v. Marathon Oil Co., 960 P.2d 615, 619 (Alaska 1998); Gamble v. Northstore Partnership, 907 P.2d 477, 484-85 (Alaska 1995). . We review a superior court's decision on whether to permit further discovery under Civil Rule 56(f) for an abuse of discretion. See Mount Juneau Enters., Inc. v. City of Juneau, 923 P.2d 768, 773 (Alaska 1996). . "When reviewing a grant of summary judgment, we independently 'determine whether any genuine issue of material fact exists and whether the moving party is entitled to judgment on the law applicable to the established facts.' " R.E. v. State, 878 P.2d 1341, 1345 (Alaska 1994) (quoting Wright v. State, 824 P.2d 718, 720 (Alaska 1992)). "In doing so we must draw all reasonable inferences in favor of the non-moving party." Id. . See Neal & Co. v. Association of Village Council Presidents Reg'l Hous. Auth., 895 P.2d 497, 505 (Alaska 1995) (stating that "a third-party right in a contract will not be implied absent evidence showing that the parties intended that at least one purpose of the contract is to benefit the third party"). .Although we review a superior court's grant of summary judgment de novo, the question whether a plaintiff "presented sufficient evidence to support a prima facie case for IIED is a threshold question to which we apply an abuse of discretion standard." Hawks v. State, Dep't of Pub. Safety, 908 P.2d 1013, 1015 (Alaska 1995) (citing Cameron v. Beard, 864 P.2d 538, 548 (Alaska 1993)). . Landers v. Municipality of Anchorage, 915 P.2d 614, 619 n. 14 (Alaska 1996). . See Nome Commercial Co. v. National Bank of Alaska, 948 P.2d 443, 453 (Alaska 1997) (citing Cameron v. Beard, 864 P.2d 538, 548 (Alaska 1993)). . See Haskins v. Shelden, 558 P.2d 487, 492 (Alaska 1976) (acknowledging the rule that a claim of punitive damages does not broaden the range of actionable wrongs). . See generally Haroldsen v. Omni Enters., Inc., 901 P.2d 426, 430 (Alaska 1995); Strand v. Petersburg Pub. Sch., 659 P.2d 1218, 1222 n. 7 (Alaska 1983). . [T]he trial court may in its discretion exclude relevant evidence if it finds its probative value is outweighed by the risk that it will have a prejudicial effect on the jury, confuse the issues, or mislead the jury. The standard for appellate review of a lower court's decision to exclude testimony is whether it committed a clear abuse of discretion. Babinec v. State, 586 P.2d 966, 968 (Alaska 1978) (citations omitted). See also Sever v. Alaska Pulp Corp., 931 P.2d 354, 359 n. 5 (Alaska 1996) ("A trial court's evidentiary rulings are reviewed under the abuse of discretion standard."). . "As a type of jury instruction, a special verdict form is subject to the same standard of review as other jury instructions." Manes v. Coats, 941 P.2d 120, 125 n. 5 (Alaska 1997). "The trial court's jury instructions generally involve questions of law which are subject to the independent judgment standard of review. Errors in jury instructions will not be grounds for reversal unless they caused prejudice." Sever, 931 P.2d at 361 n. 11. We review de novo the question whether there has been prejudicial error in jury instructions. See Harris v. Keys, 948 P.2d 460, 465-66 (Alaska 1997). "The decision whether to include a particular instruction rests with the discretion of the trial court." Shane v. Rhines, 672 P.2d 895, 901 (Alaska 1983). .Cf. Patricia R. v. Sullivan, 631 P.2d 91, 103 (Alaska 1981) (criticizing special verdict form that required jury to list the defects or negligent acts that proximately caused the plaintiffs' injury as confusing in context of strict liability action). . We review the award of attorney's fees for abuse of discretion. See Bruner v. Petersen, 944 P.2d 43, 49-50 (Alaska 1997) (citing McNett v. Alyeska Pipeline Serv. Co., 856 P.2d 1165, 1167 (Alaska 1993)). "We will find that a trial court abused its discretion only when we are left with a definite and firm conviction, after reviewing the whole record, that the trial court erred in its ruling." Id. (citing Peter Pan Seafoods, Inc. v. Stepanoff, 650 P.2d 375, 378-79 (Alaska 1982)).

11754198

Peter KRACK, Appellant, v. STATE of Alaska, Appellee

Krack v. State

1999-01-15

No. A-6783

100

105

973 P.2d 100

973

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Peter KRACK, Appellant, v. STATE of Alaska, Appellee.

Peter KRACK, Appellant, v. STATE of Alaska, Appellee. No. A-6783. Court of Appeals of Alaska. Jan. 15, 1999. Christine S. Schleuss, Suddock & Schleuss, P.C., Anchorage, for Appellant. W.H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

3253

19751

OPINION STEWART, Judge. Peter Krack is a pharmacist and a pederast. Combining his easy access to drugs with cash and presents, he preyed on a generation of boys. Pursuant to a bargain with the State, Krack pleaded no contest to a representative group of charges covering both his misconduct with controlled substances and his sexual abuse of minors. Krack argues that his composite 28-year term to serve is excessive. Because we are not convinced that his term to serve is clearly mistaken, we affirm. Facts and proceedings Krack graduated from the University of New Mexico in 1975 with a degree in pharmacology. He worked in Cuba, New Mexico, as a pharmacist until 1983. He left after an investigation by the New Mexico State Police into his conduct with boys. During an interview with the New Mexico State Police, Krack admitted that he had performed fellatio on five boys. The police interviewed three of those five, and each of the three reported that Krack had paid money for each act of fellatio. In his interview Krack said, "from what I've read on this, that the majority of the harm to the boys doesn't come from anything that I might have done, but from the way the parents and authorities tend to react to it." Krack expressed a desire to get professional help. After his conduct was discovered, family members of Krack's victims physically assaulted him. The New Mexico authorities reacted by placing Krack on "Pre-prosecution Diversion." The terms of his Diversion required that Krack leave New Mexico. He left and moved to Dillingham, Alaska, to become a pharmacist at Kanakanak Hospital. Shortly after he settled in Dillingham, Krack began the same conduct that was discovered by the authorities in New Mexico. Over the next fourteen years, he sought out boys with whom he had gained a measure of trust. Twenty-six victims from Dillingham were discovered during the investigation. Krack's method of seduction with each victim was similar. He would start by inviting a boy to his house, often with other victims already present. He would provide the boy with access to sexually explicit material and encourage sexual activity; he would offer his victims money to engage in sexual conduct with him; he would obtain drugs from the pharmacy that he would abuse himself and that he would give to his victims; he engaged in any sexual conduct with his victims that he could, but if he could convince them, he would engage in fellatio and anal intercourse. The police began an investigation of Krack's sexual and drug misconduct after 17-year-old M.C., who the police were interviewing about a firearm that had been stolen from Krack's residence, described Krack's sexual and drug activity with boys in Dilling-ham. The police arranged for a Glass warrant and monitored the conversation between Krack and R.N., which showed Krack's willingness to engage in sexual misconduct. Krack was arrested shortly thereafter. In the jacket he wore when he was arrested, Krack had a pill bottle containing narcotics, stimulants, and anti-anxiety pills. During the execution of a search warrant on Krack's residence, the police discovered over a thousand pills of over twenty different types of drugs, a couple of mostly empty bottles of pharmaceutical cocaine, and some hypodermic needles. Included among the pills were Dilaudid, morphine, codeine, and Dexedrine. Two of Krack's victims have committed suicide: A.V. in New Mexico in 1994 and V.L. in Dillingham in 1997, a couple of days after he was contacted during the investigation. In three different presentations to the grand jury in January and February of 1997, the grand jury indicted Krack on 60 different counts: fourteen counts of misconduct involving controlled substances in the first degree, seven counts of misconduct involving controlled substances in the fourth degree, one count of sexual abuse of a minor in the first degree, twenty-nine counts of sexual abuse of a minor in the second degree, three counts of attempted sexual abuse of a minor in the second degree, and six counts of sexual abuse of a minor in the third degree. On April 1,1997, pursuant to a plea agreement with the State, Krack entered a no contest plea to an information charging seven counts: one count of first-degree misconduct involving a controlled substance; one count of fourth-degree misconduct involving a controlled substance; three counts of second-degree sexual abuse of a minor; and two counts of third-degree sexual abuse of a minor. The only restriction on Krack's sentence in the plea agreement was that no more than 15 years to serve could be imposed on the first-degree drug misconduct charge. The prosecution also agreed not to file any more charges against Krack for offenses that occurred while he was employed at Kanakanak Hospital and agreed to cease its investigation of Krack's drug diversions. In count I, Krack was charged with possessing the amphetamine that was among the pills he had in a small bottle in the coat he asked to wear to jail when he was arrested. In count II, Krack was charged with performing fellatio on 15-year-old R.N. in April of 1996. According to R.N., a couple of his friends first brought him to Krack's house around March of 1996. He returned frequently and would look at Krack's sexually explicit magazines and movies. Krack bet R.N. a hundred dollars that his penis was not longer than 6 inches. When R.N. exposed his penis, Krack paid him $100. During later visits, Krack masturbated in front of R.N. and convinced R.N. to masturbate in front of him. They began masturbating each other. Krack began performing fellatio on R.N. and convinced R.N. to perform fellatio on him. R.N. reported that sometime in the fall of 1996, Krack paid him $200 to have anal intercourse. R.N. reported that Krack had also supplied him and other boys with drugs. On January 15, 1997, R.N. assisted the police in the service of the Glass warrant. He wore a wire and went to Krack's house. Krack asked that R.N. bring a third boy over for group sex. Krack brought out a blow-up doll that they both used as a sex aid. Krack fondled R.N.'s genitals and asked R.N. to place R.N.'s penis in Krack's mouth, but R.N. declined and left. In count III, Krack was charged with performing fellatio on 14-year-old J.B. in the spring of 1996. J.B. reported that he was introduced to Krack in the summer of 1995 by another boy. He would visit Krack's residence frequently. Krack started paying him money to masturbate in front of Krack. Later, Krack would masturbate and fellate J.B. and would pay him for the sexual encounters. In count IV, Krack was charged with causing 15-year-old M.C. to masturbate in front of Krack during 1995. M.C. reported that some of his friends first introduced him to Krack when he was 12. Krack provided M.C. and his friends with fireworks. Krack paid him cash to masturbate. Krack would eat M.C.'s semen. M.C. stayed away from Krack for a couple of years but returned when he was about 15. Krack paid M.C. to allow Krack to perform fellatio on him. M.C. continued to visit Kraek's house up until a few days before the police arrested Krack. In count V, Krack was charged with delivering amphetamine to 14-year-old N.S. in November of 1995. N.S. reported that he met Krack when he was 13. His mother worked at the Kanakanak Hospital and introduced her son to Krack so that Krack could be a "big brother" for N.S. N.S. reported that he went to Krack's house along with other boys. Krack supplied him with "speed" and "THC, Delta Nine" drug capsules. The November 1995 delivery occurred when Krack and N.S. came to Anchorage for the Great Alaska Shootout. Whenever Krack traveled, N.S. said that he brought an inventory of drugs "from pain killers and downers to THC and speed." In count VI, Krack was charged with causing 14-year-old B.H. to masturbate in front of him in the summer of 1994. B.H. reported that - he met Krack when he was about 12. When he visited Krack's house, there were most often other boys there and they would often watch sexually explicit movies. B.H. reported that Krack paid him $200 to masturbate with him while they were camping near Dillingham. In count VII, Krack was charged with performing fellatio on 13-year-old G.T. in the winter of 1984-85. G.T. reported that he met Krack in 1983 or 1984. G.T. said that Krack started talking with him when he was waiting for the school bus at the hospital compound. He said that Krack did not start asking for sexual favors until some time had passed. G.T. said that Krack gave him gifts when he allowed Krack to perform fellatio on him. In addition, he reported that Krack also gave him access to drugs, including marijuana and morphine, and offered him cocaine. According to G.T., Krack engaged in sex acts with him, including anal intercourse, until G.T. moved away from Dillingham. Krack was not subject to presumptive sentencing, although he faced a minimum 5-year sentence on count V, first-degree misconduct involving a controlled substance. The State contended that a number of statutory aggravating factors applied by analogy to Krack's sentencing. Judge Andrews found that the State proved aggravating factor (e)(10) with respect to count I. Krack conceded that (c)(10) applied to counts II, III, TV, VI, and VII. In addition, Krack conceded that aggravating factor (c)(18) applied to all the sexual abuse counts, that is, counts II, III, IV, VI, and VII. Krack also conceded that aggravating factor (c)(21) applied to counts I, II, III, IV, VI, and VII. Krack contended that mitigating factors (d)(9) and (d)(14) applied to count V, but Judge Andrews did not agree. Judge Andrews found that Krack was a very skilled manipulator of children. She found that the psychological examination of Krack gave her no reason "to view the defendant as amenable to treatment." Judge Andrews also found that Krack has "a very ingrained deviant sexual pattern that makes him a predator in the most subtle sense of the word, and that that has been going on for a very long period of time." Further, Judge Andrews concluded that he was not a first offender in terms of his personal history. She also concluded that his experience in New Mexico provided him with the chance for rehabilitation. As she found, Krack was caught by the police in New Mexico and confronted with prosecution. He announced that he understood his need for professional help. Judge Andrews found that he had the ability to receive assistance, and did not. She found that he was forced to uproot himself from his professional and personal life and that the New Mexico incident was a "sledgehammer." In spite of the impact of the incident, and his knowledge of his need for assistance, she found that Krack chose to relocate to the relatively rural location of Dillingham and chose not to get treatment. Judge Andrews found that the sophistication and the manner in which Krack obtained and utilized drugs was unique. Finally, Judge Andrews found that Krack had engaged in conduct with G.T. when he was twelve going on thirteen, which would constitute first-degree sexual abuse of a minor. When Judge Andrews considered the Chaney criteria, she emphasized isolation because she had "so little confidence in the rehabilitation potential of the defendant." She thought that his chances for rehabilitation were "pretty dismal." Moreover, she concluded that Krack was such a danger to the public that she could not impose a sentence long enough to protect the public because she could not impose "a lifetime behind bars." Judge Andrews also emphasized community condemnation. On the drug offenses, Judge Andrews imposed a 20-year term with 5 years suspended on count V and a concurrent 3-year term on count I. On the sexual abuse offenses, Judge Andrews imposed 6 years with 3 suspended on count II, 6 years with 3 suspended on count III, 4 years with 2 suspended on count IV, 4 years with 2 suspended on count VI, and 7 years with 4 suspended on count VII. The sentences on the sex offenses were con secutive to each other and consecutive to the sentences on the drug offenses. Krack's composite sentence was 47 years with 19 years suspended, yielding a composite 28-year term to serve. Discussion Krack argues that Judge Andrews erred when she failed to find the small-quantity mitigating factor that he alleged was applicable to a consideration of his sentence on count V. This claim is moot. Presumptive sentencing does not apply to first-degree misconduct involving a controlled substance which is an unclassified felony with a minimum 5-year sentence and a maximum 99-year sentence. Judge Andrews found that the small quantities mitigating factor was not proven by clear and convincing evidence, but she did recognize that the amount of drugs was small and would consider that small amount in sentencing. This was perfectly appropriate. While the consideration of statutory aggravating and mitigating factors can provide a useful guide for the consideration of an appropriate sentence for an unclassified felony, because the standards of presumptive sentencing do not apply, Judge Andrews was authorized to consider the amount of drugs involved without proof of the mitigating factor by clear and convincing evidence. Krack contends that his 28-year composite sentence is excessive. As explained above, Krack was convicted of one count of first-degree misconduct involving a controlled substance (distributing schedule IA, schedule IIA, and schedule IIIA controlled substances to minors) which had a sentencing range of 5 to 99 years. Krack was also convicted of several counts of second-degree sexual abuse of a minor (engaging in sexual penetration with children between the ages of 13 and 16). Those offenses were class B felonies, with a sentencing range of 0 to 10 years. In our sentencing decisions dealing with defendants convicted of first-degree sexual abuse of a minor (sexual penetration with children under the age of 13), this court has established a sentencing range of 10 to 15 years' imprisonment for aggravated instances of this crime. In a few exceptional cases, we have approved even longer sentences — sentences of up to 21 years to serve. But first-degree sexual abuse of a minor is an unclassified felony with a presumptive term of 8 years' imprisonment for first felony offenders and a maximum term of 30 years' imprisonment. Krack was convicted of a lesser degree of crime — a class B felony — for which the statutorily prescribed penalties are considerably less severe. We have never approved a sentence of more than 12 years' imprisonment for a defendant convicted of second-degree sexual abuse of a minor. Based on this distinction, Krack argues that his composite sentence is clearly mistaken. The key to analyzing Krack's claim of excessive sentence is to remember that Krack was convicted, not only of second-degree sexual abuse of a minor, but also of first-degree misconduct involving controlled substances. Only 13 years of Krack's composite prison term is attributable to his sexual abuse convictions; the remaining 15 years is attributable to Krack's drug conviction. As noted above, first-degree controlled substance misconduct is an unclassified felony with a maximum penalty of 99 years' imprisonment. Because Krack was convicted of distributing drugs to minors, our past sentencing decisions dealing with defendants convicted of second-degree sexual abuse of a minor do not govern our analysis of Krack's overall sentence. The plain fact is that the penalty for distributing drugs to minors is much more severe than the penalty for sexually abusing them. Moreover, under the facts of this case, Krack faced the substantial possibility of a lengthy sentence for his drug offense. His conduct in committing this offense was plainly aggravated. Although Krack pleaded no contest to only one count of this offense, the record reveals that he committed the offense numerous times and with numerous victims. Further, Krack abused his position as a pharmacist to obtain the drugs. Both Krack and the State seemingly recognized that Krack could potentially receive a lengthy sentence for his drug offense: one of the express terms of the plea agreement was the stipulation that Krack's sentence for first-degree controlled substance misconduct would not exceed 15 years to serve. When we review a composite sentence imposed for several criminal convictions, we assess whether the defendant's combined sentence is clearly mistaken, given the whole of the defendant's conduct and history. The record in the present case reveals that Krack sexually abused dozens of boys over a period of fifteen years in two different states. Krack accepted banishment from New Mexico to escape prosecution for his acts of sexual abuse in that state. Krack then came to Alaska, where he committed many more acts of sexual abuse. To entice and manipulate his victims, Krack took advantage of his position as a pharmacist to repeatedly distribute controlled substances to these minors. While the 13-year component of Krack's sentence attributable to his second-degree sexual abuse convictions is more severe than any sentence we have reviewed in the past, the blameworthiness of Krack's sexual misconduct equals or exceeds the conduct of defendants in past cases. Moreover, we believe that, under the circumstances, the 15-year term Krack received for his drug offense represents a lenient sentence for that criminal conduct. In sum, when we gauge Krack's composite sentence against the totality of his conduct, we conclude that the 28-year prison term, while admittedly severe, is not clearly mistaken. Conclusion The judgment of the superior court is AFFIRMED. . State v. Glass, 583 P.2d 872 (Alaska 1978). . AS 11.71.010(a)(2). . AS 11.71.040(a)(3)(A). . AS 11.41.434(a)(1). . AS 11.41.436(a)(1). . AS 11.41.436(a)(1) & AS 11.31.100(a). . AS 11.41.438(a)(1). . AS 12.55.125(b). . See Wylie v. State, 797 P.2d 651, 662 (Alaska App.1990). . AS 12.55.155(c)(10) (defendant's conduct was among the most serious in the definition of the offense). . AS 12.55.155(c)(18)(B) (defendant "has engaged in the same or [similar] conduct . involving the same or another victim"). . AS 12.55.155(c)(21) (defendant had a history of repeated criminal violations similar in nature to the present offense). . AS 12.55.155(d)(9) (defendant's conduct was among the least serious within the definition of the offense). . AS 12.55.155(d)(14) (offense involved small quantities of a controlled substance). . AS 11.41.434(a)(1). . State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970). . See AS 11.71.010(c) & AS 12.55.125(b). . See Gregory v. State, 689 P.2d 508, 509 (Alaska App.1984). . See AS 11.41.436(b) & AS 12.55.125(d). . See State v. Andrews, 707 P.2d 900, 913-14 (Alaska App.1985), aff'd, 723 P.2d 85 (Alaska 1986). . See Lewis v. State, 706 P.2d 715, 717 (Alaska App.1985); Seymore v. State, 655 P.2d 786, 788 (Alaska App.1982); Qualle v. State, 652 P.2d 481, 488 (Alaska App.1982). . See AS 11.41.434(b) & AS 12.55.125(i). . See generally Williams v. State, 928 P.2d 600, 609 (Alaska App.1996); Kirlin v. State, 779 P.2d 1251 (Alaska App.1989). . See Neal v. State, 628 P.2d 19, 21 n. 8 (Alaska 1981); Comegys v. State, 747 P.2d 554, 558-59 (Alaska App.1987). . See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).

11768751

James D. BROWN, Appellant, v. STATE of Alaska, Appellee

Brown v. State

1999-02-19

No. A-6439

1158

1165

973 P.2d 1158

973

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

James D. BROWN, Appellant, v. STATE of Alaska, Appellee.

James D. BROWN, Appellant, v. STATE of Alaska, Appellee. No. A-6439. Court of Appeals of Alaska. Feb. 19, 1999. Ronald A. Offret, Aglietti & Offret, Anchorage, for Appellant. Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

3815

23741

OPINION MANNHEIMER, Judge. James D. Brown stands convicted of second-degree murder. Superior Court Judge John E. Reese sentenced Brown to serve 55 years in prison, a séntence considerably more severe than the 20- to 30-year benchmark range established by this court in Page v. State. In our .prior decision in this case , we vacated Brown's sentence and directed the superior court either to impose a sentence within the Page benchmark range or else explain why Brown's sentence should exceed the benchmark range to this degree. Judge Reese reconsidered Brown's sentence and again imposed a 55-year prison term. Brown now renews his sentence appeal; he contends that his 55-year sentence is excessive. For the reasons explained here, we agree with Brown and we therefore reverse his sentence. Underlying Facts Brown was a cocaine dealer. On February 7, 1995, Brown went to the home of his longtime friend, Jas Dixson, to collect the money that Dixson owed for some cocaine that Brown's associate had previously delivered to Dixson. Dixson offered Brown approximately $2000 for the cocaine. This was apparently less than the agreed-upon price, but Dix- son claimed that the delivery had been "short" (that is, Dixson claimed that he had not received the full weight of- cocaine). Brown offered to make good the difference, but Dixson declined. At some point during this discussion, Dix-son produced a handgun and placed it on the counter beside him. Brown grabbed the gun and aimed it at Dixson. About this time, Dixson's wife came downstairs and saw what was happening. When she interposed herself between the two men, Brown raised the gun over her shoulder. At this point, the weapon discharged; the bullet struck Dixson in the head and killed him. While Dixson's wife called 911, Brown fled the residence. Brown was indicted for first-degree murder, but the authorities could not find him. Brown eventually surrendered himself several months later. At trial, Brown asserted that he had grabbed the weapon from the counter to protect himself. He contended that he had not meant to shoot Dixson — that the gun went off accidently when Dixson's wife came between the two men and jostled or struck Brown. A superior court jury acquitted Brown of first-degree murder but found him guilty of second-degree murder. Brown was 24 years old when he committed this murder. He had no prior criminal record. Judge Reese's Initial Sentencing Analysis At Brown's first sentencing, the State argued that Brown's offense was aggravated by two of the factors listed in AS 12.55.155(c): (e)(4) — that Brown used a dangerous instrument in the commission of the offense; and (c)(10) — that Brown's offense was among the most serious second-degree murders. Judge Reese recognized that aggravating factor AS 12.55.155(c)(4) applied to Brown's case because Brown committed the homicide by means of a firearm. However, the judge concluded that this aggravating factor should not affect Brown's sentence, since second-degree murders are generally committed by the use of dangerous instruments. Regarding the second proposed aggravator, Judge Reese rejected the notion that Brown's offense was among the most serious second-degree murders. The judge concluded that the "really serious second-degree murder[s]" reflected in past reported cases were "well beyond the nature of [Brown's] case". Having rejected the State's contention that Brown's crime was aggravated under AS 12.55.155(c), Judge Reese then gave his own view of the offense: Here we have friends of some duration who were apparently involved in drug sales, with substantial [amounts of] money changing hands.... There was discussion about being short on the drug deal.... I [don't] think it takes a great deal of imagination to conclude that [this] was . a tension-producing discussion. People don't talk about drugs that way, people don't trade wads of money that way, people don't refuse to turn cocaine over without there being tension generated. [These] people knew each other, but this was a business discussion. This was an unpleasant business discussion — because business wasn't working smoothly, people weren't doing what they were supposed to do.... This is the setting in which the events began. Judge Reese initially declined to resolve the question of how Brown had obtained the handgun. The judge merely noted that "[hjowever hé got it — whether he brought it [to Dixson's house, or] whether Mr. Dixson pulled it out of the drawer and slapped it onto the counter — Mr. Brown ended up with the gun." But then Judge Reese proceeded to analyze Brown's culpability under the assumption that the victim, Dixson, was the one who produced the handgun: [Brown] grabbed [the gun], . he grabbed it on purpose, intentionally, at a time after Jas Dixson had put it down on the counter, 'at a time when Jas Dixson was sitting down. Mr. Brown intentionally grabbed the gun to grab control of the situation[.] . [A]nd then Jennelle Dix-son came in and wrested control of the situation from everybody else. Mr. Brown . was pointing the gun intentionally [and] the gun went off, possibly or even probably because Jennelle Dixson inserted herself into the controversy.... Maybe it wasn't Mr. Brown['s] intention to shoot the gun at that moment, maybe it wasn't his intention to ever shoot the gun, but he intentionally took the gun, he intentionally pointed the gun, he intentionally put . his finger on the trigger and created a situation that was very, very likely to cause someone's death. And someone died. This is not a worst case; this is not a first-degree murder case. Nor was this an innocent accident, or an accident mitigated by a lot of circumstances. This death was a predictable [result] of using a firearm to gain control in a discussion. A man is dead, [and] two families are permanently devastated as a result of it. Judge Reese then addressed the sentencing goals codified in AS 12.55.005. The judge concluded that Brown's sentence should not emphasize rehabilitation because Brown "persistfed] . [in blaming Jennelle Dixson and] in denying the magnitude of his conduct". The judge also concluded that Brown's sentence should not emphasize deterrence: he noted that Brown had acted impulsively, and he expressed the opinion that impulsive crimes of violence could not really be deterred. Judge Reese concluded that the main sentencing goals in Brown's case should be isolation of the offender and reaffirmation of societal norms. The judge reached this conclusion because Brown had involved himself in the drug trade and had used a firearm to enforce his rights in a drug sale. These acts, Judge Reese declared, proved that Brown was "a dangerous man". Judge Reese recognized that Brown's prior history was "fairly good". Even so, Judge Reese concluded that Brown should receive a sentence of 55 years' imprisonment. Judge Reese's Analysis on Remand As explained above, we vacated Brown's sentence in our earlier decision and we directed Judge Reese either to sentence Brown within the Page benchmark range (20 to 30 year's to serve) or else to explain more fully why Brown should receive a sentence substantially more severe than this benchmark. Upon reconsideration, Judge Reese decided to re-impose the 55-year sentence. The judge found that Brown was "not a typical second-degree murder defendant": This murder occurred as part of the enforcement of financial responsibility in a cocaine enterprise. Mr. Brown supports himself by the sale of cocaine. [At trial, he] lied to the jury and the court about [his source of income,] and [he] did not accept responsibility for the murder. When released, he seems likely to re[-]enter the [drug] business, and to again represent a threat to the lives of others in the community. Isolation is [thus] very important. Judge Reese expressed his view that the Page benchmark was "dicta" and that it therefore did not govern his sentencing decision. However, the judge also found that Brown's offense was "sufficiently extraordinary to justify departure from the Page benchmark": James Brown committed seeond[-]degree murder as part of a commercial drug sale collection confrontation, [an event] which is likely to recur if he isn't off the street.... His [55-year] sentence is 8 years beyond the midpoint sentence authorized by the legislature. He would be released in as few as 10 years if given a 30[-]year sentence. He is too dangerous to be released so soon.... The Page Benchmark The ultimate question presented here is whether the superior court was clearly mistaken when it sentenced Brown to serve 55 years for this second-degree murder. Our decision in Page v. State is the starting point for analyzing Brown's sentence. In Page, this court reviewed past second-degree murder sentences and established a benchmark sentencing range for this offense. We concluded that "[a person] convicted of [second-degree murder] should [typically] receive a sentence of from twenty to thirty years [to serve]". When Judge Reese explained his renewed decision to sentence Brown to serve 55 years, he characterized the Page benchmark as dictum. Judge Reese pointed out that Page himself received 99 years to serve, a sentence which this court affirmed. From this, Judge Reese concluded that any language in Page about a 20- to 30-year benchmark sentencing range was unnecessary to this court's decision. Whatever one might conclude from reading Page in isolation, this court's later sentencing decisions make it clear that the Page benchmark range governs sentencing in second-degree murder eases. Indeed, our prior decision in Brown's case was specifically premised on the vitality and applicability of the Page benchmark range. We vacated Brown's sentence and directed the superior court to reconsider the sentence precisely because Judge Reese failed to explain his "departure from the Page benchmark". As is evident from the result in Page itself (where this court affirmed a 99-year sentence for second-degree murder), a benchmark sentencing range does not create fixed sentencing boundaries. Rather, a benchmark range is designed to "provide assistance and guidance to sentencing [judges] faced with difficult sentencing decisions" by furnishing a numerical "starting point[ ] for individualized [sentencing] analysis in each case". Benchmarks are intended to help courts avoid unjustified disparity in sentencing by forcing judges to articulate reasons for imposing atypical sentences. When a sentencing judge "decides that an offender deserves a sentence which is significantly different from sentences previously given to similarly situated offenders", the judge is required to "find some legitimate basis for the difference" — that is, a basis related to the sentencing criteria originally announced in State v. Chaney and now codified in AS 12.55.005. The benchmark promote[s] careful consideration of whether actual differences exist between [the] case [before the court] and prior, generally similar cases, and eneourage[s] [sentencing] courts to [clarify] their reliance on those differences when they do exist. Williams, 809 P.2d at 934. And, because sentencing judges are required to articulate their reasons for imposing sentences above or below the benchmark, the benchmark fosters another goal: better-informed appellate review of sentencing decisions. A typical offender who commits a typical offense should receive a sentence within the benchmark range. Mitigating circumstances can justify a sentence below the benchmark range, while aggravating circumstances can justify a sentence above the benchmark range. There are few legal restrictions on the types of factors that a sentencing court can consider when assessing whether a particular sentence should fall outside the benchmark range. As we stressed in Williams, "any sound reason may be relied on to differentiate one case from another." But the benchmark does serve as an anchor: a sentencing judge must have sound reasons before imposing a sentence that varies from the benchmark. Our Analysis of Brown's Sentence Brown's 55-year sentence is a substantial upward departure from the 20- to 30-year benchmark range established in Page. As explained above, the superior court offered various reasons why Brown's conduct should be categorized as atypically serious. But having examined the record, we conclude that these reasons are unconvincing. As noted above, Brown was a young offender with no prior criminal (or juvenile) record. After the homicide, he hid from the authorities, but he eventually turned himself in voluntarily. Judge Reese sentenced Brown under the assumptions that (1) Jas Dixson was the one who produced the handgun and placed it on the counter, and (2) Brown had not intended to shoot Dixson. Judge Reese found, nevertheless, that Brown acted culpably because he took up the weapon, put his finger to the trigger, and pointed the gun at Dixson. Even though Judge Reese found that the weapon was fired accidentally, Judge Reese concluded that the homicide was aggravated because (1) Brown was a drug dealer and (2) Brown had used a firearm to gain control in a dispute over a drug sale. If Judge Reese had found that Brown was a drug dealer who generally used firearms to intimidate his clients and enforce drug contracts, then we would uphold Judge Reese's conclusion that Brown's offense constituted an aggravated instance of second-degree murder. But Judge Reese found the opposite. When he sentenced Brown, Judge Reese assumed that the gun belonged to Dixson and that it was Dixson who produced the gun and placed it on the counter, apparently for the purpose of intimidating Brown or otherwise gaining control of the situation. Thus (under Judge Reese's view of the case), even though Brown came to Dixson's house to obtain payment for a drug transaction, Brown did not initiate the use of force or the threat of force. Although Brown subsequently grabbed Dixson's gun to gain control of the situation, Brown was responding to Dixson's act; it was Dixson who first introduced an element of deadly force into the discussion. Judge Reese also concluded that there was little hope for Brown's rehabilitation. He reached this conclusion based on his findings that Brown was a drug dealer, that Brown had lied under oath about his sources of income, and that Brown persisted in minimizing his responsibility for the homicide by blaming Jennelle Dixson for what had happened. Judge Reese's third finding is problematic — -his finding that Brown was trying to minimize his responsibility for the homicide by blaming Jennelle Dixson. To the extent that Brown blamed Jennelle Dixson for what happened, this conclusion is supported by Judge Reese's own findings at sentencing. We note, in particular, Judge Reese's findings that "Jennelle Dixson came in and wrested control of the situation from everyone else" and that "the gun went off, . probably because Jennelle Dixson inserted herself into the controversy". The record supports Judge Reese's first two findings — that Brown was a drug dealer and that Brown committed perjury at trial when asked to describe his sources of income. Thus, there is some support for Judge Reese's conclusion that Brown was likely to return to drug dealing upon his release from prison. However, under the facts of this ease, Brown's likelihood of returning to the drug trade does not support Judge Reese's conclusion that Brown will pose a continuing danger to the lives of his customers and associates. Under the facts as found by Judge Reese, Brown did not initiate the use of force; rather, he reacted precipitously to a dangerous situation created by Dixson. Moreover, Judge Reese concluded that even after Brown grabbed the handgun and pointed it at Dixson, the homicide probably would not have occurred if Jennelle Dixson had not intervened. In short, taking Judge Reese's view of the evidence, Brown was a young drug dealer who was unexpectedly confronted with a dangerous situation when Jas Dixson — a customer who was also Brown's long-time friend— pulled a gun during their discussion about an alleged shortage in a previous delivery of cocaine. Brown grabbed the gun and pointed it at Dixson, but he did not intend to shoot Dixson and he probably would not have fired the gun if he had not been distracted or unnerved by the intervention of Jennelle Dix-son. This is not meant to minimize the seriousness of Brown's conduct. Brown was convicted of second-degree murder because the jury concluded that Brown acted with manifest indifference to the value of human life. As Judge Reese noted, "[a] man is dead, [and] two families are permanently devastated as a result of it." But the question before us is whether Brown's conduct, his background, or a combination of these two factors justifies a substantial departure from the Page benchmark sentencing range of 20 to 30 years in prison. This question must be answered by determining whether there is sound reason to conclude, from Brown's conduct and/or his background, that his offense is substantially more serious than a typical second-degree murder. In cases where death has resulted from gratuitous or otherwise inexplicable acts of extreme violence, we have upheld second-degree murder sentences that substantially exceed the Page benchmark range. See, for example, Page itself , Faulkenberry v. State , Norris v. State , Monroe v. State , and Gustafson v. State and Cheely v. State . But Brown's conduct can not realistically be likened to the conduct of the defendants in these cases. Given the facts found by Judge Reese, Brown's offense appears to be within the mainstream of the unintended, extremely reckless homicides defined by AS 11.41.110(a)(2). For these reasons, we REVERSE Brown's sentence. This case is remanded to the superior court for resentencing. The superior court shall sentence Brown to no more than 30 years to serve. . 657 P.2d 850, 855 (Alaska App.1983). . See Brown v. State, Memorandum Opinion No. 3815, 1998 WL 224920 (Alaska App.; May 6, 1998). . See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (holding that sentencing decisions are to be affirmed on appeal unless they are "clearly mistaken"). . Page, 657 P.2d at 855. . See, for example, Cheely v. State, 861 P.2d 1168, 1179 (Alaska App.1993); Norris v. State, 857 P.2d 349, 356, 357 (Alaska App.1993); Gustafson v. State, 854 P.2d 751, 763 (Alaska App.1993); Sam v. State, 842 P.2d 596, 603 (Alaska App.1992); Ross v. State, 808 P.2d 290, 291 (Alaska App.1991); Odom v. State, 798 P.2d 353, 356 (Alaska App.1990). . Brown v. State, Memorandum Opinion No. 3815, 1998 WL 224920 (Alaska App.; May 6, 1998), slip opinion at 15. . Williams v. State, 809 P.2d 931, 933 (Alaska App.1991). . 477 P.2d 441, 443-44 (Alaska 1970). . Williams, 809 P.2d at 935. . See Page, 657 P.2d at 855. . 809 P.2d at 934. . See AS 11.41.110(a)(2). . 657 P.2d at 853-55. The defendant in Page had a substantial criminal record. Id. at 853-54. Page repeatedly stabbed his victim, then tied him up and left him to die. Id. at 854. This court upheld the finding that Page was a "worst offender", and we affirmed Page's 99-year sentence. Id. at 855. . 649 P.2d 951 (Alaska App.1982). The defendant in Faulkenberry spent the night drinking with a woman he met in a bar. When they returned to the woman's apartment, the woman passed out on a sofa. Faulkenberry then poured lighter fluid around the apartment, set the fluid on fire, watched until the flames reached a height of three feet, and then left — knowing that the woman was unconscious and likely to die. Id. at 953. This court upheld Faulkenberry's 60-year sentence. Id. at 956-57. . 857 P.2d 349 (Alaska App.1993). The defendant in Norris was fighting with his domestic partner. He picked up a rifle, hit her in the head and knocked her to the floor, then held her down and pointed the rifle at her head. The weapon fired when the victim struggled to escape. Id. at 352. We upheld Norris's 50-year sentence. Id. at 356-58. . 847 P.2d 84 (Alaska App.1993). The defendant in Monroe was mentally ill. He killed his father by stabbing him thirty-three times. Id. at 85. We upheld Monroe's 60-year sentence. Id. at 92-93. . 854 P.2d 751 (Alaska App.1993), and 861 P.2d 1168 (Alaska App.1993), respectively. The defendants in Gustafson and Cheely decided to shoot a motorist who allegedly cut in front of their car on the highway. Gustafson shot the motorist with a rifle after Cheely positioned his car for the shot. Gustafson, 854 P.2d at 754. We upheld Gustafson's 65-year sentence, 854 P.2d at 763-67, and Cheely's 60-year sentence, 861 P.2d at 1178-1180.

12041471

Henry Allen THOMPSON, Appellant, v. STATE of Alaska, Appellee

Thompson v. State

1967-05-01

No. 626

995

1001

426 P.2d 995

426

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Henry Allen THOMPSON, Appellant, v. STATE of Alaska, Appellee.

Henry Allen THOMPSON, Appellant, v. STATE of Alaska, Appellee. No. 626. Supreme Court of Alaska. May 1, 1967. Edward J. Reasor,, Anchorage, for appellant. Donald A. Burr, Atty. Gen., Juneau, Thomas E. Curran, Jr., Dist. Atty., William H. Fuld, Asst. Dist. Atty., Anchorage, for appellee. Before NESBETT, C. J., and DIMOND and RABINO WITZ, JJ.

3087

18512

RABINOWITZ, Justice. On the first occasion this matter was before us it was remanded to the trial court for the purpose of holding a hearing in conformity with Criminal Rule 35(b). Originally appellant was tried upon a three-count indictment. After the state had presented its case in chief and appellant had testified, appellant withdrew his not-guilty plea to a forgery count and pled guilty thereto. At the time this matter was initially before us appellant had claimed that he was coerced into withdrawing his plea of not guilty and entering a plea of guilty by his court appointed counsel, who threatened to withdraw if this was not done, at the same time assuring him that if he did so he (counsel) would guarantee that the probation officer would recommend probation. In our opinion we concluded that these assertions raised an issue of fact which could not be "resolved in an appeal and which should have been determined in an acceptable manner by the trial court." Upon remand, the superior court appointed counsel for appellant and entered an order enabling appellant to be present at the hearing. After hearing testimony from appellant, appellant's previous court-appointed trial counsel, and the Youth and Adult Authority's probation officer who authored the presentence report which had been ordered in regard to the sentencing of appellant, the trial court filed findings of fact as required by our mandate. As to appellant's assertions of threatened withdrawal from the case, as well as guarantee of probation by Robert Libbey, appellant's court-appointed trial counsel, the superior court found that Mr. Libbey did not threaten to withdraw from the case. He did not promise Thompson that he would obtain probation for him, although he did inform Thompson that he would do everything he could in that direction. It has been pointed out that Thompson had previously been advised that his chances for probation were dim in view of his record. Thompson was perfectly capable of making his own decision, and' I find that he did.' Thompson was perfectly aware of how the matter stood and of his chances for probation at the time he entered his plea. He was not, coerced by his attorney nor was he confused. I find nothing improper in the conduct of Mr. Libbey, whom I find to have been completely honest and candid with his client . Our review of the entire record of the hearing held on remand has led us to the conclusion that the superior court's findings which pertain to Mr. Libbey's purported withdrawal and his alleged guarantee of probation are amply supported by the record. We, therefore, affirm the superior court's findings and conclusions to the effect that appellant's change of plea to guilty was made voluntarily and with understanding of the nature of the charge. We are of the opinion that the record discloses a sufficient factual basis for the trial court's acceptance of appellant's guilty plea. We are also of the view that the record establishes that appellant was fully aware of the conse quences of his guilty plea. The fact that a plea of guilty was entered because of the possibility of obtaining a more lenient sentence does not make such a plea an involuntary one. We note that appellant's counsel in this appeal has not briefed the question of the voluntariness of appellant's plea of guilty. Nevertheless, because this issue resulted in our original remand and was the focal point of the hearing that was held upon remand, we considered it appropriate to discuss this question. We find it unnecessary to decide all of the issues which appellant now seeks to raise. It is a well established rule that in the circumstance where a defendant, who is adequately represented by counsel, voluntarily and knowingly pleads guilty, this act constitutes a waiver of all non-jurisdictional defenses. The only other question which we consider to be properly before us, in light of the foregoing rule and the record which was produced at the remand hearing, is appellant's assertion that it was improper conduct on the part of the Youth and Adult Authority's probation officer to question appellant with regard to the two charges against appellant which were dismissed when appellant changed his plea to the forgery count to that of guilty. Criminal Rule 32(c) which pertains to presentence investigations and reports provides : When Made. The probation service of the court shall make a pre-sentence investigation and report to the court before the imposition of sentence or the granting of probation unless the court otherwise directs. The report shall not be submitted to the court or its contents disclosed to anyone unless the defendant has pleaded guilty or has been found guilty. Report. The report of the pre-sentence investigation shall contain any prior criminal record of the defendant and such information about his characteristics, his financial condition, and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant, and such other information as may be required by the court. Here the record discloses that after appellant had changed his plea the trial court ordered a presentence investigation to be made and a presentence report to be filed. During the course of his investigation, a probation officer of the Youth and Adult Authority of the State of Alaska questioned appellant concerning his involvement in the two charges which had been dismissed. The presentence report which was filed contained reference to appellant's admissions of guilt as to the two dismissed charges. Appellant contends that both the questioning referred to above and the inclusion of the responses elicited from appellant, concerning the dismissed charges, in the presen-tence report constituted error. We hold that under the circumstances appearing in this record nothing which occurred during the presentence investigation, nor any portion of the text of the presentence report which was filed, requires the setting aside of appellant's sentence. Here appellant's trial counsel was given the opportunity to read the pre-sentence report before appellant was sentenced. No objection was raised to the factual content thereof. We believe that appellant's attack on the presentence investigation and report are disposed of by the rationale of the following cases which we find persuasive. In Williams v. People of State of New York the defendant was convicted of first degree murder and the jury recommended a life sentence. In imposing the death penalty the trial judge stated that a presentence investigation had revealed factors which persuaded him that the death penalty was called for. Among these factors referred to was the appellant's experience in approximately thirty other burglaries. The appellant had not been convicted of these burglaries, but the judge had information that he had confessed to some and had been identified as the perpetrator of others. The attack on the sentence was based on a denial of due process in that the appellant had not been afforded an opportunity to confront those that had accused him of these other burglaries. In affirming, the Supreme Court of the United States said: A sentencing judge, however, is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant — if not essential — to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial. United States v. Doyle presented a factual situation closely related to the circumstances of the case at bar. There the defendant was indicted on eleven counts of violation of the Securities Act. After a plea of guilty to a single count, the remaining counts were dismissed. The pre-sentence report which was submitted indicated that the defendant was guilty of the charges which had been dismissed. In upholding defendant's conviction the court wrote: The dismissal of the other counts at the Government's request was not an adjudication against it on the merits, even though, as a result of the statute of limitations, no further prosecution can occur for the offenses there charged. The aim of the sentencing court is to acquire a thorough acquaintance with the character and history of the man before it. Its synopsis should include the unfavorable, as well as the favorable, data, and few things could be so relevant as other criminal activity of the defendant, particularly activity closely related to the crime at hand. Counsel suggests that although a 'criminal record' may be considered, crimes not passed on by a court are beyond the pale, but we see nothing to warrant this distinction. Of necessity, much of the information garnered by the probation officer will be hearsay and will doubtless be discounted accordingly, but the very object of the process is scope and the defendant is always guarded by the statutory maximum. To argue that the presumption of innocence is affronted by considering unproved criminal activity is as implausible as taking the double jeopardy clause to bar reference to past convictions. In light of the foregoing, we affirm the superior court's denial of appellant's Criminal Rule 35(b) motion to vacate the judgment and commitment entered in this case. . Thompson v. State, 412 P.2d 628 (Alaska 1966). . Id. at 635. . Id. We also suggested to the trial court that at the hearing which was to be held pursuant to our remand the proceeding be expanded sufficiently to create a record upon which specific findings can be made upon as many of the following matters as may be applicable, in addition to any others that may be raised by appellant: (1) Did the court have jurisdiction; (2) Was the plea of guilty voluntarily made; (3) Was petitioner adequately represented by competent counsel at time of plea or at his trial; (4) If petitioner was not represented by counsel at time of plea, did he intelligently waive counsel after full explanation by the court as to his right to have counsel appointed and the importance of counsel to him; (5) Was there any suppression of evidence or knowing use of perjured testimony by the prosecuting attorney; (6) Were any confessions used whieli were not voluntarily made or illegally obtained; (7) Was petitioner mentally competent, able to understand the nature of the proceedings and to cooperate with counsel at all stages of the proceedings; and (8) Was the sentence within the statutory range. Id. at 637. .In this regard the trial court further found that: Prior to the trial, he [Mr. Libbey] felt that the petitioner ought to stand trial since it was unlikely in view of his record, he would be granted probation in the event of a plea of guilty, and the petitioner was so informed. As the evidence unfolded, Mr. Libbey frankly advised the petitioner of how the case stood against him. The petitioner testified against the advice of his attorney and made some incriminating statements. At this juncture, the attorney told his client that he felt the forgery count had been established and [the] jury might well find him guilty of the additional counts of burglary and larceny. The attorney advised him to enter a plea to the forgery count. . Crim.R. 11 provides in part that: The court may refuse to accept a plea of guilty, and shall not accept such plea without first determining that the plea is made voluntarily with understanding of the nature of the charge. See Oughton v. State, 420 P.2d 452 (Alaska 1966). . In his findings the trial judge stated in part: During the trial of the case, it was established by the defendant's own testimony that defendant admitted making the forged instrument on which Count I of the indictment was laid. It was also established by his own testimony that he accompanied Adele Majors to Caribou's Department Store for the purpose of cashing the forged instrument. . The record concerning the time appellant's plea of guilty was entered discloses the following: THE COURT: Mr. Libbey has indicated to me that you desire to withdraw a plea of not guilty to Count I and enter a plea of guilty at this time, is this correct? MR. THOMPSON: Yes, that's right. THE COURT: You realize that by so doing that I may impose any sentence authorized by law, regardless of any recommendations made here by the District Attorney, the Youth and Adult Authority as a — presentence investigation, your own attorney or yourself? MR. THOMPSON: Yes. After alluding to this portion of the prior record and after reviewing the testimony which had been produced on this issue at the remand hearing, the trial court then concluded in his findings that: The testimony, as I have evaluated it, and the circumstances lead me to the conclusion that Thompson was perfectly aware of how the matter stood and of his chances for probation at the time he entered his plea. . 8 Moore, Federal Practice § 11.06 [4] (2d ed. 1966), citing Shelton v. United States, 246 F.2d 571, 572 (5th Cir. 1957), rev'd on other grounds, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579 (1958); Cooper v. Holman, 356 F.2d 82, 85 (5th Cir.), cert. denied, 385 U.S. 855, 87 S.Ct. 103, 17 L.Ed.2d 83 (1966); Cortez v. United States, 337 F.2d 699, 701 (9th Cir. 1964), cert. denied, 381 U.S. 953, 85 S.Ct. 1811, 14 L.Ed.2d 726 (1965), where the court stated: We take judicial notice of the fact that the vast majority of those who are in-dieted for federal crimes plead guilty. We know, too, that in many of the cases where this occurs the plea will be to one count, or less than all counts, of a multicount indictment, or to a lesser offense than that originally charged. In a sense, it can be said that most guilty pleas are the result of a 'bargain' with the prosecutor. But this, standing alone, does not vitiate such pleas. A guilty defendant must always weigh the possibility of his conviction on all counts, and the possibility of his getting the maximum sentence, against the possibility that he can plead to fewer, or lesser, offenses, and perhaps receive a lighter sentence. The latter possibility exists if he pleads guilty, as Cortez did, to the whole charge against him. The important thing is not that there shall be no 'deal' or 'bargain', but that the plea shall be a genuine one, by a defendant who is guilty; one who understands his situation, his rights, and the consequences of the plea, and is neither deceived nor coerced. See Kent v. United States, 272 F.2d 795 (1st Cir. 1959). . This court retained jurisdiction of the original appeal under the terms of our mandate which remanded the case to the superior court for a full factual hearing pursuant to Criminal Rule 35(b). Upon completion of the hearing in the superior court, we determined that counsel should be appointed for appellant for the purpose of representing him in regard to further appellate proceedings before this court. . The questions which appellant's counsel now seeks to raise in this appeal are as follows: Is a guilty plea in Alaska acceptable when the state's evidence, even if believed, is insufficient to sustain a conviction of the crime charged? May an assistant District Attorney legally sign an indictment allegedly returned by the Grand Jury against a defendant at the time of the arraignment? Must court appointed trial counsel in a criminal case serve throughout the case until appropriately relieved by the trial court? Should the superior court hold a hearing when the accused moves for suppression of evidence at the time of the trial in order to ascertain whether said motion has merit? May a superior court judge admit into evidence an exhibit of the State's, when the state has at no time offered said exhibit? Is it proper for officers of the State Youth and Adult Authority in making presentenco reports to question defendants with regard to charges that were dismissed or of which they were acquitted ? . United States ex rel. Pizarro v. Fay, 353 F.2d 726 (2d Cir. 1965); United States ex rel. Glenn v. McMann, 349 F.2d 1018 (2d Cir. 1965), cert. denied, 383 U.S. 915, 86 S.Ct. 906, 15 L.Ed.2d 669 (1966); Davis v. United States, 347 F.2d 374 (9th Cir. 1965); United States v. Parker, 292 F.2d 2 (6th Cir. 1961); State of Louisiana ex rel. Davis v. Allgood, 256 F.Supp. 301, 303 (E.D.La.1966). . Appellant argues that the actions of the probation officer constituted error because (1) although the court may consider the defendant's prior criminal record, the Rule is specific; it refers to a criminal record. Dismissal of charges by a court for lack of evidence, or acquittal itself are not found in one's criminal record; (2) it completely ignores the jury's findings as the trier of the facts under appropriate instructions on the law from the trial judge, and allows a probation officer to become the 13th juror with vast powers; (3) it completely discourages the advocacy system used in Alaska, if it allows a probation officer to make recommendations upon assumptions he has made and answers that may have been given to him, because that is all he would take for an answer; (4) it goes far beyond the reason for the rule behind presentence investigations and reports in the first place, and encourages the impartial investigator to become an arm of the' prosecution, and (5) it deprives a defendant of due process of law and places him in a Star Chamber before a one man judge. . 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). . Id. at 247, 69 S.Ct. at 1083, 93 L.Ed. at 1342 (footnote omitted). . 348 F.2d 715, 721 (2d Cir.), cert. denied, 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84 (1965). .See Jones v. United States, 113 U.S. App.D.C. 233, 307 F.2d 190, 192 (1962), cert. denied, 372 U.S. 919, 83 S.Ct. 733, 9 L.Ed.2d 724 (1963).

10365354

Harold A. BORREGO, Appellant, v. STATE of Alaska, DEPARTMENT OF PUBLIC SAFETY, Appellee

Borrego v. State, Department of Public Safety

1991-07-26

Nos. S-3837, S-3962

360

366

815 P.2d 360

815

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Harold A. BORREGO, Appellant, v. STATE of Alaska, DEPARTMENT OF PUBLIC SAFETY, Appellee.

Harold A. BORREGO, Appellant, v. STATE of Alaska, DEPARTMENT OF PUBLIC SAFETY, Appellee. Nos. S-3837, S-3962. Supreme Court of Alaska. July 26, 1991. Phillip P. Weidner, Keenan Powell, Weid-ner & Associates, Anchorage, for appellant. James Forbes, Asst. Atty. Gen., Anchorage, Charles E. Cole, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

3101

19020

PER CURIAM. I. INTRODUCTION Harold Borrego seeks to have the revocation of his driver's license reversed. Borre-go's license was revoked for one year upon an administrative determination that he had been driving while intoxicated (DWI). At about the same time, however, a jury acquitted him on a parallel criminal DWI charge. Following administrative and judicial review, the administrative revocation was affirmed. Borrego then appealed to this court. We affirm. II. FACTS AND PROCEEDINGS A. The Arrest On August 7, 1988, Harold Borrego was arrested in Bethel for driving while intoxicated. The arrest, made inside the Brass Buckle Roadhouse, was based on information given to the police by a Bethel resident, Leonard Patton, and on their own observations of Borrego. Patton initially told the police that he had seen Borrego's truck drive up to the Brass Buckle, Borrego get out, and make his way into the building as if he were drunk. A report later completed by Patton indicated that he did not actually see Borrego leave his vehicle. Based on Patton's initial report to the police, Officers Abrant and Miller went to the Brass Buckle. When they went inside, they saw evidence that Borre-go was drunk: he tried to walk up a couple of steps and nearly fell, he walked unsteadily, and he struggled to stay on a bar stool. When they approached him, they found that his speech was slurred, he had alcohol on his breath, and he had bloodshot eyes. One of the officers asked him if he had driven to the disco. Borrego said that he had. Borrego also stated that he had not had anything alcoholic to drink since arriving at the Brass Buckle. When Borrego refused to take a field sobriety test, the officers arrested him for driving while intoxicated. B. The Administrative Proceedings After the arrest, Borrego's license was immediately revoked by the Department of Public Safety. Borrego appealed the revocation on August 8, as permitted by AS 28.15.166. It took three hearings before the revocation was finally affirmed in the administrative review process. The initial hearing was held before a hearing officer on September 21. At that hearing, Mr. Angstman, Borrego's attorney, requested a continuance on the issue of whether the officers had reasonable grounds to believe that Borrego had been operating a vehicle while intoxicated. His reason was that Borrego had filed a motion to suppress all evidence in the criminal DWI case, based on the argument that the officers did not have reasonable grounds to believe that Borrego had driven while intoxicated. The hearing officer granted the continuance. At the second hearing, held on October 27, Angstman reported to the hearing officer that Borrego's motion to suppress had been denied and that Borrego had been acquitted by the jury. Evidence was then taken on the issues of the reasonableness of arrest and whether or not Borrego had been driving while under the influence. When the hearing officer proposed to read into the record the sworn report of Officer Brunger, which contained the unsworn reports of the arresting officers, Angstman objected. His grounds were basically: 1) only Officer Brunger's report was sworn, 2) Brunger did not have firsthand information of the arrest, and 3) neither of the arresting officers was available at the hearing to testify. After hearing testimony from Brunger, the hearing officer agreed and decided to continue the hearing based on AS 28.15.166(h) to allow the arresting officers to testify personally. Angstman did not object to this ruling. At the last hearing, held on November 3, both arresting officers testified telephoni-cally. They described the initial report from Patton, their investigation, and finally their arrest of Borrego. After a final statement by Angstman, the hearing officer affirmed the revocation of Borrego's driver's license. C. The Appellate Proceedings Below Borrego filed two separate appeals at the same time: one in district court pursuant to AS 28.05.141(d) and one in superior court pursuant to AS 28.15.166(m). The district court appeal was dismissed on the state's argument that appeal from a license revocation hearing is to the superior court pursuant to AS 28.15.166(m), not to the district court pursuant to AS 28.05.-141(d). That decision was appealed to the superior court which affirmed. In the appeal to the superior court from the revocation hearing, the hearing officer's decision was affirmed. Borrego appeals both decisions of the superior court in one consolidated appeal. III. STANDARD OF REVIEW For the questions of law which arise in this appeal, this court applies its own independent judgment. On issues of fact, an administrative agency's determination is reviewed under the substantial evidence test. See Storrs v. State Medical Bd., 664 P.2d 547, 555 (Alaska), cert. denied, 464 U.S. 937, 104 S.Ct. 346, 78 L.Ed.2d 312 (1983). This is especially true where the findings of fact were made in a quasi-judicial proceeding. See State, Alcoholic Beverage Control Bd. v. Decker, 700 P.2d 483, 486 (Alaska 1985). Under this test, the reviewing court determines whether the findings are supported by such evidence as a reasonable mind might accept as adequate to support a conclusion. Galt v. Stanton, 591 P.2d 960, 963 (Alaska 1979). IV. DISCUSSION Borrego claims a number of errors were committed below, both in the administrative hearing and in the subsequent judicial appeals. We find that none of the claims of error has merit. His attorney insisted at oral argument that it was important for us to view these issues as intertwined. But even viewing the events in this case as a whole, we detect no legal error nor any clear injustice. A. Did Borrego Have a Right of Appeal to the District Court Pursuant to AS 28.05.141(d)? Describing this at oral argument as the central issue of the case, Borrego claims that a person whose license has been revoked for DWI "has the co-existing rights to file an appeal . in both District and Superior Courts" pursuant to AS 28.-05.141(d) and AS 28.15.166(m) respectively. The state claims that Graham v. State, 633 P.2d 211 (Alaska 1981), and basic principles of statutory construction lead to the conclusion that appeal to the district court pursuant to AS 28.05.141(d) is unavailable in DWI revocations. We agree with the state that Graham governs this issue. Graham involved a motorist arrested for drunk driving. She refused to take a breathalyzer test, and her license was revoked pursuant to former AS 28.35.032(b). Her appeal to the district court for a stay of the revocation was denied. Graham, 633 P.2d at 212-13. On-appeal, we rejected her argument that she was entitled to a stay under the provisions of former AS 28.05.076. Id. at 215-16. We noted that this last provision had been repealed and reenacted as AS 28.05.141— the very provision upon which Borrego now relies as a basis for appealing to the district court. Id. at 215 n. 8. We concluded that AS 28.05.076 was inapplicable to a license revocation based on a refusal to perform a breathalyzer test. Id. at 215-16. It follows that the current version of AS 28.05.076, ie., AS 28.05.141, is likewise inapplicable to license revocations for refusal to submit to a breathalyzer test. We also find persuasive the state's statutory construction arguments. Not only do the locations of the various appeal provisions suggest that AS 28.15.166(m) governs in cases of DWI revocations, but so does the language of AS 28.15.166(m). By its own terms, § 166(m) applies "[notwithstanding AS 28.05.141(d)." Borrego interprets this to provide an additional avenue of appeal. This makes little sense. Since AS 28.05.141(d) provides for an automatic stay of the revocation, all aggrieved parties would choose that path, and thus AS 28.15.-166(m) would be superfluous. Moreover, allowing appeals under both provisions would result in duplicative appeals and needless waste of judicial resources. B. Did the Disposition of the Criminal DWI Charge Collaterally Estop the State from Finding that the Arresting Officers Had Reasonable Grounds to Believe that Borrego Had Been Driving While Intoxicated? Borrego argues that the jury's finding of not guilty on the DWI charge barred the hearing officer from finding that the initial stop of Borrego was lawful. Citing Avery v. State, 616 P.2d 872, 873-74 (Alaska 1980), the state maintains that "[sjince the standard of proof in a criminal action is entirely different from that in a civil licensing action . an acquittal on criminal charges is not binding on parallel proceedings that are civil in nature." We agree that Avery controls the issue of collateral estoppel in this case. Avery was a parolee who was acquitted on a criminal charge of being a felon in possession of a firearm. However, the parole board revoked his parole on that very ground. When Avery challenged his parole revocation on appeal, we held that "[cjollateral estoppel does not apply because adjudication of charges on the beyond a reasonable doubt standard does not constitute an adjudication on the preponderance of the evidence standard." Id. at 874. Avery makes it clear that the administrative revocation of Borrego's driver's license is not barred by his acquittal on DWI charges. C. Was Borrego Denied Due Process in the Administrative Hearing? Borrego's main claim here is, in essence, that the hearing officer who affirmed the license revocation was biased because he "prosecuted" the case against Borrego. According to Borrego, the hearing officer had "rested his case" on the sworn report of Officer Brunger and then "reopened" it in order to get the testimony of the arresting officers. He also claims that the hearing officer "openly engaged defense counsel in argument on behalf of the state throughout the proceedings." According to the state, the hearing officer was merely trying to get all the evidence, a job which requires a more active role since the state is not represented in revocation hearings. The fact that the hearing officer asked various questions throughout the proceedings does not indicate bias. Thorne v. State, Dep't of Pub. Safety, 774 P.2d 1326, 1333 (Alaska 1989). And while the hearing transcript reveals some disagreements between the hearing officer and defense counsel, this certainly does not mean there was bias, particularly in light of the fact that Borrego's concerns were often heeded. A fair reading of the hearing transcript suggests that the hearing officer was simply concerned with getting at the facts. We perceive no bias. Borrego also claims that the hearing officer based his conclusion on inadmissible evidence, thus violating Borrego's due process rights. This argument is meritless as the hearing officer ultimately based his decision on direct testimony from the arresting officers and a written report by Patton, an eyewitness. Neither the direct testimony nor the written report were inadmissible. Borrego further complains about the hearing officer's continuance of the hearing to allow the direct testimony of the arresting officers. However, Borrego did not object to this procedure. Moreover, the continuance was in response to an objection by Borrego. Thus, it was not a "reopening" of the case, as Borrego claims, since the case was never closed. Finally, such a continuance is expressly allowed under AS 28.15.166(h). D. Was There Substantial Evidence that the Officers Had Reasonable Grounds to Believe that Borrego Drove While Intoxicated? Borrego claims that the evidence presented at the revocation hearing failed to establish that the officers had reasonable grounds to believe that Borrego had driven his vehicle while intoxicated. Specifically, Borrego seems to argue that there was insufficient evidence that he drove his pickup truck. The state maintains that the substantial evidence test is easily met in this case. Borrego contends on various grounds that his statement to the officers in the Brass Buckle that he had driven there does not support the hearing officer's conclusion. But even aside from Borrego's statement, there was enough evidence to reasonably believe that Borrego had driven his vehicle there. This evidence is found in Patton's written statement. First, Patton's statement reveals that he saw Borrego's pickup pull up behind Patton's vehicle. Thus, it is clear that somebody drove the pickup just before Patton observed Borre-go stumble his way into the Brass Buckle. Second, Patton positively identified Borre-go, who was approaching from near the pickup. Third, Patton looked at the pickup and saw no one else in or near it. It was therefore reasonable to conclude that Bor-rego drove the pickup to the Brass Buckle. Since Borrego does not contest that he was drunk at the time, Patton's report alone gave the officers reasonable grounds to believe that Borrego had been driving while intoxicated. There is certainly substantial evidence supporting the hearing officer's decision. E. Borrego's Other Constitutional Claims Finally, Borrego attacks the appeal procedure set forth in AS 28.15.166(m) as a violation of equal protection and as overly broad and vague. As these issues were not properly raised below, we decline to address them now. V. CONCLUSION Both decisions of the superior court are AFFIRMED. . Patton's statement reads: I, Leonard Patton, while parked in front of the Brass Buckle disco the 7th day of August, 1988, approximately 12:54 [a.m.], I saw a vehicle pull up behind me through my passenger's side mirror, then the lights went out. Then I turned around to my left to see who it was, and Hal Borrego was walking around my truck in a very staggering way. It was very obvious that he had been drinking. When I turned back to see who the person was, I didn't see anyone else in or near his little pickup, or anywhere else near the back of my pickup. From what I saw, he was alone. I knew it was him, but to be sure it was him, I called out, "[H]ey, Hal, what's up". He turned to me and said, "Well, I'm going in." He then started staggering his way into the disco. I then backed out, then headed towards the police station to report what I had just witnessed. . Later, Borrego apparently told another officer, Brunger, that he had not been driving. . The hearing officer, who had not presided over the first hearing, did not deal with what effect the jury verdict or the court's ruling on the motion to suppress had on the issue at the revocation hearing. . Brunger testified that Patton had told him about what Patton had observed outside the Brass Buckle. Angstman objected to this as hearsay. The hearing officer dismissed the objection, saying "[t]hat would not be hearsay, he's recalling his recollection of what he was told by Mr. Patton." . This section provides: The determination of the hearing officer may be based upon the sworn report of a law enforcement officer. The law enforcement officer need not be present at the hearing unless either the person requesting the hearing or the hearing officer requests in writing before the hearing that the officer be present. If in the course of the hearing it becomes apparent that the testimony of the law en forcement officer is necessary to enable the hearing officer to resolve disputed issues of fact, the hearing may be continued to allow the attendance of the law enforcement officer. . This section provides: A person aggrieved by the decision of the hearing officer may . initiate a proceeding in district court to rescind the department's action.... The court shall conduct a hearing de novo. The decision of the department . revoking . a license . is stayed and does not take effect until the pendency of an appeal. . This section provides: Notwithstanding AS 28.05.141(d) . a person aggrieved by the determination [of the department of Public Safety] may file an appeal in superior court for judicial review of the hearing officer's determination. The judicial review shall be on the record, without taking additional testimony. The court may reverse the department's determination if the court finds that the department misinterpreted the law, acted in an arbitrary and capricious manner, or made a determination unsupported by the evidence in the record. . Currently, AS 28.15.165 governs license revocations for refusal to submit to a chemical sobriety test. In 1983, AS 28.15.165 essentially replaced AS 28.35.032(b), the provision under which Graham's license was revoked. Ch. 77, § 3, 25 SLA 1983. . We also note that, aside from the differing burdens of proof at the criminal trial and the administrative hearing, there was another difference in the issues decided at these proceedings. The issue before the jury was whether Borrego actually operated his vehicle while under the influence. AS 28.35.030(a). Yet, as Borrego himself states, the issue before the hearing officer was "whether the officer[s] had reasonable grounds to believe [Borrego] was driving while intoxicated." See AS 28.15.166(g). Thus, the first requirement for collateral estop-pel, that the issue decided in the prior adjudication was "precisely the same," has not been met. See Briggs v. State, Dep't of Pub. Safety, 732 P.2d 1078, 1081 (Alaska 1987). . For example, the first hearing officer granted Borrego's request for a continuance, and the second hearing officer agreed that he could not rely on Officer Brunger's sworn report which discussed things about which Officer Brunger had no personal knowledge. . See supra note 5. Borrego claims that the reasonableness of the initial stop is not an issue of fact. Yet clearly the reasonableness of the initial stop depends on the facts of the case (to which only the arresting officers could testify). Thus, it was appropriate for the hearing officer to continue the hearing to allow them to testify. .The fact that Patton's final, written report differed from his initial report does not change our conclusion. On the contrary, Patton probably first reported that he had seen Borrego drive up to the Brass Buckle because it was such a logical inference from what he had observed. . In Borrego's Statement of Points on Appeal to the superior court, he did allege violations of equal protection. However, he did not raise the same equal protection claim below that he urges on appeal now. As for his claim that AS 28.15.-166(m) is overly broad and vague, these theories were not advanced in either of his appeals to the superior court. None of these arguments, therefore, was ever properly before the superior court, see Appellate Rule 602(b)(l)[a], and thus they cannot be raised on appeal to this court for the first time.

10327883

A. FRED MILLER, ATTORNEYS AT LAW, P.C., Appellant, v. Mary Jane PURVIS, Appellee

Miller v. Purvis

1996-07-26

No. S-6679

610

620

921 P.2d 610

921

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

Before RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

A. FRED MILLER, ATTORNEYS AT LAW, P.C., Appellant, v. Mary Jane PURVIS, Appellee.

A. FRED MILLER, ATTORNEYS AT LAW, P.C., Appellant, v. Mary Jane PURVIS, Appellee. No. S-6679. Supreme Court of Alaska. July 26, 1996. Kevin Morley, A. Fred Miller, P.C., Ket-chikan, for Appellant. Ronald P. Hémby, Law Office of Ronald P. Hemby, Ketchikan, for Appellee. Before RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

5678

35800

OPINION MATTHEWS, Justice. A. Fred Miller, a professional corporation (Miller), represented Mary Jane Purvis in a divorce case and charged her $34,914.50 in fees, $1,017.61 for expenses, $4,596.97 in interest, and $1,624.97 in sales tax. Purvis invoked the mandatory fee arbitration provisions of Alaska Bar Rules 34-42. Prior to the hearing, Purvis had paid Miller $17,-017.01 and Miller had reduced its fee by $6,200; Miller claimed that Purvis still owed $24,924.64. The arbitration panel concluded that "a reasonable fee payment would have been $8,500 and that [Miller] should be required to repay [Purvis] the amount of $8,500." Miller filed a petition in the superior court to vacate the panel's award. After briefing by the parties and the Alaska Bar Association, the superior court denied Miller's petition, and entered judgment on the award which, with interest, costs and attorney's fees, totaled $9,887.00. Miller appeals from this judgment, contending that the limits which Alaska Bar Rule 40(u) imposes on appeals from fee arbitration panels constitute a denial of due process. We affirm for the reasons stated below. Mandatory attorney fee arbitration has been a feature of the Alaska legal landscape since 1974. Supreme Court Order # 176 (February 26, 1974). The rules were proposed by a committee of the Alaska Bar Association and approved by the members of the bar acting in convention and through the Board of Governors with a request that this court adopt them. Under the fee arbitra tion rules, a client having a fee dispute with an attorney has a right to have the dispute resolved by arbitration. Alaska Bar Rule 34(b). An attorney does not have a reciprocal right. The arbitrators are standing members of "area fee dispute resolution divisions." Alaska Bar Rule 37(a). If the dispute is in excess of $2,000 it mil be decided by an arbitration panel consisting of not less than two attorney members and one public member of the area division. Alaska Bar Rule 37(c). The members are subject to peremptory challenge, Rule 37(h), challenges for cause, Rule 37(g), and must be disinterested, Rule 37(f). The parties are entitled to be represented by counsel though they need not be so represented. Rule 40(f)(1). They have a right to present and examine witnesses and documentary evidence and to cross-examine opposing witnesses. Rule 40(f)(2), (3). Compulsory process to compel the attendance of witnesses and prehearing discovery is available. Rule 40(f)(8), (9). The parties may have the hearing recorded on tape. Rule 40(f)(ll). Telephonic evidence may be presented, as may evidence in affidavit form. Rule 40(j), (k). The arbitration hearing need not be conducted according to technical rules of evidence; any relevant evidence will be admitted. Rule 40(n). The proceedings are confidential. Rule 40(r). The arbitration panel is to make its award in writing and the award is to be accompanied by findings on essential questions. Rule 40(q). Rule 40(u) provides that either party may appeal the decision of an arbitration panel to the superior court on the grounds specified in Alaska's Uniform Arbitration Act, AS 09.43.120-.180. Under this act a reviewing court has limited authority to vacate an award. Grounds for vacating an award are, so far as relevant to fee dispute arbitration, (1) the award was procured by fraud or other undue means; (2) there was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of a party; (3) the arbitrators exceeded their powers; [or] (4) the arbitrators refused to postpone the hearing upon sufficient cause being shown for postponement or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of AS 09.43.050, as to prejudice substantially the rights of a party[.] AS 09.43.120(a)(l)-(4). In addition, the reviewing court is authorized to modify or correct an arbitration panel's award on the following grounds: (1) there was an evident miscalculation of figures or an evident mistake in the description of a person, thing or property referred to in the award; (2) the arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or (3) the award is imperfect in a matter of form not affecting the merits of the controversy. AS 09.43.130(a)(l)-(3). Summarized, Miller's argument is as follows. Fee arbitrations are mandatory for attorneys. Mandatory arbitration is constitutional only when there is judicial review on the merits, that is, awards should be renewable for clearly erroneous findings of fact and arbitrary and capricious application of the law. Since fee arbitration is not reviewable on the merits it is unconstitutional. In response, Purvis does not take issue with Miller's premise that mandatory arbitration generally should be accompanied by a right to appellate review on the merits. Instead, Purvis contends that the court's power and duty to regulate the legal profession and the attomey/client relationship justifies an attenuated standard of review. In support of the general proposition that mandatory arbitration is unconstitutional in the absence of judicial review for factual and legal errors, Miller relies primarily on Bayscene Resident Negotiators v. Bayscene Mobilehome Park, 15 Cal.App.4th 119, 18 Cal.Rptr.2d 626 (1998). In that case the California Court of Appeal struck down on due process grounds a city ordinance which required binding arbitration for mobilehome park rent disputes. The court stressed that the primary failing of the ordinance was that it failed to provide for judicial review of the evidence; instead, the issues on appeal were "essentially limited to fraud, corruption, or other misconduct of a party or the arbitrator." Id. 18 Cal.Rptr.2d at 636. The court reviewed the law applicable to mandatory arbitration as follows: The California cases are consistent with federal law and law from other states. The United States Supreme Court, in a trilogy of cases in the 1920's, addressed the validity of a Kansas industrial relations act requiring compulsory arbitration of certain industrial disputes. (Chas. Wolff Packing Co. v. Court of Industrial Relations (1928) 262 U.S. 522, 43 S.Ct. 630, 67 L.Ed. 1103 (Wolff I), Dorchy v. State of Kansas (1924) 264 U.S. 286, 44 S.Ct. 323, 68 L.Ed. 686; Chas. Wolff Packing Co. v. Court of Industrial Relations (1925) 267 U.S. 552, 45 S.Ct. 441, 69 L.Ed. 785 (Wolff II).) The Court found the act's scheme of compulsory arbitration deprived business owners of their property and liberty of contract without due process of law in violation of the Fourteenth Amendment. (Wolff I, 262 U.S. at p. 544, 43 S.Ct. at p. 636 [as the act applied to fixing wages]; Wolff II, 267 U.S. at pp. 560, 569, 45 S.Ct. at pp. 442, 445 [as the act applied to fixing hours of labor].) In Nebbia v. People of State of New York (1934) 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940, the court later held price control regulations were unconstitutional "only if arbitrary, discriminatory, or demonstratively irrelevant." (Id. at p. 539, 54 S.Ct. at p. 517). The court has upheld compulsory binding arbitration schemes against due process challenge where the legislative choice is not unreasonable or arbitrary and the procedure adopted satisfies constitutional requirements of notice and an opportunity to be heard. (Hardware Dealers' Mut. Fire Ins. Co. v. Glidden Co. (1931) 284 U.S. 151, 158 52 S.Ct. 69, 70, 76 L.Ed. 214 [fire insurance policies required to provide for compulsory binding arbitration of the amount of loss].) Compulsory, binding arbitration still remains limited in large measure to situations in which the parties have agreed to arbitration as an alternative form of dispute resolution; however a growing number of statutory schemes whereby either one or both parties are compelled to submit to binding arbitration do exist. Statutory schemes requiring binding arbitration are normally found valid in limited contexts including resolving disputes in contracts with government agencies (see, e.g., Hjelle v. Sornsin Construction Company (N.D.1969) 173 N.W.2d 431), resolving labor disputes with public employees such as police and fire fighters (see, e.g., Buffalo v. New York State Public Employment Relations Board (1975) 80 Misc.2d 741, 363 N.Y.S.2d 896, affd. (N.Y.Ct.App.1975) 37 N.Y.2d 19, 371 N.Y.S.2d 404, 407, 332 N.E.2d 290, 293) and where the rights to be arbitrated have been created by federal statute (see, e.g., Thomas v. Union Carbide Agr. Products Co. (1985) 473 U.S. 568 593-594, 105 S.Ct. 3325, 3339-40, 87 L.Ed.2d 409, see generally Allison, The Context, Properties, and Constitutionality of Non-consensual Arbitration: A Study of Four Systems, J. of Dispute Resolution (Vol. 1990) No. 1,1.) Statutory schemes requiring binding arbitration have also been found valid when applied to highly regulated industries such as insurance or licensed professionals such as attorneys. (See, e.g., Hardware Dealers' Mut. Fire Ins. Co. v. Glidden Co., supra, 284 U.S. 151, 52 S.Ct. 69 [76 L.Ed. 214 (1931)] [binding arbitration clause to determine amount of loss required in every fire insurance policy]; Guralnick v. Supreme Court of New Jersey (D.C.N.J.1990) 747 F.Supp. 1109, affd. (3d Cir.1992) 961 F.2d 209 [compulsory binding arbitration of attorney/ client fee disputes].) While states have broad power to regulate housing conditions and landlord-tenant relations (see Loretto v. Teleprompter Manhattan CATV Corp. (1982) 458 U.S. 419, 440, 102 S.Ct. 3164, 3178, 73 L.Ed.2d 868; Birkenfeld, v. City of Berkeley (1976) 17 Cal.3d 129, 130 Cal.Rptr. 465, 550 P.2d 1001), our research has not found rent disputes typically to be an area subject to compulsory binding arbitration. Even in areas where statutory schemes requiring compulsory arbitration have been upheld, constitutionality often depends upon whether meaningful judicial review of the arbitrator's decision is provided. (See Peick v. Pension Ben. Guar. Corp. (7th Cir.1983) 724 F.2d 1247, 1277 [compulsory arbitration constitutional where it is "merely the first step" in dispute resolution with subsequent court review]; Mount St. Mary's Hospital v. Catherwood (N.Y.Ct.App.1970) 26 N.Y.2d 493, 311 N.Y.S.2d 863, 260 N.E.2d 508 [for compulsory arbitration due process requires judicial review of whether the award was supported by the evidence in record].) Id. 18 Cal.Rptr.2d at 634-35 (alterations in original). In addition Miller relies on a dictum in State v. Public Safety Employees Ass'n, 798 P.2d 1281, 1287 (Alaska 1990), where we indicated in the context of compulsory "interest" arbitration that a heightened standard of judicial review might be constitutionally required: When parties agree to submit their differences to an arbitrator, they should be bound by his decision. Courts should be reluctant to upset arbitrators' awards, lest the advantages of arbitration as a fast and certain means of resolving disputes be lost. Occasional uncorrected errors in arbitrators' decisions are tolerable because the parties have agreed to accept reduced possibilities of appellate review in order to have their dispute resolved quickly and with certainty. Compulsory arbitration is different. The parties have not agreed voluntarily to accept reduced possibilities of appellate review in order to resolve their dispute swiftly. It is by operation of law that the parties are denied their usual right to have their disputes resolved by the courts. Therefore, a standard of review higher than gross error is appropriate. Many states provide such a heightened standard of review by statute; Alaska does not. Other states have adopted a heightened standard of review as a matter of constitutional or common law. The New York Court of Appeals has held that due process requires that awards in private sector compulsory arbitration "be judicially reviewable for errors of law, competency and substantiality of evidence, as well as arbitrary and capricious conduct." Mount St. Mary's Hosp. v. Catherwood, 26 N.Y.2d 493, 311 N.Y.S.2d 863, 870, 260 N.E.2d 508, 513 (1970). It thus held that contractual provisions imposed in compulsory interest arbitration should be reviewed under the arbitrary and capricious standard and awards in compulsory grievance arbitration should be reviewed under the substantial evidence standard. Id. Noting that compulsory interest arbitration is a quasi-legislative function, the Rhode Island Supreme Court has also held that courts should review compulsory interest arbitration awards to determine whether an arbitrator's decision was arbitrary. City of Warwick v. Warwick Regular Firemen's Assoc., 106 R.I. 109, 256 A.2d 206, 211 (1969). We believe it appropriate to apply the arbitrary and capricious standard when reviewing awards in compulsory interest ar-bitrations. Without deciding whether such a standard is constitutionally required, a question the parties have not briefed, we will henceforth apply it as a matter of common law. Id. at 1287-88. In support of her contention that the court's power and duty to regulate the legal profession and the attorney/elient relationship justify limited judicial review, Purvis relies primarily on cases from New Jersey and Maine, states which have mandatory at- tomey's fee arbitration systems similar to Alaska. The leading New Jersey case is In re LiVolsi, 85 N.J. 576, 428 A.2d 1268 (1981). The New Jersey fee arbitration system challenged in LiVolsi provided for no right to appeal the decisions of arbitration committees. An aggrieved lawyer, joined by the New Jersey state bar association as amicus, unsuccessfully raised a variety of constitutional challenges to the fee arbitration system, including violation of federal and state due process because of the unappealability of arbitration committee determinations. Id. 428 A.2d at 1270. Although the court addressed each claim separately, it began with a statement of its authority to promulgate the rule which was applicable to all claims: There is something almost anachronistic about the challenge to the Court's power to adopt R.1:20A under the New Jersey Constitution. For 38 years this Court has exercised plenary, exclusive, and almost unchallenged power over the practice of law in all of its aspects under N.J. Const. (1947), Art. VI, § II, par. 3. The enormous scope of this power puts R.1:20A in proper perspective. Though critically important, it is but a minor regulation of the practice of law compared to others whose validity is beyond dispute. The heart of the constitutional provisions concerning the judicial system was the concentration of responsibility for its proper functioning in the Supreme Court and Chief Justice. Such responsibility requires appropriate power over courts, judges, practice and procedure, and lawyers. Responsibility for an adversarial judicial system requires responsibility for the adversaries, and control over both. In exercising this responsibility, one of the many goals this Court has sought to achieve has been maintaining public confidence in the judicial system. The intended direct beneficiary of that system is the litigant, the client, who can realistically gain access to it only through his relationship with a lawyer. The value of the judicial product depends upon the effectiveness of this access, the effectiveness of this relationship. If lawyers refuse to represent, the judicial system is almost worthless; if the terms and conditions of representation are unfair, the judicial system is impaired to that extent. This dependency of the public's confidence in the judicial system on its satisfaction with lawyer-client relationships is not theoretical: those dissatisfied with the system include a fair proportion dissatisfied with their lawyers. The most common cause of that dissatisfaction concerns fees, see section IIIA, infra. Given the critical importance of the constitutional power of this Court over the practice of law, and its pervasiveness, starting with admission, ending with disbarment, and covering everything in between, we have no doubt that the power extends to every aspect of fee agreements between lawyers and clients. If this Court can set a limit on fees for certain matters, American Trial Lawyers v. New Jersey Supreme Court, 66 N.J. 258, 330 A.2d 350 (1974) (upholding the contingent fee schedule promulgated in R.1:21-7); require service for no fee at all in others, State v. Rush, supra, 46 N.J. at 411-12, 217 A.2d 441 (noting this Court's authority to require attorneys to defend indigents without charge); and disregard completely fee agreements in all matters (if they are unreasonable), Steiner v. Stein, 2 N.J. 367, 372, 66 A.2d 719 (1949) (see section IIC, infra); if, in short, this Court has the authority to control the substance of the fee relationship, then a power of a lesser magnitude — determining the procedure for resolving fee disputes — must also be within our province. LiVolsi 428 A.2d at 1272-73. The court went on to note that under the due process clause of the Fourteenth Amendment to the United States Constitution states are not required to provide litigants with a right to appeal. Id. at 1276. Concerning the state due process argument, the court adverted to an interest arbitration case, Division 510 v. Mercer County Improvement Authority, 76 N.J. 245, 386 A.2d 1290 (1978), where the court had stated, "Because it is compulsory, principles of fairness, perhaps even due process, require that judicial review be available to ensure that the award is not arbitrary or capricious and that the arbitrator has not abused the power and authority delegated to him." LiVolsi, 428 A.2d at 1279. The court held that this statement was not applicable to attorney fee arbitration: The holding of Division 54-0 is inapplicable to arbitrations conducted pursuant to our constitutional authority to regulate the Bar. The same rationale — that attorneys are subject to extensive regulation by this court — which justifies compulsory arbitration of their fee disputes also justifies eliminating appeals from such arbitration despite the general "principles of fairness" enunciated in Division 540. Id. The LiVolsi court went on to state the general policy justification for mandatory attorney fee arbitration: We concur fully with the findings of a 1974 Report by the American Bar Association that forcing clients to go to court to resolve attorney fee disputes places a heavy burden on the clients. ABA, Report of the Special Committee on Resolution of Fee Disputes 2-4 (1974) ("Report"). Clients, especially those of limited income, often find it very difficult to procure another attorney to represent them in fee disputes. Also, if a client were forced to give the attorney a retainer that eventually proved to have been unreasonably high, the client might not be able to afford the delay of another trial before being reimbursed. As the ABA Report concluded, imposing these burdens on clients causes "immeasurable" harm to the relationship between the Bar and the public. Id. 428 A.2d at 1279-80. Finally, the court specifically addressed the policy behind denying appeals on the merits: The wisdom of denying appeals on the merits from Committee decisions necessarily must depend on one's view of the importance of public confidence- in the lawyer-client relationship. If it is true — and we believe it is — that public confidence in the judicial system is as important as the excellence of the system itself, and if it is also true — as we believe it is — that a substantial factor that erodes public confidence is fee disputes, then any equitable method of resolving those in a way that is clearly fair to the client should be adopted. The client's position in fee disputes is one of vulnerability from the beginning to the end: the lawyer has superior knowledge, usually superior bargaining power in arriving at the initial fee agreement, and, in any event, the ability to refuse the representation if not satisfied with its terms. If and when a dispute develops, a system that requires a client to hire another lawyer for trial and perhaps appeal on the fee dispute increases the client's initial vulnerability by significantly weakening his negotiating power to resolve the fee dispute. The client perceives, correctly, that the lawyer is part of the system, and when added to his dissatisfaction with his experience with that lawyer, the system offers him a remedy that, to him, promises not to solve his problem but only to compound it, dissatisfaction turns into despair and resentment. The least we owe to the public is a swift, fair and inexpensive method of resolving fee disputes. This may not end the dissatisfaction of some with the Bar and with the judicial system, but, at the very least, it will minimize the extent of such dissatisfaction. Further, it is important to assure the public that this Court, which has the ultimate power over the practice of law, will take an active role in making certain that clients are treated fairly in attorney-client disputes. Besides helping to sustain public confidence in the Bar, the finality of Committee determinations also protects clients who can ill afford the time and expense of defending a Committee judgment on appeal. As we noted in section IIIA, supra, one of our primary concerns in promulgating R.1:20A was that clients should not be forced to incur such expenses in fee disputes. Finally, we find unpersuasive the position of petitioner and the Association that the unappealability of Committee determinations is unfair to lawyers. If that is unfair, it is at least equally unfair, for the client similarly has no appellate right. Further, when it is noted that Committee arbitration panels must consist of a majority of lawyers, it is difficult to see how such a system can be unfair to lawyers. Upon analysis, the claim that lawyers are treated as "second class citizens" is really not being seriously pursued, but rather the underlying claim is that lack of an appellate review renders the system less certain, in the aggregate, to yield just results. With that proposition taken in the abstract we have no argument, for appellate review is almost as essential a part of our notion of justice as is the trial itself. But just as in conventional arbitration proceedings, so here, appellate review may sometimes give way either in part or in whole to other social goals. It is our judgment that the advantages of swift, inexpensive proceedings outweigh by far any greater likelihood of just results achieved by allowing appellate proceedings. The loss of public confidence in the judicial system is too high a price to pay for some indeterminate improvement in the quality of fee arbitration determinations. We reaffirm, therefore, that appeals on the merits from Committee decisions will not be allowed. Id. at 1281-82. The Maine case relied on by Purvis is Anderson v. Elliott, 555 A.2d 1042(Me.), cert. denied, 493 U.S. 978, 110 S.Ct. 504, 107 L.Ed.2d 507 (1989). The challenge in Anderson was that the fee arbitration system was unconstitutional under the Maine constitution as a "compulsory arbitration law that does not provide a right to review the arbitrator's award through a jury trial de novo." Id. at 1044. The Supreme Judicial Court of Maine upheld the rule based on the court's power to regulate the bar; it expressed the need for the rule as follows: [A]n attorney-client fee dispute is no ordinary contractual controversy. Members of the public as a practical matter have access to the courts only through their attorneys, and that access is impaired by collateral controversies over legal charges. Furthermore, in the view of many observers, attorney fee disputes are the principal source of public dissatisfaction with the judicial system.... Practicing lawyers have few more difficult tasks than billing their clients, and at the same time clients often misunderstand the basis of their attorneys' bills. In these circumstances it is advantageous to both lawyers and clients to have available a simple, speedy, and rehable system for resolving fee questions. In particular, the system must be one that can be used effectively by clients whose experience with the legal system is likely to be limited and bewildering, and who in disputes with their own attorneys go into court on an unequal footing. In light of that need, the Supreme Judicial Court's requirement that an attorney be prepared to submit to a less formal nonjury adjudication of fee disputes is an entirely reasonable exercise of the judicial power to superintend the bar. Rule 9 is a narrowly tailored response to a problem that arises not infrequently in the attorney-client relationship. Rule 9 replaces, at the client's request, any trial in court with a method of dispute resolution that accords full due process to the attorney, including the judicial safeguards of the Uniform Arbitration Act. Furthermore, the entire fee arbitration system operates under the direction of a creature of the court, the Board of Overseers of the Bar. The lawyer appealing in the case at bar makes no argument, and could make no argument, that fee arbitration is likely to produce any less reliable, or any less fair, determination than a jury trial. In these circumstances, the court's action in providing the client a faster and procedurally less forbidding forum for fee disputes, while at the same time assuring the attorney a fair and reasonable determination, comes within the court's constitutional authority to regulate the attorney-client relationship. Id. at 1049. We are in substantial agreement with the language quoted above from the New Jersey and Maine courts. , "The crux of due process is an opportunity to be heard and the right to adequately represent one's interests." Keyes v. Humana Hospital, 750 P.2d 343, 353 (Alaska 1988). The fee arbitration rules readily satisfy these minima. Due process is a flexible concept and may require additional protections. In determining the reach of due process in a particular setting we have employed the approach expressed in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976): [I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Smith v. State, Dep't of Corrections, 872 P.2d 1218, 1222 (Alaska 1994); Matter of K.L.J., 813 P.2d 276, 279 (Alaska 1991). Both the attorney and the former client have an interest in fair, expedient and inexpensive adjudication. Appellate review of an arbitration panel's decision in order to determine either clear error of fact or law would reduce the risk of an unjust decision by an arbitration panel. On the other hand the same considerations which underlie the limits on appealability under the arbitration act apply to those limits in the context of attorney fee arbitration. They are that review on the merits tends to cause delay, necessitates greater judicial involvement, is more apt to require the employment of counsel, and thus cause greater expense, and is more apt to result in the need for additional hearings and in this way too will contribute to added delay and expense. In addition to these generic considerations there are factors which are unique to attorney fee arbitration. These are the need for public confidence in the lawyer/client relationship, the difficulty which clients of limited income may have in procuring an attorney to represent them against another attorney, and the vulnerability of clients when litigating against their former lawyers. Also to be considered is the fact that Alaska has had mandatory fee arbitration since 1974. The system has apparently worked well. There have been some 400 cases disposed of by fee arbitration panels during the last decade and the process seems to be working as it was designed to work. In view of these factors and circumstances we are not convinced that, for purposes of the Mathews v. Eldridge approach, the benefits to be gained from appellate review on the merits necessarily outweigh the detriments which such review would entail. The burden is on the party who challenges a statute or rule on constitutional grounds to demonstrate unconstitutionality, for there is a presumption of constitutionality which attaches to such enactments. Bonjour v. Bonjour, 592 P.2d 1233, 1237 (Alaska 1979); McCracken v. State, 518 P.2d 85, 89 (Alaska 1974). That burden has not been discharged in this case. AFFIRMED. MOORE, C.J., not participating. . Resolution No. 3 of the Alaska Bar Association acting in convention on June 16, 1973, provides: WHEREAS, the Alaska Bar Association presently has no mechanism for determining fee disputes between attorneys and their clients; WHEREAS, the Alaska Bar Association has a responsibility to the public to provide a means for the arbitration of fee disputes without the time and expense of litigation in the court system; WHEREAS, attorneys desire to avoid litigation with clients over fees; and WHEREAS, a rule providing for mandatory arbitration of fee disputes would be of mutual benefit to both attorneys and clients for a prompt resolution of such differences. THEREFORE BE IT RESOLVED that the Alaska Bar Association hereby recommends that the presently proposed attorney fee review committee rules be approved by the Bar Association and forwarded to the Supreme Court with the recommendation that the Court adopt these rules. APPROVED by the Anchorage Bar Association on June 11, 1973. Done at Fairbanks, Alaska, this 16th day of June, 1973. . All citations are to the current Alaska Bar Rules. . Interest arbitration is a type of arbitration where the arbitrator establishes new contract terms rather than deciding how disputes arising under existing contracts should be resolved. . But see DeLisio v. Alaska Superior Court, 740 P.2d 437 (Alaska 1987) (state constitution's "takings clause" prohibits appointment of private attorney to represent indigent criminal defendant without reasonable compensation). . We have no occasion to question Miller's premise that generally appellate review on the merits from mandatory arbitration proceedings is required. See K & L Distributors, Inc. v. Murkowski, 486 P.2d 351, 357-58 (Alaska 1971) (supreme court will review administrative adjudication "to ascertain whether the applicable rules of law and procedure were observed" and, as to fact determinations, "to find whether the administrative decision has passed beyond the lowest limit of the permitted zone of reasonableness to become capricious, arbitrary or confiscatory" even though a statute prohibits judicial review). . See supra, pp. 611-613.

10336419

Joseph NOTKIN, Appellant, v. Nitaya B. NOTKIN, Appellee

Notkin v. Notkin

1996-07-26

No. S-7182

1109

1114

921 P.2d 1109

921

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Joseph NOTKIN, Appellant, v. Nitaya B. NOTKIN, Appellee.

Joseph NOTKIN, Appellant, v. Nitaya B. NOTKIN, Appellee. No. S-7182. Supreme Court of Alaska. July 26, 1996. Dick L. Madson, Fairbanks, for Appellant. Valerie M. Therrien, Fairbanks, for Appel-lee. Before COMPTON, C.J., and RABINOWITZ, MATTHEWS, EASTAUGH and FABE, JJ.

2669

16657

OPINION COMPTON, Chief Justice. I. INTRODUCTION Joseph Notkin appeals, contending that the superior court erred both in setting aside the Notions' original property settlement agreement and in its resolution of property and support issues. We affirm. II. FACTS AND PROCEEDINGS Nitaya Notkin and Joseph Notkin were married in 1984. Joseph works as an architect and earns approximately $56,000 a year. Nitaya works as a hair stylist with an anticipated future earning capacity of approximately $13,200 a year; she is also raising and supporting a son from a prior relationship. At the time of their divorce, it was unclear whether there was any positive equity in the family home. The only marital property available for division was two retirement accounts Joseph had acquired with employers. Nitaya filed for divorce in April 1994. The Notkins reached a property settlement agreement, which was filed with the superior court in November. Nitaya's lawyer stated that she believed the settlement was unfair to her client, but she nonetheless went ahead and drafted the settlement agreement and signed it. An uncontested divorce hearing was scheduled for December 13. Nitaya soon had second thoughts about the property settlement agreement. On December 9, she moved the court to set aside the agreement and allow the divorce to proceed to trial as originally scheduled. While the agreement had been filed with the court the previous month, it had neither been approved by the superior court nor incorporated into the terms of a divorce decree at the time Nitaya moved to have it set aside. The superior court granted Nitaya's motion to set aside the settlement agreement. The ease then proceeded to trial; the superi- or court entered its judgment in May 1995. The court divided the monies in Joseph's retirement accounts, and awarded Nitaya reorientation alimony. Joseph appeals both the superior court's decision to set aside the original settlement agreement and its resolution of property and support issues. III. DISCUSSION A. The Superior Court Did Not Err in Setting Aside the Notkins' Property Settlement Agreement. In reviewing a superior court's decision to set aside a property settlement agreement, or its refusal to do so, "[t]he standard of review and the substantive issue are intertwined...." Murphy v. Murphy, 812 P.2d 960, 965 (Alaska 1991). "[A] court may accept as 'just' a divorce property settlement entered into by parties represented by counsel." Kerslake v. Kerslake, 609 P.2d 559, 560 (Alaska 1980) (footnote omitted). "[I]nsofar as an agreement relates to the division of property, 'the separation agreement should be controlling in the absence of fraud, duress, concealment of assets or other facts showing that the agreement was not made voluntarily and with full understanding.'" Id. at 560, n. 1 (quoting H. Clark, Law of Domestic Relations § 16.10, at 551 (1968)) (emphasis added). As the superior court observed, "[t]he record indicates that Nitaya is not sophisticated in matters relating to division of property and financial obligations." Nitaya affied that "I did not know what I was doing and I did not know how to communicate what I needed to my attorney or the system.... I thought I knew, but all I knew was that I needed money and I thought I could get some money quick." Nitaya is originally from Thailand, and it is clear from her transcribed testimony that she is not fully conversant in English. This evidence suggests that Nitaya lacked a full understanding of the true nature and consequences of her actions at the time she entered into this agreement. Nitaya did possess a certain level of understanding as to what she was doing; she testified later that she had understood at the time she signed the agreement that: It isn't fair. I need the money. I know it's not fair. I want to get it done, over, get to the part — I don't want anything. I just want to get it over. Although this testimony suggests that Nitaya knew in a general way that she was accepting an unfair arrangement in exchange for some immediate cash and finality, the trial court did not err in setting aside the property settlement. Nitaya's lack of familiarity with financial and property matters and her difficulties in communication support the conclusion that she lacked a full understanding of what she was doing. We affirm the superior court's order setting aside the property settlement agreement. Our decision should not be misunderstood as signalling a new level of heightened scrutiny for property settlements entered into by parties to a divorce. It is still the case that " '[stipulations and settlements are favored in law because they simplify, shorten and settle litigation without taking up valuable court resources,' " and that this principle applies in the context of divorce property settlements. Murphy, 812 P.2d at 965 (quoting Interior Credit Bureau, Inc. v. Bussing, 559 P.2d 104, 106 (Alaska 1977). It also remains the case that divorce property settlements do not receive the same statutorily-mandated level of heightened scrutiny that dissolution property agreements receive. It is equally the ease, however, that even under the more relaxed scrutiny afforded property settlements in divorce actions, courts need not accept property settlements as controlling when the facts indicate that an agreement was not made with full understanding. See Kerslake, 609 P.2d at 560, n. 1. B. The Superior Court Did Not Err in Valuing Joseph's Retirement Account. Joseph argues that the superior court erred in valuing his retirement account at Design Alaska, his employer at the time of the divorce, because it did not reduce the value of this account to reflect the debt on the account from loans taken out on it during the marriage. Nitaya called Rebecca Al. Jones, business manager and human resources director for Design Alaska, as a witness. Jones testified that the $30,000 valuation of the retirement account took the loans into account. Because this testimony provided ample support for the trial court's valuation, this valuation is not clearly erroneous. See Rice v. Rice, 757 P.2d 60, 62 (Alaska 1988) (trial court's valuation of marital property is a factual determination that will be set aside only if clearly erroneous). C. The Superior Court Did Not Abuse Its Discretion in Awarding Nitaya Reorientation Alimony. The superior court awarded Nitaya reorientation alimony "to allow Ms. Notkin to establish herself as a single parent in the community." This award consisted of three parts: (1) Joseph was required to assume full responsibility for Nitaya's outstanding car payments; (2) Joseph was required to assume responsibility for Nitaya's student loan; (3) Nitaya was awarded an additional $5,500 in cash "to take care of all obligations, past, present, or future." Joseph appeals this award of reorientation alimony, claiming that the award was based in part on a factor not authorized by statute — Nitaya's need to support her son, that the cash award was unsupported by any evidence, and that the court abused its discretion in ordering Joseph to assume responsibility for the student loan and car payments. "An award of alimony is within the trial court's discretion and will be set aside only if it is unjust or unnecessary." Richmond v. Richmond, 779 P.2d 1211, 1215 (Alaska 1989). "The purpose of reorientation alimony is to allow the requesting spouse an opportunity to adjust to the changed financial circumstances accompanying a divorce." Id. at 1215, n. 6. The superior court correctly identified Nitaya's situation as one calling for reorientation alimony, given the dramatically reduced income she would be living on after the divorce. Furthermore, none of Joseph's specific objections to the alimony award has any merit. 1. Consideration of Nitaya's need to support her son There was nothing inappropriate in the court considering "Ms. Notion's role as a mother and the need she has to raise and support her son" in awarding reorientation alimony. Instead of constituting a disguised child support award, as Joseph suggests it does, the court's consideration of Nitaya's need to support her son was essential if the reorientation alimony award were to serve its purpose of helping Nitaya adjust to the changed financial circumstances of the divorce. 2. The $5,500 cash award Joseph argues that the $5,500 cash award to satisfy "any and all obligations past, pres- exit, and future" was unsupported by any evidence, since the court had already ordered Joseph to "pay all Nitaya's existing debts or obligations which consisted of her car loan and student loan." This argument is not supported by the record. The trial court heard testimony regarding numerous other obligations Nitaya had incurred: the cost of low income housing, medical expenses, automobile insurance, telephone, electricity, groceries, laundry, school lunches for her son, and gas. Nitaya testified that . I can't afford to pay — I cannot live on my own income. It's hard. I can't live on. Is so hard for me. Just don't make it. Every month just behind, behind. These expenses are among the minimal obligations Nitaya will have to meet in maintaining herself and her son. While the superior court's one time only cash award may be an imprecise way of helping Nitaya stabilize as to the expense of meeting these obligations, there is no reason to assume that this award was in any way duplicative of Joseph's assumption of Nitaya's obligations regarding car payments and the student loan. 3. Student loan and automobile payment obligations Joseph argues that the court "in effect, ordered a form of after-the-fact rehabilitative alimony" when it required him to assume responsibility for Nitaya's student loan. He also argues that because Nitaya's car was purchased after the Notkins separated, it was not marital property and the payments owed on it are not a marital debt. The court might have constructed a more conventional alimony award by requiring Joseph to make monthly alimony payments that would be calculated to cover these obligations. However, the award it did construct is nonetheless well-tailored to fit the purposes of reorientation alimony. Joseph is only responsible for obligations remaining as of May 1, 1995. In other words, his payments on the loan and on the car are timed to coincide with the period in which Nitaya is making the financial adjustment to post-divorce life on a dramatically reduced income. In order for a person to adjust to living on less than $15,000 a year, this form of relief could be critical. 4. Preference for property division over alimony Finally, Joseph argues that Nita-ya could have paid the balance on her student loan and car payments out of the property division on the retirement account. "[Rjeorientation alimony is only appropriate when the property settlement will not adequately meet the parties' reasonable needs." Richmond, 779 P.2d at 1215, n. 6. "Where property can provide support, alimony is neither just nor necessary." Hilliker v. Hilliker, 755 P.2d 1111, 1112 (Alaska 1988). One aspect of the superior court's alimony award may violate the preference for property division over alimony. The court ordered that the $5,500 in reorientation alimony for "all obligations, past, present, or future" be taken out of Joseph's retirement account. Given the preference for property division, the court might have awarded Nitaya a larger share of the retirement account, instead of designating this additional share of the Not-kins' one item of divisible marital property as "alimony." However, because this amount comes from the same source and is a one time only payment, regardless of how it is labelled, any error is harmless. As to the car payment and student loan components of the alimony award, these expenses could not have been paid for by increasing Nitaya's share of the retirement accounts. The court determined that the value of Joseph's retirement accounts was $32,128, and awarded Nitaya $16,014 of this amount in the property division, roughly half of the total. However, the court ordered Joseph to pay the $5,500 for "obligations" and Nitaya's $5,000 attorney's fee award out of his share of the property division. Furthermore, to help Nitaya cover the tax consequences and penalties that would result from the early withdrawal of the retirement monies, the court then decided to "round up the total sum that Ms. Notkin shall withdraw from the [ ] account to $30,000." This leaves only $2,128 in Joseph's share of the account monies, far less than the $5,500 left to pay on Nitaya's student loan, not to mention the payments on the ear. As to Joseph's assertion that Nitaya could have paid off her student loan and car payment obligations out of her $16,014 from the property settlement, the superior court considered the parties' earning capacities, educational backgrounds, employment skills, work experiences, and custodial responsibilities, acknowledged that reorientation alimony is only appropriate when the property settlement will not adequately meet a party's needs, and concluded that such alimony was appropriate. The court's conclusion was not an abuse of discretion. The amount of property that was available for division was small, Nitaya's earning capacity is low, and a separate award of reorientation alimony in addition to the property division seems to have been the only way to adequately ensure that she would be able to meet her reasonable needs. D. The Award of Attorney's Fees to Nita-ya Was Not Manifestly Unreasonable. The award of attorney's fees in a divorce action is committed to the sound discretion of the trial court. Burrell v. Burrell, 537 P.2d 1, 7 (Alaska 1975). "The trial court's discretion in awarding attorney's fees will not be disturbed on appeal unless it is 'arbitrary, capricious, manifestly unreasonable, or stems from an improper motive.'" Zimin v. Zimin, 837 P.2d 118, 124 (Alaska 1992) (quoting Tobeluk v. Lind, 589 P.2d 873, 878 (Alaska 1979)). Joseph argues that the superior court should not have awarded Nitaya attorney's fees when "the decision to incur the majority of the fees was totally due to Nitaya's bad faith in refusing to honor the settlement agreement." However, the superior court did not award Nitaya those attorney's fees accrued on the motion to set aside the property settlement agreement. The court instead awarded Nitaya partial attorney's fees of $5,000 when it entered judgment. In awarding attorney's fees in a divorce action, "[t]he relevant considerations are the relative economic situation and earning power of each party." Hartland v. Hartland, 777 P.2d 636, 644 (Alaska 1989). There was nothing so manifestly unreasonable about Nitaya's attorney charging fees in a contested divorce proceeding that would warrant dispensing with the usual relevant considerations, simply because the divorce became contested only after the settlement agreement was set aside. Given the disparity in the Notions' economic situation and earning power, the superior court did not abuse its discretion in awarding Nitaya attorney's fees. IV. CONCLUSION We AFFIRM the judgment of the superior court. . AS 25.24.230(a) allows a court to grant a final decree of dissolution only after finding that "the spouses understand fully the nature and consequences of their action" and that "the written agreements between the spouses concerning maintenance and tax consequences, if any, divi sion of property, including retirement benefits, and allocation of obligations are fair and just[.]" In contrast, with divorces there is no "affirmative duty on a trial court to examine every property settlement reached by the parties to determine if it is just." Kerslake, 609 P.2d at 560, n. 1. Furthermore, while AS 25.24.220(h) requires a court to "use a heightened level of scrutiny" in reviewing a property agreement if there is a minor child of the marriage or "a patently inequitable division of the marital estate," this statutory section applies only to dis-solutions and "afibrd[s] no additional protection for divorce actions[.]" Murphy, 812 P.2d at 965, n. 8. As we stated in Murphy, "[t]he legislature may want to consider extending the heightened level of scrutiny to divorces commenced under AS 25.24.010, for the need for heightened scrutiny is arguably as great in a contested divorce which is ultimately settled." Id.

10328226

GREAT AMERICAN INSURANCE COMPANY, Subrogee of Dionisios Marudas and Athina Marudas, d/b/a Pizza Olympia, Appellants, v. BAR CLUB, INC., d/b/a The Buckaroo Club, Appellee

Great American Insurance Co. v. Bar Club, Inc.

1996-07-26

No. S-6368

626

628

921 P.2d 626

921

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

Before RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

GREAT AMERICAN INSURANCE COMPANY, Subrogee of Dionisios Marudas and Athina Marudas, d/b/a Pizza Olympia, Appellants, v. BAR CLUB, INC., d/b/a The Buckaroo Club, Appellee.

GREAT AMERICAN INSURANCE COMPANY, Subrogee of Dionisios Marudas and Athina Marudas, d/b/a Pizza Olympia, Appellants, v. BAR CLUB, INC., d/b/a The Buckaroo Club, Appellee. No. S-6368. Supreme Court of Alaska. July 26, 1996. Robert L. Griffin, Law Offices of Mason & Griffin, Anchorage, for Appellants. A. Robert Hahn, and John R. Strachan, Anchorage, for Appellee. Before RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

1299

8077

OPINION COMPTON, Chief Justice. I. INTRODUCTION Pizza Olympia rented a portion of a building from the Bar Club, d/b/a Buckaroo Club, which did business in the remainder of the building. A fire damaged both portions of the building. After paying Pizza Olympia's claim, Great American Insurance Company, its insurer, brought a subrogation action against the Bar Club, alleging that its negligence caused the fire and Pizza Olympia's losses. The Bar Club successfully moved for summary judgment, prevailing on the theory that it was an implied co-insured under Pizza Olympia's fire insurance policy, and therefore not liable in subrogation. Great American Insurance appeals. We reverse. II. FACTS AND PROCEEDINGS Pizza Olympia rented a portion of a building from the Bar Club, Inc., which occupied the other part of the building. The lease contained a clause obligating Pizza Olympia to name the Bar Club as a co-insured in all "liability insurance policies pertaining to the premises." Pizza Olympia obtained an insurance policy from Great American Insurance Company. The policy contained an endorsement modifying the "Commercial General Liability Coverage Part" by naming the Bar Club as an additional insured, "but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to" Pizza Olympia. The Bar Club was not named as an additional insured under the fire insurance portion of the policy. Pizza Olympia annually provided the Bar Club with a copy of the policy. In 1991 a fire damaged the entire building. The Bar Club and Pizza Olympia each individually settled with their respective insurance companies. Great American then brought a subrogation action against the Bar Club, alleging that its negligence caused the fire and Pizza Olympia's losses. The superior court held that Alaska Ins. Co. v. RCA Alaska Communications, Inc., 628 P.2d 1216 (Alaska 1981), mandated summary judgment in favor of the Bar Club. Specifically, the court concluded that because RCA had held that a landlord's insurer could not sue a tenant for fire damage due to that tenant's negligence, "general principles of equity and fundamental fairness . would preclude the tenant's insurer from suing the landlord_" Great American Insurance appeals. III. DISCUSSION A. Standard of Review Summary judgment will be affirmed if there are no genuine issues of material fact and if the moving party is entitled to judgment as a matter of law. In re Estate of Evans, 901 P.2d 1138, 1140 (Alaska 1995). On questions of law, we are not constrained by the superior court's decision, but instead "adopt the rule of law that is most, persuasive in light of precedent, reason, and policy." Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). B. Analysis The Bar Club, relying on Alaska Ins. Co. v. RCA Alaska Communications, Inc., 623 P.2d 1216 (Alaska 1981), argues that equitable principles dictate it should be considered an implied eo-insured under Pizza Olympia's fire insurance policy. In RCA, a fire destroyed a building which RCA rented from Bachner Rental Company, the building's owner. Id. at 1217. Bachner's insurer paid Bachner for the fire loss, and then commenced a subrogation action against RCA, contending that RCA had negligently caused the fire. We held that RCA was an implied co-insured under Baehner's fire insurance policy. We reasoned that it would "contradict the reasonable expectations of a commercial tenant to allow the landlord's insurer to proceed against it after the landlord had contracted in the lease to provide fire insurance on the leased premises," and that "in a situation of this type it would be undesirable as a matter of public policy to permit the risk of loss from a fire negligently caused by a tenant to fall upon the tenant rather than the landlord's insurer." Id. at 1219. We distinguished RCA in Olympic, Inc. v. Providence Washington Ins. Co., 648 P.2d 1008 (Alaska 1982). In Olympic, a lease required the budding's tenant, Alaskan General Incorporated (AGI), to provide liability insurance for the budding's premises, and to name Olympic, the budding's owner, as a co-insured on the podey. Id. at 1009. AGI purchased a liability insurance policy from Providence Washington Insurance Company (Providence), but breached its obligation to name Olympic as a co-insured. Id. at 1009-10. A firefighter was later kdled whde battling a blaze at the budding. Olympic's insurer, Chicago Insurance Company (Chicago), settled a wrongful death action with the firefighter's estate, and then commenced an indemnification action against Providence. Id. at 1010. After concluding that Chicago did not derive a right of indemnification from the express provisions of Providence's insurance policy, we held that the implied insured doctrine did not apply: [W]e decline to characterize Olympic as an implied insured. The dispositive distinction between the present case and RCA is that in RCA the insurer seeking subrogation had contractually agreed to insure against loss due to fire.... It is from that context which we assessed the reasonable expectations of the parties with respect to fire loss due to the tenant's negligence. In contrast . Providence did not contractually agree to insure against risks attributable to Olympic. Presumably, the premiums charged by Providence reflected only the risks expressly set forth in the policy. We cannot say as a general rule that such premium rates would not vary were the landlord listed as a named insured. Id. at 1014. As Olympic makes clear, if the tenant, rather than the landlord, purchases insurance, the focus shifts from the reasonable expectations of the parties to the terms of the policy itself. Under Olympic, a landlord is a co-insured under a tenant's fire insurance policy only if the policy expressly so provides. This is so because the equitable principle underlying the implied insured doctrine is not applicable when the tenant purchases insurance. We therefore hold that the Bar Club is not an implied co-insured under Pizza Olympia's fire insurance policy. IV. CONCLUSION The judgment of the superior court is REVERSED and the case is REMANDED for proceedings consistent with this opinion. MATTHEWS, J., concurs. MOORE, C.J., not participating. . The implied insured doctrine rests on the assumption that the tenant's rent includes the cost of fire insurance: It has also been noted as well recognized that the cost of insurance to a landlord for the value of the risk is made a part of the rental to be paid by the tenant and, thus, in practical effect, the tenant pays the cost of the landlord's fire insurance.... Since the lessee ultimately pays for the insurance through rent checks, he or she should be able to benefit from that payment unless the lessee has clearly bargained away that benefit, it being the natural expectation of the parties that they should benefit from what they pay for. The rule is a common sense approach which prevents a double recovery for the landlord or windfall to the insurance company which would escape liability for protection it was paid to provide. 49 Am.Jur.2d, Landlord and Tenant § 482 (1995) (footnotes omitted).

10336706

TENALA, LTD., Appellant, v. Audrey FOWLER, as Personal Representative of the Estate of Sally C. Mayo, Appellee

Tenala, Ltd. v. Fowler

1996-08-02

No. S-6820

1114

1125

921 P.2d 1114

921

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

Before COMPTON, C.J., RABINOWITZ, MATTHEWS and EASTAUGH, JJ., and CARPENETI, J. Pro Tem.

TENALA, LTD., Appellant, v. Audrey FOWLER, as Personal Representative of the Estate of Sally C. Mayo, Appellee.

TENALA, LTD., Appellant, v. Audrey FOWLER, as Personal Representative of the Estate of Sally C. Mayo, Appellee. No. S-6820. Supreme Court of Alaska. Aug. 2, 1996. Eugene R. Belland, Fairbanks, for Appellant. Ronald L. Baird, Office of Ronald L. Baird, Anchorage, for Appellee. Before COMPTON, C.J., RABINOWITZ, MATTHEWS and EASTAUGH, JJ., and CARPENETI, J. Pro Tem. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

5989

35182

OPINION EASTAUGH, Justice. I. INTRODUCTION Audrey Fowler, as personal representative for the Estate of Sally Mayo (Mayo), brought this action to quiet title to land bordering the west, south, and east sides of a lot located on Fifth Avenue in Fairbanks. There are two main lots involved in this dispute, one of which, Lot 5, is subdivided into four sub-lots. Mayo holds record title to one of the sub-lots, Lot 5C. Tenala, Ltd., (Tenala), holds record title to the three remaining sub-lots (Lots 5A, 5B, & 5D) and the other main lot, Lot 6. Fowler claims adverse possession of portions of Lots 6 and 5D and claims a disputed strip between Lots 5C and 5B. The superior court found for Fowler and Tenala appeals. We affirm in part and reverse in part. II. FACTS AND PROCEEDINGS A. The Facts The lots at issue here are Lots 5 and 6, Block 76, Fairbanks Townsite. The parties agree that Mayo holds title to Lot 5C and that Tenala holds title to Lots 5A, 5B, 5D, and 6. The three main contested areas consist of (1) a twelve to fifteen foot wide area of the eastern portion of Lot 6, running along the western border of Lot 5C from Fifth Avenue to a point just south of Lot 5C's southern border; (2) a strip (the "disputed strip") between Lots 5C and 5B, running north-south the length of Lot 5C, having a width of approximately 3.45 feet along Fifth Avenue, and abutting the north boundary of Lot 5D for a distance of approximately 7-9 feet; and (3) an area to the south of Lot 5C, encroaching onto Lot 5D. All of Lot 5 was owned .at one time by Hosea Ross. Hosea Ross transferred Lot 5C to Sally Mayo in a 1940 deed. Ed Ross had previously given Lee Mayo, Sally Mayo's husband, a 1927 deed for all of Lot 5. No documents show that Ed Ross had any interest in Lot 5 when he conveyed it to Lee Mayo. Tenala is a closely held corporation. Its chain of title to Lot 5 traces back to Hosea Ross via Russell Beaverson, then-president of Tenala, who transferred Lots 5A, 5B, and 5D to Tenala in 1961 and 1962. It is undisputed that Hosea Ross's transfers of parts of Lot 5 left two small areas that were not conveyed to either Mayo or to Tenala's predecessors in title. The first is the disputed strip between Lots 5C and 5B. The second is a triangle about 1.8 feet wide between Lot 5C's southern border and Lot 5D's northern border. The Mayos moved into an existing cabin on Lot 5C in 1926. The existing structures slightly encroached onto Lot 6, and an addition and a coal shed built by the Mayos further encroached onto Lot 6 and Lot 5D. The coal shed was built to the south of the cabin, and a vegetable garden was planted immediately to the east of the coal shed. At some point someone constructed a fence that extended in a easterly direction from the northeast comer of a shed to the south of the Mayo coal shed (hereinafter the "easVwest fence"). This fence divided the portions of Lot 5 used by the Mayos from those used by their neighbors to the south. This fence lies 8 to 9 feet south of Lot 5C, and thus encroaches on Lot 5D. When the Mayos moved onto Lot 5C, a garage was located on Lot 6. The Shermer family then owned Lot 6 and the garage. Between the garage and Lot 5C there was a strip of land more than 15 feet wide that the Mayos used to chop wood, store garbage cans, and park cars. The Mayos also used this area as a driveway for access to their coal shed and the rear of their cabin. While they owned Lot 6, the Shermers used the garage and occasionally also used the 15-foot strip to its east for access to the rear of the garage. During a 1986 repaving project, the City of Fairbanks installed an asphalt ramp between Fifth Avenue and the driveway on Lot 6. The Mayos have continuously used this strip since 1926. Additionally, when the Mayos moved onto Lot 5C they treated as their own two cabins located east of Lot 5C. These cabins remained in existence until at least 1940. Tenala gradually removed old structures on its parcels. The trial court found that the garage on Lot 6 was removed before 1965 but after 1961. Additionally, two log cabins on Lot 5B were removed between 1940 and 1965. In 1965, a house on Lot 5B was also removed. In the mid-1970s, Tenala cleared and planted grass on a portion of Lot 5B and used that area as a volleyball court. To protect the Mayos' garden from stray volleyballs, Lee Mayo constructed an additional fence (the "north/south fence") running in a northerly direction from the existing east/west fence. The extent and nature of the Mayos' use of Lot 5C and the surrounding property has remained largely unchanged since 1965. B. The Proceedings Fowler, as representative of Sally Mayo's estate, brought a quiet title action against Tenala in 1991. After a three-day bench trial, the court held that under AS 09.10.030 Mayo had adversely possessed the eastern fifteen feet of Lot 6 abutting Lot 5C and a northern portion of Lot 5D. The trial court also held that Mayo had adversely possessed the disputed strip between Lot 5C and Lot 5B under color or claim of title pursuant to AS 09.25.050. The court stated that title to the disputed strip vested in the Mayos in 1934 and that Tenala had failed to prove that it subsequently adversely possessed this area away from Mayo pursuant to AS 09.10.030. The court entered judgment quieting title, to which it attached a survey of the redefined Mayo parcel. The judgment dismissed Tena-la's counter- and cross-claims with prejudice. Fowler sought attorney's fees and costs. She was awarded attorney's fees of $13,730 and costs of $1,927.75. III. DISCUSSION A. With the Exception of the Actual Building Encroachments, Mayo Lacked the Requisite Exclusivity to Adversely Possess the Eastern Portion of Lot 6; Therefore, Mayo Has Earned a Fee Simple Estate to the Areas Encroached by the Buildings and a Prescriptive Easement to the Remainder of the Claimed Land in the Eastern Portion of Lot 6. Alaska has two adverse possession statutes, AS 09.10.030 and AS 09.45.052 (formerly AS 09.25.050). Alaska Statute 09. 10.030 contains the general adverse possession provision: No person may bring an action for the recovery of real property, or for the recovery of the possession of it unless commenced within 10 years. No action may be maintained for the recovery unless it appears that the plaintiff, an ancestor, a predecessor, or the grantor of the plaintiff was seized or possessed of the premises in question within 10 years before the commencement of action. AS 09.10.030 (amended 1994). Alaska Statute 09.10.030 is not just a statute of limitations, but can also be used as the basis for establishing new title through adverse possession. Ayers v. Day & Night Fuel Co., 451 P.2d 579, 581 (Alaska 1969). The other adverse possession statute, AS 09.45.052, allows claimants with color of title to establish legal title after passage of a shorter period, seven years. Because Fowler is not claiming the eastern portion of Lot 6 under a color of title theory, her claim to Lot 6 is governed by AS 09.10.030. In Peters v. Juneau-Douglas Girl Scout Council, 519 P.2d 826, 832 (Alaska 1974), we stated that the purpose of the requirements for adverse possession is to put the true owner on notice of an adverse possessor's claim. Towards this end, the exclusivity and continuity of an adverse possessor's use of a disputed area must only rise to that level which would characterize an average owner's use of similar property. Nome 2000 v. Fagerstrom, 799 P.2d 304, 309 (Alaska 1990). The level of use also determines whether a claimant acquires a fee title estate via adverse possession or merely a prescriptive easement. According to Professor Cunningham: The chief distinction is that in adverse possession the claimant occupies or possesses the disseisee's land, whereas in prescription [the claimant] makes some easement-like use of it_ The most basic difference is between 'use' and 'possession', for that determines whether activities that are adverse will gain an easement or estate for the claimant. Usually it is obvious whether the activity is only use, such as passing over land, or possession, marked by occupation, fencing, or permanent improvements. Roger A Cunningham, et al, The Law of Property § 8.7, at 451-52 (2d ed. 1993). Cunningham further explains that maintaining . a paved driveway is usually treated as a prescriptive use, but its permanent, continuous, and substantial nature might lead a court to consider it pos-sessory. . It seems the test should flow from the principle that possession implies not only the possessor's use but his exclusion of others, while use involves only limited activities that do not imply or require that others be excluded. Id. at 452 (emphasis added) (footnotes omitted). The Mayos' actual building encroachments onto Lot 6 were continuous, open, and adverse, and represent permanent physical improvements to the land that required the exclusion of others. Therefore, we find that Mayo acquired a fee simple estate to the areas of encroachment. Apart from the slight building encroachments, the Mayos used the eastern portion of Lot 6 for access to the rear of the house and the coal shed, garbage can storage, and an unimproved driveway. Fowler concedes that the Shermers, Tenala's predecessors in interest in Lot 6, also occasionally used this area for access to the rear of the Shermers' garage. Other than the slight building encroachments, the Mayos never placed any permanent improvements on Lot 6 and never fenced or posted the area as their own. Nothing in the Mayos' use of Lot 6 can be interpreted to have given notice to the true owners that the Mayos were claiming a possessory interest in the driveway strip. Consequently, if the Mayos met the other requirements of continuous, uninterrupted, open, and adverse use, the interest in the unimproved driveway area of Lot 6 to which Fowler is entitled is a prescriptive easement, and not fee title. Tenala does not dispute that the Mayos have continuously and openly used, without interruption, the eastern portion of Lot 6 as a driveway since 1926. However, Tenala argues that this use was permissive. Therefore, the adversity of this use is the only open issue. We have held that there is a presumption that use by an alleged easement holder is permissive. City of Anchorage v. Nesbett, 530 P.2d 1324, 1330 n. 16 (Alaska 1975). This presumption is overcome by proof of a distinct and positive assertion of a right hostile to the owner of the property. Id. In Swift v. Kniffen, 706 P.2d 296, 304 (Alaska 1985), we stated that "[t]he hostility element turns on the distinction between acquiescence and permission," and held that if the true owners merely acquiesce, and do not intend to permit a use, the claimant's use is adverse and hostile. Therefore, we must decide whether the record reveals that Tena-la intended to permit the Mayos' use or merely acquiesced in that use. In Hubbard v. Curtiss, 684 P.2d 842, we stated that "[t]he key difference between acquiescence by the true owner and possession with the permission of the true owner is that a permissive use requires the acknowledgment by the possessor that he holds in subordination to the owner's title." Id. at 848 (citations omitted). At trial, not only was there no evidence the Mayos were given formal permission to use the driveway, an officer of Tenala testified that the issue of the Mayos' use was never discussed with the Mayos. On direct testimony, Eugene Belland stated that he was aware of the Mayos' use and had never talked to Lee or Sally Mayo about it. Bel-land's testimony is characteristic of aequies-cence, rather than an affirmative intent to grant permission to continue the long-term use which predated Tenala's ownership. Statements made by Tenala to this court further support a conclusion that Tenala acquiesced in rather than intentionally permitted the Mayos' use. Tenala asserted in its opening brief that "as a successor to Shermer, [Tenala] respected the uses by Sally Mayo thus allowed and arising during Shermer's ownership and did not interfere with Sally Mayo's exercise of the same." Nothing in the record contradicts the evidence of acquiescence. We consequently find that the requisite adversity existed and that Fowler, as representative of her mother's estate, acquired a prescriptive easement to the portion of the easterly fifteen feet of Lot 6 which is not improved by the Mayos' buildings, and acquired a fee simple estate to those areas of physical encroachments. B. The Superior Court Did Not Err in Holding that Mayo Adversely Possessed the Disputed Strip between Lot 5B and Lot 5C. Fowler claims adverse possession of the disputed strip between Lot 5C and 5B under color of title from the 1927 Ed Ross-Lee Mayo deed. Alaska Statute 09.45.052 dictates that a claimant with color of title may adversely possess a piece of property by holding it without interruption for seven years, if possession is adverse and notorious. Shilts v. Young, 567 P.2d 769, 775 (Alaska 1977). We have explained the color of title doctrine in the following way: The function of the doctrine of color of title is to define the exact boundaries of the land which is claimed. When one adversely possesses land under color of title the extent of the land possessed is measured by the terms of the purported instrument giving color of title rather than by actual physical use by the claimant. Lott v. Muldoon Road Baptist Church, Inc., 466 P.2d 815, 817-18 (Alaska 1970) (footnotes omitted). The color of title doctrine presupposes invalidity of the instrument under which a claim is brought. Id. Therefore, Fowler is not required to establish that Ed Ross had any interest to convey in the 1927 deed to Lee Mayo. The superior court found that Mayo, pursuant to AS 09.45.052, had acquired title to the disputed strip by 1934. The issue of the Mayos' use of the disputed strip is a factual question which we review under the clearly erroneous standard. Peters, 519 P.2d at 833. The application of legal doctrines to the facts, however, presents questions of law which we review independently. Id. at 834. Uncontested evidence was presented at trial that the Mayos treated the cabins on Lot 5B as their own until they were removed, sometime between 1940 and 1965. The court found that the Mayos continuously used the disputed strip from 1927, and that "the parties presented no evidence that anyone in the seven years between 1927 and 1934 made a claim to this land adverse to the Mayo family." The court also found that the Mayos paid taxes on the disputed strip since 1940. Furthermore, in finding that the Mayos openly claimed the disputed strip, the court noted an incident when May Butler, Sally Mayo's daughter, advised Belland that the area he was mowing was part of the Mayo lot. The court's factual findings are not clearly erroneous. Based on the evidence before it, the superior court concluded that there was clear and convincing evidence that the Mayos had "openly treated the 'disputed strip' as their own land" and had acquired title under color or claim of title based on the 1927 deed to Lee Mayo. We find that the superior court did not err in holding that the Mayos' use was sufficiently exclusive, hostile, and notorious to adversely possess the disputed strip. As the superior court correctly noted, because the Mayos acquired title via adverse possession in 1934, the relevant question is whether Tenala subsequently acquired title to this area through adverse possession. In holding that Tenala had not adversely possessed the disputed strip away from the Mayos, the superior court noted that the Mayos had paid taxes on the disputed strip since 1940 and had treated it as their own since 1927, that Tenala had made no claim to the strip prior to the lawsuit, and that Tenala had never held legal title or color of title to the strip. Given these facts, the superior court held that Tenala had failed to present clear and convincing evidence of adverse possession. Tenala argues that the superior court erred in holding that Tenala had made no claim to the disputed strip prior to this lawsuit. • Tenala points to the following conduct as indicating Tenala's claim to this parcel: rototilling and seeding the area in 1967, mowing the lawn, and using part of it as a volleyball court. Tenala also argues that it responded to the claim by May Butler by escorting her to the fence line and informing her that the north/south fence represented the boundary line. These facts, however, do not rise to the level of clear and convincing evidence of use which is sufficiently hostile, continuous, open, and notorious to acquire title by adverse possession. Fowler testified at trial that, as a neighborly gesture, Tenala occasionally mowed the lawns of neighboring properties. Furthermore, weighing the conflicting testimony before it, the trial court found that the Butler/Belland incident supported the fact that the Mayos openly claimed this area. As we noted above, supra note 4, when faced with findings based on conflicting testimony, we have even a stronger basis for deferring to the trial court. Penn, 615 P.2d at 3. Consequently, we hold that the trial court did not err in concluding that Tenala had failed to carry its burden to show adverse possession of the disputed strip after 1984. C. The Superior Court Did Not Err in Holding that Mayo Adversely Possessed a Portion of the Northern End of Lot 5D, but Erroneously Determined the South Boundary Line of the Mayo Lot. Tenala does not dispute that the Ma-yos' physical encroachments and use of the northern end of Lot 5D possess the requisite characteristics for acquiring a fee simple estate; Tenala argues instead that the better public policy would be to award an easement. Tenala's arguments are contrary to the existing law, which holds that fee simple title is acquired if all of the required elements of adverse possession are met. See, e.g., Hubbard v. Curtiss, 684 P.2d 842, 849 (Alaska 1984) (holding that title automatically vests in the adverse possessor at the end of the statutory period if all the requirements are met). The law has long recognized adverse possession as a legitimate method for acquiring title. Alaska Nat'l Bank v. Linck, 559 P.2d 1049, 1054 (Alaska 1977). In Linck we stated: While . adverse possession statutes keep stale causes out of the courts, they serve other important public policies as well. They exist because of a belief "that title to land should not long be in doubt, that society will benefit from someone's making use of land the owner leaves idle, and that third persons who come to regard the occupant as owner may be protected." Id. (citations omitted). Therefore, Tenala's arguments based on public policy are unfounded and unpersuasive. Tenala additionally challenges the superior court's determination of the Mayos' south boundary line (as set by the court's finding of adverse possession). The court set the south boundary with reference to the small shed south of the Mayo coal shed. The superior court described the south boundary as follows: [B]eginning at the northeast comer of the small shed located south of the Mayo "coal" shed along a line extending westerly at the same angle and direction as the line denoting the north edge of the small shed until it intersects the west edge of the 15 foot "driveway" previously awarded to Mayo; and, again beginning at the northeast comer of the small shed along a line extending easterly at the same angle and direction as a line that connects the northeast comer of the small shed and the intersection of the "picket fence" [the east/ west fence] and the "wood and wire fence," [the north/south fence] then from [this] intersection . along a line extending easterly at the same angle and direction as the line that connects the northeast comer of the small shed and the intersection of the "picket fence" and the "wood and wire fence" until it intersects the east boundary of the dispute[d] strip awarded to Mayo as set forth below. Tenala challenges this boundary line in two respects. Tenala first argues that Fowler only claimed to the south line of the coal shed and not the additional approximately 2½ feet to the small shed. The superior court understood the area claimed by Fowler with respect to Lot 5D to be bounded by the east/ west and north/south fences and described it as follows: "The area claimed is enclosed by a fence that runs easterly from a shed that is approximately two and one-half feet south of the 'coal' shed to a fence that runs north and south:" In support of its contention that this understanding was incorrect and that Fowler limited her claim to Lot 5D to the south line of the coal shed, Tenala cites statements made at trial by Fowler's attorney, Mr. Baird. These statements, taken in context, are consistent with an understanding that Fowler was claiming that portion of Lot 5D inside the fence which runs from the northeast corner of the small shed south of the coal shed. Consequently, the trial court did not clearly err by using the small shed as the southerly demarcation of Fowler's claim. Tenala next argues that Fowler has no claim to the portion of Lot 5D awarded in the court's judgment outside the area enclosed by the east/west and north/south fences. This challenge to the south boundary line set by the trial court concerns the court's determination that the area adversely possessed by the Mayos included a portion of Lot 5D east of the north/south fence. This area was included in the judgment awarded to Fowler because the superior court extended the south property line until it intersected with the disputed strip. Tenala argues that, because the north property line of Lot 5D marks the south boundary of the disputed strip, the disputed strip and the south property line as described by the court do not intersect. Tenala is correct. As noted above, during the trial the superior court explained that it understood the claimed area as being bounded by the east/west and north/ south fences. Therefore, it was merely an oversight that the superior court defined the east end of the south property line as it did. Consequently, we hold that the south boundary line of the Mayos' fee simple estate starts at the northeast corner of the small shed located to the south of the Mayos' coal shed and extends easterly at the same angle as a line that connects the shed and the intersection of the easi/west fence and north/ south fence, then runs northerly along the line of the north/south fence until it intersects with the north property line of Lot 5D, and from this intersection extends northeasterly along the north property line of Lot 5D until this property line intersects with the eastern border of the disputed strip. D. Although Tenala Waived Any Argument with Respect to the Costs and Attorney's Fees Awards, We Vacate These Awards Due to Our Partial Reversal of the Trial Court and Remand Them for Re-evaluation in Light of Our Holdings. Tenala asserts that the superior court erred in awarding attorney's fees and costs, but makes no supporting arguments on appeal and merely refers us to its trial court memoranda on the issue. Therefore, Tenala has effectively abandoned these issues. See Gates v. City of Tenakee Springs, 822 P.2d 455, 460 (Alaska 1991) (treating issues cursorily or not addressed in a party's appellate briefs as abandoned) (citing Lewis v. State, 469 P.2d 689, 691-92 (Alaska 1970)). This court need not consider arguments which a party on appeal merely adopts and incorporates by reference to its lower court memoranda. Bidwell v. Scheele, 355 P.2d 584, 587-88 (Alaska 1960). Nonetheless, because we have found that Fowler, as representative of her mother's estate, acquired a prescriptive easement and not fee title for most of the disputed portion of Lot 6, we vacate the attorney's fees and costs awards. On remand, the trial court will have to decide who is the prevailing party. The prevailing party determination is left to the discretion of the trial court, LeDoux v. Kodiak Island Borough, 827 P.2d 1121, 1124 (Alaska 1992), as is the award of costs. Pavone v. Pavone, 860 P.2d 1228, 1233 (Alaska 1993). E. On Remand, the Dismissal of Tena-la's Counter- and Cross-Claims Should Be Made To Be Without Prejudice. Tenala argues that its counter- and cross-claims should have been granted at least with respect to Lots 5A and 5B and that portion of Lot 5D not enclosed by the easVwest and north/south fences. Fowler responds that Tenala waived this argument by failing to raise it below. We have held that we will decline to review issues that are not raised at the trial court, except to the extent that they may constitute plain error. Miller v. Sears, 636 P.2d 1183, 1189 (Alaska 1981). "Plain error exists where an obvious mistake has been made which creates a high likelihood that injustice has resulted." Id. (citing City of Nome v. Ailak, 570 P.2d 162, 171 (Alaska 1977)). An involuntary dismissal with prejudice is a harsh sanction which should only be applied in extreme cases. Power Constructors, Inc. v. Acres Am., 811 P.2d 1052, 1055 (Alaska 1991); Zeller v. Poor, 577 P.2d 695, 697 (Alaska 1978); Mely v. Morris, 409 P.2d 979, 982 (Alaska 1966). While Te-nala did not ask for affirmative relief on its counter-claims and did not pursue its cross-claims, no prejudice to Fowler or the other defendants was shown. Therefore, we hold that it was plain error to dismiss Tenala's counter- and cross-claims with prejudice. We reverse the trial court's decision and remand with instructions that these claims be dismissed without prejudice. IV. CONCLUSION For these reasons, we AFFIRM in part and REVERSE in part. We AFFIRM the holding that Mayo adversely possessed the areas of actual building encroachments in Lot 6 and acquired a fee title interest to these areas. We REVERSE the holding that Mayo adversely possessed the remaining easterly fifteen feet of Lot 6 and REMAND for entry of judgment giving Mayo a prescriptive easement to that part of Lot 6 for use as a driveway and storage area and for correction of the judgment to reflect these changes in the western boundary of Mayo's property. We AFFIRM the superior court's holding that Mayo, under color of title pursuant to AS 09.45.052(a), adversely possessed the disputed strip between Lots 5C and 5B. Likewise, we AFFIRM the superior court's finding that Mayo adversely possessed the fenced area of Lot 5D, but we REMAND so the judgment may be corrected to adjust the southern boundary of Mayo's property. We VACATE the attorney's fees and costs awards and REMAND for re-evaluation of these claims. Finally, we REVERSE the dismissal with prejudice of Tenala's counter- and cross-claims and REMAND with instructions that these dismissals be without prejudice. •rurrcANJUlA A . Appendix A depicts the lots and the disputed boundaries. Lot 5 is shaped roughly like an upside down "L", and borders on both Fifth and Sixth Avenues. Lot 6. is rectangular, runs along the western border of Lot 5, and fronts on Fifth and Sixth Avenues. Lot 5C is located in the northwest comer of Lot 5; Lot 5D is south of Lot 5C and Lot 5B is east of Lot 5C and 5D. Lot 5A comprises the northeast comer of Lot 5. . In 1962, Beaverson also transferred Lot 6 to Tenala. . The trial court presents a thorough analysis of how these gaps were created in the chain of title. Fowler v. Tenala, Ltd., No. 4FA-91-383 Cl, 8-11 (Alaska Super., January 25, 1994). . An "as-built" plot plan created after Sally Mayo's death indicates that the southwest comer of the cabin addition encroaches onto Lot 6 by up to 2 feet and the coal shed encroaches about 3 to 4 feet onto Lot 6 and about 8 to 9 feet onto Lot 5D. . Tenala contends that this fence was not built in the 1970s, but rather "in all probability" dates to 1940 and was built by Hosea Ross. The trial court, however, accepted Fowler's testimony regarding the purpose and date of the fence. We only set aside a trial court's factual findings if we determine them to be clearly erroneous. Peters v. Juneau-Douglas Girl Scout Council, 519 P.2d 826, 833 (Alaska 1974) (citing Ayers v. Day & Night Fuel Co., 451 P.2d 579, 582 (Alaska 1969)). "A finding is clearly erroneous when, although there may be evidence to support it, we are left with the definite and firm conviction on the entire record that a mistake has been committed." Id. (quoting Alaska Foods, Inc. v. American Mfrs. Mut. Ins. Co., 482 P.2d 842, 848 (Alaska 1971)). When a trial court's decision of a factual issue depends largely on conflicting oral testimony, the trial court's competence to judge credibility of witnesses provides even a stronger basis for deference by the reviewing court. See Penn v. Ivey, 615 P.2d 1, 3 (Alaska 1980) (citations omitted). The trial court's findings with respect to this fence are not clearly erroneous. . AS 09.45.052(a), in relevant part, states: The uninterrupted adverse notorious possession of real properly under color and claim of title for seven years or more is conclusively presumed to give title to the property except as against the state or the United States. . The other requirements for a prescriptive easement are the same as those for adverse possession. McGill v. Wahl, 839 P.2d 393 (Alaska 1992) ("To establish a prescriptive easement a party must prove (1) the use of the easement was continuous and uninterrupted; (2) the user acted as if he or she were the owner and not merely one acting with the permission of the owner; and (3) the use was reasonably visible to the record owner. These are the same requirements to make out a claim of adverse possession." (citations omitted)). .In Fagerstrom and Peters, we held that the claimants' uses rose to the level of an average owner and thus gave notice to the true owner. Unlike Mayo, however, the claimants in Fager-strom and Peters placed physical improvements on the disputed property and staked off the boundaries of their claims. Fagerstrom, 799 P.2d at 307; Peters, 519 P.2d at 828. Furthermore, the claimants' uses were more extensive in those cases. See, e.g., Fagerstrom, 799 P.2d at 307-08 (indices of claim include: boundaries staked off; subsistence base camp use; picnic area with gravel pit, chairs, and barrel stove; placement of camper home; construction of outhouse and fish rack; and planting of trees); Pe ters, 519 P.2d at 828-29 (indices of claim include: physical improvements; placement and replacement of boundary markers; regular and extensive weekend use, as well as living on the property during seal season; construction of improvements to process and smoke fish; boat repair activities; deer hunting and clam digging; and planting a garden). . Belland testified that he was the "major operating officer" of Tenala and that when he stated that the Mayos' use did not bother him, he was speaking as an officer of the corporation. . Tenala argues, however, that the superior court failed to consider a 1922 deed, recorded in 1933, from the City of Fairbanks to William Gertz. Tenala asserts that the recording of this deed was a hostile act that destroyed Mayo's color of title claim. Tenala offers no support for the contention that the recording of a deed is a sufficiently adverse act to destroy a color of title claim. When an argument is cursorily treated and unsupported by citation to legal authority we consider it waived. A.H. v. W.P., 896 P.2d 240, 243 (Alaska 1995) (arguments that pro se appellant inadequately briefed and failed to support with citations to legal authority treated as abandoned); Forquer v. State, 677 P.2d 1236, 1238 n. 2 (Alaska 1984) (appellants waived issues for which they faded to adequately develop both their arguments and the record to enable the court to adequately address them); Wemberg v. Matanuska Elec. Ass'n, 494 P.2d 790, 794 (Alaska 1972) (arguments given only cursory treatment and unsupported by citations to legal authority considered abandoned); Fairview Dev., Inc. v. City of Fairbanks, 475 P.2d 35, 36 (Alaska 1970) (single conclusory paragraph without citation of any authority is not adequate to put an issue before the court), cert, denied, 402 U.S. 901, 91 S.Ct. 1374, 28 L.Ed.2d 642 (1971). Because this asserted destruction of Mayo's color of title claim is the foundation for Tenala's argument that it acquired title to the disputed strip via the doctrine of strips and gores, this related theory of ownership must fail. Additionally, because Mayo acquired title through adverse possession in 1934, Tenala's claim under the quitclaim deeds procured shortly before trial from the heirs of Hosea Ross is also without merit. . Tenala concedes that the Mayos' use of the northern portion of Lot 5D has "an exclusivity of use which could be construed as an exclusivity of possession under the Alaska case law, thus ripening into a fee title rather than a servitude." . On four occasions at trial Baird characterized Fowler's claim to Lot 5D as being the area "to the rear of the coal shed." The first statement by Baird relied upon by Tenala indicates the intended meaning of this phrase. At trial Baird stated, "We are not making any claim under title or adverse possession to any area south of the fenced line and the rear of the coal shed." The fact that Baird qualified the fenced area as being to "the rear of the coal shed" indicates that he was not referring to the south wall of the coal shed, hut rather was informally referring to the area south of the coal shed up to the fence line, i.e., the small shed. Other statements by Baird which Tenala contends indicate a limitation of Fowler's claim to the area to the rear of the coal shed can be interpreted consistently with this understanding. . The disputed strip was created when the area between Lots 5C and 5B was left unconveyed by Hosea Ross. Lot 5D, however, was not left un-conveyed but rather was included in a deed from Hosea Ross to C.M. Housler, a predecessor in interest to Tenala. The disputed strip does not extend southerly into Lot 5D, making the superi- or court's demarcation of the south property line physically impossible. Furthermore, although at one time Fowler asserted a claim to all of Lot 5, Fowler dropped any claim under color of title to that portion of Lot 5D not enclosed by the east/ west and north/south fences. .We note that the western edge of the south property line as set forth by the superior court is also altered due to our holding that Mayo did not acquire a fee simple estate to the eastern fifteen feet of Lot 6. While the south property line of Mayo's fee simple title ends at the western border of Lot 5D, the southern boundary of Mayo's prescriptive easement extends in a westerly direction for fifteen feet.

10344294

Stanley A. BISHOP, Appellant, v. MUNICIPALITY OF ANCHORAGE and Anchorage Telephone Utility, Appellees

Bishop v. Municipality of Anchorage

1995-07-28

No. S-5988

149

161

899 P.2d 149

899

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Stanley A. BISHOP, Appellant, v. MUNICIPALITY OF ANCHORAGE and Anchorage Telephone Utility, Appellees.

Stanley A. BISHOP, Appellant, v. MUNICIPALITY OF ANCHORAGE and Anchorage Telephone Utility, Appellees. No. S-5988. Supreme Court of Alaska. July 28, 1995. Rehearing Denied Aug. 18, 1995. Edgar Paul Boyko, Edgar Paul Boyko and Associates, Anchorage, for appellant. Donald C. Ellis, Kemppel, Huffman and Ginder, P.C., Anchorage, for appellees. Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

7977

49272

OPINION MOORE, Chief Justice. I. INTRODUCTION In this wrongful discharge case, Stanley Bishop appeals the superior court's grant of summary judgment in favor of his employer on all counts of the complaint. We affirm. II. FACTS AND PROCEEDINGS Stanley Bishop worked for fourteen years at the Anchorage Telephone Utility (ATU), which is owned by the Municipality of Anchorage. Bishop was known as a "good employee" with an employment record free of disciplinary problems. On July 30, 1990, however, he was terminated for gross insubordination. He filed suit asserting tort, contract, and constitutional claims against ATU. Bishop claims that the first events relevant to his termination occurred approximately ten months before his dismissal. In late September 1989 Bishop wrote letters to the editors of the Anchorage Daily News and the Anchorage Times. The letters, which were published in early October, contained strong criticisms of the management of ATU and advocated the public sale of the utility. After the publication of the letters, Bishop was summoned to a conference in the office of Dale Merrell, ATU's general manager. With top management personnel and a union steward in attendance, Merrell angrily questioned Bishop regarding the contents of the letter. Merrell was most upset about a passage which appeared to accuse him of misap propriation of ATU resources. Bishop was unapologetic about the views he expressed in the letter, but he did explain that the passage Merrell was most angry about was actually a criticism of past general managers. This seemed to satisfy Merrell somewhat, although he would later comment that he "could have fired" Bishop over the letter. Bishop claims that his work environment thereafter "became quite hostile," and that this hostility was the motivating cause behind his termination. The events immediately preceding Bishop's termination involved a dispute over conditions at Bishop's work station. In September 1989 Bishop assumed new duties at ATU and began working in the repair service center as a testboard technician. Bishop was placed at a four-desk "pod" of computer terminals. In March of 1990, he began to complain that sunlight coming through a nearby window was causing a glare on his screen, resulting in eye irritation, headaches, and an inability to work efficiently. Bishop claims that he asked his foreman for permission to acquire and install, at his own expense, a light-filtering screen for the window. The foreman, David Delaney, testified that he submitted a work order requesting glare reduction. Nothing transpired for several months, however, and in late July Delaney told Bishop that ATU maintenance had decided not to install any tinting. Management personnel proposed several alternatives to window tinting, but none of these resolved the problem to Bishop's satisfaction. Drawing the shades was rejected by Bishop because it did not sufficiently halt the glare, and because it was unacceptable to some of his fellow employees. Bishop also deemed the placement of a filter over the computer screen to be ineffective. Ultimately, management's solution to the problem was for Bishop to change work stations with a co-worker in the same pod. A worker named Larry Taylor purportedly volunteered to switch positions with Bishop, although Bishop claims that Taylor privately expressed his opposition to the switch. Bishop disapproved of the move, stating that it would not solve the problem, but merely shift the nuisance to another employee. On Thursday, July 26, foreman Delaney told Bishop that Delaney "had been told to move" Bishop into Taylor's position. Bishop remained at his station, and complained to the acting shop steward about the problem. On Friday morning, July 27, Bishop was called from his work station to a meeting attended by Delaney; Riley Blair, Delaney's supervisor; Mel Ackerman, the head of the personnel department; and Carla Rehm, an acting shop steward. Blair asked Bishop why he had refused an order to move. Bishop stated that he had been given no formal order to move, and that he would not transfer the glare problem to a co-worker by moving. Blair told Bishop that his job was in jeopardy if he did not move. Delaney and Rehm counselled Bishop to change positions, and Rehm advised Bishop to move and grieve the incident through union procedures. Bishop restated his refusal to move, and the meeting adjourned. At this point Bishop was unsure of what action management would take, but he believed he might be terminated. Bishop then met with Jay Holtan and Marilyn Callahan, who worked in ATU's personnel department. Holtan and Callahan informed Bishop that management indeed intended to terminate Bishop for insubordination. They attempted to persuade Bishop that his refusal to move was unreasonable, and suggested that he seek counselling. Bishop insisted that his only desire was to fix the glare problem and proceed with his work; he denied that he was being unreasonable, and rejected the idea of counselling. The personnel staffers then suggested that Bishop take a week of leave as a "cooling off period." Bishop agreed to this, general manager Dale Merrell signed the appropriate leave forms, and Bishop left the building. On that same day, discharge papers were prepared and signed by Bishop's supervisor, the department head, and Merrell, but they were not presented to Bishop. After leaving work, Bishop contacted Larry Johnson, a friend in a separate unit of ATU who had two years of experience as a union steward. Johnson set up a Monday meeting with general manager Merrell and spoke with aeting shop steward Rehm. Rehm said that the personnel office had told her that Bishop was experiencing "personal problems," that he had taken a week off work to undergo counselling, and that his employment status would be settled when those personal problems were resolved. Johnson told Bishop of this conversation, and Bishop reacted with anger, interpreting the comments as an attempt by ATU to disseminate rumors and smear his character. Bishop immediately called the personnel office and informed Marilyn Callahan and Jay Holtan that rather than allow ATU to spread rumors about his mental health, he would return to work on Monday, and the parties could "finish what they started." A discussion of the subject with Holtan on Sunday did not change Bishop's decision. On Monday Bishop went to Holtan's office. An acting shop steward was summoned to the room, and Mel Ackerman, the personnel director, presented Bishop with a disciplinary action report (DAR). The DAR, which had been signed the previous Friday, stated that Bishop was terminated for gross insubordination — his failure to change work stations. Bishop was asked to sign the DAR-, but refused, writing only a comment which stated that he believed termination to be an excessive punishment for a refusal to move, and denying that (as the DAR stated) he had said in the Friday meeting, "I won't move and you'll have to fire me." Bishop then cleaned out his desk, and left the building. On Monday, July 30, Larry Johnson met with general manager Merrell about Bishop's termination. Johnson argued that Bishop was a fourteen-year employee with an unblemished record, and that he should not be fired over the work station dispute. Merrell said that Bishop's supervisor, Riley Blair, had made the termination decision, and that Merrell refused to intervene. Merrell explained that he had nothing against Bishop, but that he was simply going to "back his supervisor" in the dispute. He then stated that if he had wanted Bishop fired, he could have fired him over the letter-writing incident. On Friday, August 3, Bishop's wife Terry, who also worked at ATU, met with Merrell. She asked him whether anyone was "out to get" her husband. Merrell assured her that this was not the case, and then raised the subject of Bishop's letters to the local newspapers. Merrell explained how angry he had been about the letters and how much trouble Bishop had caused him by writing them. Merrell then commented, "and then there was this," referring to the dispute over Bishop's work station. Merrell stated that lower management personnel had asked him to sign discharge papers for Bishop on Friday the 27th, but that he had refused. Merrell said that instead of signing discharge papers, he had given Bishop a week of leave to reconsider his position. Bishop filed a grievance through the union. In meetings between union officials and ATU managers, however, the parties could come to no agreement. The grievance then went to a union committee vote to decide whether to take the matter to arbitration. A committee of stewards voted unanimously to arbitrate the grievance, but then a second committee convened, and decided not to pursue the matter. Bishop claims that his termination was the final step in a campaign of management harassment which began when he wrote the letters to the editor. Bishop filed suit in April of 1991. He stated seven claims in his complaint: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) wrongful discharge; (4) retaliatory discharge; (5) denial of free speech rights; (6) denial of due process; and (7) intentional infliction of emotional distress. In April 1993 the superior court dismissed Bishop's wrongful discharge claim as repetitious of his contract claims, and granted ATU summary judgment as to the emotional distress claim. In July 1993 the court granted ATU summary judgment as to Bishop's remaining claims. The court later awarded $51,599.47 in attorney's fees and costs to ATU. This appeal followed. III. DISCUSSION We consider Bishop's claims in light of the standard of review recently reiterated in Newton v. Magill, 872 P.2d 1213 (Alaska 1994). This court will uphold summary judgment only if the record presents no genuine issues of material fact and "the moving party was entitled to judgment on the law applicable to the established facts." When the court makes this determination, "[a]ll reasonable inferences must be drawn . in favor of the non-moving party." Id. at 1215 (citations omitted). A. Bishop's Actions Constituted "Just Cause" for Dismissal Bishop admitted in his deposition that he disobeyed direct orders to change his work station and move out of the glare. He contends, however, that ATU's order was unreasonable, and that his refusal to move concerned a trivial matter. From this premise Bishop argues that even if his refusal to change work stations were the true and only reason for his termination, his behavior did not constitute just cause for termination. He therefore asserts that his breach of contract claim should be reinstated. As Bishop recognizes, it is the general rule in Alaska that "when an order given is reasonable and consistent with the contract, the failure to obey it is always a material breach as a matter of law." Central Alaska Broadcasting v. Bracale, 637 P.2d 711, 713 (Alaska 1981). The employment contract between Bishop and ATU was the collective bargaining agreement that was then in place between the ATU and Bishop's union. That contract stated that ATU could "direct its employees in an efficient manner" and could "take reasonable disciplinary action for just cause." There can be no dispute that ATU's order that Bishop change places is consistent with its contractual power to "direct its employees in an efficient manner." The only remaining ground for argument under Bracale concerns the "reasonableness" of the order. Bishop argues that because the simplest solution to the problem was to let him tint the window at his own expense, ATU's approach to the situation was unreasonable, and that his refusal to obey the order did not justify discharge. To support this contention, Bishop has attempted to portray ATU as an irrational bureaucracy beset by turf battles, a place where the maintenance staff refuse to let individual employees solve simple problems, and where managers would rather uproot a four-desk work station than accept the free installation of a sheet of tinted plastic. This argument, however, rests on a misinterpretation of Alaska law. The wisdom of ATU's approach to problem-solving is not a question for this court. Instead, we must rule on whether ATU's specific order to Bishop was reasonable. ATU's behavior in regard to the dispute over the glare may well be characterized as aggravatingly bureaucratic, but in light of the employer's contractual rights to "direct employees in an efficient manner," the decision to order Bishop to change seats cannot be termed an unreasonable solution to his complaints about glare. See, e.g. Bracale, 637 P.2d at 714 (where board of directors had authority over personnel matters, their directive that the general manager should terminate an employee was reasonable as a matter of law, and general manager's failure to do so was cause for his own termination). As a corollary to his main argument, Bishop contends that when a directive from an employer concerns trivial rather than substantial matters, disobedience does not justify discharge. Alaska law, however, does not support this proposition. Bracale, 637 P.2d at 713 n. 6 ("[Insubordination] 'though relating to a trivial matter and though causing no damage, will always justify immediate discharge.' ") (quoting 9 H. Jaeger, Williston on Contracts § 1013B, at 49 (3d ed. 1967)). Of course, if Bishop's insubordination were merely a pretextual reason for his termination, and Bishop was actually fired for some other, illegitimate reason, then his contract claim would have merit. As described below, however, based on the record, we cannot reasonably infer that this is the case. B. The Record Does Not Contain Genuine Issues of Material Fact Tending to Show that Insubordination Was Merely a Pretextual Reason for the Termination Bishop pursues a First Amendment claim, alleging that ATU management did not terminate him because of insubordination, but rather because of his letter writing. He also pursues a retaliatory discharge claim, alleging that he was fired because of his complaints to management and the union about the glare. ATU insists Bishop was terminated because, and only because, he repeatedly failed to obey an order to change work stations. We first consider whether the record contains circumstantial evidence which might conceivably convince a trier of fact that Bishop's letters to the editor led to his termination. A three-part test applies in cases where the plaintiff makes an employment law claim that his or her First Amendment rights have been violated. The plaintiff must show that (1) (s)he engaged in protected activity, and (2) the activity was a "substantial" or "motivating factor" in the termination. This prima facie ease can be rebutted, however, if (3) the employer demonstrates that the plaintiff would have been discharged even if the protected activity had not occurred. Wickwire v. State, 725 P.2d 695, 700 (Alaska 1986). ATU has conceded that Bishop's letters to the editor fall into the category of "protected speech," but argues that Bishop cannot show that the letter-writing incident was a substantial or motivating factor in his termination. Viewing the record in the light most favorable to the non-moving party, the facts most helpful to Bishop can be summarized as follows: (1) Bishop was a fourteen-year employee with an unmarred work record; (2) it had not been ATU's practice to terminate workers for insubordination; employees who were considered insubordinate were given lesser punishments; (3) general manager Merrell raised the letter-writing issue in post-termination meetings with Terry Bishop and Larry Johnson, and exhibited a defensiveness about his behavior in the firing which could be interpreted as the sign of a guilty conscience; and (4) Bishop's termination papers were signed after the Friday morning meeting prior to the "cooling off period," although they were not activated or delivered to him at that time. We find no evidence in the record that would allow a jury to conclude that Merrell's role in Bishop's termination was anything other than a supervisor approving a decision made by lower management. The letter-writing incident that Bishop claims is at the root of his firing took place ten months prior to the termination. Bishop has produced no evidence that management was "out to get" him, and the reasons given by ATU management for Bishop's termination have never been contradictory. Cf. Parker v. Mat-Su Council, 813 P.2d 665, 667-68 (Alaska 1991) (summary judgment in favor of employer inappropriate when supervisor's explanation of employee's discharge differed from reasons given in termination letter). Indeed, Merrell's approval of the "cooling off' period indicates that ATU was willing to retain Bishop even after his termination papers were drawn up. Had Bishop complied with the "cooling off period," and changed work stations, there is no indication that he would have been fired. In sum, we cannot infer from the record in this case that Bishop was fired for any reason other than that offered by ATU. We therefore affirm the order of summary judgment on the First Amendment claim. A review of the numerous depositions in the record reveals that there is nothing to suggest that Bishop's termination was a punishment for complaining about work conditions or for bringing a union representative into the dispute. Bishop's brief often cites to the record in support of the retaliatory dis charge claim, but these record passages actually concern only the letter-writing issue. Additionally, assuming for the sake of argument that Bishop's letter played a role in his termination, it is our view that reasonable jurors could only find that Bishop would have been fired even if the letter had not been written. To reiterate, Bishop was given a reasonable order by his employer. He refused to follow it. He was told that he would be fired if he did not follow the order. He again refused to obey. Bishop was then given a week of leave as a cooling-off period. He declined to accept this leave, and again refused to follow the order. No employer could be expected to continue to employ a worker in the face of such deliberate and repeated insubordination. Bishop was given clear notice of what was required of him and clear notice that he would be fired if he did not do what he was ordered to do. Nonetheless he declined. By this action, Bishop effectively fired himself. We thus conclude that the Municipality has demonstrated that Bishop would have been discharged even if the letter had not been written. On this ground as well, the superior court's summary judgment order as to the retaliatory discharge claim must be affirmed. C. The Record Does Not Support a Claim of Intentional Infliction of Emotional Distress This court evaluates summary judgment on an intentional infliction of emotional distress ("IIED") claim under the standard set out in Richardson v. Fairbanks North Star Borough, 705 P.2d 454, 456 (Alaska 1985): [T]he trial judge should make a threshold determination whether the severity of the emotional distress and the conduct of the offending party warrant a claim of intentional infliction of emotional distress.... The judge's threshold determination on these issues will not be overturned absent an abuse of discretion. Under Alaska law, there are three elements of an IIED claim: (1) the defendant's conduct is extreme and outrageous; (2) the conduct is intentional or reckless; (3) the conduct causes severe emotional distress. King v. Brooks, 788 P.2d 707, 711 (Alaska 1990). Because none of Bishop's other tort or contract claims can survive summary judgment, Bishop has not shown ATU's conduct to be extreme and outrageous; he therefore cannot meet the first prong of the King v. Brooks test. Our analysis need go no further to affirm the superior court's summary judgment on the IIED claim. D. Attorney's Fees Were Improperly Calculated Under the Old Form of Rule 82 The new version of Alaska Civil Rule 82 became effective on July 15, 1993. It "govern[s] all civil actions and proceedings thereafter commenced and so far as just and practicable all proceedings then pending." Alaska R.Civ.P. 98 (1994). Summary judgment was entered for the defendants in this case on July 16, 1993, and ATU filed its motion for attorney's fees on July 29, 1993. Using the old Rule 82, the court awarded ATU fifty percent of its legal fees, for a total of $51,599.47 in fees and costs. Bishop makes three arguments against the award of fees and costs to ATU: (1) he argues that the new version of Rule 82 should be used to determine the proportion of fees to be awarded; (2) he contends that the portion of fees resulting from delays in the trial date should not be awarded, because the delays were not the fault of the plaintiff; (3) he views the hours spent by ATU's attorneys to be excessive in several areas. The issue of excessive hours may be summarily dispensed with, as the trial court did not abuse its discretion in refusing to reduce the award. Integrated Resources Equity Corp. v. Fairbanks North Star Borough, 799 P.2d 295, 304 (Alaska 1990). With regard to the second issue, the trial date delays in this case occurred through the fault of neither party, but rather resulted from an overcrowded court docket. The lower court decided that "[trial continuances] and the need to reasonably refresh trial preparations, are part of the risk that a plaintiff must accept when he brings suit." We agree with the analysis of the trial court. As ATU points out, if fees resulting from delays were granted special status, "the door is opened for attorneys to challenge every added expense that could be attributed to the court and not to the parties." The better view is to treat the fees that resulted from no-fault delays as a "cost of doing business." The final fees issue is whether to apply the old or the new version of Civil Rule 82. We have addressed this issue before in the context of Civil Rule 23: Alaska's Civil Rule 23 was not revised to conform to the 1966 federal revisions until November 15, 1976. While this suit was filed at a time when former Civil Rule 23 was in effect, the new rule was properly applied to it by the trial court inasmuch as no questions of class action procedure were presented to the court until after November 15, 1976, and, under Civil Rule 98, newly promulgated rules govern "so far as just and practicable all proceedings then pending." Nolan v. Sea Airmotive, Inc., 627 P.2d 1035, 1041 n. 3 (Alaska 1981). See also Fermoyle v. State, 638 P.2d 1320, 1322 (Alaska App.1982) (applying new rule of criminal procedure to pending case, under criminal equivalent of Civil Rule 98). Since the instant case was in process when the new Rule 82 went into effect, Rule 98 dictates that the new Rule should govern here, so long as its application would be just and practicable. The lower court declined to apply the new Rule, concluding that it "work[s] a major modification of the parties' rights and expectations," and "[u]nder traditional fairness notions . should enjoy prospective application only." We disagree. Under both the old and the new Rule, the fee awarded is ultimately determined at the discretion of the trial judge. The change worked by the new version of the Rule is merely to provide a set of guidelines to aid the court in making its decision, and to require that variations from the baseline award — here twenty percent — be explained in writing. Applying the new Rule here would in no way be unjust or impinge on "traditional fairness notions." We therefore remand the fees issue to the superior court with the instruction to apply the new version of the Rule. IV. CONCLUSION We AFFIRM the superior court's orders granting ATU summary judgment on all counts of Bishop's complaint. We REMAND the issue of attorney's fees to the trial court for a determination of fees under the new Rule 82. COMPTON, Justice, with whom RABINOWITZ, Justice, joins, dissenting in part. In my view the record discloses the existence of genuine issues of material fact surrounding Anchorage Telephone Utility's (ATU) purported reason for terminating Stanley Bishop. These issues suggest that the professed reason for Bishop's termination was merely a pretext for punishing Bishop for having engaged in constitutionally protected activity. For this reason the superior court erred in granting ATU summary judgment. The judgment of the superior court should be reversed and the case remanded to resolve the factual issues. The court correctly notes that as this is an appeal from a grant of summary judgment, we must apply the standard of review recently reiterated in Newton v. Magill, 872 P.2d 1213 (Alaska 1994). [We] will uphold summary judgment only if the record presents no genuine issues of material fact and 'the moving party is entitled to judgment on the law applicable to the established facts.' When the court makes this determination, '[a]ll reasonable inferences of fact from proffered materials must be drawn against the moving party . and in favor of the non-moving party.' Id. at 1215. (citaitons omitted.) See also United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) ("on summary judgment the inferences to be drawn from the underlying facts . must be viewed in the light most favorable to . the party opposing the motion"). Under this standard, we must reverse and remand the ease for trial if Bishop can establish facts from which it reasonably might be inferred that his termination was in retaliation for exercising rights guaranteed him by the First Amendment to the United States Constitution. Bishop argues that the superior court overlooked evidence which supports his claim that he was terminated for writing letters to the editors of the Anchorage Daily News and The Anchorage Times. When the letters were written in September 1989, there was rancorous and substantial public debate over whether the Municipality of Anchorage (MOA), which owned ATU, should sell ATU to Pacific Telecommunications, Inc. (PTI). In the letters, Bishop criticized MOA Mayor Tom Fink and ATU management. ATU argues that Bishop was terminated because of, and only because of, his insubordination, i.e. his refusal to obey an order to change work stations. The court would be correct in concluding that had Bishop repeatedly refused to obey a direct order, such refusal could amount to insubordination which might constitute just cause for his termination, if there was no question that the refusal was the only reason for Bishop's dismissal. See Opinion Section III, A. However, the existence of issues of fact which support both Bishop's and ATU's allegations make the disposition of this case on summary judgment inappropriate. There are several elements to a wrongful discharge claim in which it is alleged that an employee's termination violated the First Amendment. To make out a prima facie case the employee must show that (1) he or she engaged in a protected activity, and (2) the activity was a substantial or motivating factor in the decision to terminate the employee. The employer can rebut the prima facie case by demonstrating that the employee would have been terminated, even if the protected activity had not occurred. Wick-wire v. State, 725 P.2d 695 (Alaska 1986). ATU does not dispute that Bishop engaged in protected activity. Indeed, ATU concedes that Bishop's letters to the editors qualify as protected speech. However, there are genuine issues of material fact as to the second element of Bishop's proof and ATU's rebuttal. There is support in the record for Bishop's allegation that because of the letter writ- mg incident, ATU General Manager Dale Merrell either wanted him fired, or at least unreasonably refused to intervene in his termination. Bishop's letters provoked an extraordinary response from ATU's management. Their publication prompted a meeting in General Manager Merrell's office, apparently called on his order. The meeting was attended not only by Bishop, but also by Riley Blair, Frank Biondi, Mel Ackerman, and Mike Bowman, Bishop's shop steward. Bishop was informed that Merrell had gotten numerous calls about the letters, some from "the Hill Building," or "downtown," which apparently was a reference to a call from Mayor Fink himself. Bishop was asked, or told, to explain himself and the letters, and was told by Merrell to show Merrell any future letters before they were sent to newspapers. Various participants in this meeting testified that Merrell had felt that the letters were directed at him and were indictments of him personally. Although Bishop's letters had been published almost ten months prior to his termination, Merrell demonstrated a concern over the letters even after Bishop's termination. Following the termination, Merrell allegedly made unsolicited references to the letters in meetings with Terry Bishop, Bishop's wife, and Larry Johnson, a friend and fellow employee of Bishop's who had been a shop steward. As this court paraphrases the record, Merrell stated to Johnson that "if he [Merrell] had wanted Bishop fired, he could have fired him over the letter-writing incident," and explained to Terry Bishop "how angry he [Merrell] had been about the letter, how much trouble Bishop had caused him by writing it, then commented, 'and then there was this,' referring to the dispute over Bishop's work station." In addition to Merrell's comments about the letters, Merrell allegedly told Terry Bishop that he had refused to sign discharge papers the previous Friday, July 27, when asked by his subordinates to do so. This statement is patently false. Merrell in fact did sign discharge papers that day, allegedly at the request of Blair and other subordinates. Nevertheless, he told Terry Bishop that instead of signing discharge papers, he had given Bishop a week to reconsider his position. Indeed Merrell had approved a week's leave, but only after he had signed discharge papers. Merrell's preoccupation with the letters and his less than truthful statements to Terry Bishop constitute evidence from which it reasonably might be inferred that Bishop's letters to the editors were a substantial or motivating factor in Merrell's decisions regarding Bishop's termination. Even Blair, the person who initiated and signed Bishop's termination papers, seems to have questioned the whole situation. Terry Bishop alleges that when she asked Blair whether there was a conspiracy which led to Bishop's termination, he replied that he "was wondering the same thing." There are also issues of material fact regarding ATU's required rebuttal of Bishop's prima facie ease. The record contains evidence from which it reasonably might be inferred that Bishop would not have been fired but for the letters. Keeping in mind that the facts must be viewed in light of all of the circumstances surrounding Bishop's termination, which necessarily include circumstances surrounding publication of the letters and the meeting that occurred in the immediate aftermath of that protected activity. The circumstances surrounding Bishop's termination look something like the following: Bishop had been employed by ATU for fourteen years, during which time he had presented no disciplinary problems. ATU did not terminate employees for insubordination, but instead meted out lesser sanctions. ATU General Manager Merrell had been angered over Bishop's "letter[s] to the Editor" which had been published in two Anchorage newspapers, and had called an extraordinary meeting with Bishop and Bishop's superiors in the aftermath of the letters. After Bishop had been terminated, Merrell apparently had no reservations about telling falsehoods to or misleading Terry Bishop about his own role in Bishop's termination. Merrell had continuing and unresolved anger over Bishop's letters, as well as a lasting conviction that Bishop could have been terminated for writing the letters. One of his own subordinates questioned whether there was a conspiracy to terminate Bishop. Merrell, as ATU General Manager, was in a position of authority over all the other players. Last, and perhaps most importantly, Merrell had the final authority over whether Bishop was to be disciplined, and what that punishment was to be. All of this reasonably might give rise to the inference that Bishop was terminated for writing the letters. A trier of fact reasonably might conclude that but for the protected activity, Bishop would not have been terminated, or would have received a sanction other than termination. As Newton requires that we draw all reasonable inferences in favor of the non-moving party, Bishop, we must infer that Bishop's termination over the work station change order was pretextual, and that Bishop's protected activity was a motivating or substantial factor in his termination. See Newton, 872 P.2d at 1215. Underlying this court's decision is a weighing and balancing of evidence, and reasonable inferences which might be drawn from that evidence. Some of this evidence points to Bishop's exercise of constitutionally protected activity as a substantial or motivating factor in his termination. Other of this evidence weighs in favor of ATU's assertion that it was not, or even if it was, that Bishop would have been terminated over the work station change order anyway. Arguably the court may reasonably conclude that the weight of the evidence and inferences favors ATU. However, that weighing is an exercise that goes beyond the court's standard of review of a grant of summary judgment. . Bishop also sued his union, the International Brotherhood of Electrical Workers, for failing to take his discharge to arbitration. The claim against the union, however, was eventually voluntarily dismissed. . An order to change positions with one's coworker would certainly be unreasonable if the problem complained-of involved a threat to worker safety. See, e.g., Wheeler v. Caterpillar Tractor Co., 108 Ill.2d 502, 92 Ill.Dec. 561, 485 N.E.2d 372 (1985), cert. denied, 475 U.S. 1122, 106 S.Ct. 1641, 90 L.Ed.2d 187 (1986) (employee wrongfully terminated after refusing to operate a unit containing live radioactive cobalt in violation of federal regulations). In the case of glare, however, this concern does not seem to be present. Bishop has offered no medical evidence that the glare put him at risk of injury. . The old version of the Ride directed that "[sjhould no recovery be had, attorney's fees may be fixed by the court in its discretion in a reasonable amount." Alaska R.Civ.P. 82 (1992). The new version of the Rule provides that a prevailing party who recovers no money judgment in a case without trial shall be awarded twenty percent of its fees, but that this amount may vary "if, based on the factors listed [in 82(b)(3) ], the court determines a variation is warranted." Alaska R.Civ.P. 82(b)(3) (1994). . The superior court granted ATU's motion to dismiss the wrongful discharge claim, agreeing with the defendants that this claim was repetitive of the First Amendment and retaliatory discharge claims discussed above. In his brief, Bishop nowhere addresses the issue of repetition. Accordingly, this issue is waived. Wimm & Cash Architects v. Cash, 837 P.2d 692, 713-14 (Alaska 1992). Bishop's complaint also claimed a breach of a covenant of good faith and fair dealing. Bishop does not discuss the covenant in his "Statement of Issues," and his brief contains a single, con-clusory sentence on the topic, with no cited authority. He has therefore waived this issue. Id, The remainder of Bishop's "Issues on Appeal" either state no legal claim or are not briefed. . Freedom of religion, of speech, of the press. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for redress of grievances. U.S. CONST, amend. I. . Bishop's termination directly followed a dispute with ATU related to glare on his computer work screen. Bishop asked David Delaney, his foreman, to contact Building Services, also referred to as Building Maintenance or Facility Maintenance, and request that they correct the problem. Delaney claims to have called the "Building Maintenance people" and requested that they attend to the problem. After several months of silence, Bishop again complained. In early June Delaney submitted a work order to Building Maintenance specifically requesting the they "[i]nstall sunscreen on windows to reduce glare on CRTs." Under "Priority" Delaney checked "7 to 14 days." Bishop also complained to ATU Safety Coordinator Herbert E. Everett, who verified the glare: "And what it was, was the light was shining through the edge of the window onto the screen itself . Well, I thought that, yes, there was definitely sunlight coming through — around the edge of the shades, ." Everett thought "[i]t was a problem that needed to be addressed...." He turned the matter over to Bud Murphy, Building Maintenance Supervisor, "to look into it and see what they could do about it . they ought to . eliminate the sunlight shining through the window on Mr. Bishop's screen." When Everett learned from Bishop that nothing had been done, there was a meeting at Bishop's work station at which "they [Building Maintenance] agreed that yes, there was sunlight coming in . and that we needed to do something about it." Building Maintenance inexplicably refused to do anything about the glare. Bishop offered to place visqueen over the window at his own expense. Supervisors over Bishop (Delaney, Riley Blair, Repair Service Supervisor, and Frank Biondi, Director of Utility Services) countered Bishop's proposed solution with several of their own. (Building Maintenance, apparently not under the jurisdiction of Bishop's immediate supervisors, was no longer a player.) One suggested solution was that Bishop change work stations with a fellow employee. According to Blair, this suggestion and the order to implement it came from Biondi, who was responsible directly to ATU General Manager Dale Merrell. Word was passed down to Delaney to move Bishop. As the following footnote documents, just what happened after that is a matter of dispute. However, there is no dispute that there was glare on Bishop's work screen. There is no dispute that the glare was a problem for Bishop. There is no dispute that Delaney and Everett separately requested Building Maintenance to remove the glare from Bishop's work screen, and that Building Maintenance refused to do so. Since Bishop was willing to buy the visqueen and install it himself, ATU does not argue, nor could it, that the cost to ATU was too great. ATU does not argue that Bishop's proposed solution would not have cured the problem. ATU does not ar gue that Bishop's reasons for rejecting alternative solutions were not reasonable. However, ATU does argue that Bishop's refusal to change work stations constituted "gross insubordination." . The court's statement that Bishop was repeatedly insubordinate is not indisputably established by the record. The accounts of what transpired around the time of Bishop's termination vary dramatically and give rise to a variety of inferences. For example, Bishop and Delaney disagree on whether and when Delaney explicitly ordered Bishop to move. On Thursday, July 26, Delaney discussed with Bishop changing work stations. According to Bishop, Delaney only relayed to Bishop that he had been ordered to move Bishop: "He did not tell me ever directly, Stan, I want you effectively now, tomorrow, the day after or any other time to switch positions with Larry Taylor." This was not said at Bishop's work station, or even in the office, but rather when the two were returning from a personal errand. Delaney admits that he may have mentioned the move when he and Bishop were walking across the ATU parking lot returning from the errand. However, Delaney does claim that the next morning, Friday, July 27, he told Bishop to change work stations, and that Bishop refused. Bishop concedes that "I guess at this point I was refusing to move. I had not moved. I honestly expected someone to come in Friday morning [July 27] and tell me, Stan, take a seat over here. And it never really happened." There are at least four different accounts of what happened that Friday morning, July 27. According to Bishop, when Delaney came in that morning and saw Bishop at his usual work station, Delaney may have said something about Bishop moving work stations. However, Bishop does not recall that Riley Blair, Delaney's supervisor, was present, nor does he remember saying he would not move and that they would have to fire him first. Delaney testified when asked what happened that he "[t]old him that he was suppose to change work stations with Larry. I told him to go ahead and move that first thing in the morning_ He said he wasn't going to do it." Delaney says he then called Blair to tell him that Bishop had not moved. Although this testimony is in response to a question about what happened that Friday morning, it actually sounds like it is describing what happened the afternoon before. In a third account Larry Taylor, a fellow employee who worked next to Bishop, claims that on Friday morning Bishop was told to move during a confrontation with both Delaney and Blair, which took place in the Repair Service Bureau. He alleges that Bishop said "he wasn't going to move" with both Delaney and Blair standing there. Conversely, Blair does not recall discussing the move with Bishop until later that morning in a meeting at which Larry Taylor was not present. At a hastily called meeting later that Friday morning, Bishop told Mel Ackerman that Delaney had never ordered him to move. Ackerman, described variously by the players as "our labor relations person," "the personnel director or whatever," the person "in charge of Human Resources," and "the head of Labor Relations," responded: "well, it doesn't make any difference because we're telling you right now to move." Bishop refused to move. Then, according to Carla Rehm, acting shop steward, "Mel Acker-man then spoke up and he just went over the whole scenario again, making sure that everybody was clear on what happened." Management, and Rehm, wanted to be certain that Bishop knew what he was doing, and that what he was doing might put his job in jeopardy. Bishop acknowledged that he understood. Viewing the various versions of this episode, in a light most favorable to Bishop, the most that can be said is that Bishop simply stood by his initial refusal to move. Whether Bishop's behavior constitutes a "repeated" refusal to obey an order lies in the eye of the beholder, usually called a fact finder. What is clear is that no one ever admits to having told Bishop to move or be fired. .The court's treatment of the time lapse between Bishop's letters and Merrell's complicity in Bishop's termination highlights the problem of disposing of this case on summary judgment. In an affidavit, Merrell remarks that "[a]fter the meeting with Stan [regarding the newspaper articles], I put the matter behind me. I am not the type to carry a grudge, and cannot recall that we ever discussed the letter again." Yet Terry Bishop and Larry Johnson both stated that Merrell voluntarily alluded to the newspaper articles when they discussed Bishop's termination with him, ten months after the letters had been published. Merrell does not recall mentioning the letters to Terry Bishop. However, he does not deny that he did, and in fact claims to think "very highly" of Terry Bishop. He does not believe she would lie. He does not dispute Johnson's statement. Although the court acknowledges Merrell's defensiveness concerning the letters, the court emphasizes the time lapse in "find[ing] no evidence in the record that would allow a jury to conclude that Merrell's role in Bishop's termination was anything but a supervisor approving a decision made by lower management." However, regardless of the time lapse, the record contains evidence which give rise to issues of material fact. The record reveals that Merrell was defensive about the letters and associated the letters with Bishop's plight. A reasonable trier of fact might have difficulty reconciling Merrell's forgive and forget self-characterization with his self-generated defensiveness over the articles, and his tying together the articles and the dispute over the work stations, i.e. "then there was this." . Merrell's statement that he could have fired Bishop over the letter writing incident is patently incorrect. ATU concedes that Bishop was engaged constitutionally protected activity when he wrote the letters. However, ten months later the letters are still on Merrell's mind, and he was still in denial regarding Bishop's right to voice his opinion through the letters. . The record demonstrates that two members of the personnel staff, Jay Holtan and Marilyn Callahan, then an employee relations representative, intervened on Bishop's behalf. According to Callahan, "Jay and I happen to like [Bishop]." They suggested to Bishop that he take a week's leave of absence as a "cooling off period," a recommendation to which Bishop agreed. They then took the suggestion to Merrell, who apparently agreed also, as he signed appropriate leave papers that day. However at the time he signed the leave papers he had already signed Bishop's termination papers. The court claims that had Bishop complied with the "cooling off" period, he would never have been terminated. This is not supported by the record. The discharge papers necessary for terminating Bishop had been completed, including MerrelTs signature, before Merrell signed the leave papers. It is unclear what was motivating Merrell to give Bishop the leave of absence. Merrell claims that he signed the termination papers because he wanted to support his subordinate's decision to terminate Bishop. Yet this same subordinate, Riley Blair, testified that he was angered by MerrelTs decision to sign the leave papers because he felt like management had "left [him] out on a limb." A reasonable trier of fact might find it difficult to harmonize MerrelTs assertion that he was just supporting his subordinate's decision to terminate Bishop with going over that subordinates head and declining to terminate Bishop, unless one or both of MerrelTs assertions are false. However, the record does establish that after Bishop left the building, starting his "cooling off period," Larry Johnson talked with Bishop a second time. Johnson relayed to Bishop information he had received from Carla Rehm, who told him that word was going around that Bishop was being given time off because he was going through a mid-life crisis, had personal problems, or words conveying that notion. The record suggests that this word emanated from Frank Biondi's office. It must be remembered that Biondi had been present at the post-publication meeting in General Manager MerrelTs office. Biondi, according to Blair, gave the order that Bishop change work stations. Biondi did not ever delve into the merits of Bishop's complaint or his proposed solution. Biondi was directly responsible to Merrell. Bishop was very upset that his credibility was being undermined by such statements from management, and abandoned the "cooling off period." There is evidence that Bishop felt that he was being set up to be terminated. The record could give rise to this inference, considering that it contains a discrepancy as to whether Bishop had been fired, was suspended, or was on a leave of absence. A trier of fact could conclude, as does the court, that Bishop had not been terminated and would not have been had he complied with the leave of absence. However, a trier of fact could also conclude that Bishop effectively was terminated before the leave papers were signed and that the leave was merely for appearance sake. . ATU incorrectly argues that summary judgment is appropriate even though there is a question as to whether Bishop's letters to the editor were a motivating factor in his termination. ATU contends that summary judgment is appropriate because it established that Bishop would have been discharged notwithstanding the protected activity. This argument is merely the other side of the inquiry into whether Bishop's protected activity was a motivating factor in his dismissal. If Bishop's proffered evidence is sufficient to survive summary judgment with regard to the "motivating factor" criteria, that evidence must also suffice to prevent ATU from rebutting Bishop's pri-ma facie case in the context of a motion for summary judgment.

10591847

FISCHBACK & MOORE OF ALASKA, INC., an Alaska corporation, Appellant, v. Frank LYNN, Appellee

Fischback & Moore of Alaska, Inc. v. Lynn

1967-08-14

No. 818

909

912

430 P.2d 909

430

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:25:59.637943+00:00

CAP

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

FISCHBACK & MOORE OF ALASKA, INC., an Alaska corporation, Appellant, v. Frank LYNN, Appellee.

FISCHBACK & MOORE OF ALASKA, INC., an Alaska corporation, Appellant, v. Frank LYNN, Appellee. No. 818. Supreme Court of Alaska. Aug. 14, 1967. Robert C. Erwin, of Hughes, Thorsness & Lowe, Anchorage, for appellant. Peter LaBate and William T. Plummer, Anchorage, for appellee.

2094

12694

OPINION Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ. RABINOWITZ, Justice. Resolution of the central issues in this' appeal concerns interpretation of the modification-of-awards section of the Alaska Workmen's Compensation Act. On the facts appearing in the record, we conclude that the case must be remanded to the Alaska Workmen's Compensation Board for more explicit findings of fact. A detailed history of the initial stages' of the case can he found in Fischback & Moore of Alaska, Inc. v. Lynn. A recounting of these prior proceedings is necessary to clarify the procedural context out of which this second appeal arose. On October 12, 1962, appellee sustained an injury arising out of and in the course of his employment. On March 9, 1964, the Board denied appellee's application for permanent partial disability. In its findings of fact, the Board, in part, found that "the applicant's hand and arm is not disabled in any extent which can be related to the industrial injury." In its conclusions of law, the Board, in part, determined "That the applicant has no disability of his right hand and right arm which is related to the industrial injury." Appellee then appealed the Board's decision to the superior court. While the matter was pending before the superior court, the Board issued an ex parte order requiring appellant to pay the costs of additional neurosurgical and orthopedic examinations of appellee. Appellant then moved in the superior court to enjoin the Board from carrying out its ex parte order and also sought af-firmance of the Board's decision of March 9, 1964, which denied appellee compensation. The superior court did not grant appellant' any relief but did remand the matter to the Board for the "purpose of taking additional testimony after the physical examinations have been completed which the Board has ordered." In Fischback & Moore of Alaska Inc. v. Lynn, we reversed the superior court's remand. After issuance of our mandate, the superior court affirmed the March 9, 1964, decision of the Board. Appellee did not appeal the superior court's affirmance. Appellant then moved the Board to modify its ex parte order directing further neurosurgical and orthopedic examinations. Additional medical reports, as well as the testimony of appellee, were submitted to the Board. The Board then rendered its second decision in the case. In its findings of fact, the Board determined that appel-lee's right hand was permanently disabled. In regard to its prior decision in which it had determined that appellee was not permanently disabled, the Board found that it had made a mistake of fact, and further, that a change in condition had occurred in appellee's right hand. On the basis of the foregoing, the Board awarded appellee $7,-S00 for total permanent disability to his right hand. The matter was then appealed to the superior court where the Board's second decision was upheld. Appellant now appeals to this court from the superior court's affirmance of the Board's award of compensation to appellee. Under AS 23.30.130(a) of Alaska Workmen's Compensation Act, the Board is authorized to modify a decision it has made under the following circumstances: Upon its own initiative, or upon the application of any party in interest on the ground of a change in conditions or because of a mistake in its determination of a fact, the board may, 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 § 110 of this chapter. In accordance with § 110 of this chapter the board may ussue a new compensation order which terminates, continues, reinstates, increases, or decreases the compensation, or award compensation. Appellant attacks the second decision of the Board on grounds there was no evidence to show a mistake of fact or change of condition which would give the Board jurisdiction to modify its initial award. We do not reach this question because of our conclusion as to the inadequacy of the Board's findings of fact in regard to the statutory prerequisites for modification of an award, i. e., mistake of fact or change of condition. In our opinion Jarka Corp. v. Hughes, which involved construction of AS 23.30.130(a)'s equivalent under the federal Longshoremen's & Harbor Workers' Compensation Act, is pertinent here. In regard to the mistake-of-fact basis for modification of a previous award, it was there held that: In order to modify a previous order on the theory of mistake, a new order should make it clear that it is doing so, should review the evidence of the first hearing and should indicate in what respect the first order was mistaken — whether in the inaccuracy of the evidence, in the im propriety of the inferences drawn from it, or, as may he true in the present case, because of the impossibility of detecting the existence of the particular condition at the time of the earlier order. We adopt the Jarka test and in so doing conclude that the Board's findings in respect to mistake of fact fall short of the criteria there enunciated. Essentially all that the findings in this regard reflect is the Board's opinion that a mistake of fact had been made in determining appellee did not sustain any permanent disability to his right hand. We are left uninformed as to the precise nature of the mistake which was made by the Board. We, therefore, conclude that the case should be remanded in order to afford-the Board the opportunity of entering findings which meet the Jarka standards as to mistake of fact. We reach a similar result as to the Board's findings pertaining to change of condition. The Board's findings do not disclose in what respect a "change in conditions" occurred since the first hearing which would support its award to appellee for permanent partial disability. The Board should briefly indicate the evidence it relied upon in determining that a change in conditions has occurred and further describe as precisely as practical the nature of the changed conditions. As to both the mistake-of-fact and the change-of-conditions grounds, we are of the opinion that it will assist resolution of this litigation if the Board, upon remand, indicates whether or not it determined that its initial analysis of the causation issue was erroneous. The case is remanded to the superior court with directions to remand to the Alaska Workmen's Compensation Board in accordance with the foregoing. . 407 P.2d 174 (Alaska 1965). . After his injury appellee had received medical treatment and temporary total disabihty compensation from appellant pursuant to our compensation act. . 407 P.2d at 179. . In that opinion we also sustained the superior court's denial of injunctive relief to appellant and reversed as to the superior court's refusal to rule on the merits of appellant's motion for summary judgment which sought affirmance of the March 9, 1964, decision of the Board. . The superior court's order of affirmance was entered on November 15, 1965. . The precise language used in the findings reads: "[T]he applicant has a full permanent disability to his right hand." . In regard to mistake of fact, the Board found: [T]hat a mistake in fact was made wherein the Board denied permanent disability to tbe right hand on January 23, 1964 and in fact, there was at the time of said hearing an 80 per cent permanent disability and as a result of the passage of time and the injuries received by the applicant, said permanent disability to the right hand is now 100 per cent. . In its pertinent findings, the Board stated: [T]he evidence shows that a change in condition has occurred in the applicant's right hand in that the extent of permanent disability of said right hand is greater now than it was at the time of the previous hearing of this case, namely, January 23, 1964. . In its compensation order, the Board also awarded $2,125 in attorney's fees. . Enforcement of the Board's second order, pending appeal to this court, was stayed by the superior court. . This provision of the Alaska Workmen's Compensation Act is substantially the same as 33 U.S.C. § 922 (1964) of the Longshoremen's & Harbor Workers' Compensation Act. As to the purpose of this type of provision, Professor Larson writes: In almost all states, some kind of provision is made for reopening and modifying awards. This provision is a recognition of the obvious fact that, no matter how competent a commission's diagnosis of claimant's condition and earning prospects at the time of hearing may be, that condition may later change markedly for the worse, or may improve, or may even clear up altogether. Under the typical award in the form of periodic payments during a specified maximum period or during disability, the objectives of the legislation are best accomplished if the commission can increase, decrease, revive or terminate payments to correspond to claimant's changed condition. 2 Larson, Workmen's Compensation § 81.10 (1961). . Appellant further attacks the Board's second decision on the grounds that there was no substantial evidence to support the Board's findings pertaining to change of condition and mistake of fact. In reviewing original decisions of the Board, we have adopted the substantial evidence test. In Aleutian Homes v. Fischer, 418 P.2d 769, 776 (Alaska 1966) (footnote omitted), we said: Our task is to decide whether, in light of the whole record, there is substantial evidence to support the Board's findings that appellee's disability was not compensable. In Thornton v. Alaska Workmen's Compensation Bd., 411 P.2d 209, 210 (Alaska 1966), it is stated that substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Accord, Morrison-Knudsen Co. v. Vereen, 414 P.2d 536, 542 (Alaska 1966). . 299 F.2d 534 (2d Cir. 1962). . Id. at 537. Accord, Pistorio v. Einbinder, 122 U.S.App.D.C. 39, 351 F.2d 204, 20.7 (1965). We approve of the following statement which was made by the court in the Jarka case at 536 of 299 F.2d: ISTor would the Deputy Commissioner's order be invalid simply because it failed to state explicitly whether there had been a change in conditions or mistake, so long as the findings of fact disclosed the theory of the new order and it was supported by substantial evidence. Bethlehem Shipbuilding Corp. v. Cardillo, 1 Cir., 1939, 102 F.2d 299, cert. denied 307 U.S. 645, 59 S.Ct. 1042, 83 L.Ed. 1525. . Upon remand we believe that Hall v. Seaboard Maritime Corp., 104 So.2d 384, 387 (Fla.App.1958) (footnotes omitted), will be of assistance to the Board. In construing a provision of Florida's compensation act similar to AS 23.30.130(a) and to 33 U.S.C. § 922 of the Longshoremen's & Harbor Workers' Compensation Act, the court said: The federal Act does not permit reopening a cause when it appears that the commission has given full effect and consideration to all the evidence and all that had occurred was that an additional witness had been subsequently offered whose testimony related to issues. of fact previously adjudicated and merely furnished the basis for a higher award. Further, while new evidence may be fairly introduced in a proceeding to reopen on the ground of a mistake in a determination of fact, and this new evidence need not be 'newly discovered', it is equally plain that the statute means something more than that the commissioner may change his mind whenever he pleases, and either on the same evidence or new evidence, make a new award. See Dixon v. Bruce Constr. Corp., 160 So. 2d 116, 118 (Fla.1963). . In Jarka Corp. v. Hughes, 299 F.2d 534, 536 (2d Cir. 1962), the court said that "Change in condition necessarily implies a change from something previously existing. In tills context, it must refer to a change from the condition at the time of the award which is being modified." . More precisely, whether the Board is still in accord with its initial conclusion of law to the effect that the disability to appellee's right hand was not connected to the industrial accident in question. Such a determination should clarify the nature of the mistake in fact relied upon under AS 23.30.130(a). In view of our disposition, we deem it inappropriate to make any comment upon appellant's res judicata contentions.

10373301

BIG K GROCERY and Alaska National Insurance Co., Petitioners, v. Patsy GIBSON and Industrial Indemnity, Respondents

Big K Grocery v. Gibson

1992-09-04

No. S-4521

941

943

836 P.2d 941

836

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

BIG K GROCERY and Alaska National Insurance Co., Petitioners, v. Patsy GIBSON and Industrial Indemnity, Respondents.

BIG K GROCERY and Alaska National Insurance Co., Petitioners, v. Patsy GIBSON and Industrial Indemnity, Respondents. No. S-4521. Supreme Court of Alaska. Sept. 4, 1992. Robert J. McLaughlin, Faulkner, Ban-field, Doogan & Holmes, Seattle, for petitioners. Joseph A. Kalamarides, Kalamarides & MacMillan, Anchorage, for respondent Gibson. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

710

4595

OPINION MATTHEWS, Justice. In this workers' compensation case, the Alaska Workers' Compensation Board (the board) concluded that Patsy Gibson had not proven that her employment with Big K Grocery from 1983 until 1988 was a substantial factor in bringing about her present disability. Gibson appealed to the superior court which initially affirmed the board. However, after reviewing our recently issued decision in Grainger v. Alaska Workers' Compensation Board, 805 P.2d 976 (Alaska 1991), the superior court vacated its initial decision and reversed the board. We granted Big K's petition for review from this decision and reverse. The critical testimony presented before the board was that of Doctor Gerald Keane. He testified that it was probable that Gibson's current symptoms were the result of a 1980 operation which in turn was caused by a 1978 accident However, he could not preclude the possibility that Gibson's work for Big K between 1985 and 1988 accelerated her pre-existing condition. . The language relied on by the superior court from Grainger is a formulation as to how an employer may rebut the presumption of compensability. We stated in Grainger: Once the presumption arises, an employer can overcome it by presenting substantial evidence that either (1) provides an alternative explanation which, if accepted, would exclude work related factors as a substantial cause of the disability; or (2) directly eliminates any reasonable possibility that employment was a factor in causing the disability. Id. at 977 (footnote omitted). As authority Grainger cited Fireman's Fund American Insurance Companies v. Gomes, 544 P.2d 1013, 1016 (Alaska 1976) and Veco, Inc. v. Wolfer, 693 P.2d 865, 872 n. 9 (Alaska 1985). In Wolfer the rebuttal methods were expressed as follows: "A party may overcome the presumption of compensability either by presenting affirmative evidence that the injury is not work-connected or by eliminating all possibilities that the injury was work-connected." 693 P.2d at 872. Similarly, Gomes expressed the first of the alternative methods in terms of production of "affirmative evidence" indicating that the injury or death was not work connected. 544 P.2d at 1016. It has always been possible to rebut the presumption of compensability by presenting a qualified expert who testifies that, in his or her opinion, the claimant's work was probably not a substantial cause of the disability. See, e.g., Burgess Constr. Co. v. Smallwood, 698 P.2d 1206, 1209, 1211 (Alaska 1985) (holding that employer rebutted presumption where a medical expert testified that although there was a possibility that the employee's work aggravated his renal failure, the renal failure was probably the natural result of a progressive disease); Beylund v. Matanuska Valley Farmers Coop. Ass'n, 391 P.2d 176, 177 (Alaska 1964) (holding that employer rebutted presumption when a medical expert testified that it was improbable that the employee's fall at work aggravated a preexisting brain disease, even though it was impossible to completely rule out the possibility). Using the formulation of Gomes and Wolfer, such testimony is affirmative evidence that an injury is not work connected. In the perhaps less clear phraseology of Grainger, it is an alternative explanation which, if accepted, excludes work-relat ed factors as a substantial cause of the injury. For these reasons we conclude that the superior court erred and that the board's decision was supported by substantial evidence. REVERSED and REMANDED to the superior court for further proceedings consistent with this opinion. . Dr. Keane was asked: "Doctor, can you preclude the possibility that her work between 1985 and 1988 caused an acceleration of her preexisting condition?" He answered: "I would say that I could not preclude the possibility, but that the probability is — the strong probability is that it is the result of the other process as I mentioned earlier. As to whether there is some possibility, I would say that that is the case, yes." . AS 23.30.120(a)(1) provides that in the absence of substantial evidence to the contrary, the law presumes that the employee's disability is work-related.

10372658

Dale BAKER, Appellant/Cross-Appellee, v. REED-DOWD CO., and Aetna Casualty & Surety Company, Appellees/Cross-Appellants

Baker v. Reed-Dowd Co.

1992-05-22

Nos. S-4393, S-4426

916

921

836 P.2d 916

836

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Dale BAKER, Appellant/Cross-Appellee, v. REED-DOWD CO., and Aetna Casualty & Surety Company, Appellees/Cross-Appellants.

Dale BAKER, Appellant/Cross-Appellee, v. REED-DOWD CO., and Aetna Casualty & Surety Company, Appellees/Cross-Appellants. Nos. S-4393, S-4426. Supreme Court of Alaska. May 22, 1992. Dennis P. James, Anchorage, for appellant/ cross-appellee. Allan J. Olson, Deidre D. Ford, Staley, DeLisio, Cook & Sherry, Inc., Anchorage, for appellees/cross-appellants. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

2514

15830

OPINION MATTHEWS, Justice. I. INTRODUCTION Appellant/cross-appellee, Dale Baker, was injured while working for appel-lee/cross-appellant, Reed-Dowd Co. Baker applied to the Alaska Workers' Compensation Board for workers' compensation benefits. The Board awarded some, but not all, of the benefits that Baker sought. Both parties appealed the Board's award to the superior court. The superior court affirmed. Both parties appeal the superior court's decision. We affirm in part and reverse in part. The principal issue presented by this appeal is whether the record contains substantial evidence that Baker's disability ended as of February 11, 1989. We hold that it does not. II. FACTS In April 1986 Baker injured his right shoulder when he fell from a pickup truck while working for Reed-Dowd in Alaska. Reed-Dowd provided workers' compensation benefits until March 10, 1987, when one of Baker's doctors, Dr. Jones, "released" Baker to return to work. Shortly after the April 1986 accident, Baker was examined by Dr. Voke. On June 18, 1986, Dr. Voke ordered an arthro-gram which indicated that Baker had a partial tear in his right rotator cuff. Shortly thereafter, Baker stopped working and moved to Virginia. In Virginia, Baker was examined by Dr. Jones. On December 15, 1986, Dr. Jones operated on Baker's right shoulder to repair the rotator cuff. The operation revealed that Baker's right rotator cuff had a partial tear. Dr. Jones did not repair the tear. In March 1987 Baker again underwent an arthro-gram and was examined again by Dr. Jones. Dr. Jones opined "there was no sign of rotator cuff tear." Dr. Jones believed that Baker was physically capable of returning to work as of March 10, 1987. In October 1987 Baker was examined by Dr. Tegtmeyer and Dr. Stamp. Dr. Tegt-meyer performed an arthrogram which indicated that Baker had a partial tear in his right rotator cuff. In January 1988 Baker was examined by Dr. Wang. In February 1988 Dr. Wang operated on Baker's right shoulder and repaired a partial rotator cuff tear. Dr. Wang could not determine when Baker suffered the tear. In other words, Dr. Wang could not determine whether the tear was the one caused by the 1986 work-related accident or whether it had occurred after that accident. In August 1988 Baker was examined by Dr. Morris. In deposition, Dr. Morris opined that patients with an injury of the type and size of Baker's rotator cuff tear become medically stable within one year after surgery. However, Dr. Morris testified that he could not estimate what Baker's physical capacities would be when he became medically stable. In April 1989 Baker was again examined by Dr. Wang. At that time, Dr. Wang found that Baker was medically stable. However, Dr. Wang noted that Baker still suffered from physical impairment. Specifically, Dr. Wang noted that Baker could raise his right arm only ninety degrees before experiencing pain and that Baker's right arm was thirty to forty percent weaker than his left arm. Dr. Wang opined that as of April 11, 1989, Baker could not perform any work requiring him to lift more than fifty pounds or climb a scaffold using his right arm. Dr. Wang characterized Baker's degree of physical recovery as between fair and good. Baker applied to the Board for workers' compensation benefits. Baker sought temporary total disability (TTD) benefits, medical benefits, transportation costs, compensation rate adjustment, interest, a vocational rehabilitation evaluation, and attorney's fees and costs. On February 1, 1989, the Board issued a decision. On February 15, 1989, the Board vacated its February 1 decision, ordered further discovery and required Baker to be examined by Dr. Pier-ron. In response to Reed-Dowd's interrogatories, Dr. Pierron indicated that he considered Baker medically stable if Baker underwent no additional surgery. On June 21, 1989, the Board issued its final decision. The Board awarded Baker: 1. TTD benefits from March 11, 1987 through February 11, 1989; 2. A compensation rate utilizing earnings of $68,279 for 1984 and $82,876 for 1985; 3. Interest at 10.5% per annum on all TTD benefits; 4. Medical benefits from March 11,1987 and continuing; 5. Transportation expenses incurred relating to Baker's physical therapy treatment; 6. Attorney's fees and costs. The Board denied Baker's claim for a vocational rehabilitation evaluation. Both parties appealed the Board's decision to the superior court. The superior court affirmed. Both parties appeal the superior court's decision. Baker claims that the Board erred in: 1. Terminating TTD benefits as of February 11, 1989; 2. Denying him vocational rehabilitation; 3. Excluding the deposition of a doctor, Dr. Stamp, from the Board's consideration of the case; 4. Determining that Baker lacked credibility. Reed-Dowd claims that the Board erred in allowing TTD benefits from March 11, 1987 to January 20, 1988. III. DISCUSSION A. Did the superior court err in affirming the Board's award of TTD benefits? Baker argues that the Board's determination that Baker's disability ended as of February 11, 1989, is not supported by the medical evidence. On cross-appeal, Reed-Dowd argues that the Board's award to Baker of TTD benefits from March 11, 1987 to January 20, 1988, is not supported by substantial evidence. An employee is entitled to TTD benefits if he is temporarily totally disabled. AS 23.30.185. In terminating Baker's TTD benefits as of February 11, 1989, the Board reasoned that Baker was no longer physically impaired. This reasoning is not supported by substantial evidence and, on that basis, we reverse. On Reed-Dowd's cross-appeal, we affirm because there is substantial evidence to support the Board's award of TTD benefits from March 11, 1987 through January 20, 1988. 1. Substantial evidence does not support the Board's determination that Baker is not disabled The Workers' Compensation Act defines disability as "incapacity because of injury to earn the wages which the employee was receiving at the time of the injury in the same or any other employment." AS 23.30.265(10). Once an employee is disabled, the law presumes that the employee remains "disabled unless and until the employer introduces 'substantial evidence' to the contrary." Olson v. AIC/Martin J.V., 818 P.2d 669, 672, (Alaska 1991) (citation omitted). In the present case, the Board ruled that Baker had physically recovered from the effects of his injury. This ruling is not supported by substantial evidence. In deciding that Baker was not physically disabled, the Board relied on the depositions of Drs. Wang and Morris. In fact, these depositions do not provide support for the Board's ruling. Although Dr. Morris testified that the recovery period associated with a patient achieving medical stability is less than one year, Dr. Morris could not estimate Baker's physical capacities upon "recovery." Similarly, Dr. Wang testified that Baker was medically stable. However, at the same time, Dr. Wang testified that Baker suffered from considerable pain, that Baker could not raise his right arm more than ninety degrees, and that Baker's right arm was thirty to forty percent weaker than his left arm. Thus, Dr. Wang did not believe that Baker had physically recovered from the effects of his injury. The Board also determined that Baker was not credible and, therefore, the Board did not believe Baker's claims of ongoing physical impairment. This determination alone, however, does not support the Board's ruling that Baker's disability ended. As discussed above, the depositions of the doctors do not provide substantial evidence that Baker's disability ended. Thus, Reed-Dowd has not rebutted the legal presumption that Baker remains disabled. Olson, 818 P.2d at 672. In sum, substantial evidence does not support the Board's decision that Baker is no longer impaired. Since this was the Board's justification for limiting Baker's TTD benefits, we reverse and remand to have the Board determine whether Baker otherwise qualifies for TTD benefits after February 11, 1989. 2. There is substantial evidence that Baker is entitled to TTD benefits from March 11, 1987 to January 20, 1988. As noted above, in its cross-appeal, Reed-Dowd argues that Baker is not entitled to TTD benefits from March 11, 1987 to January 20, 1988, because "there is no objective medical evidence to connect the subsequent rotator cuff tear with the work-related injury that occurred in 1986." We disagree. Dr. Tegtmeyer's arthrogram indicates that Baker's rotator cuff was partially torn as of October 1987. Dr. Wang repaired this tear in February 1988. However, Dr. Jones indicated that Baker's rotator cuff was intact as of March 1987. The existence of a tear in October 1987 is at odds with Dr. Jones' March analysis. One possible explanation is, as Reed-Dowd suggests, that Baker reinjured his shoulder and the new injury is unrelated to Baker's 1986 injury. Another possible explanation is that Dr. Jones was wrong and that Baker's 1986 rotator cuff injury never healed. The latter explanation is supported by substantial evidence. Substantial evidence is that which "a reasonable mind might accept as adequate to support the board's conclusion" in light of the record as a whole. Delaney v. Alaska Airlines, 693 P.2d 859, 863 (Alaska 1985). In the present case, Baker's injuries involved the same shoulder. The record does not indicate an alternative cause of Baker's injury other than his 1986 accident. This evidence adequately supports the Board's conclusion. The superior court was therefore correct in affirming the Board. We affirm the superior court. B. Did the superior court err in affirming the Board's denial of Baker's claim for a vocational rehabilitation evaluation? The Board ruled that Baker was not entitled to vocational rehabilitation. At the time of Baker's 1986 injury, an employee was entitled to vocational rehabilitation if: 1) The employee is permanently disabled; and 2) The disability prevents the employee from returning to "suitable gainful employment." In denying vocational rehabilitation, the Board ruled that Baker was not impaired. The Board reasoned, "[i]n the absence of reliable evidence of impairment we will not find [Baker] entitled to a vocational rehabilitation evaluation." (Emphasis supplied.) The Board did not determine whether Baker could return to suitable gainful employment. As discussed earlier, the Board's conclusion that Baker is not impaired is not supported by substantial evidence. Thus, in denying vocational rehabilitation because Baker was no longer impaired, the Board erred. We reverse and remand to allow the Board to determine if Baker otherwise qualifies for vocational rehabilitation. C. The Board erred in excluding Dr. Stamp's deposition. During the discovery phase of this case, the parties deposed Dr. Stamp. The parties referred to Dr. Stamp's deposition in the proceedings before the Board. However, because the Board did not possess a copy of Dr. Stamp's deposition, the Board refused to consider it. In doing so the Board erred. On remand, the Board should obtain a copy of this deposition and give it due consideration. AFFIRMED IN PART, REVERSED IN PART, and REMANDED to the Board for further proceedings consistent with this opinion. . The record does not reveal the reason why Dr. Jones failed to repair the tear. . Although Dr. Jones testified that Baker was capable of "working" as of March 10, 1987, Dr. Jones did not indicate what type of work he thought Baker could perform. . According to Dr. Morris, medical stability does not mean a complete physical recovery. "It means they're as good as they are going to get." . The logical extension of Reed-Dowd's argument is that Baker is not entitled to any TTD benefits after March 11, 1987. However, Reed-Dowd inexplicably limits its argument to the time period between March 11, 1987 and January 20, 1988. . Specifically, AS 23.30.185, as it existed prior to its 1988 amendment, provided: Compensation for temporary disability. In case of disability total in character but temporary in quality, 80 percent of the injured employee's spendable weekly wages shall be paid to the employee during the continuance of the disability. The legislature added a second sentence to AS 23.30.185 in 1988. Chap. 79 SLA 1988 § 33. This sentence provides: "Temporary total disability benefits may not be paid for any period of disability occurring after the date of medical stability." However, this amendment applies "only to injuries sustained on or after July 1, 1988," arid thus does not apply to the present case. Chap. 79 SLA § 48. . Specifically, the Board stated that Baker's "disability" ended as of February 11, 1989, one year after Baker's surgery, because "Drs. Wang, Morris, and Pierron [opined] that recovery should take between three months and a year...." . The Board, in the present case, incorrectly ruled that the "employee bears the burden of proving whether or not he is disabled." . Substantial evidence is that which "a reasonable mind might accept as adequate to support the board's conclusion" in light of the record as a whole. Delaney v. Alaska Airlines, 693 P.2d 859, 863 (Alaska 1985). . Specifically, Dr. Morris testified at his deposition: Q. And when we talked earlier about the . six month[ ] recovery period . does that mean that you would expect a person to be medically stationary at the end of that three to six month period? A. They may be but I did add that that six month period sometimes is extended, but certainly I've never seen anybody go on longer than a year after surgery when they weren't completely stabilized. (Emphasis supplied.) Further, Dr. Morris testified earlier at the same deposition: Q. Can you . estimate . Baker's physical capacities . upon full recovery from an injury and an operation such as the one he had in February of 1988? A. I really couldn't estimate that. (Emphasis supplied.) According to Dr. Morris, medical stability does not mean a patient has physically recovered from his or her disability. "It means they're as good as they are going to get." See also infra note 10. . In deciding this case, the Board apparently confused the concepts of medical stability and physical recovery. A patient may become medically stable (become as good as the patient is going to get) without ever physically recovering from the effects of his or her injury. For example, a paraplegic may become medically stable, but will never physically recover from the effects of the injury. In the present case, the depositions of Drs. Morris and Wang provide substantial evidence that Baker had medically stabilized, but the depositions provide no evidence that Baker had physically recovered. . Dr. Wang testified that there was no way to determine whether the tear that he repaired was related to Baker's 1986 injury. . Specifically, AS 23.30.041, as it existed prior to its 1988 amendment, provided in relevant part: "If an employee suffers a permanent disability that precludes return to suitable gainful employment, the employee is entitled to be fully evaluated for participation in a rehabilitation plan...." The 1988 amendment applies "only to injuries sustained on or after July 1, 1988," and thus does not apply to the present case. Chap. 79 SLA § 48. . For the purpose of the present appeal, we need not, and do not, decide whether this constitutes harmless error.

10372888

Jerald F. COGHILL, Sr., Appellant, v. Darla J. COGHILL, Appellee

Coghill v. Coghill

1992-07-10

No. S-4071

921

930

836 P.2d 921

836

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Jerald F. COGHILL, Sr., Appellant, v. Darla J. COGHILL, Appellee.

Jerald F. COGHILL, Sr., Appellant, v. Darla J. COGHILL, Appellee. No. S-4071. Supreme Court of Alaska. July 10, 1992. Robert A. Sparks and William R. Satter-berg, Jr., Law Offices of William R. Satter-berg, Jr., Fairbanks, for appellant. R. Poke Haffner, Asst. Atty. Gen., Fairbanks, Charles E. Cole, Atty. Gen., Juneau, for Child Support Enforcement Div., Dept, of Revenue, State of Alaska. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

5059

31641

OPINION RABINOWITZ, Chief Justice. FACTS AND PROCEEDINGS Darla and Jerald Coghill were married in November 1972 in Nenana. They had four children. On March 22, 1985, the Coghills obtained a decree of dissolution of marriage. Attached to this decree, was the parties' agreement regarding child custody. Under the terms of the agreement Jerald had physical custody of the older children; Darla was given custody of the younger children, and both parents were accorded visitation rights. The agreement made no provision for child support. Approximately four and one-half years later Darla filed a motion for child support pursuant to Civil Rule 90.3. In support of the motion, Darla informed the superior court that she has had sole custody of the four children since the end of the school year in 1985 and that her adjusted annual income from her full time job with the Yukon-Koyakuk School District was $18,-659.48. She estimated her monthly income at $1500.00 and her monthly expenses at $1223.00. She stated that Jerald had voluntarily paid $400.00 per month in child support until his remarriage in March 1989. Darla estimated Jerald's income at $81,-063.16. Therefore, she requested child support of $1800.00 per month, pursuant to Civil Rule 90.3, based on the support allowable for four children on an income greater than $60,000. At the time of Darla's motion for child support, Jerald was self employed. He owned Jerry & Sons Repair & Service, a sole proprietorship trucking business. In a pretrial memorandum, Jerald stated that his adjusted annual income for 1989, for Civil Rule 90.3 purposes, was $23,556.00. However, Jerald further asserted that his 1989 income overstated his earning capacity. He noted that his trucking business had lost a major contract and that it had accrued expenses which had not been paid in 1989. Therefore, he requested the superior court to calculate his earning capacity based on the first quarter of 1990. On this basis, he estimated his 1990 annual adjusted income to be $12,796.00. Additionally, Jerald argued that Civil Rule 90.3 was invalid because its promulgation by this court was unauthorized and because its support guidelines were arbitrary and capricious. The superior court found that our adoption of Civil Rule 90.3 was a change in circumstances "allowing modification of the pre-existing terms of the decree of dissolution in this matter according to Alaska Statute 25.24.170." The superior court also held that Civil Rule 90.3 was legally adopted and that it was applicable to this case. The court concluded that Jerald's 1989 income provided the best estimate of his future income. The court computed Jerald's "available, annual adjusted income" for Civil Rule 90.3 purposes to be $43,262.00 after accepting several deductions to Jerald's gross income and disallowing others. The superior court stated that it "specifically fails to find clear and convincing evidence that manifest [injustice] would result if the support award [under the Civil Rule 90.3 guidelines and formula] were not varied." Accordingly, the superior court ordered that Jerald pay Darla $1297.86 per month for child support beginning June 1, 1990, subject to a "50% visitation credit, when and if exercised." The court also determined that Jerald was responsible for child support arrearages in the amount of $7,710.63, and found that any future "collections of support shall be ordered paid through the Child Support Enforcement Agency; all future modifications shall be by administrative review by such agency." Jerald appeals, alleging that the superior court erred in its calculation of his income and its failure to consider Darla's actual costs of supporting the children. Addition ally, he argues that Civil Rule 90.3 is unconstitutional, both on its face and as applied. Pursuant to AS 25.27.045, the Attorney General entered an appearance as counsel of record on behalf of the Child Support Enforcement Division, and filed an appellee's brief. I. DID THE SUPERIOR COURT ERR IN ITS CALCULATIONS OF THE PARTIES' INCOME AND COSTS? A. Was the superior court's award of child support unreasonable because it was not based on Darla's actual costs? Jerald points to evidence in the record that Darla's household costs for one year amounted to $14,540.00. He then argues that the child support award of $1,297.86 per month is excessive in that it is "sufficient . to practically support [Darla's] entire household." Therefore, Jerald considers the $1,297.86 per month award "unreasonable." In Smith v. Smith, 673 P.2d 282, 283 (Alaska 1983), we held that the superior court abused its discretion when it awarded child support in an amount greater than that which the custodial parent had requested. Jerald is raising a similar argument in that he claims that the superior court abused its discretion in awarding child support that exceeded actual need. The superior court has "broad equitable powers" to fashion a child support award. Smith, 673 P.2d at 283. The superior court presumptively does not abuse its discretion when it awards child support based on Civil Rule 90.3. See Alaska R.Civ.P. 90.3, Commentary VI ("the rule presumes that support calculated under 90.3(a) or (b) does not result in manifest injustice_"); Alaska R.Civ.P. 90.3(c)(1) ("The court may vary the child support award as calculated under the other provisions of this rule for good cause upon proof by clear and convincing evidence that manifest injustice would result if the support award were not varied."). Therefore, in order for Jerald to succeed in his claim that the award was unreasonable, he must demonstrate that the superior court abused its discretion by failing to find "good cause" for departing from the formula of Civil Rule 90.3. B. Does the low level of Darla's actual costs constitute good cause for variance from the child support formula of Civil Rule 90.3? Civil Rule 90.3(c)(1) provides that "[t]he court may vary the child support award as calculated under the other provisions of this rule for good cause upon proof by clear and convincing evidence that manifest injustice would result if the support award were not varied." Alaska R.Civ.P. 90.3(c)(1). The rule also enumerates certain circumstances which might possibly constitute good cause for varying from its formula. This enumeration includes a finding of "unusually low expenses." On appeal, Jerald argues for a variance from Civil Rule 90.3(a)(2) on the basis that Darla's actual costs, before he began paying full and regular child support, were unusually low. The commentary to Civil Rule 90.3 explains that economic analyses have shown that "the proportion of income parents devote to children in intact families is relatively constant across income levels." Alaska R.Civ.P. 90.3, Commentary II; Coats v. Finn, 779 P.2d 775, 776 n. 5 (Alaska 1989) (quoting Report of the Child Support Enforcement Commission to Governor William J. Sheffield, October 1, 1985 (Sheffield Commission Report)). Therefore, the mere fact that Darla's household expenses were low prior to receiving full and regular child support does not, standing alone, establish good cause for varying from the support guidelines of Civil Rule 90.3. In order to make a showing of manifest injustice Jerald would have to prove that expenses of his children would have no relationship to the level of income available to be spent on them. On the basis of our review of the record we are persuaded that Jerald did not sustain his burden of proving by clear and convincing evidence that a child support award in accordance with Civil Rule 90.3 would result in manifest injustice. Therefore we conclude that the superior court did not abuse its discretion in deciding to adhere to the rule's support formula. C. Was the superior court's failure to find that Jerald's 1989 income was not representative of his earning capacity clearly erroneous? Jerald argues that he proved at trial that his earning capacity had decreased because of substantial changes in his business. Specifically, Jerald testified that before 1989 his trucking business had an oral agreement to provide services to Mapco. However, as a result of the fact that he hadn't had a dispatch from Mapco in six months, Jerald apparently expected a decrease in income. Jerald argues that "[t]he trial court's finding regarding estimating Mr. Coghill's income is clearly erroneous, because it fails to account for the substantial changes in Mr. Coghill's business." The superior court calculated Jerald's income from the evidence it had before it. As the court stated, "the best evidence for the projection of Mr. Coghill's 1990 income is the 1989 calendar year as the base period. The court adopts this as the only twelve month period for which the court has complete information." The only other data the superior court had before it was data from the first quarter of 1990. Given the speculative nature of the 1990 evidence, the court did not abuse its discretion in adopting the 1989 figures. See Pugil v. Cogar, 811 P.2d 1062, 1067 (Alaska 1991) (upholding a determination of income based on an average of the non-custodial parent's past income when the non-custodial parent worked in an industry where employment and income were erratic); Hartland v. Hartland, 777 P.2d 636, 640 (Alaska 1989) (holding that a party who fails to provide sufficient evidence at trial for a valuation cannot object to the resulting valuation on the basis of inadequate evidence). That the superior court used the data from 1989 does not indicate that it made a finding of fact that no change in Jerald's earning capacity had occurred, or that it rejected the testimony of Jerald's expert. Rather, the superior court properly exercised its discretion and, on the basis of the most complete evidence before it, chose the best indicator of Jerald's future earning capacity. See Pugil, 811 P.2d at 1067. Hence, we reject Jerald's contention that the superior court's finding of fact in regard to Jerald's 1989 income was clearly erroneous. D. Did the superior court abuse its discretion by disallowing various deductions in its calculation of Jerald's income? As discussed above the superior court determined Jerald's income based on the evidence of his income in 1989 which showed a gross income of $182,021. From gross sales receipts, Jerald subtracted various business expenses to yield his actual income. The superior court stated that it accepted the majority of Jerald's deductions as "ordinary and reasonable business expenses for the purposes of Alaska Civil Rule 90.3." However, the court disallowed deductions for certain expenses relating to use of an automobile, work clothing, meals, a home office, and imputed taxes. Further, the court allowed only a deduction for straight line depreciation. On appeal, Jerald contends that the superior court erred when it denied these disputed deductions. Civil Rule 90.3(a)(1) reads in part that "[ajdjusted annual income as used in this rule means the parent's total income from all sources." We have previously held that "[gjiven this broad definition, we believe that the superior court has broad discretion" in deciding whether certain funds should be included in income for Civil Rule 90.3 purposes. Bergstrom v. Lindback, 779 P.2d 1235, 1237 (Alaska 1989). In our view Jerald misunderstands the superior court's denial of his various deductions. The court was not implying that his expenses for meals, clothing, etc., were not legitimate business expenses. Rather, the court recognized that such expenses reduced Jerald's living expenses. Here, where the meals were consumed by Jerald and where the type of clothing purchased by Jerald was not significantly different from the clothing purchased by most Alaskans, the superior court properly disallowed deductions for these and other expenses for the purpose of computing Civil Rule 90.3 income. Additionally, we hold that the superior court properly disallowed a deduction for imputed taxes based on the income available to Jerald as a result of adding back the deduction for accelerated depreciation. The commentary to Civil Rule 90.3 explicitly states that accelerated depreciation is not a deductible business expense for Rule 90.3 purposes. Alaska R.Civ.P. 90.3, Commentary III.B. We therefore hold that the superior court did not abuse its discretion in disallowing this claimed deduction. II. IS CIVIL RULE 90.3 CONSTITUTIONAL? A. Does Civil Rule 90.3 violate the Separation of Powers Doctrine? Civil Rule 90.3 was promulgated by this court in 1987. In adopting this Rule we noted that: This Rule is adopted under the supreme court's interpretive authority pursuant to Article IV, Section 1 of the Alaska Constitution. Thus, it may be superseded by legislation even if the legislation does not meet the procedural requirements for changing rules promulgated under Article IV, Section 15. As is apparent from the earlier sections of this opinion, the Rule establishes guidelines to enable courts to determine child support awards and institutes a formula for child support awards based on the income of the noncustodial parent. It also allows for variance from the formula in special circumstances. Prior to the promulgation of this rule, there was no set formula to determine child support. Jerald argues that Civil Rule 90.3 constitutes a substantive change in the law. Accordingly, he contends that this court has violated the doctrine of separation of powers by usurping the law making power granted to the legislature. Citizens Coalition v. McAlpine, 810 P.2d 162 (Alaska 1991), speaks to the difference between court rules adopted pursuant to article IV, section 15, of Alaska's Constitution, and those adopted pursuant to article IV, section 1. Article IV, section 15 grants this court the power to promulgate rules "governing administration of all courts" and "practice and procedure . in all courts." It also provides that such rules may be changed by a two-thirds vote of the legislature. Id. at 165 (quoting Alaska Const., art. IV, § 15). Article IV, section 1, on the other hand, vests the judicial power in a supreme court, a superior court and other courts established by the legislature. "The court's rule-making authority under this section is inherent in the judicial power vested in it, as the supreme court of the state." Id. (citing Alaska Const., art. IV, § 1). Citizens Coalition also noted that rules of "substance" rather than "procedure" might not be allowed under article IV, section 15. 810 P.2d at 167. However, under section 1, "the distinction between procedural and substantive rules, while still important, is not dispositive, because our judicial power includes the authority to regulate with greater substantive effect inside the limited ambit of the judicial system, than we could under our article IV, section 15 powers." Id. at 167 n. 10 (citations omitted). Contrary to Jerald's assertion, Civil Rule 90.3 does not modify or amend AS 25.24.-160. Alaska Statute 25.24.160 allows courts to set child support awards "as may be just and proper for the parties to contribute toward the nurture and education of their children." AS 25.24.160(a)(1). Civil Rule 90.3 interprets this statute and establishes guidelines to enable courts to determine what is a "just and proper" contribution. Alaska R.Civ.P. 90.3, Commentary I.B. Establishing such guidelines recognizes the need for uniformity across income levels; however, the guidelines also recognize that unique circumstances might require variance from the guidelines! As such, the guidelines do not conflict with the statute. Finally, as was explained in Coats v. Finn, Civil Rule 90.3 did not overrule prior case law. 779 P.2d 775, 778 (Alaska 1989). In Coats this court harmonized Civil Rule 90.3 with prior case law by explaining that even under the rule, the non-custodial parent must contribute a fair share to satisfy the child's reasonable needs. Id. (citing Hunt v. Hunt, 698 P.2d 1168, 1173 (Alaska 1985)). Thus we conclude that promulgation of Civil Rule 90.3 did not violate the separation of powers doctrine. B. Is Civil Rule 90.3 unconstitutional on its face because it violates the due process and equal protection clauses? Jerald states that "by placing the onus on the non-custodial parent to 'prove' to the trial court that there is some reason to deviate from the standard as set forth in Civil Rule 90.3 effectively constitutes a [sic] irrebuttable presumption of liability without recourse in the law." He believes that "[i]n the instant case, this can be illustrated by the Judge's refusal to examine the Appellee's expenses vis-a-vis the amount of money 90.3 would require the Appellant to pay." Jerald contends that this violates his right to due process. He then concludes, "by failing to require both the custodial and non-custodial parents [sic] income be examined before making a child support determination, Rule 90.3 unconstitutionally deprives the non-custodial parent of equal protection under the law." The state responds by first citing the evidentiary basis for Civil Rule 90.3 to refute any contention that the rule is arbitrary and capricious. Second, the state denies that the rule creates an irrebuttable presumption. Finally, the state argues that equal protection does not require computation of the non-custodial parent's income, because the custodial parent and the non-custodial parent are not similarly situated. 1. Is Civil Rule 90.3 arbitrary and capricious? To answer Jerald's claim that Civil Rule 90.3 has no rational basis, the state cites to Coats v. Finn, where the basis for Civil Rule 90.3 is discussed. 779 P.2d at 776 n. 5, 777 n. 7. In Coats, this court quoted extensively from the Sheffield Commission Report. This report contains "strong evidence" that the " 'cost' of raising a child depends on the level of household income." Id. at 777 n. 5 (quoting Sheffield Commission Report). Additionally, Coats explained that Civil Rule 90.3 did not abrogate the prior case law. Id. at 776. Finally, Coats again cited to the Sheffield Commission Report to explain the rationale for requiring a heightened burden to prove the need for a variance from the formula: "The formula approach is intended to provide information to the parties and attorneys so that child support may be predictable, reasonable, simple to calculate, without prejudice, and reflect the duty of both parents to support their children commensurate with their abilities." Id. at 777 n. 7. The record indicates that Jerald failed to introduce any evidence showing that the there was no relationship between income and consumption. We therefore conclude that Coats is dispositive of Jerald's claim that Civil Rule 90.3 is arbitrary and capricious. 2. Does Civil Rule 90.3 violate due process by creating an irrebuttable presumption? Jerald argues that blind application of the Civil Rule 90.3 formula denies noncustodial parents the right to a fair hearing. He believes that this is illustrated in this case by the superior court's denying him the opportunity to question Darla concerning her expenses. As the state points out, however, Civil Rule 90.3(c)(1) specifically allows for exceptions to the formula. Other courts have found that child support guidelines do not offend due process so long as they provide for discretion in their application. Schenek v. Schenek, 161 Ariz. 580, 780 P.2d 413 (App.1989); see also In re Guidelines for Child Support Enforcement, 301 Ark. 627, 784 S.W.2d 589, 590-91 (1990) (holding that Guidelines create a re-buttable presumption); Dalton v. Clanton, 559 A.2d 1197, 1212 (Del.1989) (holding that child support formula creates a rebuttable presumption and an inequitable result rebuts the presumption). Jerald also argues that the vagueness of the terms "good cause" and "manifest injustice" render the exception meaningless. He charges that without guidance and explanation, superior courts will apply the rigid Rule 90.3 formula by rote, thus depriving a party opposing the use of the formula of his or her due process right to a fair hearing. In support of this argument, Jerald cites Fitzgerald v. Fitzgerald, 566 A.2d 719 (D.C.App.1989). It is true that Fitzgerald was concerned with the presumptive nature of the child support guidelines promulgated by the superior court of the District of Columbia. Id. at 731 ("Adhering to a presumption in the face of facts to the contrary may constitute an abuse of discretion.") Additionally, the Fitzgerald court was troubled by the vagueness of the exceptions to the guidelines. Id. ("the party trying to argue against application of the Guidelines faces a monumental obstacle in attempting to demonstrate a case is 'exceptional' without knowing what 'unexceptional' is.") However, Fitzgerald did not hold that the child support guidelines were unconstitutionally vague. Rather, the Fitzgerald court held that such guidelines would be constitutional "so long as judges and hearing commissioners continue to exercise their discretion to achieve equitable results consistent with existing case law." Id. at 732. In light of the holdings in Coats that Civil Rule 90.3 does not change the existing case law and that child support awards still must be fair and equitable, we hold that Jerald's.argument has no merit. 779 P.2d at 776. 3. Does Civil Rule 90.3 violate equal protection? Turning to Jerald's equal protection argument, the state correctly notes that "[ejqual protection has never required that differently situated persons be treated the same way." Here, Jerald is asking that "the trial court judge examine both the custodial and non-custodial parents [sic] income." Yet, the custodial and noncustodial parents are clearly not similarly situated for the purposes of child support. Moreover, applying standard equal protection analysis, the interest that Jerald raises is an economic interest. This interest is not of a high order. Given that the rule has a rational basis, see discussion supra at 928-929, under our sliding scale analysis of asserted equal protection violations, the state need only demonstrate a fair and substantial relationship between the distinctions drawn by the rule and the purpose of the rule. Anthony, 810 P.2d at 159. As the commentary to Civil Rule 90.3 states, Rule 90.3 employs the percentage of income approach. This approach is based on economic analyses which show the proportion of income parents devote to their children in intact families is relatively constant across income levels up to a certain upper limit. Applications of the rule should result in a non-custodial parent paying approximately what the parent would have spent on the children if the family was intact. Integral to the rule is the expectation that the custodial parent will contribute at least the same percentage of income to support the children. The rule operates on the principle that as the income available to both parents increases, the amount available to support the children also will increase. Thus, at least in the sole or primary custodial situation, the contribution of one parent does not affect the obligation of the other parent. Alaska R.Civ.P. 90.3, Commentary II. The commentary also states that [t]he primary purpose of Rule 90.3 is to ensure that child support orders are adequate to meet the needs of children, subject to the ability of parents to pay.... The second purpose of 90.3 is to promote consistent child support awards among families with similar circumstances. Third, the rule is intended to simplify and make more predictable the process of determining child support.... The final purpose of 90.3 is to ensure that Alaska courts comply with state and federal law. Id. at I.B. Thus, we conclude that the percentage of income approach has a fair and substantial relationship to the goals of Civil Rule 90.3 The superior court's judgment is AFFIRMED. . A child support award will not be overturned unless the trial court has abused its discretion. Richmond v. Richmond, 779 P.2d 1211, 1216 (Alaska 1989). We will examine the entire record to determine whether the superior court has abused its discretion, and will only find such an abuse when we are left with a definite and firm conviction that a mistake has been made. Id. (citing Hunt v. Hunt, 698 P.2d 1168, 1172 (Alaska 1985)). Civil Rule 90.3 provides the superior court discretion in determining what constitutes income. Bergstrom v. Lindback, 779 P.2d 1235, 1237 (Alaska 1989) (citing Civil Rule 90.3(a)(1)). The superior court's findings of fact regarding a party's income will be reversed only if clearly erroneous. Id. (citing Smith v. Smith, 673 P.2d 282, 283 (Alaska 1983)). Questions of statutory interpretation and constitutionality are reviewed de novo. Zsupnik v. State, 789 P.2d 357, 359 (Alaska 1990) (statutory interpretation); State v. Anthony, 810 P.2d 155, 156-57 (Alaska 1991) (constitutional questions). . Alaska R.Civ.P. 90.3(c)(1)(A). See also Coats v. Finn, 779 P.2d 775, 776 (Alaska 1989) ("Rule 90.3 does not abrogate the general rule that a non-custodial parent is obligated to contribute only a fair share of the amount required to meet the reasonable needs of the parties' minor children."). . At trial, Jerald sought to question Darla about her household expenses, in an attempt to prove that Darla had unusually low household costs. While the superior court initially allowed some questions in this regard, the court eventually barred Jerald from pursuing this line of questioning when it became apparent that Jerald was on a "fishing expedition." At the time that the superior court disallowed questioning it stated: "If you can provide me with an offer of proof that this would be manifestly unjust and would be a windfall to this woman, then I'll let you continue." Jerald made no such offer of proof. The superior court did not abuse its discretion by disallowing questions on this theory. Significantly, at trial Darla testified that "there's a lot of times they need things and I don't have the money to buy it." She also testified that her grocery bill, even before she received regular child support, was approximately $600-700 per month. Additionally, Darla testified that she had to purchase clothing for the children and that her clothing expenses were not unusually low. While Darla's monthly rent was only $94, there was no showing that she was able to avoid the normal costs of living assumed by Civil Rule 90.3. . The court allowed Rick Schikora, a CPA, to testify as an expert on the transportation industry. However, the court assured Darla that it would consider her objections to his qualifica tions as going to the weight of his testimony. More importantly, Schikora's testimony was not conclusive. He stated, "I would say that the trucking industry is not — is not in real good shape at the moment." When asked about Jerald's company in particular, Schikora only noted that Jerald's company now had to compete for dispatches and that, in his opinion, Jerald's company was low priority in the trucking business. None of the testimony presented by Schi-kora or Jerald was specific and definite enough to enable the superior court to positively conclude that a change in Jerald's earning capacity had occurred, or to estimate what Jerald's earning capacity was if it had changed. . The Commentary to Civil Rule 90.3 recognizes the difficulty in defining income when the noncustodial parent is self employed. In this regard, the commentary states, [ijncome from self employment . includes the gross receipts minus the ordinary and necessary expenses required to produce the income. Ordinary and necessary expenses do not include amounts allowable by the IRS for the accelerated component of depreciation expenses, depreciation of real estate, investment tax credits, or any other business expenses determined by the court to be inappropriate. Expense reimbursements and in-kind payments such as use of company car, free housing or reimbursed meals should be included as income if the amount is significant and reduces living expenses. Alaska R.Civ.P. 90.3, Commentary III.B. . The superior court found "the Suburban to be for personal use and not solely for business anymore [sic] than a wage earner drives his personal vehicle to work." Jocelyn Coghill, Jerald's current wife, testified that she used the Suburban to run business errands between home and town, and that Jerald used the pickup truck for transportation between home and work. She also testified that the family used the Suburban for personal use. The court disallowed the entire deduction for the Suburban, but allowed the deduction for the pickup. On this record, we believe the superior court did not abuse its discretion in disallowing some, but not all, of the claimed automobile deductions. See Alaska R.Civ.P. 90.3, Commentary III.B. . Jerald does not argue that he should be allowed to deduct accelerated depreciation: he seeks only to receive the benefit of imputed taxation on the accelerated portion of depreciation which is determined to be income for Rule 90.3 purposes. . See Alaska Const., art. IV, § 15; Bradner v. Hammond, 553 P.2d 1, 5 (Alaska 1976) (recognizing separation of powers doctrine). . Fitzgerald held the Guidelines in question invalid as an unauthorized change by the superior court in the substantive case law promulgated by the court of appeals. 566 A.2d at 726, 732. Civil Rule 90.3 was promulgated by the highest court of Alaska. Accordingly, this holding of Fitzgerald is inapplicable here. . Additionally we note that the record does not support Jerald's claim that an irrebuttable presumption was applied against him when the superior court precluded further cross-examination of Darla in regard to the subject of her expenditures. The superior court allowed Jerald to initiate questioning in this area and would have allowed questioning to continue had Jerald made an offer of proof regarding Darla's unusually low living expenses. Under Civil Rule 90.3 and Coats, a noncustodial parent may rebut the presumption that expenditures are related to income; such a showing would constitute good cause for varying from the schedule provided for in Civil Rule 90.3. The record indicates that if Jerald had evidence that there was no relationship between income and consumption in this particular case, he would have been allowed to prove that a child support award based on 90.3(a)(2) would be manifestly unjust. Jerald failed to offer evidence to rebut the presumption that the relationship between income and consumption exists for his own children while they are under Darla's care. . State v. Anthony, 810 P.2d 155, 158 (Alaska 1991); State v. Ostrosky, 667 P.2d 1184, 1193 (Alaska 1983) appeal dismissed, 467 U.S. 1201, 104 S.Ct. 2379, 81 L.Ed.2d 339 (1984).

11768415

ERA AVIATION, INC., Petitioner, v. Jerilue SEEKINS, Respondent

Era Aviation, Inc. v. Seekins

1999-02-26

No. S-8129

1137

1142

973 P.2d 1137

973

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

ERA AVIATION, INC., Petitioner, v. Jerilue SEEKINS, Respondent.

ERA AVIATION, INC., Petitioner, v. Jerilue SEEKINS, Respondent. No. S-8129. Supreme Court of Alaska. Feb. 26, 1999. Thomas M. Daniel and Helena L. Hall, Perkins Coie, Anchorage, for Petitioner. Howard A. Lazar and Elise M. Hsieh, Delaney, Wiles, Hayes, Gerety, Ellis & Young, Inc., Anchorage, for Respondent. Before MATTHEWS, Chief Justice, and COMPTON, and BRYNER, Justices.

2737

17008

OPINION BRYNER, Justice. I. INTRODUCTION Era Aviation, Inc., fired Jerilue Seekins. Seekins sued Era for breach of the covenant of good faith and fair dealing, alleging that, despite the "at-will" termination clause in her employment contract, the covenant allowed Era to fire her only for good cause. After the superior court denied Era's motion for summary judgment, we granted its petition for review. Because we conclude that the record fails to support Seekins's breach of covenant claim, we conclude that Era is entitled to judgment as a matter of law. II. FACTS AND PROCEEDINGS In the spring of 1993, Jerilue Seekins approached Dianne Smith, the Kenai station manager for Era Aviation, Inc., about the possibility of obtaining a job with Era. See-kins was living in Seattle, but was interested in relocating so that she and Michael Hopley, a friend who ran a fishing guide business based in Soldotna, could be together. In Seattle, Seekins was employed by Alaska Airlines; she had worked for the airline since 1992 and wanted to continue working in this field. At their initial meeting, Smith told Seekins that Era had openings only for temporary summer jobs, in which Seekins was not interested. Smith told Seekins to remain in touch regarding employment with Era. In the spring of 1994, after Seekins had spoken with Smith several more times, Smith offered Seekins a job with Era as a customer service ticket agent in Kenai. Seekins accepted the job and moved to Kenai. Before Seekins started working for Era, she signed a pre-printed form, entitled "Company Policies," indicating that she understood that "employment at Era Aviation, Ine.[,] is 'at will', which means that either I or the Company can terminate the employment relationship at any time, with or without prior notice, and for any reason not prohibited by law." Seekins began working for Era on June 13, 1994. In early August 1994, Mona Sim, See-kins's supervisor, met with Seekins and criticized her job performance: Sim claimed that Seekins had a challenging attitude, was too slow checking in customers, had improperly solicited clients for Hople/s fishing guide business, and had requested too much time off. On August 18, Sim and Smith met with Seekins. After informing Seekins that her job performance had not improved, Smith offered Seekins a choice between resigning and being fired. Seekins chose to be fired. Seekins later sued Era, alleging that she had performed her job appropriately and was fired merely "as the result of a personality conflict." Seekins claimed that Era violated the covenant of good faith and fair dealing by discharging her without good cause. Era moved for summary judgment. The superior court denied its motion, concluding that Seekins's breach of covenant claim raised triable issues of fact under ARCO Alaska, Inc. v. Akers. Soon after the trial court denied Era's summary judgment motion, this court decided Ramsey v. City of Sand Point, affirming an award of summary judgment against an at-will employee who claimed that a discharge without cause violated the implied covenant. Era moved for reconsideration based on Ramsey; again, the court denied its motion. Era petitioned for review. We granted the petition. III.DISCUSSION A. Standard of Review We review a denial of summary judgment de novo. We draw all reasonable inferences in favor of the nonmoving party, and affirm a denial of summary judgment if there is a genuine issue of material fact or if it is clear that the moving party is not entitled to judgment as a matter of law. B. Evidence that Era Terminated See-kins's At-Will Employment Without Good Cause Does Not Raise Triable Issues on Seekins's Breach of Covenant Claim. 1. This court's implied covenant cases Our cases have distinguished between at-will and for-cause employment based on the level of cause needed to terminate the employment relationship: Employees hired on an at-will basis can be fired for any reason that does not violate the implied covenant of good faith and fair dealing. However, employees hired for a specific term may not be discharged before the expiration of the term except for good cause.[ ] This court has also recognized that every contract is subject to an implied covenant of good faith and fair dealing. In the employment contract context, the covenant operates as a check on employers' traditional freedom to terminate at-will employment for any reason; we have held that an employer may not terminate an at-will employee for reasons antithetical to the implied covenant. We first applied the covenant to an at-will employment contract in Mitford v. de Lasala. There, Mitford alleged that de La-sala had fired him to prevent him from receiving his share of business profits; we found that to be a viable claim for breach of the covenant of good faith and fair dealing. We observed that the covenant "would prohibit firing Mitford for the purpose of preventing him from sharing in future profits.... The circumstances surrounding Mitford's termination give rise to an inference that he was fired for that reason." Mitford thus stands for the proposition that the covenant prohibits an employer from exercising at-will powers of discharge to unfairly deprive an employee of a benefit contemplated by the employment contract. In Luedtke I, this court recognized that the covenant can be breached when the firing of an employee occurs in violation of a specific public policy. We found that unwarranted intrusions into employee privacy violate public policy, and so concluded that the covenant could be violated by terminating an employee for resisting an improperly noticed drug test. In Luedtke II, an appeal after remand in Luedtke I, we further explained that a breach of the covenant can be either subjective or objective — that an employer can violate the covenant either by acting with a subjectively improper motive or by failing to "act in a manner which a reasonable person would regard as fair." As examples of subjective breaches, we cited cases like Mitford, As examples of objective breaches, we cited cases involving disparate employee treatment, terminations on grounds that were found unconstitutional, and firings that violated public policy. We clarified that Luedtke I involved an act of objective unfairness. Recently, in elaborating on the covenant's facets in Ramsey v. City of Sand Point, we reiterated that "[t]he covenant has both subjective and objective elements"; we again cited Mitford to illustrate a subjective bad faith breach and cited Luedtke II to illustrate the covenant's objective aspect. 2. The parties ' positions Era contends that, in firing Seekins, it merely exercised its express contractual right to terminate her at will. It argues that our eases establish that we will invoke the implied covenant of good faith and fair dealing to preclude an employer from terminating an at-will employee only when the employer has acted to unfairly deprive the employee of the economic benefits of a contract — as occurred in Mitford — or when the employer has acted in violation of public policy — as happened in Luedtke I and Luedtke II. Era argues that Seekins's claim, which alleges a personality-based discharge, falls into neither category. Seekins responds that the covenant is not limited to the two circumstances that Era identifies, but instead imposes a general requirement upon employers to act reasonably and fairly. She does not directly contend that the at-will clause in her employment contract was invalid; nor does she assert that she was a for-cause employee. Rather, tacitly conceding that she was an at-will employee, Seekins claims that the circumstances surrounding her at-will employment led her to form a reasonable expectation that, despite the at-will clause in her contract, Era would actually discharge her only for poor job performance. Seekins contends that, because she subjectively held this expectation, and because the expectation itself was objectively reasonable, both the objective and subjective requirements of the covenant are met, and Era should be barred from firing her without good cause. Pointing to evidence that could be construed as showing that she was discharged as a result of a personality conflict rather than for poor job performance, Seekins insists that she has made a prima facie showing that Era breached the covenant. Seekins summarizes her position as follows: The covenant of good faith and fair dealing means what it says: employers must act in good faith and deal fairly with employees. Era did not act in good faith towards Ms. Seekins and Era did not deal fairly in terminating her based upon a disgruntled supervisor's unsupported complaints and misrepresentations. The facts clearly illustrate Era's breach, and thus the Superior Court was justified in denying Era's assertions that they need not treat an at-will employee fairly and their attendant request for summary judgment. 3. Applying our case law to Seekins's claim We disagree with the broad view of the implied covenant that Seekins proposes, and we conclude that even when viewed in the light most favorable to Seekins, the record fails to support her breach of covenant claim. According to Seekins, Era knew that she left full-time employment with Alaska Airlines in Washington to take a job with Era in Alaska; Era also knew that she would not have done so had Era not offered her a position in Kenai comparable to the one she left in Seattle. Although she entered into an at-will contract, Seekins remained under the impression that her employment would continue unless she failed to perform her job adequately. Once hired, Seekins received little training or guidance. She soon had a per sonality conflict with her supervisor, Mona Sim; Sim met with Seekins once and complained without justification about her job performance. About two weeks later, See-kins's supervisor, Smith, met with Sim and Seekins. Smith informed Seekins — again without basis — that her job performance had not improved. Smith offered Seekins the option of resigning or being fired. Seekins decided not to resign, and Smith fired her with no further opportunity to improve her job performance. Although the stated reason for the firing was inadequate job performance, the true reason, alleges Seekins, was Sim's personality clash with her. Even if proved, these facts would be legally insufficient to warrant a finding that Era breached the implied covenant of good faith and fair dealing. Reduced to its essence, Seekins's theory is that — despite her awareness of a valid at-will clause in her contract of employment — the covenant converted her at-will job into a good-cause contract because she reasonably expected that Era would fire her only in the event of poor job performance. This theory is flawed with respect to both the objective and subjective aspects of the covenant. It is flawed as to the objective facet of the covenant, because — as we recently held in Ramsey — the covenant is implied to effectuate, not to alter, the reasonable expectations of the parties; hence, "[it] cannot be interpreted to prohibit what is expressly permitted by [the] contract...." Because recognizing and enforcing Seekins's unilateral expectation of a good-cause employment relationship would, alter the basic character of her at-will employment agreement by "prohibiting] what is expressly permitted," the expectation is unreasonable as a matter of law. Seekins's theory is also flawed as to the subjective aspect of the implied covenant. The subjective element focuses not — as See-kins implicitly posits — on the employee's personal feelings of unfairness, but rather on the employer's motives, requiring proof that the employer's decision to fire was actually made in bad faith. To be subjectively unfair, the employer's conduct must actually be motivated by an improper or impermissible objective: "An employer engages in subjective bad faith when it discharges an employee for the purpose of depriving him or her of one of the benefits of the contract." Hence, in the at-will employment context, it is insufficient to show that an employee was discharged for reasons unrelated to job performance; instead, the employee must show a purpose that is, in itself, improper or impermissible. Given the at-will nature of Era's employment contract with Seekins, we cannot say that the company's alleged desire to avoid a personality conflict between two of its employees would, if proved, amount to an impermissible motive for firing Seekins. The trial court thus construed ARCO Alaska, Inc. v. Akers too broadly. Despite language in Akers generally suggesting that a discharge based on a non-work-related "personality conflict" could amount to a breach of the good faith covenant, a close reading of our opinion indicates that the case is inappo-site here. Although Akers was initially hired as an at-will employee, he was issued an ARCO personnel handbook that entitled him to progressive discipline prior to termination and to written notice of ARCO's reasons for ter minating him. ARCO acknowledged, moreover, that it violated its own personnel policies in discharging Akers. Given these facts, we proceeded on the assumption that ARCO was required to have good cause for termination. And, twice, relying on the procedural posture of the case, we specifically avoided examining the validity of this assumption. In summary, the evidence offered by See-kins, viewed in the light most favorable to her, would prove neither an objective nor subjective violation of the implied covenant of good faith and fair dealing. Because "[See-kins's] employment contract authorized [Era] to terminate [her] for any reason whatsoever," we hold here, as we did in Ramsey, that, "[a]s a matter of law, a jury could not find [that Era's] termination . violated the implied covenant." IV. CONCLUSION Because we conclude that there are no genuine issues of material fact as to whether Era breached the covenant, and that Era was entitled to judgment as a matter of law, we REVERSE the superior court's order denying Era's motion for summary judgment. EASTAUGH and FABE, Justices, not participating. . 753 P.2d 1150 (Alaska 1988). . 936 P.2d 126 (Alaska 1997). .Id. at 133. . See Western Pioneer, Inc. v. Harbor Enters., Inc., 818 P.2d 654, 656 n. 3 (Alaska 1991). . See id. . Luedtke v. Nabors Alaska Drilling, Inc. (Luedtke I), 768 P.2d 1123, 1130-31 (Alaska 1989) (footnote omitted). See also Eales v. Tanana Valley Medical-Surgical Group, Inc., 663 P.2d 958, 959 (Alaska 1983). . See Guin v. Ha, 591 P.2d 1281, 1291 (Alaska 1979). . See French v. Jadon, Inc., 911 P.2d 20, 24 (Alaska 1996). . 666 P.2d 1000 (Alaska 1983). . Id. at 1007. . Id. . See id. . Luedtke I, 768 P.2d at 1130. . See id. . See id.; see also Luedtke v. Nabors Alaska Drilling, Inc. (Luedtke II), 834 P.2d 1220, 1224-25 (Alaska 1992). . Luedtke II, 834 P.2d at 1224-25. . Id. at 1224. . See id. (also citing Jones v. Central Peninsula Gen. Hosp., 779 P.2d 783 (Alaska 1989), and Hagans, Brown & Gibbs v. First Nat'l Bank of Anchorage, 783 P.2d 1164 (Alaska 1989)). . See Luedtke II, 834 P.2d at 1224 (citing Jones; Rutledge v. Alyeska Pipeline Serv. Co., 727 P.2d 1050 (Alaska 1986); State v. Haley, 687 P.2d 305 (Alaska 1984); Luedtke I). . See Luedtke II, 834 P.2d at 1224-25. . Ramsey v. City of Sand Point, 936 P.2d 126, 133 (Alaska 1997). . See id. . See id. . Id. . Id. . Id.; see also Luedtke II, 834 P.2d at 1224. . Ramsey v. City of Sand Point, 936 P.2d 126, 133 (Alaska 1997). . See, e.g., Mitford v. de Lasala, 666 P.2d 1000, 1007 (Alaska 1983). . Cf. E.I. DuPont de Nemours & Co. v. Pressman, 679 A.2d 436, 444 (Del. 1996) (holding that, because "[e]mployees and their supervisors work closely together and personality clashes have the potential to interfere seriously with the achievement of an organization's mission[,] [d]islike, hatred or ill will, alone, cannot be the basis for a cause of action for termination of an at-will employment"). . 753 P.2d 1150 (Alaska 1988). . Id. at 1155. . Id. at 1151, 1155. . Id. at 1155. . See id. (finding that, given Akers's prima facie showing that his termination was without good cause, it was unnecessary to determine whether ARCO bore the burden of proof on this issue), and id. at 1157 (finding, in the absence of a timely objection by ARCO, no plain error in a jury instruction that failed to differentiate between, and therefore implicitly equated, good faith for purposes of the implied covenant and good cause for purposes of termination). . Id. . Ramsey v. City of Sand Point, 936 P.2d 126, 133 (Alaska 1997).

11753930

R.J.M., Appellant, v. STATE OF ALASKA, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Appellee; P.M., Appellant, v. State of Alaska, Department of Health and Social Services, Appellee

R.J.M. v. State, Department of Health & Social Services

1999-01-29

No. S-8525

79

87

973 P.2d 79

973

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

R.J.M., Appellant, v. STATE OF ALASKA, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Appellee. P.M., Appellant, v. State of Alaska, Department of Health and Social Services, Appellee.

R.J.M., Appellant, v. STATE OF ALASKA, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Appellee. P.M., Appellant, v. State of Alaska, Department of Health and Social Services, Appellee. No. S-8525. Supreme Court of Alaska. Jan. 29, 1999. John J. Connors and David G. Parry, Birch, Horton, Bittner & Cherot, Fairbanks, for Appellant R.J.M. Bonnie J. Coghlan, Fairbanks, for Appellant P.M. Nora King, Assistant Attorney General, Fairbanks, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before MATTHEWS, Chief Justice, COMPTON, EASTAUGH, FABE, and BRYNER, Justices.

4536

27680

OPINION EASTAUGH, Justice. I. INTRODUCTION The superior court found R.J.M. and P.M. unwilling to care for their son J.M. and under the child in need of aid (CINA) statute, terminated their parental rights. Because P.M.'s failure to seek treatment for her mental illness constitutes unwillingness to provide care, we affirm the termination of her parental rights. Because the superior court did not clearly err in finding that R.J.M. was unwilling to care for J.M., we affirm the termination of R.J.M.'s parental rights. We also affirm the trial court's refusal to consider changed circumstances, and reject R.J.M.'s due process claim. II. FACTS AND PROCEEDINGS This case is again before us. In R.J.M. v. State, 946 P.2d 855 (Alaska 1997), we ruled that a finding of emotional neglect could not justify termination of parental rights under AS 47.10.010(a)(2)(F). Our opinion described the facts at that time as follows: R.J.M. and P.M. were married in 1973. In the course of their marriage, they had two children: a daughter, S.M., born in 1980, and a son, J.M., born in 1985. The family lived in Nenana. P.M. was the primary caretaker of the children, but suffered from mental prob lems — paranoid and delusional thinking— that impeded her ability to provide them with proper care. P.M. kept the children out of school because she believed teachers were prying into the family's life and spreading rumors about her. Although P.M. purported to be home schooling the children, she in fact taught them little if anything. R.J.M. did not object to P.M.'s treatment of the children or intervene in their behalf. An electronics technician at the Clear- Air- Force Base, he was "an absent parent" who "saw little of his children and provided little for them other than earning an income." R.J.M. and P.M. separated in 1990 and entered into an acrimonious divorce action, which culminated in a three-day trial in March 1992. After the separation, P.M. reported that R.J.M. had sexually abused S.M.; as a result of the report, P.M. took custody of S.M. and J.M., and R.J.M.'s contacts with the children were restricted by court order to supervised visits. On October 22, 1991, during one of the supervised visits, P.M. and R.J.M. became embroiled in an altercation in the children's presence. R.J.M. apparently provoked P.M. until she "totally lost control." P.M. attacked R.J.M. physically, threatened him with a knife, and threw a fork at him; the fork missed R.J.M. but struck J.M. P.M. proceeded to scream obscenities at R.J.M. and the children, ordering S.M. to get out, and telling her to "take a rope and hang yourself in your bedroom." As a result of this incident, the Division of Family and Youth Services (DFYS) took emergency custody of the children and, two days later, petitioned for temporary CINA custody. The CINA petition described the October 22 altercation and alleged the need to protect J.M. and S.M. from imminent harm arising out of P.M.'s "long and significant history of mental instability," and R.J.M.'s alleged sexual abuse. Superior Court Judge Mary E. Greene found probable cause to believe that S.M. and J.M. were CINA, and granted temporary custody to the State through Deeem-ber 27,1991. Some time before then, however, DFYS decided to relinquish custody of the children to R.J.M. P.M.'s accusation of sexual abuse against R.J.M. remained unsubstantiated, and neither child had reported sexual abuse by anyone. "[Sjince [P.M.] was still exhibiting bizarre behaviors which greatly restricted her ability to care for the children, they were returned to the custody of [R.J.M.]." P.M.'s and R.J.M.'s divorce case was tried before Judge Greene in March 1992; their divorce became final on April 29, 1992. In resolving the issue of custody during the divorce trial, Judge Greene found that P.M. and R.J.M., together, "created an extremely dysfunctional homelife for the children." Nevertheless, the judge also found that the children were generally "happy, healthy, and apparently well-adjusted." Rejecting as "totally unfounded" P.M.'s claims that R.J.M. had sexually abused the children, the judge awarded legal and physical custody to R.J.M., noting that "[P.M.'s] mental problems make it impossible for her to provide good care for the children in meeting all of their needs." Judge Greene granted P.M. visitation rights, but required that her visits be supervised by a neutral third party "until such time as [P.M.] obtains treatment which will allow her to control her behavior." Judge Greene also ordered "a program of regular counseling" for R.J.M., S.M., and J.M. S.M. and J.M. remained in R.J.M.'s care from December 1991 until July 1993. During this time, R.J.M. continued to be "an absent parent," hiring a series of nannies to care for the children. On July 14, 1993, the third of these nannies, Nyakerario Orn-ete Brown, who had become romantically involved with R.J.M., reported that she suspected R.J.M. of sexually abusing S.M. Upon receiving Brown's report of sexual abuse, DFYS took emergency custody of the children. The Alaska State Troopers interviewed S.M. the next day (an interview that Judge Greene would later find "seriously flawed"), and S.M. confirmed Brown's report, telling the troopers "that her father had been sexually abusing her over a period of time." Based on the report of S.M.'s sexual abuse, DFYS filed a CINA petition for temporary custody on July 17, 1993. In August, the initial petition was replaced by a petition reiterating the sexual abuse allegations, noting that S.M. "refuse[d] to return to her father's care," and asserting that S.M.'s abuse in turn "created an unhealthy emotional climate for [J.M.]." The petition went on to state that P.M. was unable to care for the children due to her mental instability. Accordingly, the petition asserted that "[njeither parent is now able to provide for the emotional, mental and social needs of either child." A month after the children were taken into emergency custody, DFYS psychologist Marti Cranor performed psychological evaluations on them. Cranor reported that J.M. was "undersocialized" and that S.M. had poor socialization skills. Cranor found J.M. to be "an emotionally disturbed boy who struggles with significant feelings of anxiety and depression. He is an unhappy boy whose needs for dependency and protection are not being met." Cra-nor felt that J.M.'s depression might turn to attempts at suicide. Cranor found S.M. to be "a highly anxious, insecure, and depressed young lady who feels inadequate and inferior"; Cranor also noted that S.M. was "overly concerned with sexual matters," was "at risk for promiscuous behavior," and had "strong needs for support, structure, nurturance, and dependency which are not currently being met." S.M. and J.M. were initially placed in a foster home in Nenana; at the end of October, DFYS moved them to a foster home in Fairbanks in order to facilitate visitation with P.M. (who lived there) and to give them easier access to counseling. On October 25, 1993, R.J.M. stipulated, without admitting to any criminal act, that S.M. and J.M. were CINA and that their best interests would be served by committing them to State custody for a period not to exceed two years. As part of the stipulation, R.J.M. agreed to participate in a sexual offender evaluation, and DFYS agreed not to make the results of the evaluation available for criminal prosecution. The superior court accepted R.J.M.'s stipulation. After a hearing concerning P.M.'s situation, Judge Greene noted that P.M. had failed to follow through on the treatment recommendations made in the divorce action; the judge found P.M. incapable of caring for her children due to her mental problems and concluded that she would remain incapable "until she learns controls on her behavior and develops an understanding of how her behavior impacts the children." The court thus left the children in foster placement. Beginning in December 1993, S.M. and J.M. were taken out of foster care to spend a five-week visit with P.M. By the end of the visit, J.M. was anxious to go back to Nenana, but S.M. adamantly opposed leaving P.M. DFYS remained convinced, however, that P.M.'s mental problems prevented her from being a viable long-term custodian. The children's therapist recommended that they be given a permanent placement, preferably in Nena-na. Meanwhile, S.M. had recanted her statement to the Alaska State Troopers concerning R.J.M.'s acts of sexual abuse; R.J.M. had been seen by a specialist in the assessment of sexual offenders, who had concluded that R.J.M. did not fit the profile of a pedophile. Having no access to the troopers' criminal investigation files and having never been given the details of Nyakerario Ornete Brown's initial report of sexual abuse, DFYS found itself unable to confirm that R.J.M. had sexually abused S.M. Under these circumstances, in mid-January 1994, DFYS reluctantly decided to return the children to R.J.M. On the day set for return of custody, however, R.J.M., accompanied by Nyaker-ario Ornete Brown, appeared at the DFYS office and notified the children's case worker that "it would not be in the children's best interest to return home that day to him." R.J.M. gave no further explanation. At a follow-up meeting the next week, however, R.J.M. said he would be willing to take the children back at some unspecified future time; he explained that Brown would no longer be living at his house, so he needed to make alternative child-care arrangements. DFYS took R.J.M.'s behavior as a sign that his children "weren't as important as what was going on in his personal life." At a deposition of Nyakerario Ornete Brown conducted in February 1994, DFYS heard for the first time the specifics of Brown's sexual abuse allegations. Furthermore, S.M. seemed "extremely upset" at the prospect of being returned to her father. Accordingly, DFYS reconsidered its options and decided against returning custody to R.J.M. After again placing the children in foster homes, DFYS decided upon a permanent guardianship arrangement as "the most appropriate goal for the children." S.M. eventually found placement with a family in Seward; J.M.'s Fairbanks foster family volunteered to become his permanent guardians. On December 30, 1994, the court adopted a DFYS case plan recommending permanent guardianships. The following month, DFYS petitioned for appointment of guardians; trial was set for May 1995. R.J.M. and P.M. actively resisted the State's proposed guardianship arrangements. So actively, in fact, that both sets of prospective guardians felt threatened by R.J.M.'s and P.M.'s actions and began to fear that their efforts to prevent the guardianships might persist and escalate. Both prospective guardian families became reluctant to proceed with the guardian-ships under these circumstances. DFYS decided against searching for new guardians: but for the coercive atmosphere created by R.J.M. and P.M., the current placements seemed to be working out well for both children; moreover, altering custody to new guardian candidates might prove futile, since they, too, might be readily threatened and intimidated. Given R.J.M.'s and P.M.'s history of disruptive parental conduct and the "prospect . of ongoing embattlement," DFYS concluded that the proposed guardianships were no longer a viable option and that termination of parental rights offered the only realistic chance of preserving the children's current placements. On May 11, 1995, the agency petitioned to terminate R.J.M.'s and P.M.'s parental rights; several days later, the agency moved to dismiss the previously filed guardianship action.[ ] The superior court, in light of the preceding facts, found the children to be CINA under AS 47.10.010(a)(2)(F), which allows state custody of children suffering "substantial physical abuse or neglect." The superi- or court did not find the children to have been physically neglected. Rather, it read "physical" as modifying only the word "abuse," and held the phrase to include emotional as well as physical neglect. Accordingly, it terminated parental rights over J.M. Because S.M. was already fifteen years old at the time of trial, the superior court denied termination of parental rights over her, but granted CINA custody to the state. P.M. and R.J.M. appealed the ruling as it related to J.M. We held that the provision cited by the superior court covers only physical — and not emotional — neglect. We did not, however, dismiss the CINA proceeding in its entirety. Alaska Statute 47.10.010(a)(2)(A) allows CINA jurisdiction if no available person is "caring or willing to provide care" for the child. The superior court had reluctantly-held subsection (a)(2)(A) inapplicable because both parents had expressed a willingness to care for their children. While R.J.M.'s first appeal was pending, however, we issued O.R. v. State, 932 P.2d 1303 (Alaska 1997). We there held that mere words are not enough to show willingness to care for one's children in the CINA context: [W]e interpret subsection (A) to mean that a determination that a parent physically abandoned a child may also support a finding that the parent is not willing to provide care for that child. Indeed, we believe that in many cases the abandonment of a child demonstrates more clearly than testimony the parent's unwillingness to provide care. Thus, . parents cannot defeat a court's finding of abandonment simply by stating that they are willing to care for a child. Rather, a court . must look to objective conduct in deter-mining whether a parent is willing to provide care.[ ] In light of O.R., we remanded R.J.M. to the superior court for a determination of whether R.J.M. and P.M. were objectively willing to provide care for J.M. irrespective of their stated willingness. The superior court found on remand that neither parent was willing to care for J.M. Applying AS 47.10.010(a)(2)(A) and .080(c)(3), the court terminated their parental rights. R.J.M. and P.M. appeal. III. DISCUSSION A. Standard of Review In a CINA case, we will overturn the superior court's finding of facts if they are clearly erroneous. Findings are clearly erroneous if a review of the entire record leaves us with a definite and firm conviction that a mistake has been made. We apply our independent judgment in reviewing questions of statutory interpretation. Whether the trial court's findings comport with the requirements of the CINA statutes and rules is a question of law which we review de novo. The adequacy of the notice afforded a litigant in child custody proceedings is a due process issue which is a question of law. We review due process issues de novo. B. Did the Superior Court Err in Finding P.M. Unwilling to Care for Her Son? As noted above, AS 47.10.010(a)(2)(A) provides that a court can find a minor a child in need of aid if there is no available person "caring or willing to provide care" for the child. Care in this context means providing "for the physical, emotional, mental, and social needs of the child." The superior court found on remand that P.M. was unwilling to care for J.M. It stated its rationale: [P.M.] has long had significant mental health issues which have interfered with her meeting the needs of her children. Without assistance in dealing with her issues, she is unable to provide care. The court finds that a parent objectively willing to provide care would be willing to address the condition which precludes the adequate provision of care. [P.M.] has never been willing to do so. Most of her contacts with mental health professionals have been designed to prove she has no mental health issues. Moreover, the court cited P.M.'s failure to fully exercise her visitation rights to support its conclusion: Other actions objectively show [P.MJ's unwillingness to provide care for [J.M.]. [P.M.] did not consistently visit [J.M.] as much as she was entitled to do. She missed visits; she came late for visits; and she left early during visits. When she did visit, she often put [J.M.] on the spot with inappropriate comments. [P.M.] is not willing to meet [J.MJ's needs; she has her own agenda and meets her own needs. The state follows the superior court's reasoning, arguing that P.M. demonstrated her unwillingness to care principally through her unwillingness to seek treatment. P.M. claims that the state's case against her is based on questions of ability and not willingness. To this end, she argues that her words and actions demonstrate her willingness to care for her children. Moreover, P.M. argues that the superior court conceded she could not be treated. This, she argues, makes her unwillingness to undergo treatment immaterial to her willingness to care for J.M. But Judge Greene's rulings, both initially and on remand, indicate that the court had concluded that P.M. was treatable. Judge Greene stated in her first ruling: Instead of doing something about her problems, [P.M.] has consistently denied that she has any and has run from doctor to doctor looking for people to say that she's completely healthy. Her lack of insight makes treatment virtually impossible. And on remand, she found that a parent objectively willing to provide care would be willing to address the condition which precludes the adequate provision of care. [P.M.] had never been willing to do so. Most of her contacts with mental health professionals have been designed to prove she has no mental health issues. P.M. saw a set of psychologists for brief visits, but apparently never entered into any consistent or continuing form of therapy. Her failure to do so directly contravened the advice -of at least two of her doctors. Furthermore, P.M. was on notice that improvement of her mental condition was a condition of her continued parental rights. We therefore hold that P.M.'s refusal to pursue psychological help in a genuine, constructive, and committed fashion is evidence of her unwillingness to care for her son. The superior court did not err by finding that P.M. was unwilling to provide care for J.M. within the meaning of AS 47.10.010(a)(2)(A). C. Did the Superior Court Err in Finding R.J.M. Unwilling to Care for His Son? On remand, the superior court also found R.J.M. unwilling to care for J.M. The court found that R.J.M. demonstrated his unwillingness through his absenteeism before and after the divorce, his emotional neglect of his son, his refusal to accept physical custody of J.M. in January 1994, his involvement of J.M. in his conflicts with P.M. and the state, and his refusal "to surrender any ground for his son's benefit." R.J.M. argues that he has shown his willingness to care by repeated efforts to work within the system to obtain custody of J.M., and he cites testimony to support this claim. R.J.M. further argues that he has devoted considerable time and energy to developing a parenting plan, which he argues is proof that he is willing to care for J.M. He explains his reluctance to accept custody in January 1994 as a temporary move to put off custody until he could arrange for a new nanny. The state argues that R.J.M.'s attempts to participate in treatment and services to improve his parenting were "superficial" and used "largely as ammunition in the legal process rather than vehicles for true change or growth." We note the potential problems inherent in allowing termination of parental rights for emotional neglect alone. Emotional neglect defies easy characterization; one person's emotional neglect may be, after all, another person's reserve or shyness. In this case, however, there is evidence of more than simple coldness. Among the most significant conduct providing evidence on the issue of R.J.M.'s willingness to care for J.M. is the evidence that R.J.M. refused to accept custody of J.M. in January 1994. We also note that R.J.M. stipulated in 1993 to CINA jurisdiction. It was not clearly erroneous for the superi- or court to interpret these objective acts, combined with R.J.M.'s other behavior, as proof that R.J.M. was unwilling to care for J.M. D. Did the Superior Court Err in Refusing to Consider Evidence of Superseding Conditions During the Two Years between the Original Trial and Its Consideration of the Case on Remand? On remand, the superior court considered only the factual information that had been available to it at the trial in 1995-96. R.J.M. argues that any change in conditions over the two years since that trial were relevant to J.M.'s best interests, and that the court erred in not considering them. The state argues that the parents' willingness to care for J.M. was the only issue on remand, and that the superior court was under no obligation to reopen the remainder of the case at trial. We have held that a trial court "has no authority to deviate from a specific mandate of the supreme court but may take actions not inconsistent with [the supreme court's] decision." We have also held that [o]rdinarily, a remand for additional findings does not obligate the trial court to hear new evidence. We will reverse a trial court's refusal to receive new evidence on remand only when the refusal constitutes an abuse of discretion, unless we have expressly called for a new trial or eviden-tiary hearing.[ ] In this case, we remanded to the superior court "to allow the trial court to reconsider, in light of O.R., its finding on the issue of willingness to provide care." We did not expressly call for a new trial or evidentiary hearing. Although the superior court could have considered changed circumstances, it did not abuse its discretion in not doing so. For this reason, we affirm the superior court's refusal to consider any events occurring during the period between the trial and adjudication on remand. E. Is AS i7.10.010(a)(2)(A) So Vague and Ambiguous that It Violates R.J.M. ⅛ Due Process Rights ? R.J.M. asserts that AS 47.10.010(a)(2)(A) is unconstitutionally vague. He argues that allowing the state to remove a child if the parent "lack[s] empathy" or fails to satisfy a "subjective" standard of willingness to care would deprive the parent of due process. The words of the United States Supreme Court on vagueness and due process in the criminal law context are instructive here: Many statutes -will have some inherent vagueness, for "[i]n most English words and phrases there lurk uncertainties." Even trained lawyers may find it necessary to consult legal dictionaries, treatises, and judicial opinions before they may say with any certainty what some statutes may compel or forbid. All the Due Process Clause requires is that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden.[ ] More directly, we have stated that a statute can be unconstitutionally vague for any of three reasons: (1) it chills First Amendment speech; (2) it fails to give adequate notice of prohibited conduct; and (3). its imprecision "encourages arbitrary enforcement." R.J.M. argues that AS 47.10.010(a)(2)(A) violates the second and third prongs of this vagueness test because the statute provides inadequate notice of what conduct is prohibited and encourages arbitrary enforcement. R.J.M. cannot prevail on his claim that the statute impermissibly encourages arbitrary enforcement, because he has provided no evidence that the state has arbitrarily enforced this statute. We have held that "we will not invalidate a statute on vagueness grounds absent evidence of a history of arbitrary or capricious enforcement." Neither can R.J.M. prevail on his claim that the statute gives inadequate notice of prohibited conduct. Alaska Statute 47.10.010(a)(2)(A) limits intervention to cases in which the state can prove an ongoing, objectively demonstrated failure to provide basic parental care that reflects unwillingness to serve as a parent. It provides sufficient notice of the grounds for CINA jurisdiction. Accordingly, we reject R.J.M.'s claim that the statute is unconstitutionally vague. IV. CONCLUSION The superior court did not err in finding that neither parent was willing to care for J.M. The judgment is AFFIRMED. . See R.J.M. v. State, 946 P.2d 855, 867 (Alaska 1997). . R.J.M., 946 P.2d at 857-60 (citations omitted). . Now AS 47.10.010(a)(6). At the time of trial in this case, CINA status was defined in subsections (a)(2)(A)-(F) of AS 47.10.010. The legislature later repealed subsection (a)(1) of the statute; the provisions of subsections (a)(2)(A)-(F) were retained verbatim but were renumbered as AS 47.10.010(a)(l)-(6). AS 42.10.010(a)(6) is thus the current counterpart of former AS 47.10.010(a)(2)(F). We use the former statutory numbering, which governed here. Cf. R.J.M., 946 P.2d at 857 n. 1. . See RJ.M., 946 P.2d at 860. . See id. at 862. . See id. at 860. . See id. . See id. . See id. at 867. . Now AS 47.10.010(a)(1). . The relevant text of the statute — since renumbered but otherwise identical to the older version — then read: (a) Proceedings relating to a minor under 18 years of age residing or found in the state are governed by this chapter . when the court finds the minor (2) to be a child in need of aid as a result of (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 (i) both parents, (ii) the surviving parent, or (iii) one parent if the other parent's rights and responsibilities have been terminated under AS 25.13.180(c) or AS 47.10.080 or voluntarily relinquished_ . See R.J.M., 946 P.2d at 867. See also In re S.A., 912 P.2d 1235, 1238-42 (Alaska 1996) (denying CINA status where mother was willing to provide care). . O.R. v. State, 932 P.2d 1303, 1310 (Alaska 1997). . See R.J.M., 946 P.2d at 869. . See In re S.A., 912 P.2d at 1237. . See id. at 1237. . See R.R. v. State, 919 P.2d 754, 756 n. 3 (Alaska 1996). . See E.M. v. State, 959 P.2d 766, 768 (Alaska 1998). . See Lashbrook v. Lashbrook, 957 P.2d 326, 328 (Alaska 1998). . See id. . AS 47.10.990(1). . R.J.M. also argues that O.R. v. State, 932 P.2d 1303 (Alaska 1997), (and its invalidation of "willingness by declaration only") is inapplicable as precedent, because O.R. involved physical abandonment. But we remanded the case at hand with direct instructions to consider O.R. See R.J.M., 946 P.2d at 869. . See R.J.M., 946 P.2d at 859. . See id. at 858. . R.J.M. has had no contact with his son since December 1995, and he relies on conjecture and DFYS documents to support his contention that the child's circumstances have changed. . A.M. v. State, 945 P.2d 296, 300-01 (Alaska 1997) (footnote omitted). . Murray v. Murray, 856 P.2d 463, 466 (Alaska 1993) (footnote omitted). . R.J.M., 946 P.2d at 869. .Rose v. Locke, 423 U.S. 48, 49-50, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975) (citations omitted); see also Anderson v. State, 562 P.2d 351, 356 n. 10 (Alaska 1977). . R.R. v. State, 919 P.2d 754, 758 (Alaska 1996) (citing Summers v. Anchorage, 589 P.2d 863, 866-67 (Alaska 1979)). . Levshakoff v. State, 565 P.2d 504, 507 (Alaska 1977).

10366036

Roger E. HOLL, Appellant, v. Constance E. HOLL, Appellee

Holl v. Holl

1991-08-16

Nos. S-3109, S-3178

379

384

815 P.2d 379

815

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Roger E. HOLL, Appellant, v. Constance E. HOLL, Appellee.

Roger E. HOLL, Appellant, v. Constance E. HOLL, Appellee. Nos. S-3109, S-3178. Supreme Court of Alaska. Aug. 16, 1991. Peter F. Mysing, Kenai, for appellant. Max F. Gruenberg, Jr., Gruenberg & Clover, Anchorage, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

3409

20668

OPINION PER CURIAM. Roger and Constance Holl were married in 1976. They had three children prior to their divorce in 1986. The issue of custody was bifurcated from divorce and property issues, and tried separately. The custody trial lasted four days, taking place over a nine month period. The trial court found that "joint custody is not appropriate in this case" and further that "[i]t is in the best interests of the minor children that they be placed in the custody of [Constance], not contingent upon whether she moves [from the Kenai-Soldotna area] or any other factor." Reasonable rights of visitation were found to be appropriate, and a decree was entered accordingly. The trial court denied Roger's motion for reconsideration, but expanded upon its prior findings with respect to factors it considered significant to its custody determination. Roger appealed. We affirmed the trial court's judgment in part, but remanded "for further findings of fact [the trial court's] decision granting Constance Holl sole custody of the children...." In due course the trial court entered FINDINGS OF FACT ON REMAND. Roger again appeals. We affirm. As we have often remarked, "[c]hild custody determinations are among the most difficult in the law." Horton v. Horton, 519 P.2d 1131, 1132 (Alaska 1974); see also Horutz v. Horutz, 560 P.2d 397, 399 (Alaska 1977); Lacy v. Lacy, 553 P.2d 928, 929 (Alaska 1976). Trial courts are vested with broad discretion in determining child custody issues. Julsen v. Julsen, 741 P.2d 642, 648 (Alaska 1978). We will reverse a trial court's custody determination only if we are convinced that the trial court has abused its broad discretion, or if controlling findings of fact are clearly erroneous. Id.; Starkweather v. Curritt, 636 P.2d 1181, 1182 (Alaska 1981); Horutz, 560 P.2d at 399. When reviewing a trial court's findings of fact, we are directed by the principle that "[i]t is primarily the trial court's function to weigh the evidence for the purpose of making findings, and on appeal, deference must be given to the trial court's decision, particularly because of the trial court's advantage in observing the witness." Bonjour v. Bonjour, 566 P.2d 667, 669 (Alaska 1977). "We merely determine whether the trial court's finding is supported by the record." Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1190 (Alaska 1987) (quoting Brooks v. Brooks, 733 P.2d 1044, 1051 (Alaska 1987)). In its oral findings of fact regarding custody, rendered from the bench at the conclusion of the trial, the trial court said: But, let me tell you where I am on custody. After reviewing the evidence of the relationship of the parents to each other and the children to their parents, in spite of hearing the positions stated by the parties today, I don't think that joint custody is appropriate for these children and I do think that they should be placed in the custody of their mother and that should not be based on some kind of contingency if they move or don't move kind of thing and that Mr. Holl should continue to have substantial visitation. And, if the parties are able to work it out so that it continues to be one week and one week, that is a certain kind of parental wisdom that they may and have the right to exercise over their children; however, subject to the parents agreeing, which they sound like they actually have reached agreement on equal care of the children, it would be the Court's order that the visitation of the Defendant be the standard weekend, alternating holidays and three or four weeks in the summer kind of visitation and that the Court is not making it a contingent order, it's the order of the Court and if she wishes to grant a greater visitation, that's up to her. I do this because I think that the key for children, as well as having a relationship with both parents which is at the heart of this idea of joint custody and of trying to find wise orders for parenting, I think that the key is reaching some stability for these — children and if you listen to the information that's come to this Court about these children, they need that very, very much and lack it to some substantial degree by virtue of their conduct, behavior and the problems that they've experienced and demonstrate. One of the examples, just in today's testimony if you listen back to it, the children saying, "Mom, can I come home?" I think that that is the kind of, you know, maybe an accidental way of phrasing the testimony, maybe it was a precise recitation, but I think it's characteristic of the impression that this Court has received about the view of these children toward their experience being in this split relationship and that is that they have a home one place and that they are with dad at another and that's how it is. And, that it's important, I think, for children to have a place. To be constantly buffeted back and forth is not wholesome, no matter how much it may be done, and that equality of time together is not the cross upon which children should be crucified. They need to have stability, a sense of place, along with a meaningful relationship with both parents. And, I think that to the extent this Court must make a finding as to what's in the best interest of the children, it does so in finding that Constance Holl can better parent, meeting the needs for love, affection, daily care and that she can promote and will promote this meaningful relationship with Mr. Holl in spite of the problems that both sides have recognized and about which she has testified as well as Mr. Holl to some extent. So, that's the Court's ruling on custody. In its ADDITIONAL FACTUAL FINDINGS that accompanied its denial of Roger's motion for reconsideration, the trial court made several findings bearing directly on custody. It noted that it was placing particular emphasis and had scrutinized most carefully the testimony of the parents, much of the testimony of other witnesses being either cumulative or second hand. It had weighed the demeanor and had judged the credibility of the parents. The trial court was impressed with Constance's testimony and demeanor. It found her to be believable and particularly relied on her testimony when it differed from Roger's. It believed that many of the instances of abuse Constance recounted had actually taken place. The trial court identified incidents of noncooperation by Roger: (a) avoidance of service of process; (b) encumbering his airplane against a standing order; (c) failure to assist Constance in maintaining the family home; (d) denial to Constance of assistance in regard to a sewage problem; (e) failure to provide adequate support for the family; (f) inability to work with Constance unless he was given equal time with the children. The court found specifically that "[Constance] did not willingly enter into any kind of permanent joint custody agreement with [Roger], but her acquiescence was dictated largely out of necessity. She had little choice but to remain in Kenai, because she had few financial resources to move elsewhere, particularly during the pendency of this case." The court concluded by finding that Constance had a greater capacity and desire to meet the emotional and social needs of the children than did Roger, and "that any benefit in the children's remaining in Ke-nai/Soldotna [was] outweighed by [the children's] need for a stable environment with [Constance].... " The trial court's FINDINGS OF FACT ON REMAND, appendix "A" hereto, amplify on its prior oral and written findings and include specific record citations to evidence supporting the amplified findings. The evidence presented to the trial court is not one-sided. To be sure, Roger presented evidence which was in sharp contrast to that presented by Constance, or which cast her evidence in a light less favorable to her and more favorable to him. Had the trial court chosen to believe Roger, the presumption for shared custody declared by the legislature in the legislative intent found in ch. 88, section 1, SLA 1982, and approved by this court, might require a different result. However, the trial court chose not to believe Roger on critical matters, and set forth its reasons for denying shared custody, as is required of it by AS 25.20.100. Given the evidence in the record, and given the deference due the trial court's findings and the exercise of its discretion, we cannot say that we are left with a definite and firm conviction that the findings are not supported by the evidence or that the trial court abused its broad discretion in awarding sole legal custody to Constance. The judgment of the trial court is AFFIRMED. MATTHEWS, J., with whom RABINOWITZ, C.J., joins, dissenting. APPENDIX "A" FINDINGS OF FACT ON REMAND This court has been asked to expand upon the findings of fact supporting its ruling that Constance Holl have sole legal custody of the Holl children, rather than ordering "joint [shared] legal custody" of the children. Specifically, the Supreme Court has inquired how "alleged" instances of abuse affected Roger Holl's suitability as a "joint custodian" of the children, and whether post separation conduct tends to support "joint custody." This court found it proper to bifurcate the physical custody of the children, but not the legal custody. The custodial parent — regardless whether there is a sharing of legal custody — will determine such things as what the children eat and wear, daily responsibilities around the home, curfews, what school the child attends, and the extracurricular activities of the child. Among the matters of significant concern in which both parents ought to be involved include permission to marry before age 16, whether to approve elective surgery, whether to remain in school, what to do after high school, and what to do with the child's property. Of these, permission to marry requires both parents to approve. The other matters generally only require one parent's approval even in a unitary family. It is seldom that parents exercise these "legal" responsibilities in any family. The rarity of the need to exercise such powers does not diminish the significance of the moments of their exercise, and underscores the importance of them to the child. Roger was not given joint legal custody based on his past behavior. The only basis for predicting human conduct is prior experience and common sense. When a parent has been domineering, physically and emotionally abusive, disparaging of others, and generally uncooperative unless they got their way, then a court can only conclude that is how they will behave in the future. Examples of Roger Holl's uncooperative, abusive and disparaging conduct can be found in the record on appeal at transcript pp. 207-12, 214, 240, 245, 246-47, 249, 424-25, 432, 1255-59. Also see, record, at pp. 41-50. To the extent that physical and emotional abuse and disparagement were demonstrated by Roger Holl, his conduct toward Constance in front of the children taught the children how not to behave toward anyone, much less a family member. Parental misconduct by Roger Holl in front of the Holl children is described in the appellate record at transcript pp. 207, 424, and 1265. See also, appellate record pp. 41-50, esp. p. 48 [pretrial affidavits were made part of the trial record by stipulation of counsel.] The lack of spousal support within the marriage, i.e., failure to help maintain the home, the sewage incident, etc., demonstrate a failure to communicate and a destructive self-righteousness. These failures to aid in his children's welfare demonstrate Roger's tendency to let his emotions get in the way of acting in the best interests of the children on fundamental practical aspects of every-day life. This court cannot conclude that such a person should share authority with the primary, day-today custodian on matters requiring legal authority. Roger's post-separation conduct does not lead to a different result. The record reflected that Roger was seeking equal physical and legal custody and did so to the point of discouraging and opposing Constance's plan to move to where she could be employed in her profession. See transcript pp. 448, 1299-1300. This behavior only further demonstrates his unwillingness to accommodate others, a trait which is necessary for effective shared legal custody. Parenting inadequacy and inability to cooperate is demonstrated thoughtout the appellate record, including at transcript pp. 72-74, 219-22, 236-37, 436, 450. Despite the above, Mr. Holl has "standard visitation" of a non-custodial parent in order to promote the children's best interest. This court — and the law — believes that it is important for non-custodial parent to have significant and meaningful relationships with their children, not as a benefit or right of parenthood, but because it is in the interest of children to know their parents. The legislature has observed that physical custody may not be shared in all cases. It has also stated that, subject to the rubric of the "best interests of the child," that both parents should "have the opportunity to guide and nurture their children." The intention that parents have the opportunity to guide and nurture is being fulfilled when non-custodial parents exercise visitation. The court has found Roger Holl and Constance Holl to have demonstrated an inability to co-parent, because they cannot cooperate. It has found that Roger Holl can sustain a non-custodial parenting role through "standard" visitation. The court has found that when serious issues requiring the exercise of legal responsibility arise, the duty should reside wholly in the primary custodial parent. The record demonstrates that Roger acts in an uncooperative and abusive manner which can be expected to surface in contentious bickering at the very times when calm and a single voice of reason are most needed. For these reasons, this court finds that joint legal custody is inappropriate in this case. Dated this 3 day of August, 1990, at Anchorage, Alaska. /s/ Peter A. Michalski PETER A. MICHALSKI Superior Court Judge . This court found that Roger Holl physically and emotionally abused Constance Holl. See Order on Defendant's Motion for Reconsideration and Additional Factual Findings, November 7, 1988, para. 1. ("The court believes that many of the instances of abuse [Constance] recounted actually took place.")

10365651

Cynthia Rae THOMAS, Appellant, v. Lonnie Samuel THOMAS, Appellee

Thomas v. Thomas

1991-08-09

No. S-3336

374

378

815 P.2d 374

815

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Cynthia Rae THOMAS, Appellant, v. Lonnie Samuel THOMAS, Appellee.

Cynthia Rae THOMAS, Appellant, v. Lonnie Samuel THOMAS, Appellee. No. S-3336. Supreme Court of Alaska. Aug. 9, 1991. Kenneth P. Jacobus, Anchorage, for appellant. William T. Ford, Anchorage, for appellee. Before RABINOWITZ, C.J., and MATTHEWS, COMPTON and MOORE, JJ.

2188

13300

OPINION MOORE, Justice. This appeal presents two issues pertaining to the valuation of certain items of marital property. Cynthia Thomas challenges the superior court's valuation of her non-vested retirement benefits at the amount of her contributions. She also contests the trial court's failure to account for appreciation in its valuation of a purse seine limited entry permit. On the record before us, we reverse and remand this case to the superior court for new findings of fact or for clarification of its previous findings of fact and conclusions of law so as to be consistent with this opinion. I. Facts and Proceedings Cynthia and Lonnie Thomas were married on March 25, 1978 in Everett, Washington. The parties separated in December 1987 and Cynthia filed for divorce on February 1, 1988. Trial was held from February 14-16,1989. There were no children to the marriage and the trial centered on the division of the parties' real and personal property. The court divided the $223,479 marital estate equally, awarding $111,740 to Cynthia and $111,739 to Lonnie. Lonnie was ordered to pay Cynthia $50,590 to buy her equity in the marital assets he received. The payments were to be made through annual installments of $15,000 plus interest, to be paid in full by March 1992. Cynthia filed a Motion for Reconsideration of the value of certain items of marital property. Lonnie opposed her motion, and it was denied on February 24, 1989. She then appealed the trial court's valuation of her non-vested pension plan at $25,542, the amount it determined to be her contributions during the marriage, and of a limited entry purse seine permit which was assigned to Lonnie with an offset to Cynthia of $8,750. Both parties subsequently attempted to expand the scope of the appeal, Cynthia by moving to amend her statement of points on appeal and Lonnie by filing a belated cross-appeal. Their motions were denied by order on October 8, 1990. The scope of this appeal is limited to the two issues set forth in Cynthia's original statement of points on appeal. II. Property Valuation A. Standard of Review The issues presented in this case require review of the value assigned by the trial court to particular marital assets. A trial court's valuation of marital property is reviewed only for clear error. Moffitt v. Moffitt, 749 P.2d 343, 346 (Alaska 1988). A decision is clearly erroneous where this court is left with a definite and firm conviction on the entire record that a mistake has been made. Martens v. Metzgar, 591 P.2d 541, 544 (Alaska 1979). B. Non-vested Pension At the time of trial, Cynthia had nine years in an IBEW pension fund and needed one additional year for it to vest. Cynthia testified that she had six more years in which she could perform the final year of service, but that she had been attending the University of Alaska for the past three years and, although she had been applying for jobs throughout that time, she "[hadn't] had any bites." Although she hoped to be able to finish the final year required to vest her pension, because of the tight job market in her field, she thought it "highly improbable" that she would be able to do so. The trial court valued Cynthia's retirement plan at $25,542, the amount of her contributions from January 1, 1978 to December 31, 1985. Cynthia argues that the "value of contributions" approach used by the trial court is inappropriate and results in an excessive valuation. She asserts that nonvested pensions should be valued according to the "reserved jurisdiction" approach. See Laing v. Laing, 741 P.2d 649 (Alaska 1987). In Laing we stated our preference for reserving jurisdiction as an alternative to valuing non-vested pensions at the time of trial. Under this approach, a non-vested pension is not considered when the trial court makes its initial property division at the time of the divorce. Rather, the court reserves jurisdiction and if the pension vests, the non-employee spouse may seek an order dividing the pension, which will be done in the same manner as it would have been if the pension was vested at the time of the divorce. Id. at 658. However, our discussion in Laing does not discuss the procedure to follow when it is apparent at the time of trial that a non-vested pension will not vest. In some such cases, although the pension benefits are forfeited, the employee's contributions are returned. Where the employee's contributions to the plan are refunded, the plan has essentially functioned as a savings account; contributions made during the course of the marriage would logically be marital property. If it is apparent at the time of trial that vesting is extremely unlikely then it would be inappropriate for the trial court to needlessly delay the final resolution of a divorcing couple's financial affairs. See Laing, 741 P.2d at 657. The trial court's valuation implies that it found, based on Cynthia's testimony that she cannot find employment in her field, that Cynthia's pension will not vest and that it assumed her contributions will be refunded at some point. However, the trial court's findings of fact and conclusions of law do not state any finding that the pension will not vest. Nor is there any basis in the record upon which to determine whether Cynthia's contributions will be refunded to her. Unless it is a finding of the court that the pension will not vest, the court's failure to follow Laing was clearly erroneous. In addition, even if the court did find that Cynthia's pension will not vest, in the absence of an evidentiary basis in the record to show that her contributions will be refunded, it was clearly erroneous to include the value of Cynthia's contributions in her portion of the property distribution. Therefore, we reverse the court's valuation of Cynthia's pension and remand to the trial court to clarify its previous findings or to make new findings of fact for the following proceedings. If the court finds that the pension may vest in the future, it is directed to retain jurisdiction and follow the valuation procedure set forth in Laing. However, if it finds that the pension will not vest, then an evidentiary hearing must be held to determine whether Cynthia's contributions will be refunded. If it is established that Cynthia's contributions will be refunded, the trial court may then properly value the pension at $25,652, the amount determined to be Cynthia's contributions during the course of the marriage. However, if it is shown that her contributions will not be refunded, the proper valuation of the pension is zero, the property distribution must be reassessed accordingly, and an amended judgment must be entered. C. Limited Entry Purse Seine Permit In March 1978, the day after the parties were married, they purchased a boat and an Alaska Power Troll Permit for approximately $18,000. According to Cynthia's expert, Richard Focht; Jr., research analyst for the Alaska Commercial Fisheries Entry Commission, the estimated value of a troll permit during the first quarter of 1978 was $12,841. In mid-1978, Lonnie traded the troll permit to his brother, Edward Thomas, in exchange for Edward's limited entry purse seine permit. Focht estimated that the value of the purse seine permit in December 1987, when the parties separated, was approximately $42,750. At the time of trial, the purse seine permit had a value of approximately $75,667 according to Focht. Lonnie does not dispute Focht's valuations. Throughout the proceedings Lonnie maintained that the permit was his separate property. The trial court awarded the purse seine permit to Lonnie; however, it refused to treat the permit as a separate asset. Accordingly, it concluded that Cynthia was entitled to an offsetting award equal to the value of her half of the permit. The valuation it assigned to her was $8,750. Cynthia now argues that the trial court's failure to account for appreciation in its valuation of the permit was clearly erroneous. We agree. We have stated that equity in a marital asset which accumulates during a marriage is marital property. Burgess v. Burgess, 710 P.2d 417, 420-21 (Alaska 1985). We have also ruled that in valuing a marital asset, "the court should look to the asset's fair market value." Nelson v. Jones, 781 P.2d 964, 970 (Alaska 1989) (citing Richmond v. Richmond, 779 P.2d 1211, 1214-15 (Alaska 1989)). Lonnie does not dispute Cynthia's claim that the trial court erroneously failed to include appreciation in the valuation of the purse seine permit. However, he proposes that the purse seine permit should be valued at $42,750, its value as of December 1987, when the parties separated rather than $75,667, its value at the time of the trial. In our recent decision, Ogard v. Ogard, 808 P.2d 815, 819 (Alaska 1991), we expressed a clear preference that property should be valued for division purposes at the date of trial rather than the date of separation. Despite this preference in favor of valuation at the time of trial, there still may be limited special circumstances where the trial court has discretion to select an earlier date, such as when that date is agreed to by the parties. The separation date may be used when special circumstances of the case demonstrate that a truly fair and appropriate property evaluation and division of assets cannot otherwise be achieved. See Moffitt v. Moffitt, 813 P.2d 674, 678 (Alaska 1991); Dixon v. Dixon, 747 P.2d 1169, 1174 (Alaska 1987). Since the trial court's findings of fact and conclusions of law indicate that the valuations it assigned were intended to reflect the value of marital property at the date of separation rather than the date of trial, there is an implication that the court found that special circumstances justified valuation at the date of separation. However, the court did not state the reasons for its selection of the separation date for valuation or identify specific circumstances which require valuation prior to the date of trial. Therefore, we remand to the trial court to state the basis, if any, for its valuation of the parties' property at the date of separation. In addition, the court should identify any basis for valuing the permit on a date other than the date of valuation for other property. If the court can identify a strong basis for valuing the permit at the date of separation, it should value the permit at $42,750 and state its reasons for selecting the separation date for the. valuation. However, if the court cannot identify a sufficiently compelling reason to override the Ogard presumption in favor of the trial date, the court should value the permit at $75,667. Finally, the court must amend its findings of fact and conclusions of law in accordance with the considerations set forth in this opinion, and enter an amended judgment. REVERSED and REMANDED. . Cynthia alternatively argues that contributions from January 1 to March 25, 1978 (the date the parties were married) should be excluded. However, $25,542 is the figure Cynthia's attorney gave the court when asked for the amount of marital contributions. Furthermore, any injustice stemming from inclusion of premarital contributions is balanced by the court's failure to include marital contributions for the year 1986. . Once a pension is vested, the trial court may determine its present value and award the non-employee spouse the appropriate percentage of the fraction of the present value which represents the marital contribution to the accrued pension benefits. Laing, 741 P.2d at 657-58. Alternatively, to avoid requiring the employee spouse to retire, it may retain jurisdiction and allow the employee spouse to periodically pay the non-employee spouse sums equal to the pension benefits which would otherwise be received. Morlan v. Morlan, 720 P.2d 497, 498 (Alaska 1986). . Lonnie again opposes Cynthia's proposed valuation on the ground that the permit was his separate property. Brooks v. Brooks, 733 P.2d 1044, 1054 (Alaska 1987). However, Lonnie did not appeal the trial court's treatment of the permit as marital property. Therefore, this issue is not properly before us. Alaska R.App.P. 204(a)(2). . The court did not explain this valuation. The parties agree that this figure most likely represents half of the estimated purchase price for the troll permit for which the purse seine permit was traded ($17,500/2 = $8,750). .Lonnie argues that the sales value of the permit is irrelevant because the permit could not be sold without depriving him of his livelihood. We reject this argument. The permit is analogous to a business with respect to its income-producing potential. When a divorcing couple's marital property includes a business which is "important, necessary and instrumental in [one spouse's] continued employment," the trial court may award that property to the operating spouse. Lewis v. Lewis, 785 P.2d 550, 557 (Alaska 1990). However, since the business is marital property, the other spouse must obviously be compensated for his or her share of the value of the business.

10376419

DIAGNOSTIC IMAGING CENTER ASSOCIATES, a Limited Partnership, and Harold Cable, an individual, Appellants, v. H & P, a General Partnership, Appellee

Diagnostic Imaging Center Associates v. H & P

1991-08-16

No. S-3817

865

868

815 P.2d 865

815

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

DIAGNOSTIC IMAGING CENTER ASSOCIATES, a Limited Partnership, and Harold Cable, an individual, Appellants, v. H & P, a General Partnership, Appellee.

DIAGNOSTIC IMAGING CENTER ASSOCIATES, a Limited Partnership, and Harold Cable, an individual, Appellants, v. H & P, a General Partnership, Appellee. No. S-3817. Supreme Court of Alaska. Aug. 16, 1991. William Grant Stewart, McCarrey & McCarrey, Inc., Anchorage, for appellants. Richard H. Foley, Jr., Foley & Foley, Anchorage, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

1494

9124

OPINION MATTHEWS, Justice. Appellants, defendants below, are Diagnostic Imaging Center Associates ("DICA"), a limited partnership, and Dr. Harold Cable, a general partner in DICA. Appellee, plaintiff below, is H & P, a general partnership formed by Dr. James Pister and Dr. Randolph Hall in 1982. Pister formed DICA with two other doctors in 1984, and remained a partner until 1988. Cable became a general partner in DICA in 1987. Prior to the formation of DICA, H & P entered into a lease/purchase agreement with Equitable Life Leasing Company (the "Equitable lease") for two ultrasound machines. On or about September 1, 1984, H & P orally agreed to sublease the two ultrasound machines to DICA. Under the terms of the sublease, DICA paid $3,878.48 monthly to H & P for the machines, an amount identical to H & P's monthly lease obligation to Equitable. In 1987 and 1988, various disputes arose between DICA and H & P. Pister was repeatedly questioned by the other DICA partners about the oral sublease. Pister told Cable and the other DICA partners that the sublease "corresponded exactly with [H & P's] lease/purchase agreement with Equitable Life and that both leases expired in September 1989, and that at that time, title to both pieces of equipment would vest in DICA at no additional cost." In fact, the Equitable lease ended in May and June of 1988. On February 18, 1988, H & P and DICA, each aided by counsel, entered into a written settlement agreement to resolve their disputes. Among other things, the agreement outlined the terms of the oral sublease. Although there is no mention of the length of the Equitable lease in the agreement, during the negotiations H & P's attorney represented to DICA that the Equitable lease expired in the summer of 1989. Under the terms of the settlement agreement, payments were to continue through September 1, 1989. According to DICA, this was to give H & P a few months of payments beyond that required to pay off Equitable. At the time of the settlement agreement, DICA was unaware that the Equitable lease was to expire in 1988, not 1989, and that the agreement provided H & P with fifteen months of payments after the Equitable lease ended. Cable states that he would not have agreed to the sublease provision in the settlement agreement if he had known the truth about the Equitable lease. Paragraph 22 of the settlement agreement contains an integration clause providing: This agreement contains the entire understanding between the parties and supersedes all prior and contemporaneous understandings and agreements between them respecting the within subject matter. The parties also agreed to execute "mutual releases releasing each other from all claims which they may have against one another arising out of the DICA Limited Partnership...." In April 1988, Equitable threatened to repossess the machines because H & P was not making the lease payments. DICA contacted Equitable directly and learned that the Equitable lease actually expired in 1988. DICA then made the lease payments directly to Equitable, bypassing H & P. Title to the machines was transferred from Equitable to DICA at the end of the Equitable lease. H & P sued DICA, seeking the additional sublease payments required under the terms of the settlement agreement. The superior court granted H & P's motion for summary judgment without opinion and awarded H & P $60,410.43 plus costs, interest, and attorney's fees. DICA appeals. DICA argues that the settlement agreement was induced by a misrepresentation concerning the length of the Equitable lease. Alternatively, DICA argues that the agreement was the product either of a mutual mistake as to the length of the Equitable lease, or a unilateral mistake by DICA which was or should have been appreciated by H & P. On these grounds DICA seeks rescission or reformation of the agreement. H & P counters with a lengthy discussion of the parole evidence rule. The rule, however, does not apply where a contract has been formed as a result of misrepresentation or mutual mistake. Gablick v. Wolfe, 469 P.2d 391, 394-95 (Alaska 1970). H & P's argument that the misrepresentations or mistakes were not material is also unconvincing. H & P argues that DICA agreed in the settlement agreement to pay a reasonable price for the ultrasound machines and therefore Pister's profit on the transaction is immaterial. This argument fails to consider the full circumstances of the settlement transaction. We defined materiality in Cousineau v. Walker, 613 P.2d 608, 613 (Alaska 1980). Materiality is a mixed question of law and fact. A material fact is one "to which a reasonable man might be expected to attach importance in making his choice of action." It is a fact which could reasonably be expected to influence someone's judgment or conduct concerning a transaction. (quoting W. Prosser, Law of Torts § 108, at 719 (4th ed. 1971)) (other citations omitted). H & P and DICA were negotiating a settlement to a number of disputes, and we assume that each party made a number of concessions. That H & P was to receive a profit of more than $45,000 beyond that disclosed to DICA is a fact to which a reasonable negotiator would be expected to attach importance and cannot be immaterial. This is particularly true in light of the fact that Pister was a partner in both H & P and DICA at the time the settlement agreement was negotiated. Cable, the other DICA partner, might well have resented any profit Pister was making at his expense. There is evidence in the record which tends to confirm the materiality of H & P's misrepresentations. Dr. Cable states that he agreed to the settlement "with the understanding that the Equitable leases expired in the summer of 1989, and I would not, and did not, agree that H & P would receive a year of payments beyond what was needed to pay the Equitable lease/purchase." Gidcumb, DICA's attorney during the settlement negotiations, states that he relied on the representations of H & P's attorney and that if he had been aware of the true expiration dates of the Equitable leases he would not have been authorized to agree to a 1989 expiration of the sublease. Because there are genuine issues of material fact concerning whether material misrepresentations or mistakes were made, the judgment in this case must be reversed and the case remanded for further proceedings. REVERSED and REMANDED. . Pister denies making any representations about the length of the Equitable leases. However, because we must view the facts in the light most favorable to DICA, the non-moving party, we assume that the disputed representations were made. Duty Free Shoppers Group, Ltd. v. State, 111 P.2d 649, 652 (Alaska 1989). . The Preamble to the settlement agreement provides in part: WHEREAS, H & P is the lessor of one (1) ATL 600 Ultrasound Machine and one (1) ADR 4000 Ultrasound Machine from Equitable Life Leasing Corporation. These machines are currently being subleased to DICA for the sum of THREE THOUSAND EIGHT HUNDRED SEVENTY-EIGHT DOLLARS AND FORTY-EIGHT CENTS ($3,878.48) per month for a period of five years beginning on September 1, 1984 with final payment due on or before September 1, 1989. Paragraph 6 of the agreement provides: H & P will execute a Bill of Sale conveying all right, title and interest which it may have in the ATL 600 Ultrasound Machine and ADR 4000 Ultrasound Machine to DICA. Consideration for said transfer shall be payments of THREE THOUSAND EIGHT HUNDRED SEVENTY-EIGHT DOLLARS AND FORTY-EIGHT CENTS ($3,878.48) on the first day of each month through and including September 1, 1989. .Notes taken by DICA's attorney Lance E. Gid-cumb, of his conversation with H & P's attorney Stanley Lewis, suggest that DICA was told the lease expired in 1989. Although Lewis denies making such representations, we are required to accept DICA's version of the facts, see supra note 1, and therefore assume Lewis told Gid-cumb that the Equitable lease expired in 1989. .According to Gidcumb, he and Lewis called Cindy Allopena of Equitable on April 19, 1988, "and both of us were shocked to be told by her that the leases expired in May and June of 1988 and not 1989, and I remember seeing that Mr. Lewis was visibly disturbed when he heard this." . H & P acknowledges this rule at one point in its brief. . By the time the settlement agreement was entered into, only Pister and Cable remained as general partners in DICA. . Because we reverse and remand on the merits, the award of attorney's fees is vacated. For the same reason, the defendants' motion to amend clearly is no longer futile, as argued by H & P. Thus, on remand, the superior court should consider anew the defendants' motion to amend.

10328069

Tariq JAVED, Appellant, v. DEPARTMENT OF PUBLIC SAFETY, DIVISION OF MOTOR VEHICLES, State of Alaska, Appellee

Javed v. Department of Public Safety, Division of Motor Vehicles

1996-07-26

No. S-6296

620

626

921 P.2d 620

921

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

Before COMPTON, C.J., RABINOWITZ, MATTHEWS and EASTAUGH, JJ., and CARPENETI, J. Pro Tern.

Tariq JAVED, Appellant, v. DEPARTMENT OF PUBLIC SAFETY, DIVISION OF MOTOR VEHICLES, State of Alaska, Appellee.

Tariq JAVED, Appellant, v. DEPARTMENT OF PUBLIC SAFETY, DIVISION OF MOTOR VEHICLES, State of Alaska, Appellee. No. S-6296. Supreme Court of Alaska. July 26, 1996. Charles W. Coe, Anchorage, for Appellant. Eric A. Johnson, Dianne Olsen, Assistant Attorneys General, Anchorage, Bruce M. Bo-telho, Attorney General, Juneau, for Appel-lee. Before COMPTON, C.J., RABINOWITZ, MATTHEWS and EASTAUGH, JJ., and CARPENETI, J. Pro Tern. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

3420

21026

OPINION MATTHEWS, Justice. On September 12, 1992, Anchorage Police Officers Culbreth, Dash, and Norsworthy responded to a complaint concerning a disturbance at 3800 Arctic Boulevard. Upon arriving, they found Tariq Javed tied to a post on the property. Javed appeared to be intoxicated. The officers interviewed the three other citizens present. Chevelle Carrington told Officer Culbreth that she was driving on 36th Avenue when Javed pulled up next to her and began to flirt with her. She said that Javed cut her off twice and followed her into the parking lot at 3800 Arctic. She said that he then got out of the car, yelled at her, and drove off, only to come back to the parking lot on foot a few minutes later. Officer Culbreth also interviewed Donald Thompson. Thompson stated that he saw Javed yell at Carrington, drive away, and then return. Officer Dash interviewed Jerome Workman. Workman said that Javed parked his car in the parking lot at 3800 Arctic, got out of his car, and began harassing Carrington. Workman stated that he told Javed to leave. Workman stated that Javed parked his car across the street and walked back to the property. Workman said that he then detained Javed and placed him under citizen's arrest. The police officers arrested Javed for trespass and driving while intoxicated (DWI). Javed admitted drinking but repeatedly denied driving. The officers searched Javed but did not find any car keys. An intoxime-ter test showed that Javed's blood alcohol level was above the legal limit. In the license revocation proceedings, Javed's defense was that he had not been driving. According to Javed, he had become intoxicated while visiting the home of a friend, Muhammad Malik. Malik started to drive Javed home in Javed's car. Malik and Javed got into an argument near 36th Avenue and Arctic. Malik parked the ear, took Javed's keys, and walked away. Javed walked into the parking lot at 3800 Arctic, where he became involved in an altercation with Carrington, Thompson and Workman, who ultimately tied him to a post. Malik testified at the revocation proceedings, corroborating Javed's testimony. Javed's license revocation proceedings were broken up into three hearings. Officers Culbreth and Dash testified, over repeated objections by Javed, about the statements made to them by Carrington, Thompson, and Workman. A written statement by Work man and written reports describing the statements made by Carrington, Thompson, and Workman were included in Officer Dash's arrest report, which was part of the record before the hearing officer. Javed requested that all witnesses be subpoenaed. After the second hearing, the hearing officer subpoenaed the civilian witnesses; The testimony of the civilian witnesses was never taken at the third hearing, however, because Carrington and Thompson arrived late, after the hearing had been closed, and Workman did not appear at all. The hearing officer affirmed the license revocation, stating, "The law does not require the officer [to] see the person drive, only to have reasonable grounds to believe that the person drove. I believe reasonable grounds exist in this situation." Javed appealed to the superior court, which affirmed without opinion. Javed then appealed to this court. In his briefing, Javed asserted essentially that the hearing officer improperly relied upon hearsay evidence and denied him the right to confront and cross-examine witnesses. The State argued that the hearing officer found substantial evidence that the arresting officers had reasonable grounds to believe that Javed had been driving, and that the revocation was therefore lawful. This court sua sponte ordered supplemental briefing to address the following issues: (1) Where the accused at an administrative license revocation hearing has presented evidence that he did not drive, does the due process clause of the Alaska Constitution permit the hearing officer to suspend the driver's license of the accused without finding that a preponderance of admissible evidence shows that the accused actually drove or operated his vehicle? (2) If due process does require the hearing officer to find that the accused actually drove, is AS 28.15.166(g) [limiting the scope of the hearing to whether the officer had reasonable grounds to believe the accused was DWI] unconstitutional? Or can the constitutionality of AS 28.15.166(g) be saved by construing it to permit an inquiry by the hearing officer into whether the accused actually drove? If AS 28.15.166(g) is given such a saving construction, what sort of inquiries will it continue to prohibit? (3)If AS 28.25.166(g) is unconstitutional, is it severable from the rest of AS 28.15.166? Having considered the initial and supplemental briefs of the parties we conclude as follows: (1) where there is an issue as to whether the accused was driving, due process requires an inquiry into that issue before the driver's license of the accused may be suspended; (2) as written, AS 28.15.166(g) prohibits such an inquiry; (3) the limiting language in AS 28.15.166(g) is therefore unconstitutional as applied to cases where there is an issue as to whether the accused was driving; and (4) as the hearing officer did not consider the question whether Javed was driving, this case must be remanded for a new hearing at which that issue must be addressed. Due Process Requires an Inquiry into Whether a Licensee Was Actually Driving a Vehicle before a Driver's License May Be Suspended. A driver's license represents an important property interest which is protected under the due process clause of the Alaska Constitution. Haynes v. State, Dep't of Public Safety, 865 P.2d 753, 756 (Alaska 1993); Graham v. State, 633 P.2d 211, 216 (Alaska 1981). We have held that licensees are entitled to a "meaningful hearing" before their driver's licenses may be revoked or suspended. Graham, 633 P.2d at 216. In examining whether a hearing is a meaningful one, we are guided by "considerations of fundamental fairness." Thorne v. State, Dep't of Public Safety, 774 P.2d 1326, 1329 (Alaska 1989) (quoting Whisenhunt v. State, Dep't of Public Safety, 746 P.2d 1298, 1300 (Alaska 1987)). For example, the denial of an opportunity at an administrative revocation hearing to challenge the reliability and credibility of the breath test operates as a denial of a meaningful and fundamentally fair hearing. Champion v. State, Dep't of Public Safety, 721 P.2d 131, 133 (Alaska 1986) (holding failure to take reasonable steps to preserve breath sample violates due process). We have written that a meaningful hearing "would require the presence of the arresting officer, the production of the report of the arresting officer and any tape recordings, videotapes, or transcripts concerning events surrounding the arrest, and the presence of witnesses having evidence to offer on contested points." Graham, 633 P.2d at 216 n. 12. Also, in order for results of a breath test to be admissible at an administrative revocation hearing, the State must preserve the breath test sample or give the driver an opportunity to obtain an independent test, Briggs v. State, Dep't of Public Safety, 732 P.2d 1078, 1080 (Alaska 1987), and the driver must be given a reasonable opportunity to consult with an attorney before being required to take the test, Whisenhunt v. State, Dep't of Public Safety, 746 P.2d 1298 (Alaska 1987). We emphasized that driving is an important privilege which commands meaningful safeguards in Whisenhunt, where we extended criminal procedural safeguards to the administrative revocation context. 746 P.2d at 1298. We noted that in DWI cases, "license revocation is often the most important and long-lasting sanction imposed on the defendant- Driving is such an important privilege in our society that license revocation alone can reasonably be regarded as a significant sanction." Id. at 1299. We have thus rejected a formal distinction between civil and criminal proceedings when considerations of fundamental fairness are involved. Id. at 1300; Champion, 721 P.2d at 133. Alaska Statute 28.15.165 requires the administrative revocation of driver's licenses by the Department of Public Safety for drivers who fail a chemical sobriety test or who refuse to submit to such a test. Alaska Statute 28.15.166 allows administrative review of such a revocation. Subsection (g) of AS 28.15.166 limits the scope of the hearing officer's inquiry at a revocation proceeding: The hearing for review of action by the department under AS 28.15.165 shall be limited to the issues of whether the law enforcement officer had reasonable grounds to believe that the person was operating a motor vehicle or commercial motor vehicle that was involved in an accident causing death or serious physical injury to another, or that the person was operating a motor vehicle, commercial motor vehicle, or aircraft while intoxicated in violation of AS 28.33.030 or AS 28.35.030 and whether (1) the person refused to submit to a chemical test authorized under AS 28.33.031(a) or AS 28.35.031(a) or (g) after being advised that refusal would result in disqualification or the suspension, revocation, or denial of the person's license, privilege to drive, or privilege to obtain a license, and that the refusal is a misdemeanor; (2) the chemical test administered under AS 28.33.031(a) or AS 28.35.031(a) or (g) produced a result described in AS 28.35.030(a)(2); or (3) the chemical test administered under AS 28.33.031(a) produced a result described in AS 28.33.030(a)(2). Javed's argument is simple and persuasive: a hearing which is statutorily limited to the reasonableness of the arresting officer's beliefs at the time of arrest is not necessarily meaningful or fundamentally fair. Revocation is not fair if the accused can demonstrate that he was not driving, regardless of the reasonable beliefs of the arresting officer. We noted in Thome that the accused at a revocation hearing "must be granted the opportunity to fully contest issues of 'central importance' to the revocation decision." 774 P.2d at 1331 (quoting Champion, 721 P.2d at 133). In Thorne, that meant that the State had the duty to preserve a videotape of the accused performing sobriety tests so that Thome could contest whether the arresting officer had reasonable grounds to believe he had been DWI. 774 P.2d at 1331-32. It is hard to imagine an issue of more "central importance" to a driver's license revocation hearing than whether the person accused of DWI was driving a vehicle in the first place. Intoxication alone may not justify the revocation of a driver's license. The State concedes that where a licensee takes and fails a breath test, "it would be irrational to revoke his license unless he was in fact driving when he was arrested." Yet this is precisely what might happen where the evidence that the arrestee was driving is examined only from the perspective of the arresting officer at the time of the arrest. It is plausible that an officer might have unquestionably reasonable grounds to believe that a person was driving, but evidence presented by the arrestee later demonstrates that the officer was mistaken. Under the terms of AS 28.15.166(g), the later evidence may not be considered, and the license of a person who was not driving will be suspended. Due process requires that an arrestee who fails a breath test must be afforded the opportunity at an administrative revocation hearing to present evidence that he was not driving in order to make that hearing meaningful and fundamentally fair. This court has previously implicitly allowed inquiries outside the literal scope of subsection .166(g) when due process required them. See Champion, 721 P.2d at 133 (allowing driver opportunity to test credibility of breathalyzer); Whisenhunt, 746 P.2d at 1299 (excluding test results where right to consult attorney violated); Graham, 633 P.2d at 216 n. 12 (holding that meaningful hearing requires presence of witnesses having evidence to offer on contested points). These cases generally assume that the inquiries will help to determine that a person who is accused of driving while intoxicated was actually intoxicated. But it is equally important to ensure a meaningful hearing where the person claims not to have been actually driving. Alaska Statute 28.15.166(g) Prohibits an Inquiry into Whether the Accused Was Driving. The State argues that this court should construe subsection .166(g) in a way that would save its constitutionality and allow an inquiry into whether the arrestee actually drove. We believe that to do so would im-permissibly rewrite the statute. The substance of the State's argument is two-fold: first, that the legislature did not intend the restricting language of subsection .166(g) to apply to revocation proceedings where the arrestee took and failed a breath test; second, and alternatively, that the reference in subsection .166(g) to the implied consent statutes, AS 28.33.031(a) and AS 28.35.031(a) and (g), requires an inquiry into whether such consent was actually given, which in turn might require an inquiry into whether the person actually drove. The first line of analysis offered by the State fails. The State cannot point to any evidence that the legislature intended the limitation not to apply when it amended the statute in 1983 to include failure of a breath test as grounds for license revocation. See ch. 77, § 3, SLA 1983. It boldly speculates that "the legislature must have intended to alter this limitation" and concludes that "nothing other than mere inadvertence can explain the legislature's failure to require proof of this fact [that the person was the driver]." Yet even if this tenuous supposition is correct, we can find no textual basis for a reading which could allow an inquiry into whether a person drove. The statute is clear: the scope of the hearing is limited to (1) whether the officer had reasonable grounds to believe that the person was DWI, and (2) whether the person either refused to take a breath test or took a breath test and failed it. AS 28.15.166(g). We cannot interpret an inquiry expressly limited by statute to the reasonableness of an officer's beliefs to include an examination of the objective truthfulness of the officer's conclusion. The State's second suggested reading fares no better. The suggestion is that the statute limits the scope of the hearing to whether the officer had reasonable grounds to believe that the person was DWI and to whether the person refused to take a test "authorized under" the implied consent statutes or the person submitted to a test "administered under" the implied consent statutes. The statute might, then, be read in such a way as to include an inquiry into whether the implied consent statutes were actually triggered, i.e., whether the test given or refused was actually administered or authorized under those statutes. If a person who is not driving has not impliedly consented to such a test, then an inquiry into whether the test was authorized under the implied consent statutes could include in its scope whether the person was actually driving. We accept for purposes of this argument that, under the implied consent statutes, a person may be- deemed to have consented to a test only by actually driving. However, the State's argument fails in its interpretation of subsection .166(g) itself. The focus of subsection .166(g)(l)-(3) is clearly on the result of the test or the fact of refusal to take the test. Reading subsection ,166(g)(l)-(3) to encompass an inquiry into the underlying facts that justify administration of the test would render the first part of subsection .166(g), regarding the issue of whether the law enforcement officer had reasonable grounds to believe that the person was operating a motor vehicle, almost meaningless. The statute offers very precise limiting language for the issues that are to be considered. There is no reason to believe that the reference to the implied consent statutes is anything more than a descriptive tool used to identify the "chemical test" named in each instance. Thus, we conclude that AS 28.15.166(g) cannot be interpreted constitutionally. Alaska Statute 28.15.166(g) Is Unconstitutional as Applied. A statute may be unconstitutional either on its face or as applied. See Gilmore v. Alaska Workers' Compensation Bd., 882 P.2d 922, 929 n. 17 (Alaska 1994). A statute is facially unconstitutional if "no-set of circumstances exists under which the Act would be valid." United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987). In most cases the issues set forth in subsection .166(g) are the only issues that need to be determined in order to review the revocation decision. Since AS 28.15.166(g) can be applied constitutionally in many circumstances, it is not facially unconstitutional. To use the terms of the statutory saving clause, AS 01.10.030, the application of the limiting language in the act is only invalid under circumstances in which due process requires that other contested issues be established; in the absence of such circumstances all of the language of the act may be given application. The decision of the superior court is REVERSED and REMANDED with instructions to remand to the Department for a new hearing which will include an inquiry into whether Javed was driving. . According to Javed's testimony at the license revocation hearing, Workman testified at the criminal trial that he did not see Javed park the car. Javed was acquitted at a jury trial of driving while intoxicated. . The State, as noted, essentially concedes as much. The bulk of the State's argument addresses the question of whether due process requires an inquiry into whether the arrestee was actually driving in cases where the arrestee refuses to take a breath test. The State suggests that the answer is no, and that the implied consent statutes are triggered not by the act of driving a vehicle, but by mere possession of a license. We note that the Alaska Court of Appeals has rejected this argument in Patterson v. Municipality of Anchorage, 815 P.2d 390, 393-94 (Alaska App.1991). That question is not before us now since Javed took and failed a breath test, and we offer no resolution of it here. . The State offers this argument in the alternative to its primary argument, which is that a driver's license may be revoked for failure to submit to the breath test even where the arrestee was not in fact driving. See supra note 2. Again, we offer no opinion on this issue. . We recognize that the Oregon Supreme Court reached an opposite conclusion in Hilton v. Motor Vehicles Div., 308 Or. 150, 775 P.2d 1378 (1989). According to that court's interpretation, former ORS 482.541 limited the scope of the hearing to whether the officer had reasonable grounds to believe the licensee was DWI, and whether the licensee either refused or faded the test "under ORS 487.805," the implied consent statute. The court held that an inquiry into whether a person failed a test "under" the implied consent statute included a threshold inquiry into whether the person had actually consented to a test by driving. Id., 775 P.2d at 1380-81. Thus, the court was able to avoid the due process question. Id. at 1380. While we believe that the Oregon court may have given unjustifiable emphasis to a descriptive term in looking at the phrase "the test under ORS 487.805," that case is also distinguishable by the relative ambiguity of the Oregon statute. That statute limited the scope of the hearing to whether the suspension was "valid as described in this subsection," 775 P.2d at 1380; that subsection allowed revocation where the person "refused the test under ORS 487.805." Thus the statute's limitation was significantly less explicit than Alaska's. .Alaska Statute 01.10.030 provides: Any law heretofore or hereafter enacted by the Alaska legislature which lacks a severability clause shall be construed as though it contained the clause in the following language, "If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the remainder of this Act and the application to other persons or Circumstances shall not be affected thereby." . Javed's original briefing to this court advanced issues of hearsay and confrontation of witnesses. In view of the need for a new hearing, we find it unnecessary to address those issues as they will not necessarily be duplicated at the new hearing.

9382723

Lovie D. HOUSTON, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee

Houston v. Municipality of Anchorage

2002-12-06

No. A-7930

773

778

59 P.3d 773

59

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

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

CAP

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

Lovie D. HOUSTON, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.

Lovie D. HOUSTON, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee. No. A-7930. Court of Appeals of Alaska. Dec. 6, 2002. Dennis P. Cummings, Gorton & Logue, Anchorage, for Appellant. John E. MeConnaughy III, Assistant Municipal Prosecutor, and William A. Greene, Municipal Attorney, Anchorage, for Appellee. Before COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

2747

17498

OPINION COATS, Chief Judge. Lovie D. Houston was convicted under Anchorage Municipal Code (AMC) 8.45.010(A)(2) of trespassing on private business or commercial property because he entered his former apartment after he had notice that the property was not open to him. Houston argues that the trial court should have granted his motion for judgment of acquittal because the Municipality failed to prove that he had trespassed on "private business or commercial property." He also argues that the court erred by refusing to define "private business or commercial property" for the jury, and by not permitting him to argue that the apartment did not fall within that definition. Because the Anchorage trespass ordinance distinguishes types of property based on use, not based on who has possessory rights to the property, the Municipality should have charged Houston with trespassing on residential property under AMC 8.45.010(A)(1). However, by convicting Houston of trespassing on commercial property under subsection (A)(2), the jury necessarily found that Houston had entered the apartment without a privilege to do so-the elements necessary to convict him of trespassing on residential property under subsection (A)(1). Moreover, Houston has not shown that he was prejudiced because he was charged under the wrong subsection of the ordinance. For these reasons, we affirm the jury's verdict. Facts and proceedings On October 2, 2000, Houston was evicted from an apartment at 915 West 29th Street in Anchorage. Houston received notice that he was to be out of the apartment by noon on October 4. Nevertheless, he entered the apartment on October 5, apparently through a window, to retrieve property he had left there. The police arrested him for trespass. The Municipality charged Houston under AMC 8.45.010(A)(2), which prohibits trespassing on private business or commercial property. After the Municipality presented its case, Houston moved for judgment of acquittal, claiming that the Municipality had failed to show that the apartment he entered was business or commercial property. Houston also asked the court to instruct the jury on the definitions of commercial, residential, and public buildings contained in an unrelated state statute governing the safety of glazing. That statute defines "commercial buildings" as "buildings including but not limited to wholesale and retail stores and storerooms, and office buildings," and "residential buildings" as "structures including but not limited to homes and apartments used as dwellings for one or more families or persons. District Court Judge John Lohff denied Houston's motion and refused to instruct the jury on his proposed definitions. Judge Lohff did not decide whether the apartment Houston was charged with entering was residential or commercial property. Instead, Judge Lohff ruled that the type of property trespassed upon was irrelevant under the facts of Houston's case because the gravamen of the offense was whether he had entered the apartment when he had notice he was not supposed to be there. Based on this ruling, the court barred Houston from arguing to the jury that the apartment was not commercial property. Judge Lohff offered several times to permit the Municipality to amend the information to charge Houston with trespassing on residential property. Houston repeatedly opposed that amendment. The Municipality initially declined to amend the charge because the district court had ruled that the apartment was commercial property. But the court later retreated from that ruling, and again offered to permit the Municipality to amend the charge. Houston vigorously opposed any such amendment. He argued that he would be prejudiced if he was charged mid-trial with trespassing on residential property because his defense was that the Municipality had failed to prove that he had entered commercial property, and he had cross-examined the officers based on that defense. The jury convicted Houston of trespass. Houston appeals that conviction. Was Houston properly charged with trespassing on commercial property? The jury was instructed that it could convict Houston for trespassing on private business or commercial property under two alternative theories: by finding that he had actual notice that the property was not open to him (Count 1), or by finding that he had violated a prominently posted notice against trespass or use (Count 2). The jury conviet-ed Houston for trespassing when he had actual notice that the property was not open to him, and thus did not reach the latter count. - The threshold issue raised by this appeal is whether the Municipality properly charged Houston with trespassing on business or commercial property for entering his former apartment. Because the ordinance does not define business or commercial property, the definition of those terms are legal issues for this court. As a general rule, trespass statutes distinguish structures based on their use and on the interest to be protected. Alaska's first-degree 'eriminal trespass statute, like the Model Penal Code, increases the penalty for trespassing if a "dwelling" is involved. A dwelling is defined as "a building that is designed for use or is used as a person's permanent or temporary home or place of lodging." That definition would encompass a "vacant" apartment-in this case, an apartment that was suitable for occupaney but no longer had a legal tenant. Most jurisdictions treat vacant apartments as dwellings, based either on the language of their statutes or the policy that an intrusion in even a vacant and unoccupied apartment poses a threat to the personal security of nearby residents. If other criminal -trespass statutes are an appropriate guide, the apartment Houston entered should be. defined as "residential" rather than "commercial" because it was a dwelling; even though it had no tenant, it was designed and still suitable for habitation. But, as the Municipality points out, the Anchorage ordinance is not organized like most trespass statutes. The ordinance distinguishes residential from commercial property not to make trespassing on the former a more serious offense-the penalties for both offenses are identical-but to establish differences in how trespassing on those two types of private property must be proved. To show that a person trespassed on residential property, the Municipality need only prove that the person had no privilege to be there; to prove that a person trespassed on commercial property, the Municipality must prove that the property was closed to the public, that -the property was prominently posted against trespass, that the person had actual notice that the property was not open to him or her, or that the person had been asked to leave by someone with apparent authority to do so. This distinction makes sense because people generally have no right to enter residential property without an invitation (with the exception of areas of ingress and egress that are impliedly open to public use ), but they commonly do have the right to enter commercial or business property absent notice that the property is closed or the right to enter has been withdrawn. The Municipality argues that the ordinance distinguishes the nature of the property trespassed upon based on who has possessory rights to that property. Thus, a rented apartment would be residential property because the tenant would have possessory rights. But because Houston had been evicted from his apartment, the Municipality argues, possessory rights had reverted to the landlord, a commercial entity. The Municipality's proposed construction does not square with the policy behind the trespass ordinance. The ordinance imposes more burdensome duties of notice on commercial and business property owners because of the quasi-public nature of their property. An apartment or other residence does not lose its private character and become commercial simply because it is between rentals and has been repossessed by a lender. Furthermore, the Anchorage zoning ordinances treat apartment buildings as residential property, and the Municipality points to no contrary definitions in the municipal code to suggest that apartments should be characterized differently for purposes of the trespass ordinance. "Unless words have acquired a peculiar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage." Webster's New World Dictionary defines "residential" as "of or connected with residence" and "of, characterized by, or suitable for residences, or homes." Because an apartment falls within the commonly used definition of residence, we conclude that Houston was charged and convicted under the wrong subsection of the trespass ordinance. Should Houston's conviction be reversed? The question remains whether Houston's conviction should be reversed because of this error. Under Criminal Rule 7(c), a defect in the form of an information does not invalidate a conviction unless the defendant's substantial rights were prejudiced. Similarly, under Criminal Rule 7(e), an information may be amended any time before a verdict if "no additional or different offense is charged and the substantial rights of the defendant are not prejudiced." If the Municipality had amended the information to charge Houston with trespass on residential property, that amendment would not have alleged a change in the nature of Houston's underlying erimi-nal act: entering or remaining in an apartment when he had notice that the apartment was not open to him. The information fully apprised Houston that the charged offense included those essential elements. Furthermore, the parties never disputed that Houston was in the apartment at the time of his arrest. To convict Houston of trespassing on commercial property under AMC 8.45.010(A)(2)(c), the jury was required to find the elements necessary to that offense-that he knowingly entered or remained in the property when he had actual notice not to be there. If Houston had actual notice that he was not allowed in the apartment, he necessarily also entered or remained "without a privilege to do so"-the elements required to convict him of trespass on - residential property under AMC 845.010(A)(1). Thus, under the facts of Houston's case, trespassing on residential property was in effect a lesser-included offense of trespassing on commercial property. Lastly, Houston has not shown how he was prejudiced because he was charged under the wrong subsection of the trespass ordinance. Houston's main defense at trial was that he had not committed the offense the Municipality had charged him with-trespassing on commercial property. When Judge Lohff ruled mid-trial that the type of property trespassed upon was irrelevant under the facts of the case, this ruling conceivably might have prejudiced Houston if, in reliance on the Municipality's charging error, he had not fully prepared an alternative available defense. But Houston's brief on appeal does not suggest how his defense would have been different if he had been charged correctly. Nor can we discern any obvious defense from the record, given that Houston concedes he entered the apartment on October 5 after receiving notice to be out of the apartment by October 4. At trial, Houston told Judge Lohff that he would have cross-examined the police officers differently if he had been charged with trespassing on residential property. But the only testimony Houston elicited from the officers that was relevant to the type of property he entered was either neutral or would have worked to his benefit if he had been charged with residential trespass-the officers characterized the property as an "apartment complex," "where people live," and "commercial property, which is apartment rentals." Moreover, Houston offered no convincing alternative defense. He testified that he had difficulty reading the documents notifying him of the exact time he was required to be out of the apartment, but he conceded he knew he was supposed to be out of the apartment by October 4. At one point, Houston testified that he had not entered the apartment through the window as alleged; but elsewhere he acknowledged he had climbed through the window on October 5. He complained that the apartment management had locked him out of the apartment and otherwise made it difficult for him to remove his property by the October 4 deadline. But the jury convicted Houston despite this testimony. Because Houston has not demonstrated that the Municipality's error in charging him under the wrong subsection of the trespass ordinance prejudiced him, we conclude that the error was harmless. Therefore, the district court did not err in denying Houston's motion for judgment of acquittal. Conclusion The jury's verdict is AFFIRMED. . AS 18.60.780 (defining "glazing" as "the act of installing and securing glass or other glazing material into prepared openings in structural elements including but not limited to doors, enclosures, and panels"). . AS 18.60.780(2), (12). . AMC $.45.010(A)(2)(c). . AMC 8.45.010(A)(2)(b), (c). . AMC 8.45.010(A)(2)(c). . Cf. Maness v. State, 49 P.3d 1128, 1137 (Alaska App.2002) (Mannheimer, J., concurring); Sears v. State, 713 P.2d 1218, 1219 (Alaska App.1986). . See 75 Am.Jur.2d Trespass § 187 (2d ed.1991); of. 13 AmJur.2d Burglary § 28, at 201 (2d ed. 2000) ("I is the element of habitation, not the nature of the structure, that elevates the crime of burglary to first degree."). . AS 11.46.320; American Law Institute, Model Penal Code and Commentaries, Part II, § 221.2, at 85, 91 (1980). . AS 11.81.900(21). . We have held in the context of the state burglary statute that a dwelling does not lose its character as a dwelling simply because it is unoccupied. See Champion v. State, 908 P.2d 454, 470 (Alaska App.1995) (noting that Alaska law classifies the burglary of any dwelling, occupied or not, as first-degree burglary); Shetters v. State, 751 P.2d 31, 36-37 (Alaska App.1988) (holding, in the context of an ineffective assistance of counsel claim, that the trial jury could have found that an unfinished house that was virtually complete but still unoccupied was a dwelling for purposes of the burglary statute). . See, e.g., People v. Silva, 256 Ill.App.3d 414, 195 Ill.Dec. 484, 628 N.E.2d 948, 952-53 (1993) (unoccupied garden-level apartment undergoing renovation was a dwelling for purposes of the residential burglary statute even though it had been vacant for seven months); State v. Scott, 169 N.J. 94, 776 A.2d 810, 815-16 (2001) (rental apariment that was vacant but available and suitable for rent was a dwelling for purposes of the criminal trespass statute); State v. Ramey, 89 Or.App. 535, 749 P.2d 1219, 1221 (1988) (apartment was a dwelling for purposes of the criminal trespass statute even though the owner was remodeling it and it had been vacant for two months); Matter of E.P., 963 S.W.2d 191, 193 (Tex.App.1998) (jury could have found that vacant apartment in apartment complex was "habitation" for purposes of the criminal trespass statute because the apartment was adapted for overnight accommodation of persons); cf. State v. Edwards, 589 N.W.2d 807, 811 (Minn.App. 1999) (dwelling had not lost its residential character for purposes of burglary statute because the sole occupant had recently died); People v. Barney, 294 A.D.2d 811, 742 N.Y.S.2d 451, 453 (2002) (same). But see Poff v. State, 4 Md.App. 186, 241 A.2d 898, 900 (1968) (vacant apartment rented to police for sting operation was not dwelling, but a place where furniture was stored pending its rental by a new tenant); People v. Murray, 278 A.D.2d 898, 718 N.Y.S.2d 554, 556 (2000) (finding insufficient evidence that the defendant entered a dwelling when he entered a two-family rental unit in which the upstairs apartment had been vacant for several months and the downstairs apartment was boarded up). . We have routinely referred to burglary in a - dwelling as "residential burglary." See, e.g., Champion, 908 P.2d at 470; Wesolic v. State, 837 P.2d 130, 134 (Alaska App.1992). Other states have formally classified burglary in a dwelling as "residential burglary." See Ark.Code Ann. § 5-39-201 (Michie 1997); 720 IIL. Comp. Stat. 5/19-3 (West Supp.2002); Wash. Rev.Code Ann. § 9A.52.025 (West 2000). . See Pistro v. State, 590 P.2d 884, 887 & n. 10 (Alaska 1979). . Cf. Fairbanks N. Star Borough Assessor's Office v. Golden Heart Utils., Inc., 13 P.3d 263, 269 (Alaska 2000) (noting that a "leasehold" is a tenant's possessory estate in land or premises)}. . See AMC 21.40.040-.060. . State, Dep't of Revenue v. Debenham Elec. Supply Co., 612 P.2d 1001, 1002 (Alaska 1980). . Webster's New World Dictionary 1142 (3d coll. ed.1988). The Anchorage zoning ordinances define "residential" as "activity involving the occupation of buildings for living, cooking, sleeping and recreation." AMC 21.35.020. . Cf. Cheely v. State, 850 P.2d 653, 658-63 (Alaska App.1993). . See Alaska R.Crim. P. 31(c). . See McGahan v. State, 606 P.2d 396, 397-98 (Alaska 1980).

10425860

Joe VAN GULIK, Appellant, v. RESOURCE DEVELOPMENT COUNCIL FOR ALASKA, INC., a non-profit Alaska Corporation; Bruce Cooper and Lonnie McGowan, Appellees

Van Gulik v. Resource Development Council for Alaska, Inc.

1985-02-15

No. S-520

1071

1074

695 P.2d 1071

695

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:11:48.367668+00:00

CAP

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

Joe VAN GULIK, Appellant, v. RESOURCE DEVELOPMENT COUNCIL FOR ALASKA, INC., a non-profit Alaska Corporation; Bruce Cooper and Lonnie McGowan, Appellees.

Joe VAN GULIK, Appellant, v. RESOURCE DEVELOPMENT COUNCIL FOR ALASKA, INC., a non-profit Alaska Corporation; Bruce Cooper and Lonnie McGowan, Appellees. No. S-520. Supreme Court of Alaska. Feb. 15, 1985. William J. Moran, Anchorage, for appellant. Allison E. Mendel, Jermain, Dunnagan & Owens, Anchorage, for appellees.

1959

11644

OPINION Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ. PER CURIAM. Joe Van Gulik appealed from the superi- or court's partial summary judgments in this matter of a mismanaged lottery. As explained below, we remand this case with the following direction: The superior court shall order Van Gulik to elect either to submit to a final drawing between his ticket and Cooper-McGowan's ticket or to accept the amount of damages already awarded in accordance with Judge John-stone's equitable approach. If Van Gulik does not notify the superior court of his choice within thirty (30) days from the date of the superior court's order, then the judgment shall be deemed affirmed. I. FACTS This dispute stems from a lottery sponsored by the Resource Development Council for Alaska, Inc. ("RDC"). According to the RDC, the winner of the $10,000 grand prize would be determined at a drawing at which all tickets would be drawn one at a time. The owner of the last ticket drawn would win the grand prize. Lesser prizes were to be awarded as the drawing progressed. For instance, the holder of the 100th ticket drawn was to receive $1,000 and the holder of the 200th ticket drawn was to receive $2,000. Toward the end of the RDC's drawing the respective tickets of Bruce Cooper and Lonnie McGowan were drawn, seemingly simultaneously, from the drawing bin and were announced as the last two tickets. The drawing officials then announced that the respective owners of the two tickets could either split the $10,000 grand prize between them or have their tickets put back in the bin for a further drawing to determine the sole winner of the grand prize. However, the RDC's drawing officials were mistaken in naming Cooper's and McGowan's tickets as the last two left in the drawing bin. As the sponsor soon learned, one more ticket was left in the bin. That ticket belonged to appellant Van Gu-lik. The sponsor proposed to have a further drawing from the respective tickets belonging to Cooper, McGowan and Van Gulik. Cooper and McGowan insisted that only their tickets should be eligible for the grand prize. Conversely, Van Gulik has insisted that his ticket was, by definition, the last one left to be drawn and thus the only ticket that could win the grand prize. Further complicating the problem, the RDC sought to resolve, or sidestep, the situation by immediately holding a second drawing from among all of the tickets sold, including all of those already drawn in the first drawing, to determine the grand prize winner. That second drawing was later deemed invalid; it was ruled not to have replaced the original drawing. Meanwhile, Van Gulik sued the RDC, as did Cooper and McGowan, each asserting a right to the $10,000 grand prize. The superior court entered partial summary judgments against the RDC in favor of Van Gulik and also in favor of Cooper and McGowan. II. THE SUPERIOR COURT'S FINDINGS AND CONCLUSIONS The superior court found that there was a question of fact as to which ticket, Cooper's or McGowan's, was drawn next-to-last. However, since Cooper and McGowan had stipulated in open court that they had previously agreed to share equally in any prize that might be awarded to either of them, the superior court found that it was "immaterial as to which of them may have been the second-to-last ticket holder." The superior court also found that Van Gulik's ticket would have been drawn with either Cooper's or McGowan's "had the raffle been conducted properly." The superi- or court emphasized that the first raffle was never properly completed. The court also found that the RDC's supposedly corrective "second raffle" did not terminate "the rights of those who won or should have won prizes in the first raffle." The superior court therefore concluded that, as owner of the "sole ticket remaining at the premature conclusion" of the first drawing, Van Gulik was entitled to $5,000 (half of the grand prize). The court expressly rejected his argument that he was entitled to the full prize because his ticket had been the last ticket left in the drawing bin. The superior court reemphasized that it could not know "what would have happened had the raffle been conducted properly" and that "it would simply be unfair to the holder of the next-to-the-last ticket drawn to summarily grant the entire prize to Mr. Van Gulik." The superior court thus concluded that Cooper and McGowan were jointly entitled to an award of $5,000 (the other half of the grand prize). Van Gulik appealed from the superior court's decision to. divide the $10,000 between him and Cooper-McGowan. III. VAN GULIK'S APPEAL Van Gulik argues that Judge Johnstone erred in not awarding him the entire amount of the grand prize. He contends that, because his ticket was the last one left to be drawn, he should have been declared the grand prize winner. Van Gulik argues that the measure of his damages should be the value of the grand prize that the sponsor denied him in its alleged breach of the sponsor's contract with Van Gulik. In particular, he contends that the RDC's introduction of the prize-sharing option for the owners of the last two tickets was a unilateral alteration of the set procedures of the drawing. In sum, Van Gulik argues: (1) that the sponsor breached its contract with him, and (2) that Cooper-McGowan acquired no right to any share of the grand prize money. For the reasons discussed below we reject Van Gulik's second argument. We agree, in general, with Judge Johnstone's equitable approach, but we find that the superior court should order Van Gulik to choose either (1) a • further drawing between him and Cooper-McGowan or (2) the damages award already devised by the superior court. IV. DISCUSSION A lottery winner's entitlement to a prize should be governed by contract law principles. Coleman v. State, 77 Mich.App. 349, 258 N.W.2d 84 (1977). The RDC's failure to properly complete the drawing can be said to have amounted to a breach of RDC's contract with an affected ticket-buyer. However, Van Gulik is incorrect as to the measure of his damages due to the RDC's breach. The Restatement (Second) of Contracts, § 348(3) discusses "Alternatives to Loss in Value of Performance": If a breach is of a promise conditioned on a fortuitous event and it is uncertain whether the event would have occurred had there been no breach, the injured party may recover damages based on the value of the conditional right at the time of the breach. We further agree with the reasoning of Comment d to § 348, which explains that: In the case of a promise conditioned on a fortuitous event, a breach that occurs before the happening of the fortuitous event may make it impossible to determine whether the event would have occurred had there been no breach. It would be unfair to the party in breach to award damages on the assumption that the event would have occurred, but equally unfair to the injured party to deny recovery of damages on the ground of uncertainty. The injured party has, in any case, the remedy of restitution . Under the rule stated in Subsection (3) he also has the alternative remedy of damages based on the value of his conditional contract right at the time of breach, or what may be described as the value of his "chance of winning. " The value of that right must itself be proved with reasonable certainty, . if there is a suitable basis for determining the probability of the occurrence of the event. Restatement (Second) of Contracts, § 348, Comment d (emphasis added). In this case, as Judge Johnstone stressed, we cannot know what would have happened if the sponsor had properly completed the drawing. The introduction of the prize-sharing option, a common variation in such raffles, did not alter the odds of winning or impose new burdens on ticket owners, and was therefore not a material alteration of the drawing's procedures. However, given the sponsor's introduction of that option and given its factual mistake in overlooking Van Gulik's ticket, no court could divine whether Van Gulik's or Coo per's or McGowan's ticket would have been the last ticket drawn. It is indeed "uncertain" whether appellant Van Gulik's ticket would have been the last ticket drawn if the RDC had properly completed the drawing. Thus Van Gulik's damages must be based on the value of his conditional right at the time of the RDC's breach, i.e., when the sponsor overlooked Van Gulik's ticket while announcing the prize-splitting option and incorrectly announcing that Cooper's and McGowan's tickets were the last two drawn. At the time of the RDC's breach Van Gulik's proper "chance of winning" was 50%. If the sponsor had not made its mistakes, either Cooper's or McGowan's ticket would have been drawn and dismissed as a non-winner, thus leaving the other ticket plus Van Gu-lik's as final contenders for the grand prize. Even with the prize-splitting option, each of the respective owners of the last two tickets had a 50% chance of winning. Thus the superior court correctly calculated that the value of Van Gulik's conditional right was 50% of the $10,000 grand prize. However, given the sponsor's introduction of the prize-splitting variation, Van Gulik should also be granted that option as well. Therefore, this case is REMANDED with these directions: The superior court shall order Van Gulik to elect either to submit to a final drawing between his ticket and Cooper-McGowan's or to accept the amount of damages already awarded in accordance with Judge Johnstone's equitable approach. If Van Gulik does not notify the superior court of his choice within thirty (30) days of the date of the superior court's order, then the judgment shall be deemed AFFIRMED. . There was also a fourth ticket, one that had never been included in the drawing bin. The owner of that ticket was refunded the $100 price of the ticket. His complaint is not a part of this case. . The RDC allowed the winners of the $1,000 and $2,000 prizes, drawn in the first drawing, to remain "winners". Disbursement of such prize money was delayed pending this litigation. The superior court concluded that those winners were entitled to their respective winnings. .We shall now refer to these ticket owners as Cooper-McGowan, as a single entity. . This situation is similar to that posed in Ulus-tration 5 of Restatement §. 348 cited above.

10412618

STATE of Alaska, Appellant, v. Theodore PAINTER, Jr., Appellee

State v. Painter

1985-02-22

No. A-452

241

243

695 P.2d 241

695

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:11:48.367668+00:00

CAP

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

STATE of Alaska, Appellant, v. Theodore PAINTER, Jr., Appellee.

STATE of Alaska, Appellant, v. Theodore PAINTER, Jr., Appellee. No. A-452. Court of Appeals of Alaska. Feb. 22, 1985. Kathleen L. McGuire, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellant. C. Walter Ebell, Hartig, Rhodes, Norman, Mahoney & Edwards, Kodiak, for ap-pellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

1134

7079

OPINION SINGLETON, Judge. Theodore Painter, Jr., was charged with unlawful fishing for tanner crab in violation of state regulations. 5 AAC 35.510(1). Both the state and Painter agreed that the fishing occurred in the Fishery Conservation Zone (FCZ), that is, between three and two hundred miles from shore. Painter moved to dismiss. After briefing and oral argument, the motion was granted on the ground that the state had no jurisdiction. The state appeals. We reverse and remand. In his motion to dismiss, Painter argued that the state tanner crab regulations are invalid because they attempt to regulate the taking of tanner crab beyond the territorial sea (three miles) of the state. Essentially Painter's argument was that, with the enactment of the Magnuson Fishery Conservation and Management Act (FCMA), 16 U.S.C. § 1801-82 (1982) (effective March 1, 1977), jurisdiction over fishery management in the seas between three and two hundred miles from shore became exclusively federal. Magistrate Dennis L. Nelson made several findings of fact before ruling that the state did not have jurisdiction. He found that Painter's vessel, the Alaska Trojan, was registered in the State of Alaska, and that the fishing had occurred in the FCZ. Magistrate Nelson also found that the federal government had promulgated regulations regarding tanner crab fishing (50 C.F.R. § 671.1-27 (1983)), that Alaska also had regulations regarding tanner crab (5 AAC 35), that the state and federal regulations were "substantially the same," and that a cooperative enforcement agreement between the state and federal authorities was and is in effect. As a "conclusion of law," Magistrate Nelson held that the state had no jurisdiction and ordered the matter dismissed. The reason for that legal conclusion was his understanding that the FCMA indicated a Congressional intent to provide a national program for fishery management under exclusively federal jurisdiction with any state input to be effected through the state's participation in regional councils. Thus, he concluded that when federal regulations concerning a fishery exist, no state regulations affecting that fishery will be allowed. The cases decided under the FCMA do not lead to the result reached below. The FCMA has been found not to have entirely occupied the area of fisheries management in the FCZ. Even since the enactment of the FCMA, when a state has regulated a fishery and that regulation is applied in the FCZ, the courts have not found those state regulations invalid in the absence of some conflict between the state and federal regulations, State v. Sterling, 448 A.2d 785 (R.I.1982), or their policies, e.g., State v. F/V Baranof, 677 P.2d 1245 (Alaska), cert. denied — U.S. -, 105 S.Ct. 98, 83 L.Ed.2d 43 (1984); People v. Weeren, 26 Cal.3d 654, 163 Cal.Rptr. 255, 607 P.2d 1279, cert. denied, 449 U.S. 839, 101 S.Ct. 115, 66 L.Ed.2d 45 (1980). The Alaska Supreme Court considered the effect of the FCMA on state regulation of fisheries in State v. F/V Baranof, 677 P.2d 1245 (Alaska), cert. denied, — U.S. -, 105 S.Ct. 98, 83 L.Ed.2d 43 (1984). Baranof concerned an in rem forfeiture proceeding against a fishing vessel alleged to have exceeded the authorized catch limit for king crab. Just as here, the regulation which had been violated was a state regulation and the fishing had occurred outside of the state's territorial seas. The court upheld the validity of the state king crab regulations and their application to vessels outside of the state's territorial seas. The F/V Baranof was registered in Alaska under the laws of Alaska. The Baranof facts are distinguishable from Painter's situation in only one meaningful regard. At the time of Baranof, no federal king crab regulations had been promulgated. The opinion notes this point before concluding that the FCMA carried no implicit preemption. The court recognized that to find preemption in the absence of federal regulations would defeat the purpose of the FCMA in that it would leave the FCZ entirely unregulated and thereby endanger the fishery which the enactment of the FCMA was intended to better protect, not to leave more vulnerable to depletion. 677 P.2d at 1251. In the instant case, federal tanner crab regulations do exist. See 50 CFR § 671.-1-.27 (1983). However, the trial court found the state and federal regulations to be "substantially the same." Painter pointed out that the state scheme provided criminal sanctions for violations while the federal scheme for the most part provided only civil sanctions, and he argued that the civil/criminal difference constitutes conflict and, therefore, is grounds for finding federal preemption. Painter provided no support in case law for that proposition. In any event, the trial court apparently found preemption on the basis of the existence at all (even though consistent) of federal regulations. It is that holding which we reverse. F/V American Eagle v. State, 620 P.2d 657 (Alaska 1980), appeal dismissed, 454 U.S. 1130, 102 S.Ct. 985, 71 L.Ed.2d 284 (1982), is an earlier Alaska Supreme Court decision which upheld an in rem civil forfeiture of a vessel for violations of Alaska fishing regulations. The decision is cited approvingly in the Baranof case. The American Eagle court states: To the extent that there may be a conflict between state fisheries regulations and federal regulations promulgated under the Act [FCMA], Alaska's authority to regulate fisheries under Bundrant has been superseded. 620 P.2d at 662 n. 10. Bundrant was a pre-FCMA case which rejected the argument that the federal government had exclusive jurisdiction to regulate fishing outside of three miles from shore. Bundrant v. State, 546 P.2d 530 (Alaska), appeal dismissed sub nom. Uri v. State, 429 U.S. 806, 97 S.Ct. 40, 50 L.Ed.2d 66 (1976). The American Eagle case arose before the effective date of the FCMA, but the language quoted is the Alaska Supreme Court's interpretation of the effect of the FCMA. That interpretation is reaffirmed in Baranof. In this case, the trial court did not find preemption by conflict. The trial court did not find "conflict;" in fact it found the state and federal regulations to be "substantially the same." Preemption is not triggered by the mere promulgation of federal regulations pertaining to the same fishery. See Baranof Painter advanced other grounds in support of his motion to dismiss. By reversing the trial court's finding of preemption, we do not decide the merits of Painter's other arguments. Those grounds are not before us in the decision appealed. Therefore we do not address them at this time. The case is REMANDED to the trial court for further proceedings consistent with this opinion.

10412564

Clifton Douglas SMAKER, Appellant, v. STATE of Alaska, Appellee

Smaker v. State

1985-02-15

No. A-302

238

241

695 P.2d 238

695

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:11:48.367668+00:00

CAP

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

Clifton Douglas SMAKER, Appellant, v. STATE of Alaska, Appellee.

Clifton Douglas SMAKER, Appellant, v. STATE of Alaska, Appellee. No. A-302. Court of Appeals of Alaska. Feb. 15, 1985. Mary E. Greene, Asst. Public Defender, Fairbanks, and Dana Fabe, Public Defender, Anchorage, for appellant. Robert D. Bacon, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

1439

8518

OPINION BRYNER, Chief Judge. Clifton Douglas Smaker was convicted, after a jury trial, of assault in the third degree. AS 11.41.220(a)(1). He appeals, contending that the trial court erred in refusing to allow him to call a defense witness whose name was not disclosed at jury voir dire. We reverse. At the time of the alleged assault, around 3:00 p.m. on July 7, 1983, both Smaker and the victim, Grafton Solomon, were working in Fort Yukon's new city building. According to Solomon, Smaker entered the city dispatch room, where Solomon was working, and in the midst of a verbal altercation stepped toward Solomon and brought a welded chain link rod down within eighteen inches of Solomon's head. Smaker admitted exchanging angry words but denied having the metal rod or threatening Solomon. Trial commenced in Fort Yukon on October 31, 1983. During jury voir dire the names of witnesses who were going to be called to testify were put on a board, and jurors were asked to leave if they felt that they could not fairly hear the case due to knowledge of the persons involved. The state presented its case-in-chief that afternoon, and before the end of the day Smaker called his first witness. When the trial court reconvened the following morning, defense counsel informed the court that after talking with several people the previous evening, he and Smaker had learned that City Manager Vera James should be called as a witness. Smaker suggested that the court could question members of the jury panel to determine if any jurors would in fact be incapable of rendering a fair verdict due to their acquaintance with James. Smaker further indicated he might be willing to stipulate to trial by fewer than twelve jurors if necessary to enable James to testify. The state objected, arguing that James was mentioned in the police report and known to the defense but not listed as a potential witness at voir dire. The state claimed prejudice since James, as the city manager, was an influential person and likely to be known to the jurors. Superior Court Judge James R. Blair denied Smaker's request, treating it as a "motion to supplement the witness list." THE COURT: You do have a duty to name the witnesses at jury selection. And I've always required that for nine years and I've told every counsel that they have a duty to do it and that's why I told you to put the li — witnesses on the board. You know, there's no way to pick a jury in a town this size without telling people who the witnesses are going to be.... Both sides are entitled to a fair voir dire in selecting a jury. That's especially true in a small community such as Fort Yukon. The record will reflect the difficulty we had getting a jury and the numerous people who were related to various people who were listed on the board. The only way to . allow the state to be in a fair position again would be to go through the whole voir dire with each and every jury (sic) individually and I'm just not going to go through that again. The purpose of voir dire is to allow an open and full disclosure as to who might be involved and if, at the time of voir dire, one side or the other side does not [know] who their witnesses are going to be, why, that's just a problem that they're going to have to face. Smaker made an offer of proof for the record that Yera James would testify that on the afternoon of the alleged assault Grafton Solomon came into her office and told her that he was going to have Smaker arrested for assault and that, since Solomon was friendly with the district attorney, they would "get [Smaker] this time." Smaker also offered to prove that James would testify that she was in her office near the dispatch room on the afternoon of the alleged assault and would have been able to hear raised voices if there had been an oral altercation. Judge Blair acknowledged that James "would be an important witness in the case if she would testify." However, the judge refused to allow James to testify. The right of a defendant to present his own witnesses to establish a defense is a fundamental element of due process of law. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019, 1023 (1967). While the right to call and examine witnesses is not absolute, and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process . its denial or significant diminution calls into question the ultimate " 'integrity of the fact-finding process' " and requires that the competing interests be closely examined. Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297, 309 (1973), quoting Berger v. California, 393 U.S. 314, 315, 89 S.Ct. 540, 541, 21 L.Ed.2d 508 (1969). In this case Judge Blair precluded Smaker from calling Vera James as a witness because she was not named during jury selection and because of the likelihood that she would be known to the jury. He denied the motion before he heard Smaker's offer of proof and without determining whether any member of the jury would actually be unable to impartially serve if James were called as a defense witness. Without deciding whether the interest asserted by Judge Blair — that of assuring an impartial jury panel — might under other circumstances be sufficient to restrict a defendant's right to call and examine witnesses, it was clearly an abuse of discretion to preclude the calling of a witness without first ascertaining that such a restriction was actually necessary. The trial court was at least under an obligation to poll the jury panel as to its knowledge of Vera James: [The] discretion [to exclude witnesses] may be exercised only after the court has made an adequate inquiry into all of the surrounding circumstances, and failure of the trial court to inquire into the circumstances constitutes error. State v. Bright, 229 Kan. 185, 623 P.2d 917, 923 (Kan.1981), quoting Adams v. State, 366 So.2d 1236 (Fla.App.1979). Cf. People v. Willis, 667 P.2d 246, 247 (Colo.App.1983) (preclusion ruling constitutes an abuse of discretion where it prevents defendant from negating prosecution's testimony). The state maintains that any error was harmless since Smaker's main defense was that he did not confront Solomon with the metal rod, and Vera James could not testify as to whether Smaker possessed the rod since she did not actually witness the altercation. However, James would have testified as to statements made to her by Solomon which were inconsistent with Solomon's own testimony and therefore not hearsay under Evidence Rule 801(d). These statements would have served to impeach Solomon's testimony that for thirty minutes after the assault he was too shaken to call the police. The statements would also have impeached Solomon's credibility, since he denied even making them. More importantly, James' testimony would have put some evidence before the jury that Solomon had not been placed "in fear of imminent serious physical injury," an essential element of assault in the third degree, but, instead, was exploiting an altercation to avenge a personal grudge. The trial court recognized that Vera James was an important witness. In a case such as this, where the credibility of the defendant is pitted against the credibility of the complaining witness, it cannot be said that the preclusion of James' testimony did not appreciably affect the jury's verdict. Love v. State, 457 P.2d 622, 630-32 (Alaska 1969). The conviction is REVERSED. . We similarly need not decide whether an order requiring the counsel in a criminal prosecution to disclose the names of prospective defense witnesses during the jury selection process is violative of the accused's right against self-incrimination. Cf. Scott v. State, 519 P.2d 774 (Alaska 1974). . This conclusion is in accord with our holdings that exclusion of significant evidence should be used as a remedy for discovery abuses only in rare situations where there is no reasonable alternative. See, e.g., Turk v. State, 662 P.2d 997, 1000 (Alaska App.1983); State v. Lewis, 632 P.2d 547, 550 (Alaska App.1981).

10412739

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

Andrejko v. State

1985-02-22

No. A-205

246

249

695 P.2d 246

695

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:11:48.367668+00:00

CAP

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

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

Michael ANDREJKO, Appellant, v. STATE of Alaska, Appellee. No. A-205. Court of Appeals of Alaska. Feb. 22, 1985. Lewis F. Gordon, Baily & Mason, Anchorage, for appellant. William H. Hawley, Jr., Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

1496

9271

OPINION COATS, Judge. I. Michael Andrejko was convicted of one count each of escape in the second degree, burglary in the second degree, assault in the third degree, and attempted kidnapping, and two counts of criminal mischief in the second degree. AS 11.56.310(a)(1)(A); AS 11.46.310(a); AS 11.41.220(a); AS 11.-'31.100(a); AS 11.41.300(a)(1)(E); and AS 11.46.482(a)(4). Andrejko was ordered to serve a total sentence of sixteen years. Andrejko now appeals both his conviction and his sentence. We affirm. On July 11, 1982, Andrejko was being held at the Alaska State Correctional Center Annex in lieu of $500,000 bail for a charge unrelated to this case. Andrejko left the facility without permission of the authorities there. He then hid in an office building which was located nearby. There, Andrejko took a letter opener and a sweater. He then left the office building and hid in the back of a van parked outside. The van belonged to John MacMullen, who had momentarily left the vehicle. When Mac-Mullen returned to the van, he started it and turned around to check for traffic. It is disputed at this point what happened next. MacMullen testified that when he turned around, Andrejko brandished what appeared to be a knife, and told MacMul-len, "Don't move, just drive." MacMullen then testified he jumped from the vehicle, and ran to call the police. Andrejko testified he had told MacMullen to "get out of here." In any event, after MacMullen left, Andrejko drove the van away from the building. The van was subsequently found by the Anchorage police crashed into a building, abandoned, with the engine still running. Andrejko was located, hiding nearby. At trial, Andrejko moved for a judgment of acquittal on two grounds. First, he argued that the state had not proven an essential element of the escape charge, that the defendant had been under "official detention" when he removed himself from the correctional facility, as required by AS 11.56.310(a)(1)(A). Second, Andrejko argued that the state had not proven the elements of attempted kidnapping, because the felony on which the attempted kidnapping charge was based was escape. Judge Buckalew denied the motion. Judge Buck-alew also refused to include a disputed portion of the statutory definition of "official detention" in the jury instructions. Andrejko appeals these decisions. II. Andrejko argues that the trial court abused its discretion by denying his motion for judgment of acquittal. He argues that the state's evidence indicated he was incarcerated under an "order of conditional bail release" and thus fell within the exception to the definition of "official detention" under AS 11.81.900(b)(34). Alaska Statute 11.81.900(b)(34) reads: "official detention" means custody, arrest, surrender in lieu of arrest, or confinement under an order of a court in a criminal or juvenile proceeding, other than an order of conditional bail release. [Emphasis provided.] Andrejko was confined under an order which reads in part: It is ORDERED that the above-named defendant be held in custody pending action by this Court or until the bail herein is posted. Andrejko argues that that this order was a "conditional bail release" and that therefore he was not under "official detention" for purposes of AS 11.81.900(b)(34). He contends that the statutory exception is intended to cover individuals held in lieu of bail as opposed to those being held without bail. We disagree with Andrejko's argument. From our analysis of AS 11.81.900(b)(34), its limited legislative history, and its predecessor, former AS 11.30.100, we conclude that when the legislature said that a person was not in detention if he was under an order of conditional bail release, the legislature was referring to the situation where the defendant was actually released on bail from confinement subject to certain conditions. See e.g., Beckman v. State, 689 P.2d 500 (Alaska App.1984), where we reversed a conviction for escape where the defendant ran away from a representative of an alcohol treatment program where the treatment was a condition of probation under the trial court's order. We held the defendant was "confined," however, not "under an order of a court" for purposes of AS 11.81.900(b)(34). Under former AS 11.30.100, it was clear that persons incarcerated in lieu of bail could be prosecuted for escape. That statute read in part: (2) "official detention" means arrest, custody following surrender in lieu of arrest, detention in any facility for custody of persons under charge or conviction of crime or alleged to be delinquent, detention for extradition or deportation or any other detention for law-enforcement purposes; but "official detention" does not include supervision on probation or parole, or constraint incidental to release on bail. When the criminal code was revised in 1978, the commentary stated the revised code made three significant changes in the escape laws. However, there was no mention of the decriminalization of escapes by persons confined in lieu of bail. The state contends that the absence of such a comment indicates the legislature's intent not to change the effect of the law in that regard. We agree. Our resolution of this issue is dis-positive of Andrejko's argument that Judge Buckalew abused his discretion by denying Andrejko's motion for judgment of acquittal based on his argument that because the state had failed to prove escape, it had failed to prove an essential element of attempted kidnapping. III. Andrejko argues that his sentence is excessive because his offenses should be viewed as "one general transaction" under State v. Pete, 420 P.2d 338, 342 (Alaska 1966), and thus consecutive sentences are inappropriate. Andrejko's reliance on Pete is misplaced. In Mutschler v. State, 560 P.2d 377, 378 (Alaska 1977), the supreme court held: Pete cannot be read as holding that consecutive sentences are impermissible in the circumstance where the separate of fenses are part of one general occurrence or transaction. [Footnote omitted.] We therefore reject Andrejko's argument. Judge Buckalew was not clearly mistaken in imposing the consecutive sentences. We have also reviewed Andrejko's sentence and conclude that the aggregate sentence was not excessive and thus not clearly mistaken. Id. at 381. The conviction and the sentence are AFFIRMED. .Andrejko's aggregate sentence was imposed to run consecutively to a previous sentence. A four-year sentence was imposed on the escape count. A two-year sentence was imposed on the burglary count. These were ordered to run consecutively. On the assault count, Andrejko was given two years' incarceration, to run concurrently with the escape and burglary sentences. A ten-year sentence was imposed for the attempted kidnapping count, to run consecutively with the escape, burglary and assault sentences. On each of the criminal mischief counts, Judge Buckalew imposed two-year sentences, concurrent to each other, consecutive to the escape, burglary and assault sentences and to be served concurrent to the attempted kidnapping sentence. . Alaska Statute 11.56.310(a)(1)(A) provides: (a) One commits the crime of escape in the second degree if, without lawful authority, one (1) removes oneself from (A) a correctional facility while under official detention. . Alaska Statute 11.41.300(a)(1)(E) provides that a person commits the crime of kidnapping if the person restrains another with intent to facilitate the commission of a felony or flight after commission of a felony. Escape in the second degree is a class B felony. AS 11.56.310(b). . See also Missouri Revised Statutes § 556.-061(3) (1979) from which AS 11.81.900(b)(34) was derived and Model Penal Code § 242.6(1) (Proposed Official Draft 1962). . See Commentary on the Alaska Revised Criminal Code, Supp. No. 44 in 13 Senate Journal (1980), following p. 1436 (May 29, 1980); Alaska Criminal Code Revision Part IV at 43-49 (Tent. Draft 1977). .We note based on our decision today that Judge Buckalew's instruction to the jury regarding the definition of "official detention" was correct as a matter of law and thus there was no error. See Jordan v. State, 681 P.2d 346, 349-50 (Alaska App.1984). Judge Buckalew properly deleted the statutory language of AS 11.81.-900(b)(34) which reads "other than an order of conditional bail release." . We note that Andrejko has an extensive criminal record, both as a juvenile and as an adult. He was first adjudicated delinquent over twenty years ago. Since then, he has continuously been convicted of serious crimes. In 1964 he escaped three times from a correctional facility to which he had been committed. In 1982 he was convicted of murder in the second degree. It was the incarceration for that conviction from which Andrejko fled and thus was convicted of the present offense of escape. In light of Andrejko's extensive record, the amount of time imposed by Judge Buckalew is justified.

10423910

ALASKA STATE FEDERATION OF LABOR and Michael Culich, Appellants, v. STATE of Alaska, DEPARTMENT OF LABOR, Department of Community and Regional Affairs, the Alaska Native Brotherhood, and Mountain Pacific, Inc., Appellees, and Tlingit-Haida and Alaska Native Brotherhood Building Corporation, Intervenors, Appellees

Alaska State Federation of Labor v. State, Department of Labor

1986-01-31

No. S-588

1208

1212

713 P.2d 1208

713

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:08:26.184312+00:00

CAP

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

ALASKA STATE FEDERATION OF LABOR and Michael Culich, Appellants, v. STATE of Alaska, DEPARTMENT OF LABOR, Department of Community and Regional Affairs, the Alaska Native Brotherhood, and Mountain Pacific, Inc., Appellees, and Tlingit-Haida and Alaska Native Brotherhood Building Corporation, Intervenors, Appellees.

ALASKA STATE FEDERATION OF LABOR and Michael Culich, Appellants, v. STATE of Alaska, DEPARTMENT OF LABOR, Department of Community and Regional Affairs, the Alaska Native Brotherhood, and Mountain Pacific, Inc., Appellees, and Tlingit-Haida and Alaska Native Brotherhood Building Corporation, Intervenors, Appellees. No. S-588. Supreme Court of Alaska. Jan. 31, 1986. Fredric R. Dichter, Dichter & Ploog, Anchorage, for appellants. Pamela Finley and James B. Bradley, Robertson, Monagle, Eastaugh & Bradley, Juneau, for appellees. Stephen J. Pearson, Juneau, for inter-venors, appellees. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

2345

14866

OPINION BURKE, Justice. The Alaska State Federation of Labor (Federation) and Michael Culich filed an action in the superior court against Mountain Pacific, Inc. for declaratory and injunc-tive relief, alleging that a Juneau construction project was "public construction," subject to the wage requirements of Alaska's Little Davis-Baeon Act (Act), AS 36.05. Both sides moved for summary judgment. The superior court ruled that the project was not "public construction," and granted summary judgment in favor of the defendants; the plaintiffs' motion for summary judgment was denied and their complaint was dismissed with prejudice. Plaintiffs appeal. I. FACTS AND PROCEEDINGS BELOW The Alaska Native Brotherhood (ANB) applied for and received a $1,000,000 State grant from the Department of Community and Regional Affairs (CRA) for the construction of a community hall in Juneau. ANB subsequently reached an agreement with the Central Council of Tlingit and Haida Indian Tribes of Alaska (THCC) to combine their resources and build a larger complex, financed by the original $1,000,-000 grant to ANB and additional private financing of approximately $3,000,000. CRA approved this plan, and THCC and ANB created the Tlingit-Haida and Alaska Native Brotherhood Building Corporation (TH/ANB) to complete the project. A construction contract was entered into between TH/ANB and defendant, Mountain Pacific, and work commenced on April I, 1983. Although neither the CRA grant nor the construction contract made specific reference to AS 36.05, the Department of Labor informed Mountain Pacific on April 18,1983, that the Act applied to the project. In order to begin enforcement of the Act's requirements, the Department of Labor scheduled a hearing with Mountain Pacific for May 27, 1983. On May 23, 1983, the attorney general issued an opinion that the construction in question was not "public construction." The following day, the Department of Labor informed Mountain Pacific: "Based upon the Attorney General's opinion that the . project is not covered under Title 36, the . hearing scheduled for May 27, 1983 is hereby cancelled." The State made no further attempt to enforce AS 36.05, and the plaintiffs filed suit. Following an unsuccessful attempt by the plaintiffs to obtain a temporary restraining order, the parties filed their respective motions for summary judgment. On June 18, 1984, the superior court issued its Memorandum of Decision and Order, granting the defendants' motion and dismissing the plaintiff's complaint with prejudice. II. APPLICATION OF .ALASKA'S LITTLE DAVIS-BACON ACT (AS 36.05). The plaintiffs contend that construction of the community hall was covered by AS 36.05 because the project was "public construction" as defined in AS 36.95.010(3). That section provides: "public construction" or "public works" means the on-site field surveying, erection, rehabilitation, alteration, extension or repair, including painting or redecorating of buildings, highways or other improvements to real property under contract for the state, a political subdivision of the state, or a regional school board with respect to an educational facility under AS 14.08.161. Specifically at issue here is the meaning of "under contract for the state." Plaintiffs argue, in essence, that the phrase should encompass any contract with the state in which a substantial expenditure of state monies is involved. Therefore, plaintiffs contend, since the state contributed grant monies to ANB, through a contract for the construction of the ANB community hall, the provisions of AS 36.05 apply. We disagree. Relevant to our determination of this issue are: (1) the history of the ANB grant and the contract between CRA and ANB; (2) the sources and amounts of funding; and (3) Alaska case law. 1. History of the Grant and the Contract Between CRA and ANB In 1972, the state established the Department of Community and Regional Affairs to "render maximum state assistance to government at the community and regional level." AS 44.47.020, ch. 200, § 2, SLA 1972. The CRA is authorized to "conduct studies and carry out experimental and pilot projects for the purpose of developing solutions to community and regional problems." AS 44.47.050(3). The legislature appropriated $1,279,000 to CRA for "Juneau-Pilot Projects/Community Centers." See Ch. 82, § 30, SLA 1981, p. 158. Pursuant to this grant and subsection (3), the CRA prepared and published a Request for Proposals (RFP) for grant monies. The RFP stated that the intent of the legislature in providing state funding for the project was to contract with the Alaska Native Brotherhood Camp No. 2 to build a new Alaska Native Brotherhood Hall. A review of the ANB bid proposal reveals that the hall would serve as ANB headquarters and as its executive offices. Furthermore, all ANB activities took priority; any public use would be on a limited basis for a fee, as scheduling permitted. ANB and CRA entered into a contract outlining the duties and responsibilities of ANB in using the grant money. This grant contract was "for the construction and operation of a new Alaska Native Brotherhood Hall." ANB would be responsible for: (1) proper accounting of state funds; (2) acquiring land for a building site in the Juneau village area; (3) contracting and working with architects and engineers to design the hall; (4) hiring contractors and working with them to complete the hall; (5) establishing the uses of the hall and providing those services. Alaska's Little Davis-Bacon Act refers in numerous sections to a "construction contract." See AS 36.05.035; AS 36.05.040; AS 36.05.070. The Act clearly envisions contracts between the state or a political subdivision, and a contractor for the construction of a specified public project. See generally AS 36.05. Plaintiffs maintain that this is such a project. We disagree. The contract is specifically labeled "grant contract." Its purpose was the disbursement of grant monies. The responsibilities of ANB were to guarantee the state that the grant money would be spent on the building project specified in the grant. While the Federation is correct in asserting that the hall must be used for a public purpose on a nondiscriminatory basis, there is no indication in the record that the state ever intended to retain control over or fund the hall upon its completion. The contract between ANB and the state contains no express Little Davis-Bacon stipulation as required by AS 36.05.070, even though the state did include requirements that ANB advertise as an equal opportunity employer. We find no support for the Federation's argument that this was a construction contract for the state. 2. Funding The Federation maintains that the use of any state funds exceeding $2,000 in a construction project should result in the application of AS 36.05. Specifically, the Federation maintains that the community hall was ninety-nine percent funded by state monies, and that the expanded project (the TH/ANB building) was not approved by CRA until after the grant contract was signed. The superior court concluded that the state's contribution to the project was twenty-five percent, rather than ninety-nine percent as the Federation argues. The court noted that under the federal act, construction projects receiving any government funding are public construction, but that Little Davis-Bacon's definition of public construction precluded a similar result. The court stated: If the legislature had intended the act to apply to all state funded projects, it could easily have stated so in the definition of "public construction." Its failure to do so suggests that it did not intend such a broad application. The Department of Labor's decision not to adopt such a broad reading of the term "public construction" appears correct. Consequently, the court concluded that the Federation's broad interpretation of the statute was incorrect. We agree. The record does not substantiate the Federation's claim that the building was being constructed for, or would be owned by, the state. In fact, the record indicates that the ANB would be responsible for and have control over the construction and operation of the building. Finally, CRA did approve the joint project in which seventy-five percent of the funding would be from private rather than public sources. As a result, we find no support for the Federation's contention that the project was primarily state funded. 3. Alaska Case Law The Federation relies upon our decision in City and Borough of Sitka v. Construction and General Laborers Local 942, 644 P.2d 227 (Alaska 1982), a case in which we held that the clearing of timber in preparation for the construction of a dam was public construction subject to the wage provisions of the Act. The question in Sitka was whether one part of a construction project (the timber clearing) was sufficiently related to another part of the project that was clearly public construction (construction of the dam), so as to render both "public construction" for purposes of the Act. Consequently, the Sitka case must be distinguished from the present case, as there is no established public construction project with which to relate the project at issue. We conclude that the state never owned or controlled, nor intended to own or control the ANB community hall. The project was not public construction. The Act defines public construction as construction "under contract for the state." This requires significant state involvement. The evidence, however, shows that the project was intended primarily for private purposes and private control. State involvement was indirect — funding through a grant — and relatively small — only about twenty-five percent of the total cost. Thus, we affirm the superior court. III. ATTORNEY'S FEES. On October 5, 1984, the superior court awarded the appellees the following costs and attorney's fees pursuant to Civil Rule 82: $8,700 to Mountain Pacific; $5,550 to TH/ANB; $750 to ANB; and nothing to the State of Alaska. The Federation contests the superior court's award of attorney's fees charging that its appeal was public interest litigation, and that much of the work done by appellees' attorney's was duplicative. Civil Rule 82 gives trial courts broad discretion to award attorney's fees, and such an award is reviewable only for an abuse of discretion. Kenai Lumber Co. v. LeResche, 646 P.2d 215, 222 (Alaska 1982). In order to constitute abuse, the discretion must be "manifestly unreasonable or motivated by an inappropriate purpose." Id. We find that the superior court did not abuse its discretion in awarding attorney's fees. The Federation maintains that it is a public interest litigant, motivated by a desire to see a statutory provision enforced for the benefit of all Alaskan workers. We have identified four factors for determining whether a case qualifies as public interest litigation: (1) the effectuation of strong public policy; (2) the fact that numerous people would benefit from the litigation; (3) the fact that only a private party could have been expected to bring the action, and (4) the lack of economic incentives to bring the suit in the absence of important public issues. Sisters of Providence in Washington, Inc. v. Department of Health and Social Services, 648 P.2d 970, 979-80 (Alaska 1982). The standard to be applied under the fourth element of the test was set forth by our decision in Kenai as [W]hether the litigant claiming public interest status would have sufficient economic incentive to bring the lawsuit even if it involved only narrow issues lacking general importance. Such a litigant is less apt than a party lacking this incentive to be deterred from bringing a good faith claim by the prospect of an adverse award of attorney's fees. 646 P.2d at 223. While enforcement of the Act would benefit Alaskan laborers generally, it would specifically benefit the member unions of the Federation. Consequently, we conclude that the Federation was motivated principally by private rather than public concerns; hence, the superior court's award was not an abuse of discretion. Furthermore, we find no merit in the Federation's claim that work done by appellees' attorneys was duplicative and excessive. The Federation misplaces its reliance on State v. Fairbanks North Star Borough School District, 621 P.2d 1329 (Alaska 1981), a case in which we stated: We agree that, to the extent that work performed is duplicative and unnecessary, it should not be considered in determining a proper award under Civil Rule 82. However, the state fails to give any examples of duplicative and unnecessary services, by record citation or otherwise. Therefore, the state has failed to meet its burden of showing a clear abuse of discretion by the superior court. Id. at 1335. Here, as in Fairbanks North Star Borough, the Federation offers no evidence of duplication by the appellees. As a result, their assertion is unsupported. IV. CONCLUSION. Based upon our findings above, all portions of the superior court's decision are AFFIRMED, including the award of attorney's fees. . AS 36.05 is modeled after the Federal Davis-Bacon Act 40 U.S.C. § 276a et seq. Fowler v. City of Anchorage, 583 P.2d 817 (Alaska 1978). The fundamental purpose of the Act is to assure that employees engaged in public construction receive at least the prevailing wage. City of Sitka v. Construction & General Laborers Local 942, 644 P.2d 227 (Alaska 1982). . The legislature could, of course, require that all projects receiving state funds comply with AS 36.05. . The court noted that: Once a sufficient nexus has been established between a contract and a public construction project, we may look to the value of the entire endeavor to ascertain if the $2,000 threshold requirement has been satisfied. Id. at 233 n. 12 (emphasis added). .Alaska R.Civ.P. 82(a)(2) reads: In actions where the money judgment is not an accurate criteria for determining the fee to be allowed to the prevailing side, the court shall award a fee commensurate with the amount and value of the legal services rendered. . Because of this decision we need not address other issues raised by the parties.

10356706

Jon B. McKILLOP, Appellant, v. STATE of Alaska, Appellee

McKillop v. State

1993-08-06

No. A-4072

358

366

857 P.2d 358

857

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:09:06.214921+00:00

CAP

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

Jon B. McKILLOP, Appellant, v. STATE of Alaska, Appellee.

Jon B. McKILLOP, Appellant, v. STATE of Alaska, Appellee. No. A-4072. Court of Appeals of Alaska. Aug. 6, 1993. David R. Weber, Asst. Public Defender, and John B. Salemi, Public Defender, Anchorage, for appellant. Ethan A. Berkowitz, Asst. Dist. Atty., Edward E. McNally, Dist. Atty., Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

4459

27565

OPINION MANNHEIMER, Judge. A jury found Jon B. McKillop guilty of harassment, AS 11.61.120(a)(4), for making anonymous telephone calls to the Anchorage Abused Women's Aid in Crisis (AWA-IC) shelter. McKillop appeals his conviction, asserting that his conviction rests on illegally seized evidence, that the trial judge misinstructed the jury on the meaning of "anonymous", and that the harassment statute is unconstitutional. We hold that the statute is constitutional if construed to require proof that the defendant's sole intent was to annoy or harass the recipient of the telephone call, but we reverse McKillop's conviction because the instructions his trial jury received did not convey the limiting construction we adopt today. Between 10:00 and 10:30 p.m. on January 8, 1991, the counselors working the AWA-IC shelter crisis hotline received approximately six telephone calls from the same male caller. The caller told the female counselors that "there's no such thing as so-called abused women", that "I've been abused by a cunt all my life", that he'd lived with a "cunt" for four years, and that women "ought to go to Baghdad and kill some niggers". The caller did not give his name. However, at one point he stated, "I'm Elvis Presley", and at another point he told a counselor, "By the way, I'm at 277-0088, Room 225 if you want free coke." The caller also told a counselor that "Elvis was king", not Martin Luther King, Jr., who was dead. The counselors told the male caller to stop calling the shelter, and they hung up on him, but he kept calling. The counselors became concerned that the caller might be preventing others from using the crisis hotline; they also heard what sounded like slapping noises in the background, causing them to fear that someone was being abused. For these reasons, the counselors called the police. Anchorage Police Officer Dan Seely and another officer went to the Budget Motel in Anchorage, after learning from police dispatch that this address corresponded to the telephone number recited by the caller. The two officers arrived at the motel at 11:12 p.m. and proceeded to Room 225. In response to the officers' knock, McKillop opened the door to the room. He was naked and apparently intoxicated. Seely asked McKillop why he had been calling the AWAIC shelter. McKillop at first denied that he had made the calls, until Seely explained that the caller had disclosed his telephone number and room number. McKillop then admitted that he had made the calls. When Seely again asked why McKillop had made the calls, McKillop answered, "Because Elvis Presley is king, and Martin Luther King is dead." Seely recognized this statement as the same one the anonymous caller had made to the AWAIC shelter counselor. At this point, Seely left to obtain a warrant for McKillop's arrest on a charge of harassment; the other officer stayed until the warrant could be obtained and served. McKillop asked the district court to suppress his "Elvis is king" statement to Officer Seely. McKillop argued that this statement had been obtained as a result of a warrantless seizure, and he also argued that Seely had been obliged to provide McKillop with Miranda warnings before he questioned him. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). At the evidentiary hearing on this issue, Seely testified that, when he and his fellow officer went to McKillop's hotel room, McKillop had stepped out into the hallway wearing no clothing. Other people in the motel hallway appeared to be offended by McKillop's nakedness, so Seely suggested that McKillop step back into his room. McKillop went along with this suggestion. Seely followed McKillop over the threshold, stepping into the doorway and thus partially into the room, to continue their conversation. Seely testified that McKillop did not specifically ask Seely to leave, but he did ask whether Seely had a search warrant or arrest warrant or any other authority to be there. District Court Judge William H. Fuld declined to suppress the "Elvis" statement. Judge Fuld concluded that Seely and the officer had been merely investigating a crime and had not placed McKillop in custody during the "fairly brief contact" that began when Seely asked the naked McKil-lop to go back inside the room and continued while Seely was standing in the threshold of McKillop's room. The test for whether a person is in "custody" for Miranda purposes is generally framed as whether a reasonable person would have felt free to break off questioning and ask the police to leave. Hunter v. State, 590 P.2d 888, 895 (Alaska 1979); Edwards v. State, 842 P.2d 1281, 1284 (Alaska App.1992). However, the fact that a defendant lacks immediate freedom to leave is not, by itself, determinative. A police-citizen encounter can constitute a "seizure" for Fourth Amendment purposes and yet not be "custody" for Miranda purposes. For example, the police are not required to give Miranda warnings during an investigative stop or detention of limited duration even when "considerable force" was used in making the stop. Tagala v. State, 812 P.2d 604, 608 (Alaska App.1991). Here, the police knocked on McKil-lop's door and asked if he had been making calls to the women's shelter. They made no show of weapons, they did not engage in any search, and their questioning of McKil-lop was not extensive. Because McKillop was both drunk and naked, it was reasonable for the police to suggest that their conversation be held in some place other than a public hallway. We recognize that McKillop repeatedly questioned the officers' authority to be there. However, Seely testified that McKillop never actually asked the police to leave, and no one testified that McKillop made a move to close the door or otherwise demonstrated that he wished an immediate end to the conversation. Under these facts, Judge Fuld was not clearly erroneous in finding that McKillop was not in Miranda custody when he made his "Elvis" statement to the officers. McKillop's next argument concerns the jury instructions at his trial. McKillop was tried for harassment under AS 11.61.-120(a)(4), which reads: A person commits the crime of harassment if, with intent to harass or annoy another person, that person (4) makes an anonymous or obscene telephone call or a telephone call that threatens physical injury[.] The State alleged that McKillop had violated this statute because his telephone calls to the AWAIC shelter had been "anonymous". McKillop asked District Court Judge Martha Beckwith to instruct the jury that a telephone call was "anonymous" only if the caller failed to provide information from which his identity could reasonably be ascertained. McKillop pointed out that he had given the telephone number of his motel and his motel room number to the AWAIC counselors; he argued that his disclosure of this information meant that his calls had not been anonymous. Judge Beckwith decided, after referring to a dictionary, that "anonymous" meant "nameless" or "lack[ing] . identification"; she told the parties that she intended to instruct the jury accordingly. At this point, McKillop's attorney asked the judge to refrain from giving the jury any definition of "anonymous" and let the parties argue their own views of how that term should be defined for purposes of the harassment statute. Judge Beckwith acceded to this request. On appeal, however, McKillop renews his primary argument: that his telephone calls to the AWAIC shelter were not anonymous because he disclosed the motel's telephone number and h'is room number. The criminal code does not explicitly define the term "anonymous", nor does the commentary to AS 11.61.120 address the meaning of this term. We therefore use the word's common meaning, as disclosed in the dictionary, as our primary aid in determining the legislature's intent. Michael v. State, 767 P.2d 193, 197 (Alaska App.1988), rev'd on other grounds, 805 P.2d 371 (Alaska 1991). Webster's New World Dictionary of American English (3rd College Ed. 1988), p. 56, gives two pertinent definitions of "anonymous": (1) "with no name known or acknowledged" and (2) "given, written, etc. by a person whose name is withheld or unknown". Under these definitions, McKillop's telephone calls to the women's shelter were anonymous. Courts in other states have applied these or similar dictionary definitions of "anonymous" when construing similar statutes prohibiting anonymous telephone calls. See State v. Diede, 319 N.W.2d 818, 821-22 (S.D.1982) (holding that a defendant who failed to identify himself was guilty of making "anonymous" telephone calls even though the recipients of the calls had had sufficient experience with the defendant to identify his voice); see also Caldwell v. State, 26 Md.App. 94, 337 A.2d 476, 486 (1975). McKillop's proposed definition of "anonymous" would have required the jury to determine, not only that McKillop had failed to disclose his identity, but also that his identity could not have been discovered through inquiry or investigation. McKil-lop's proposal thus varied significantly from the commonly understood definition of the word. McKillop's brief does not explain or provide authority for his claim that the Alaska legislature intended the word "anonymous" to be construed in the non-standard way he suggests. We conclude that Judge Beckwith did not abuse her discretion when she refused to give McKillop's proposed definitions to the jury. McKillop's final argument on appeal is that AS 11.61.120(a)(4) is unconstitutionally broad — that it attaches criminal penalties to protected speech. McKillop argues that a person's wish to remain anonymous cannot, of itself, be punished. He points out that anonymous political speech (advocacy of social causes and attacks on government figures and policies) holds an honored place in our political tradition. See Talley v. California, 362 U.S. 60, 64-65; 80 S.Ct. 536, 538-39; 4 L.Ed.2d 559 (1960). For example, the Federalist Papers authored by Madison, Hamilton, and Jay were published under pseudonyms. Talley, 362 U.S. at 65; 80 S.Ct. at 539. McKillop also argues that a person cannot be punished for engaging in speech that annoys others. He notes that effective political speech will often cause annoyance, anger, or alarm in unsympathetic listeners. McKillop also points out that a speaker will often not know whether his or her listeners will find the speech annoying. Here, however, the statute is not aimed at "pure speech" or the content of speech— the communication of ideas or opinions. Rather, the statute is directed at conduct: the caller's act of intruding upon someone else's privacy. AS 11.61.120(a)(4) prohibits a person from making anonymous telephone calls for the purpose of annoying or harassing another. The court in People v. Smith, 89 Misc.2d 789, 392 N.Y.S.2d 968, 970 (N.Y.App.1977), cert. denied, 434 U.S. 920, 98 S.Ct. 393, 54 L.Ed.2d 276 characterized the issue well when it declared that such a statute prohibits "a form of trespass". Accord, State v. Gattis, 105 N.M. 194, 730 P.2d 497, 502 (App.1986); State v. Elder, 382 So.2d 687, 690-691 (Fla.1980). The conduct prohibited by AS 11.61-120(a)(4) may often involve speech, but it need not. A person could violate the statute by calling another person, listening in silence when that person answered the phone, and then hanging up. Compare Gormley v. Director, Connecticut Dept. of Probation, 632 F.2d 938, 942 (2nd Cir.1980), cert. denied, 449 U.S. 1023, 101 S.Ct. 591, 66 L.Ed.2d 485; State v. Gattis, 730 P.2d at 502. The fact that AS 11.61.120(a)(4) prohibits conduct that may involve speech does not invalidate the statute on freedom of speech grounds. A caller may use words as the method of harassing the recipient of the call; this means only that AS 11.61.-120(a)(4) deals with an aspect of conduct mixed with speech. [Making a course of conduct illegal] has never been deemed an abridgement of freedom of speech or press . merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed. Cox v. Louisiana, 379 U.S. 559, 563; 85 S.Ct. 476, 480; 13 L.Ed.2d 487 (1965). See State v. Elder, 382 So.2d at 690-691. When a statute is aimed at conduct that involves speech, the governing First Amendment test is stated in Broadrick v. Oklahoma, 413 U.S. 601, 615; 93 S.Ct. 2908, 2918; 37 L.Ed.2d 830 (1973): [When] conduct and not merely speech is involved, . the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep. Thus, we must decide whether McKillop has shown that any possible infringement of the right of free speech wrought by AS 11.61.120(a)(4) is "real" and "substantial" when compared to the scope of the statute's legitimate regulation of conduct. The statute does not punish speech simply because it is anonymous. While "the anonymity of the caller is . itself a circumstance raising discomfort and fear in the receiver of the call", State v. Elder, 382 So.2d at 691, quoting United States v. Darsey, 342 F.Supp. 311, 313 (E.D.Pa.1972), nevertheless the statute requires proof of an additional element: that the caller's purpose was to annoy or harass the other person. Nor does AS 11.61.120(a)(4) suffer from the defect of punishing speech simply because it may have the effect of annoying the listener. As the court noted in Constantino v. State, 243 Ga. 595, 255 S.E.2d 710, 713 (1979), cert. denied, 444 U.S. 940, 100 S.Ct. 293, 62 L.Ed.2d 306, [T]he victim's subjective ideas on what is or is not harassing are not in issue. The point is that the defendant telephones intending to harass, and he certainly knows if he is doing that. This court used the same reasoning in Jones v. Anchorage, 754 P.2d 275 (Alaska App.1988), to uphold a municipal ordinance making it illegal "for any person to anonymously or repeatedly telephone another person for the purpose of annoying, molesting, . abusing ., or harassing that person or his family." 754 P.2d at 278. This court declared: The ordinance challenged in this case . is readily distinguishable from provisions found to be invalid on grounds of vagueness. Cases have condemned statutes as unduly vague when those statutes prohibited conduct or speech resulting in annoyance to others, without . specifying "upon whose sensitivity a violation does depend — the sensitivity of the judge or jury, the sensitivity of the ar resting officer, or the sensitivity of a hypothetical reasonable [person]." In contrast, the ordinance challenged here does not purport to hinge the unlawfulness of speech or conduct on the stan-dardless, subjective reactions of unspecified third persons. To the contrary . [and] significantly, . the lawfulness or unlawfulness of the act turns . on the specific intent of the accused. Jones, 754 P.2d at 278, quoting Coates v. City of Cincinnati, 402 U.S. 611, 613; 91 S.Ct. 1686, 1688; 29 L.Ed.2d 214 (1971). McKillop nevertheless argues that political speakers often intend to "annoy" their listeners; political speech is frequently intended to make people uncomfortable and force them to re-examine their actions or convictions. McKillop therefore concludes that the specific intent element does not save AS 11.61.120(a)(4) from overbreadth. We agree that a person engaging in advocacy or criticism may legitimately intend to annoy or disturb his or her listeners. Nevertheless, "the right of every person to be le[f]t alone must be [weighed] in the scales [against] the right of others to communicate." Rowan v. United States Post Office Dept., 397 U.S. 728, 736; 90 S.Ct. 1484, 1490; 25 L.Ed.2d 736 (1970) (upholding a federal statute that requires the Post Office, upon request of an addressee, to order businesses to remove the addressee's name from their mailing lists for "pandering advertisements"). Under the general definition of "intentionally" contained in AS 11.81.900(a)(1), a defendant's intent to cause a prohibited result (here, annoyance or harassment) "need not be the person's only objective". Thus, when AS 11.61.120(a)(4) is read in conjunction with AS 11.81.900(a)(1), the statute is theoretically broad enough to punish political speech or other legitimate communication upon proof that one of the speaker's subsidiary motives was to annoy the listener. Because the scope of the statute is potentially so broad, we conclude that AS 11.61.120(a)(4) must be interpreted to prohibit telephone calls only when the call has no legitimate communicative purpose — when the caller's speech is devoid of any substantive information and the caller's sole intention is to annoy or harass the recipient. This court gave a similar limiting construction to the municipal ordinance in Jones v. Anchorage, 754 P.2d at 279. This limiting construction is consistent with AS 11.81.900(a)(1), because the legislature has declared that the general definition of "in tentionally" is to be applied "unless the context requires otherwise". Here, the First Amendment requires a different, narrower definition. Applying this limiting construction to AS 11.61.120(a)(4), we hold that the statute is neither vague nor overbroad. So limited, the statute is a constitutional exercise of legislative authority to regulate conduct involving speech. Having reached this legal conclusion (that is, having given a new, limiting construction to the harassment statute), we must now examine the record of McKillop's trial to see if he might have been convicted of harassment for engaging in protected speech. McKillop's main defense at trial was that his telephone calls to the AWAIC shelter had not truly been anonymous. However, McKillop's attorney also asked the jury to consider whether McKillop's real intention had been to harass or annoy, or whether, instead, McKillop had been drunkenly attempting to communicate personal grievances, albeit through intemperate, reprehensible language: DEFENSE ATTORNEY: [Evidence that the defendant was intoxicated may be . relevant to negate an element of the offense that requires that [he] intentionally caused a result. In this case, the State has to show that he intentionally called to harass or annoy another person. And, for that, you can take into consideration whether or not he was intoxicat-ed_ You should take that into consideration in deciding whether or not the State's proved beyond a reasonable doubt that, at the time he made these calls, [he] intended really to harass or annoy, or if he was just calling these people, venting . the feelings that he had, apparently, at that moment, in his [state] of intoxication, that he so heartfelt [sic] wanted to share. Even though they were obnoxious, clearly. Thus, McKillop asked the jury to consider whether the State had proved the intent element of the crime. As we have discussed above, this element of the statute must be construed to require proof that McKillop's sole intent was to harass or annoy. If McKillop truly intended to engage in communicative speech when he made the calls to the AWAIC shelter, then even if he also intended to harass or annoy, he should not have been convicted. However, the district court's jury instruction on this point tracked the language of AS 11.81.900(a)(1): "A person may act intentionally with respect to causing a particular result even though causing that result was not the person's only objective." This instruction was erroneous; it told the jury to convict McKillop even if they believed that, in addition to trying to annoy or harass the women at the AWAIC shelter, McKillop had also tried to engage in legitimate communication with them. From our description of the evidence at McKillop's trial, it might well seem that his telephone calls to the AWAIC shelter lie at the core of the statutory prohibition — anonymous telephone calls intended only to abridge the privacy interests the statute was designed to uphold, without any claim to legitimate communication of ideas or information. However, this was an issue of fact for the jury to decide. The court's instructions on the elements of the offense in effect told the jurors to ignore this crucial issue. Because the error in the jury instructions lies in the court's definition of the elements of the offense, we must reverse MeKillop's conviction and return his case to the district court for a new trial unless we are convinced that the error was harmless beyond a reasonable doubt. St. John v. State, 715 P.2d 1205, 1209-1211 (Alaska App.1986). Despite the strength of the State's case, we believe there is a reasonable possibility that the jury's verdict would have been different if the jurors had been correctly instructed on the elements of the offense. For this reason, we REVERSE McKillop's harassment conviction and remand his case to the district court for a new trial. . Compare Moss v. State, 823 P.2d 671, 674-75 (Alaska App.1991), where this court, although declaring that the issue was "close", concluded that a defendant had been in custody (even though the police had told him that he was not formally under arrest) when the police entered the defendant's residence at gunpoint, questioned him extensively, spent two and one-half hours searching the residence, and "deprived [the defendant] of his freedom of action in a significant way". . McKillop's attorney argued to the jury (unsuccessfully) that McKillop's phone calls to the shelter had not been anonymous because, by divulging his telephone number and room number (although not the name of his motel), McKillop had invited discovery of his identity. . We note that 47 U.S.C. § 223(a)(1)(B), the federal counterpart to AS 11.61.120(a)(4), prohibits a person from "mak[ing] a telephone call, whether or not conversation ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number." This federal formulation appears to embody the same concept manifested in the dictionary definition of "anonymous". . This aspect of the statute (that it prohibits telephone calls that are intended to be annoying or harassing to the recipient) distinguishes McKillop's case from two of the authorities he cites, Figari v. New York Telephone Co., 32 A.D.2d 434, 303 N.Y.S.2d 245 (N.Y.App.1969), and Huntley v. Public Utilities Comm'n, 69 Cal.2d 67, 69 Cal.Rptr. 605, 442 P.2d 685 (1968). Figari and Huntley involved telephone company attempts to regulate an anti-communist group which produced pre-recorded messages that people could listen to by calling an advertised telephone number. The telephone companies tried to force the anti-communist group to identify itself on the taped messages, but the New York and California courts struck down the telephone regulations as violative of the group's freedom of speech. McKillop argues that Figari and Huntley stand for the proposition that the government can never force people to identify themselves. However, there is an obvious distinction between, on the one hand, a person or group that offers people the opportunity to call and hear a recorded message (if they wish) and, on the other hand, a person who makes unsolicited calls to other people for the purpose of annoying or harassing them. . The defendant in Jones made at least 38 abusive telephone calls to her ex-boyfriend and his new girlfriend; in many of these calls, she identified herself. 754 P.2d at 276-77. Thus, the anonymity provision of the ordinance was not at issue; rather, the question presented in Jones was the constitutionality of the section of the ordinance prohibiting a person from "repeatedly telephon[ing] another". . Courts are in virtually unanimous agreement that the requirement of specific intent (that is, requiring the government to prove that the caller's subjective purpose in making the call was to annoy or harass) saves statutes such as AS 11.-61.120(a)(4) from vagueness problems. See State v. Elder, 382 So.2d at 691-92, in which the court upheld the constitutionality of a statute forbidding a person from "mak[ing] a telephone call . without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number". Indeed, most decisions in this area deal with statutes that simply forbid telephone calls made for the purpose of annoyance or harassment, without the additional element that the caller fail to identify himself. Such statutes are virtually always upheld against vagueness attacks because they include the element of specific intent. Jones v. Anchorage cites several of these decisions. 754 P.2d at 278-79. Other cases reaching the same conclusion are: United States v. Lampley, 573 F.2d 783, 787 (3rd Cir.1978); Donley v. City of Mountain Brook, 429 So.2d 603, 606-613 (Ala.Cr.App.1982), rev'd on other grounds, 429 So.2d 618 (Ala.1983); State v. Hagen, 27 Ariz.App. 722, 558 P.2d 750, 753 (1976); People v. Weeks, 197 Colo. 175, 591 P.2d 91, 94 & n. 1 (1979); Kinney v. State, 404 N.E.2d 49, 50-51 (Ind.App.1980); Caldwell v. State, 26 Md.App. 94, 337 A.2d 476, 481-82 (1975); State v. Gattis, 105 N.M. 194, 730 P.2d 497, 502-03 (App.1986); and People v. Smith, 89 Misc.2d 789, 392 N.Y.S.2d 968, 970-71 (N.Y.App.1977), cert. denied, 434 U.S. 920, 98 S.Ct. 393, 54 L.Ed.2d 276 (1977). . We also note that what begins as protected speech may ultimately violate the harassment statute. See, for example, People v. Smith, 392 N.Y.S.2d 968, in which a citizen repeatedly called the police department to make a complaint. The police informed him several times that the matter was civil and that he was tying up police phone lines; he nevertheless continued to call the police 27 times in the following 3½ hours. The court held that "the impropriety was not in the complaint made by the defendant but in its repetition." Id. at 971. That is, the caller's actions provided a basis for a fact-finder to conclude that the caller had previously accomplished any legitimate communication and his sole intent had become to annoy or harass. . This same limitation is sometimes explicitly written into other states' statutes. See Donley v. City of Mountain Brook, 429 So.2d at 605 ("with intent to harass or alarm [and] with no purpose of legitimate communication"), and Kinney v. State, 404 N.E.2d 49, 50 (Ind.App.1980) ("with intent to harass, annoy, or alarm another person, but with no intent of legitimate communication"). More often, a telephone harassment statute is silent on this point, and the limitation is inferred by courts. State v. Gattis, 730 P.2d at 503; State v. Elder, 382 So.2d at 691; United States v. Lampley, 573 F.2d at 787 (Congress has a "compelling interest in the protection of innocent individuals from fear, abuse, or annoyance at the hands of persons who employ the telephone, not to communicate, but for other unjustifiable motives."). But compare Gormley v. Director, Connecticut Dept. of Probation, 632 F.2d at 942-43 & n. 5 (suggesting that a harassment statute that requires proof of specific intent has so little potential for abridging protected speech that it requires no additional limiting gloss).

10396299

Craig M. BROGDON, Appellant, v. STATE of Alaska, Appellee

Brogdon v. State

1989-11-09

No. A-3052

1370

1372

781 P.2d 1370

781

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:09:08.575920+00:00

CAP

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

Craig M. BROGDON, Appellant, v. STATE of Alaska, Appellee.

Craig M. BROGDON, Appellant, v. STATE of Alaska, Appellee. No. A-3052. Court of Appeals of Alaska. Nov. 9, 1989. Allan Beiswenger, Robinson, Beiswenger & Ehrhardt, Soldotna, for appellant. Carmen E. Clark, Asst. Dist. Atty., James L. Hanley, Dist. Atty., Kenai, and Douglas B. Baily, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

976

6331

OPINION BRYNER, Chief Judge. Craig M. Brogdon was convicted after pleading no contest to one count of assault in the second degree, a class B felony. AS 11.41.210(a)(2), (b). Superior Court Judge Charles K. Cranston sentenced Brogdon, a first felony offender, to a term of five years with two years suspended. Brogdon appeals, contending that the sentencing court failed to adequately address the goal of rehabilitation and that the sentence is excessive. We affirm. On July 9, 1988, Brogdon drove his 1968 Ford Mustang 428 Cobra Jet on the Sterling Highway at speeds in excess of 100 miles per hour. As he passed slower vehicles in a no passing zone on a blind curve, Brogdon encountered an oncoming car. He swerved back to his side of the road, colliding with the rear of a car in his own lane of traffic. The collision seriously injured the driver and passenger of the car that Brogdon collided with. Brogdon attempted to leave the scene of the accident but was stopped by other motorists. An Intoximeter test taken after the collision revealed Brogdon's blood alcohol level to be .189%, almost twice the legal limit. Brogdon was initially charged with two counts of assault in the first degree (recklessly causing serious physical injury by means of a dangerous instrument), and one count of attempted failure to render assistance. These charges were dismissed upon Brogdon's agreement to plead no contest to a lesser count of second-degree assault. Brogdon was thirty years old at the time of the offense. He had no prior criminal convictions, but had an extensive traffic record, including seven speeding violations. The sentencing record indicates that Brog-don suffers from hemophilia, a condition that has required him to receive periodic blood transfusions. Several months before this offense, Brogdon learned that he had been infected with HIV, the AIDS virus, through exposure to a contaminated transfusion. It appears that, as a result of this news, Brogdon became seriously depressed. At the sentencing hearing, Brog-don argued that his conduct in committing this offense was uncharacteristic and had resulted from his depression. In imposing sentence, Judge Cranston, accepted this argument. Nevertheless, the judge concluded that Brogdon's depression and stress did not excuse his conduct. Judge Cranston found that, for a second-degree assault, Brogdon's conduct was among the most serious in its class. The judge pointed out that Brogdon was severely intoxicated, had driven at extreme rates of speed, and had passed other vehicles on blind corners in clearly marked no passing zones. Judge Cranston further found it significant that, as a result of Brogdon's conduct, two innocent victims had suffered serious physical injuries and were fortunate not to have been killed. Finally, Brog-don had attempted to leave the scene of the collision. In view of the seriousness of Brogdon's conduct, Judge Cranston concluded that imposition of an insubstantial jail sentence would convey the message that situational stress is an excuse for extreme recklessness. Judge Cranston found that Brog-don's case was exceptionally serious and warranted a first offense sentence exceeding the presumptive term for a second felony offender. Accordingly, the judge imposed a five-year sentence. The primary purposes of the sentence, according to the judge, were deterrence and community condemnation. Because of Brogdon's physical and emotional condition, however, Judge Cranston elected to suspend two years of the sentence, on condition that Brogdon complete five years of probation. The judge directed that Brogdon undergo screening for alcohol and drug abuse and that he complete a residential substance abuse program, if appropriate. Any time spent in residential treatment was to be credited as part of the unsuspended portion of Brogdon's sentence. In challenging his sentence, Brog-don first contends that the sentencing court failed to adequately address rehabilitation. We have previously held, however, that a court's failure to expressly mention rehabilitation will not invalidate a sentence when the record makes it clear that the court considered rehabilitation and made adequate provision for it in the sentence. See, e.g., Smith v. State, 691 P.2d 293, 294 (Alaska App.1984). In the present case, it is true that Judge Cranston did not expressly mention rehabilitation. However, the judge specifically indicated that he had taken account of the evidence relating to Brogdon's physical and emotional condition. Indeed, the judge stated that his decision to suspend two years of imprisonment was primarily influenced by this evidence. Additionally, the sentence imposed by Judge Cranston made adequate provision for Brogdon's rehabilitation. In particular, we note that Judge Cranston required Brogdon to complete a residential substance abuse program and specified that any time he spent in treatment would be credited against his sentence. Under the circumstances, the court's failure to expressly mention rehabilitation does not provide grounds for resentencing. Brogdon also argues that his sentence is excessive. However, the sentencing record strongly supports Judge Cran-ston's finding that Brogdon's conduct was exceptionally serious for a class B felony. The three-year unsuspended portion of the sentence is well below the presumptive term for a second felony offender, and so does not violate the rule of Austin v. State, 627 P.2d 657, 658 (Alaska App.1981). See Tazruk v. State, 655 P.2d 788, 789 (Alaska App.1982). Brogdon's overall sentence is well within the range we have previously approved for comparable offenses. See, e.g., Yerk v. State, 706 P.2d 341 (Alaska App.1985); Dresnek v. State, 697 P.2d 1059 (Alaska App.1985). Having independently reviewed the entire sentencing record, we conclude that the sentence imposed below is not clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). The sentence is AFFIRMED.

10393310

In the Matter of the ADOPTION OF T.N.F., a Minor

In re the Adoption of T.N.F.

1989-10-27

No. S-3104

973

985

781 P.2d 973

781

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:09:08.575920+00:00

CAP

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

In the Matter of the ADOPTION OF T.N.F., a Minor.

In the Matter of the ADOPTION OF T.N.F., a Minor. No. S-3104. Supreme Court of Alaska. Oct. 27, 1989. Karla F. Huntington, Kentch and Huntington, Anchorage, for appellant. Sarah J. Tugman, Tugman and Clark, Anchorage, for appellees. Before MATTHEWS, C.J., and RABINOWITZ, COMPTON and MOORE, JJ.

8414

50246

OPINION MOORE, Justice. The Indian Child Welfare Act, 25 U.S.C. § 1901-1963, (ICWA) provides minimum federal standards for the removal of Indian children from Indian families and allows vacation of any adoption decree rendered in violation of its terms. We first address the applicability of ICWA to the unique facts of this case. Secondly, we consider the applicability of Alaska's one-year statute of limitations to an action initiated pursuant to § 1914 of ICWA. The trial court found that the action to vacate the adoption decree was time-barred by Alaska's one-year statute of limitations. We affirm. I. In 1986, SAF and BFF had been married for sixteen years. SAF could not have children. SAF's sister, UJ, a California resident, who was married and had four children, agreed to have BFF's child for SAF. UJ was artificially inseminated with BFF's sperm during a trip to Alaska, and then returned home to California. UJ, the biological mother, and BFF, the biological father, have never lived together or established a family of any sort. The child, TNF, was born in California on September 6, 1986 and is the biological daughter of BFF and his wife's sister, UJ. Although SAF and UJ are non-Indians, BFF is ⅛2 Chickasaw Indian. Thus, the child, TNF, is Vu Chickasaw Indian as a result of her father's heritage. Shortly after TNF's birth, her custody was relinquished to SAF, who had arrived for the birth. SAF and BFF (hereinafter the F.s) remained in California for several weeks after the child's birth and then returned to Anchorage with her. On November 2, 1986, UJ signed a written consent (as did her husband) to the adoption of TNF by SAF. The consent states that UJ "consents to the adoption of [TNF] by [SAF] and is aware that she has the right to withdraw this consent as provided in A.S. 25.23.070(b)," and that "she has read this document and fully understands that her consent to this adoption terminates her legal rights as the mother of [TNF] and freely and voluntarily consents to the adoption." UJ made one change in the consent form. She was also provided a copy of the Alaska statute concerning withdrawal of consent. UJ signed her consent and it was notarized in California, before a notary public for that state. On December 12, 1986, SAF filed a petition for the adoption of TNF. Notices of the adoption proceedings were sent to UJ and the Chickasaw Tribe. The notice noted that TNF was of Indian blood but stated that the "adoption would not terminate or modify in any fashion the parental rights of [BFF] (/32nd Chickasaw) as father of [TNF] (⅛4⅛ Chickasaw) and would merely terminate the parental rights of UJ (non-Indian)." The notice also stated that "[i]f the Indian Child Welfare Act applies to this matter . the following rights may apply," and listed the pertinent rights. In their adoption petition, the'F.s contended that ICWA did not apply to this adoption since UJ is a non-Indian and the child was to remain with her Indian father. An adoption decree was entered by the Alaska Superior Court, Judge Peter A. Mi-chalski, in February of 1987. Judge Mi-chalski specifically found ICWA inapplicable because the parental rights of the only Indian involved in the proceedings were not modified. On April 18, 1988, UJ filed a motion to vacate the adoption decree. She argued that ICWA was applicable and that her consent to the termination of her parental rights was invalid under § 1913(a) of ICWA since her consent was not "recorded before a judge." On November 17, 1988, Judge Carlson denied the petition to vacate the decree of adoption. Judge Carlson rested his decision on AS 25.23.140 which provides that a decree of adoption may not be questioned on any ground one year after its issuance. The court found that ICWA applied but that it "enlarges the state's statute of limi tations only . if the consent was obtained by fraud or duress." Since there were no allegations of fraud or duress, the court found that Alaska's one-year statute of limitations barred LJJ's petition to vacate the adoption. UJ appeals. II. Section 1913(a) of ICWA requires that any voluntary consent by a parent or Indian custodian to the termination of their parental rights be recorded before a judge. -UJ argues that the decree of adoption is void because her consent to the adoption did not conform to this requirement, since it was only notarized by a California state notary and was not recorded before the Alaska judge. In response, the F.s argue inter alia that 1) ICWA does not apply to this case since an "Indian family" is not involved, and 2) the one-year statute of limitations in AS 25.23.070 bars the § 1914 action. A. Standard of Review The applicability of ICWA to this case and the question of whether § 1914 of ICWA incorporates state statutes of limitations are questions of law to which we apply our independent judgment. Sloan v. Jefferson, 758 P.2d 81, 83 (Alaska 1988). We will "adopt the rule of law that is most persuasive in light of precedent, reason and policy." Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). B. Applicability of the Indian Child Welfare Act Congress adopted the Indian Child Welfare Act of 1978, 25 U.S.C. § 1901-1963, in response to concerns over the eon-sequences to Indian children, Indian families and Indian tribes of abusive state child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes. In order to address these concerns, ICWA establishes "minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture." Section 1913 of ICWA provides that any "voluntary termination of parental rights" by "any parent or Indian custodian" must be "executed in writing and recorded before a judge . of competent jurisdiction." UJ argues that § 1913 applies -to TNF's adoption since she falls under ICWA's definition of a parent and TNF falls under the Act's definition of an Indian child. Section 1903(9) of ICWA states that " 'parent' means any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the unwed father where paternity has not been acknowledged or established." We agree that as the biological parent of TNF, UJ falls within the Act's protections in § 1913(a). Secondly, UJ argues that TNF falls within the Act's definition of an Indian child. The Act defines an Indian child as "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." 25 U.S.C. § 1903(4) (Supp.1987). TNF's biological father, BFF, is a member of the Chickasaw Nation. As the biological child of BFF, TNF is also a member of the Chickasaw tribe. As a result, TNF falls within the definition of an Indian child under ICWA. The F.s argue that the result of applying ICWA to this case would be to disrupt an Indian family, not to protect one. They urge us to follow several state court decisions holding that ICWA does not apply to the adoption of an Indian child which was never part of an Indian family. The F.s also point to language in ICWA indicating that Congress intended the act to protect Indian families. The F.s also rely on the Congressional findings of purpose within ICWA in arguing that the Act should not be applied in this case. In enacting ICWA Congress found: (4) that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and (5) that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families. 25 U.S.C. § 1901 (Supp.1987). In § 1902 Congress made the following declaration of policy: The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture. 25 U.S.C. § 1902 (Supp.1987). Several of the cases the F.s rely on involved belated challenges by unwed Indian fathers to the adoption of an illegitimate Indian child. The Supreme Court of Indiana expanded on the holdings of these cases in In the Matter of the Adoption of T.R.M., 525 N.E.2d 298, 302-03 (Ind.1988). In Adoption of T.R.M., an Indian mother arranged to have her illegitimate child adopted by a non-Indian couple. One year later, the Indian mother and the Tribe brought actions to invalidate the adoption on the grounds that it did not comply with ICWA. The court found ICWA did not apply since the child was given up shortly after birth and thus was never part of an Indian family. The court noted that "except for the first five days after birth, [T.R.M.'s] entire life of seven years to date has been spent with her non-Indian adoptive parents in a non-Indian culture." Id. at 303. Adoption of T.R.M. and the other cases recognizing an "Indian family" exception to the plain language of ICWA have been criticized by a number of courts. In A.B.M. v. M.H., 651 P.2d 1170, 1173 (Alaska 1982), cert, denied, 461 U.S. 914, 103 S.Ct. 1893, 77 L.Ed.2d 283 (1982), we were urged to adopt an "Indian family" exception to the Act's coverage. There, an Indian child was adopted by the mother's sister and brother-in-law but the biological mother later sought to revoke her consent to the adoption. The prospective adoptive parents argue that because the Act was intended to remedy the agency bias that has resulted in the removal of Indian children from their cultural settings, its application is not required in the instant case. They contend that R.H.'s adoption by members of her "extended family" (M.H. and A.H.) will not deprive her of the exposure to Indian cultural or social values the Act is designed to safeguard. We agree .that the H.'s have correctly identified one of the primary purposes of the Act, and that application in the instant case is not required to preserve R.H.'s ties to Indian culture or social values. Nevertheless, we cannot justify creating a judicial exception to the Act's coverage on this basis alone. 651 P.2d at 1173. Similarly, we decline to create an exception to the Act's coverage in this case. We initially note that in enacting ICWA, Congress did not seek simply to protect the interests of individual Indian parents. Rather, Congress sought to also protect the interests of Indian tribes and communities, and the interests of the Indian children themselves. See Mississippi Band of Choctaw Indians v. Holyfield, — U.S. -, -, 109 S.Ct. 1597, 1609, 104 L.Ed.2d 29 (1989). Reliance on a requirement that the Indian child be part of an Indian family for the Act to apply would undercut the interests of Indian tribes and Indian children themselves that Congress sought to protect through the notice, jurisdiction and other procedural protections set out in ICWA. We have serious policy reservations concerning the creation of judicial exceptions to the plain language of ICWA as was done by the Indian Court in Adoption of T.R.M. The court in Adoption of T.R.M. sidestepped the Act's protections by relying on the fact that the mother gave up the child shortly after its birth. Such application of an "Indian family" requirement effectively deprived both the Indian mother and her Tribe of the protections set out in the Act. It would seem that the adoption in T.R.M. was exactly the type of scenario in which Congress sought to impose federal procedural safeguards in order to protect the rights of the Indian parents and their tribe. Moreover, these judicially-created exceptions to the coverage of ICWA are somewhat suspect in light of the Act's purpose of imposing federal procedural safeguards. State courts must be particularly hesitant in creating judicial exceptions to a federal act which was enacted to counter state courts' prejudicial treatment of Indian children and communities. We certainly agree with the F.s' contention that it is very unlikely that Congress had surrogate parent arrangements in mind when it adopted the Act. However, to utilize a judicially-created "Indian family" exception would be to enter onto a slippery slope which threatens to exclude the very type of cases Congress had in mind when it adopted the Act. Under the plain language of the statute, UJ has standing to challenge the adoption under ICWA because she is the biological parent of an Indian child under § 1903(9). C. Application of State Statutes of Limitations to Section 1914 of ICWA Section 1914 provides that "any parent or Indian custodian from whose custody [an Indian] child has been removed . may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of the sections 1911, 1912, and 1913 of this title." Section 1914 does not set forth any time limitations for such a collateral attack. The only time limitations mentioned in the Act are in § 1913(d). Section 1913(d) provides that once an adoption decree is final, the parent may withdraw an otherwise valid consent to an adoption on the grounds that the consent was obtained through fraud or duress if the petition to vacate the decree is made within two years unless a longer period is allowed under state law. Judge Carlson found that since ICWA was silent as to statutes of limitations, except in the narrow situation specified in 1913(d), actions under § 1914 are governed by AS 25.23.140(b). UJ argues that incorporation of the one-year statute of limitation would frustrate the legislative intent of ensuring that voluntary consents to the termination of parental rights meet minimum federal procedural safeguards. In particular, UJ argues that a short state-imposed statute of limitations would essentially prevent the challenge of many adoptions made in violation of ICWA. The United States Supreme Court has consistently held that "[w]hen Congress has not established a time limitation for a federal cause of action, the settled practice [is] to adopt a local time limitation as federal law if it is not inconsistent with federal law or policy to do so." Wilson v. Garcia, 471 U.S. 261, 266-67, 105 S.Ct. 1938, 1941-42, 85 L.Ed.2d 254, 260 (1985). The resolution of whether § 1914 incorporates state statutes of limitations thus centers on whether the one-year Alaska statute ob structs or frustrates the purposes of ICWA. Similarly, under a federal preemption analysis of whether § 1914 prevents application of state law, we apply the following analysis: first, looking to the "policy, intent, and context" of the federal statute, whether the state regulation is expressly or implicitly preempted, second, even if no declaration is found, whether the statutes conflict to the extent that (1) it is impossible to comply simultaneously with the dual regulation or (2) the state regulation obstructs the execution of the purpose of the federal regulation. Webster v. Bechtel, 621 P.2d 890, 897 (Alaska 1980). As to the first prong, Congress clearly did not preempt the entire field of family law relating to Indian children. Rather, Congress sought to impose certain minimum federal standards to ensure that Indian families and Indian culture were respected in child welfare decisions. Thus, under both a preemption analysis and the Wilson test, the resolution of this issue centers on whether § 1914 conflicts with the state statute of limitations so as to obstruct or frustrate the purposes of ICWA. It is clear that Congress intended state statutes of limitations to govern the withdrawal of valid consents under the Act. Section 1913(d) provides for one exception to the application of state statutes of limitation by allowing collateral attacks on consents obtained through fraud or duress for at least two years after the final decree of adoption. The legislative history makes clear that "[t]his right is limited to two years after entry of the the decree unless a longer period is provided by state law." H.R. No. 95-1386, 95th Cong., 2d Sess. 23 (1978), reprinted in 1978 U.S.Code Cong. & Admin.News 7530, 7545-46. It is therefore clear that Congress realized that state statutes of limitations might bar withdrawal of valid consents earlier than two years after the decree and wished to establish an exception to those limitations in cases of fraud or duress. The critical issue' is whether Congress intended state statutes of limitations to apply to § 1914 actions to set aside consents which are invalid under the terms of the Act. UJ cites to one commentary on the Act which argues that invalid consents under § 1913 are void as a matter of law and not subject to state statutes of limitations. These commentators argue: No specific federal statute of limitations is provided for suits brought pursuant to section 1914. It is thus possible that in many instances a parent's collateral attack upon the state decree would be barred by a state statute of limitations. However, with respect to decrees entered in violation of two particular provisions of ICWA, there may be no time limit on the bringing of a suit. In those child custody proceedings in which the tribal court had exclusive jurisdiction pursuant to subsection 1911(a), any state court orders or decrees would be void ab initio. Similarly, since parental consent obtained in violation of the ICWA is invalid as a matter of law, any subsequent state court order for foster care or adoptive placement predicated on that defective consent should likewise be void. It would seem, therefore, that if these particular violations of the Act render the state court orders or decrees void, such void orders and decrees could be vacated by another court at any time. Trentadue and DeMontigny, The Indian Child Welfare Act of 1978: A Practitioner's Perspective, 62 N.D.L.Rev. 487, 536 (1986) (footnotes omitted). We disagree with these commentators' analysis. We initially note they do not cite any case law, nor have we found any authority, for their proposition that consents in violation of ICWA can be set aside at any time. More importantly, however, it would be inconsistent to allow a collateral attack on a consent in violation of ICWA to be brought at any time but only allow collateral attacks on consents which are the product of fraud or duress within two years of the adoption decree. Fraud and duress are evils at least as serious as violations of the procedural, protections contained in ICWA. A consent obtained in violation of § 1913 of ICWA should not be more questionable than a consent obtained through fraud or duress. Since Congress clearly intended that state statutes of limitations would apply to actions pursuant to § 1913(d) it is logical to assume that state statutes of limitations also apply to § 1914 actions. If Congress had intended to establish a minimum time for bringing § 1914 actions, it would have mandated a statutory minimum as- it did in § 1913(d). This conclusion is buttressed by the fact that a number of other important federal statutes have been construed to incorporate state statutes of limitations. For example, the United States Supreme Court has held that state statutes of limitations apply to civil rights actions under 42 U.S.C. § 1983. Wilson, 471 U.S. at 268, 105 S.Ct. at 1942; Board of Regents v. Tomanio, 446 U.S. 478, 483-84, 100 S.Ct. 1790, 1794-95, 64 L.Ed.2d 440 (1980). State statutes of limitations have been applied to a number of other important federal causes of action. See, e.g., Ernst & Ernst v. Hochfelder, 425 U.S. 185, 210 n. 29, 96 S.Ct. 1375, 1389 n. 29, 47 L.Ed.2d 668 (1976) (section 10(b) actions under the Securities Exchange Act of 1934); Hawaii Carpenters' Trust v. Waiola Carpenter Shop, 627 F.Supp. 237, 243-44 (D.Hawaii 1985) (Employee Retirement Income Security Act actions). As a matter of policy, both the two-year federal statute of limitations in § 1913(d) and the one-year limitation in AS 25.23.140 recognize that at some point adoptions must become final. To allow collateral attacks on final adoption decrees at any time threatens to unreasonably disrupt the upbringing of the adopted child. AS 25.23.-140 is .a strong policy statement by the Alaska Legislature that an adoption decree should not be challenged on any ground after one year. Section 1914 seeks to enforce important federal procedural rights contained in ICWA. However, this interest must be balanced against the adoptive family's interests. At some point, the adopted child's relations with his or her adoptive parents needs protection from further disruption. UJ argues that the United States Supreme Court's recent decision in Mississippi Band of Choctaw Indians v. Holyfield, — U.S. -, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989), precludes application of state statutes of limitations since such a result would disrupt uniform nationwide application of ICWA. The Supreme Court's decision in Holyfield centered on the question of whether state law governed the definition of "domicile" in § 1911(a) of ICWA. This section establishes exclusive jurisdiction in the tribal courts for proceedings concerning an Indian child "who resides or is domiciled within the reservation of such tribe." 25 U.S.C. § 1911(a) (Supp.1987). The Court first noted that the proper construction of the term domicile as used in ICWA was a matter of federal law, reasoning that Congress did not intend such a critical jurisdictional term to be defined by reference to varying state laws. The Court concluded that Mississippi law defining domicile was inconsistent with "generally accepted doctrine in this country and cannot be what Congress had in mind when it used the term in the ICWA." — U.S. at -, 109 S.Ct. at 1608. The Court therefore vacated the state court adoption decree, holding that the Choctaw tribal court had exclusive jurisdiction over the adoption pursuant to ICWA. — U.S. at -, 109 S.Ct. at 1610-11. In their dissent, Chief Justice Rehnquist and Justices Stevens and Kennedy expressed concern that the Court's interpretation of domicile "renders any custody decision made by a state court suspect, susceptible to challenge at any time as void for having been entered in the absence of jurisdiction." — U.S. -, 109 S.Ct. at 1616. UJ argues that the Court's reasoning dictates that a consent to adoption made in violation of § 1913(a) is likewise subject to challenge at any time. We disagree. We initially note that the § 1914 action in Holyfield was brought by the Tribe within two months of the state court's adoption decree. — U.S. at —, 109 S.Ct. at 1603. As a result, the majority in Holyfield did not reach the issue of the time limits for such a motion since the § 1914 action was brought in a timely manner. More importantly, however, unlike the state chancery court in Holyfield, the superior court in the case at bar had jurisdiction over the adoption when it issued its decree. We do not equate a decree made without jurisdiction with a decree based on a consent allegedly made in violation of a non-jurisdictional provision of ICWA. It is well-settled law that decrees issued by a court without jurisdiction are void and generally may be set aside if relief is sought within a reasonable time. Restatement (Second) of Judgments § 65, 69 (1982); C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2862, at 198-200 (1973). The same is not true of erroneous judgments. Title v. United States, 263 F.2d 28, 31 (9th Cir.), cert. denied, 359 U.S. 989, 79 S.Ct. 1118, 3 L.Ed.2d 978 (1959); Bowers v. Board of Appeals, 16 Mass.App. 29, 448 N.E.2d 1293, 1295, review denied, 389 Mass. 1104, 451 N.E.2d 1167 (1983); Wright & Miller, supra § 2862, at 198-200. We therefore conclude that ICWA incorporates state statutes of limitations except in challenges based on fraud or duress which are governed by the two-year statute of limitations in § 1913(d). Since UJ does not raise any allegation of fraud or duress, we conclude that application of a state statute of limitations is appropriate to determine whether UJ's challenge to the adoption decree is time barred. D. Does the Alaska or California Statute of Limitations Apply to this Action? UJ argues that if state statutes of limitations apply to § 1914 actions, the superior court erred in applying Alaska's one-year limitation rather than California's three-year limitation. Since UJ did not raise this issue in the trial court, she poses her argument in terms of a constitutional due process violation. A state violates federal due process if it applies its own substantive law to a transaction with little or no relationship to the forum state. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985). A state "must have a 'significant contact or aggregation of con tacts' to the claims ., contacts 'creating state interests,' in order to ensure that the choice of [state] law is not arbitrary or unfair." Shutts, 472 U.S. at 821, 105 S.Ct. at 2979, 86 L.Ed.2d at 648. Alaska has sufficient contacts with and interests in this adoption to ensure that application of Alaska law was not arbitrary or unfair to UJ. The original decree was issued by an Alaska court, the adoptive child and her family live in Alaska, TNF was conceived in Alaska, UJ consented to the adoption in an Alaska court, the consent stated that Alaska law governing withdrawal of consent prior to entry of a decree applied to this adoption, and UJ invoked the jurisdiction of the Alaska court to set aside the decree. We therefore conclude that the application of Alaska law conformed to the dictates of due process. III. In conclusion, we find that Judge Carlson correctly applied the one-year statute of limitations contained in AS 25.23.140(b) so as to bar UJ's § 1914 action to vacate the adoption decree. The judgment of the superior court is AFFIRMED. COMPTON, J., concurs. RABINOWITZ, J., dissenting in part. BURKE, J., not participating. . She crossed out and initialed a sentence that read: "3. That [TNF] is not the member of any Indian tribe and is not the biological child of the member of any Indian tribe." . UJ was provided a copy of AS 25.23.070 which provides: Withdrawal of Consent, (a) A consent to adoption may not be withdrawn after the entry of a decree of adoption. (b) A consent to adoption may be withdrawn before the entry of a decree of adoption, within 10 days after the consent is given, by delivering written notice to the person obtaining consent, or after the 10-day period, if the court finds, after notice and opportunity to be heard is afforded to the petitioner, the person seeking the withdrawal, and the agency placing a child for adoption, that the withdrawal is in the best interest of the person to be adopted and the court orders the withdrawal. .Section 1913(a) provides: Where any parent or Indian custodian voluntarily consents to a foster care placement or to termination of parental rights, such consent shall not be valid unless executed in writing and recorded before a judge of a court of competent jurisdiction and accompanied by the presiding judge's certificate that the terms and consequences of the consent were fully explained in detail and were fully understood by the parent or Indian custodian. The court shall also certify that either the parent or Indian custodian fully understood the explanation in English or that it was interpreted into a language that the parent or Indian custodian understood. Any consent given pri- or to, or within ten days after, birth of the Indian child shall not be valid. 25 U.S.C. § 1913(a) (Supp.1987) (emphasis added). . See H.R.Rep. No. 1386, 95th Cong., 2d Sess. 8-12 (1978), reprinted in 1978 U.S.Code Cong. & Admin.News 7530, 7530-34. . 25 U.S.C. § 1902 (Supp.1987). . The F.s also argue that LJJ is collaterally estopped from relitigating the issue of the Act's application to this case since the findings of law within the adoption decree specifically note that the Act does not apply. Collateral estoppel applies to issues actually litigated by the parties to the prior judgment. Bignell v. Wise Mechanical Contractors, 720 P.2d 490, 494-95 (Alaska 1986). "Notions of fairness require that only those issues that have been fully litigated and considered by the parties should be excluded from future actions." J. Friedenthal, M. Kane, A. Miller, Civil Procedure 675 (1985). While LJJ was a party to the adoption action, she did not participate adversarially in the proceedings. She was not represented by counsel and the only briefing on the Act's applicability was done by the F.s' attorneys. We therefore conclude that the issue was not so fully litigated as to bar LJJ from raising it in this action to set aside the decree. . See In the Matter of the Adoption of T.R.M., 525 N.E.2d 298, 302-03 (Ind.1988): In the Matter of the Adoption of Baby Boy L., 231 Kan. 199, 643 P.2d 168, 175 (1982); In the Matter of the Adoption of Baby Boy D., 742 P.2d 1059, 1064 (Okl.1985) reh'g denied (1987), cert, denied, — U.S. -, 108 S.Ct. 1042, 98 L.Ed.2d 1005 (1988); In the Interest of S.A.M., 703 S.W.2d 603, 607-09 (Mo.App.1986); Claymore v. Serr, 405 N.W.2d 650, 654 (S.D.1987); see also Note, The Indian Child Welfare Act: Does It Cover Custody Disputes Among Extended Family Members?, 1 Alaska L.Rev. 157, 160-68 (1984) (critique of this court's refusal to create an "Indian family" exception to ICWA in A.B.M. v. M.H., 651 P.2d 1170 (Alaska 1982)). .See, e.g., Baby Boy L, 643 P.2d at 175 (ICWA does not "dictate that an illegitimate infant who has never been a member of an Indian home or culture . should be removed from its primary cultural environment over the express objections of its non-Indian mother"); Baby Boy D, 742 P.2d 1059 (unwed father lacked standing to invoke ICWA since he never had custody and had not acknowledged or established paternity and where child never resided in an Indian family and had a non-Indian mother); S.A.M., 703 S.W.2d at 607-09 (Mo.App.1986) (ICWA did not apply since unwed Indian father and non-Indian mother never lived as a family); Claymore, 405 N.W.2d at 654 (ICWA inapplicable since Indian child resided with non-Indian mother and was never part of "Indian family"). . See, e.g., In re Junious M., 144 Cal.App.3d 786, 193 Cal.Rptr. 40, 46 (1983) ("We note that the trial court predicated its decision not to apply the Act in part, on its determination that the minor had developed no identification as an Indian. The language of the Act contains no such exception to its applicability, and we do not deem it appropriate to create one judicially."); In Re Custody of S.B.R., 43 Wash.App. 622, 719 P.2d 154, 156 (1986) ("The Browns assert that the Act does not apply where the child has never been part of an Indian family relationship. Again, the language of the Act contains no such exception, and the Browns have presented no compelling reasons to create one."). . See, e.g., Mississippi Band of Choctaw Indians v. Holyfield, - U.S. -, -, 109 S.Ct. 1597, 1606, 104 L.Ed.2d 29 (1989); In re Adoption of Halloway, 732 P.2d 962, 969 (Utah 1986); 25 U.S.C. § 1901(5) ("Congress finds the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families") (emphasis supplied); H.R.Rep. No. 95-1389, 95th Cong., 2d Sess. 21, reprinted in 1978 U.S. Code Cong. & Admin.News 7530, 7543, 7544. . Section 1913(d) provides: After the entry of a final decree of adoption of an Indian child in any State court, the parent may withdraw consent thereto upon the grounds that consent was obtained through fraud or duress and may petition the court to vacate such decree. Upon a finding that such consent was obtained through fraud or duress, the court shall vacate such decree and return the child to the parent. No adoption which has been effective for at least two years may be invalidated under the provisions of this subsection unless otherwise permitted by state law. 25 U.S.C. § 1913(d) (Supp.1987). . AS 25.23.140(b) provides in part: Subject to the disposition of an appeal, upon the expiration of one year after an adoption decree is issued, the decree may not be questioned by any person including the petitioner, in any manner upon any ground, including fraud, misrepresentation, failure to give any required notice, or lack of jurisdiction of the parties or of the subject matter.... . See also Reed v. United Trans. Union, 488 U.S. -, 109 S.Ct. 621, 626, 102 L.Ed.2d 665, 674 (1989); South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498, 505, 106 S.Ct. 2039, 2043, 90 L.Ed.2d 490, 498 (1986); Board of Regents v. Tomanio, 446 U.S. 478, 483-84, 100 S.Ct. 1790, 1794-95, 64 L.Ed.2d 440, 447 (1980); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295, 302 (1975). . A.B.M. V. M.H., 651 P.2d 1170 (Alaska 1982), does not support UJ's position that § 1914 actions can be brought at any time. The State's motion to vacate the decree of adoption in that case was made within the one year period provided for in AS 25.23.140. 651 P.2d at 1171-72. . In footnote 12, — U.S. -, 109 S.Ct. at 1616, the dissenters noted a decision by the Utah Supreme Court, In re Adoption of Hallo-way, 111 P.2d 962 (Utah 1986), in which some two years after the petition for adoption was filed, the Indian tribe intervened in the proceeding and after appeal to the Utah Supreme Court succeeded in having the case transferred to the Tribal court. Even assuming that Halloway did not involve a question of exclusive tribal jurisdiction under ICWA, the case does not provide support for LJJ's position that § 1914 actions may be brought at any time since a final decree of adoption was never issued in the case. The Navajo tribe therefore did not have to bring a § 1914 action to set aside the decree. Rather, the Tribe sought to intervene in the proceedings two years after the trial court ordered the adoptive parents to contact the Tribe and obtain its consent before proceeding. Id. at 963. The Tribe intervened after negotiating informally for the child's return. Id. at 963 n. 1. The trial court denied the Tribe's motion to transfer the case to the Tribal court pursuant to § 1911(b). Id. at 963-64. The Utah Supreme Court reversed, holding that the Navajo Nation had exclusive jurisdiction over the child. Id. at 972. . Mississippi law requires that an action to set aside a final decree of adoption be brought within six months. Miss.Code Ann. § 93-17-15 (1987). . The exclusive tribal jurisdiction provisions in § 1911(a) are not at issue in this case. It is not alleged that T.N.F. has ever resided or is domiciled within the Chickasaw Reservation. . See Annotation, Validity and Construction of Statutes Imposing Time Limitations Upon Actions to Vacate or Set Aside an Adoption Decree or Judgment, 83 A.L.R.2d 945, 949-50 (1962) ("In the absence of fraud, the courts have declined to accept lack of the requisite consent to the adoption by one of the parties necessary, or other procedural irregularities, as grounds for excluding the application of time limitation provisions for attacks on the adoptions"). . At oral argument, counsel for UJ specifically conceded that fraud or duress in obtaining the consent was not an issue in this case. . See In re Appeal in Pima County Juvenile Action No. B-7087, 118 Ariz. 437, 577 P.2d 723, 724 (1977) ("Adoption being a status, its creation and existence is governed by the law of the forum creating such status. 1 Conflict of Law, Restatement 2nd, § 78"), affirmed, 118 Ariz. 428, 577 P.2d 714 (1978); In re Adoption of J.L.H. & J.P.H., 737 P.2d 915, 918-20 (Okl.1987); Watkins v. Chirrick, 19 Or.App. 241, 526 P.2d 1399, 1401-02 (1974); In re Adoption of MM, 652 P.2d 974, 980 (Wyo.1982) (Wyoming law not New York law applied since adoptive child resided in Wyoming and action brought in Wyoming. Wyoming therefore had the "greatest interest in the child's welfare and should properly apply its own law"); Restatement (Second) of Conflict of Laws § 78 (1971).

10424160

Ronald JENNINGS, Appellant, v. STATE of Alaska, Appellee

Jennings v. State

1986-02-14

No. A-1189

1222

1224

713 P.2d 1222

713

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:08:26.184312+00:00

CAP

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

Ronald JENNINGS, Appellant, v. STATE of Alaska, Appellee.

Ronald JENNINGS, Appellant, v. STATE of Alaska, Appellee. No. A-1189. Court of Appeals of Alaska. Feb. 14, 1986. Craig J. Tillery, Asst. Public Defender, Palmer, and Dana Fabe, Public Defender, Anchorage, for appellant. Dwayne W. McConnell, Dist. Atty., Palmer, and Harold M. Brown, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

1147

7299

OPINION COATS, Judge. Ronald Jennings was convicted, based upon his plea of no contest, of the offense of promoting contraband in the first degree, AS 11.56.375(a)(3), a class C felony. Jennings' offense involved possession of marijuana while he was incarcerated at the Palmer Correctional Facility. Sentencing was held before Judge Beverly Cutler on August 15, 1985. Jennings and the state stipulated that Jennings had formerly been convicted of three prior felony charges. Therefore, Jennings was subject to a presumptive sentence of three years. See AS 12.55.125(e)(2). The state stipulated that Jennings' offense was subject to a mitigating factor, that factor, that "the conduct constituting the offense was among the least serious conduct included in the definition of the offense," based upon the small amount of marijuana. Based on the mitigating factor, Judge Cutler reduced the three-year presumptive sentence to eighteen months. See AS 12.55.155(a)(1). Judge Cutler imposed this sentence consecutively to the other sentences which Jennings was serving. When she imposed the sentence consecutively, Judge Cutler stated that she was required to make the sentence consecutive by law. Judge Cutler was apparently referring to AS 12.55.025(e) which provides: Except as provided in (g) of this section, if the defendant has been convicted of two or more crimes, sentences of imprisonment shall run consecutively. If the defendant is imprisoned upon a previous judgment of conviction for a crime, the judgment shall provide that the imprisonment commences at the expiration of the term imposed by the previous judgment. [Emphasis added.] Jennings argues that this statute did not limit Judge Cutler's discretion to impose his sentence consecutively. He points out that in State v. Andrews, 707 P.2d 900, 908 (Alaska App.1985), petition for hearing granted, (Alaska, December 6, 1985), we adopted an interpretation of AS 12.55.025(g) which permitted trial judges to impose concurrent sentences in most cases. Essentially we held that AS 12.55.025(g) was ambiguous concerning whether trial judges had authority to impose concurrent sentences. We resolved the ambiguity by applying the policy that "[ajmbiguities in criminal statutes must be narrowly read and construed strictly against the government." Id. at 907. Jennings argues that his offense would fall into one of the categories set forth in AS 12.55.025(g) and that therefore the trial court had the authority to impose his sentence concurrently. We disagree. The first part of AS 12.55.025(g) states "[i]f the defendant has been convicted of two or more crimes before the judgment on either has been entered, any sentences of imprisonment may run concurrently...." Since the court had already entered judgments on Jennings' former felony convictions, and Jennings had started serving the resulting sentences before the present offenses arose, AS 12.55.025(g) does not appear to apply to Jennings' promoting contraband. Furthermore, the second sentence of AS 12.55.025(e) is clear that where "the defendant is imprisoned upon a previous judgment of conviction for a crime, the judgment shall provide that the imprisonment commences at the expiration of the term imposed by the previous judgment." Our ruling in Belarde v. Anchorage, 634 P.2d 567, 568 (Alaska App.1981) appears to be appropriate here: [The defendant] invokes the ancient and oft-repeated rule of statutory construction that penal statutes are to be strictly construed. C. Sands, Sutherland Statutory Construction § 59.03, at 6-7 (4th ed.1974). This general rule, however, is not an absolute. Strict construction does not require that statutes be given the narrowest meaning allowed by the language; - rather, the language should be given "a reasonable or common sense construction, consonant with the objectives of the legislature." Id. at § 59.06, at 18-19. The intent of the legislature must govern and the policies and purposes of the statute should not be defeated. We conclude that the legislature was sufficiently clear in its intent to require trial judges to impose consecutive sentences on those people who were convicted for crimes which were committed after they had been imprisoned on a former offense. We therefore conclude that Judge Cutler did not err in imposing Jennmgs sentence consecutively to his other sentences. Jennings also argues that the sentence which Judge Cutler imposed was excessive. At the time of sentencing Jennings was twenty-seven years old and was serving three years for criminal mischief in the third degree, two years with one suspended for burglary, and four years with all four suspended on another burglary charge. His projected release date, before his present conviction, was July 10, 1986. In sentencing Jennings, Judge Cutler considered the fact that his offense involved only a small amount of marijuana. However, she also noted Jennings' record of prior offenses and his poor institutional record which consisted of numerous incidents of violations of institutional rules. We believe that the factors which Judge Cutler considered support the sentence which she imposed on Jennings. We do not find that the sentence is clearly mistaken. AFFIRMED. . Sec. 11.56.375. Promoting Contraband in the First Degree. (a) A person commits the crime of promoting contraband in the first degree if the person violates AS 11.56.380 and the contraband is (3) a controlled substance. (b) Promoting contraband in the first degree is a class C felony. . Alaska Statute 12.55.025(g) provides: If the defendant has been convicted of two or more crimes before the judgment on either has been entered, any sentences of imprisonment may run concurrently if (1) the crimes violate similar societal interests; (2) the crimes are part of a single, continuous criminal episode; (3) there was not a substantial change in the objective of the criminal episode, including a change in the parties to the crime, the property or type of property right offended, or the persons offended; (4) the crimes were not committed while the defendant attempted to escape or avoid detection or apprehension after the commission of another crime; (5) the sentence is not for a violation of AS 11.41.100-11.41.470; or (6) the sentence is not for a violation of AS 11.41.500-11.41.530 that results in physical injury or serious physical injury as those terms are defined in AS 11.81.900. . In Wells v. State, 706 P.2d 711, 715 (Alaska App.1985), we held that'AS 12.55.025(e) did not require the court to impose a consecutive sentence where the judgment of conviction on a former offense had not been entered before the current offense had been committed. See also Joseph v. State, 712 P.2d 904 (Alaska App.1986) (since court was under no legal requirement to revoke probation, court was not required to revoke probation and impose sentence on the probation revocation consecutively to another sentence.)

10423723

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

Hikita v. Nichiro Gyogyo Kaisha, Ltd.

1986-01-17

No. S-494

1197

1203

713 P.2d 1197

713

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:08:26.184312+00:00

CAP

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

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

Takehiro HIKITA and Alaska Foods, Inc., Appellants, v. NICHIRO GYOGYO KAISHA, LTD., Nichiro Pacific, Ltd., Appellees. No. S-494. Supreme Court of Alaska. Jan. 17, 1986. Rehearing Denied Feb. 25, 1986. James D. Rhodes, Hartig, Rhodes, Norman, Mahoney & Edwards, Anchorage, for appellants. John S. Hedland, James T. Brennan, Hed-land, Fleischer & Friedman, Anchorage, for appellees.

3243

20100

OPINION Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ. RABINOWITZ, Chief Justice. This appeal stems from the same events and presents the same issues that this court concerned itself with in Norman v. Nichiro Gyogyo Kaisha, Ltd,., 645 P.2d 191 (Alaska 1982). The primary question is whether appellant Alaska Foods, Inc. (Alaska Foods) can maintain an individual shareholder action, as distinguished from a corporate or derivative action, against the ap-pellee Nichiro Gyogyo Kaisha, Ltd. (NGK). The superior court granted NGK's motion for summary judgment, concluding that our decision in Norman precluded the bringing of an individual suit: We overrule part of Norman and hold that Alaska Foods' action should not have been dismissed. I. FACTS. In 1972 Isaac Norman entered into a five-year, $1000 per year lease with the U.S. Navy for some property on Finger Bay at Adak, Alaska. Norman intended to establish a land-based fish processing facility. To carry out his intentions, he formed Adak Aleutian Processors, Inc. (AAP), an Alaskan corporation, and transferred to it the Finger Bay lease. Norman sold 30% of the AAP stock to Alaska Foods, 30% to NGK, and 10% to Market Place. Alaska Foods, a Washington corporation, was controlled by Alaska Shokai, a Japanese corporation. Appellant Takehiro Hikita and his family owned more than 90% of Alaska Shokai. NGK is a Japanese corporation and Market Place is a Hawaiian corporation. The three corporations, all of whom were engaged in various aspects of the fishing industry, agreed to pay Norman $200,000 jointly and severally for the stock purchased. At the time of the stock purchase the parties also entered into a "shareholders agreement" which set out the general plan of operation and administration of AAP. The shareholders collectively agreed to "exert their best efforts to achieve the corporate and business purposes of AAP." In addition, each of the shareholders, with the exception of Norman, incurred various specific obligations pursuant to the agreement. NGK agreed to furnish to AAP sufficient funds for the construction and installation of new improvements, equipment and facilities for the Adak operations, upon terms and conditions to be agreed upon between NGK and AAP; to provide to AAP up to $2 million in working capital; and to provide technical assistance for the construction and operation of the processing facilities. Alaska Foods also agreed to furnish funds sufficient for the construction of the necessary facilities, upon terms to be agreed upon between Alaska Foods and AAP. It further agreed to provide the necessary personnel to undertake the general affairs and business operations of AAP. In accordance with the first obligation, Alaska Foods advanced approximately $1.6 million to AAP. Under NGK's supervision, the plant was completed in 1973 at a cost of $3.2 million, which was $2.5 million above the original estimate. Operations began during the 1973-74 fishing season. The plant was not productive for long, however, as several days into the 1974-75 season NGK suddenly and without notice withdrew from the venture. The facility never reopened. Alaska Foods asserted that NGK mismanaged and abandoned AAP and thus violated its agreement to "exert its best efforts" to turn the corporation into a successful venture. Alaska Foods sought to recover approximately $10 million, which it claimed resulted from NGK's breach of the shareholders agreement. The superior court granted NGK's motion for summary judgment, concluding that Alaska Foods "does not have the right to pursue any of the alleged contract actions on its own. It may do so only in a derivative action brought on behalf of Adak Aleutian Processors." The court further found that Alaska Food's claims for breach of the agreement were barred because of prior litigation between AAP and NPL, NGK's affiliate. II. AN INDIVIDUAL ACTION IS PROPER IN THIS SITUATION. In general, a shareholder has no individual cause of action for injuries to his corporation. The rule is designed to prevent a multiplicity of suits against the wrongdoer. As has been said, "[a]ny other rule would admit of as many suits against the wrongdoer as there were stockholders in the corporation." Wells v. Dane, 101 Me. 67, 63 A. 324, 325 (1905). In addition, the rule insures that damages recovered are available for payment to the corporation's creditors, and protects the prerogative of the board of directors to determine how the recovered damages should be utilized. There are two major, often overlapping, exceptions to the general rule: (1) where the shareholder suffered an injury separate and distinct from that suffered by other shareholders, and (2) where there is a special duty, such as a contractual duty, between the alleged wrongdoer and the shareholder. Norman v. Nichiro Gyogyo Kaisha, Ltd., 645 P.2d 191 (Alaska 1982); Arctic Contractors, Inc. v. State, 573 P.2d 1385, 1386 (Alaska 1978); Weiss v. Northwest Acceptance Corp., 274 Or. 343, 546 P.2d 1065, 1069 (1976); W. Fletcher, Cyclopedia of the Law of Private Corporations § 5911, at 421 (1984). In the Norman case, Norman sought to recover, among other things, the lost value of the stock he retained. This court first concluded that the "separate and distinct injury" exception did not apply because the lost stock value or "opportunity" was an injury suffered in common by all 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. 645 P.2d at 195. We went on to hold that no special duty arose out of the contractual relationship under the shareholders agreement, and thus the second exception to the general rule was also not applicable. In support of this conclusion, the court relied on the fact that NGK's duties under the shareholders agreement were owed primarily to AAP. We are now of the view that in Norman the general rule was misapplied, and thus conclude that it is necessary to overrule a portion of that decision. We now hold that a shareholder can sue for breach of contract to which he is a party, even if he has not suffered an injury separate and distinct from that suffered by other shareholders. This is the test recognized by the majority of jurisdictions. As Fletcher notes: Generally, a stockholder cannot sue in his own name, and in his own behalf, to recover for any loss resulting from depreciation of the value of his stock, as the result of an injury to the corporation itself. This rule does not apply where the wrongful acts are not only wrongs against the corporation but are also violations by the wrongdoer of a duty arising from contract or otherwise, and owing directly by him to the stockholders. W. Fletcher, Cyclopedia of the Law of Private Corporations § 5913, at 434 (1984). "Unquestionably a stockholder may bring suit in his own name to recover damages from an officer of a corporation, for acts which are violations of a duty arising from contract or otherwise and owing directly from the officer to the injured stockholder, though such acts are also violations of duty owing to the corporation." Waller v. Waller, 187 Md. 185, 49 A.2d 449, 453 (1946). A shareholders agreement for the benefit of a corporation does create a duty running to both the corporation and the promisee. Section 305(1) of the Restatement (Second) of Contracts (1981) makes this clear: A promise in a contract creates a duty in the promisor to the promisee to perform the promise even though he also has a similar duty to an intended beneficiary. Thus, we disapprove of the holding in Norman that an individual shareholder cannot sue for breach of a shareholders agreement that is intended to benefit the corporation. In this case there exists adequate consideration to support an action for breach of contract. Here we have mutual promises, each being sufficient consideration for the other, in the shareholders agreement itself. Alaska Poods agreed to loan up to $2 million to AAP in part because NGK agreed to support AAP in various ways, and NGK agreed to support AAP in part because Alaska Foods agreed to make the loan. We thus conclude that Alaska Foods, as a promisee, is a proper party to maintain an action against NGK for breach of the shareholders agreement. In the event such a breach is established, Alaska Foods may recover all proximate damages that can be proved with reasonable certainty. III. RESTATEMENT OF JUDGMENTS SECTION 56 DOES NOT BAR ALASKA FOODS' ACTION FOR BREACH OF THE SHAREHOLDERS AGREEMENT. NGK's motion for summary judgment also claimed that, even if Alaska Foods does have an individual right to sue for breach of the shareholders agreement, the suit was barred because of prior unsuccessful litigation between AAP and NGK's affiliate, NPL. More specifically, NGK's motion alleged that collateral estoppel, res judicata, and Restatement (Second) of Judgments § 56 (1980) all had the effect of precluding this lawsuit. The superior court did not rule on the first two theories but concluded that the Restatement (Second) of Judgments § 56 was applicable. Thus the question to be answered is did the trial courts in any of the prior suits by AAP specifically determine that NGK had fully performed its obligations under the contract? The prior relevant lawsuits were summarized by this court in the Norman opinion: In 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. In 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. In 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 cross claim was dismissed for failure of AAP to answer interrogatories. 645 P.2d at 193 n. 4. In none of these suits did any of the trial courts make a specific determination as to whether or not NGK breached its obligation to AAP of performance under the shareholders agreement. Given this fact, we conclude that the superior court erred in ruling that section 56 is applicable to the instant case. More specifically we hold that a promisee is "conclusively precluded" from claiming the promisor failed to perform an obligation only when the court, in the prior litigation, has made a specific determination as to that issue. Section 56 provides in relevant part: When a contract between two persons creates an obligation in favor of another person as an intended beneficiary: (2) A judgment against the third party beneficiary in an action on the obligation to him terminates the promisor's obligation to the promisee, (emphasis furnished) The text of section 56 as well as the comment to the section makes it clear that the section only applies when the prior case establishes, as a matter of contract law, that the promisor satisfied its duty to the beneficiary: [A] judgment against the beneficiary in his action against the promisor in effect precludes the promisee. This result follows, not because the promisee is bound by the judgment, but because the prom-isee's action is based upon the promisor's wrongful failure to perform an obligation to the beneficiary. Since the judgment against the beneficiary has conclusively excluded that contingency, there is a failure of occurrence of an event necessary to the validity of prom-isee's cause of action, (emphasis furnished) Wright and Miller state that judgment against the beneficiary "defeats an action by the promisee, not as a matter of preclusion by judgment but on the ground that as a matter of contract law the promisor has no further obligation to perform." Federal Practice and Procedure § 4460, at 530 (citing § 56). We do not now decide whether principles of collateral estoppel or res judicata preclude this action. As stated, the superior court did not base its decision on these theories, and as a consequence these possible bases for judgment were not adequately briefed by the parties. Further, the record before us is insufficient to permit resolution of these issues. IV. THE TORT CLAIMS OF ALASKA FOODS AND HIKITA WERE PROPERLY DISMISSED. In addition to the claims for breach of the shareholders agreement, Alaska Foods and Hikita asserted a number of tort claims against NGK. NGK moved for summary judgment as to these claims on the ground that this suit was filed after the two-year limitation period had expired. AS 09.10.070. The superior court granted the motion as to Alaska Foods' tort claims but denied the motion as to certain of Hikita's claims because there was a genuine issue of material fact concerning whether Hikita was mentally competent and thus whether the statute had been tolled. In making its determination that a genuine issue of material fact remained, the superior court gave "great weight" to an affidavit of Hikita's counsel, Mr. Rhodes, which concluded that "the financial ruin visited upon Mr. Hikita by virtue of the Defendants' acts triggered a severe emotional reaction in Mr. Hikita . [and] rendered him incompetent to attend to his legal affairs until early in 1977." After the summary judgment motion on this issue was denied, NGK requested from Hiki-ta the production of "[a]ll correspondence, memoranda of conversations, . or other documentation of any kind or nature constituting, evidencing or referring to communications between James D. Rhodes . and Takehiro Hikita during the time period commencing March 20, 1975 through January 31, 1977." Hikita refused to comply with the request and the court eventually entered final judgment dismissing the tort claims. Hikita contends the discovery request violated the attorney-client privilege. We disagree. Hikita cannot be permitted to put his discussions with counsel in issue, and then deny to the opposing party the evidence which is most probative on the question. See Lewis v. State, 565 P.2d 846, 850 n. 4 (Alaska 1977). NGK should have had the opportunity to discover those communications which may exist that would indicate that Hikita was sufficiently competent to run his own legal affairs during the period in question. Thus, we conclude that the superior court did not err in dismissing Hikita's tort claims for failure to make discovery. AFFIRMED in part, REVERSED in part, and REMANDED for proceedings in accordance with this opinion. . Appellee Nichiro Pacific, Ltd. is affiliated with NGK and thus for purposes of this appeal the two are treated as a single entity. . This is an appeal from a grant of summary judgment, and thus the facts are viewed in the light most favorable to appellants. Wickwire v. McFadden, 576 P.2d 986 (Alaska 1978). For a more complete presentation of the facts, see this court's decision in Norman. .Norman retained 20% of the stock. The remaining 10% was previously transferred as a "finders fee" to Otani, vice-president, treasurer and manager of Market Place. Otani had arranged the initial meeting between Norman and Hikita. .Alaska Foods asserted both contract and tort claims. Alaska Foods' contract claims were dismissed for two reasons: First, the superior court held that Norman v. Nichiro Gyogyo Kaisha, Ltd., 645 P.2d 191 (Alaska 1982) barred the contract action. Second, the superior court held that prior litigation between related parties barred the contract action under Restatement (Second) of Judgments § 56 (1980). Alaska Foods also asserted tort claims which were dismissed because of the bar of the two year statute of limitations. ' Hikita, individually, asserted both contract and tort claims. Hikita's contract claims were dismissed because he was neither a party to, nor an intended beneficiary of, the shareholders agreement. Relying upon the Norman decision, the superior court dismissed some of Hikita's tort claims. As to others, involving personal injuries, the superior court held that they were not barred by either Norman or the Restatement (Second) of Judgments § 56. . Martin v. Maldonado, 572 P.2d 763, 773 n. 34 (Alaska 1977). . Commonwealth of Mass. v. Davis, 140 Tex. 398, 168 S.W.2d 216, 221 (1942), cert, denied, 320 U.S. 210, 63 S.Ct. 1447, 87 L.Ed. 1848 (1943), reh. denied, 320 U.S. 811, 64 S.Ct. 31, 88 L.Ed. 490 (1943). . In concluding that any benefit derived by Norman under the shareholders agreement would be merely incidental, the court emphasized certain language in that portion of the agreement outlining NGK's obligations: In furtherance of the corporate and business purposes of AAP, shareholders respectively agree as follows: (a) [NGK] agrees to: 1. Furnish to AAP sufficient and necessary funds for the construction and installation of new improvements . 2. Furnish to AAP working capital funds required by the Adak operations . 3. Furnish technical assistance to AAP for the Adak operations . 645 P.2d at 196. (emphasis added by Norman court) Dissenting in Norman, Justices Matthews and Rabinowitz argued that the court had erred in concluding that the special duty exception did not apply, given that there was a contractual relationship between the shareholder and the wrongdoer independent of that which the shareholder derived through his interest in the corporate assets and business. Id. at 199. . In section 5916 of his treatise, Fletcher states: A stockholder may sue as an individual on contracts he has made as an individual with corporate officers, other stockholders, or third persons . In such cases the status of stockholder is of no importance, since he sues in his individual capacity. See also § 5911, 5921. . See also Buschmann v. Professional Men's Ass'n, 405 F.2d 659, 662 (7th Cir.1969); Bookout v. Schine Chain Theatres, Inc., 253 F.2d 292, 295 (2nd Cir.1958); Timely Drive-In Cleaning Corp. v. Jacobs, 21 Misc.2d 1052, 190 N.Y.S.2d 194 (Sup.Ct.1959); Sutter v. General Petroleum Corp., 28 Cal.2d 525, 170 P.2d 898, 900-01 (1946) (en banc). . The court in Norman reached the conclusion it did in part because it thought that Norman had provided inadequate consideration to support an action for breach of contract. Norman did not take on any responsibilities or obligations under the. shareholders agreement. The dissent found that sufficient consideration did exist, concluding that the shareholders agreement should be looked at in conjunction with the stock purchase agreement. . The superior court's dismissal of several of Hikita's tort claims concerning loss of stock value was proper under Norman. Since Hikita was not a party to the shareholders agreement, he has no contractual rights as a promisee to enforce. . On remand NGK has the option of rearguing res judicata and collateral estoppel. . The general test, in regard to whether a mental condition is of the type that will toll the statute of limitations, is whether a person could know or understand his legal rights sufficiently well to manage his personal affairs. It is not required that there be a formal finding of incompetency by a court. Adkins v. Nabors Alaska Drilling, Inc., 609 P.2d 15, 23 (Alaska 1980).

10408560

James ROBISON, Commissioner of Labor; Robert Bacolas, Director, Division of Labor Standards and Safety; Donald Wilson, Deputy Director of the Division of Labor Standards and Safety; James R. Carr, Supervisor of the Wage and Hour Administration; the Department of Labor of the State of Alaska, and the State of Alaska, and the International Association of Bridge, Structural and Ornamental Ironworkers, Local 751, Appellants, v. James N. FRANCIS, Appellee; INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRONWORKERS, LOCAL 751, Appellant, v. James N. FRANCIS, Appellee; James N. FRANCIS, Appellant, v. James ROBISON, Commissioner of Labor; Robert Bacolas, Director, Division of Labor Standards and Safety; Donald Wilson, Deputy Director of the Division of Labor Standards and Safety; James R. Carr, Supervisor of the Wage and Hour Administration; the Department of Labor of the State of Alaska, and the State of Alaska, and the International Association of Bridge, Structural and Ornamental Ironworkers, Local 751, Appellees

Robison v. Francis

1986-01-17

Nos. S-493, S-510 and S-552

259

272

713 P.2d 259

713

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:08:26.184312+00:00

CAP

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

James ROBISON, Commissioner of Labor; Robert Bacolas, Director, Division of Labor Standards and Safety; Donald Wilson, Deputy Director of the Division of Labor Standards and Safety; James R. Carr, Supervisor of the Wage and Hour Administration; the Department of Labor of the State of Alaska, and the State of Alaska, and the International Association of Bridge, Structural and Ornamental Ironworkers, Local 751, Appellants, v. James N. FRANCIS, Appellee. INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRONWORKERS, LOCAL 751, Appellant, v. James N. FRANCIS, Appellee. James N. FRANCIS, Appellant, v. James ROBISON, Commissioner of Labor; Robert Bacolas, Director, Division of Labor Standards and Safety; Donald Wilson, Deputy Director of the Division of Labor Standards and Safety; James R. Carr, Supervisor of the Wage and Hour Administration; the Department of Labor of the State of Alaska, and the State of Alaska, and the International Association of Bridge, Structural and Ornamental Ironworkers, Local 751, Appellees.

James ROBISON, Commissioner of Labor; Robert Bacolas, Director, Division of Labor Standards and Safety; Donald Wilson, Deputy Director of the Division of Labor Standards and Safety; James R. Carr, Supervisor of the Wage and Hour Administration; the Department of Labor of the State of Alaska, and the State of Alaska, and the International Association of Bridge, Structural and Ornamental Ironworkers, Local 751, Appellants, v. James N. FRANCIS, Appellee. INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRONWORKERS, LOCAL 751, Appellant, v. James N. FRANCIS, Appellee. James N. FRANCIS, Appellant, v. James ROBISON, Commissioner of Labor; Robert Bacolas, Director, Division of Labor Standards and Safety; Donald Wilson, Deputy Director of the Division of Labor Standards and Safety; James R. Carr, Supervisor of the Wage and Hour Administration; the Department of Labor of the State of Alaska, and the State of Alaska, and the International Association of Bridge, Structural and Ornamental Ironworkers, Local 751, Appellees. Nos. S-493, S-510 and S-552. Supreme Court of Alaska. Jan. 17, 1986. Jan Hart DeYoung, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for State Dept, of Labor, James Robison, Robert Bacolas, Donald Wilson, and James C. Carr. Allison E. Mendel, Jermain, Dunnagan & Owens, Anchorage, for International Ass’n of Bridge, Structural and Ornamental Iron-workers, Local 751. Ron Zobel, Anchorage, for James N. Francis. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

7354

46167

OPINION MATTHEWS, Justice. We hold in this case that Alaska's local hire law, AS 36.10.010, which requires that work on public construction projects be performed almost entirely by Alaska residents, violates the privileges and immunities clause of article IV, § 2 of the United States Constitution. I. FACTUAL AND PROCEDURAL SETTING James Francis, a Montana resident, was employed in 1983 as an ironworker by Re-gan Steel & Supply, a sub-contractor on a North Pole High School project. When the Department of Labor discovered that Re-gan Steel had a work force of more than five percent non-residents on the project, it sent an enforcement notice to the company. As a result, the company discharged Francis. Francis sued the state and various state officials, seeking a declaration that the local hire law is unconstitutional under the privileges and immunities and the equal protection clauses of the United States Constitution and under the equal rights clause of the Alaska Constitution. In addition, injunctive relief and damages under 42 U.S.C. § 1983 were sought. Following a non-jury trial, the superior court entered a partial final judgment declaring that the statute violated the privileges and immunities clause. In support of its decision, the court filed detailed findings of fact, including the following: Between April, 1980, and July, 1982, the population of Alaska has grown by nearly fifteen percent (15%). The population of Alaska has increased in the recent past more rapidly than at any other time in its history, and the State is growing more rapidly than other states in the union. Property values in Alaska have been increasing over the last five years. Alaska is not a depressed area as that term is used in the economics profession. All sectors of the Alaska economy are expanding and Alaska has experienced very rapid economic growth since 1980. Employment in Alaska in 1983 was at record levels, and the rate of increase was the best since the days of the Alaska Pipeline in 1974-1975. In 1983, the construction industry was the strongest sector in the state's economy, and it has had the greatest impact on the Alaska economy since the Alaska Pipeline years. The construction industry in Alaska was exceptionally strong in both the public and private sectors during 1983. The major factor affecting the level of employment in Alaska in the construction industry is climatic changes as a result of extreme temperature differentials in the winter and summer months. Construction declines to substantially lower levels during the winter months, and increases, peaking out in August and September, during the latter summer months. During the peak periods of construction activity, the state experiences its lowest rate of unemployment. The expenditure of state funds are a major factor affecting the level of employment in Alaska generally, and the construction industry in particular. The state expenditure for public works projects accounts for approximately sixty to seventy percent (60% to 70%) or more of the total annual construction dollar outlay within the state. Private investment has a lesser effect on the level of construction activity from year to year in the State of Alaska, and such effect, from time to time, is affected by interest rates. Unemployment is substantially greater in the rural areas than in the urban areas. The unemployment rate in Anchorage is less than the national average, while in the rural areas, it is greater than the national average and greater than the average within the State of Alaska. The construction activity is greater within the urban area than within the rural areas. Unemployment is less within the urban areas than within the rural areas. Rural Alaskans lack the training that urban Alaskans have access to in construction work. In-migration in the State of Alaska is a factor affecting unemployment in the construction industry in Alaska. Reasonable inferences from the evidence support a finding that most of the job seekers coming to Alaska intend to become residents upon their entry into the state, thus contributing to the rapid population growth within the state. There is not sufficient evidence to support a finding that nonresident construction workers are a peculiar source of unemployment in the construction industry in Alaska any more than they would be in any other state. The only inference that can be drawn from the record is that nonresident construction workers come to Alaska to work during peak construction periods of time, during which there are more jobs available and less unemployment resulting. Among the court's conclusions of law were: The right to obtain employment in any state is a fundamental right and is a privilege which shall be immune from any burden unless the State of Alaska can show a legitimate purpose for such burden. In this case, the State has failed to establish by a preponderance of the evidence such a legitimate purpose. The defendants and intervenor have failed to prove by a preponderance of the evidence that nonresident construction workers constitute a peculiar source of unemployment in the State of Alaska. Serious factors affecting unemployment within the State of Alaska are the extreme climatic conditions, the change in the legislative appropriation for public works construction projects, the extreme rapid growth of population experienced by Alaska, and the wildly fluctuating interest rates which have a direct effect on the private sector construction spending. Statistics over the last several years demonstrate that Alaska's unemployment rate has increased at a rate lesser than the nationwide average. Whereas Alaska's unemployment rate for several years was substantially greater than the nationwide rate, it now stands much closer to the national average, further supporting the conclusion that nonresident employment is not a serious factor in the unemployment rate in Alaska. The State and the intervenor have failed to prove by a preponderance of the evidence that there is a substantial reason to discriminate against employment of citizens of other states on public works construction projects within the State of Alaska. The State and intervenor have failed to prove by a preponderance of the evidence that the preference granted Alaska residents is closely tailored to alleviate unemployment in the construction industry in the State of Alaska. II. PURPOSE OF THE PRIVILEGES AND IMMUNITIES CLAUSE The privileges and immunities clause of section 2, article IV of the United States Constitution provides: The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. The primary purpose of this clause is to prevent states from enacting measures which discriminate against non-residents for reasons of economic protectionism. Supreme Court of New Hampshire v. Piper, — U.S. —, —n. 18,105 S.Ct. 1272, 1279 n. 18, 84 L.Ed.2d 205 (1985). Historically, it was meant to: [h]elp fuse into one Nation a collection of independent, sovereign States. It was designed to insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy. For protection of such equality the citizen of State A was not to be restricted to the uncertain remedies afforded by diplomatic processes and official retaliation. "Indeed, without some provision of the kind removing from the citizens of each State the disabilities of alienage in the other States, and giving them equality of privilege with citizens of those States, the Republic would have constituted little more than a league of States; it would not have constituted the Union which now exists." In line with this underlying purpose, it was long ago decided that one of the privileges which the clause guarantees to citizens of State A is that of doing business in State B on terms of substantial equality with the citizens of that State. Toomer v. Witsell, 334 U.S. 385, 395-96, 68 S.Ct. 1156, 1161-62, 92 L.Ed. 1460, 1471 (1948) (footnote omitted, citations omitted). In brief, the clause was meant "to prevent discrimination against non-residents, to further the concept of federalism, and to create a national economic unit." Sheley v. Alaska Bar Association, 620 P.2d 640, 642 (Alaska 1980) (citations omitted). III. FRAMEWORK FOR ANALYSIS OF PRIVILEGES AND IMMUNITIES CLAIMS A. Nature of the Right. The privileges and immunities clause does not protect non-residents against all forms of discrimination. Its reach is limited to "fundamental rights"— rights involving "basic and essential activities, interference with which would frustrate the purposes of the formation of the union." Baldwin v. Montana Fish and Game Commission, 436 U.S. 371, 387, 98 S.Ct. 1852, 1862, 56 L.Ed.2d 354, 367-68 (1978). B. Substantial Justification. If the threshold fundamental rights requirement is met, discrimination is only permitted where there is a substantial reason which justifies it. Toomer, 334 U.S. at 396, 68 S.Ct. at 1162, 92 L.Ed. at 1471. "No 'substantial reason' will be found absent some showing that nonresidents are 'a peculiar source of the evil' which the state's action is meant to remedy." Noll v. Alaska Bar Association, 649 P.2d 241, 243 (Alaska 1982) quoting Hicklin v. Orbeck, 437 U.S. 518, 526-27, 98 S.Ct. 2482, 2487-88, 57 L.Ed.2d 397, 405 (1978). C. Close Relationship Between Perceived Problem and Statutory Solution. Moreover, the presence of a substantial reason for discrimination does not alone suffice. The means employed by the challenged statute must be closely related to the interests served by the statute. Toomer, 334 U.S. at 396, 68 S.Ct. at 1162, 92 L.Ed. at 1471; Hicklin, 437 U.S. at 527, 98 S.Ct. at 2488, 57 L.Ed.2d at 405. "In deciding whether the discrimination bears a close or substantial relationship to the state's objective . the availability of less restrictive means" is relevant. New Hampshire v. Piper, — U.S. at —, 105 S.Ct. at 1282. D. Market Regulator — Market Participant Distinction. This method of analysis applies both when the state is acting as a sovereign — a market regulator — and as an owner — a market participant. United Building & Construction Trades v. Mayor and Council of the City of Camden, 465 U.S. 208, 220-23, 104 S.Ct. 1020, 1028-30, 79 L.Ed.2d 249, 259-61 (1984); Hicklin, 437 U.S. at 528-29, 98 S.Ct. at 2488-89, 57 L.Ed.2d at 406. However, more leeway is granted the state in its perception of "local evils and in prescribing appropriate cures" when it is acting in a proprietary capacity, as where it "is merely setting conditions on the expenditures of funds it controls." Camden, 465 U.S. at 223, 104 S.Ct. at 1030, 79 L.Ed.2d at 261 (citations omitted). This analytical framework, except for the deference given to the state as a market participant, is quite similar to what has come to be called the level of intermediate scrutiny under the federal equal protection clause. Classifications may be made only for "important" purposes, and the means used to accomplish them must be "fairly and substantially related" to the achievement of those purposes. State v. Ostrosky, 667 P.2d 1184,1192 (Alaska 1983) (citations omitted). The amount of deference due a state when acting as a market participant is not clear from federal cases. The state suggests, and we believe, that a variable standard must be employed. Thus, where the discrimination is far-reaching and exclusive in nature, and extends to the fringes of the state's proprietary interests, the state is entitled to little deference. On the other hand, where the discrimination is narrow in scope and involves a direct relationship between the state and affected individuals, greater deference is called for. The "Alaska Hire" statute struck down in Hicklin, which covered all employment which was the "result" of state oil and gas leases, which excluded all non-residents from employment so long as qualified Alaskans were available, and which required private employers to discriminate, including those who had no direct dealings with the state, is an example of a case in which the proprietary interest of the state was entitled to little or no deference. An example where more leeway is due might be a case in which a state law requires residency as a qualification for important non-elective public offices. Cf Sugarman v. Dougall, 413 U.S. 634, 647-49, 93 S.Ct. 2842, 2850-51, 37 L.Ed.2d 853, 862-64 (1973). IV. ANALYSIS A. The Nature of the Right. For purposes of privileges and immunities analysis employment in the construction industry must be considered to be a fundamental right entitled to the protection of the privileges and immunities clause. That conclusion was implied in Hicklin, 437 U.S. at 524-25, 98 S.Ct. at 2486-87, 57 L.Ed.2d at 404 (1978) and was made explicit in Camden, 465 U.S. at 222-23, 104 S.Ct. at 1028-30, 79 L.Ed.2d at 260-61. B. The State's Justification. The justification proffered for the discrimination inherent in the local hire law is Alaska's historically high unemployment rate. For each year between 1970 and 1983, except 1975, unemployment in Alaska was higher than the national average. Unemployment in the construction industry is a substantial factor in the overall rate of unemployment. Non-resident construction workers contribute to unemployment in the construction industry because, according to the state, they "take jobs which otherwise would to to Alaskan residents. As such non-resident construction workers are a peculiar source of the unemployment problem in Alaska because they take those construction jobs which otherwise could be filled by unemployed Alaskans." In essence, the state's justification for the local hire law is that it tends to reduce unemployment in Alaska by eliminating non-residents from public works construction projects. C.Degree of Deference Due The State As A Market Participant. The scope of the discrimination mandated by the local hire law is extensive. All municipal projects and all projects funded by the state, in whole or in part, are covered. This amounts to some 60 to 70% of all commercial construction in the state. As to those projects covered by the law, nonresidents are almost entirely excluded. For example, on Francis's construction crew of 26 workers, 25 of them had to be residents. For crews of fewer than 10 workers all non-residents are excluded. The statute applies to subcontractors who have no direct contractual relationship with the state, and it seeks to pressure private employers to discriminate in their hiring practices. However, it is limited to employment on public works projects, and as such does not extend, as did the Alaska Hire Act struck down in Hicklin, to activity in which the state has no proprietary interest. The pervasiveness and intensity of the discrimination mandated by the act indicate that review should be conducted untempered by consideration of the state's status as a market participant in public works projects. The fact that the act does not extend to activities in which the state's proprietary interest is lacking, taken alone, would suggest a less rigorous standard of review. However, this cannot be conclusive in light of the scope and magnitude of the discrimination. On balance we con- elude that review approaching that of the intermediate level of scrutiny is called for. D. Substantiality Of The Justification As A Factual Matter. There is no doubt that Alaska has an unemployment rate which is higher than the national average and that this constitutes a serious problem. What is lacking is a showing that non-residents are a "peculiar source of the evil" of unemployment. This is in the first instance a factual question. Camden, 465 U.S. at 223, 104 S.Ct. at 1030, 79 L.Ed.2d at 262; Hicklin, 437 U.S. at 526-27, 98 S.Ct. at 2487-88, 57 L.Ed.2d at 405. The trial court found that "there is not sufficient evidence to support a finding that non-resident construction workers are a peculiar source of unemployment in the construction industry in Alaska anymore than they would be in any other state." Instead, the trial court detailed other causes of unemployment in the construction industry, including climatic extremes, the absence of construction activities in rural areas, and the lack of training prevalent among rural Alaskans. These findings, which are similar to those noted by the United States Supreme Court in Hicklin, 437 U.S. at 526-27, 98 S.Ct. at 2487-88, 57 L.Ed.2d at 405, are supported by the record. As such they are not clearly erroneous and may not be disturbed on appeal. Civil Rule 52(a). E. Substantiality Of The Justification As A Matter Of Law. As noted, the purpose of the local hire law is to exclude non-residents from public construction jobs so that more jobs will be available to Alaskans. In our view this is not a permissible justification for discrimination under the privileges and immunities clause. To state the same conclusion in conventional privileges and immunities terms, the justification is not "substantial." A related point recently was made by the United States Supreme Court in New Hampshire v. Piper, — U.S. at—n. 18, 105 S.Ct. at 1279 n. 18. One reason suggested for New Hampshire's law prohibiting non-resident lawyers from becoming members of the bar was the protection of its own lawyers from professional competition. The court dismissed this suggestion: "[T]his reason is not 'substantial'. The privileges and immunities clause was designed primarily to prevent such economic protectionism." Discrimination for the purpose of benefiting local residents economically was recognized by us as improper in Lynden Transport, Inc. v. State, 532 P.2d 700 (Alaska 1975) which involved a statute granting grandfather rights to resident trucking companies but not to non-resident trucking companies. We struck down the statute stating: A discrimination between residents and non-residents based solely on the object of assisting the one class over the other economically can not be upheld under either the privileges and immunities or equal protection clauses.... Benefiting economic interests of residents over non-residents is not a purpose which may constitutionally vindicate legislation. . Id. at 710-11. Other authorities which suggest that a state may not discriminate against non-residents in order to benefit residents economically include: —Hicklin, 437 U.S. at 526, 98 S.Ct. at 2487, 57 L.Ed.2d at 405. The court observed that for a state to attempt to eliminate its unemployment problem by requiring private employers within the state to discriminate against non-residents was a policy which was "at least dubious." —Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948). South Carolina was precluded from excluding non-resident shrimp fishermen in order to create a commercial monopoly which benefited resident fishermen. ' —Ward v. Maryland, 79 U.S. (12 Wall) 418, 20 L.Ed. 449 (1871). Maryland was precluded from discriminating against nonresident salesmen so that resident merchants might reap greater economic benefits. —Metropolitan Life Insurance Co. v. Ward, — U.S. —, 105 S.Ct. 1676, 84 L.Ed.2d 751 (1985). The Court struck an Alabama law discriminating against out-of-state insurance companies as violative of the equal protection clause. The purpose of the law was to promote domestic industry. The Court held that this purpose was not a legitimate justification for discriminatory treatment: "[Pjromotion of domestic business within a state, by discriminating against foreign corporations that wish to compete by doing business there, is not a legitimate state purpose." — U.S. at -, 105 S.Ct. at 1683. These cases reflect the view that our constitution protects non-residents from economic discrimination so that our nation can function as an economic unit. Justice Brennan expressed this theme in his concurring opinion in Allied Stores of Ohio v. Bowers, 358 U.S. 522, 533, 79 S.Ct. 437, 444, 3 L.Ed.2d 480, 488 (1959) cited with approval by the Court in Metropolitan Life, — U.S. at —, 105 S.Ct. at 1682, stating: Wheeling [Steel Corp. v. Glander 337 U.S. 562, 69 S.Ct. 1291, 93 L.Ed. 1544] teaches that a distinction which burdens . nonresidents but not . residents is outside the constitutional pale. But this is not because no rational ground can be conceived for a classification which discriminates against nonresidents solely because they are nonresidents: could not such a ground be found in the State's benign and beneficent desire to favor its own residents, to increase their prosperity at the expense of outlanders, to protect them from, and give them an advantage over, "foreign" competition? These bases of legislative distinction are adopted in the national policies of too many countries, including from time to time our own, to say that, absolutely considered, they are arbitrary or irrational. The proper analysis, it seems to me is that Wheeling applied the Equal Protection Clause to give effect to its role to protect our federalism by denying Ohio the power constitutionally to discriminate in favor of its own residents against the residents of other state members of our federation. Restricting entry by non-residents into a job market will make more positions available to residents. It is not difficult to make a case to a sympathetic legislature, whose members are accountable only to residents, that residents are deserving of protection because some of them are unemployed. But the universality of this condition is itself a reason why it is impermissible as a justification in privileges and immunities analysis. If every state could exclude or severely limit non-resident work ers because some of its residents were unemployed our country would be "little more than a league of states" rather than "the Union which now exists." Paul v. Virginia, 75 U.S. (8 Wall) 168, 180, 19 L.Ed. 357, 360 (1869). Such a result would run strongly counter to the policy of national economic unity on which the privileges and immunities clause is based. The result would not be much better if the power to exclude non-resident workers were limited to those states with above average unemployment. Many states fit that category and many of the others, no doubt, have particular industries in which a case for protection can be made. F. Relationship Between the Statute and its Purpose. The preferential hire statute involved in Hicklin was struck down because, among other reasons, the statute was too broad. It applied not only to unemployed residents or residents enrolled in job training programs, but to all residents whether employed or unemployed, well trained or poorly trained. The Court observed that less restrictive alternatives were available: A highly skilled and educated resident who has never been unemployed is entitled to precisely the same preferential treatment as the unskilled, habitually unemployed Arctic Eskimo enrolled in a job-training program. If Alaska is to attempt to ease its unemployment problem by forcing employers within the state to discriminate against non-residents — again, a policy which may present serious constitutional questions — the means by which it does so must be more closely tailored to aid the unemployed the Act is intended to benefit. Even if a statute granting an employment preference to unemployed residents or to residents enrolled in job-training programs might be permissible, Alaska Hire's across-the-board grant of a job preference to all Alaskan residents clearly is not. Hicklin, 437 U.S. at 527-28, 98 S.Ct. at 2488, 57 L.Ed.2d at 406. By giving preferential treatment to residents who do not need it, the present statute suffers from the same vice as that struck down by the United States Supreme Court in Hicklin. V. PRIOR DECISIONS CONCERNING PREFERENTIAL HIRE STATUTES In general, preferential hire systems have not fared well in the courts. The leading case is Hicklin, where the United States Supreme Court struck down the Alaska Hire statute. Following Hicklin, the courts of several states have held preferential hire statutes concerning state public works invalid on privileges and immunities grounds. Massachusetts Council of Construction Employers, Inc. v. Mayor of Boston, 384 Mass. 466, 425 N.E.2d 346 (1981) rev'd on other grounds, White v. Massachusetts Council of Construction Employers, 460 U.S. 204,103 S.Ct. 1042, 75 L.Ed.2d 1 (1983); Neshaminy Constructors, Inc. v. Krause, 181 NJ.Super. 376, 437 A.2d 733 (Ct.Ch.Div.1981), affd 187 NJ.Super. 174, 453 A.2d 1359 (Ct.App.Div.1982); Salla v. County of Monroe, 48 N.Y.2d 514, 399 N.E.2d 909, 423 N.Y.S.2d 878 (1979), cert, denied, 446 U.S. 909, 100 S.Ct. 1836, 64 L.Ed.2d 262 (1980); Laborers Local Union No. 374 v. Felton Construction Co., 98 Wash.2d 121, 654 P.2d 67 (1982). The Supreme Court of Wyoming took a different view in Wyoming v. Antonich, 694 P.2d 60 (Wyo.1985). It rejected a privileges and immunities challenge to a statute giving an employment preference to Wyoming residents on public works projects. In doing so it relied heavily on the recent case of United Building & Construction Trades Council of Camden County and Vicinity v. Mayor and Council of the City of Camden, 465 U.S. 208, 104 S.Ct. 1020, 79 L.Ed.2d 249 (1984). We do not read Camden as casting much new light on the present case. The primary issue in Camden, and certainly the most controversial, was whether a municipal ordinance which discriminated against in-state residents as well as out-of-state residents was subject to privileges and immunities scrutiny. Id. at 224, 104 S.Ct. at 1030, 79 L.Ed.2d at 262 (Blackmun, J., dissenting). The Court did not rule on the question of whether the discrimination was justified by conditions in Camden, or whether the remedy contained in the ordinance was sufficiently closely directed to curing those conditions. It would thus be unwarranted to conclude that the Court approved of Camden's system of discrimination. Furthermore, the differences between the local hire act here and the ordinance in Camden are noteworthy. As the findings of the trial court indicate, the Alaskan economy is a dynamic and growing one, property values are increasing, and Alaska's population is expanding rapidly. In contrast, in Camden the city claimed that it was in a condition of decay, with property values eroding, population sharply declining, and unemployment "spiralling." Id. at 222, 104 S.Ct. at 1030, 79 L.Ed.2d at 261. While Alaska's unemployment is chronically high due in large part to unique conditions in rural areas, the economy of the state does not seem remotely comparable to the picture of "grave economic and social ills" suggested in Camden. In addition, it appears that the discrimination effected by the Alaska statute is greater than that in Camden. Public works account for the majority of commercial construction activity in Alaska. While the opinion does not indicate whether the same is true in Camden, the exclusion mandated by our statute — 90% to 100% resident workers required — is far more absolute than that in the Camden ordinance. As presented to the Court, the ordinance contained only a goal, not a requirement, that 40% of workers on public works construction projects be residents. For these reasons, unlike the Wyoming Supreme Court in An-tonich, we do not regard Camden as precedent supporting approval of our local hire law. One other case is instructive. It is Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973), which involved a New York statute which precluded non-citizens of the United States from holding competitive civil service positions. The court held the statute invalid under the equal protection clause of the 14th Amendment. One justification offered for the statute was an economic benefits theory which is similar to the reduction in unemployment rationale, and is relevant to the factor of market participation as well. The argument was that the state had a "special public interest" in confining public employment to its citizens, based on its interest in using state resources for the advancement and profit of members of the state. Id. at 643-44, 93 S.Ct. at 2848, 37 L.Ed.2d at 860-61. The Court rejected this argument, finding that it was rooted in the discredited concept that constitutional rights turn on whether a government benefit is characterized as a "right" or "privilege." Id. In the final section of the Sugarman opinion the Court suggested the kinds of discriminatory practices against aliens which are permissible. Id. at 646-50, 93 S.Ct. at 2849-51, 37 L.Ed.2d 862-64. The Court did not distinguish between alienage in the non-state resident or non-United States citizen senses, and referred to authorities which concerned alienage only of non-state residents. The Court noted that alienage could be a bar to public employment if the statute was based on legitimate state interests relating "to qualifications for a particular position or to the characteristics of the employee." Id. at 646-47, 93 S.Ct. at 2849-50, 37 L.Ed.2d at 862. Sugarman lends support to the conclusion we have reached in the present case for two reasons. The first is that it rejects the argument that the state's interest in restricting the resources of the state for the advancement and profit of the members of the state entitles the state to discriminate regarding the employment of aliens. The second is that it suggests that the state may restrict the employment of aliens only for reasons which are much narrower than those used in the present case. VI. MISCELLANEOUS ISSUES The appellees also argue that Francis lacks standing because he did not prove that he was dismissed because he was a non-resident. The evidence on this point, although circumstantial, is adequate to sustain the trial court's finding' that Francis lost his job because he was not a resident. The appellees also argue that Francis is a resident in fact. This point is frivolous. Not only does the evidence support a finding of non-residency, the state admitted non-residency in its answer. Appellees further contend that Francis lacks standing because injunctive relief will do him no good. This point, too, is frivolous, for it ignores his claim for damages and for declaratory relief. In view of our decision, it is unnecessary to address Francis's further arguments that the local hire statute violates the equal rights clause of article I, section 1 of the Alaska Constitution and the equal protection and privileges and immunities clauses of the Fourteenth Amendment to the United States Constitution. VII. CONCLUSION Our federal constitution contains a number of provisions designed to protect legally those who lack the power or influence to protect themselves politically. It also manifests a strong commitment to free trade and an aversion to economic protectionism. The privileges and immunities clause combines both of these themes and the local hire act is in substantial conflict with them. For the reasons stated we AFFIRM the judgment of the superior court declaring that the act violates the privileges and immunities clause of article IV, § 2 of the United States Constitution. . AS 36.10.010 provides: (a) In the performance of contracts let by a municipality for construction, repair, preliminary surveys, engineering studies, consulting, maintenance work or any other retention of services necessary to complete any given project, 95 percent residents shall be employed where they are available and qualified. If 10 or fewer persons are employed under the contract, then 90 percent residents shall be employed where they are available and qualified. In all cases of public works projects, preference shall be given to residents. In an area which has been designated as an area impacted by an economic disaster, residents of that area shall be given employment preference as provided in AS 44.33.290, followed by other residents of the state. (b) When a construction project is partly or wholly funded by state money and the state or an agency of the state, a department, office, agency, state board, commission, regional school board with respect to an educational facility under AS 14.11.020, public corporation or other organizational unit of or created under the executive, legislative or judicial branch of state government, including the University of Alaska, is a signatory to the construction contract, the contract shall require that the worker hours on a craft-by-craft basis shall be performed at least 95 percent by bona fide state residents. If 10 or fewer persons are employed under the contract, then 90 percent residents shall be employed where they are available and qualified. In an area which has been designated as an area impacted by an economic disaster, residents of that area shall be given employment preference as provided in AS 44.33.290, followed by other residents of the state. . The International Association of Bridge, Structural and Ornamental Ironworkers, Local 751 intervened as a defendant. . The terms "citizen" and "resident" are essentially interchangeable for the purpose of review under the privileges and immunities clause. Hicklin v. Orbeck, 437 U.S. 518, 524, 98 S.Ct. 2482, 2486, 57 L.Ed.2d 397, 403, n. 8 (1978). . When the state acts as an employer, a lender, a landlord, a buyer, a seller, or an owner of natural resources, it may be regarded as a market participant and for some purposes will be treated differently than when it acts solely as a sovereign body regulating the conduct of others within its jurisdiction. See generally Wells and Hellerstein, The Governmental Proprietary Distinction in Constitutional Law, 66 Va.L.Rev. 1073 (1980). . The coverage of the two clauses is overlapping but not identical. The privileges and immunities clause does not apply to corporations, or to aliens, while the equal protection clause does, and the equal protection clause applies to many classifications, while the privileges and immunities clause applies only to those based on residence. L. Tribe, American Constitutional Law § 6-33 at 411-12. Alienage classifications involving non-U.S. citizens are subject to at least an intermediate level of review under federal equal protection doctrine. Tribe, supra § 16-31 at 1089-90; Sugarman v. Dougall, 413 U.S. 634, 642, 93 S.Ct. at 2847, 37 L.Ed.2d 853, 860 (1973). The removal of the "disabilities of alienage" in the sense of discrimination based on residency in another state of the United States is central to the privileges and immunities clause. Paul v. Virginia, 75 U.S. (8 Wall.) 168, 180, 19 L.Ed. 357, 360 (1868). . A table prepared by the state's expert witness shows the following: Unemployment Rates U.S., Alaska 1970-1983 U.S. Alaska 1970 4.9% 7.1% 1971 5.9 8.3 1972 5.6 8.3 1973 4.9 8.5 U.S. Alaska 1974 5.6% 7.9% 1975 8.5 6.9 1976 7.7 8.5 1977 7.0 9.3 1978 6.0 11.0 1979 5.8 9-3 1980 7.1 9.6 1981 7.1 9.2 1982 9.7 10.0 1983 9.6 10.4 . In State v. Wylie, 516 P.2d 142 (1973), we struck on equal protection grounds a statute giving a preference in state employment to persons who had resided in the state for one year. We referred to evidence "which indicates that the state's unemployment problems stem from inadequate education and vocational training and from insufficient job opportunities in remote areas of the state." Id. at 149 (footnote omitted). . This case was decided on equal protection rather than privileges and immunities grounds. The difference, however, is not significant in the present context because the method of analysis is similar and the privileges and immunities clause provides non-resident individuals with more stringent protection against economic discrimination than does the equal protection clause in cases where the basis for the challenged classification is non-residence. L. Tribe, American Constitutional Law § 6-33, at 411-12. In United Building and Trades Council of Camden County and Vicinity v. Mayor and Council of the City of Camden, 465 U.S. 208, 104 S.Ct. 1020, 79 L.Ed.2d 249 (1984), the United States Supreme Court neither rejected nor approved a city program involving discrimination against non-city residents on public works projects. That case is discussed more fully on page 269, infra. The fact that the program was not rejected in the face of a justification of grave economic and social ills may mean that local or state governments may foster discrimination in order to stave off an economic or social collapse, a goal broader than, but related to, that of benefiting local residents economically. . We made similar observations in State v. Wylie, 516 P.2d 142, 149 (Alaska 1973) (one year residency preference in state employment violates equal protection): It does not appear, however, that the employment preference furthers the purpose of reducing unemployment except by deterring the in-migration of persons from other states. The personnel rules in question do not increase the number of available state employment opportunities, but simply limit the universe of persons who may compete for them. To the extent that the personnel rules "lower unemployment" by fencing out competition from other states, the rules impermissibly discriminate against persons who have recently traveled to the state.... The personnel rules creating an employment preference are poorly "tailored" to achieve the objective of lower state unemployment. There are certainly available to the state other means for lower unemployment which impose a lesser burden on the constitutionally protected right to interstate travel. We suggested in a footnote to this statement that "[j]ob training programs, for example, may reduce unemployment without imposing a burden on the right of interstate travel." Id., n. 14. . Camden involved a municipal ordinance of the City of Camden, New Jersey, which established as a "goal" with which contractors must make a good faith effort to comply that at least forty percent of the employees of contractors and subcontractors working on city construction projects be Camden residents. The New Jersey Supreme Court had sustained the ordinance against a privilege and immunities challenge because it was not aimed primarily at out of state residents; instead it discriminated against all non-residents of the city, regardless of their state of residence. 88 N.J. 317, 443 A.2d 148 (1982). The United States Supreme Court reversed the New Jersey court on this point, and went on to hold that a non-resident's interest in public works employment was "fundamental," thus subject to protection under the privilege and immunities clause. 465 U.S. at 220-23, 104 S.Ct. at 1028-30, 79 L.Ed.2d at 259-61. The City also contended that the ordinance was justified in order to cure high unemployment and arrest a sharp decline in population. The Court found it impossible to evaluate these justifications as no trial had been held. The case was therefore remanded to the New Jersey courts for further action. 465 U.S. at 222-23, 104 S.Ct. at 1029-31, 79 L.Ed.2d at 261-62. . The competitive class included all positions for which it was practicable to determine merit and fitness by a competitive examination and included "nearly the full range of the work tasks, that is, all the way from the menial to the policy making." 413 U.S. at 640, 93 S.Ct. at 2846, 37 L.Ed.2d at 858. . See Tribe, supra n. 8. . In a case following Sugarman, C.D.R. Enterprises v. Board of Education of the City of New York, 412 F.Supp. 1164 (E.D.N.Y.1976), summarily aff'd sub nom. Lefkowitz v. C.D.R. Enterprises Limited, 429 U.S. 1031, 97 S.Ct. 721, 50 L.Ed.2d 742 (1977), the reduction in unemployment rationale was expressly rejected as insufficient as a justification for discrimination against resident aliens and U.S. citizens who had not been residents of New York for at least 12 months. . The Court also stated that "in an appropriately defined class of positions" citizenship could be required as a qualification for office. "[E]ach state has the power to prescribe the qualifications of its officers and the manner in which they shall be chosen." Such power inheres in the State by virtue of its obligation, already noted above, "to preserve the basic conception of a political community." And this power and responsibility of the State applies, not only to the qualifications of voters, but also to persons holding state elective or important nonelective executive, legislative, and judicial positions, for officers who participate directly in the formulation, execution, or review of broad public policy perform functions that go to the heart of representative government. There . is "where citizenship bears some rational relationship to the special demands of the particular position." Id. at 647, 93 S.Ct. at 2850, 37 L.Ed.2d at 862-63 (citations omitted).

10356514

Ray CHRISTIANSEN, Appellant, v. Lester MELINDA, and Alaska State Court System, Appellees

Christiansen v. Melinda

1993-08-13

No. S-5007

345

349

857 P.2d 345

857

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:09:06.214921+00:00

CAP

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

Ray CHRISTIANSEN, Appellant, v. Lester MELINDA, and Alaska State Court System, Appellees.

Ray CHRISTIANSEN, Appellant, v. Lester MELINDA, and Alaska State Court System, Appellees. No. S-5007. Supreme Court of Alaska. Aug. 13, 1993. Ray Christiansen, pro se. Gail T. Voigtlander, Asst. Atty. Gen., Anchorage, Charles E. Cole, Atty. Gen., Juneau, for appellees. Before MOORE, C.J., and RABINO WITZ, BURKE, MATTHEWS and COMPTON, JJ.

2550

15551

OPINION MATTHEWS, Justice. In this case we must decide whether an agent authorized to act on his principal's behalf under a power of attorney may file and prosecute a civil action pro se in his principal's stead. We hold that he may not. I James C. Sanders executed a statutory form power of attorney that appointed Ray Christiansen attorney-in-fact authorized to act on Sanders' behalf in all matters relating to an apartment complex owned by Sanders. On March 26, 1991, pursuant to his authority as attorney-in-fact, Christian-sen attempted to file a small claims action on behalf of Sanders. Lester Melinda, Deputy Clerk of the Court, refused Chris-tiansen's filing on the ground that a power of attorney does not authorize an agent to bring suit pro se on behalf of the principal. Albert Szal, the Area Court Administrator, later informed Christiansen that the court system will not accept small claims suits filed on the authority of a power of attorney. On October 25, 1991, Christiansen filed suit against Melinda and the Alaska Court System under AS 13.26.353(c) to recover damages for their wrongful failure "to honor a properly executed statutory form power of attorney." Melinda and the court system moved to dismiss Christiansen's action for failure to state a claim upon which relief can be granted. See Alaska R.Civ.P. 12(b)(6). The superior court granted the motion and dismissed Christiansen's complaint with prejudice. Christiansen appeals. II Christiansen brought suit against Melinda and the court system under AS 13.26.353(c): A third party shall honor the terms of a properly executed statutory form power of attorney. A third party who fails to honor a properly executed statutory form power of attorney may be liable in a civil action to the principal, the attorney-in-fact, or the principal's heirs, assigns, or estate for a civil penalty not to exceed $1,000, plus the actual damages, costs, and fees associated with the failure to comply with the statutory form power of attorney. The civil action shall be the exclusive remedy at law for damages. For Christiansen to have stated a claim under AS 13.26.353(e), the power of attorney must have entitled him to litigate pro se in Sanders' place. If not, Melinda was justified in refusing to file Christiansen's small claims action and, consequently, Christiansen did not state a claim upon which relief can be granted under AS 13.-26.353(c). This case, then, reduces to a single issue of law: whether an agent authorized to act for a principal under a statutory form power of attorney may bring suit as a pro se litigant in the principal's stead. We address this issue in two parts. First, is the unlicensed, in-court representation of another considered "engag[ing] in the practice of law" and, thus, prohibited by Alaska's statute proscribing the unlicensed "practice of law"? Second, if so, does the statutory power of attorney overcome that prohibition? A Alaska Statute 08.08.210(a) provides: "A person may not engage in the practice of law in the state unless the person is licensed to practice law in Alaska and is an active member of the Alaska Bar." (Emphasis added.) Subsection (b) states that the "practice of law shall be defined in the Alaska Bar Rules." The Bar Rules, however, only define "practice of law" for purposes of the criminal offense of unlicensed practice. Alaska Bar R. 63. Thus, the definition of "practice of law" for non-criminal purposes is currently left to case law. We have twice addressed the definition of "practice of law" in deciding whether a suspended attorney had impermissibly practiced law while on suspension. Burrell v. Disciplinary Bd. of the Alaska Bar Ass'n, 777 P.2d 1140, 1142-43 (Alaska 1989); In re Robson, 575 P.2d 771, 779-81 (Alaska 1978). In each case we refused "to give a specific definition of the term 'practice of law' " because "[t]he practice of law may well be used in a different sense for various purposes." Robson, 575 P.2d at 781. Whatever the precise nuances of that definition may be for different "purposes," in-court representation of another — a paradigmatic function of the attorney-at-law — falls within that definition. See State, ex rel. Stephan v. Williams, 246 Kan. 681, 793 P.2d 234, 242 (1990); Oregon Peaceworks Green v. Secretary of State, 311 Or. 267, 810 P.2d 836, 837 (1991); Washington State Bar Ass'n v. Great Western Union Fed. Sav. & Loan Ass'n, 91 Wash.2d 48, 586 P.2d 870, 875 (1978); see also 7 Am.Jur.2d Attorneys at Law § 1 (1980) ("practice of law . embraces the preparation of pleadings and other papers incident to actions and special proceedings, the management of such actions and proceedings on behalf of clients before judges and courts"); see also Alaska R.Civ.P. 81(a)(1) ("only attorneys who are members of the Alaska Bar Association shall be entitled to practice in the courts of this state"). B Since we hold that unlicensed, in-court representation of another falls within the prohibition of AS 08.08.210(a), we turn to the question whether a statutory power of attorney removes the agent from the operation of the statute. Christiansen argues as follows: (1) the durable power of attorney authorizes the agent to act for his principal as if the agent was the principal; (2) the principal could represent himself pro se; and therefore (3) the agent can litigate pro se for the principal. Christiansen's argument draws support from AS 13.26.344, which gives detailed meaning to the powers granted in the statutory form. Relevant to the "claims and litigation" power, subsection (i) provides: In a statutory form power of attorney, the language conferring general authority with respect to claims and litigation shall be construed to mean that . the principal authorizes the agent to (1) assert and prosecute before any court . a cause of action, claim, counterclaim, offset, or defense that the principal has .; (2) bring an action to determine adverse claims, intervene or interplead in an action or proceeding, and act in litigation as amicus curiae; (3) in connection with any legal action, apply for and, if possible, procure prelim- inary, provisional, or intermediate relief, and resort to and use any available procedure to obtain and satisfy a judgment, order, or decree; (4) in connection with any legal action, perform an act that the principal might perform, including by way of illustration and not of restriction, acceptance of tender, offer of judgment, admission of facts, submission of a controversy on an agreed statement of facts, consent to examination before trial, and generally bind the principal in the conduct of any litigation or controversy that the agent considers desirable; (5) submit to arbitration, settle, and propose or accept a compromise with respect to a claim . or litigation .; (6) waive the issuance and service of process upon the principal, accept service of process, appear for the principal, designate persons upon whom process di rected to the principal may be served, execute and file or deliver stipulations on the principal's behalf, verify pleadings, [and proceed on appeal]; (7) appear for, represent, and act for the principal with respect to bankruptcy or insolvency proceedings whether of the principal or of some other person .; (8) hire, discharge, and compensate an attorney, accountant, expert witness, or assistant when the agent reasonably believes the action to be desirable for the proper execution of any of the powers described in this subsection; (9) [pay and receive judgments or settlements achieved as a result of exercising a power under this subsection]; and (10) do any other act or acts that the principal can do through an agent in connection with a claim by or against the principal or with litigation to which the principal is or may become or be designated a party. AS 13.26.344(i). Several of these powers— especially those in subsections (1) and (4)— can be construed to confer on the agent the authority to litigate pro se in the principal's place. It is on these provisions that Chris-tiansen must rely to support his claim against Melinda and the court system. The state points out the flaw in Chris-tiansen's argument. Subsection (i)(10) authorizes the agent to "do any other act or acts that the principal can do through an agent in connection with a claim by or against the principal or with litigation to which the principal is or may become or be designated a party." AS 13.26.344(i)(10) (emphasis added). Use of the word "other" suggests that the acts enumerated in subsections (1) through (9) are similarly limited by the phrase "that the principal can do through an agent." For this reason, we read the entirety of AS 13.26.344(i) as authorizing only those actions, enumerated or otherwise, that "the principal can do through an agent." Under our reading of AS 13.26.344(i), that provision defines the agent's authority against the backdrop of existing law. The relevant background law in this case is AS 08.08.210(a). Under that provision, a principal can engage "an agent" to practice law on his behalf only if that agent is a licensed attorney and a member of the state bar. Thus, the practice of law is not something "that the principal can do through an agent" unless that agent is an attorney-at-law. A New York court reached the same conclusion in interpreting virtually identical language in the New York power of attorney statute. In Estate of Friedman, 126 Misc.2d 344, 482 N.Y.S.2d 686 (1984), the court concluded that: notwithstanding the broad sweep of the[] powers [granted the agent under the statutory power of attorney], no authority has been presented which would permit a lay person by virtue of his capacity as attorney-in-fact for his principal to appear on his principal's behalf and act as legal counsel in a court of law unless admitted to so practice. Under the applicable statutes of this state, only those persons duly admitted to practice before the courts of this state may act as a legal representative of another person in a court proceeding or in the further capacity of a practicing attorney. Id., 482 N.Y.S.2d at 687 (citations omitted); see also Gilman v. Kipp, 136 Misc.2d 860, 519 N.Y.S.2d 314 (1987); Stokes v. Village of Wurstboro, 123 Misc.2d 694, 474 N.Y.S.2d 660, 661 (1984) ("attorney in fact may not represent the principal as legal counsel in a court of record"). Furthermore, under Christiansen's argument, a mere power of attorney would enable any person to practice law in Alaska. This interpretation would effectively abrogate AS 08.08.210(a)'s prohibition against the unlicensed practice of law. As Friedman recognized: [T]he potential problems created by the use of [the power of attorney] as a means of encouraging the unauthorized practice of law are obvious. Of course, if [the] principal wishes to proceed pro se, she may do so. However, she cannot use a power of attorney as a device to license a layman to act as her attorney in a court of record. To sanction this course would effectively circumvent the stringent licensing requirements of attorneys by conferring upon lay persons the same right to represent others by the use of powers of attorney. Friedman, 482 N.Y.S.2d at 687 (citations omitted). In rejecting Christiansen's interpretation of section .344(i), we necessarily limit the scope of the powers enumerated in that section. Restricted by the prohibition on the unlicensed practice of law, the section .344(i) powers are best characterized as authorizing the agent to act as the client in an attorney-client relationship. Section ,344(i) authorizes the agent to make decisions and undertake acts that are the traditional province of a client. For example, the decisions whether to prosecute, defend, settle, or arbitrate a claim belong to the client, not the attorney. Similarly, the decision whether to waive service of process or admit disputed facts lie within the control of the client. The agent, then, while lacking authority to litigate pro se in his principal's place, creates and controls the attorney-client relationship as fully as if he were the principal. Reading AS 13.26.344(i) to incorporate background law achieves the additional benefit of harmonizing the various statutes involved. Cf. In re Estate of Hutchinson, 577 P.2d 1074, 1075 (Alaska 1978). Specifically, we avoid a conflict between the enumerated powers in section .344(i) and the prohibition on the unlicensed practice of law in AS 08.08.210(a). While this goal should not be pursued in the face of plain statutory meaning to the contrary, it is an appropriate consideration in cases, such as this, where reasonable competing interpretations exist. III A statutory power of attorney does not entitle an agent to appear pro se in his principal's place. For this reason, Melinda and the court system were justified in their refusal to file Christiansen's small claims action and, thus, did not violate AS 13.26.-353(c). We AFFIRM the superior court's dismissal for failure to state a claim. . The statutory form is set forth in AS 13.26.332. The power of attorney signed by Sanders in favor of Christiansen is not in the record. We assume that it granted Christiansen "claims and litigation" powers as set forth in provision (I) in the statutory form. .This court reviews de novo an order dismissing a complaint for failure to state a claim. Kollodge v. State, 757 P.2d 1024, 1026 n. 4 (Alaska 1988). In doing so we only consider the material contained in the pleadings in a motion to dismiss for failure to state a claim. "If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient." [We] "must presume all factual allegations of the complaint to be true and [make] all reasonable inferences . in favor of the non-moving party." Id. at 1026 (quoting Linck v. Barokas & Martin, 667 P.2d 171, 173 (Alaska 1983) and 2A J. Moore & J. Lucas, Moore's Federal Practice ¶ 12.07, at 12-63 (1986)) (citations omitted) (alterations in original). . AS 08.08.230(a) makes the unlicensed practice of law a misdemeanor. . Although the definition in Bar Rule 63 literally applies only to the criminal offense of the unlicensed practice of law, that rule also necessarily defines the conduct that, at a minimum, constitutes the unlicensed practice of law for non-criminal purposes. In other words, the "unlicensed practice of law" in the civil context at least encompasses the conduct proscribed in Bar Rule 63. This is necessarily so because the civil law may not permit conduct which the criminal law prohibits. . For example, Robson states that "practice of law" should be defined more broadly for a suspended attorney "because of prior recognition as an attorney, such a person must be particularly prudent in avoiding the appearance of holding himself out as a lawyer." Robson, 575 P.2d at 781. . Christiansen's argument would also effectively abrogate Alaska Civil Rule 81(a) which limits "practice" in Alaska courts to licensed attorneys. . The agent, of course, may personally engage in all activities authorized under section .344(i) that do not constitute the unauthorized practice of law.

10393215

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

Nelson v. Jones

1989-10-27

No. S-2077

964

972

781 P.2d 964

781

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:09:08.575920+00:00

CAP

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

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

Paul A.L. NELSON, Appellant, v. Loretto L. JONES, Appellee. No. S-2077. Supreme Court of Alaska. Oct. 27, 1989. Loren Domke, Domke & Olmstead, P.C., Juneau, for appellant. Thomas W. Findley, Findley & Pallen-berg, Juneau, for appellee. Barbara T. Walker, Juneau, Guardian Ad Litem. Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.

4512

27703

OPINION COMPTON, Justice. This appeal arises from the divorce of Paul Nelson and Loretto Jones. In January 1987 the trial court entered a decree of divorce resolving issues of child custody, visitation, and property division. The decree incorporated a stipulation, which provided in part: "The court finds clear and convincing evidence that T was sexually abused by her father, Paul Nelson." The stipulation conditioned Paul's right to supervised visitation on his treatment by Dr. Anthony M. Mander, a psychologist. Paul moved to set aside the decree, and his motion was denied. When Paul refused to admit in treatment to abusing his daughter, Dr. Mander terminated treatment, and Lor-etto denied visitation. Paul then moved to modify the court's decree as to visitation, and his motion was denied. Paul appeals the denial of his motions to set aside and to modify the judgment. He also appeals the court's property division and award of attorney fees. We affirm. I. STATEMENT OF FACTS Paul Nelson and Loretto Jones were married in March 1983. Their only child, T, was born in April 1983. The couple separated in May 1985, and Paul filed for divorce. In the summer following the parties' separation, Loretto frequently left Haines to fish commercially in nearby areas. As a result, T spent most of the summer in Paul's care. Each workday Paul left T with a babysitter, Mary Benson. One morning in September, Benson was giving T a bath when T, without any prompting from Benson, pointed to her genital area and stated, "My daddy touched me here with his finger and he made my tummy hurt." Benson said, "What?" T repeated her statement and again pointed to her genital area. At Benson's prompting, T later repeated the statement to Benson's husband. When Loretto returned from fishing a few days later, Benson did not tell her of the incident. Loretto apparently learned of the abuse from T soon after. She took T to Dr. Claudia Foster-Olson, who examined her. Dr. Foster observed that T had an enlarged hymeneal diameter and vaginal orifice. These and other observations led Dr. Foster to conclude that T had been subjected to repeated sexual abuse. A second physician, Dr. Dennis Batey, examined T some time later and reached the same conclusion. The trial court heard evidence on issues of child custody and property division in November 1986. In support of her request for custody, Loretto introduced evidence that T had been sexually abused by Paul. Paul introduced the testimony of two babysitters, Erma Schnabel and Edith Braa-ten. Each testified that T's vagina had been unusually large since soon after her birth. After three days of testimony, the parties submitted a stipulation in the form of an order on the issues of custody and visitation. The parties' stipulation left for the court only the valuation and division of marital property. The stipulated order provided that "the court finds clear and convincing evidence that T was sexually abused by her father." The order further provided that Paul should have supervised visitation with T and required that Paul enter counselling with Dr. Mander. Asked in open court if he approved the stipulation, Paul stated, "Yes . with the understanding it's not an admission of guilt." On January 5, 1987, the trial court entered a memorandum decision and order which incorporated the parties' stipulation on the issues of custody and visitation. The order also resolved the disputed issues of property division and attorney fees. Soon after the order was entered Paul moved to set aside the custody stipulation and reopen trial evidence. He submitted affidavits in support of his motion. He also moved for reconsideration on the issues of property division and attorney fees. In an affidavit submitted in support of Paul's motion to reopen, Dr. William Mclver opined that certain interviews with T had been improperly conducted. Another affiant, Dr. Robert Fay, opined that hymeneal diameter measurements cannot unequivocally establish that penetration has occurred. Dr. Eugenia Gullick and Dr. Henry Adams stated that their tests of Paul, involving penile plethysmographs and psychometic and clinical evaluations, revealed no evidence of an arousal pattern consistent with pedophilia. Donald Al-bright, Loretto's former business partner and former lover, suggested in his affidavit that Loretto had fabricated the charges of abuse as a means of obtaining a favorable property settlement. Finally, other affidavits were offered to prove that Nelson's consent to the stipulation was the result of duress and ineffective assistance of counsel. On January 20, the trial court denied Paul's motion for reconsideration, and later entered final judgment in accordance with its earlier order. On February 5, the court denied Paul's motion to set aside the stipulation and reopen evidence. Paul filed a notice of appeal. In early February Dr. Mander terminated his treatment of Paul on the ground that he could not help Paul until Paul admitted to abusing T. Loretto thereafter refused to allow Paul visitation with T. Paul moved to modify the visitation order, requesting that another psychiatrist be substituted for Dr. Mander. In April the trial court heard additional testimony on Paul's motion. Drs. Adams and Gullick repeated their opinions. On cross-examination, each conceded that the tests performed on Paul could not establish with certainty that he had not abused his daughter. Paul conceded at the April hearing that T had been abused, but denied that it was he who had abused her. He said that he had formed an opinion as to the identity of the abuser, but declined to state his opinion. Loretto offered the testimony of Florence Wolfe. Ms. Wolfe, a counsellor specializing in the treatment of sexual deviance, testified that the penile plethysmo-graph was susceptible to cheating. She further testified that the plethysmograph was useful in the treatment, but not in the assessment, of sexual deviance. This court temporarily remanded the case for consideration of Paul's motion. In September the trial court entered a memorandum and order denying Paul's motion for modification. In December Paul moved to recuse Judge Pegues from presiding at any additional hearings in this case. Judge Pegues denied the motion. Paul appeals. II. DISCUSSION A. CHILD CUSTODY AND VISITATION 1. The trial court did not abuse its discretion in denying Paul's motion to reopen evidence and his motion to set aside the judgment. On January 5, 1987, the trial court entered a memorandum decision and order based in part on the parties' stipulation. On January 8, Paul moved the court to reopen evidence, basing his motion on Alaska Civil Rule 59. When the court entered final judgment on January 23, Paul converted his motion to a motion under Civil Rule 60 to set aside the judgment. In support of his motion, Paul argued that (1) he had agreed to the custody stipulation under duress, (2) he had "received ineffective assistance of counsel," and (3) further expert testimony should be heard in the interest of justice. The trial court denied Paul's motion, holding that the test results to which the experts would testify were likely in error and likely would not change the trial result. The court disbelieved Paul's claim of duress: "the court was present for part of the drafting of the agreement, and Nelson showed no sign of duress or unusual stress." Denial of relief under Civil Rule 59 or Rule 60 will be overturned on appeal only if the trial court has abused its discretion. Gregor v. Hodges, 612 P.2d 1008, 1010 (Alaska 1980); National Bank of Alaska v. McHugh, 416 P.2d 239, 244 (Alaska 1966). The court concluded that Paul had failed to show duress. Paul asserted: "[My] attorney told me that if the court accepted Dr. Foster's testimony and there was no negotiated agreement on custody it was very likely I would not see my daughter for a year." This assertion is directly contradicted by Paul's attorney. Further, the court had an opportunity to observe Paul at the drafting of the stipulation, commenting thereon in its decision. The court also found that "Paul's new evidence would not probably change the trial results." Although Paul's stipulation was not binding on the trial court, it nonetheless constituted evidence on the issue of abuse. See McClain v. McClain, 716 P.2d 381, 385-87 (Alaska 1986); Cope v. Cope, 49 Or.App. 301, 619 P.2d 883, 887 (1980), aff'd 291 Or. 412, 631 P.2d 781 (1981). Taken in combination with the evidence at trial, its force would be difficult to counter. The affidavits offered by Paul are not equal to the test. As the trial court remarked in discussing the penile plethys-mograph, "tests often give false results, both positive and negative." Cases from other jurisdiction suggest that the court's doubts were well founded. See People v. John W, 185 Cal.App.3d 801, 229 Cal.Rptr. 783, 785 (1986) (court held that criminal defendant had failed to establish that the plethysmograph "was a reliable means of diagnosing sexual deviance" and ruled the test inadmissible); Dutchess Cty. Dept. of Social Services v. Mr. G., 141 Misc.2d 641, 534 N.Y.S.2d 64, 71 (1988) ("the results of the plethysmograph as a predicator of human behavior cannot be considered. The proof establishes that it is not only a device with, at best, questionable professional recognition, but one whose conceded margin of error is too great to reliably forecast [the chilpl's] safety."). We conclude that the trial court did not abuse its discretion in denying Paul's mo tions to reopen evidence or set aside the judgment. 2. The trial court did not abuse its discretion in denying Paul's motion to re-establish visitation. In April 1987 Paul moved the court to re-establish supervised visitation. He argued that because he had not abused his daughter, he could not comply with Dr. Mander's request that he admit to abusing her. Paul asked that Dr. Wildeman, a psychiatrist, be allowed to serve in the place of Dr. Mander. The trial court found that Paul had chosen not to comply with conditions of visitation, and that his motion therefore should be treated as a motion to modify, rather than to enforce, visitation. After hearing further evidence, the trial court again concluded that Paul had abused T. It also concluded, on the basis of expert testimony, that visitation would be harmful to T as long as Paul continued to deny the abuse. The court denied Paul's motion. On appeal Paul contends that the trial court abused its discretion in denying his motion. He contends that the record does not support the court's finding of abuse. He also apparently contends that even if he did abuse T, supervised visitation would not be harmful to T. The trial court's decision to deny Paul's motion for modification should be reversed only if the trial court abused its discretion. Cooper v. State, 638 P.2d 174, 179 (Alaska 1981). By conceding at the April hearing that T had been abused, Paul added to the weight of evidence against him. The expert testimony of Drs. Gullick and Adams may be viewed as effectively rebutted by that of Florence Wolfe, who testified that the penile plethysmograph, though it can be helpful in treating sexual deviance, is not a reliable means of assessing sexual deviance. Thus, the court did not err in finding again that Paul had abused his daughter. A more difficult question is whether, in light of its finding of abuse, the trial court abused its discretion in conditioning further visitation by Paul upon his admission that he abused T. We cannot ignore the possibility, however remote, that Paul did not abuse his daughter. If he did not abuse his daughter, the trial court's decision places him in a difficult position: unless he admits to acts he did not commit, he will be denied visitation with his daughter. Though the trial court's order is severe, its severity is justified by the overriding need to protect T from further harm. Dr. Wildeman and Ms. Wolfe each testified at the April hearing that visitation by an abuser in denial can be harmful to the abused child. Mrs. Wolfe opined that abusive conduct can occur even during carefully supervised visits. The trial court observed, "[p]ast experience with [Paul] shows that he will not follow the rules of supervision, that he will attempt — using counsel when necessary— to overcome and defeat controls placed upon him by the supervisor." During and after the divorce dispute, Paul violated the court's orders by initiating or encouraging physical contact between him and T. During a visit in January 1987, a supervisor asked Paul to refrain from photographing T. Paul questioned the restriction and questioned the supervisor's assumption that he was a pedophile. Later, at Paul's request, his attorney sent a letter to the supervisor. The letter demanded a scientific basis for the restriction and demanded information on the supervisor's training and education. It stated, "Mr. Nelson conclusively passed a lie detector examination.... The polygraph results establish that Mr. Nelson did not sexually abuse his daughter." The letter further stated: "you can be assured that Mr. Nelson will take all steps necessary to protect his reputation." Expert testimony and Paul's behavior both suggest that even supervised visitation could be harmful to T. The trial court did not clearly err in concluding that "the risk of continuing, long lasting emotional harm to T from contact with Nelson while he remains in denial is too great to be tolerated." The trial court therefore did not abuse its discretion in conditioning future visitation upon admission by Paul that he abused T. B. PROPERTY DIVISION The trial court found that the property subject to division consisted of: (1) the increase in value of Bigfoot Auto, a corporation of which Paul is a 65% shareholder; (2) money held for T's benefit; (3) the fishing vessel "Small Fry"; (4) fishing gear; and (5) a commercial fisheries entry permit for the drift gillnet fishery in Southeast Alaska. The trial court awarded Loretto the Small Fry, the permit, and the fishing gear. It found that during the course of the marriage the Small Fry had increased in value by $12,500, the permit by $6,000 and the gear by $2,500. The trial court awarded Paul his interest in Bigfoot Auto. The court found that the increase in value of Paul's share of the business exceeded the $21,000 by which the boat, permit and gear had increased in value. The court found that Paul had received, as a result of its award, the greater part of the couple's marital property. The court found that this division was justified by (1) its treatment of attorney fees, (2) the short duration of the marriage, and (3) Paul's contribution of pre-marital assets to the marriage. In its divorce decree, the court awarded Loretto actual attorney's fees in the amount of $28,112.53. Following the April hearing on Paul's motion for modification of visitation, the court awarded Loretto additional attorney fees. 1. The trial court did not err in its valuation of Paul's business. At trial Paul's expert witness testified that the "book value" of Paul's share of Bigfoot Auto increased by $7,021.00. Lor-etto introduced no expert testimony on the value of the business. The trial court apparently based its valuation on the corporation's federal income tax returns and on the expert's testimony on cross-examination. Paul contends the court erred in finding that his share of Bigfoot Auto increased in value during the marriage by more than $21,000. He contends that the trial court's valuation was without evidentiary basis. A trial court's valuation of marital property is reviewed only for clear error. Moffitt v. Moffitt, 749 P.2d 343, 346 (Alaska 1988). A decision is clearly erroneous where this court is left with a definite and firm conviction on the entire record that a mistake has been made. Martens v. Metzger, 591 P.2d 541, 544 (Alaska 1979). In valuing a marital asset, the court should look to the asset's fair market value. Richmond v. Richmond, 779 P.2d 1211, 1214-15 (Alaska 1989). Paul's expert, Mr. Kennedy, conceded that the "book value" of a corporation bears little relation to its fair market value. Thus, his testimony on direct examination was not relevant to the issue before the court. On cross-examination, Mr. Kennedy testified to the following facts: In 1983 gross sales for Bigfoot Auto were $245,000; in 1984, $352,652; in 1985, $450,734. Between 1983 and 1985, indebtedness on the business decreased from $141,000 to $80,-000. Over the same period, the corporation spent about $57,000 on improvements to the building which houses the business. The corporation's retained earnings increased by about $55,000. The trial court concluded that the corporation's "reduction of debt and addition of assets, including its unappropriated retained earnings," showed that Paul's equity interest in the corporation had in creased by more than $21,000. This conclusion is not clearly erroneous. 2. The trial court did not abuse its discretion in awarding attorney fees to Loretto. Following trial the court awarded Loret-to actual attorney fees of $28,112.53. Following the April hearing on Paul's motion for modification, the court awarded Loretto additional attorney fees. In each case the trial court based its award on the parties' relative economic situations and earning power. Paul contends that each of the trial court's awards of attorney fees constituted an abuse of discretion. As to the first award, Paul argues only that his request for custody was not frivolous and vexatious. Since the court's award was premised on economic disparity, his challenge is without merit. As to the second award, Paul argues in part that the court's award unfairly burdened his pursuit of T's best interests. The trial court applied the "divorce judgment standard" to Loretto's second request for attorney fees; that is, it considered the relative economic situations of the parties rather than prevailing party status. Neither the divorce judgment standard nor the prevailing party standard is appropriate in an action to modify or enforce a visitation order. L.L.M. v. P.M., 754 P.2d 262, 264-65 (Alaska 1988). Instead the trial court should consider whether the unsuccessful party has acted reasonably and in good faith. Id. Therefore, the trial court applied the wrong standard to Loretto's request for attorney fees. Nevertheless, we uphold the court's award. Following the April hearing, the trial court found: "it remains clear, by at least clear and convincing evidence, and in this court's view by evidence beyond a reasonable doubt, that Nelson . sexually abused [T]." The court dismissed Paul's theories as "patently incredible," and remarked that he had "purposely withheld information . and given lame rationalizations for doing so." Finally, the court stated: Nelson, perhaps because he cannot bear the stigma of admission, decided to back out from his stipulation, to make effective treatment impossible, and to insist, nevertheless, on visitation. Since he cannot be acting in good faith or in T's best interest, the court can only conclude that he is trying to salvage his reputation in his home town (Haines) at T's expense. The trial court's findings leave no doubt that Paul's motion for modification was unreasonable and in bad faith. Therefore, the trial court's award of attorney fees does not constitute an abuse of discretion. C. JUDGE PEGUES DID NOT ABUSE HIS DISCRETION IN DENYING PAUL'S MOTION FOR DISQUALIFICATION. In December 1987 Paul moved for recu-sal of Judge Pegues, who denied Paul's motion. Paul appeals. In order to prevail on his motion for disqualification, Paul was required to establish that the prior adverse' rulings were the result of personal bias developed from a nonjudicial source. State v. City of Anchorage, 513 P.2d 1104, 1112 (Alaska 1973). Judge Pegues's determination that Paul had failed to meet this test should be given substantial weight, and his ruling should be reviewed only for an abuse of discretion. Amidon v. State, 604 P.2d 575, 577 (Alaska 1979). In an affidavit submitted with his motion, Paul testified that he had observed Judge Pegues socializing with Barbara Walker, the guardian ad litem in this case. Paul argues that Judge Pegues's rulings reflect bias developed from this social meeting. In denying Paul's motion, Judge Pegues explained that his social meeting with Ms. Walker had occurred in the presence of his wife and had not involved discussion of this case. He further noted that social meetings with guardians ad litem and counsel were difficult to avoid in a community the size of Haines. Judge Pegues's explanation is adequate. His denial of Paul's motion was not an abuse of discretion. III. CONCLUSION The judgments of the superior court are AFFIRMED. RABINO WITZ, J., with whom MATTHEWS, C.J., joins, dissenting, in part. . Civil Rule 59 provides in part: A new trial may be granted to all or any of the parties and on all or part of the issues in an action in which there has been a trial by jury or in an action tried without a jury, if required in the interest of justice. On a motion for a new trial in an action tried without a jury, the court may take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment. . Civil Rule 60(b) provides in part: On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. .The court did not specifically address Paul's claim of "ineffective assistance of counsel." In support of his argument, Paul cited a number of criminal cases and malpractice cases. None of these cases suggests that "ineffective assistance of counsel" is a ground for setting aside a civil judgment. . In order to support a Rule 59 or Rule 60 motion, newly discovered evidence must be such as would probably change the result of a new trial. Cleary Diving Service v. Thomas, Head and Greisen, 688 P.2d 940, 943 (Alaska 1984). Nat'l Bank of Alaska, 416 P.2d at 244. . Reference to legal authority from other jurisdictions is an acceptable means of considering the reliability of testing methods. See, e.g., Pulakis v. State, 476 P.2d 474, 478 (Alaska 1970) (survey of legal and scientific judgments regarding polygraph tests). . By coincidence, Dr. Henry Adams, who testified on Paul's behalf, also testified on the father's behalf in Mr. G. Id. 534 N.Y.S.2d at 68. . This result finds support in Dutchess County Department of Social Services v. Mr. G., 141 Misc.2d 641, 534 N.Y.S.2d 64 (1988). In Mr. G" the court considered whether the parents' "refusal to admit, in counseling, that they committed any incestuous acts, can form the sole factual basis for a termination of their parental rights." Id. 534 N.Y.S.2d at 65. The court observed that in a number of cases "refusal to admit abuse has been a persuasive factor in restricting parental rights." Id. at 70. The court held that the need to prevent harm to the child overrode all other considerations, and it terminated the parents' rights. . Paul also contends that in dividing the parties' marital assets the court improperly considered Loretto's post-separation debt. This court has held that the trial court, in dividing marital property, should consider, among other factors, the parties' "financial circumstances." Merrill v. Merrill, 368 P.2d 546, 547-48 n. 4 (Alaska 1962). Post-separation debt is one aspect of the parties' "financial circumstances." The trial court did not abuse its discretion in considering this debt. . Paul asserts that this second award was for actual attorney fees in excess of $10,000. Nothing in the record supports or contradicts this assertion. . In its initial memorandum decision and order, the court recited as an alternative basis for its award of fees Paul's "frivolous and vexatious" request for custody. In a later memorandum, the court clarified its order: [T]he court awarded [fees] to Jones in their entirety based on the parties "relative economic situations and earning power." The court went on to hold that full fees and costs would also be appropriate on other grounds. It did not award them on those other grounds. ."This court may affirm a trial court's ruling even on different grounds from those advanced by the trial court as a basis for that ruling." Rutherford, v. State, 605 P.2d 16, 21, n. 12 (Alaska 1979).

10382195

Robert G. HILER, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee

Hiler v. Municipality of Anchorage

1989-10-20

No. A-2956

24

27

781 P.2d 24

781

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:09:08.575920+00:00

CAP

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

Robert G. HILER, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.

Robert G. HILER, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee. No. A-2956. Court of Appeals of Alaska. Oct. 20, 1989. John Holmes, Asst. Public Defender, and John B. Salemi, Public Defender, Anchorage, for appellant. James Hopper, Legal Intern, Elaine Von-drasek, Asst. Mun. Prosecutor, and Richard D. Kibby, Mun. Atty., Anchorage, for ap-pellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

1942

12041

OPINION PER CURIAM. Robert G. Hiler was convicted upon his plea of no contest to the charge of driving while intoxicated (DWI), in violation of Anchorage Municipal Code (AMC) § 9.28.020(c). District Court Judge Ralph Stemp sentenced Hiler to ninety days in jail with seventy days suspended and a $500 fine. The court also revoked Hiler's driver's license for one year. Hiler appeals, arguing that the district court erred in sentencing him as a second-time DWI offender, rather than as a first offender. We affirm. Hiler was arrested for DWI on May 31, 1984. He was released on his own recognizance after his arraignment on June 1, 1984. Hiler failed to appear for trial call on September 14, 1984, and had no further contact with the court until January, 1989. Hiler filed a request that the bench warrant issued by the court on September 14, 1984, be quashed. District Court Judge Michael L. Wolverton quashed the bench warrant, and Hiler subsequently appeared and pled no contest to the charge of DWI. At the sentencing hearing before District Court Judge Ralph Stemp, the municipal attorney argued that Hiler should be sentenced under AMC § 9.28.020(c)(2) as a second-time DWI offender, because he had previously been convicted of DWI in February, 1977. Hiler's defense counsel argued that the 1977 conviction should not be con sidered by the sentencing court, since it had occurred more than ten years prior to the entry of the present conviction. Judge Stemp rejected the defense argument, ruling that any DWI conviction entered in the ten years preceding the commission of a subsequent offense should be counted as a prior conviction for sentencing purposes, regardless of the date of the conviction for the subsequent offense. Anchorage Municipal Code § 9.28.020(c)(2) provides: c. Upon conviction under this section, the court shall impose a minimum sentence of: 2. Imprisonment of not less than 20 consecutive days and a fine of not less than $500 if, within the preceding 10 years, the person has been previously convicted once in this or another jurisdiction of driving while intoxicated under this or another law or ordinance with substantially similar elements or refusal to submit to a chemical test under AS 28.35.032, AMC 9.28.022 or another law or ordinance with substantially similar elements. Hiler argues that because he was not convicted of DWI within the ten years preceding his conviction for the present offense, he should not have received the second-offender sentence provided for in subsection (c)(2) of AMC § 9.28.020. He contends that the language of the ordinance is unambiguous, that it states definitively that the "preceding ten years" are calculated from the date of the new conviction. In Hiler's view, the introductory phrase "upon conviction under this section" establishes the time from which "the preceding ten years" is calculated. We disagree. The words "upon conviction under this section" unambiguously establish only the time at which sentence shall be imposed. The language of the ordinance is ambiguous as to the date from which prior convictions are to be measured. The language of AMC § 9.28.020(c)(2), under which Hiler was sentenced, is identical to that of AS 28.35.030(c), the state's DWI statute. We are aware of no specific legislative history for either the statute or the ordinance which sheds light on the issue presented in this case. Generally, ambiguous penal statutes are to be strictly construed in favor of the accused. State v. Robertson, 749 P.2d 902, 905 (Alaska App.1988); Conner v. State, 696 P.2d 680, 682 (Alaska App.1985). This rule, however, is not an absolute. As we stated in Belarde v. Anchorage, 634 P.2d 567 (Alaska App.1981): Strict construction does not require that statutes be given the narrowest meaning allowed by the language; rather, the language should be given "a reasonable or common sense construction, consonant with the objectives of the legislature." The intent of the legislature must govern and the policies and purposes of the statute should not be defeated. Id. at 568 (citing C. Sands, Sutherland Statutory Construction § 59.06, at 18-19 (4th ed. 1974)). Applying these principles, we are convinced that the legislature and the Anchorage Municipal Assembly intended that all DWI convictions entered in the ten years preceding the commission of a new offense would be considered prior convictions for the purpose of determining the sentence for that offense. The ultimate purpose of the statutes and ordinances prohibiting driving while intoxicated is to promote public safety. The interpretation we adopt here promotes that purpose by assuring that anyone who is caught driving while intoxicated within ten years of a previous conviction will receive the enhanced sentence designated for repeat offenders. The interpretation urged by Hiler would shorten the period during which a second or subsequent offense would be treated as such for sentencing purposes. For a second conviction to be entered within ten years of the first, the second offense would generally have to occur within only nine or nine and one-half years of the first conviction. Hiler's proposed interpretation would further frustrate the purpose of the ordinance by enabling a defendant to avoid the statutory penalties through scheduling de lays and failures to appear at scheduled hearings. In the present case, we are not confined to mere speculation as to the possibility of manipulation of the sentencing laws. Hiler's failure to appear for trial call as ordered by the court, followed by his four-year avoidance of an outstanding bench warrant, presents a particularly egregious example of the type of conduct that would be rewarded with a lesser sentence under the rule he urges us to adopt. Common sense tells us that the legislature and the municipal assembly could not have intended such a result, and nothing in the language or the background of the statutes convinces us otherwise. Finally, our interpretation of AMC § 9.28.020 is consistent with the rule that only those convictions entered prior to the commission of the current offense are counted as prior convictions. We first stated this rule in a case involving the presumptive sentencing statutes, State v. Rastopsoff, 659 P.2d 630, 636 (Alaska App.1983), and have since applied it to DWI convictions. Thomas v. State, 694 P.2d 789 (Alaska App.1985). In order to reconcile this rule with the rule proposed by Hiler, we would have to count as prior convictions only those convictions entered before commission of the current offense, but not more than ten years prior to conviction on the current offense. Here again, we would be dealing with an amorphous period of something less than ten years, its length in each case determined by fortune and/or cunning. Applying common sense to the statutory language, we conclude that the legislature and the municipal assembly intended that all DWI convictions entered against the defendant in the ten years prior to the commission of the current offense are to be considered prior convictions for sentencing purposes. Hiler's sentence is AFFIRMED. COATS, J., dissents. COATS, Judge, dissenting. Anchorage Municipal Code § 9.28.020(e) provides: c. Upon conviction under this section, the court shall impose a minimum sentence of: 2. Imprisonment of not less than 20 consecutive days and a fine of not less than $500 if, within the preceding 10 years, the person has been previously convicted once in this or another jurisdiction of driving while intoxicated under this or another law or ordinance with substantially similar elements or refusal to submit to a chemical test under AS 28.35.032, AMC 9.28.022 or another law or ordinance with substantially similar elements. (Emphasis added.) In interpreting a statute, we first look to the plain meaning of its words. "Upon conviction" is the time period directly referred to in the statute. The ordinance comes into play at the time of sentencing. A defendant is normally considered to be convicted when the court imposes sentence. Sawyer v. State, 663 P.2d 230 (Alaska App. 1983). The time when the defendant is sentenced on his second conviction therefore seems to be the point from which we would count back the ten-year period. This interpretation is consistent with the date from which we would count the defendant's first conviction: the date he was sentenced on the first offense. Criminal statutes must be narrowly read and strictly construed against the government. C. Sands, Sutherland. Statutory Construction § 59.04, at 13 (4th ed. 1974), Kinnish v. State, 777 P.2d 1179 (Alaska App., 1989). The majority's decision to read into the ordinance that the ten-year time period runs from when the defendant was sentenced on his first offense to when he committed his second offense appears to me to be inconsistent with the plain language of the statute and inconsistent with the policy of strict construction of criminal statutes. Perhaps this case is an illustration of the principle that "hard cases make bad law." The defendant in this case managed to evade the ten-year period because he failed to reappear after arraignment. It may very well make sense to have an ordinance which provides that the ten-year period should run from the time the defendant is sentenced on his first offense until the date he commits his second offense. This would prevent the defendant from being able to maneuver the effective date of his second conviction, as was done in this case. However, it is the municipal assembly's job to pass ordinances and set policy. It is our job to interpret the ordinances in a consistent and predictable manner. I am reluctant to "improve" the ordinance in the manner adopted by the majority opinion. Even if the mandatory minimum penalties which apply to a defendant convicted of a second offense within ten years did not apply to Hiler, nothing prevents the court from exercising its discretion to impose the same penalty. This would certainly seem appropriate since the only reason that Hiler would not fall under the mandatory minimum penalty for a second offender is because he did not appear. Therefore, I fail to see that relying on the plain meaning of the ordinance creates an irrational result. . We are also guided by the definition of "prior conviction" in another recidivist sentencing scheme, the presumptive sentencing statutes, AS 12.55.125-AS 12.55.165. See Tulowetzke v. State, 743 P.2d 368, 370 (Alaska 1987). Like the DWI statutes, the presumptive sentencing scheme addresses the problem of recidivism by prescribing increased sentences for repeat offenders. Because the two statutory schemes further the same purpose, we can assume in the absence of indications to the contrary that the legislature intended that prior convictions would have the same effect under both statutes. Alaska Statute 12.55.145(a)(1) provides: A prior conviction may not be considered if a period of 10 or more years has elapsed between the date of the defendant's unconditional discharge on the immediately preceding offense and commission of the present offense unless the prior conviction was for an unclassified or class A felonyf.] (Emphasis added.) With this statute the legislature explicitly designated the date of the commission of the subsequent offense as the operative date for the calculation of prior convictions. We believe that the legislature's intent is consistent throughout the various recidivist sentencing statutes: that a person who cannot go for ten years after the discharge of one offense without committing another offense is to be sentenced as a repeat offender.

10396253

CTA ARCHITECTS OF ALASKA, INC., an Alaska Corporation; CTA Architects Engineers, Inc., a Montana Corporation; and Hoffman Construction Company of Oregon, Appellants, v. ACTIVE ERECTORS & INSTALLERS, INC., Kenai Peninsula Borough; Industrial Indemnity Company of the Northwest; Foss Alaska Lines; and Seaboard Surety, Appellees

CTA Architects of Alaska, Inc. v. Active Erectors & Installers, Inc.

1989-11-09

Nos. S-2823, S-2824

1364

1368

781 P.2d 1364

781

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:09:08.575920+00:00

CAP

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

CTA ARCHITECTS OF ALASKA, INC., an Alaska Corporation; CTA Architects Engineers, Inc., a Montana Corporation; and Hoffman Construction Company of Oregon, Appellants, v. ACTIVE ERECTORS & INSTALLERS, INC., Kenai Peninsula Borough; Industrial Indemnity Company of the Northwest; Foss Alaska Lines; and Seaboard Surety, Appellees.

CTA ARCHITECTS OF ALASKA, INC., an Alaska Corporation; CTA Architects Engineers, Inc., a Montana Corporation; and Hoffman Construction Company of Oregon, Appellants, v. ACTIVE ERECTORS & INSTALLERS, INC., Kenai Peninsula Borough; Industrial Indemnity Company of the Northwest; Foss Alaska Lines; and Seaboard Surety, Appellees. Nos. S-2823, S-2824. Supreme Court of Alaska. Nov. 9, 1989. John R. Neeleman, Lane, Powell & Barker, Anchorage, for appellants CTA Architects of Alaska, Inc. and CTA Architects Engineers, Inc. David Pease, Biss and Holmes, Anchorage, for appellees Active Erectors & Installers, Inc. and Indus. Indem. of the Northwest. Before MATTHEWS, C.J., and RABINOWITZ, BURKE, COMPTON and MOORE, JJ.

2209

13804

OPINION COMPTON, Justice. After trial, Active Erectors and Installers, Inc. (Active) was awarded costs under Alaska Civil Rule 79 for paralegal services and computer research, and for expert fees incurred in exhibit preparation. CTA Architects of Alaska, CTA Architects Engineers, Inc. and Hoffman Construction Company of Oregon (collectively CTA) challenged the trial court's award. I. STATEMENT OF FACTS This ease arises from the construction of the Homer High School in Homer, Alaska (project). The Kenai Peninsula Borough (Borough) is the owner of the project. CTA designed the project. Hoffman was the general contractor. Active was a subcontractor. After a bench trial, the court found CTA liable to Active for damages resulting from professional negligence. The court found Hoffman liable to Active for damages resulting from breach of implied warranty, breach of contract and negligent misrepresentation. The court awarded Active damages of $426,343 against CTA and Hoffman. The court also awarded Active attorney fees in the amount of $59,546. In refusing to depart from the fee schedule set out in Alaska Civil Rule 82(a)(1), the court remarked that Active's request for damages had been severely inflated and that many of Active's claims were without merit. The court also remarked that Active, like other parties to the litigation, had adopted unreasonable litigation and settlement positions. Active requested $247,709.77 in costs. The clerk taxed $49,464.64 in favor of Active, denying, among others, its claims for the costs of exhibit preparation, paralegal services, and computer research. Active moved the court to review the clerk's taxation of costs. It requested $65,-826.25 in expert fees incurred in preparation of exhibits, $8,994 in computer research costs and $24,211.45 in paralegal costs. In addition to the costs taxed by the clerk, the court awarded Active the full amount of Active's paralegal and computer research costs, and $20,000 in exhibit preparation costs. CTA appeals the trial court's award of costs. II. DISCUSSION A. STANDARD OF REVIEW. This appeal raises questions of law and policy. This court is not bound by a trial court's resolution of questions of law, but instead is required to adopt the rule of law which is most persuasive in light of precedent, reason and policy. Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). To the extent that an award of costs is consistent with the legal principles adopted by this court, the award is committed to the broad discretion of the trial court and will not be disturbed on appeal, absent a clear showing that the trial court's determination was arbitrary, capricious or manifestly unreasonable, or that it stemmed from an improper motive. Alyeska Pipeline Service Co., Inc. v. Beadles, 731 P.2d 572, 575 (Alaska 1987). B. THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING ACTIVE COSTS FOR EXPERT PREPARATION OF EXHIBITS. Active requested, as costs incurred in preparing exhibits, expert fees in the amount of $65,826.25. The clerk denied Active's request. Active moved the trial court for review of the clerk's denial. The trial court, acting pursuant to Alaska Civil Rule 79, awarded Active $20,000 of the requested fees. The fees requested by Active reflect the work performed by three experts in preparing exhibits for trial: Bruce Campbell 546.75 hours @ $75 per hour = $41,-006.25 Scott MacKay 34 days @ $275 per day = $9,350.00 Donald Casad 182 hours @ $85 per hour = $15,470.00 Exhibits prepared by Bruce Campbell include a 69-page written report and several volumes of compiled documents. Exhibits prepared by Donald Casad and Scott MacK-ay include various drawings, tabulations and handwritten notes. Each of the three experts testified at trial, and each excluded from his billed exhibit preparation time "incurred by me for general preparation of my . deposition[ ] and trial testimony." CTA argues that the trial court abused its discretion in awarding expert fees for exhibit preparation. Active's sole contention is that expert fees incurred in preparing exhibits may be recovered as costs under Civil Rule 79. Civil Rule 79(b) provides in part that a party entitled to costs may be allowed "the necessary expense of . producing exhibits." Active asserts that the trial court did not err in concluding that the expert fees could be recovered as part of the expense of producing exhibits. Active misconstrues the term "producing." Active's argument assumes that to "produce" is "to compose, create, or bring out by intellectual or physical effort." Webster's Third New International Dictionary 1810 (1969). The term finds a different use in Alaska Civil Rule 34, which provides in part: Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on his behalf, to inspect and copy, any designated documents (including writings, drawings, graphs, charts, photographs, phono-records, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form), or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of Rule 26(b) and which are in the possession, custody or control of the party upon whom the request is served.... (Emphasis added). This use of the term "produce" comports with its common legal definition: "To bring forward; to show or exhibit...." Black's Law Dictionary 1088 (5th ed. 1979). The context in which the term "producing" appears in Civil Rule 79(b) indicates that the term was intended to be read in accord with this latter definition. The rule provides in part: A party entitled to costs may be allowed premiums paid on the expenses of posting, undertakings, bonds or security stipulations, where the same have been furnished by reason of express requirement of law or on order of the court; the necessary expense of taking depositions for use at trial and producing exhibits; and the expense of service and publication of summons or notices, and postage when the same are served by mail; filing fees and other charges made by the clerk of the court and fees for transcripts required in the trial of a case in the superi- or court. (Emphasis added). The clause in which the term "producing" appears is addressed to costs incurred during discovery. Thus, the term "producing" is used in its common legal sense; it is intended to capture costs incurred in bringing forward documents or objects in response to a request by an opposing party. When such documents or objects are offered as exhibits at trial, the cost of "producing" them may be recovered under Civil Rule 79. The basis upon which Active seeks to justify the trial court's award on expert fees fails. Because Active offers no other basis for upholding the award, the award must be set aside as an abuse of discretion. C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN AWARDING ACTIVE 100% OF ITS PARALEGAL AND COMPUTER RESEARCH COSTS. Active also requested as costs $10,-070.00 for computer research and $24,- 211.45 for paralegal services. The clerk denied Active's request. Active moved the trial court to review the clerk's denial and modified its request to include only $8,994.00 in computer research costs. The trial court, acting pursuant to Alaska Civil Rule 79, awarded Active 100% of its paralegal and computer research costs. CTA contends that paralegal and computer research costs are analogous to attorney fees and should accordingly be considered under Civil Rule 82 rather than Civil Rule 79. Alternatively, CTA contends that even if requests for paralegal and computer research costs are appropriately considered under Rule 79, trial courts should not be permitted to award the full amount of such costs. CTA's arguments are without merit. This court has held that "computer research and paralegal expenses are correctly characterized as costs and, if recoverable, should be requested under Civil Rule 79(b)." Atlantic Richfield Co. v. State, 723 P.2d 1249, 1253 (Alaska 1986); see also Smith v. Shortall, 732 P.2d 548, 550 n. 1 (Alaska 1987). Unlike attorney fees, costs appropriately considered under Civil Rule 79 may be awarded in full. The trial court did not abuse its discretion in awarding Active the full amount of its paralegal and computer research costs. III. CONCLUSION The decision of the superior court is AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion. . Active requested actual attorney fees in the amount of $624,391.79. . In its proposed findings of fact, Active sought $961,492 in direct damages and $1,035,000 in consequential damages. . Counsel appearing for Active on appeal did not represent Active at trial. . Our interpretation of the word "producing" as used in Civil Rule 79 is consistent with the legislative history of the rule. The provision allowing for the recovery of "the necessary expense of . producing exhibits" was added to Civil Rule 79 by amendment in 1963. During the consideration of the amendment, Justice Dimond requested "an example of costs involved in 'producing exhibits."' The amendment's drafter, R. Everett Harris, responded as follows: With regard to the language 'necessary expenses of . producing exhibits' it was my intention that this would cover situations where a party preserved and protected exhibits or transported them to the court, and would be allowed such expenses in the same manner as witnesses may be allowed fees for transportation and such fees allowed as costs.

10393671

Raymond W. SCHUENEMANN, Appellant, v. STATE of Alaska, Appellee

Schuenemann v. State

1989-11-03

Nos. A-2710, A-2736

1005

1009

781 P.2d 1005

781

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:09:08.575920+00:00

CAP

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

Raymond W. SCHUENEMANN, Appellant, v. STATE of Alaska, Appellee.

Raymond W. SCHUENEMANN, Appellant, v. STATE of Alaska, Appellee. Nos. A-2710, A-2736. Court of Appeals of Alaska. Nov. 3, 1989. Marcia E. Holland, Asst. Public Defender, Fairbanks, and John B. Salemi, Public Defender, Anchorage, for appellant. Tonja Woelber, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage and Douglas B. Baily, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

2610

16548

OPINION COATS, Judge. Raymond W. Schuenemann pled no contest and was convicted of five counts of sexual assault in the first degree, AS 11.-41.410(a)(1), two counts of attempted sexual assault in the first degree, AS 11.31.-100(a) and AS 11.41.410(a)(2), and three counts of burglary in the first degree, AS 11.46.300(a). Superior Court Judge Jay Hodges imposed a composite sentence of sixty-nine years of imprisonment. In entering his plea, Schuenemann preserved his right to appeal the denial of his motion to suppress his confession. He also appeals his sentence. We affirm. Schuenemann moved to Alaska in 1982. He was arrested in Anchorage for indecent exposure in 1983. He was sentenced to six months, with six months suspended, and received professional counseling from a doctor at Langdon Clinic. In 1985, Schuen-emann was living in Chugiak with his wife and newborn son and was working as a civilian employee on Elmendorf Air Force Base. Beginning in March 1985, and ending in April 1987, Schuenemann raped two women and attempted to rape two others. All of the women were strangers to Schuene-mann and lived in Anchorage. In each case, Schuenemann would break into the woman's home in the early morning hours, forcibly overcome the woman's resistance, and sexually attack her. In 1987, Schuenemann was sent to Fairbanks by his employer to work on a temporary construction project. His family stayed in Chugiak. Schuenemann raped his first Fairbanks victim on July 16, 1987. On August 2nd, he raped another woman. On August 5th or 6th, he attempted to rape a third woman. On August 14th, he attempted to rape a fourth woman. On August 18th, he raped his fifth Fairbanks victim. Three of these sexual assaults took place at Wedgewood Manor, a housing complex in Fairbanks. The police staked out Wedgewood Manor on August 26, 1987. At 1:00 a.m., the police spotted a large man fitting the description of the rapist sneaking around on the second floor balcony of the P Building of Wedgewood Manor. When the police yelled for Schuenemann to stop, he threw some objects into the bushes and tried to run, but he was soon apprehended. The items thrown by Schuenemann were retrieved: a flashlight and a key to room P-11, Wedgewood Manor. One of the prior rapes had occurred in room P-11. The police took Schuenemann to police headquarters, read him his Miranda rights, and questioned him. He was taken to an interview room at the station. The police gave Schuenemann a soda which he drank throughout the interview. The police questioned him about his activities of that night and his connection with reported rapes in the area. Schuenemann confessed to all of the Fairbanks assaults as well as to the four Anchorage assaults. Schuenemann moved to suppress his confessions on the grounds that they were not given voluntarily. He argues that he received an implied promise of leniency from his interrogators in exchange for his confessions. He claims these inducements overbore his will to resist and resulted in confessions not freely self-determined. Schuenemann argues that the police minimized the moral seriousness of the offenses and assured him that they viewed his problem as a medical one. Schuene-mann claims the police induced him to confess by assuring him that he had only a medical problem, not a criminal one. Although the police did make statements to Schuenemann recognizing that his problem was medical, they did not imply that he faced no criminal charges. In fact, two investigators who talked to him guaranteed Schuenemann that he would go to trial for sexual assault. And, although the third investigator emphasized that Schuene-mann's problem was medical, both the investigator and Schuenemann at one point agreed that there was a criminal problem, too. In addition, Schuenemann had previously spent eight years in a Texas prison for committing a sexual assault. Schuene-mann, from experience, knew that he faced substantial criminal charges. The standard for reviewing whether a confession is involuntary because it was induced by promises or inducement by the police is set forth in United States v. Ferrara, 377 F.2d 16, 17 (2d Cir.1967), cert. denied 389 U.S. 908, 88 S.Ct. 225, 19 L.Ed.2d 225 (1967) (citations omitted, brackets in original): The Supreme Court has consistently made clear that the test of voluntariness is whether an examination of all the circumstances discloses that the conduct of "law enforcement officers was such as to overbear [the defendant's] will to resist and bring about confessions not freely self determined." See Stobaugh v. State, 614 P.2d 767, 772-73 (Alaska 1980); Harris v. State, 678 P.2d 397, 405 (Alaska App.1984), rev'd on other grounds sub nom Stephan v. State, 705 P.2d 410 (Alaska 1985) opinion issued at 711 P.2d 1156 (Alaska 1985). In Plant v. State, 724 P.2d 536, 541 (Alaska App.1986) (citations omitted), we stated: "In determining whether a confession is voluntary, this court makes an independent determination based on the entire record.... The factual findings, however, will only be reversed if clearly erroneous." We have reviewed the videotape of the interrogation. During the interrogation, the police were in plain clothes and were unarmed. For the most part, Schuen-emann faced one investigator at a time. Schuenemann addressed the investigators by their first names and had been provided with a soft drink. He was not restrained and was allowed to move around in the interrogation room. Although the police emphasized Schuenemann's medical problem, they did not, even indirectly, tell him that he did not face criminal charges. We find that under the totality of the circumstances, the police did not overbear Schuen-emann's will and his confession was voluntary. The trial court did not err in denying Schuenemann's suppression motion. Schuenemann next raises several issues concerning his sentence. Schuenemann pled no contest to twelve felony offenses. He had previously been convicted for burglary in Texas, so he was a second felony offender for presumptive sentencing purposes. Sentencing Judge Jay Hodges found two aggravating factors: that Schuenemann used a dangerous weapon during two of the Fairbanks offenses, AS 12.55.155(c)(4); and that Schuenemann had a criminal history similar in nature to the offenses for which he was being sentenced, AS 12.55.155(c)(21). Schuenemann does not contest the applicability of these aggravating factors. However he contends that Judge Hodges erred in rejecting two mitigating factors which Schuenemann proposed and in refusing to refer Schuene-mann's case to the three-judge panel. Schuenemann argues that the court erred in rejecting the mitigator that his three burglary convictions were among the least serious conduct included in the definition of the offenses. AS 12.55.155(d)(9). He argues that the burglaries were committed only to obtain keys. Judge Hodges found that the keys taken during at least one burglary were later used to commit a sexual assault. He also found that Schuen-emann's intent in committing all three burglaries, as shown by his modus operandi, was to facilitate sexual assaults. He therefore rejected the proposed mitigating factor. Schuenemann had the burden of proving the applicability of a mitigating factor by clear and convincing evidence. AS 12.55.155(f). We conclude that Judge Hodges did not err in rejecting this mitigating factor given his findings, which are supported by the record, that Schuenemann committed the burglaries to facilitate sexual assaults. Schuenemann also argues that Judge Hodges should not have rejected the mitigating factor that Schuenemann committed all the offenses under some degree of compulsion "insufficient to constitute a complete defense, but which significantly affected the defendant's conduct." AS 12.-55.155(d)(3). In Bynum v. State, 708 P.2d 1293, 1294 (Alaska App.1985), we said: "[F]or a defendant to establish the mitigating factor that he acted under compulsion, the compulsion must be of a sufficiently extraordinary nature that it approaches being a defense to the crime." We found in Bynum's case that the compulsion was the sort which would be ordinary and expected in the commission of Bynum's offense. Id. Schuenemann had the burden of proving with clear and convincing evidence that his compulsion was of a sufficiently extraordinary nature that it approached being a defense to the crime. Judge Hodges could properly find that Schuenemann's evidence of compulsion was no more persuasive than was Bynum's, and that Schuenemann's compulsion was ordinary and the sort expected in the commission of sexual assaults. We conclude that Judge Hodges did not err in rejecting this mitigator. Schuenemann next argues that his case should have been referred to a three-judge panel. We find this argument merit-less. Schuenemann was a forty-year-old, second felony offender who was facing sentencing on several serious felonies. The trial court, had it chosen to do so, could have imposed a minimum sentence of fifteen years imprisonment by making all of Schuenemann's . sentences concurrent. There was no reason for the court to refer this case to the three-judge panel. Judge Hodges did not err in refusing to refer this case to the three-judge panel. Schuenemann argues that his sentence is excessive. Schuenemann's sentence of sixty-nine years of imprisonment was an extremely high sentence. Schuene-mann points out that neither this court nor the supreme court has approved a sentence of this length for a crime other than murder. In sentencing Schuenemann, Judge Hodges recognized that Schuenemann had several points in his favor. He noted Schuenemann's exemplary work history and exemplary military record. However, Judge Hodges pointed out that Schuene-mann was forty-years-old at the time of sentencing and that the record established that Schuenemann has a long history of sexually deviant behavior which has culminated in serious criminal behavior. According to the psychological reports, Schuenemann recalled enjoying exposing himself as a young child. Later, at age thirteen, he exposed himself in public and was picked up by the police. A short time after this, he was picked up by the police for indecent exposure in Texas. From age fourteen through approximately sixteen, Schuenemann began burglarizing houses at night because it was a way of exposing himself to the sleeping occupants of those houses. In 1966, he was arrested for one of these incidents and charged with burglary of a private residence in the nighttime. He was sixteen at the time of this offense. Schuenemann was given a suspended imposition of sentence. He successfully completed two years of probation and the case was dismissed. Schuenemann's most serious prior conviction was for burglary with the intent to commit rape. It appears that the charges involved a completed rape. Schuenemann was originally sentenced in 1971 to a term of ninety-nine years of imprisonment on this charge. However, the case was reversed on appeal, and Schuenemann was ultimately convicted of burglary and sentenced to sixteen years. Schuenemann was paroled after serving eight years and was discharged from parole in 1980. Schuenemann also has several convictions for incidents involving indecent exposure. Schuenemann received a letter of reprimand for a misdemeanor conviction for disorderly conduct for an incident of indecent exposure which occurred in 1979 while he was on parole. In 1981, Schuene-mann was convicted of lewd conduct in Utah. He was also convicted of indecent exposure in Anchorage in 1983. In his psychological examinations and his statements to the police, Schuenemann admitted numerous sexual offenses against women, including numerous rapes and attempted rapes which did not result in criminal penalties. Although the psychological reports indicate that Schuenemann is intelligent, has some insight into his problem, and desires to change his behavior, the reports also show a long term pattern of sexual deviancy which is compulsive and which Schuenemann has not been able to change. Schuenemann's current offenses also illustrate Judge Hodges' conclusion that he was a particularly dangerous offender. Schuenemann was convicted of twelve felonies, including five first-degree sexual assaults, four attempted sexual assaults, and three first-degree burglaries. Schuene-mann frequently broke into residences to commit his sexual assaults and frequently threatened to kill or stab his victims. In three of the incidents involving sexual assault, Schuenemann made threats to his victims that he would kill their young children who were present in the residence. Schuenemann has cited several of our previous cases, arguing that his sentence is excessive in comparison to those cases. In Nix v. State, 653 P.2d 1093, 1100-01 (Alaska App.1982), we limited Nix's sentence to forty years of imprisonment for a series of several sexual assaults. Nix was a third felony offender with an extensive criminal record. However, Nix was only twenty-four years old at the time of his offenses. Although he had established an extensive criminal record, in Nix's case it was not as clear that he had established a lengthy, compulsive, and apparently untreatable pattern of sexually assaultive behavior. In Murray v. State, 770 P.2d 1131, 1139-1143 (Alaska App.1989), Murray was on parole for a prior conviction of murder in the second degree for which he had served five years when he was convicted of two counts of sexual abuse of a minor in the first degree. In Murray, we placed great emphasis on Murray's serious prior conviction, the fact that he was on parole, and the presence of six aggravating factors which pertained to his sexual abuse of a minor convictions. We found that the sixty-year sentence imposed by the trial judge was excessive and ordered Murray's sentenced reduced to sixty years with ten years suspended. Id. at 1144. Murray was forty-one, approximately Schuenemann's age. His prior conviction was for a more serious offense. However, Schuenemann's current offenses involved numerous victims. Murray's offenses involved two victims. Although Murray's prior offense was more serious, Schuenemann's prior offense, for which he served a substantial sentence of eight years, involved a similar crime. Schuenemann's criminal history thus seems to establish an ingrained, compulsive criminal pattern. In Goolsby v. State, 739 P.2d 788 (Alaska App.1987), Goolsby was sentenced for three counts of sexual assault in the first degree and one count of attempted sexual assault. We found a sentence of thirty-seven years with twelve years suspended not to be clearly mistaken. Goolsby had no prior convictions and had a good military and employment record. Goolsby did use a knife in the sexual assaults; in that respect his offenses were similar to Schuene-mann's, although there were not as many incidents. However, Goolsby's lack of pri- or convictions and the lack of an established pattern of sexually deviant behavior make his case substantially more favorable than Schuenemann's. Judge Hodges concluded that based upon the seriousness of Schuenemann's current offenses and his prior criminal history, Schuenemann should be incarcerated for the rest of his life. In Contreras v. State, 767 P.2d 1169, 1175 (Alaska App.1989), we stated: [W]e are satisfied that this is one of the very few cases in which the trial court could determine, based on a defendant's past proven criminal record, that he should be under correctional supervision for the remainder of his life. When a trial judge finds, based upon substantial evidence, that a person will remain a danger to the community for the remainder of his or her life, a sentence of ninety-seven years with thirty-two years suspended is not clearly mistaken. We conclude that Schuenemann's case, like that of Contreras', is one of those rare cases where the trial court is not clearly mistaken in imposing a sentence which essentially requires the defendant to be under correctional supervision for the remainder of his life. The sentence is therefore AFFIRMED.

10417118

STATE of Alaska, Appellant, v. Bruce NELLES, Appellee

State v. Nelles

1986-02-07

No. A-995

806

810

713 P.2d 806

713

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:08:26.184312+00:00

CAP

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

STATE of Alaska, Appellant, v. Bruce NELLES, Appellee.

STATE of Alaska, Appellant, v. Bruce NELLES, Appellee. No. A-995. Court of Appeals of Alaska. Feb. 7, 1986. Jeffery O'Bryant, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Harold M. Brown, Atty. Gen., Juneau, for appellant. Raymond Funk, Asst. Public Defender, Fairbanks, and Dana Fabe, Public Defender, Anchorage, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

2755

16875

OPINION BRYNER, Chief Judge. The state appeals from a district court dismissal of a misdemeanor assault charge against Bruce Nelles. Judge H.E. Crutch-field dismissed the charge pursuant to the misdemeanor civil compromise statute. We affirm. BACKGROUND While intoxicated, Nelles struck his girlfriend, Mary M. Henry, on the mouth with his fist. Henry's injury required four stitches. She filed a citizen arrest form seeking Nelles' arrest. At a bail hearing before Judge Crutch-field, Nelles' attorney moved for dismissal. He submitted a statement titled "Compromise of Criminal Action," which was signed by Henry and stated: Comes now the injured party in the above-entitled action, Mary Henry, and hereby acknowledges that he/she has received satisfaction for the injury to his/her person and further states that he/she does not wish to proceed with this action, since he/she has received satisfaction for injury to his/her person from the Defendant, Bruce Nelles. The state opposed Nelles' motion for dismissal. The court allowed Nelles' counsel to examine Henry under oath. Henry testified that she and Nelles intended to marry, that he had never assaulted her on any other occasion during their one year together, that none of her clothes had been torn, that she had not incurred any medical expenses, that she was unemployed at the time of the assault, had lost no wages, and that she did not want any civil compensation from Nelles. Judge Crutchfield further questioned Henry: Court: (to witness) I don't know whether Mr. Wildridge, in taking this written statement from you, explained the provisions of Title 12.45.120-130, which I'm obviously looking at. And, I think the basis for this is to not prosecute some cases but by the same time the legislature recognizes that the court system and the police, and the prosecutor should not be some type of a buffer zone and have their time taken up with boy-girl relations, okay? Henry: I understand. Court: And, there's some provisions for costs and I've never been clear about who the costs should be assessed against, whether it's the defendant or the witness who brings the charges, and, then — you are aware, of course, that there's a possibility that if I grant it, that I may, based upon the court's time and everybody's time, I may have to assess some costs — before it would be dismissed? Did you understand that? Henry: (inaudible) Court: Okay. Court: You're not frightened of Mr. Nelles I take it then, you, he didn't try to talk you into doing this or threatening you in any way? Henry: No. Judge Crutchfield initially denied Nelles' motion to dismiss. After Nelles moved for reconsideration, however, Judge Crutch-field ordered the case dismissed "pursuant to. the civil compromise provisions" and "upon payment of $100 costs." The state has appealed the order of dismissal. DISCUSSION "In theory there should be no compromises of criminal cases." Miller, The Compromise of Criminal Cases, 1 So.Cal.L. Rev. 1 (1927). And in practice, "the civil and criminal law operate independently of one another so that resolution of a victim's civil rights and remedies has no effect upon criminal prosecution." People v. Moulton, 131 Cal.App.3d Supp. 10, 182 Cal.Rptr. 761, 766 (1982). "An exception to this principle exists, however, where a statute specifically authorizes a compromise of the criminal, as well as the civil, liability arising out of certain conduct." Annot., 42 A.L.R.3d 315, 318, § 2[a]. Many states, including Alaska, have adopted such statutes, allowing judicially-sanctioned compromises and dismissals of criminal charges. It appears that Alaska's civil compromise statutes derived from the same source as most other similar statutes, a 1813 New York statute that read: That in all cases where a person shall, on the complaint of another, be bound by recognisance to appear, or shall, for want of surety, be committed, or shall be indicted for an assault and battery, or other misdemeanor, to the injury and damage of the party complaining, and not charged to have been done riotously or with intent to commit a felony, or not being an infamous crime, and for which there shall also be a remedy by civil action, if the party complaining shall appear before the magistrate who may have taken the recognisance, or made the commitment, or before the court in which the indictment shall be, and acknowledge to have received satisfaction for such injury and damage, it shall be lawful for the magistrate in his discretion to discharge the recognisance, &c. or for the court also in their discretion, to order a nolle prosequi to be entered on the indictment. 1 N.Y.R.L. § 19 (1813), quoted in People v. Moulton, 131 Cal.App.3d Supp. 10, 182 Cal. Rptr. 761, 765 (1982). The purpose of the statute was to encourage the amicable resolution of disputes that were primarily private in nature: The policy underlying compromise statutes was explained by the New York Commissioners on Practice and Pleading in 1849 as follows: There are many cases, which are technically public offenses, but which are in reality rather of a private than a public nature, and where the public interests are better promoted by checking than by encouraging criminal prosecutions. Of this class are libels, and simple assaults and batteries; or those which according to [the civil compromise statute], are not committed by or upon an officer of justice, while in the execution of the duties of his office, or riotously, or with an intent to commit a felony. With these exceptions, cases of this nature have by the policy of our statutes, always been considered fit subjects of compromise .; a policy which has been carried by the courts, still further than the terms of the statute. People v. Moulton, 182 CaLRptr. at 766 (citations omitted). Alaska's civil compromise statutes are contained in AS 12.45.120-12.45.140, which state: Sec. 1245.120. Authority to compromise misdemeanors for which victim has civil action. When a defendant is held to answer on a charge of misdemeanor for which the person injured by the act constituting the crime has a remedy by a civil action, the crime may be compromised except when it was committed (1) by or upon a peace officer, judge or magistrate while in the execution of the duties of that office; (2) riotously; (3) with an intent to commit a felony; (4) larcenously. Sec. 12.45.130. Acknowledgment of satisfaction by injured party. If the party injured appears before the court in which the defendant is bound to appear, at any time before trial, and acknowledges in writing that satisfaction has been received for the injury, the court may, on payment of the costs incurred, order the prosecution dismissed and the defendant discharged. The order is a bar to another prosecution for the same crime. Sec. 12.45.140. Compromise or stay upon compromise by other means prohibited. A crime may not be compromised or the prosecution or punishment upon a compromise dismissed or stayed except as provided by law. In this case, the state initially contends that these statutes violate the separation of powers doctrine. The state relies upon State v. Carlson, 555 P.2d 269, 271-72 (Alaska 1976), and Public Defender Agency v. Superior Court, 534 P.2d 947, 951-52 (Alaska 1975). It argues that the district court's order of dismissal amounts to "a usurpation of the executive power residing in the state district attorney's office to bring charges and determine their disposition." We find this argument to be without merit. In State v. Carlson, the defendant was indicted for murder, but the trial court, against the state's opposition, agreed to accept a guilty plea to the lesser offense of manslaughter. No statute or rule permitted the trial court to accept such a plea. The supreme court reversed, finding that the trial court's decision would "usurp the executive function of choosing which charge to initiate_" 555 P.2d at 272. In Public Defender Agency v. Superior Court, the trial court ordered the state to prosecute a civil action for child support. The supreme court similarly concluded that the separation of powers doctrine had been violated, holding that "the Attorney General cannot be controlled in either his decision of whether to proceed, or in his disposition of the proceeding." 534 P.2d at 950. In the present case, there was no judicial interference with the prosecution's initial decision to charge Nelles. Judge Crutchfield did subsequently exercise his discretion to dismiss the case. Yet this dismissal was expressly authorized by the legislature. AS 12.45.120, 12.45.130. There is no suggestion in the civil compromise statutes that the court's power to dismiss is conditioned upon the agreement of the prosecutor. In fact, the contrary appears to be the case. See Annot., 42 A.L.R.3d 315, 319 (a common condition precedent under compromise statutes is the consent of either the court or the prosecutor). See also Hoines v. Barney's Club, Inc., 28 Cal.3d 603, 170 Cal.Rptr. 42, 47, 620 P.2d 628, 633 (1980) (in explaining the civil compromise statute, the court stated that the prosecutor has no role in a dismissal of civil compromise). The state has cited no case purporting to hold that prose-cutorial consent to a civil compromise is necessary as a matter of constitutional law, and we are aware of none. Because the court's authority to compromise misdemeanors has been expressly conferred by the legislature, we find the present case readily distinguishable from State v. Carlson and Public Defender Agency v. Superior Court, and we conclude that there is no separation of powers violation made out here. The state's next argument is that crimes arising from domestic disputes should not be amenable to civil compromise. Certainly, the state has a valid concern: that domestic assaults not go unpunished merely because the victims wish to withdraw their complaints in the hope that no further abuse will occur. However, the state cites no support for the argument that public policy mandates a judicially created exception to the civil compromise statute. The statute, in its current form, does not exempt domestic disputes. Amendment to create additional exceptions is clearly a matter of legislative, rather than judicial, concern. Moreover, we note that, under the Alaska civil compromise statute, the decision whether to dismiss or prosecute is vested in the sound discretion of the trial court, and no right to dismissal is conferred upon the accused. In cases of domestic violence that appear to involve a continuing danger of injury to the victim, it could well be an abuse of discretion for the trial court to order dismissal. In the present case, however, the state has not suggested any ongoing danger to the victim, and the record contains nothing to indicate that Judge Crutchfield abused his discretion in this regard. The state further argues that the civil compromise statute engenders conflict with the Alaska Code of Professional Responsibility, Disciplinary Rule 7-105(A), which states that "[a] lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter." See, e.g., MacDonald v. Musick, 425 F.2d 373 (9th Cir.1970) (prosecutorial misconduct where charge of resisting arrest was introduced as "bludgeon" behind the attempt to defeat a possible civil action by the arres-tee for false arrest). This rule is plainly inapplicable here. Dismissal of a case upon civil compromise simply does not imply that the case was prosecuted "solely to obtain an advantage in a civil matter." Judge Crutchfield's dismissal of the case is AFFIRMED. . AS 12.45.120-.140; Ariz.Rev.Stat.Ann. § 13-3981 (1978); Cal.Penal Code § 1377-79 (West 1982); Idaho Code Ann. § 19-3401-3403 (1979); Mass.Gen.Laws Ann. ch. 276, § 55 (West 1972); Nev.Rev.Stat. § 178.564-568 (1983); Okla.Stat. Ann. tit. 22, § 1291-94 (West 1958); Or.Rev.Stat. § 135.703-709 (1983); Pa.Stat.Ann. tit. 19, 26 (Purdon 1964); Utah Code Ann. § 77-50-1 to -3 (1978). . In large part, the laws of Alaska are derived from those of Oregon. F. Brown, The Sources of the Alaska and Oregon Codes, Part I, 2 U.C.L. A.-Alaska L.Rev. 15, 16 (1972). The Alaska civil compromise statutes appear to first have been adopted in 1900 and to have been derived from the Oregon Civil Compromise Statutes. See Ann.Alaska Codes, Pt. II, ch. 28, § 253-256 (Carter 1900) (the Alaska statute refers to the Oregon law, presumably as its source). See infra, n.3. The Alaska statutes also had virtually identical wording to the Oregon statutes. Compare Ann.Alaska Codes, Pt. II, ch. 28, § 253-256 (Carter 1900) with Gen.Laws of Or., Code of Crim.Proc., ch. XXX, § 315-318 (Deady 1845-1864); renumbered, Ann.Laws of Or., Crim.Code tit. I, ch. XXX, § 1519-1522 (Hill 1892); renumbered, Or.Laws, tit. XVIII, ch. XV, § 1696-1699 (Lord 1910). The laws of Oregon, and therefore Alaska, are derived in large part from those of New York. Although, "[t]he major borrowing took place in Oregon in 1853-1854 . Oregon's celebrated Judge Matthew P. Deady and others reworked the Oregon law in 1862-1864, using as their major sources the 1854 codes and the draft codes prepared for New York by a commission by David Dudley Field. The Field Commission had also relied heavily on the older New York statutes_" F. Brown; The Sources of the Alaska and Oregon Codes, Part II, 2 U.C.L.A.— Alaska L.Rev. 87 (1973). . The statutes, as originally adopted in 1900, read: Sec. 253. What crimes may be compromised. That when a defendant is held to answer on a charge of misdemeanor, for which the person injured by the act constituting the crime has a remedy by a civil action, the crime may be compromised, as provided in the next section, except when it was committed— First. By or upon an officer of justice while in the execution of the duties of his office; Second. Riotously; or Third. With an intent to commit a felony; or Fourth. Larcenously. Laws.Oreg., Oct. 19, 1864; Hill's Ann.Laws, s. 1519. Sec. 254. Compromise by permission of the court; order thereon. That if the party injured appear before the court at which the defendant is bound to appear, at any time before trial on an indictment for the crime, and acknowledge in writing that he has received satisfaction for the injury, the-court may, in its discretion, on payment of the costs and expenses incurred, order all further proceedings to be stayed upon the prosecution and the defendant to be discharged therefrom; but the order and the reasons therefor must be entered on the journal. Laws Oreg., Oct. 19, 1864; Hill's Ann.Laws, s. 1520; Saxon v. Hill, 6 Oreg., 383. Sec. 255. Order a bar to another prosecution. That the order authorized by the last section, when made and entered, is a bar to another prosecution for the same crime. Laws Oreg., Oct. 19, 1864; Hill's Ann.Laws, s. 1521. Sec. 256. No crime can be compromised, except. That no crime can be compromised, nor can any proceeding for the prosecution or punishment thereof be stayed upon a compromise, except as provided in this chapter. Laws Oreg., Oct. 19, 1864; Hill's Ann.Laws, s. 1522. The statutes appear unchanged from the original version in Comp.L.Ann., tit. XV, ch. 28, § 2362-2365 (1913); Comp.L.Ann" § 5431-5434 (1933), and Comp.L.Ann., tit. 66, ch. 18, § 66-18-1 to 66-18-4 (1948). In 1962, a number of minor amendments were made to the language of the statutes. See SLA, ch. 34, § 6.13 (1962). Additionally, the first exception in Sec. 253 was expanded from the original "an officer of justice" to "a peace officer or magistrate," in 1962, SLA, ch. 34, § 6.13 (1962), and expanded to "a peace officer, judge or magistrate," in 1971. SLA, ch. 8, § 15 (1971). Also, Sec. 255 was consolidated with Sec. 254 in 1962. SLA, ch. 34, § 6.13 (1962). . We note that California has amended the civil compromise statute to create an exception barring civil compromise when the injury arises from a second willful and knowing violation of a restraining order imposed to prevent domestic violence. Cal.Penal Code § 1377 (West 1982) (statute amended 1979). It should also be noted that any willful infliction of physical injury re-suiting in a "traumatic" condition upon a cohabitant of the opposite sex is a felony under California law. Cal.Penal Code § 273.5 (West 1970) (adopted 1977). . The state has also argued that Alaska's civil compromise statute is unconstitutionally vague. We find this argument to be frivolous.

10424038

Raymond SEARS, Appellant, v. STATE of Alaska, Appellee

Sears v. State

1986-02-14

No. A-975

1218

1220

713 P.2d 1218

713

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:08:26.184312+00:00

CAP

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

Raymond SEARS, Appellant, v. STATE of Alaska, Appellee.

Raymond SEARS, Appellant, v. STATE of Alaska, Appellee. No. A-975. Court of Appeals of Alaska. Feb. 14, 1986. Carol Greenberg, Asst. Public Defender, Fairbanks, and Dana Fabe, Public Defender, Anchorage, for appellant. Nancy R. Simel, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Harold M. Brown, Atty. Gen., Juneau, for appellee.

994

5908

OPINION Before BRYNER, C.J., and COATS and SINGLETON, JJ. COATS, Judge. Raymond Sears was convicted, following a jury trial, of burglary in the second degree, AS 11.46.310. Alaska Statute 11.46.-310 provides: "(a) A person commits the crime of burglary in the second degree if the person enters or remains unlawfully in a building with intent to commit a crime in the building." The state proved at trial that Sears had been in the Gavora Shopping Mall in Fairbanks the evening of November 3, 1983. Some of the shops had closed, though the mall area was still open to the public. The "Sew'n Vac" store was closed, with a sliding iron gate pulled across the entrance to prevent patrons still in the mall from entering. At trial, the state proved that Sears was observed straightening a clothes hanger, and that Sears used the clothes hanger to reach through the Sew'n Vac iron gate to obtain a hand-held vacuum cleaner worth approximately $100. The state did not dis pute that only the clothes hanger, or at the most Sears' arm, entered the Sew'n Vac store. At the close of evidence, the state proposed the following instruction regarding "enters" as used in AS 11.46.310: A person enters a building when he introduces any part of his body or any part of any instrument, if such instrument is being used to commit the crime intended, by whatever means, into the building. Sears objected to the proposed instruction, arguing that "enters" is a term within lay comprehension and that the definition proposed is not the current law in Alaska. Judge Gerald Van Hoomissen overruled Sears' objection and gave the instruction to the jury. Sears now appeals Judge Van Hoomissen's instruction. Under Criminal Rule 30, the court "shall instruct the jury on all matters of law which it considers necessary for the jury's information in giving their verdict;" Alaska R.Crim.P. 30(b). Further, the trial court is under a duty to instruct the jury on the essential elements of the offense. See Thomas v. State, 522 P.2d 528, 531 (Alaska 1974). However, whether or not a particular instruction should be given is left to the discretion of the trial judge. Buchanan v. State, 561 P.2d 1197, 1207 (Alaska 1977). Alaska Statute 11.46.310 requires a showing that the accused "enters or remains unlawfully." This appeal involves the definition of the term "enters." Generally, words which have a commonplace meaning need not be defined for the jury. Dunn v. State, 426 P.2d 993, 995 (Alaska 1967). However, "where the word is susceptible to differing interpretations, only one of which is a proper statement of the law, an instruction must be given." McKee v. State, 488 P.2d 1039, 1043 (Alaska 1971) (reversible error not to give instruction defining "concealed"). We believe "enters" in the context of this case, is susceptible to more than one meaning. "Enters" could mean the defendant's whole body, or it could mean part of his body, or it could mean entry merely by an instrument, as here. We believe that Judge Van Hoomissen did not abuse his discretion in defining "enters" for the jury. See Buchanan, 561 P.2d at 1207. We need only now determine whether the instruction was an accurate statement of Alaska law. On appeal, Sears concedes that Judge Van Hoomissen's instruction accurately reflects the common law definition of "enters." See W. LaFave and A. Scott, Handbook on Criminal Law, § 96 at pp. 710-11 (West 1972). Sears argues, however, that the legislature's codification of the criminal code never embraced the common law definition, and therefore it should be assumed the legislature considered the common law definition and rejected it. In Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 250, 96 L.Ed. 288, 300 (1952), the Supreme Court stated: [Wjhere congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. Similarly, we believe our legislature is presumed to be aware of common law terms of art and the meaning such terms will carry into the courtrooms of this state. In addition, we note that AS 11.46.310 is derived substantially from New York Penal Law. Alaska Department of Law Criminal Code Manual, § 4 at 4-6 — 4-7 (1979); Arable v. State, 699 P.2d 890, 894-95 n. 3 (Alaska App.1985). While New York, like Alaska, does not define "enters" by statute, the commentaries are instructive: The word "enter" . does not necessarily mean that the intruder must place his entire body inside the premises. The former Penal Law . provided that the word "enter" included "the entrance of the offender into such building or apartment, or the insertion therein of any part of his body or of any instrument or weapon held in his hand, and used, or intended to be used, to threaten or intim idate the inmates, or to detach or remove." . Such conduct would also constitute "entering" within the meaning of subdivision five of § 140.00. N.Y. Penal Law § 140.00 (McKinney 1973 & Supp.1984) and commentary at pp. 15-16. We think that "enters" in Alaska also means that the intruder enters by entry of his whole body, part of his body, or by insertion of any instrument that is intended to be used in the commission of a crime. We find no abuse of discretion regarding Judge Van Hoomissen's instruction to the jury. See Buchanan, 561 P.2d at 1207. AFFIRMED.

10423996

VINTAGE CONSTRUCTION, INC., a corporation, Appellant, v. STATE of Alaska, DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES, and Alaska International Construction, Inc., Appellees

Vintage Constr., Inc. v. State, Department of Transportation & Public Facilities

1986-01-31

No. S-490

1213

1217

713 P.2d 1213

713

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:08:26.184312+00:00

CAP

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

VINTAGE CONSTRUCTION, INC., a corporation, Appellant, v. STATE of Alaska, DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES, and Alaska International Construction, Inc., Appellees.

VINTAGE CONSTRUCTION, INC., a corporation, Appellant, v. STATE of Alaska, DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES, and Alaska International Construction, Inc., Appellees. No. S-490. Supreme Court of Alaska. Jan. 31, 1986. Edward A. Merdes, Fairbanks, and Sam E. Baker, Jr., Oles, Morrison, Rinker, Stan-islaw & Ashbaugh, Seattle, for appellant. Linda L. Walton, Asst. Atty. Gen., Fairbanks, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellees. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

3040

18507

OPINION MATTHEWS, Justice. The State of Alaska, Department of Transportation and Public Facilities, solicited bids for project No. F-064-3(3), involving grading and drainage work on a road from Dexter to Banner near Nome. Bids were opened and Vintage Construction Co. (Vintage) was the apparent low bidder, with a bid of $2,334,904.50. The apparent sixth lowest bidder was Alaska International Construction, Inc. (AIC), which submitted a bid of $2,536,607. After the opening, State officials more closely examined all of the bids. They discovered a discrepancy in AIC's bid: the "total amount bid" was $249,900 more than the sum of the extended unit prices. The State decided to honor the unit prices and ignore the total amount bid. AIC claims that it intended its bid to be in accordance with the unit prices rather than the total. However, this intention was not necessarily evident from the bid it submitted. Over Vintage's protest, the State awarded the contract to AIC. Vintage sued, seeking to set aside the award, and both parties moved for summary judgment. The court granted the State's motion, and dismissed Vintage's claims, indicating its reasons on the record at the end of the hearing on the summary judgment motions. Vintage appeals. The court noted that no mistake had been made in either the unit price or the extension of the unit bid prices and that an addition error had been made in totalling the extensions of the unit bid prices. The court found that this error gave AIC no competitive advantage. The court also observed that certain standard specifications were applicable and had been properly followed. These specifications are: Standard Specification 102-1.06: The bidder shall submit his proposal upon the forms furnished by the Department. The bidder shall specify the unit price in words and figures, for each pay item for which a quantity is given and shall also show the products of the respective unit prices and quantities written in figures in the column provided for that purpose and the total amount of the proposal obtained by adding the amounts of the several items. All the words and figures shall be in ink or typed. In case of a discrepancy between the prices written in words and those written in figures, the prices written in words shall govern. Standard Specification 103-1.01: After the proposals are opened and read, they will be compared on the basis of the summation of the products of the approximate quantities shown in the bid schedule by the unit bid prices. The results of such comparisons will be immediately available to the public. In the event of a discrepancy between unit bid prices and extensions, the unit bid price shall govern. Vintage argues that these do not apply. It notes that there is no discrepancy between the unit prices written in words and unit prices written in figures, and argues that there is no discrepancy between unit prices and extensions. Instead, the mis take is in the summing up of the extensions and, as such, is not covered by the specifications. The state's response is that the power to correct extension errors necessarily carries with it the power to correct the total price arrived at by summing the extensions. In this case the error was of less significance than that normally covered by the specifications because only one space in the form, the total, rather than two, the total and the mistaken extended item, had to be corrected. The main point made by the standards, according to the state, is that it is the unit price that controls. This point is especially important in this case because this contract is a unit price contract in which quantities have only been estimated. Thus, the total of the extensions of the unit prices is not the contract price. We agree with the State's argument. The specifications taken together clearly suggest that the total of the extensions of unit prices is to be used for informational and initial comparative purposes only, and that the critical items are the written unit prices. As the contracting officer stated, in unit price contracts, "the unit prices are written in words, while the total price is written only in figures." By contrast, "[i]n bids for lump sum contracts, the total is required to be written in words as well as figures." The final sentence of Standard Specification 102-1.06 speaks only to discrepancies between prices written in words and figures, not between unit prices written in words and figures. In view of the differences between unit price and lump sum form contracts, the agency's interpretation that this sentence means any discrepancy between prices in words and figures, rather than just unit price discrepancies, is reasonable and should control. Vintage's other point on appeal is that AIC was given a competitive advantage by the State. If the lowest bidder, other than AIC, had submitted a total bid higher than AIC's total, then AIC might have argued that its mistake was in the unit price of some item, and its extension, and that the total price was its intended bid. Such an argument, if it were to be accepted by the contracting authority, might give AIC the right to withdraw its bid, or to obtain the contract on the basis of its higher bid. Either would result in a competitive advantage over other bidders. To test the argument we must determine the approach which should be taken by a contracting officer faced with such a contention. First, he should determine whether the bidder's claimed actual intent is apparent from the bid as submitted. If the contracting officer is unable to say from the documents submitted that the bidder's intent was apparently to bid the higher figure, no relief should be given and the unit prices bid should control. If the bidder's intent to bid at the higher figure is apparent, the contracting officer must ask a second, but related, question: would it be unconscionable to hold the bidder to his bid using the rule of construction that unit prices control? If the answer to that question is "no," relief will not be afforded. In Alaska Int'l Const. Inc. v. Earth Movers of Fairbanks, Inc., 697 P.2d 626 (Alaska 1985) we assumed that the bidder intended to make a higher bid than that reflected in a written unit price bid. Nonetheless, we held that performance of the written bid could be required so long as it would not be unconscionable to do so. Whether one party's mistaken intent is or should be known to the other party is a traditional inquiry in determining whether a contract is voidable. Restatement (Second) of Contracts § 153(b). We rejected this as a sole determinant in public bid cases, AIC v. Earth Movers, supra, but we did not suggest that it was irrelevant. Requiring both apparent intent and uncon-scionability as a pre-requisite to relief is consistent with the goal of protecting the competitive bidding process from manipulation. Using this approach, it can be seen that no competitive advantage was afforded in this case. The contracting officer could not say from reviewing the bid documents that the total bid figure, rather than the unit prices correctly added, was the bid apparently intended. Thus, there would be no occasion to address the second question of whether it would be unconscionable to hold the bidder to his bid despite his apparent intent. AFFIRMED. . The contracting officer explained the reasons for this decision in a letter to Vintage as follows: Form 25D-3 Information to Bidders included in the bid assembly for the referenced project contains the following language: Under Preparation of Bids (c) "The bidder shall specify a unit price in words and figures, for each item for which a quantity is given and shall also show the products of the respective unit prices and quantities written figures in the column provided for that purpose and the total amount of the proposal obtained by adding the amount of the several items. All the words and figures shall be in ink or typed. In case of a discrepancy between the prices written in words and those written in figures, the prices written in words shall govern." As you will note the unit prices are written in words, while the total price is written only in figures. The Department of Transportation and Public Facilities uses this format in bids for unit price contracts as is this one. In bids for lump sum Contracts, the total is required to be written in words as well as figures. Under Receipt and Opening of Bids (c) "The Department reserves the right to waive any technicality in bids received when such waiver is in the interest of the State." The Department of Transportation and Public Facilities has concluded that waiver of the error in addition made by Alaska International Construction, Inc. is in the best interest of the State, as such waiver will result in contract price lower than that otherwise available. The Department of Transportation and Public Facilities does not believe that such waiver results in an unfair competitive advantage to Alaska International Construction. Under no circumstances would the Department of Transportation and Public Facilities have allowed Alaska International Construction, Inc. to adjust its unit prices upwards to the amount of its total and remain eligible for bid award. Payment of this contract is to be on a unit price basis rather than a lump sum basis in accordance with the proposal and Standard Specifications for Highway Construction, dated 1981. Under no circumstances would the contract have been awarded to Alaska International Construction, Inc. for an amount greater than the summation of the products of the approximate quantities shown in the bid schedule and the written unit prices contained in their proposal. . See Alaska Int'l Const. Inc. v. Earth Movers of Fairbanks, Inc., 697 P.2d 626, 633 (Alaska 1985): "We conclude that both readings of the specification are reasonably possible and that appropriate deference to the agency requires that its interpretation be given effect." . That was the case in Chris Berg, Inc. v. State, Dept, of Transp., 680 P.2d 93 (Alaska 1984). We held there that the contracting officer had erred in rejecting a bid as non-responsive where one unit price bid was left blank but the amount intended to be bid for that unit could be determined by subtracting the other unit prices from the total.

10423830

Paul E. DRAKE, Appellant, v. Charles F. HOSLEY, d/b/a the Charles Hosley Company, Realtors, Appellee

Drake v. Hosley

1986-01-31

No. S-759

1203

1208

713 P.2d 1203

713

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:08:26.184312+00:00

CAP

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

Paul E. DRAKE, Appellant, v. Charles F. HOSLEY, d/b/a the Charles Hosley Company, Realtors, Appellee.

Paul E. DRAKE, Appellant, v. Charles F. HOSLEY, d/b/a the Charles Hosley Company, Realtors, Appellee. No. S-759. Supreme Court of Alaska. Jan. 31, 1986. Rehearing Denied April 3, 1986. Thomas R. Wickwire, Fairbanks, for appellant. Woody Brooks, Aschenbrenner & Brooks, Fairbanks, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

2550

15028

OPINION MOORE, Justice. This is an appeal from a summary judgment granted in favor of Charles Hosley, entitling him to a real estate broker's commission under a contract with the seller. The superior court concluded that Hosley had fulfilled the terms of a written agreement with the seller by finding a buyer who entered into a contract to purchase in accord with the seller's terms. We affirm. On March 5, 1984, Paul Drake signed an exclusive listing agreement with The Charles Hosley Company, Realtors (hereafter "Hosley"). The agreement authorized Hosley to act as Drake's agent until March 30, 1984, to sell some land Drake owned in North Pole, Alaska. The agreement provided for payment of a ten percent commission if, during the period of the listing agreement, 1) Hosley located a buyer "willing and able to purchase at the terms set by the seller," or 2) the seller entered into a "binding sale" during the term set by the seller. Hosley found a group of three buyers, Robert Goldsmith, Dwayne Hofschulte and David Nystrom (hereafter "buyers"), who were interested in the property. On March 23, 1984, Drake signed a purchase and sale agreement, entitled "earnest money receipt," in which he agreed to sell the land to the buyers at a specified price and terms. The buyers also signed the agreement. It provided that closing would occur "within 10 days of clear title" and "ASAP, 1984." A typed addendum stated that Drake agreed to pay Hosley a commission of ten percent of the price paid for the property. Both Drake and Hosley signed the addendum. On April 3, 1984, Hosley received a preliminary commitment for title insurance. The title report listed a judgment in favor of Drake's ex-wife as the sole encumbrance on the title. The next day Hosley called Drake's attorney, Tom Wickwire, to ask about the judgment. Wickwire stated that the judgment would be paid with the cash received at closing. Two or three days later, attorney Wick-wire called Hosley and stated that his client (Drake) wanted the sale closed by April 11. Wickwire explained that he had negotiated a discounted settlement with Drake's ex-wife that required payment by April 11. Wickwire claims that Hosley agreed to close by April 11. Hosley disagrees, and claims that he merely stated that he would try to close as quickly as possible. When Hosley became concerned that the buyers would not be able to close on April 11, he telephoned the attorney for Drake's ex-wife and learned that the April 11 deadline for payment of the judgment had been extended until the end of the month. On April 11, Wickwire called Hosley to set up the closing. Hosley told Wickwire that the buyers could not close that day because they did not have the money, and would not have it before May 1. Wickwire indicated that he would advise Drake to call off the sale because the buyers had refused to perform. Wickwire mailed a letter to Hosley, dated April 11, stating that Drake's offer to sell was withdrawn. Hosley received the letter on approximately April 18. On April 12, Drake sold his property through another broker to different buyers. On April 12, Hosley went to Wickwire's office to close the sale and submitted checks from the buyers totaling $33,000 for the down payment. Wickwire refused the checks, stating that another buyer already had purchased the property. Hosley filed a complaint, alleging he had fulfilled the terms of the exclusive listing agreement and was entitled to payment of a commission. The parties filed cross-motions for summary judgment. The trial court granted Hosley's motion and denied Drake's. Drake appeals. I. Drake contends he does not owe a commission to Hosley and that entry of judgment in favor of Hosley was improper. In reviewing a summary judgment, we must determine whether there are any genuine issues of material fact, and whether the moving party is entitled to judgment as a matter of law. Moore v. State, 553 P.2d 8, 15 (Alaska 1976). See Alaska R.Civ.P. 56(c). AS 08.88.361 provides that "[a] commission is earned when the real estate broker fulfills the terms of a written personal services contract." The exclusive listing agreement between Drake, as seller, and Hosley, as broker, provided that a ten percent commission would be paid to Hosley if one of three conditions occurred: a) if a property is sold or a binding sale or lease agreement is entered into by Seller during the term set by seller; or b) if during the term of this Agreement [Hosley] finds a buyer willing and able to purchase at the terms set by Seller; or c) if a buyer located by [Hosley] enters into a binding sale or lease agreement within 120 days after the expiration of this Agreement. (Emphasis added.) It is undisputed that during the term of the agreement, Hosley found a group of three buyers, and that Drake entered into a purchase and sale agreement ("earnest money receipt") with the buyers. The earnest money agreement signed by Drake stated: "I hereby approve and accept the above sale for said price and on said terms and conditions and agree to consummate the same as stated." A typed addendum to the earnest money agreement provided: "Seller agrees to pay a Realtors' commission in the amount of 10% of price to be paid by partial assignment of the deed of trust at the rate of $l,000/month." On the basis of these facts, the trial court concluded that Hosley had performed the terms of his agreement with Drake. The court found that, within the terms of the listing agreement, Hosley located a group of buyers who entered into a binding sale agreement with Drake. The court ruled that Hosley therefore was entitled to his commission. Drake invites this court to adopt the reasoning of Ellsworth Dobbs, Inc. v. Johnson, 50 N.J. 528, 236 A.2d 843 (1967), and hold that a real estate broker does not earn a commission unless the contract of sale is performed. The traditional rule followed by a majority of jurisdictions is that a broker is entitled to a commission when he produces a buyer ready, willing and able to purchase the property on the seller's terms, even if the sale is not completed. Sowask v. Garrett, 630 P.2d 8, 12 (Alaska 1981). See generally Annot., 12 A.L.R. 4th 1083 (1982). The rationale for concluding that a potential purchaser is deemed "willing and able" the instant the purchaser signs a contract with the seller is explained in Kopfv. Milam, 60 Cal.2d 600, 35 CaLRptr. 614, 617, 387 P.2d 390, 393 (1963): When a vendor enters a valid unconditional contract of sale with a purchaser procured by a broker, the purchaser's acceptability is conclusively presumed because the vendor is estopped to deny the qualifications of a purchaser with whom he is willing to contract. Drake suggests that the rule of Dobbs is better reasoned because it emphasizes that a broker has not produced a ready, willing and able buyer if the buyer refuses or is unable to perform at closing. Dobbs, 236 A.2d at 853. In a practical world the true test of a willing buyer is not met at the time a purchase agreement is signed, but at the time of closing of title. Id. Since the broker's duty to the owner is to produce a buyer who is financially able to pay the purchase price, it is reasonable to allow the owner to accept the buyer and enter into a sales contract without becoming liable for a broker's commission unless the sale is consummated. Id. The Dobbs court also noted that when an owner of property lists it for sale with a broker, the owner usually expects that money for payment of a commission will come from the sale proceeds. Id. at 854. For these reasons, the Dobbs court concluded that "public policy requires the courts to read into every brokerage agreement or contract of sale a requirement that barring default by the seller, commissions shall not be deemed earned against him unless the contract of sale is performed." Id. at 857. We find such reasoning persuasive. We also note that several jurisdictions recently have adopted the Dobbs rule, or modified versions of it. See Annot., 12 A.L.R. 4th 1083, 1088, 1094-1103 (1982). However, adoption of the rule does not assist Drake in this case. The Dobbs court specifically held that "in the absence of default by the seller, the broker's right to commission . comes into existence only when his buyer performs in accordance with the contract of sale." Dobbs, 236 A.2d at 855 (emphasis added). A broker still is entitled to a commission if "improper or frustrating conduct" by the owner prevents title from passing. Id. at 853. Drake claims that there is a genuine issue of fact regarding whether the buyer or seller refused to perform. In particular he argues that there is a material factual dispute "whether Hosley, acting for the buyers, first agreed with Wickwire to close the sale on April 11, 1984, then . refused to close on that day_" Drake is correct that the existence of an agreement is disputed. However, there is no genuine issue as to whether Hosley was acting for the buyers. Other than a bare allegation in Drake's pleadings, the record is devoid of any evidence that Hosley was representing the buyers. Hence, the buyers could not be bound whether or not an agreement to expedite closing was made by Hosley and Wickwire. Drake points to the fact that Hosley told Drake's attorney that the buyers could not close on April 11 because they did not have the money. The fact that Hosley communicated a message from the buyers does not make him their agent. Further, the affidavit of Drake's attorney, Wickwire, does not state that Hosley ever claimed or intimated that he was acting in any role other than as Drake's broker. In short, Drake failed to make any showing that Hosley was the buyers' agent and had authority to modify their contract. In the absence of such evidence, any agreement between Drake's attorney and Drake's broker could not modify the contractual obligations of the buyers. Since Hosley's right to a commission does not turn on whether he and Drake's attorney agreed to expedite closing, the disputed agreement was not a material fact that would preclude summary judgment. Under the terms of the earnest money agreement, the buyers were required to close within ten days after evidence of clear title was furnished. Hosley stated that he received a report from the title insurance company on April 3. The report carried a typist's date of April 2. We agree with the trial court that the buyers met the terms of the earnest money agreement by submitting checks for the down payment to Drake's agent on April 12 — which was within ten days of either the April 2 or April 3 date. Thus, it was not the buyers who prevented the sale from going through. We also reject a second argument raised by Drake. He contends the earnest money agreement was ambiguous, that the sale was not consummated because of the ambiguities, and that Hosley, who prepared the form, should be held responsible. The document included three provisions relating to time of performance. It provided for closing "within 10 days of clear title" and "ASAP, 1984." It also stated that "time is of the essence of this contract." We find these terms neither ambiguous nor inconsistent. Further, we find no merit in Drake's suggestion that the contract could be interpreted to allow Drake to select any day prior to the end of the ten-day period for closing. Finally, Drake asserts that Hosley is not entitled to a commission because he breached his fiduciary duty to act in the best interests of his principal and to disclose any conflicts of interest. See AS 08.88.391. Drake claims Hosley breached this duty by representing the buyers in selecting a closing date and communicating their position to Drake. This claim is without merit. As we have noted, there is no evidence that Hosley ever acted for the buyers. Drake also claims that Hosley breached his fiduciary duty by failing to disclose to Drake that one of the buyers, Hofschulte, was employed by Hosley. However, as Drake conceded in his reply brief, Hofschulte and Drake had repeated telephone conversations over a nine-day period during which Hofschulte sought to obtain a listing on Drake's property. The listing agreement that resulted, and also the earnest money receipt, were signed by Hofschulte on behalf of The Charles Hos-ley Company. We conclude that the relationship between Hosley and Hofschulte was disclosed to Drake. To summarize, Hosley found a group of buyers who were willing and able to perform in accord with the terms set by the seller, but they were prevented from doing so by the seller's frustrating conduct. The buyers tried to perform by tendering checks for the down payment "within 10 days of clear title," as required by the earnest money agreement. The sale did not take place because the seller, Drake, sold the property to a third party during the ten-day closing period. Thus, even under the Dobbs rule, Hosley is entitled to his commission. The judgment in favor of Hosley is AFFIRMED. . In his brief, Hosley suggests that Wickwire responded in this way because he was confused about which party Hosley represented. Since Wickwire was not involved in the transaction when the listing and earnest money agreements were signed, Hosley suggests that Wickwire may have assumed that Hosley was acting for the buyers. . Drake did not raise this question in the trial court in his memorandum in opposition to Hos-ley's motion for summary judgment, nor did he file a statement of "genuine issues of material fact," as permitted by Alaska R.Civ.P. 56(c). Hosley therefore asserts that Drake's contention should be disregarded. However, Rule 56(c) is merely permissive. It remains the duty of the trial court to determine whether the record presents any factual issues which would preclude the entry of summary judgment as a matter of law. Williams v. City of Valdez, 603 P.2d 483, 488 (Alaska 1979). Here, the trial court record included affidavits which clearly showed the factual dispute. Since the factual dispute was fairly presented to the trial court, the issue may be raised on appeal. See Williams, 603 P.2d at 488-489. . Drake claims the trial court erred in ruling that evidence of an oral modification of the closing date was barred by the statute of frauds requirement that agreements to sell real property must be in writing to be enforceable. AS 09.25.010(6). Drake cites Black v. Dahl, 625 P.2d 876, 880 (Alaska 1981), and asserts that a client may enforce an oral agreement against a broker. In view of our conclusion that the disputed agreement to expedite closing was not material to deciding Hosley's entitlement to a commission, we need not address the statute of frauds issue.

10356623

Guy Jerome NORRIS, Appellant, v. STATE of Alaska, Appellee

Norris v. State

1993-07-30

No. A-3887

349

358

857 P.2d 349

857

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:09:06.214921+00:00

CAP

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

Guy Jerome NORRIS, Appellant, v. STATE of Alaska, Appellee.

Guy Jerome NORRIS, Appellant, v. STATE of Alaska, Appellee. No. A-3887. Court of Appeals of Alaska. July 30, 1993. Susan Downie, Asst. Public Defender, Fairbanks, and John B. Salemi, Public Defender, Anchorage, for appellant. Richard W. Maki, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ. . The case was presented to the jury under two theories of second-degree murder: subsection (a)(1) conduct that the defendant intends to cause serious physical injury or knows is substantially certain to cause death or serious physical injury; and subsection (a)(2) conduct manifesting extreme indifference to the value of human life. The jury found Norris guilty under the second theory.

5036

31272

OPINION MANNHEIMER, Judge. Guy Jerome Norris appeals his conviction for second-degree murder, AS 11.41.-110(a)(2). We affirm. On the afternoon of May 8, 1989, Guy Norris and his live-in companion Lisa Booth were drinking at their home in Port Alice with some friends, Tim Elliott, Shawn Nieme, and Jim Sanford. Nieme and Sanford left the home a little after 4:00 p.m. Norris and Elliott proceeded to drink "a good portion" of a half-gallon bottle of whiskey, and then started looking for more. Lisa Booth had hidden two pint bottles of Everclear under a chair, intending to save them to celebrate her birthday the next day. Elliott, however, disclosed the location of the Everclear to Norris. Norris pulled out one of the pints and started drinking from it. When Booth realized that Norris had raided her liquor, she became angry and punched Elliott in the face, causing his nose to bleed. When Elliott was about to hit Booth, Norris told him, "Go ahead. Kick her ass." Elliott, however, did not strike Booth. Norris and Booth began arguing. Booth started throwing household knickknacks, but nothing more dangerous than a clam shell. Elliott continued to sit on a couch, without fear for his safety. Norris attempted to restrain Booth, but every time he released her she began to throw things again. Norris then picked up a 30-30 Winchester lever-action rifle. He fired a shot into the ceiling and a second shot into the wall. Because the Winchester had a lever action, Norris was required to manually work the lever down and back to feed a new round into the chamber each time he shot the rifle. Norris and Booth were both on their feet, as if they were going to fight. Norris, still holding the rifle, swung around and hit Booth in the eye with the butt of the weapon. Booth landed in the corner, but got to her feet again. When she and Norris resumed their struggle, Norris threw her to the ground. (Norris is 6'2" and weighed 200 pounds; Booth was S'fíVk" and weighed 140 pounds.) As Booth lay on her back, Norris stood over her with one foot on either side of her waist. Norris was still holding the rifle, with a round chambered and his finger on the trigger. Holding the rifle so that it pointed toward Booth's head, Norris twice asked angrily, "Is this what you fucking want?" Then Elliott, who was still sitting on the couch a few feet away, heard a shot ring out. Booth died within seconds from a gunshot wound through her neck. After shooting Booth, Norris sat down in a chair. He shook Booth's limp leg and declared, "The fucking bitch won't give me no more problems." Elliott left the house to call the police, then he returned with Sanford. When Sanford retrieved Norris's Winchester, he found that a new round had been levered into the chamber. A Ketchikan grand jury indicted Norris for first-degree murder, AS 11.41.-100(a)(1)(A). At trial, Norris was acquitted of this charge but convicted of the lesser included offense of second-degree murder. Norris's first argument on appeal concerns an evidentiary ruling at his trial. Norris asked the trial judge to allow him to introduce evidence of Booth's reputation for violence and mental instability, arguing that this evidence would help establish a claim of self-defense or, alternatively, would demonstrate that Booth was reckless and unstable, a person likely to grab the barrel of the rifle, causing it to discharge accidentally. Superior Court Judge Thomas E. Schulz refused to allow Norris to introduce evidence of Booth's reputation for violence until the defense had presented some evidence of self-defense. Under questioning by Judge Schultz, Norris's attorney revealed that, although Norris planned to testify that Booth had grabbed the rifle, thus causing it to discharge unintentionally, the defense had no evidence indicating that Booth had had access to a weapon or had otherwise posed an immediate threat of harm to Norris. In light of these answers, Judge Schultz ruled that, though Norris was free to testify about what happened and why he did what he did, no evidence supported a claim of self-defense and, thus, the proposed evidence of Booth's reputation for violence was inadmissible. On appeal, Norris implicitly concedes that he presented no evidence of self-defense. However, Norris argues that Booth's reputation for violence was relevant in other ways. Specifically, Norris argues that he armed himself with the rifle because he knew that Booth could be violent and he feared that Booth might attack him with a weapon. Norris asserts that the jury had to determine whether his act of arming himself was reasonable, and he further asserts that evidence of Booth's character for violence would have helped the jury make this determination. We reject Norris's argument. Assuming that Norris's fear of Booth's potential for violence motivated him to pick up the Winchester in the first place, Norris was not convicted for the mere act of arming himself. Norris not only picked up the rifle, but he hit Booth in the head with it, then knocked her down again, straddled her, and pointed the barrel toward her head as she lay prostrate. At this point, the rifle discharged, killing Booth. Given this progress of events, the reasonableness of Norris's initial decision to pick up the rifle had essentially no bearing on Norris's guilt of second-degree murder. Whatever Booth's reputation might have been, and however it might have affected Norris's decision to pick up the rifle, that reputation would not affect the reasonableness of Norris's act of threatening an unarmed and helpless person with a loaded firearm when he feared no immediate danger from her. Moreover, the record of Norris's trial shows that Norris succeeded in presenting this evidence to the trial jury despite Judge Schulz's ruling. The testimony at the trial is replete with evidence that Booth was prone to violent outbursts. Tim Elliott testified that, on the night of Booth's death, she hit Elliott with her fist and caused his nose to bleed. Norris testified that, less than a month before her death, Booth had stabbed him with a knife during an argument. According to Norris's testimony, Booth had attempted to stab his chest, but Norris had fended off the blow, receiving instead a wound to his wrist that left a scar. Norris also testified that, on the night of Booth's death, Shawn Nieme had asked to borrow Norris's truck and rifle to go hunting. Booth began screaming, tried to grab the rifle, then ran out of the house to take the keys out of the truck. Later in the evening, when Norris tried to restrain Booth from throwing things, Booth hit Norris in the mouth, cutting his lip. A photograph of Norris's injured lip was introduced at trial. Norris also testified that Booth pulled out a portion of Norris's beard during their final altercation and told him, while he stood over her with the rifle, that she would kill him in his sleep with a knife. In sum, the jury heard evidence clearly indicating that Booth was not a timid or retiring person. Moreover, because this testimony was not confined to Booth's reputation but instead delved into numerous specific acts of violence, it exceeded the scope of evidence that would have been admissible under Alaska Evidence Rules 404(a) and 405 if Judge Schulz had ruled in Norris's favor. Evidence of Booth's reputation for violence would have added nothing to Norris's case. We uphold the trial court's ruling. Norris next challenges several of the trial court's jury instructions. Norris asserts that the trial judge failed to give the jury an adequate explanation of "proximate cause". We have reviewed the trial court's instructions and find them adequate. In any event, Norris's case does not present a proximate cause issue. Even viewed in the light most favorable to the defense, the evidence shows that Norris knocked Booth to the ground and stood over her, armed with a rifle. If, as Norris testified, the rifle discharged because Booth grabbed it and attempted to pull it from his grasp, Norris's conduct would still be a "substantial factor" in causing Booth's death. See State v. Malone, 819 P.2d 34, 36 (Alaska App.1991). A victim's attempt to disarm an assailant presents a classic example of unbroken proximate cause: [A]ny response of a human being to harm or threat of harm is a consequence of whatever [conduct] produced [the] harm or threat, and insofar as the response is a normal one this actual causation is recognized by law. Hence an act resulting in harm or threat of harm is the proximate cause of further harm caused by [a] response thereto.... If, in the effort to save himself from apparent death or great bodily injury, one grabs a firearm which has suddenly been pointed at him, and the force thus exerted by him causes a fatal discharge not intended by the pointer, the act of pointing the weapon has caused the death. R. Perkins & R. Boyce, Criminal Law (3rd ed. 1982), pp. 794-95 (footnote omitted). Norris next contends that the trial court's instruction on the elements of second-degree murder allowed the jury to convict him without unanimously agreeing on the criminal conduct Norris had committed. The challenged instruction told the jurors that, to convict Norris of second-degree murder, they had to unanimously agree: that [Norris] knowingly engaged in conduct under circumstances manifesting an extreme indifference to the value of human life; and . [that Norris's] act or conduct caused the death of Lisa Booth. Norris asserts that this instruction could have led to a non-unanimous verdict because jurors having different views of the facts could join in voting for Norris's conviction of second-degree murder. According to Norris, some jurors may have believed his testimony that the rifle discharged accidentally when Booth grabbed it, but they still could have viewed Norris's act of threatening Booth with a loaded rifle as conduct manifesting an extreme indifference to the value of human life; other jurors could have rejected Norris's testimony, concluding that Norris acted with extreme indifference to the value of human life because he knowingly pulled the trigger and shot Booth. Norris's argument misapprehends the nature of the unanimity requirement. In State v. James, 698 P.2d 1161, 1165 (Alaska 1985), the Alaska Supreme Court adopted the rule on jury unanimity announced in People v. Sullivan, 173 N.Y. 122, 65 N.E. 989 (1903). In Sullivan, the defendant was charged with first-degree murder under alternative theories: that the killing was premeditated, or that the killing was unintentional but occurred while the defendant was perpetrating a felony. The jury was not called upon to specify which theory of first-degree murder they thought proved. On appeal, the defendant asserted that the jury's use of a general verdict violated his right to jury unanimity. The New York Court of Appeals disagreed: It is not necessary that a jury, in order to find a verdict, should concur in a single view of the transaction disclosed by the evidence. If the [jury's] conclusion may be justified upon either of two interpretations of the evidence, the verdict cannot be impeached by showing that a part of the jury proceeded upon one interpretation and part upon the other. So, in this case, it was not necessary that all the jurors should agree . that there was a deliberate and premeditated design to take the life of the deceased, or in the conclusion that the defendant was at the time engaged in the commission of a felony, or an attempt to commit one. It was sufficient that each juror was convinced beyond a reasonable doubt that the defendant had committed the crime of murder in the first degree as that offense is defined by the statute. People v. Sullivan, 65 N.E. at 989-990 (emphasis added) (citation omitted), quoted in State v. James, 698 P.2d at 1164. Similarly, in State v. Arndt, 87 Wash.2d 374, 553 P.2d 1328 (1976), another case quoted with approval in James, the Washington Supreme Court upheld a conviction for larceny (by fraud) over an assertion that the verdict had not been unanimous. The jury had been instructed that the defendant could be convicted if she: either made a false statement [concerning the] circumstances affecting her eligibility [or] need for [public] assistance, or . failed to reveal any material . circumstances affecting her eligibility [or] need for assistance, or . failed to promptly notify the county . of any change in [her income.] Arndt, 553 P.2d at 1329, quoted in James, 698 P.2d at 1165. The Washington court held that, while jurors must unanimously agree that the defendant is guilty of the crime charged, "it is unnecessary . that there be . unanimity as to the means by which the crime is committed[,] provided there is substantial evidence to support each of the means charged." Arndt, 553 P.2d at 1330, quoted in James, 698 P.2d at 1165. Thus, contrary to Norris's argument, jurors need not agree on a single interpretation of the evidence. They may reach differing conclusions as to what exactly was said or done during a particular episode, so long as they are all convinced that the defendant's conduct and culpable mental state(s) during that episode satisfy the elements of the crime. See State v. Handran, 113 Wash.2d 11, 775 P.2d 453, 456-57 (1989), in which the court held that it made no difference whether the jury believed that the defendant had kissed the victim without permission or had struck her, since both alleged acts of assault had occurred during the same, continuing course of conduct and each act independently constituted an assault. In Norris's case, the jurors may indeed have been split on the issue of whether Norris intentionally fired the rifle into Booth's neck. However, even if some (or all) jurors believed that the rifle discharged accidentally when Norris stood over Booth and she grabbed the barrel, this interpretation of the evidence would still support the jury's verdict of second-degree murder. The jury instruction satisfied the rule of law adopted by the supreme court in James. Norris argues that the second-degree murder instruction was broad enough to "encompass two separate incidents". We do not agree. In any case, the evidence presented at Norris's trial did not reveal two separate incidents. The murder charge against Norris was based on the incident that occurred at his and Booth's home on the afternoon of May 8, 1989. The trial evidence was unambiguously directed toward litigation of that event. Norris also argues that the instruction allowed the jurors to convict him even if they believed that the conduct manifesting Norris's extreme indifference to the value of human life was different from the conduct that caused Booth's death. Again, we disagree with Norris's interpretation of the instruction, and again we note that only one criminal episode was being litigated. Norris's final attack on the second-degree murder instruction concerns the trial court's failure to explain that "extreme indifference to the value of human life" is a more culpable variant of recklessness. Norris did not raise this argument in the trial court. We therefore review the issue for plain error only. Alaska Criminal Rule 30(a); Larson v. State, 569 P.2d 783, 788 (Alaska 1977). In Neitzel v. State, 655 P.2d 325, 332-33 (Alaska App.1982), this court construed AS 11.41.110(a)(2) to require proof that a defendant knowingly engage[d] in conduct causing the death of another whieh[,] in light of the circumstances[,] is reckless to the point that it manifests an extreme indifference to the value of human life. See also 655 P.2d at 337: "In differentiating reckless murder [i.e., second-degree murder under AS 11.41.110(a)(2)] from reckless manslaughter, the jury is asked to determine whether the recklessness manifests an extreme indifference to the value of human life." Norris argues that, without this clarification, the jurors might have failed to understand that they could not find Norris guilty of manifesting extreme indifference to the value of human life unless, at a minimum, they found that Norris either (1) had perceived and consciously disregarded a substantial and unjustifiable risk that his conduct would cause the death of another, or (2) had failed to perceive this risk because of intoxication. See AS 11.81.-900(a)(3) (defining "recklessly"). The State concedes that the second-degree murder instruction failed to inform the jurors of the relationship between "extreme indifference to the value of human life" and the lesser culpable mental state of "recklessness". However, the State contends that the jury instructions nevertheless apprised the jury of the requirement that Norris be subjectively aware of the risk to human life. In fact, the State argues, the jury instructions required the State to prove a higher culpable mental state than the law requires. As noted above, the second-degree murder instruction told the jurors that they had to be convinced that Norris "knowingly engaged in conduct under circumstances manifesting an extreme indifference to the value of human life". From this phrasing, the State asserts, the jurors would have concluded that "knowingly" was the culpable mental state applicable to "circumstances manifesting an extreme indifference to the value of human life". The jurors were additionally told that "knowingly", when applied to a circumstance, required proof that the defendant "[was] aware that . the circumstance exist[ed]". The State therefore concludes that, from the phrasing of the second-degree murder instruction and its juxtaposition with the instruction defining "knowingly", the jurors must have inferred that Norris could not be convicted of second-degree murder unless the State proved that Norris was aware, not simply that his conduct posed a substantial and unjustifiable risk to human life, but that his conduct manifested an extreme indifference to the value of human life. The State's interpretation of the jury instructions carries considerable force. We additionally note that the manslaughter instruction implicitly informed the jury that second-degree murder required proof of greater culpability than recklessness. Under this instruction, Norris was to be convicted of manslaughter only if he recklessly killed another person "under circumstances not amounting to murder in the first or second degree". Finally, we note that the prosecuting attorney, in his summation to the jury, accurately apprised the jury of the relationship between "recklessness" and "extreme indifference to the value of human life": Now we get up into a higher standard, and now we start talking about . the defendant engaging in conduct under circumstances manifesting an extreme indifference to the value of human life. Not just reckless[ness] any more, but now you've got to be reckless to the point of having extreme indifference to the value of human life. The prosecutor's wording of the test closely matches this court's definition in Neitzel. The parties' arguments can cure defects or omissions in jury instructions. O'Brannon v. State, 812 P.2d 222, 229 (Alaska App. 1991). Thus, even if the jury did not interpret the instructions to require proof of "knowing" indifference to the value of human life, we find that the prosecutor's explanation of the relationship between recklessness and extreme indifference rectified the omission in the jury instructions. For all these reasons, we conclude that the deficiency in the second-degree murder instruction does not amount to plain error. We turn now to Norris's sentencing arguments. Norris's offense, second-degree murder, is an unclassified felony that carries a minimum penalty of 5 years' imprisonment and a maximum penalty of 99 years' imprisonment. AS 11.41.110(b) and AS 12.55.125(b). In Page v. State, 657 P.2d 850, 855 (Alaska App.1983), this court established a benchmark sentencing range of 20 to 30 years for second-degree murder. Judge Schulz sentenced Norris to 50 years' imprisonment. Norris contends that Judge Schulz failed to make any findings to justify this departure from Page's benchmark sentencing range. At sentencing, the prosecutor argued that, although unclassified felonies are not governed by presumptive sentencing, several aggravating factors listed in AS 12.55.-155(c) applied to Norris's case by analogy. Among these were: that Norris had a criminal history of aggravated or repeated instances of assaultive behavior, (c)(8) ; that Norris's offense was committed against a member of his social unit, (c)(18)(A); and that Norris's conduct was among the most serious included in the definition of second-degree murder, (c)(10). For his part, Norris asserted that two of the mitigators listed in AS 12.55.155(d) applied to his offense: that he had committed the offense under some degree of duress or coercion, (d)(3); and that Booth had provoked the crime to a significant degree, (d)(7). While Judge Schulz did not make formal findings regarding these aggravators and mitigators, his sentencing remarks demonstrate that he agreed with the prosecutor about the aggravators and disagreed with Norris about the proposed mitigators. In the following passage, Judge Schulz rejected Norris's mitigators: [Ujnder no set of facts that this court has been presented with . would [anything] have justified resort to a weapon in this case. To argue, as Mr. Norris has ., that Lisa [Booth's] prior conduct in breaking windows in the house or in throwing things at him, or even punching his friends, or him, somehow justified his picking up a 30-30 rifle, knocking her down to the floor, and subsequently shooting her, is ridiculous in my judgement. There isn't even a small scintilla of a self-defense argument there, or any other kind of justification. Nowhere in the evidence in this case, at the trial or now, did it ever appear that Lisa [Booth] had in her hand or even relatively close to her . any kind of a dangerous weapon. One of the men that she struck . at the cabin that night testified at the trial. And my impression of his testimony was that he wasn't particularly bothered by the incident. So there just is no reason . for the 30-30 to have ended up in Mr. Norris's hands. Judge Schulz addressed aggravator (c)(18)(A) when he declared that Booth had been Norris's "wife, [or] certainly the functional equivalent of that; that was the nature of their relationship". Judge Schulz addressed aggravator (c)(8) when he stated that Norris's "[past] legal difficulties go back a long time", and that they "involve assaultive conduct [on] more than one occasion, including one prior felony." Finally, Judge Schulz implicitly found aggravator (c)(10) when he concluded that: Mr. Norris, extremely intoxicated and very angry himself, put that rifle down close to Lisa [Booth's] neck and pulled the trigger. And that's how Lisa [Booth] died. So this case does not approximate manslaughter. It is on the upper end of the second-degree murder cases. Norris argues that his conduct did not approach the blameworthiness of first-degree murder (intentional homicide). Norris relies upon his version of the offense (that he did not point the rifle at Booth, and that the rifle discharged only because Booth grabbed it), as well as on the fact that the jury rejected first-degree murder and second-degree murder under subsection (a)(1) (that is, these jurors refused to find that Norris had acted with intent to kill or intent to cause serious physical injury or with knowledge that his conduct was substantially certain to cause death or serious physical injury). However, Judge Schulz was not bound by the jury's view of the evidence. See Brakes v. State, 796 P.2d 1368, 1370-73 (Alaska App.1990). In his sentencing remarks quoted above, Judge Schulz rejected Norris's version of events and explicitly found that Norris had "put the rifle . to [Booth's] neck and pulled the trigger". This conclusion finds substantial support in the evidence. Even if Norris (because of his intoxication or otherwise) lacked an intent to kill Booth, Judge Schulz was justified in concluding that Norris's conduct and mental state approached the culpability of first-degree murder. Given Judge Schulz's finding that Norris's offense was an aggravated second-degree murder, Judge Schulz was authorized to consider sentences above the 20- to 30-year benchmark range. State v. Krieger, 731 P.2d 592, 595-96 (Alaska App.1987); Page, 657 P.2d at 855. In addition to Norris's criminal history, Judge Schulz also heard the testimony of a defense expert, psychologist David Doleshal. Doctor Doleshal testified that Norris had a history of substance abuse, that many of Norris's offenses seemed to be alcohol related, that Norris was defensive about his anti-social behavior, and that Norris had told him he saw no need for counseling. Nevertheless, Dr. Doleshal believed that Norris could benefit from long-term therapy. Judge Schulz commented that, based on Dr. Doleshal's report as well as the letters sent by Norris's family and friends, he had abandoned his initial view that Norris should receive a sentence appropriate to a serious first-degree murder case, and had come to a more favorable view of Norris's offense. Nevertheless, Judge Schulz noted that Norris had a serious problem with alcohol and that, despite "plenty of warning over a long, long period of time", Norris refused to confront this problem. He accepted the idea that Norris was still amenable to treatment, but, echoing Dr. Do-leshal, he found that Norris would require long-term, intensive treatment. Judge Shulz, moreover, believed that Norris's lengthy criminal history was a "significant indicator of what we can expect [from Norris] in the future", and that, given this history and the seriousness of Norris's present offense, the sentencing goal of rehabilitation should not receive great weight in determining Norris's sentence. Instead, Judge Schulz concluded that Norris's sentence should stress the sentencing goals of reaffirmation of societal norms and specific deterrence (deterring Norris from future criminal acts). Judge Schulz's remarks demonstrate a careful consideration of the sentencing goals specified in AS 12.55.005 and State v. Chaney, 477 P.2d 441 (Alaska 1970). Norris argues that the superior court should have taken a more favorable view of his offense and should have given more weight to his prospects for rehabilitation. But under Asitonia v. State, 508 P.2d 1023, 1026 (Alaska 1973), the sentencing judge has primary responsibility for weighing these sentencing goals in a particular case. We are to disturb the sentencing judge's determination only if it is clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). Our review of the record convinces us that Judge Schulz's sentencing decision is not clearly mistaken. The judgement of the superior court is AFFIRMED. . Indeed, Norris testified at trial that he hit Booth with the rifle simply because he was "sick of her breaking everything." . Compare Christie v. State, 580 P.2d 310, 320-22 (Alaska 1978), in which the defendant was charged under an assault statute requiring proof that the defendant had acted with either an intent to kill or an intent to wound. The supreme court upheld the defendant's conviction even though the jurors may have been split concerning whether the defendant acted with intent to kill or simply with intent to wound. . We note that Alaska's criminal pattern jury instructions (1989 edition) exacerbate the error present in Norris's case. As currently constituted, the pattern jury instructions suggest the following second-degree murder instruction when a defendant is charged under AS 11.41.-110(a)(2): First, that the event in question occurred at or near [the named place] and on or about [the named date]; Second, [that] the defendant's conduct caused the death of [the deceased]; Third, that [the defendant] knowingly engaged in this conduct; and Fourth, [that] the conduct was performed under circumstances manifesting an extreme indifference to the value of human life. The pattern instructions contain no supplemental instruction on the definition of "extreme indifference to the value of human life", nor do they indicate in any other way that this culpable mental state is an aggravated form of recklessness. Thus, the jury might fail to understand that second-degree murder requires proof of either (1) the defendant's subjective awareness of the risk to human life or (2) the defendant's failure to perceive this risk because of intoxication. Moreover, unlike the instruction given in Norris's case, the pattern second-degree murder instruction separates the phrase "knowingly engaged in conduct" from the phrase "under circumstances manifesting an extreme indifference to the value of human life''. Thus, the pattern instruction loses the potential curative value of linking the culpable mental state "knowingly" with the "circumstances manifesting . extreme indifference". We recommend that trial judges supplement the pattern instruction with a definition of "circumstances manifesting an extreme indifference to the value of human life" based on the discussion in Neitzel, 655 P.2d at 336-37. . In 1975, Norris was charged with second-degree assault in Washington for assaulting a police officer; he received a deferred disposition with probation for 5 years. In 1977, Norris's probation was revoked and he was sentenced to 10 years' imprisonment. In 1981, Norris was charged with third-degree criminal mischief and fourth-degree assault in Ketchikan. He was convicted of criminal mischief and a reduced charge of disorderly conduct. Norris had another disorderly conduct conviction in 1981, and two more in 1982. In 1985, Norris was convicted of third-degree misconduct involving weapons (carrying a concealed weapon). Norris was also convicted of reckless endangerment in 1985 for firing a rifle in the home where he and Booth were living. When the police arrived, Norris asserted that there was no problem because he had fired the bullet into the ceiling. When the police officer suggested that Norris's actions had endangered the people living upstairs, Norris replied that he did not care because it was his house and he would do what he wanted. The officer then told Norris that he would have to seize the rifle; Norris responded by moving toward the rifle and telling the officer he was going to kill him.

10356330

NORTH STAR TERMINAL AND STEVEDORE COMPANY, INC., an Alaska Corporation, Appellant, v. STATE of Alaska and the Alaska Railroad Corporation, a statutory public corporation, Appellees

North Star Terminal & Stevedore Co. v. State

1993-07-30

No. S-4770

335

341

857 P.2d 335

857

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:09:06.214921+00:00

CAP

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

NORTH STAR TERMINAL AND STEVEDORE COMPANY, INC., an Alaska Corporation, Appellant, v. STATE of Alaska and the Alaska Railroad Corporation, a statutory public corporation, Appellees.

NORTH STAR TERMINAL AND STEVEDORE COMPANY, INC., an Alaska Corporation, Appellant, v. STATE of Alaska and the Alaska Railroad Corporation, a statutory public corporation, Appellees. No. S-4770. Supreme Court of Alaska. July 30, 1993. Thomas E. Meacham, Burr, Pease & Kurtz, Anchorage, for appellant. Elizabeth J. Barry, Asst. Atty. Gen., Anchorage, Charles E. Cole, Atty. Gen., Juneau, for appellee State. Phyllis C. Johnson, Office of the Gen. Counsel for Alaska R.R. Corp., Anchorage, for appellee Alaska R.R. corporation. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

3338

20160

OPINION MATTHEWS, Justice. I. INTRODUCTION This appeal concerns the ownership of tidelands at the Port of Anchorage. North Star Terminal and Stevedore Company, Inc., (North Star) sued the State and the Alaska Railroad Corporation to quiet title in favor of North Star. The trial court ruled that North Star possessed no ownership interest * in the disputed tidelands. North Star appeals. II. FACTS The tidelands which are the subject of this appeal were previously subject to a quiet title action. United States v. City of Anchorage, 437 F.2d 1081 (9th Cir.1971). The tidelands were originally owned by the United States. Id. at 1082. However, upon its admission to the Union in 1959, the State of Alaska claimed the tidelands under the Submerged Lands Act of 1953, 43 U.S.C. § 1301-1356, and sections 6(k) and (m) of the Alaska Statehood Act, 48 U.S.C. note free. § 21. Id. at 1083. In 1961 the State purported to convey the tidelands to the City of Anchorage via State Tidelands Patent No. 10. Id. In 1965 the City purported to convey the tidelands via quitclaim deeds to various tideland occupants, including North Star's predecessor in interest, Cook Inlet Tug & Barge Co. (Cook Inlet). At that time, the United States sued to quiet title to the tidelands, claiming that no transfer of ownership to the State had taken place. Id. The District Court ruled against the United States. The Ninth Circuit reversed, holding that the United States had by implication reserved the tidelands for use by the federally owned Alaska Railroad in 1915 and that title to the lands remained in the United States after the admission of Alaska into the Union. The Ninth Circuit remanded to the District Court to determine the exact boundaries of the tidelands and to quiet title to them in favor of the United States. Id. at 1085. Rather than have the District Court determine the location of the boundaries, on remand the parties entered into a settlement agreement which the District Court incorporated in its final judgment. Although not a party to the lawsuit, North Star signed the settlement agreement as successor in interest to Cook Inlet. In the agreement, North Star explicitly acknowledged that the Alaska Railroad owned the tidelands at issue in fee simple. In addition, the District Court's final judgment explicitly nullified the City of Anchorage's quitclaim deed to Cook Inlet: "all deeds, leases and other instruments of title heretofore issued by the City of Anchorage for [the tidelands] are declared to be of no effect, and completely null and void." In 1983 Congress authorized the transfer of the land and other assets of the Alaska Railroad to the State or a State-designated entity. The State created the Alaska Railroad Corporation to receive the railroad's assets and operate the railroad. Pursuant to these acts the tidelands were conveyed by the United States to the Alaska Railroad Corporation in 1985. North Star then brought the present suit to quiet title. All parties moved for summary judgment. The trial court granted summary judgment in favor of the State and the Alaska Railroad Corporation. North Star appeals. III. DISCUSSION Essentially, North Star presents three independent arguments. It argues that it owns the tidelands; that even if the Alaska Railroad Corporation would otherwise own the tidelands, the doctrine of estoppel by deed requires the Alaska Railroad Corporation to transfer ownership to North Star; and that AS 38.05.820 provides it with property rights to the tidelands. A. North Star's ownership claim is barred by res judicata. North Star's ownership claim is based on the premise that Alaska acquired ownership of the tidelands at Statehood. This assertion is contrary to the holding in City of Anchorage. The Ninth Circuit specifically held that title to the tidelands did not pass to Alaska upon its admission to the Union. City of Anchorage, 437 F.2d at 1085. On remand, pursuant to the agreement of the parties, the District Court's final judgment specifically provided that the United States owned the tidelands in fee simple. The effect of this final judgment is that no other entity had any interest in the tidelands. Black's Law Dictionary 615 (6th ed. 1990) ("A fee simple . is an estate . without limitation or condition."). The doctrine of res judicata precludes North Star from relitigating this issue. The Restatement (Second) of Judgments provides, in relevant part: "A judgment [between parties in a former adjudication] . is conclusive in a subsequent action between [the parties] on the same or a different claim, with respect to any issue actually litigated and determined if its determination was essential to that judgment." Restatement (Second) of Judgments § 17 (1982). Although neither North Star nor the Alaska Railroad were parties to City of Anchorage, they are both successors in interest to parties involved in City of Anchorage. Thus, section 17 applies to them. Restatement (Second) of Judgments § 43 (1982) ("A judgment in an action that determines interests in real . property . [h]as preclusive effects upon a person who succeeds to the interest of a party to the same extent as upon the party himself."); see also id. § 43 reporter's note at cmt. a ("When the matter adjudicated concerns title to property . there is no question that the determination defines a property interest and is carried over upon succession."). North Star argues that res judicata nonetheless does not apply to the present case for two independent reasons. First, it claims that the issue in the present case is different than the issue in City of Anchorage. Second, it claims that a recent United States Supreme Court decision, Utah Division of State Lands v. United States, 482 U.S. 193, 107 S.Ct. 2318, 96 L.Ed.2d 162 (1987), changed the controlling law and warrants a new determination of its claim to the tidelands. Both arguments lack merit. North Star maintains that the issue involved in the present case is "what sovereign rights and equities the State had in fact acquired in these tidelands at statehood." It argues that the scope of these rights and whether these rights were subsequently conveyed to others was "simply not litigated" in City of Anchorage. We disagree. The Ninth Circuit ruled that title to the tidelands did not pass "to Alaska upon its admission to the Union." City of Anchorage, 437 F.2d at 1085. It remanded the case to the District Court with instructions to enter "judgment quieting title in the United States to the tidelands." Id. On remand, the District Court incorporated the settlement agreement and expressly ruled that the United States owned the tidelands at issue in this case in fee simple. The court did not reserve any interest in North Star's predecessor. Instead, it declared the instruments purporting to transfer any interest to North Star's predecessor "completely null and void." Thus, the effect of the District Court's ruling is that the State neither acquired nor transferred any rights in the tidelands. See also Nevada v. United States, 463 U.S. 110, 129-30, 103 S.Ct. 2906, 2918, 77 L.Ed.2d 509 (1983) ("a final judgment . 'is a finality . not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissable matter which might have been offered for that purpose.' " (quoting Cromwell v. County of Sac, 94 U.S. 351, 352, 24 L.Ed. 195 (1877)). As for its second argument, North Star relies on section 28(2)(b) of the Restatement (Second) of Judgments. Section 28(2)(b) recognizes an exception to res judi-cata when the issue to be relitigated "is one of law and . a new determination is warranted in order to take account of an intervening change in the applicable legal context or otherwise to avoid inequitable administration of the laws." Restatement (Second) of Judgments § 28(2)(b) (1982). North Star claims that Utah Division of State Lands has changed the controlling law) and cites to four cases in support of its claim that section 28(2)(b) permits relit-igation of past determinations under such circumstances: Staten Island Rapid Transit Operating Authority v. Interstate Commerce Commission, 718 F.2d 533 (2d Cir.1983); Cole v. Greyhound Lines, Inc., 220 Mont. 503, 716 P.2d 611 (1986); Hodes v. Axelrod, 70 N.Y.2d 364, 520 N.Y.S.2d 933, 515 N.E.2d 612 (1987); John P. v. Whalen, 54 N.Y.2d 89, 444 N.Y.S.2d 598, 429 N.E.2d 117 (1981). None of these cases support North Star's thesis. In addition, we question whether Utah Division of State Lands changed controlling law. The law applied in Utah Division of State Lands is summarized in the following passage: In Shively[ v. Bowlby, 152 U.S. 1 at 49-50, 14 S.Ct. 548 at 566-567, 38 L.Ed. 331 (1894) ] and [United States v. JHolt State Bank, [270 U.S. 49 at 55, 46 S.Ct. 197 at 199, 70 L.Ed. 465 (1926)] this Court observed that Congress "early adopted and constantly has adhered" to a policy of holding land under navigable waters "for the ultimate benefit of future States." Congress, therefore, will defeat a future State's entitlement to land under navigable waters only "in exceptional instanc es," and in light of this policy, whether faced with a reservation or a conveyance, we simply cannot infer that Congress intended to defeat a future State's title to land under navigable waters "unless the intention was definitely declared or otherwise made very plain." Utah Division of State Lands, 482 U.S. at 201-02, 107 S.Ct. at 2323 (citations omitted). The Supreme Court of the United States did not overrule any of its prior cases in deciding Utah Division of State Lands. The Ninth Circuit in City of Anchorage relied on Holt State Bank and Shively, among other decisions. It concluded that the intention of Congress to reserve the tidelands was "obvious," 437 F.2d at 1084, that "establishment of the Alaska Railroad was one of those 'exceptional instances' falling within the exception to the general rule stated in" Holt State Bank and Shively, City of Anchorage at 1085, and that "[b]eyond question, the establishment of the railroad was a 'public exigency', as that phrase was used in those cases." Id. Thus in deciding City of Anchorage the Ninth Circuit employed the same legal standards endorsed in the Utah Division of State Lands opinion. Moreover, assuming that Utah Division of State Lands did change controlling law, we hold that section 28(2)(b) is inapplicable to North Star's claim. North Star is ultimately seeking not merely a redetermination of the law, but a redeter-mination of whether in fact title to the tidelands passed to Alaska in 1959. We decline to apply section 28(2)(b) in such circumstances. Section 28(2)(b) is paradig-matically intended to prevent the rigid application of superseded rules of law "to claims arising after the first proceeding has been concluded." Restatement (Second) of Judgments § 28 cmt. b (emphasis added). It is not intended to allow a disgruntled party to challenge "his adverse result based upon the new holding." Cole, 716 P.2d at 613. Indeed, to allow such challenges in this setting would be to subvert the very purpose of res judicata. We agree with the Washington Supreme Court that change of decisional law does not justify relief from a quiet title decree. Columbia Rentals, Inc. v. State, 89 Wash.2d 819, 576 P.2d 62, 65 (1978). In Columbia Rentals, plaintiffs owned beach front property. They or their predecessors in interest sued to determine their ocean front boundaries. The last of those actions was resolved in 1961. Judgment in nearly all of the cases was entered by agreement of the parties. The judgments determined that the ocean front boundary was the mean high tide line as of November 11, 1889. Subsequently, in an unrelated action, the United States Supreme Court held that owners of ocean front property were entitled to accretions which had formed along their land. Hughes v. Washington, 389 U.S. 290, 292-93, 88 S.Ct. 438, 440, 19 L.Ed.2d 530 (1967). Plaintiffs then sued to quiet title in the accreted lands. The trial court granted summary judgment to the plaintiffs. The Supreme Court of Washington reversed, holding that res judicata precluded the plaintiffs from relit-igating the boundaries of their land. Columbia Rentals, 576 P.2d at 65. The court reasoned that "[i]f prior judgments could be modified to conform with subsequent changes in judicial interpretations, we might never see the end of litigation.... [S]hould Hughes be overruled, another suit to again change judgments would be in order. That is precisely what the doctrine of res judicata precludes." Id. We find this reasoning of the Washington Supreme Court particularly compelling in the present setting. As the United States Supreme Court explained over a century ago, "[wjhere questions arise which affect titles to land it is of great importance to the public that when they are once decided they should no longer be considered open." Minnesota Co. v. National Co., 70 U.S. (3 Wall.) 332, 334, 18 L.Ed. 42 (1866). Consequently, "[t]he policies advanced by the doctrines of res judicata perhaps are at their zenith in cases concerning real property, land and water." Nevada v. United States, 463 U.S. 110, 129 n. 10, 103 S.Ct. 2906, 2918 n. 10, 77 L.Ed.2d 509 (1983). In sum, North Star's claim that the State received title to the tidelands in 1959 was decided in City of Anchorage. It is doubtful whether there has been a change in controlling law. Assuming a change, the change would not provide a proper basis for relitigating this issue. Thus, res judica-ta precludes North Star's claim. B. Estoppel by deed does not apply to the present case. Alternatively North Star argues that the doctrine of estoppel by deed estops the State from denying North Star's rights to the tidelands and requires ownership to pass to North Star. We disagree. The doctrine of estoppel by deed generally applies when one later becomes the owner of property he or she previously purported to convey. 6A Richard R. Powell & Patrick J. Rohan, Powell on Real Property, ¶ 901[2] at 81A-159 (1998). When the grantor later acquires title, "the after acquired title inures automatically to . the grantee or his or her successors." Id. However estoppel by deed does not apply when the conveyance is made by a quitclaim deed. Id. at 81A-160. In the present case, the State issued Tidelands Patent No. 10 to the City of Anchorage in 1961. A patent operates as a deed of the government. "As a deed, its operation is that of a quitclaim.... It passes only the title the government has . on the date of the patent." 63A Am. Jur.2d, Public Lands § 77, at 575 (1984). It follows as a general rule that government patents are "without any covenants of warranty whatever; and it is clear also that the doctrine of estoppel does not apply thereto so as to pass an after-acquired title." Id. As we have noted in connection with a patent by the United States, the patent's effect is the same as though the United States had executed a quitclaim deed. City of Anchorage v. Nesbett, 530 P.2d 1324, 1329 (Alaska 1975) (quoting and relying on Wilson Cypress Co. v. del Pozo y Marcos, 236 U.S. 635, 647-48, 35 S.Ct. 446, 451, 59 L.Ed. 758 (1915)). State patents are subject to the same analysis. William H. McCeney, Jr., Inc. v. Thibadeau, 215 Md. 77, 137 A.2d 206, 207 (1957) ("the legal effect of a patent is to transfer to the party in whose name it issues all the right which the State possessed in the land that it describes, and no more."). Tidelands Patent No. 10 therefore functioned as a quitclaim deed. Thus, estoppel by deed does not apply in this case. C. AS 38.05.820 does not provide North Star with any rights to the tidelands. North Star argues that AS 38.05.-820 provides it with property rights to the tidelands. Alaska Statute 38.05.820(a) "allow[s] preference rights for the acquisition of tide and submerged land" from the State. However, the act that created the Alaska Railroad Corporation specifically provides that AS 38.05.820 does not apply to the operations of the Alaska Railroad Corporation. AS. 42.40.920(b)(ll). Since the United States conveyed the tidelands to the Alaska Railroad Corporation, AS 38.05.- 820 does not provide North Star with any rights to the tidelands. IV. CONCLUSION North Star's ownership claim to the tidelands is barred by res judicata. Estoppel by deed is inapplicable because North Star's predecessor in interest received a quitclaim deed. Alaska Statute 38.05.820 does not provide North Star with any rights to the tidelands because the Alaska Railroad Corporation is exempt from that statute. The trial court was correct in granting summary judgment to the State and the Alaska Railroad Corporation. AFt FIRMED. . The parties agree that this appeal involves only legal questions and that there are no disputed issues of material fact. This court decides legal questions de novo, adopting the rule of law which "is most persuasive in light of precedent, reason and policy." Langdon v. Champion, 745 P.2d 1371, 1372 n. 2 (Alaska 1987) (citations omitted). . Specifically, North Star suggests that the United States only retained a right of occupancy, and not a fee simple, in the tidelands. North Star claims that Cook Inlet therefore acquired an ownership interest in the tidelands via the conveyances from the State and the City of Anchorage. North Star argues that when the United States relinquished its right of occupancy in 1985, North Star acquired unencumbered fee title. . As noted earlier, "[a] fee simple . is an estate . without limitation or condition." Black's Law Dictionary 615 (6th ed. 1990). . In Cole, the Montana Supreme court held that in spite of subsequent change in the law, "res judicata bars the reopening of claimant's original case." Cole, 716 P.2d at 613. Thus, Cole specifically holds against North Star's position. Staten Island involved a redetermination of the law but did not involve an attempt to set aside an earlier judgment. Staten Island, 718 F.2d at 537. Hodes and Whalen allowed relitigation based on past events, but on the grounds that different legal rights were involved, not on the strength of § 28(2)(b). Hodes, 515 N.E.2d at 617 ("the statutory rights of the parties were [so] altered between the first and second proceedings" that "the two proceedings . lack the requisite identity for application of res judicata.''). . The Alaska Railroad Corporation also argues that North Star contractually released any ownership claims to the tidelands when it signed the final settlement agreement in City of Anchorage. Since we hold that res judicata bars North Star's claim, we do not reach this issue. . This is because estoppel by deed "arises only where a party [assures] the conveyance being made." Powell, supra, at 81A-160. In the case of a quitclaim deed, "the grantor merely purports to convey such . interest as he or she may have, if any. If the grantor does not have title to the property, the grantee cannot claim to have been assured to the contrary." Id. at 81A-160 to 161. . In 1965, the City in turn issued a quitclaim deed for the tidelands at issue to North Star's predecessor in interest. . The appellees also argue that estoppel by deed does not apply to the present case because the Alaska Railroad was not a privy or party to the earlier conveyance; because the Federal District Court in City of Anchorage voided the conveyance; and because estoppel by deed does not apply against the government. In light of our decision, we do not reach these issues.

10396273

Troy BAKER, Appellant, v. STATE of Alaska, Appellee

Baker v. State

1989-11-09

No. A-2959

1368

1369

781 P.2d 1368

781

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:09:08.575920+00:00

CAP

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

Troy BAKER, Appellant, v. STATE of Alaska, Appellee.

Troy BAKER, Appellant, v. STATE of Alaska, Appellee. No. A-2959. Court of Appeals of Alaska. Nov. 9, 1989. Marcia E. Holland, Asst. Public Defender, Fairbanks, and John B. Salemi, Public Defender, Anchorage, for appellant. Robert D. Bacon, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Douglas B. Baily, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

756

4614

OPINION SINGLETON, Judge. Troy D. Baker was convicted by a jury of misconduct involving weapons in the first degree in violation of AS 11.61.200(a)(1) for knowingly possessing "a firearm capable of being concealed on one's person after having been convicted of a felony." Baker appeals. We affirm. William Crabtree and Troy Baker were partners in a woodcutting business in Fairbanks. After Baker unsuccessfully tried to collect $180 that Crabtree apparently owed him, Baker took Crabtree's handgun. Crabtree called the police. When an officer arrived, Baker told the officer that he had taken the gun out of Crabtree's truck and pawned it for $135. Baker gave the officer the pawn receipt, and the officer gave the receipt to Crab-tree. When the police discovered that Baker was a convicted felon, they took the pawn receipt from Crabtree as evidence. The next day, the police seized the gun from the pawn shop. Baker requested the following jury instruction: To possess means to exercise dominion and control. To possess means to have actual control, care, and management of, and not a passing control, fleeting and shadowy in its nature. Passing control for the purpose of disposal does not constitute possession. Instead, the trial court instructed the jury as follows: 'Possess' means having physical possession or the exercise of dominion or control over property. The law recognizes two kinds of possession: actual possession and constructive possession. Actual possession means to have direct physical control, care and management of a thing. A person not in actual possession may have constructive possession of a thing. Constructive possession means to have the power to exercise dominion or control over a thing. This may be done either directly or through another person or persons. The law recognizes that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. You may find that the element of possession as that term is used in these instructions is present if you find beyond a reasonable doubt that the defendant had actual or constructive possession, either alone or jointly with others. Baker argues that a brief innocent possession of a weapon for the purpose of disposal does not constitute possession as defined in AS 11.61.200(a)(1) and AS 11.81.-900(b)(42). Baker reasons that the purpose of the felon-in-possession statute is to prevent the concealment and use of firearms in violent crimes. Shaw v. State, 673 P.2d 781, 785 (Alaska App.1983), modified 677 P.2d 259 (Alaska App.1984). In Baker's view, possession of a firearm for less than one-half hour for the purpose of pawning it is not the type of possession which the legislature intended to be covered by the felon-in-possession statute. See Adams v. State, 706 P.2d 1183 (Alaska App.1985) (possession of controlled substance). Baker's claim does not rest on necessity or self-defense. We are satisfied that the legislature did not intend to permit felons to possess prohibited weapons as collateral for debt, nor did it intend to immunize knowing possession of a weapon for the time necessary to pawn it. It is also clear that Baker's proposed instruction would have been misleading in light of the facts of this case. Baker did not have momentary or inadvertent possession of the handgun. According to his offer of proof, he knowingly took it from Crabtree, pawned it, and retained the pawn ticket until he turned it over to the police. Under these circumstances, a reasonable jury could not find momentary or inadvertent possession of the handgun. The judgment of the superior court is AFFIRMED. . Baker did not testify. Baker made the following offer of proof in support of an instruction: that he had worked with Crabtree on the date in question, that Crabtree owed him money, that Crabtree gave Baker the pistol as he dropped Baker off in downtown Fairbanks, that Baker did not want the pistol, but needed money so he pawned the pistol, and that the gun was in his possession for a total of less than one-half hour. . In Adams, the substance came into Adams' possession inadvertently. 706 P.2d at 1184, 1187. Here, Baker knowingly took the gun.

10382162

KENAI PENINSULA BOROUGH, a Municipal Corporation, Appellant, v. ENGLISH BAY VILLAGE CORPORATION, Appellee

Kenai Peninsula Borough v. English Bay Village Corp.

1989-10-13

No. S-2033

6

24

781 P.2d 6

781

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:09:08.575920+00:00

CAP

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

KENAI PENINSULA BOROUGH, a Municipal Corporation, Appellant, v. ENGLISH BAY VILLAGE CORPORATION, Appellee.

KENAI PENINSULA BOROUGH, a Municipal Corporation, Appellant, v. ENGLISH BAY VILLAGE CORPORATION, Appellee. No. S-2033. Supreme Court of Alaska. Oct. 13, 1989. Kristine A. Schmidt, Deputy Borough Atty., and Thomas R. Boedeker, Borough Atty., Soldotna, for appellant. R. Collin Middleton, Middleton, Timme & McKay, Anchorage, for appellee. Before MATTHEWS, C.J., RABINO WITZ, BURKE, COMPTON and MOORE, JJ.

12435

74287

OPINION MATTHEWS, Chief Justice. I. On July 22, 1986, English Bay Village Corporation (English Bay) obtained a default judgment against the Kenai Peninsula Borough. This judgment enjoined the Borough from pursuing foreclosure pro ceedings against the corporation for nonpayment of real property taxes assessed for the 1982 and 1983 tax years and from enforcing a 1982 judgment of foreclosure against English Bay lands for non-payment of 1981 taxes. After the default judgment was entered the Borough allowed the time for appeal to run without taking an appeal. On September 9, 1986, it moved to set aside the default judgment under Civil Rule 60(b)(1), (3), and (4) for mistake, neglect, misconduct, and fraud of an adverse party, and because the judgment was void for lack of personal jurisdiction. The trial court denied this motion. It found no grounds of mistake, neglect, misconduct or fraud under Rule 60(b)(1) and (3), and concluded that the Borough had waived its jurisdictional objection by making a voluntary appearance. After the default judgment was entered, English Bay filed á motion for attorney's fees. This was granted after the Rule 60(b) motion was denied and an award of $10,000 was made. There are five points on appeal: (1) that the superior court erred in not dismissing this case prior to default judgment for want of prosecution; (2) that the superior court erred in issuing a default judgment; (3) that the superior court erred "in ruling that the statutory notice procedures for tax foreclosure actions did not accord due process to the property owners;" (4) that the superior court erred and abused its discretion in denying the motion to set aside the default judgment; and (5) that the superior court erred in awarding attorney's fees. Only the fourth and fifth points are before us. The first three points concern the entry of the default judgment and actions taken before it was entered. Any such challenge should have been taken by appeal. Thus, as in Anderson v. State, Department of Highways, 584 P.2d 537, 540 (Alaska 1978) the merits of the superi- or court's underlying judgment are not properly before us. A Rule 60(b) motion is not a substitute for an appeal. Anderson, 584 P.2d at 540. With respect to the Borough's fourth point on appeal, that the default judgment should have been set aside, the excusable neglect-mistake grounds under Rule 60(b)(1) and fraud and other misconduct grounds under Rule 60(b)(3) are likewise foreclosed from consideration. Those grounds concern facts which were known to the Borough at the time the default judgment was entered. Contentions based on facts which are known to a party at a time when a direct appeal is possible must either be raised on direct appeal, see Friedman v. Wilson Freight Forwarding Co., 320 F.2d 244, 247 (3d Cir.1963), or in a Rule 60(b) motion made during the time for taking the appeal. Anderson, 584 P.2d at 540 nn. 9, 11. As void judgments are not subject to this rule, the only argument properly before us on the merits is whether the trial court erred in denying the motion to set aside the default judgment on the grounds that the judgment is void. II. A. In order to understand the Borough's contention that the judgment is void, the facts must be set forth in some detail. English Bay filed suit against the Borough on June 27, 1984, challenging the Borough's assessment of taxes on its lands for 1981,1982, and 1983, and seeking to set aside a judgment for tax foreclosure which the Borough had obtained. Accompanying the complaint were a summons to the Borough and a motion for preliminary injunction. English Bay contemplated that the clerk of court would serve the Borough by mail under Civil Rule 4(h) by mailing the documents by certified mail to the Borough Attorney, Thomas Boedeker. Although a receipt allegedly showing mail delivery of such documents was returned, the Borough Attorney claims that he did not receive a copy of the filed complaint. He states that he was sent an unfiled copy, without a court caption or a signature, which he assumed was a negotiating ploy. In any case, by July 27, 1984, Boedeker knew that a complaint had been filed and that an answer was due. On that date he signed a stipulation in the foreclosure action between the Borough and English Bay which, in return for extending the redemption period in the foreclosure action, extended the time for the Borough to answer the complaint in the present case until August 30, 1984. The stipulation was filed in the foreclosure action but not in this case. No answer was ever filed. On October 16, 1984, English Bay's motion for preliminary injunction, to which no opposition had been filed, was granted. The order contained an endorsement indicating that a copy was mailed to counsel for the Borough, who, however, denies receiving it. English Bay applied for an entry of default on November 13, 1984. The application was not served on the Borough nor was inquiry made as to whether the Borough's attorney intended to proceed. The court clerk entered a default on November 26, 1984. The clerk certified that a copy of the entry of default was sent to Borough counsel Boedeker on November 28, 1984. Boedeker claims he did not receive this. For seventeen months after entry of default, English Bay took no action. On May 8, 1986, the clerk sent the parties a Notice and Order of Dismissal for lack of prosecution pursuant to Civil Rule 41(e). The notice states: "If good cause to the contrary is not shown within 33 days of the mailing of this notice, this action will be dismissed without further notice.... " On June 13, 1986, English Bay filed an application for default judgment. The Borough evidently believed the case would be dismissed on the thirty-third day, as the court's Notice and Order of Dismissal stated. On June 16, 1986, the Borough moved to dissolve the court's 1984 preliminary injunction at the same time it dismissed the case. This was the first time the Borough had submitted anything to the court in this lawsuit. On June 23, 1986, the Borough filed a motion and a supporting memorandum which opposed English Bay's application for a default judgment and sought dismissal of the case under the terms of the Notice and Order of Dismissal. The Borough did not state, or preserve, a defense of lack of proper service. English Bay opposed the Borough's motion to dismiss. The court entered default judgment against the Borough on July 22, 1986. At this point, the Borough allowed the thirty-day appeal period provided by Appellate Rule 204(a) to lapse. On September 9, 1986, three weeks after the appeal period lapsed, the Borough moved to set aside the default judgment pursuant to Civil Rule 60(b). The court denied the Borough's motion on January 9, 1987, and this appeal followed. B. The Borough argues that the judgment is void because the court never obtained jurisdiction over the Borough by proper service. There are two defects identified which do not depend on personal credibility. First, the summons and complaint was not delivered to the "chief executive officer or chief clerk or secretary" of the Borough as required by Civil Rule 4(d)(9). Second, service by mail upon a public corporation is not allowed under Civil Rule 4(h). While we believe that a plau sible case has been made by the Borough that service was defective in these respects, it is not necessary to resolve these issues because personal jurisdiction attached when the Borough appeared on June 16, 1986, without challenging the validity of service. A court acquires personal jurisdiction over one who appears without challenging jurisdiction. Alaska Statute 09.05.010 provides: "The voluntary appearance of the defendant is equivalent to personal service of a copy of the summons and complaint upon the defendant." The first such appearance, as noted, came on June 16, 1986, when the Borough made its first motion in this case. At that point, personal jurisdiction attached. The Borough is deemed to have been served then with a copy of the summons and complaint under AS 09.05.-010. For this reason, the court had personal jurisdiction over the Borough when the default judgment was entered. III. Our dissenting colleague has expressed the view that the default judgment is void because when the superior court entered it, the court "plainly usurped its power." Plain usurpation occurred, according to the dissent, because there was no prior valid entry of default and no valid application for a default or default judgment. These defects existed because the Borough had not been properly served with the summons or complaint. In our view, this position is erroneous both procedurally and substantively. The position is wrong procedurally because the Borough did not argue before the trial court or on appeal that the judgment is void under the plain usurpation of power standard. Points not raised in the court below are ordinarily considered waived and will not be considered on appeal, except where plain error has been committed. In re L.A.M., 727 P.2d 1057, 1059 (Alaska 1986). "Plain error exists where 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). Plain error will not be considered unless "it is so substantial as to result in a miscarriage of justice." In re C.L.T., 597 P.2d 518, 523 (Alaska 1979). Further, where an issue is not briefed on appeal, it will not be considered. E.g., Wetzler v. Wetzler, 570 P.2d 741, 742 n. 2 (Alaska 1977). Exceptions to this rule are rare. We have, on very few occasions, found an unbriefed question to be "critical to a proper and just decision." In those cases, we have directed the parties to brief the question and then decided it. E.g., Vest v. First Nat'l Bank of Fairbanks, 659 P.2d 1233, 1234 n. 2 (Alaska 1983); Matanuska-Susitna Borough v. Hammond, 726 P.2d 166, 182 (Alaska 1986). In the present case, we have not called for briefing on the question of the application of the plain usurpation of power standard. Justice does not require such an extraordinary step in this case. Additionally, the trial court did not commit plain error amounting to a miscarriage of justice in failing to consider the default judgment to be void under the plain usurpation standard. We take this view because it is clear that by July 27,1984, the Borough attorney, Mr. Boedeker, knew of this lawsuit and knew that he had to file an answer to it. Yet, he unaccountably took no action in this case until June 16, 1986. Since counsel has been afforded notice and an opportunity to be heard, and has given no credible excuse for inaction, we do not view this case as one involving a miscarriage of justice or as one in which justice requires the extraordinary step of a court-raised point on appeal. Even if the plain usurpation of power standard had been argued below or briefed on appeal, it would not apply. The stan dard should be rarely and sparingly employed. 7 J. Moore & J. Lucas, Moore's Federal Practice H 60.25[2], at 60-227 to -230 (2d ed. 1985) (hereinafter Moore's Federal Practice). In order to protect the finality of judgments, care must be taken -¡to distinguish between true instances of usurpation of power, and instances where the court has merely committed prejudicial error. Some instances of what may be regarded as true usurpation are illustrated in the following authorities: Kalb v. Feuer-stein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370 (1939) (although jurisdiction in state court was valid at the outset, court-ordered foreclosure which violated federal bankruptcy statute's stay of state proceedings was a nullity); Pacurar v. Hernly, 611 F.2d 179 (7th Cir.1979) (district court granted motion to dismiss for lack of diversity with prejudice: the "with prejudice" aspect of the judgment was an adjudication on the merits which was precluded since there was no diversity jurisdiction); Jordon v. Gilligan, 500 F.2d 701 (6th Cir.1974) (award of attorney's • fees against uncon-senting sovereign state void as prohibited by the 11th Amendment). Application of the plain usurpation standard should be limited to cases which involve an arrogation of authority which the court clearly lacks. Unless the doctrine is so limited, it will become a means by which courts can declare judgments to be void merely because serious mistakes have been made. In the present case, the mistakes identified by the dissent as justifying a declaration of voidness under the plain usurpation of power standard are issuing a default judgment (1) in the absence of a prior valid entry of default, (2) without a valid application for default, and (3) without a valid application for a default judgment. These acts do not involve usurpation of power, plain or otherwise. The following reasons support this conclusion. First, taking a default judgment without notice, while a serious error, should not ordinarily be regarded as rendering the underlying judgment Void: And a court has stated that where a default judgment is taken without notice, as provided in Rule 55(b)(2), "there was a failure of due process and the judgment a nullity." This position cannot be supported. While the failure to give the required notice is generally regarded as a serious procedural irregularity that may afford the basis for reversal on appeal, or for relief under an appropriate clause of Rule 60(b) and in conjunction with other irregularities may render the judgment void, the error should not usually be treated as so serious as to render the judgment void. It should be considered in the light of surrounding circumstances and will, at times, be harmless. 7 Moore's Federal Practice, supra p. 10, ¶ 60.25[2] at 60-237 to -238 (footnotes omitted). See also 6 Moore's Federal Practice, supra p. 10 ¶ 55.09, at 55-49 (2d ed.1986): While the above principles are those of general applicability, an occasional atypical case departs from them. Bass v. Hoagland, [172 F.2d 205 (5th Cir.1949), cert. denied, 338 U.S. 816, 70 S.Ct. 57, 94 L.Ed. 494 (1949) ] for example, sustained a collateral attack on a judgment where, as one of a number of procedural errors, plaintiff had failed to give the defendant 3 days' written notice of the application for judgment as required by Rule 55(b)(2). Certainly as a general proposition such a procedural error does not justify a collateral attack upon a default judgment. (Footnotes omitted, emphasis added.) C. Wright, A. Miller & M. Kane, Federal Practice & Procedure ¶ 2687, at 438-40 (2d ed.1983) states: "A failure to give the three days' notice when it is required generally is considered a serious procedural error that justifies the reversal or the setting aside of the default judgment. The judgment, however, usually is not considered void or subject to collateral attack." (Footnotes omitted, emphasis added.) Since the present default judgment was taken thirty days after the Borough filed opposition to the motion for default judgment, these authorities demonstrate, a fortiori, that the default judgment here should not be held to be void. Second, the dissent's conclusion that there was no valid application for a default is dubious. It is clearly correct to consider that the Borough was served with the application for default judgment because the Borough actually filed opposition to that application on June 23, 1986. An application for a default judgment made where no default has been entered has been held to imply that a default is also sought. System Indus., Inc. v. Han, 105 F.R.D. 72, 74 (E.D.Pa.1985); Fisher v. Taylor, 1 F.R.D. 448 (E.D.Tenn.1940); see also Meehan v. Snow, 652 F.2d 274, 276 (2d Cir.1981). What remains is the alleged error of entering a default judgment without first entering a default. It is by no means clear that a default and default judgment may not be entered simultaneously or that a default judgment may not be entered immediately following a default. Several federal courts have held either that simultaneous applications are permissible or that the initial step of obtaining a default may be by-passed. Systems Indus., Inc., 105 F.R.D. at 74; Breuer Elec. Mfg. Co. v. Toronado Sys. of Am., Inc., 687 F.2d 182, 185 (7th Cir.1982). Systems Industries, Inc. addressed this issue: No default has been entered in this case, because plaintiff has not filed any application with the clerk for entry of a default. Accordingly, I will treat plaintiff's motion as one which requests both (1) an order directing the clerk to enter a default against the defendants, and (2) entry of a default judgment. As a practical matter, I need consider only whether a default judgment is appropriate in this case: if it is, then it follows that the lesser standard of Rule 55(a) is satisfied; if not then entry of a default by the Clerk would be a waste of effort. System Indus., Inc., 105 F.R.D. at 74. See also Meehan, 652 F.2d at 276 (dictum), in which the Second Circuit stated: The omission of the entry of a default was largely technical because the hearing on the appellee's motion for the entry of a default judgment afforded the appellants the same opportunity to present mitigating circumstances that they would have had if a default had been entered and they had then moved under Rule 55(c) to set it aside. Although the better interpretation of Civil Rule 55 seems to be that obtaining a default and a default judgment is properly a two-step process, nevertheless the first step in the process, obtaining a default, is largely a formality. 6 Moore's Federal Practice, supra p. 10, H 55.03[2], at 55-17, ¶ 55.10[1], at 55-51 (2d ed. 1986) ("The entry of default is largely a formal matter"). Any error by the trial court in entering a default judgment without first entering a default, does not involve an arrogation of authority. Federal courts operating under similar rules would regard it either as not error at all or as a minor procedural shortcoming. For these reasons, we conclude that the plain usurpation of power standard does not apply to the judgment in this case. IV. The trial court awarded English Bay $10,000 in attorney's fees pursuant to Civil Rule 82 on February 25, 1987. The trial court found that English Bay had actually incurred fees of $19,895. The Borough's first challenge to this award is that the superior court erred in allowing English Bay to file an untimely supplemental memorandum five months after the initial motion for attorney's fees was made. This contention lacks merit. The supplemental memorandum itemized fees requested for work done after the initial attorney's fees motion was filed. This work related primarily to English Bay's efforts in opposing the Borough's motion for relief from the default judgment under Civil Rule 60(b). The Borough also complains that it was not given an opportunity to respond to the supplemental memorandum. This too lacks merit because the superior court granted the Borough's motion to reconsider the award in order to entertain the supplemental opposition of the Borough. After the opposition was considered, the initial award was reaffirmed. The Borough also complains that the award is excessive. Trial courts have broad discretion in fixing an award of attorney's fees under Civil Rule 82. Gold Bondholders Protective Council v. Atchison, Topeka & Santa Fe Ry., 658 P.2d 776, 778 (Alaska 1983). The objective of Civil Rule 82 is to provide the prevailing party with reasonable partial compensation. Davis v. Hallett, 587 P.2d 1170, 1171-72 (Alaska 1978). The award of just over fifty percent of English Bay's actual fees is consistent with this purpose and not an abuse of discretion. The judgment is AFFIRMED. . The judgment also permanently enjoins the Borough from assessing and levying real property taxes on lands owned by the corporation which are neither leased nor being developed. Whether this provision extends beyond the tax years 1981, 1982, and 1983 is not before us. . We have held that such an inquiry should be made where counsel for the defendant has been identified: When [a lawyer] knows the identity of a lawyer representing an opposing party, he should not take advantage of the lawyer by causing any default or dismissal to be entered without first inquiring about the opposing lawyer's intention to proceed. American College of Trial Lawyers Code of Trial Conduct, No. 14A, at 149 (1971-72), quoted in Demoski v. New, 737 P.2d 780, 786 (Alaska 1987); Hertz v. Berzanske, 704 P.2d 767, 772 (Alaska 1985). This failure would ordinarily justify setting aside a default judgment under Civil Rule 60(b)(3), Hertz, 704 P.2d at 772-73; City of Valdez v. Salomon, 637 P.2d 298, 299 (Alaska 1981), but it does not render the judgment void. . Alaska Rule of Civil Procedure 12(h)(1) states: A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g) [entitled "Consolidation of Defenses in Motion" ], or (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course. . Alaska Civil Rule 55(c)(2) requires counsel to . file "a memorandum of default" when applying to the court for a default judgment, thus implying a two-step process. While the Federal Rules of Civil Procedure have no similar provision, the local rules of the United States District Court for the Southern District of New York, under which Meehan was decided, do contain a similar requirement, 652 F.2d at 276 n. 4, a fact which did not change the court of appeals' conclusion that the omission of the entry of default was largely technical.

10387248

Anthony P. ENRIQUEZ, Appellant, v. STATE of Alaska, Appellee

Enriquez v. State

1989-11-03

No. A-2808

578

580

781 P.2d 578

781

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:09:08.575920+00:00

CAP

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

Anthony P. ENRIQUEZ, Appellant, v. STATE of Alaska, Appellee.

Anthony P. ENRIQUEZ, Appellant, v. STATE of Alaska, Appellee. No. A-2808. Court of Appeals of Alaska. Nov. 3, 1989. Kevin McCoy, Asst. Public Defender, Ke-nai and John B. Salemi, Public Defender, Anchorage, for appellant. W.H. Hawley, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage and Douglas B. Baily, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

1063

6557

OPINION COATS, Judge. Anthony P. Enriquez was convicted for misconduct involving weapons in the first degree in violation of AS 11.61.200(a)(1). On April 15, 1988, Superior Court Judge James A. Hanson sentenced Enriquez to two years' imprisonment with one year suspended, to be followed by five years' proba tion. Judge Hanson ordered Enriquez to report to serve his term on August 1, 1988. Pending incarceration, Enriquez was released on certain conditions, including a restriction on the use of controlled substances. On July 5, 1988, Enriquez submitted a urine sample that tested positive for cocaine. The state filed a motion to impose the suspended sentence. On August 11,1988, another hearing was held. Enriquez did not deny the incident but argued that a revocation of his probation would be inappropriate. He contended that a revocation based on conduct which occurred before his probation began would result in an unlawful extension of the period of probation. The state responded to this argument by pointing out that it had not asked the court to revoke probation but only to impose the suspended sentence. Judge Hanson agreed with the state and indicated he would change the sentence. He resentenced Enriquez to two years' imprisonment with six months suspended, also to be followed by five years' probation. This appeal followed. We affirm. Enriquez bases his argument on AS 12.-55.090(c), which limits the total period of probation to five years, and the case of United States v. Dick, 773 F.2d 937 (7th Cir.1985). In 1981, Dick was convicted for extortion and sentenced to one year's imprisonment, to be followed by five years' probation. Dick's sentence was stayed pending appeal and he was released on appeal bond. While out on appeal, Dick committed rape and kidnapping offenses for which he was later convicted. The court which had sentenced Dick for the extortion offenses granted the state's motion to revoke probation. Id. at 938-39. Dick appealed and the Seventh Circuit Court of Appeals reversed, based in part on its interpretation of 18 U.S.C. § 3651 which limits probation to a five-year period. The appellate court concluded that revoking probation for conduct taking place before the probation period began was an unlawful extension of the five-year limit on probation. The court explained that if defendants were held accountable for violations of the law occurring during the period of time they were free on appeal bond, then defendants would be at risk for probation violations at varying periods of time, depending on how long their appeals took. The court ruled that such an extension was unacceptable. Id. at 943-44. Enriquez argues that, like Dick, his probationary period has been extended beyond the five-year limit. There is a seripus problem with his argument. Dick was overruled by the Seventh Circuit in United States v. Yancey, 827 F.2d 83, 84 (7th Cir.1987), cert. denied, — U.S. —, 108 S.Ct. 1239, 99 L.Ed.2d 437 (1988). The Yancey court examined the application of section 3651 together with section 3653 which provides that "[a]t any time within the probation period, the probation officer may for cause arrest the probationer . [and ^hereupon the court may revoke the probation." (emphasis added.) The court agreed with Dick that a literal reading of sections 3653 and 3651 would limit judicial power to revoke probation to the probation period. Id. at 86. The court, however, was convinced by the Third Circuit that the statutes should be interpreted more broadly in light of their general purposes. Id. at 87-88. See United States v. Veatch, 792 F.2d 48 (3d Cir.1986), cert. denied, 479 U.S. 933, 107 S.Ct. 407, 93 L.Ed.2d 359 (1986). Regarding the five-year limit on the term of probation, the Yancey court conceded that a convict was, in effect, "on probation" for more than five years. The court noted, though, that the legislature apparently did not believe it to be inconsistent to limit the term of probation to five years while allowing revocation at any time. The court concluded that Dick had construed the probation statutes too narrowly. It expressly overruled Dick and held that the Probation Act did not preclude a court from revoking probation for a preprobation offense. 827 F.2d at 88. In Alaska, when the accused has engaged in "criminal practices," the sentenc ing court has the authority to revoke probation, even when the probationary term has not yet commenced. Benboe v. State, 738 P.2d 356, 359-60 (Alaska App.1987). See also Wozniak v. State, 584 P.2d 1147, 1148 (Alaska 1978); Betzner v. State, 768 P.2d 1150, 1154 (Alaska App.1989), petition for hearing granted (May 1, 1989); Gant v. State, 654 P.2d 1325, 1326-27 (Alaska App.1982). In the trial court, Enriquez never contested that the state could prove that he had tested positive for cocaine or that he had possessed and used cocaine in violation of his conditions of release and in violation of law. Enriquez only argued that revocation of his probation would violate AS 12.-55.090(c). However, Benboe, 738 P.2d at 359, provides authority for revoking Enri-quez's probation where the accused has engaged in "criminal practices." The overwhelming weight of federal and state authority is to the effect that revocation of probation before the probationary term begins does not impermissibly extend the term in violation of AS 12.55.090(c). We accordingly affirm the trial court's judgment imposing Enriquez's suspended sentence. The sentence is AFFIRMED. . AS 12.55.085(b) provides: At any time during the probationary term of the person released on probation, a proba tion officer may, without warrant or other process, rearrest the person so placed in the officer's care and bring the person before the court, or the court may, in its discretion, issue a warrant for the rearrest of the person and may revoke and terminate the probation, if the interests of justice require, and if the court, in its judgment, has reason to believe that the person placed upon probation is violating the conditions of probation, or engaging in criminal practices, or has become abandoned to improper associates, or a vicious life.

10495388

John C. MILLER and Levarg Gravel Co., a corporation, Petitioners, v. George E. ATKINSON, Jr., Respondent

Miller v. Atkinson

1961-10-11

No. 157

550

553

365 P.2d 550

365

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:13:32.938479+00:00

CAP

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

John C. MILLER and Levarg Gravel Co., a corporation, Petitioners, v. George E. ATKINSON, Jr., Respondent.

John C. MILLER and Levarg Gravel Co., a corporation, Petitioners, v. George E. ATKINSON, Jr., Respondent. No. 157. Supreme Court of Alaska. Oct. 11, 1961. W. C. Arnold, Anchorage, for petitioners. Neil S. Mackay, Anchorage, for respondent. Before NESBETT, C. J., and DIMOND and AREND, JJ.

1772

10353

PER CURIAM. In this petition we are asked to review a July, 1961 order of the Superior Court, Third Judicial District, temporarily restraining the petitioners from removing in-place gravel from a certain gravel pit. The basic question presented is whether any legal grounds existed for the issuance of the restraining order. The petitioner Miller operates the gravel pit in question on state owned land under a contract with the state to' purchase some 500,000 cubic yards of pit-run sand and gravel. Title to the materials passes to him only upon severance from the pit and payment therefor at the agreed price.of 25 cents per cubic yard. The contract is for a period of ten years from September 5, 1956. Evidence presented by the petitioner indicated that as of July 15, 1961 he had extracted 262,515 cubic yards of gravel from the pit, 80,702 cubic yards of which were taken out between July 1, 1960 and July 15, 1961. From the record we gather that the respondent Atkinson from time to time extended services and equipment to Miller and arranged for loans of money to Miller to meet payrolls and other obligations. On May 11, 1960, Atkinson loaned Miller $15,-000 to pay off a tax claim of the Internal Revenue Service. On the same day Miller gave Atkinson a promissory note for the amount of the loan plus $1,500, payable within seventy days. The note provided that in the event of default in payment Atkinson should have the right to remove 100,000 cubic yards of in-place gravel from the pit. It appears that a $32,000 or $33,000 payment was made on August 22, 1960 to Atkinson by Miller on some of his indebtedness. Miller claims that $16,500 of the amount paid was in discharge of the note, but this Atkinson denies. The note was never surrendered. On July 10, 1961 Atkinson moved in on the gravel pit and prevented Miller from entering. He also took about 1300 cubic yards of stockpile gravel from the premises. Thereupon Miller brought this action against Atkinson, and in his complaint asked for a temporary restraining order, a preliminary injunction and damages. The trial court granted the restraining order and fixed the time for hearing the motion for a preliminary injunction. Atkinson answered the complaint with a general denial and with a counterclaim and crossclaim for $100,000 each and demanded a jury trial. Atkinson retaliated further by asking for and obtaining from the court a temporary restraining order on his own behalf. This order, as entered on July 31, 1961, restrained the petitioners "from in any manner using or withdrawing earth, removing gravel, or going on for any purpose whatsoever the following described real property," which included the gravel pit. By affidavit in support of his motion for a temporary restraining order Atkinson alleged that the promissory note of May 11, 1960 had not been paid according to its terms; that the 100,000 cubic yards of gravel which he is permitted to take by the terms of the note because of the default in payment "will be exhausted in the very near future"; that the petitioners are withdrawing gravel from the pit "equivalent of $2,000 per day"; and that his loss and damage is immediate and irreparable for the reason that the gravel pit is Miller's sole unencumbered asset. Also on July 31, the court concluded the hearing on Miller's motion for a preliminary injunction and made permanent the restraining orders of both parties until the further order of the court, indicating that it was best for the property to remain in status quo until the entire matter could be heard. Respondent Atkinson in his brief speaks of the temporary restraining orders as having been converted into preliminary injunctions when the court made them "permanent" on July 31, 1961. We do not so consider them, for as late as August 9, 1961, when the order against Miller was further modified by allowing him to go upon the premises to use his office and equipment, the court still referred to the order as a restraining order. Furthermore, to make the orders into preliminary injunctions the court would have had to set forth the findings of fact and conclusions of law in support of its action, as required by Rule 52(a) of the Rules of Civil Procedure. But this the court did not do. Review is granted for the reason that postponement of such review until appeal may be taken from a final judgment in this case will result in injustice because of impairment of petitioners' legal right to take gravel from the pit as against the restraining order now pending against them, and for the further reason that the lower court has so far departed from the usual course of judicial proceedings as to call for this court's power of supervision and review. Injunctive relief as a provisional remedy is authorized by statute in this state to enjoin acts of the defendant which will cause irreparable injury to the personal or property rights of the plaintiff. The issuance of the restraining order against the petitioners in this case was an exercise by the lower court of its injunctive power. While the power to grant the order rested in the discretion of the court, to call into action this extraordinary power required a clear showing of the irreparable injury for which there was no other adequate remedy. We find no such showing in the record before us. Quite to the contrary, respondent demonstrates by his own actions that he has an adequate remedy at law. In this action he has cross-claimed and counterclaimed for a money judgment, demanded a jury trial and sought a writ of attachment against the gravel pit. He made an abortive attempt to get a receiver appointed for the gravel pit; and he has also brought another independent action at law and has sued out a writ of attachment therein against the same gravel pit. Nor can we find in the record any evidence of irreparable damage to the respondent through depletion of the gravel pit. It is estimated, and not shown by the respondent to be otherwise, that the pit contained about 500,000 cubic yards of gravel, and that of this total, 262,515 cubic yards had been extracted, leaving a balance of amout 237,000 cubic yards. In his argument before the court, respondent's attorney admitted that the only way to determine the amount of gravel remaining in the pit is to have an engineering firm run a cross section; but he did not come prepared to show the court that such a cross section had been taken and what it revealed. We conclude that there was no evidence to justify the issuance of the restraining order against the petitioners. The respondent contends that the petitioners are here complaining to this court about something to which the petitioners agreed, namely, the issuance and making permanent the restraining order of July 31, 1961. The record does not support the respondent's contention. What actually happened is that counsel for respondent orally moved for the issuance of a temporary restraining order and the court denied it, stating that the motion and showing should be in writing. A written motion was accordingly submitted and filed and then during the oral showing by Miller's attorney in opposition to the granting of the motion, the court announced that it would sign the order and did sign it. Then, when it became apparent from what the court said that it was going to extend that order from time to time as necessary, Miller's attorney remarked: "Well then, will it be extended at the end of ten days? The reason I say that I'm willing to have it made permanent — both orders made permanent until further order of the Court. It seems to me that that's the only way we can get at it." To us these remarks by counsel merely indicate that he realized it would be useless to present argument at later extensions of the order because it was apparent that the court would grant extensions anyhow and, therefore, he consented to such future extension. In our opinion such consent did not deprive the petitioners of their right to seek review of the propriety of the issuance of the restraining order in the first instance. The restraining order of July 31, 1961 is vacated and the case remanded for further proceedings in accordance with this opinion. . This order was modified at a later date-by limiting the restraint to the withdrawal, removal, or excavation of gravel in place from the pit. . Atkinson resorted to several other tactics, besides the restraining order, to tie up the gravel pit. He first filed k lis pendens, then moved for a receiver ship, and in a separate action attached the gravel pit. . The pertinent provision of Rule 52(a) of the Rules of Civil Procedure states: "In 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; and in granting or refusing interlocutory injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. " . Alaska Sup.Ct.R. 23(e) and 24(3). . Sections 55-6-51 through 55-6-54 A.C. L.A.1949. . Snyder v. Kelter, D.C.D.Alaska 1912, 4 Alaska 447, 455; Anderson v. Smith, D.C.D.Alaska 1934, 8 Alaska 470, 476-477 affirmed 9 Cir., 1934, 71 F.2d 493, 5 Alaska Fed. 733; Seltenreich v. Town of Fairbanks, D.C.D.Alaska 1952, 103 F.Supp. 319, 13 Alaska 582, 621, affirmed 9 Cir., 1954, 211 F.2d 83, 14 Alaska 568, certiorari denied, 1954, 348 U.S. 887, 75 S.Ct. 206, 99 L.Ed. 697; Almaden Vineyards Corporation v. Arnerich, 1937, 21 Cal.App.2d 701, 70 P.2d 243. See also Porto Rico Tel. Co. v. Puerto Rico Communications Authority, 1 Cir., 1951, 189 F.2d 39, certiorari denied, 1951, 342 U.S. 830, 72 S.Ct. 54, 96 L.Ed. 628. . Rule 65(b) of the Rules of Civil Procedure states that a temporary restraining order shall expire at the end of ten days, unless within that time, for good cause shown, it is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period.

10426160

Emmet E. NORTON and Frances G. Norton, Appellants, v. ALCOHOLIC BEVERAGE CONTROL BOARD of the State of Alaska, Alaska Bartenders Pension Trust, Alaska Bartenders Health and Welfare Trust, James G. Hayes and Bernice Hayes, Appellees

Norton v. Alcoholic Beverage Control Board

1985-03-01

No. 7363

1090

1093

695 P.2d 1090

695

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:11:48.367668+00:00

CAP

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

Emmet E. NORTON and Frances G. Norton, Appellants, v. ALCOHOLIC BEVERAGE CONTROL BOARD of the State of Alaska, Alaska Bartenders Pension Trust, Alaska Bartenders Health and Welfare Trust, James G. Hayes and Bernice Hayes, Appellees.

Emmet E. NORTON and Frances G. Norton, Appellants, v. ALCOHOLIC BEVERAGE CONTROL BOARD of the State of Alaska, Alaska Bartenders Pension Trust, Alaska Bartenders Health and Welfare Trust, James G. Hayes and Bernice Hayes, Appellees. No. 7363. Supreme Court of Alaska. March 1, 1985. Nancy R. Gordon, Bernd C. Guetschow, Anchorage, for appellants. Charles A. Dunnagan, Jermaine, Dunna-gan & Owens, Peggy Alayne Roston, Anchorage, for appellees. Before BURKE, C.J., and RABINO-WITZ, MATTHEWS, COMPTON and MOORE, JJ.

1857

11621

OPINION COMPTON, Justice. This case requires us to determine which of two conflicting statutes governs the transactions at issue. One statute prohibits the Alaska Alcoholic Beverage Control Board (hereafter ABC or Board) from approving liquor license transfer applications when a creditor of the transferor has not received payment or security for payment of a debt. This statute was repealed and replaced by a new statute permitting transfer in the above situation if the application is pursuant to an earlier transfer whereby the parties thereto agreed that the license would be retransferred in the event of a default. The superior court, sitting as an appellate court pursuant to AS 22.10.020 and Appellate Rule 602, held that the repealed statute applied, thereby reversing a decision of the Board. We affirm. I. FACTUAL AND PROCEDURAL BACKGROUND Emmet and Frances Norton (Nortons) sold a business known as The Party House to Robert and Inez Unger (Ungers) and Robin Enterprises, Inc. (Robin) in July 1976. A liquor license was included in the sale. To secure payment of the purchase price, Robin and the Ungers signed a promissory note and executed a UCC Security Agreement on all of the property sold, including the license. The Nortons were given special power of attorney to retransfer the license from the Ungers to themselves in the event the Ungers defaulted in the performance of their agreement. A blank liquor license transfer application was included in the sale. Also in July 1976 the Ungers obtained a ten-year lease on the real property upon which The Party House was located. James and Bernice Hayes (Hayeses), lessors, had no security interest in the liquor license but they had certain contractual remedies in the event of default in rent payments. Over the next several years the Ungers incurred debts as a result of their operation of The Party House. They failed to make employee contributions pursuant to their collective bargaining agreement with the Alaska Bartenders Pension Trust and Bartenders Health & Welfare Trust (Union). The Union eventually obtained a judgment on August 6, 1979 for $12,932.50. The Ungers also defaulted on their rent obligations. The Hayeses obtained a $25,819.50 judgment on May 19, 1981. Lastly, the Ungers were in debt to the Nortons in the amount of $122,620.31 plus interest. As a result of the Ungers' debt, the Nortons declared a default. On August 1, 1980, they exercised their special power of attorney and filed for retransfer of the liquor license with the Board. The Board initially denied the transfer request, pursuant to AS 04.10.330(b), on the ground that certain creditors were unpaid. The Nortons contested the denial and a hearing officer was appointed to consider the matter. The hearing officer concluded that a newly enacted statute, AS 04.11.360(4)(B), governed ABC's approval of the transfer. The Board subsequently voted in favor of the transfer. The Hayes-es and the Union appealed the approval to the superior court. The court reversed the Board's approval. This appeal followed. II. RETROSPECTIVE APPLICATION At the time of the 1976 transactions, AS 04.10.330(b) governed ABC approval of liquor license transfers. This statute provides in part that [T]he board shall not approve the application for transfer [of a license] 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. Since the Hayeses and the Union had not been satisfied at the time of the retransfer application, this statute would require that the ABC deny the application. On July 1, 1980, however, this statute was repealed and AS 04.11.360 enacted. Section (4)(B) of the new statute provides that a transfer request must be denied if all debts are not paid unless the transfer is pursuant to a promise given as collateral by the transferor to the transferee in the course of an earlier transfer of the license under which promise the transferor is obliged to transfer the license back to the transferee in the event of default in payment for property conveyed as part of the earlier transfer of the license. If this statute were to apply to the Nor-tons' retransfer application, Board approval would be proper. The dispositive issue is whether AS 04.11.360 operates retrospectively in violation of AS 01.10.090. Since this issue is one of statutory interpretation, the proper standard of review is the substitution of judgment test. Wien Air Alaska v. Arant, 592 P.2d 352, 356 (Alaska 1979). A plain reading of AS 04.11.360 makes it applicable to all transfer requests made after the enactment of the statute. It does not, however, expressly declare that the exception noted in section (4)(B) is to be applied to pre-enactment debts. If such an application is classified as a retrospective application, AS 01.10.090 would be violated. Thus, the first step is to recognize some distinctions between prospective and retrospective application of a statute. In broad terms "a prospective statute . operates on conduct, events, and circumstances which occur after its enactment" while a retrospective statute "operate[s] on transactions which have occurred or rights and obligations which existed before passage of the act." 2 C. Sands, Sutherland Statutory Construction § 41.01, at 245 (4th ed. 1973) (footnote omitted). These definitions are so broad that, as Sutherland points out, "[m]any statutes are in various respects both prospective and retrospective. Characterization thus may do nothing more than reflect a judgment concerning validity or interpretation, arrived at on other grounds." § 41.01 at 245. Indeed, AS 04.11.360(4)(B) fits that mold. In narrower terms, Black's Law Dictionary 1480 (rev. 4th ed. 1968) defines a retrospective law as "[ejvery statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions or considerations already past." (Citations omitted). In the superior court, the parties argue and the court determined the case using a "vested" or accrued rights analysis. A "vested rights" analysis, however, is not particularly useful in the context of this case. That phrase is not ordinarily used in determining whether a statute is retrospective; rather it is traditionally used in determining whether a retrospective statute is unconstitutional. Even when employed in the latter context it is regarded by commentators as unhelpful to analysis: "[I]t has long been recognized that the term 'vested rights' is conclusory — a right is vested when it has been so far perfected that it cannot be taken away by statute." It is especially problematic to use "vested rights" as a determinant of retro-spectivity. Not only is the term unhelpful in itself, it also bears no relationship to the generally accepted meaning of retrospective, which, as defined in Webster's Third New International Dictionary (1968), is "affecting things past." Further, if "vested rights" defines both when a law is retrospective and when a retrospective law is unconstitutional, no middle ground is left ,for retrospective laws that are constitutional. That a middle ground was contemplated by the legislature is obvious, for AS 01.10.090 speaks of an express declaration of retrospectivity. Additionally, retrospective legislation is not in and of itself unconstitutional. The second step is to determine a straightforward definition of retrospectivity as that concept is used in AS 01.10.090. The following definition is appropriate: "A retroactive [retrospective] statute is one which gives to pre-enactment conduct a different legal effect from that which it would have had without the passage of the statute." Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv.L.Rev. 692, 692 (1960). Using this definition, the 1980 statute clearly is being given retrospective effect if applied to the 1976 transactions. But for the new statute, payment to pre-enactment creditors would have been necessary in order to effect a transfer. The reason for the statutory presumption against retrospective legislation is that people in conducting their business should be able to rely on existing laws with reasonable certainty. In the present case, a creditor of a liquor license holder would extend credit knowing that the liquor license could not be transferred until the creditor was paid, providing a form of security for the extension of credit. To eliminate this security is to run counter to the reasonable expectations of the parties. For these reasons, we conclude that applying the 1980 statute to pre-enactment creditors is a retrospective application of the statute which violates both the literal terms of and the reasons for AS 01.10.090. AS 04.10.330(b) is applicable to the retrans-fer. AFFIRMED. . The remedies include the following: the right to cancel the lease; the right to re-enter the premises and remove the Ungers' property; and the right to re-let the property and receive payment for damages. .The statute was amended to remedy inequities in AS 04.10.330(b). In C.Y., Inc. v. Brown, 574 P.2d 1274, 1277 (Alaska 1978), we noted that section 330(b) required that all creditors be paid prior to transfer approval. We also stated, however, that "[t]he 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." . AS 01.10.090 reads: "No statute is retrospective unless expressly declared therein." . See Bidwell v. Scheele, 355 P.2d 584, 586 (Alaska 1960) (Vested property rights are protected against state action by the provisions of the Fourteenth Amendment of the Constitution of the United States and by sec. 7 of art. I of our state constitution); see also Ewell v. Daggs, 108 U.S. 143, 2 S.Ct. 408, 27 L.Ed. 682 (1883) and Campbell v. Holt, 115 U.S. 620, 6 S.Ct. 209, 29 L.Ed. 483 (1885). . Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv. L.Rev. 692, 696 (1960); Adams Nursing Home of Williamstown, Inc. v. Mathews, 548 F.2d 1077, 1081 (1st Cir.1977); Fairfax Nursing Center, Inc. v. Califano, 590 F.2d 1297, 1302 (4th Cir.1979); Rothman v. Rothman, 65 N.J. 219, 320 A.2d 496, 499 (1974); Application of Santore, 28 Wash.App. 319, 623 P.2d 702, 706 (1981); State ex rel. Briggs & Stratton v. Noll, 100 Wis.2d 650, 302 N.W.2d 487, 494 (Abrahamson, J., dissenting) (1981). . "Yet the contract clause does not prohibit the state . from enacting legislation with retroactive effects." United States Trust Co. v. New Jersey, 431 U.S. 1, 17, 97 S.Ct. 1505, 1515, 52 L.Ed.2d 92, 106 (1977); FHA v. The Darlington, Inc., 358 U.S. 84, 91, 79 S.Ct. 141, 146, 3 L.Ed.2d 132, 137 (1958). .Indeed, the parties stipulated that the Hayeses relied on the existence of AS 04.10.330(b) when entering into the lease agreement.

10425922

Rodney SPENDLOVE and Emily Spendlove, Appellants, v. ANCHORAGE MUNICIPAL ZONING BOARD OF EXAMINERS & APPEALS and Upper DeArmoun Area Homeowners Association, Inc., Appellees; ANCHORAGE MUNICIPAL ZONING BOARD OF EXAMINERS AND APPEALS and Upper DeArmoun Area Homeowners Association, Inc., Cross-Appellants, v. Rodney SPENDLOVE and Emily Spendlove, Cross-Appellees

Spendlove v. Anchorage Municipal Zoning Board of Examiners & Appeals

1985-02-22

Nos. 5663, 5680

1074

1076

695 P.2d 1074

695

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:11:48.367668+00:00

CAP

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

Rodney SPENDLOVE and Emily Spendlove, Appellants, v. ANCHORAGE MUNICIPAL ZONING BOARD OF EXAMINERS & APPEALS and Upper DeArmoun Area Homeowners Association, Inc., Appellees. ANCHORAGE MUNICIPAL ZONING BOARD OF EXAMINERS AND APPEALS and Upper DeArmoun Area Homeowners Association, Inc., Cross-Appellants, v. Rodney SPENDLOVE and Emily Spendlove, Cross-Appellees.

Rodney SPENDLOVE and Emily Spendlove, Appellants, v. ANCHORAGE MUNICIPAL ZONING BOARD OF EXAMINERS & APPEALS and Upper DeArmoun Area Homeowners Association, Inc., Appellees. ANCHORAGE MUNICIPAL ZONING BOARD OF EXAMINERS AND APPEALS and Upper DeArmoun Area Homeowners Association, Inc., Cross-Appellants, v. Rodney SPENDLOVE and Emily Spendlove, Cross-Appellees. Nos. 5663, 5680. Supreme Court of Alaska. Feb. 22, 1985. Rehearing Denied April 5, 1985. Steven P. Oliver, Anchorage, for appellants and Cross-Appellees. Allan E. Tesche, Asst. Mun. Atty., Anchorage, Jerry Wertzbaugher, Mun. Atty., Anchorage, for appellee and cross-appellant Anchorage Mun. Zoning Board of Examiners & Appeals. Edward G. Burton, Burr, Pease & Kurtz, Inc., Anchorage, for appellee and cross-appellant Upper DeArmoun Area Homeowners Ass’n, Inc. Before RABINOWITZ, C.J., and MATTHEWS, COMPTON, and MOORE, JJ.

746

5054

OPINION PER CURIAM. This is an appeal from a decision of the Anchorage Municipal Zoning Board denying Rodney and Emily Spendlove (hereinafter "Spendlove") the use of twenty-two and one-half acres for mineral resource extraction. Following a lengthy trial de novo granted at Spendlove's request, the court entered judgment against Spendlove, enjoining mineral or natural resource extraction and dismissing Spendlove's appeal from the decision of the Zoning Board. Spendlove appeals, and the appellees, the Municipality and the DeArmoun Homeowners' Association, cross-appeal for attorney's fees. We affirm. Prior to April 1969, the Spendlove property was regulated by an interim zoning -ordinance of the Greater Anchorage Area Borough that did not categorically prohibit commercial mineral resource extraction operations. Effective in 1969, through the enactment of a new borough zoning ordinance known as GAAB 1-69, the Spendlove property was zoned "U" or unrestricted, a zoning classification that permitted com mercial mineral resource extraction only if the use lawfully pre-dated the zoning as a valid non-conforming use or was allowed by special exception. In 1977, the Anchorage Assembly enacted Anchorage Municipal Code 21.55.090 requiring operators of non-conforming gravel pits such as Spend-love's to apply for and receive approval of amortization permits and development and restoration plans. Amortization permits are available only where the exploitation of mineral resources exists as a non-conforming use and has been in continuous existence since April 21, 1969. Both the Zoning Board and the trial court concluded that Spendlove had not established a non-conforming use for mineral resource extraction prior to April 1969. In reaching this conclusion, the trial court held that only those mineral resource extractions that existed as commercial or industrial uses within the meaning of AMC 21.35.020(B)(59) constitute a use to which the law regarding non-conformities apply. AMC 21.35.020(B)(59) provides: 'Mineral resources operations' or 'natural resources extractions' ('mineral or natural resources development') means commercial or industrial operations involving removal of . gravel, rock, or any mineral and other operations having similar characteristics. (Emphasis added) Because Spendlove was enjoined from "mineral or natural resource extraction operations" it was appropriate for the trial court to determine whether Spendlove had established a commercial use prior to 1969. The trial court also adopted a "substantial use" test for the level of commercial activity necessary to "rise to the level of a mineral resource extraction." The substantial use test is consistent with zoning policy and favored by commentators: Where the loss to the owner arising out of the curtailment of his prior úse of the property is insubstantial, the loss is deemed balanced by the resulting effectiveness of the zoning ordinance on the implementation of the comprehensive plan of development of the community and the consequent benefits conferred thereby on all property owners therein. 4 A. Rathkopf, The Law of Zoning and Planning § 51.03, at 51-27 (4th ed.1984). Substantial evidence exists on the record to support the court's finding that Spend-love's activities prior to 1969 were sporadic and insubstantial. The superior court properly enjoined Spendlove from mineral or natural resource extraction. As to the appellees' cross-appeal for attorney's fees, we find that the award of $10,000.00 is reasonable and AFFIRM. . See also GAAB 21.05.020(B)(45), the predecessor to AMC 21.35.020(B)(59). . See 4 N. Williams, American Land Planning § 110.03, at 405-406 (1975); see, e.g., Paukovits v. Zoning Board of Appeals, 67 App.Div.2d 683, 412 N.Y.S.2d 167 (1979); Blundell v. City of W. Helena, 258 Ark. 123, 522 S.W.2d 661, 666 (1975); Ashley v. City of Bedford, 160 Ind.App. 634, 312 N.E.2d 863, 866 (1974); Town of Lloyd v. Kart Wheelers Raceway, Inc., 28 App.Div.2d 1015, 283 N.Y.S.2d 756, 757 (1967). Williams provides an extensive list of citations to cases that have "dismissed token and casual operations as insufficient." 4 N. Williams at 409.

10412505

Robert E. JACKSON, Appellant, v. STATE of Alaska, Appellee

Jackson v. State

1985-02-15

No. 7214

227

238

695 P.2d 227

695

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:11:48.367668+00:00

CAP

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

Robert E. JACKSON, Appellant, v. STATE of Alaska, Appellee.

Robert E. JACKSON, Appellant, v. STATE of Alaska, Appellee. No. 7214. Court of Appeals of Alaska. Feb. 15, 1985. Michael S. Pettit, Asst. Public Defender, Kenai, and Dana Fabe, Public Defender, Anchorage, for appellant. Anne Carpeneti, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

7310

45741

OPINION BRYNER, Chief Judge. Robert E. Jackson and Jimmie Lee Eacker were jointly indicted for first-degree robbery, AS 11.41.500(a)(1). Eacker pled no contest and testified against Jackson at Jackson's trial prior to being sentenced. The jury convicted Jackson. Jackson appeals. We reverse. FACTS On January 28, 1982, at approximately 1:44 a.m., the Time Saver Grocery in Kenai was robbed at gunpoint. Linda Bartels was working there at the time. Officer Michael Anastay arrived within five minutes with his specially trained police dog. The dog followed the robber's scent to the rear of the store, where Officer Anastay found fresh tire tracks and footprints in the snow. The footprints ended alongside the right side of the tire tracks, where the passenger side would have been. The tracks were measured and photographed. Sergeant Dorcas followed the tracks to the Rock and Roll Clinic, a night club, where a vehicle was found with tires that matched the tracks. The vehicle belonged to Jeff Johnson. Johnson, Jackson and Eacker were all at the club when the officers arrived. On April 9, 1982, Eacker contacted the police, confessed to the robbery, and implicated Jackson as the driver of the getaway car. At trial, Jeff Johnson testified that he had loaned Jackson his car at about 6:00 p.m. on the night of the robbery. Jackson and Eacker had helped a friend, Sherry Betz, and her roommate move some furniture between 6:00 p.m. and 9:00 p.m. Both Betz and Jerry Carlson, a bouncer at the Rock and Roll Clinic, testified that they thought Jackson had arrived at the club around 11:00 p.m. Later in the evening Betz noticed that Jackson and Eacker had left the Rock and Roll Clinic, but they returned some time before closing time. Betz also said that Jackson had tried to persuade her to provide him with an alibi by saying that she had been with him all night, but she refused. Jackson testified that sometime between 11:00 p.m. and midnight he had been parked next to Doyle's Fuel Service warehouse just past the Time Saver Grocery on the North Road, waiting to see if Eadie of Eadie's Pawn Shop might show up so that Jackson could pawn a CB radio. He waited about ten or fifteen minutes, then went to the Rock and Roll Clinic. He denied participation in the Time Saver robbery. Prior to trial, Jackson learned that his codefendant, Eacker, was the prime suspect in a murder case that was then under investigation. Immediately before confessing his involvement in the Time Saver robbery, Eacker had been questioned by the police about the disappearance of Toni Lister. Lister's body was found in Seward on April 17, 1982, a week after Eacker's confession to the robbery. Jackson filed a pretrial discovery motion requesting police reports of the pending murder investigation. Though the court denied discovery to Jackson, the state agreed to permit defense counsel to examine the reports for a few hours in an in camera setting. It was Jackson's intent to use the reports to discredit Eacker's testimony by showing his bias or motive to cooperate with the police on the robbery in hopes of obtaining leniency on the murder charge. During voir dire Jackson was not allowed to question jurors about their knowledge of the Lister homicide. However, two jurors volunteered their knowledge of Eacker's possible connection to the Seward murder. The state challenged these jurors for cause, and they were excused. At trial, over defense objection, the court issued a protective order precluding counsel from mentioning that Eacker was the suspect in a Seward homicide investigation. Judge Cranston ruled that Jackson would be permitted to cross-examine Eacker only as to whether he had been questioned by police about another "major felony matter" at the time of his confession. However, Eacker repeatedly invoked the fifth amendment when asked about his involvement in the other "major felony." Eacker declined to acknowledge that he had become involved in a police investigation of a major felony. After Jackson challenged Eacker's repeated invocation of the fifth amendment, Judge Cranston conducted an in camera hearing with Eacker's counsel. Following the hearing, Judge Cranston ruled that Eacker's invocation of the fifth amendment with respect to questions concerning the Lister murder investigation was valid. Judge Cranston did allow Jackson's counsel to continue questioning Eacker about his involvement as a suspect in another "major felony matter," but Eacker was permitted to invoke the fifth amendment in response to all such questions. Eacker declined to answer whether he knew he was under investigation for another felony at the time he confessed to the Time Saver robbery or whether he believed that he could help himself in another case by cooperating on the Time Saver incident. Eacker acknowledged that, before his confession, he specifically requested to speak with Lieutenant Mahurin of the Kenai Police Department because he had dealt with Mahurin in the past, had a friendly relationship with him, and believed Mahurin could help with his problem. However, Eacker invoked the fifth amendment when asked if the problem they had talked about included another felony. Eacker further declined to answer when asked if he had made any statement to Mahurin about another major felony matter before confessing to the robbery. Lieutenant Mahurin testified that on the afternoon of April 9 he had been informed that Eacker was at the Kenai Police Department and had asked to speak with him. Mahurin went to the station and first talked with Eacker "regarding another pending investigation." Mahurin testified that he then "told Mr. Eacker that I was glad that he had come in, that I had been wanting to speak to him about something anyway, and told him that what I wanted to speak to him about was the robbery at the Time Saver Grocery Store." Under cross-examination Mahurin stated that, pri- or to taking Eacker's confession for the robbery, he had discussed the "other felony" and other matters with Eacker for approximately twenty-five minutes. Mahu-rin was not questioned further about the other felony matter. DISCUSSION Jackson's primary argument is that he was denied his constitutional right to confront and cross-examine Eacker by putting Eacker's confession in its proper setting and demonstrating to the jury Eacker's possible bias: his hope that by confessing to the Time Saver robbery and implicating Jackson, he might influence the outcome of the murder investigation in the Lister case. Jackson relies primarily on Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). As a rule, cases dealing with the right to confront and cross-examine a witness who has invoked the fifth amendment distinguish between cross-examination as to matters directly related to the witness' testimony on direct examination and cross-examination as to collateral matters. See generally Annot., 55 A.L.R.Fed. 742 (1981). When a witness invokes the fifth amendment as to a collateral matter the defendant is not thereby deprived of his right to confrontation. However, when a witness' refusal to answer specifically relates to testimony given on direct examination, the defendant's right to confrontation is implicated. See, e.g., Dunbar v. Harris, 612 F.2d 690 (2d Cir.1979). Questions involving a witness' general credibility are usually deemed collateral, but specific questions relating to a witness' bias are not. See Evans v. State, 550 P.2d 830, 837 (Alaska 1976); Whitton v. State, 479 P.2d 302, 317 (Alaska 1970). As held in Davis v. Alaska, 415 U.S. at 316-17, 94 S.Ct. at 1110, 39 L.Ed.2d at 354: A more particular attack on the witness' credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is "always relevant as discrediting the witness and affecting the weight of his testimony." 3A J. Wigmore Evidence § 940, p. 775 (Chadbourn rev. 1970). We have recognized that the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. Thus, cross-examination as to bias is not deemed collateral, and refusal of a prosecution witness, on fifth amendment grounds, to answer questions relating to bias will implicate the defendant's confrontation right. See, e.g., United States v. Gambler, 662 F.2d 834 (D.C.Cir.1981). Under such circumstances, the trial court is required to strike relevant testimony given by the witness on direct examination unless the specific subject matter addressed by the question as to which the privilege has been invoked is cumulative or remote, or unless the defendant is afforded an adequate independent means to establish the witness' bias. See, e.g., United States v. Brown, 634 F.2d 819 (5th Cir.1981); United States v. Seifert, 648 F.2d 557 (9th Cir. 1980); Fountain v. United States, 384 F.2d 624 (5th Cir.1967), cert. denied, 390 U.S. 1005, 88 S.Ct. 1246, 20 L.Ed.2d 105 (1968). The vital question in each case is whether the defendant's fundamental right to challenge the accuracy of a witness' testimony through cross-examination has been substantially impaired. The ultimate inquiry is whether the defendant has been deprived of his right to test the truth of the direct testimony. If he has, so much of the direct testimony as cannot be subjected to sufficient inquiry must be struck. The distinction is generally drawn between invoking the privilege as to "collateral matters," not requiring the striking of direct testimony, and invoking it as to "direct" matters. But the line between "direct" and "collateral" is not clear, and the question in each case must finally be whether defendant's inability to make the inquiry created a substantial danger of prejudice by depriving him of the ability to test the truth of the witness's direct testimony. Fountain v. United States, 384 F.2d 624, 628 (5th Cir.1967) (citations omitted), cert. denied, 390 U.S. 1005, 88 S.Ct. 1246, 20 L.Ed.2d 105 (1968). See also United States v. Brown, 634 F.2d at 824-25; United States v. Diecidue, 603 F.2d 535, 551-52 (5th Cir.1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 781 (1980). In the present case, we conclude that Eacker's invocation of his fifth amendment right as to matters relating to the Lister murder investigation deprived Jackson of his right to confrontation. Eacker invoked the fifth amendment as to virtually all questions concerning the possible impact of the Lister murder investigation on his motivation for confessing the Time Saver robbery and for implicating Jackson. These questions bore directly on the issue of Eacker's motivation for implicating Jackson, i.e., his bias, and were not collateral. Nor can the questions fairly be deemed cumulative of testimony tending to show that Eacker might have been motivated by a desire to obtain favorable treatment for himself for his role in the Time Saver robbery. The relevance of the Lister murder evidence was not to demonstrate that Eacker might be subject to the level of bias reasonably attributable to an accomplice. Rather, its relevance was to show an independent and potentially far more influential source of bias. In this regard, it is simply beside the point that Eacker's status as an accomplice was demonstrated and that the jury was instructed accordingly. Evidence that Eacker was a prime suspect in the Lister murder and that the murder investigation was pending at the time of his confession on April 9 would have effectively added a new dimension to the issue of bias. Unless the jury was aware that Eacker knew he was a suspect in the Lister murder investigation, it could easily have concluded that Eacker had no reason to confess his own complicity in the Time Saver robbery other than a desire to be truthful and forthright. If the jury believed that Eacker's confession was motivated only by his desire to tell the truth, then it could readily have discounted the possibility that he had falsely implicated Jackson as a codefendant merely to gain more favorable treatment. Under these circumstances, full cross-examination as to Eacker's knowledge of the Lister murder investigation was essential, since the questioning could have demonstrated that when Eacker confessed to the Time Saver robbery he had substantially more to gain than the possibility of favorable treatment on the robbery charge. Had full cross-examination been allowed, Jackson could have directly called into question Eacker's motivation for confessing to participation in the robbery. The jury would have been presented with a substantial reason to question whether Eaeker could be viewed as a basically honest witness. Thus, the jury might have been far more receptive to Jackson's argument that Eacker's confession and his sub-, sequent testimony were false. Under the circumstances, we think the holding of the court in Davis v. Alaska is apt: We cannot speculate as to whether the jury, as sole judge of the credibility of a witness, would have accepted this line of reasoning had counsel been permitted to fully present it. But we do conclude that the jurors were entitled to have the benefit of the defense theory before them so that they could make an informed judgment as to the weight to place on Green's [the witness'] testimony which provided "a crucial link in the proof . of petitioner's act." Davis, 415 U.S. at 317, 94 S.Ct. at 1111, 39 L.Ed.2d at 354 (citation omitted). We conclude that, in the circumstances of this case, evidence of Eacker's possible bias stemming from the Lister murder investigation cannot fairly be deemed cumulative of other evidence indicating possible bias. We further conclude that Jackson's limited opportunity to question Lieutenant Mahurin about the Lister murder investigation did not afford him an adequate independent means of establishing Eacker's bias. Conceivably, Jackson's inability to question Eaeker fully as to bias might have been remedied had Jackson been permitted to develop the same theory of bias through examination of Lieutenant Mahurin. However, Judge Cranston precluded Jackson from asking any questions from which the specific nature of the crime or investigation could have been inferred by the jury. These limitations inhibited Jackson's trial counsel from attempting to establish Eacker's bias through Mahurin's testimony. Upon review of the entire record, we are satisfied that Eacker's invocation of the fifth amendment privilege as to virtually all questions dealing with the Lister murder investigation "created a substantial danger of prejudice by depriving [Jackson] of the ability to test the truth of [Eacker's] direct testimony." Fountain v. United States, 384 F.2d at 628. Accordingly, we hold that Jackson's inability to question Eaeker fully as to bias constituted a deprivation of Jackson's right to confrontation, requiring reversal of the conviction. We must separately consider Jackson's claim that Eacker's testimony was not sufficiently corroborated to satisfy AS 12.45.020. If the corroborating evidence against Jackson was insufficient, retrial of this case would not be permissible. Corroborating evidence included testimony that Johnson loaned his car to Jackson on the night of the robbery, that tire tracks led from the scene of the robbery to the Rock and Roll Clinic and matched Johnson's tires, that Jackson was at the Rock and Roll Clinic before the robbery and after the robbery but was not there during the period of time when the robbery occurred, that Jackson asked Sherry Betz to provide a false alibi for him, and that Jackson admitted being in the vicinity of the Time Saver Grocery at the time of the robbery. Under the circumstances, Eacker's testimony was sufficiently corroborated to satisfy AS 12.45.020. The judgment of the superior court is REVERSED and this case is REMANDED for a new trial. SINGLETON, J., dissents. . He also relies on a number of Alaska cases that deal with the scope of the constitutional right to confrontation. See Coffey v. State, 585 P.2d 514, 522-23 (Alaska 1978); Evans v. State, 550 P.2d 830, 834-41 (Alaska 1976); Hutchings v. State, 518 P.2d 767 (Alaska 1974); Fields v. State, 487 P.2d 831, 845-46 (Alaska 1971); R.L.R. v. State, 487 P.2d 27, 43-44 (Alaska 1971); and Whitton v. State, 479 P.2d 302, 316-18 (Alaska 1970). These cases stand for the general proposition that the trial court violates a defendant's constitutional right of confrontation if it unduly restricts his cross-examination of prosecution witnesses concerning possible motives for falsely accusing the defendant. . On appeal the parties have provided no information concerning the current status of the Lister murder investigation or of Eacker's actual involvement in that offense. Accordingly, discussion of the circumstances disclosed by Eacker's counsel during the in camera hearing before Judge Cranston would be inappropriate in this opinion. It is sufficient to note, however, that nothing stated in the in camera proceedings would support a conclusion that the pendency of the murder investigation did not play a role in Eacker's decision to confess to the Time Saver robbery. . The holding of Robinson v. State, 593 P.2d 621, 623-24 (Alaska 1979), is inapposite to the present case. In Robinson the defendant was deprived of the opportunity to cross-examine the state's witness as to whether he had actually committed a crime for which charges were then pending against him in the state of California. Although the witness invoked the fifth amendment, the defendant was able to establish the existence and nature of the pending charges, and the witness admitted that he knew of the fact that charges were pending. Moreover, the witness admitted other criminal conduct from which a desire to curry favor with the police could have been inferred. Under those circumstances, it is apparent that cross-examination of the witness concerning actual commission of the California offense would have added nothing significant to the evidence of bias that already existed in the record. . In reaching our conclusion, we reject the notion that Jackson's ability to argue bias from Eacker's repeated invocation of the fifth amendment constituted an adequate substitute for cross-examination. It would have been impermissible for the jury to draw inferences from Eacker's invocation of the fifth amendment, and it would be improper for this court to presume that the jury drew such inferences. Jackson's counsel, in arguing the case to the jury, could not expressly rely on Eacker's invocation of the fifth amendment. Similarly, since questions asked by counsel during the trial did not constitute evidence, the jury could not properly have relied on facts inferrable from Jackson's cross-examination as a source for inferring Eacker's bias. In any event, it is apparent that the possibility that the jury might have drawn inferences concerning Eacker's state of mind from his invocation of the fifth amendment would not constitute an adequate substitute for cross-examination: Confrontation means more than being allowed to confront the witness physically. "Our cases construing the [confrontation] clause hold that a primary interest secured by it is the right of cross-examination." Davis v. Alaska, 415 U.S. at 315, 94 S.Ct. at 1110, 39 L.Ed.2d at 353, quoting Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965). . Our disposition of the confrontation issue makes it unnecessary for us to decide the other issues raised on appeal by Jackson, which concern his inability to obtain discovery of materials dealing with the Lister murder investigation. In the event controversy should again arise on remand, the court should reevaluate the question in light of the current status of the Lister murder investigation and the present need for confidentiality.

6958696

STATE of Alaska and Municipality of Anchorage, Appellants, v. Julie A. SCHMIDT, Gayle Schuh, Julie M. Vollick, Susan L. Bernard, Fred W. Traber, and Laurence Snider, Appellees

State v. Schmidt

2014-04-25

No. S-14521

647

670

323 P.3d 647

323

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:19:49.086852+00:00

CAP

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

STATE of Alaska and Municipality of Anchorage, Appellants, v. Julie A. SCHMIDT, Gayle Schuh, Julie M. Vollick, Susan L. Bernard, Fred W. Traber, and Laurence Snider, Appellees.

STATE of Alaska and Municipality of Anchorage, Appellants, v. Julie A. SCHMIDT, Gayle Schuh, Julie M. Vollick, Susan L. Bernard, Fred W. Traber, and Laurence Snider, Appellees. No. S-14521. Supreme Court of Alaska. April 25, 2014. Kevin M. Saxby and Lance B. Nelson, Senior Assistant Attorneys General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Appellant State of Alaska. Pamela D. Weiss, Assistant Municipal Attorney, and Dennis A. Wheeler, Municipal Attorney, Anchorage, for Appellant Municipality of Anchorage. David Oesting and Roger Leishman, Davis Wright Tremaine LLP, Anchorage, and Thomas Stenson and Leslie Cooper, ACLU of Alaska Foundation, Anchorage, for Appel-lees. Before: FABE, Chief Justice, WINFREE, STOWERS, and MAASSEN, Justices, and EASTAUGH, Senior Justice. Sitting by assignment made under article IV, section 11 of the Alaska Constitution and Alaska Administrative Rule 23(a).

12748

81334

OPINION EASTAUGH, Senior Justice. I. INTRODUCTION The State of Alaska and the Municipality of Anchorage exempt from municipal property taxation $150,000 of the assessed value of the residence of an owner who is a senior citizen or disabled veteran. But the full value of the exemption is potentially unavailable if a person who is not the owner's spouse also occupies the residence. Contending that the exemption program violates their rights to equal protection and equal opportunities, three Anchorage same-sex couples in committed, long-term, intimate relationships sued the State and the Municipality. The superior court ruled for all three couples. The State and Municipality appeal. As to two of the couples, we affirm. Same-sex couples, who may not marry or have their marriages recognized in Alaska, cannot benefit or become eligible to benefit from the exemption program to the same extent as heterosexual couples, who are married or may marry. The exemption program therefore potentially treats same-sex couples less favorably than it treats opposite-sex couples even though the two classes are similarly situated. The identified governmental interests do not satisfy even minimum serutiny. The exemption program therefore violates the two couples' equal protection rights as guaranteed by article I, section 1 of the Alaska Constitution. As to the third couple, we reverse the ruling in their favor because we conclude that the program does not exempt a residence from taxation unless the senior citizen or veteran has some ownership interest in it. If the senior citizen or veteran has no actual ownership interest, the program treats a same-sex couple the same as a heterosexual couple by denying the exemption to both couples, rendering marital status and the ability to marry irrelevant. Because the sen-jor citizen member of the third couple had no ownership interest in the residence, that couple had no viable equal protection claim. We also vacate and remand the award of attorney's fees. II. FACTS AND PROCEEDINGS A. The Tax Exemption Program By statute, specified classes of Alaska municipalities may levy property taxes. Also by statute, particular classes of property are exempt or partially exempt from municipal taxation. The exemption pertinent here is for real property owned and occupied as the primary residence by a municipal resident who is either (a) 65 years of age or older or (b) a disabled veteran. The exemption's implementing regulations are entitled "Senior Citizen and Disabled Veteran Property Tax Exemption." For convenience, we will sometimes refer to the exemption as the "senior citizen and disabled veteran exemption" and to eligible applicants as "senior citizens" and "disabled veterans." Likewise, we will sometimes refer to the exemption statute and the implementing regulations collectively as the "exemption program." The statute authorizing this exemption has existed since 1972, when the legislature adopted a property tax exemption for senior citizens. In 1984 the legislature extended the exemption to disabled veterans. The subsection providing the senior citizen and disabled veteran exemption was recodified as AS 29.45.030(e) in 1985. The pertinent parts of the exemption statute partially exempt a home's assessed value from municipal property taxation. The applicable subsection is AS 29.45.0830(e). It provides in relevant part: The real property owned and occupied as the primary residence and permanent place of abode by a resident who is (1) 65 years of age or older; (2) a disabled veteran; or (8) at least 60 years of age and the widow or widower of a person who qualified for an exemption under (1) or (2) of this subsection is exempt from taxation on the first $150,000 of the assessed value of the real property.... Only one exemption may be granted for the same property, and, if two or more persons are eligible for an exemption for the same property, the parties shall decide between or among themselves who is to receive the benefit of the exemption. Real property may not be exempted under this subsection if the assessor determines, after notice and hearing to the parties, that the property was conveyed to the applicant primarily for the purpose of obtaining the exemption. In sum, the statute exempts $150,000 of the assessed value of a home owned and occupied as the primary residence by a senior citizen (a person 65 or older) or a disabled veteran. Alaska Statute 29.45.080(g) requires the State, if appropriations are sufficient, to reimburse municipalities for tax revenues lost by operation of the exemption statute. The pertinent implementing regulation-3 AAC 135.085-provides in relevant part: (a) When an eligible person and his or her spouse occupy the same permanent place of abode, the reimbursement described in AS 29.45.080(g¢) applies, regardless of whether the property is held in the name of the husband, wife, or both. (c) If property is occupied by a person other than the eligible applicant and his or her spouse, an exemption, to be eligible for reimbursement, applies only to the portion of the property permanently cccupied by the eligible applicant and his or her spouse as a place of Two aspects of the regulation's subsections are significant here: (1) So long as the eligible applicant and the applicant's spouse occupy the residence, reimbursement is available regardless of which spouse holds title; and (2) if a person other than the eligible applicant and the applicant's spouse occupies the residence, reimbursement is available only with respect to the portion cccupied by the eligible applicant and his or her spouse.[ ] The regulation's text ostensibly only addresses the extent of the State's obligation to reimburse a municipality for lost tax revenues. - But its title-"Eligibility"-could be read to imply that it addresses exemption eligibility, and the parties have litigated this dispute as though the regulation defines exemption eligibility. Moreover, the Municipality seems to believe that it must interpret eligibility in accordance with the regulation. No words in the statute or regulation explicitly deny an exemption for that portion of the property occupied by a person other than the eligible applicant or the eligible applicant's spouse. But the parties read the regulation to contain such a denial. They therefore interpret the program as denying the exemption for that portion of the property occupied by a person other than the spouse of an eligible applicant. For purposes of this appeal, we assume their interpretation is correct. As a result of this interpretation, if the assessed value of the residence is less than $300,000 and the ineligible partner occupies half the property, the full value of the exemption will not be granted to the unmarried couple. The exemption program applies to residences owned and occupied by senior citizens or disabled veterans in the Municipality of Anchorage. The Municipality administers the exemption program in accordance with the statute and the regulations. B. The Plaintiff Couples Six plaintiffs who comprised three same-sex couples brought this lawsuit, alleging that the members of each couple "live together in long-term, committed, interdependent, intimate relationships ('domestic partners'), with the intention of remaining in such relationships for life." All resided in Anchorage. The first couple-Julie Schmidt and Gayle Schuh-co-owned their Anchorage home as tenants in common. Each had a 50% ownership interest in the home. In 2010, the year they filed suit, their home's assessed value was $254,200. Schmidt was then 67 years old and Schuh was 62. Because Schmidt was 65 or older, she was eligible to apply for the tax exemption. Because Schuh was under 65, she was not eligible to apply. Schmidt had applied for the exemption in 2008. The application form required Schmidt to list the percentage of the home that she owned and the percentage that she occupied. She indicated that she owned and occupied 50% of the property. An affidavit prepared by State Assessor Steve Van Sant discussing the ef-feet of marriage on the senior citizen exemption for 2010 stated that because Schmidt had only a 50% ownership interest in the home, only 50% of the home's assessed value was exempt. Van Sant calculated that if Schmidt and Schuh had been married, their property tax in 2010 would have been "roughly $359.31 less." In effect, because Schuh and Schmidt were not married, they could not achieve the tax exemption's maximum benefit. The second couple-Julie Vollick and Susan Bernard-co-owned their Anchorage home as tenants in common from 2004 until 2010. Each had a 50% ownership interest in the home. In 2010 their home's assessed value was $232,600. Vollick had served in the United States Air Force for 20 years and was injured in the line of duty. She qualified as a "disabled veteran" under AS 29.45.030(1)(1), making her eligible for the tax exemption. Bernard did not qualify as a disabled veteran or senior citizen. Vollick applied for the disabled veteran exemption in 2008. Her application indicated that she owned and occupied 50% of the property. State Assessor Van Sant stated in his affidavit that Vollick's 50% ownership limited the disabled veteran exemption available for the home. He explained that if Vollick and Bernard had been married, they could have obtained a disabled veteran exemption based on 100% of the assessed value, and they would have owed "roughly $528.76 less" in property taxes in 2010. The third couple-Fred Traber and Laurence Snider-did not formally co-own their Anchorage home; according to their complaint, the home was "held in Traber's name." The complaint also alleged that "both partners view the home as belonging to both of them." In 2010 the home's assessed value exceeded $150,000. In 2010 Snider was 69 years old, but although he was a senior citizen, the State contended that he could not then apply for the exemption because he did not own the condominium. Traber was then 62 and therefore did not qualify as a senior citizen. The record does not reflect whether Traber or Snider ever applied for the senior citizen exemption. C. - The Lawsuit The couples sued the State of Alaska and the Municipality of Anchorage, alleging that the tax exemption program is unconstitutional. They claimed that the program discriminates against them based on sexual orientation because they are barred from marrying or having their marriages recognized in Alaska. The couples requested a judgment declaring that the tax exemption program violates the Alaska equal protection clause; they also requested an injunction requiring the State and Municipality to apply the exemption program on terms identical to those that would apply if the couples were in recognized marriages. The State argued that the superior court should not reach the merits of the couples' equal protection claim because: (1) the Alaska Constitution's Marriage Amendment, article I, section 25, precludes the claim; (2) the couples are not situated similarly with married couples; and (8) the tax exemption program is not facially discriminatory. The Municipality argued that because state law dictates the terms of the exemption, the State was in the best position to address the couples' arguments. The Municipality did not otherwise address the merits of the couples' claims. Superior Court Judge Frank A. Pfiffner granted summary judgment for all six plaintiffs, Applying minimum serutiny, the court held that the tax exemption program violated the Alaska Constitution's equal protection clause. The court did not reach the couples' alternative arguments regarding heightened serutiny. The court declared that the program violated article I, section 1 of the Alaska Constitution "by imposing a spousal limitation that facially discriminates against same-sex domestic partners." It permanent ly enjoined the State and Municipality from administering the program in a manner that treated same-sex domestic partners differently from married, opposite-sex couples. And it awarded the couples 100% of their attorney's fees. The State and Municipality appeal. The State's appeal primarily focuses on the merits of the summary judgment; the Municipality's appeal exclusively challenges the attorney's fees award. III STANDARD OF REVIEW "We review a grant or denial of summary judgment de novo." - Courts grant summary judgment when no genuine issue of material fact remains and the moving party is entitled to judgment as a matter of law. "Whether two entities are similarly situated is generally a question of fact, "® reviewed for clear error. Identifying the applicable level of serutiny in an equal protection case is a question of law. Likewise, identifying the nature of the challenger's interest and assessing the importance of the governmental interest and the fit between that interest and the means chosen to advance it, present questions of law." We apply our independent judgment to questions of law, and we adopt the rule of law "most persuasive in light of precedent, reason, and policy." We apply our independent judgment when interpreting constitutional provisions or statutes." "A constitutional challenge to a statute must overcome a presumption of constitutionality." "Whether there are sufficient findings for informed appellate review is a question of law." We apply our independent judgment to resolve questions of law, and therefore exercise our independent judgment in considering whether a court has provided sufficient factual findings or legal explanation to permit meaningful appellate review. We apply that standard in deciding whether sufficient factual findings or legal explanations support the superior court's attorney's fees award. "We review the alleged inadequacy of a trial court's fact findings to determine whether they give [us] a clear indication of the factors considered important by the trial court or allow us to determine from the record what considerations were involved." We also apply the independent judgment standard of review in considering whether the trial court applied the law correctly in awarding attorney's fees under AS 09.60.010(c). We "exercise our independent judgment in reviewing whether a trial court has applied the appropriate legal standard in making its prevailing party determination." When a judgment is reversed in part and affirmed in part, we exercise our independent judgment in deciding whether any part of an attorney's fees award must be vacated and reconsidered on remand. IV. DISCUSSION A. The Marriage Amendment Does Not Bar The Couples' Claims. We must first address the State's argument that the Marriage Amendment altogether forecloses these couples' equal protection claims. Article I, section 1 of the Alaska Constitution provides in part: "This constitution is dedicated to the principles that . all persons are equal and entitled to equal rights, opportunities, and protection under the law. ." This passage is often referred to as the equal protection clause. In 1998 Alaska voters amended the Alaska Constitution by adopting the Marriage Amendment, which became article I, section 25 of the constitution. Its full text provides: "To be valid or recognized in this State, a marriage may exist only between one man and one woman." The Marriage Amendment effectively precludes same-sex couples from marrying in Alaska or having their out-of-state marriages recognized in Alaska. Constitutional provisions that potentially conflict must be harmonized if possible. We have recognized that "[the state equal protection clause cannot override more specific provisions in the Alaska Constitution." The State contends that the Marriage Amendment precludes the couples' equal protection claims because it permits the State to treat married couples differently from unmarried couples, and because Alaska's equal protection clause cannot "override" the Marriage Amendment's "more specific provision." Before turning to the Marriage Amendment, we briefly address the State's invocation of AS 25.05.013(b), which provides that "[a] same-sex relationship may not be recognized by the state as being entitled to the benefits of marriage." The State does not argue that AS 25.05.013(b) controls the outcome of this case. It instead asserts that the statute "strongly supports the idea that, as a matter of law, married couples are not similarly situated to unmarried couples, including those of the same sex." The State notes that AS 25.05.018(b) was not invalidated by Alaska - Civil - Liberties - Union - v. - State ("ACLU ") and is therefore presumptively constitutional. Even assuming, as the State argues, that the statute demonstrates that married cou ples are not situated similarly to unmarried couples, the statute draws a distinction that is legally irrelevant to deciding whether the Marriage Amendment precludes the couples' equal protection claims. As we will see, that issue turns on whether the Marriage Amendment is more specific than the equal protection clause, and does not turn on whether married couples and unmarried couples are differently situated. And even as to the merits of the equal protection claim, the State's asserted distinction is irrelevant, because the correct classes for comparison are same-sex couples who wish to marry and opposite-sex couples who wish to marry, not married couples and unmarried couples. The State implies that the comments of the sponsor of the bill that resulted in AS 25.05.013(b) are germane to the meaning of the Marriage Amendment. We are unconvinced that the history of the 1996 statute has any bearing on the meaning of the 1998 amendment to the constitution, especially considering the brevity and limited seope of the Marriage Amendment's text. Although AS 25.05.013(b) expressly prohibits same-sex couples from being entitled to the benefits of marriage, the legislature did not include a prohibition on benefits in the text of the resolution proposing the Marriage Amendment. The State has directed us to no legislative history suggesting that the words of the Marriage Amendment should be interpreted as denying benefits to same-sex cou-ples. Moreover, the ballot measure that submitted the proposed amendment to the voters said nothing about denying or limiting benefits. It did not refer to, quote, or paraphrase AS 25.05.018(b). We now return to the effect of the Marriage Amendment here. In ACLU, same-sex partners challenged a public-employee benefits program. An employee's spouse was eligible to receive benefits under the program, but an employee's same-sex domestic partner was not. We ultimately held that the program violated the challengers' equal protection rights. But before reaching the merits of the couples' claims in that case, we first rejected the Municipality of Anchorage's contention that the Marriage Amendment precluded the challengers' equal protection claims. Our holding rejecting that contention would seem to dispose of the State's contention here that the Marriage Amendment precludes the couples' equal protection claims. But in contending that the Marriage Amendment precludes the equal protection claims of same-sex couples, the State attempts to distinguish ACLU in two ways. First, it argues that ACLU was limited to employment benefits. Second, it argues that ACLU involved the right, recognized in article I, section 1 of the Alaska Constitution, to obtain the rewards of one's own industry, whereas here "there is no corresponding constitutional guaranty of a right to tax exemptions." These two arguments fail to explain why ACLU's holding regarding the Marriage Amendment does not dispose of the State's contention that the Marriage Amendment controls here. ACLU involved claims based on the denial of benefits to public employees, and those claims indeed implicated rights potentially protected by the constitution. But those cireunmstances had no bearing on our holding in ACLU that the Marriage Amendment did not preclude the plaintiffs' equal protection claims. The core issue regarding the effect of the Marriage Amendment was whether it conflicted with the equal protection clause, and if so, whether it controlled as the more specific provision. As to that core issue, we concluded that the two constitutional provisions did not conflict, and that the Marriage Amendment did not preclude the plaintiffs' equal protection claims. That conclusion did not turn on the cireumstance that the plaintiffs' claims implicated a specific right to receive the rewards of one's industry (a right we did not even discuss in holding that the Marriage Amendment did not control). Instead, we reached that conclusion because the Marriage Amendment did not explicitly permit the public employers to engage in practices that potentially violated the equal protection clause. Because the Marriage Amendment did not address the benefits there at issue, we held that it did not foreclose the plaintiffs' equal protection claims. That holding was not limited to equal protection claims of public employees, even though that happened to be the context in which the dispute arose. We conclude that what we said and held in ACLU regarding the Marriage Amendment controls here: The Marriage Amendment effectively precludes same-sex couples from marrying in Alaska, but it does not explicitly or implicitly prohibit public employers from offering to their employees' same-sex domestic partners all benefits that they offer to their employees' spouses. It does not address the topic of employment benefits at all. Nor have we been referred to any legislative history implying that, despite its clear words, the Marriage Amendment should be interpreted to deny employment benefits to public employees with same-sex domestic partners. The Marriage Amendment could have the effect of foreclosing the present challenge only if it could be read to prohibit public employers from offering benefits to their employees' same-sex domestic partners. But nothing in its text would permit that reading... . [ ] Similarly, the Marriage Amendment does not explicitly or implicitly prohibit the State from offering the same property tax exemption to an eligible applicant who has a same-sex domestic partner that the State offers to an eligible applicant who has a spouse. Nor does the Marriage Amendment explicitly or implicitly permit the State to deny benefits to same-sex couples who demonstrate that they are similarly situated to married couples who receive those benefits. The couples' arguments here are like those of the ACLU plaintiffs. The couples here do not argue that the Marriage Amendment violates Alaska's equal protection clause or that they have the right to marry. As Judge Pfiffner correctly reasoned in quoting from ACLU, "the Marriage Amendment speaks only to the definition of marriage," not to the benefits of marriage. The superior court also correctly relied on ACLU's recognition that even though the Marriage Amendment "effectively prevents same-sex couples from marrying," it "does not automatically permit the government to treat them differently in other ways." The Marriage Amendment does not bar the couples' equal protection claims here. B. The Tax Exemption Program Facially Discriminates Between Same-Sex Couples And Opposite-Sex Couples. A plaintiff alleging an equal protection violation must show either that facially neutral state action has a discriminatory purpose or that the state action is facially discriminatory. When a "law by its own terms classifies persons for different treatment," the law is facially discriminatory. The words of the tax exemption statute and regulations create a classification between married couples and unmarried couples. Because same-sex partners cannot become a married couple, the exemption program's classification grants benefits to a class of persons who have the legal status of husband, wife, or spouse that it denies to the class of persons who cannot achieve that status. Reading the Marriage Amendment together with the exemption statute and related regulation, two conclusions are unavoidable: (1) Same-sex couples cannot marry or have their marriages recognized in Alaska, and (2) because they cannot marry, same-sex couples cannot obtain the benefits of the tax exemption to the same extent as married couples. Judge Pfiffner correctly observed that "[in Alaska, a marital classification facially discriminates based on an individual's sexual orientation." He reasoned with regard to this case that because the exemption program expressly refers to "widow," "widower," "spouse," "husband," and "wife," it facially discriminates based on sexual orientation. Judge Pfiffner's reasoning tracks our analysis in ACLU, where we explained: By restricting the availability of benefits to "spouses," the benefits programs "by [their] own terms classifly]" same-sex couples "for different treatment." Heterosexual couples in legal relationships have the opportunity to marry and become eligible for benefits. In comparison, because of the legal definition of "marriage," the partner of a homosexual employee can never be legally considered as that employee's "spouse" and, hence, can never become eligible for benefits. We therefore conclude that the benefits programs are facially discriminatory.[ ] The State argues that the difference in treatment is based not on marital status, but on long-standing distinctions between types of property interests (tenancy in common rather than tenancy by the entirety); it also argues that the exemption laws are "facially neutral." - Additionally, the State asserts (somewhat inconsistently) that the exemption program permissibly distinguishes between married and unmarried couples. The State's contentions are problematic for two reasons. First, as the exemption program pertains to this lawsuit, marital status is the only distinction the exemption statute and regulation draw; they contain no distinction, explicit or implicit, based on differences in property interests. In fact, by extending the exemption to married couples regardless of whether the residence "is held in the name of the husband, wife, or both," the regulation makes the type of property interest irrelevant. Second, even if the exemption's full value were conferred only on couples with a type of property interest-tenancy by the entirety-that is exclusively available to married couples, the program would facially discriminate against same-sex couples who could never acquire that type of interest. Because one type of property interest is categorically unavailable to a class of persons, distinctions based on that type of property ownership would create a facial classification. We therefore conclude that the tax exemption program facially discriminates between same-sex couples and opposite-sex couples. C. Committed Same-Sex Couples Who Want To Marry Are Similarly Situated to Opposite-Sex Couples Who Want To Marry. Plaintiffs who assert equal protection violations "must demonstrate that the challenged law treats similarly situated persons differently. Such claims require us to decide which classes are to be compared and determine whether those classes are similarly situated or whether differences between the classes justify different treatment. The State argues that the classes for comparison should be unmarried co-owners and married co-owners. Judge Pfiffner rejected that argument and compared the plaintiff couples (who are same-sex couples in marriage-like relationships) to married couples. We decided above that the tax exemption program draws a facial classification between same-sex couples and opposite-sex couples. Although the superior court defined the classes somewhat differently-it compared same-sex couples and married couples-this definitional difference is inconsequential. Because opposite-sex couples can marry and have their marriages recognized in Alaska, for purposes of this appeal, there is essentially no difference between married couples and opposite-sex couples who want to marry. We must next determine whether same-sex and opposite-sex couples are similarly situated with respect to the benefits at issue. The superior court found that married couples and same-sex domestic partners are similarly situated because they make similar long-term commitments to each other, including commitments to co-own their homes. The State argues that committed same-sex couples are not similarly situated to married couples because only married couples own property as tenants by the entirety. This argument merely recites one potential aspect of marriage: a married couple's ability to own property as tenants by the entirety. But the State has not explained what it is about tenancy by the entirety that could justify denying same-sex couples equal access to the tax exemption. The only justification the State identifies is based on marital status, a difference that leads back to the constitutional issue. (To the extent the State's argument bears on the importance of governmental interests, we will discuss it when we apply the three-part analysis for equal protection claims in Alaska.) Moreover, tenancy by the entirety could not be the basis for distinguishing between these classes. First, married couples do not necessarily co-own their residences as tenants by the entirety. Second, the exemption program makes the form of title irrelevant. The couples argue that the couples in this case "have cared for and supported each other, built and shared homes together, and combined finances. Their relationships are like those of committed opposite-sex couples in every way except that they cannot marry under Alaska law." In ACLU, we considered similar arguments and noted: Many same-sex couples are no doubt just as truly closely relatled] and closely connected as any married couple, in the sense of providing the same level of love, commitment, and mutual economic and emotional support, as between married couples, and would choose to get married if they were not prohibited by law from doing 50.[ ] For purposes of analyzing the effects of the exemption program, we hold that committed same-sex domestic partners who would enter into marriages recognized in Alaska if they could are similarly situated to those opposite-sex couples who, by marrying, have entered into domestic partnerships formally recognized in Alaska. D. The Tax Exemption Program Treats Same-Sex Domestic Couples And Opposite-Sex Couples Differently. We must next determine whether the challenged program treats these similarly situated classes unequally. The State maintains that the program treats all unmarried couples equally because no unmarried couples can obtain the full exemption to the same extent that married couples can. We rejected this argument in ACLU. We there held that the law treats same-sex couples differently from opposite-sex couples if it prevents same-sex couples from becoming eligible for the benefits at issue. We said there: The municipality correctly observes that no unmarried employees, whether they are members of same-sex or opposite-sex couples, can obtain the disputed benefits for their domestic partners. But this does not mean that these programs treat same-sex and opposite-sex couples the same. Unmarried public employees in opposite-sex domestic relationships have the opportunity to obtain these benefits, because employees are not prevented by law from marrying their opposite-sex domestic partners. In comparison, public employees in committed same-sex relationships are absolutely denied any opportunity to obtain these benefits, because these employees are barred by law from marrying their same-sex partners in Alaska or having any marriage performed elsewhere recognized in Alaska. Same-sex unmarried couples therefore have no way of obtaining these benefits, whereas opposite-sex unmarried couples may become eligible for them by marrying. - The programs consequently treat same-sex couples differently from opposite-sex couples[ ] This reasoning applies equally here. As we explained in ACLU, the Marriage Amendment dictates that only heterosexual couples can become "spouses." Likewise, opposite-sex couples may marry and obtain the full benefit of the exemption, but same-sex couples may not, We affirm the superior court's finding that the exemption program treats similarly situated people unequally. E. The Tax Exemption Program Violates The Equal Protection Rights Of Schmidt, Schuh, Vollick, and Bernard. Having decided that the tax exemption program is facially discriminatory and that it treats similarly situated people differently, we must apply the three-part sliding-seale approach to equal protection under the Alaska Constitution. Our equal protection clause "protects Alaskans' right to non-discriminatory treatment more robustly than does the federal equal protection clause." "To implement Alaska's more-stringent equal protection standard, we have adopted a three-step, sliding-scale test that places a progressively greater or lesser burden on the state, depending on the importance of the individual right affected by the disputed classification and the nature of the governmental interest at stake...." Our sliding-seale approach involves a familiar process: First, it must be determined at the outset what weight should be afforded the constitutional interest impaired by the challenged enactment. The nature of this interest is the most important variable in fixing the appropriate level of review.... Depending upon the primacy of the interest involved, the state will have a greater or lesser burden in justifying its legislation. Second, an examination must be undertaken of the purposes served by a challenged statute. Depending on the level of review determined, the state may be required to show only that its objectives were legitimate, at the low end of the continuum, or, at the high end of the scale, that the legislation was motivated by a compelling state interest. Third, an evaluation of the state's interest in the particular means employed to further its goals must be undertaken. Onee again, the state's burden will differ in accordance with the determination of the level of scrutiny under the first stage of analysis. At the low end of the sliding seale, we have held that a substantial relationship between means and ends is constitutionally adequate. At the higher end of the scale, the fit between means and ends must be much closer. If the purpose can be accomplished by a less restrictive alternative, the classification will be invalidated.[ ] 1. - Minimum scrutiny resolves this case. Government action that burdens only economic interests generally receives only minimum serutiny. Because the tax exemption program affects the couples' economic interests, it is subject to at least minimum scrutiny. Because minimum serutiny resolves this case, we do not need to consider the couples' contention that we should apply heightened scrutiny. 2. The governmental interests are legitimate, but the classification is not substantially related to those interests. Under minimum serutiny, the governmental interests advanced by the challenged law need only to be legitimate. Minimum serutiny requires only a "fair and substantial relation" between the means and the legitimate goals of the challenged law. The State argues that the marital classification advances governmental interests "in cost control, administrative efficiency, and promotion of marriage." Although we held in ACLU that these same interests failed to justify the marital classification, the State contends that its interest in cost-control is greater here than it was in ACLU because tax exemptions must be narrowly construed to maintain the broadest possible tax base and to equalize the tax burden. It also contends that its interest in administrative efficiency is greater here because there is a larger pool of persons-"all potentially eligible real property owners as opposed to identifiable public employees"-who would apply and be eligible for the disputed benefits. Finally, it argues that providing equal benefits to same-sex couples does not encourage opposite-sex couples to marry. The State's proffered interests are legitimate. But the classification here is not sufficiently related to those interests. First, we have repeatedly explained that "cost savings alone are not sufficient government objectives under our equal protection analysis." The government can adequately protect its tax base and minimize cost without discriminating between similarly situated classes. Second, the State allows married couples to establish eligibility for the exemption merely by making a sworn statement. No other proof of marital status is required. Thus, the State's assertion that sworn statements will not suffice for same-sex couples is unpersuasive. The State lists potential impediments to verifying that same-sex couples are in marriage-like relationships, but it has not explained why the initial application cannot require disclosure of sufficient information to satisfy threshold municipal concerns about a given relationship. The State seems to suppose that no initial disclosure can be sufficient, but we are unwilling to make that assumption. We rejected an equivalent ar gument in ACLU. Third, we can assume that providing benefits to spouses promotes marriage among adults who can marry. - But "restricting eligibility to persons in a status that same-sex domestic partners can never achieve . cannot be said to be related to that interest." The State has not explained how denying benefits to couples who cannot marry will promote marriage in couples who can. We assume, as the couples argue, that giving the full benefit only to married couples will not encourage same-sex domestic couples to leave their partnerships and enter into heterosexual relationships with an intention to marry. The State's additional arguments are unpersuasive. For example, the State argues that same-sex couples will be able to obtain the exemption program's full benefit in some cireumstances. This contention is irrelevant, because it is undisputed that the full benefit of the exemption program was unavailable to these two couples, and would likewise be unavailable to any other same-sex domestic couple in similar circumstances. Because the exemption program's marital classification does not bear a substantial relationship to the interests identified by the State, we conclude that the exemption program fails minimum serutiny and violates these couples' rights to equal protection. F. An Exemption Applicant Must Have An Ownership Interest. The State contends that because they were not eligible for the senior citizen exemption, it was error to rule for Fred Traber and Laurence Snider, the third couple. Alaska Statute 29.45.080(e) exempts $150,000 of assessed value of a "property owned and occupied as the primary residence and permanent place of abode by a [senior citizen or disabled veteranl." (Emphasis added.) The State argues that the statute requires that the senior citizen both occupy and own the residence. Because Fred Traber was the "sole owner" but was not over 65 and Laurence Snider was over 65 "but had no ownership interest," the State contends that neither met the statute's eligibility requirements. It also argues that the superior court erred in reading the relevant regulation, 3 AAC 185.085(a), as creating an exception to the ownership requirement. We must therefore decide whether the senior citizen must have an ownership interest in the residence. We begin with the words of the statute. They exempt a residence "owned and occupied" by a senior citizen. They seem to express necessary conditions for the exemption. - The conjunction "and" between "owned" and "occupied" implies that the senior citizen must both own and occupy the residence. No words in the statute imply that a residence is exempt if the senior citizen has no ownership interest in it,. We therefore read the statute to require the senior citizen to occupy the residence and to have some ownership interest in it. Per the statute's words, if only one member of a couple is a senior citizen, but that member has no ownership interest in the residence, the exemption does not apply. In granting relief, the superior court relied on 3 AAC 185.085(a), which states, "[wlhen an eligible person and his or her spouse occupy the same permanent place of abode . the reimbursement applies, regardless of whether the property is held in the name of the husband, wife, or both." (Emphasis added.) The superior court reasoned that "[the regulation language clearly extends the Tax Exemption to eligible applicants who share a home with their spouse, but who do not own the home." The State asserts that the regulation's reference to an "eligible person" must incorporate the statute's eligibility requirements, including the requirement of ownership. Traber and Snider respond that if they could marry, Snider would receive the full exemption even though the property was held in Traber's name. Citing the regulation, they also argue that the State treats a senior citizen (or disabled veteran) spouse as owning 100% of the property, even if he or she does not. They claim that Snider is eligible to claim the exemption as a senior citizen even though the home is held exelu-sively in Traber's name. The implementing regulation relied on by the superior court and by the couples, 3 AAC 135.085(a), specifies when the State will reimburse municipalities for the tax revenues lost as a result of the statutory exemption. It does not explicitly exeuse or ameliorate any exemption requirements set by the enabling statute. We do not read the regulation as making it irrelevant that a senior citizen has no ownership interest at all. The regulation does make it irrelevant that the property "is held in the name of the husband, wife, or both." That language means that the identity of the title holder is not itself determinative, but the regulation does not say that actual ownership is irrelevant. Had that been the promulgators' intention, we would expect the regulation to refer to "ownership," not title ("held in the name of"). And to read the regulation to make ownership altogether irrelevant would cause it to conflict with the plain words of the statute. The best way to avoid any such conflict is to read "eligible person" in the regulation to refer to a person who is eligible, per the statute's requirements, for the senior citizen or disabled veteran exemption. Given the statute's plain words and the absence of any contrary implication in the statute, we are unwilling to read the regulation to mean that the senior citizen or disabled veteran does not need to have any actual ownership interest at all in the property. We therefore reject the reading the superior court adopted. Even assuming the expansive reading of the regulation proposed by the couples and adopted by the superior court were permissible, the word "eligible" in 3 AAC 135.085(a) is, at best for the couples, ambiguous. The couples may assume that anyone benefitted by the exemption program, i.e., either a senior citizen or a disabled veteran who both owns and occupies the residence, or the spouse who owns the residence occupied by the senior citizen or disabled veteran, is "eligible." But it would be odd to rely on an ambiguous regulation to invert the meaning of an unambiguous statute. And most importantly, "eligible" as it is used in the controlling subsection of the statute cannot be read to suggest that a senior citizen or disabled veteran applicant does not need to have some ownership interest in the residence. Other passages in the various exemption statutes use "eligible" in ways that imply that the legislature used the term to refer to those particular persons, e.g., senior citizens or disabled veterans, the legislature intended the exemption statutes to benefit. These statutory passages do not imply that spouses who are not themselves either senior citizens or disabled veterans are also "eligible." Indeed, these statutes do not discuss spouses at all, except in the context of widows or widowers, categories that necessarily exclude a person whose senior citizen or disabled veteran spouse is still alive. "Whether the regulation is consistent with the statute involves statutory interpretation, which is a question of law, to which we apply our independent judgment." When interpreting statutes and regulations, seemingly conflicting provisions must be harmonized unless such an interpretation would be at odds with statutory purpose. Reading the statute and the regulation together, we hold that a residence is not exempt unless the senior citizen or disabled veteran has an ownership interest in it. The statute does not require the senior citizen or disabled veteran to be the sole owner. And the program, as defined by statute and regulation, does not specifically require that the ownership interest be reflected in the title. But we do not see how property can be "owned" by a senior citizen or a disabled veteran unless he or she has some actual ownership interest in the property. The superior court gave three additional reasons for rejecting the State's contention that the regulation did not extend the statutory exemption to this residence. It first noted that the Municipality had granted a full exemption to another married couple although the "non-eligible spouse solely owned" their shared home. That exemption was irrelevant because the statute's language controls, If the exemption was granted to that couple in error, its grant neither determines a valid reading of the statute nor sets a standard that must be followed for a similarly situated couple. And if it was granted properly, it must be because the non-titled spouse nonetheless had an ownership interest that satisfied the statute. The superior court also thought it significant that Alaska Association of Assessing Officers Standard 1.(b) states in part that the exemption applies "to the entire value of the property irrespective of that percentage of ownership of the applicant." But as the State points out, the text of the standard presupposes that an "eligible applicant" and his or her spouse own the residence; the text therefore incorporates the same notions of eligibility we discussed above. And the State correctly reads this standard to implicitly tie eligibility to ownership because the standard expressly addresses the situation "when partial property ownership exists." The stan dard does not imply, much less say, that a residence is exempt if the senior citizen or disabled veteran has no ownership interest in it. Finally, the superior court thought it particularly important that the "legislature intended the exemption to apply" even in those few situations when the applicant spouse does not own or partially own the residence. It reasoned that if the two men were married, the senior citizen "would be able to claim the exemption." It concluded that there was a viable equal protection claim. We assume for discussion's sake that if a married couple in Traber and Snider's identical situation were eligible to receive the exemption, equal protection would not permit denying the exemption to Traber and Snider. But as we have seen, AS 29.45.080(e) would not exempt the residence of a married couple if only one member was a senior citizen or disabled veteran but that member had no ownership interest whatsoever. - Because Traber and Snider were treated no different ly from that hypothetical married couple, there was no equal protection violation if Snider in fact had no ownership interest in the property. The superior court granted complete summary judgment to Traber and Snider and denied the governments' cross-motion. It did not determine whether Snider had any ownership interest in the residence, but it confirmed that the parties had agreed that there were no genuine issues of material fact. Traber and Snider litigated their claims without preserving any possible factual dispute about whether Snider had any actual ownership interest that would satisfy AS 29.45.030(e). We have concluded as a matter of law that the senior citizen or disabled veteran must both occupy and have an ownership interest in the residence. There is no genuine factual dispute about whether Snider is an owner of the residence. We consequently reverse that portion of the judgment in favor of Traber and Snider. As to their claims, we remand for entry of judgment for the State and Municipality. G. The Attorney's Fee Award Requires Further Proceedings. The State and Municipality argue that it was error to grant the couples' motion for an award of 100% of their attorney's fees, $135,475.50. The State and Municipality contend that it was an abuse of discretion not to make the findings needed to address their arguments opposing the fees motion. The couples' motion sought $135,475.50 for 458.8 billed hours of services. The parties filed memoranda discussing whether the couples qualified as constitutional claimants and whether equitable factors applied. The State and Municipality argued that the requested fees were excessive, reflected duplicative services, and were much higher than those awarded in ACLU, the case the couples claimed controlled. The Municipality also argued that the couples did not establish that there was insufficient economic incentive to bring the litigation, and that other factors, including the relative simplicity of the case, justified a reduction in the award. On appeal, the State and Municipality argue that the court made no findings resolving their objections. We first observe that our reversal of the portion of the judgment entered in favor of Traber and Snider requires reconsideration of the fee award, aside from the reasons the State and Municipality advance. Because Traber and Snider are no longer prevailing parties, fees may not be awarded to them. We leave it to the parties on remand to explore the reversal's effect on any claim for attorney's fees. Because the same disputes may recur on remand, we now turn to the issues raised by the State and Municipality. The fees order awarding the couples the full amount requested, $135,475.50, briefly stated that the couples had "properly" moved for fees under Alaska Civil Rule 82 and AS 09.60.010 and that the requested fees were reasonable in terms of hours spent and rates billed. It did not explain how Rule 82 or AS 09.60.010 applied, did not state whether the couples were prevailing constitutional claimants for purposes of AS 09.60.010, did not discuss whether the couples had sufficient financial incentive to sue absent their constitutional claims, and did not discuss whether Rule 82(b)@8) factors or other factors were relevant. It did not address any of the governments' arguments, including their arguments that the billings reflected excessive and duplicative services. The couples argue that as the prevailing parties, they can recover fees under Rule 82 and AS 09.60.010(c)(1), and that the superior court adequately explained its decision by referring to Rule 82 and AS 09.60.010. They rely on Krone v. State, Department of Health & Social Services for the proposition that courts should generally award full reasonable attorney's fees to couples who prevail on their constitutional claims. Krone addressed the interplay of Rule 82 and AS 09.60.010. We there explained that AS 09.60.010 does not preclude the court from considering equitable factors, including the Rule 82(b)(8) factors, in determining whether the fees were reasonable. But we cautioned that a trial court's "ultimate conclusion should be reached only after express consideration of all factors relevant to a determination of full reasonable fees for a claimant who prevails on constitutional claims." A court must make sufficient findings to permit meaningful review of an attorney's fees award. For example, in Simpson v. Murkowski the superior court found that the couples were public interest litigants, but we remanded because the superior court did not explain whether the couples had sufficient economic incentive to bring the suit. An absence of explicit findings is not nee-essarily fatal. In Law Project for Psychiatric Rights, Inc. v. State, we stated, "[ble-cause the superior court's attorney's fees award accords with the presumptive percentages in Rule 82(b)(2) . the court need not offer an explanation of its award." And in State v. Jacob we affirmed the award even though the superior court did not explicitly find prevailing-party status. The bases for the awards were clear in those cases, so no further explanations were needed. But here it is not self-evident from the order or the record how or whether the superior court resolved the governments' contentions. The order did not address their contentions, supported by citations to the billing records, that the hours billed and services provided by seven experienced attorneys billing at substantial rates were excessive and duplicative. The award did not accord with the presumptive percentages set out in Rule 82(b)(2). We cannot tell whether the award took into account any Rule 82(b)(8) factors or other equitable factors. We cannot assume there was an implicit conclusion that no Rule 82(Lb)(8) factors or equitable factors applied. And although we can safely assume that the court concluded that the couples had prevailed on constitutional claims, the court made no finding about whether the couples had sufficient economic incentive to sue, one of the statutory factors pertinent to awarding full fees. The award's reference to AS 09.60.010 is not self-explanatory. We cannot assume that there was an implicit finding that the couples had insufficient economic incentive to sue. Because Traber and Snider are no longer prevailing parties, we vacate the entire fees award and remand for further proceedings. Remand will also permit entry of findings or rulings sufficient for appellate review of subsequent contentions that an attorney's fees award, including an award of full fees, on remand was an abuse of discretion, legally erroneous, or clearly erroneous. v. CONCLUSION For these reasons, we AFFIRM the superior court's declaration that "in combination," AS 29.45.080(e) and 8 AAC 185.085(a) and (c) violate Alaska's equal protection clause "by imposing a spousal limitation that facially discriminates against same-sex domestic partners." We likewise AFFIRM the declaration of prevailing party status as to Schmidt, Schuh, Vollick, and Bernard. As to Snider and Traber, we REVERSE the ruling that the exemption applied to them and that they had "stated a viable equal protection claim." We also REVERSE the order for entry of final judgment to the extent it declares Snider and Traber to be prevailing parties, and REMAND for entry of judgment for the State of Alaska and Municipality of Anchorage on the claims of Traber and Snider. We VACATE and REMAND the attorney's fee award for the reasons discussed in Part IV.G. CARPENETI, Justice, not participating. WINFREE, Justice, concurring. . AS 29.45.010. . E.g., AS 29.45.030(a), (e), (§), (1). . AS 29.45.030(e). . The tax exemption's implementing regulations are set out in Alaska Administrative Code (AAC) Title 3, Chapter 135 (2012). . Ch. 118, § 2, SLA 1972; see also former AS 29.53.020(e) (1972). . Ch. 40, § 1-4, SLA 1984; see also former AS 29.53.020(e) (1984). . Ch. 74, § 12, SLA 1985. . 3 AAC 135.120(8). . AS 29.45.030()(1) defines "disabled veteran." . 3 AAC 135.085(a), (c). . If the assessed value is $300,000 or more, the full value of the $150,000 exemption applies regardless of the couple's marital status-even if the ineligible partner occupies half of the property. Co-occupancy does not limit the full value of the exemption in that situation. . Anchorage Municipal Code (AMC) 12.15.015(D)(1)-(2) (2012). . One couple married in Canada in 2007; another married in California in 2008. The Municipality has not disputed the nature of the couples' relationships or the facts surrounding their exemption applications, and the State conceded that all three couples are in committed, same-sex relationships. We use "same-sex couple" or "same-sex domestic couple" to mean two people of the same biological sex who are in a long-term, committed, intimate domestic partnership, and who would marry if they could. The three couples in this case met this definition. See Alaska Civil Liberties Union v. State, 122 P.3d 781, 784 n. 5 (Alaska 2005); see also AS 39.50.200(a)(4) (" '[DJomestic partner' means a person who is cohabiting with another person in a relationship that is like a marriage but that is not a legal marriage. ."). . See AS 29.45.030(e); see also 3 AAC 135.085(a), (c). . Vollick and Bernard separated in 2011, but no party argues that their separation moots their claims. . No party argues that the absence of an exemption application for that residence is significant. . Alaska Civil Liberties Union v. State, 122 P.3d 781, 785 (Alaska 2005) (citing City of Kodiak v. Samaniego, 83 P.3d 1077, 1082 (Alaska 2004); Powell v. Tanner, 59 P.3d 246, 248 (Alaska 2002)) (reviewing de novo grant and denial of summary judgment). . Mitchell v. Teck Cominco Alaska Inc., 193 P.3d 751, 757 (Alaska 2008) (citing Miller v. Safeway, Inc., 170 P.3d 655, 658 (Alaska 2007)) (discussing standard for grant of summary judgment). . Alaska Inter-Tribal Council v. State, 110 P.3d 947, 967 (Alaska 2005) (citing Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 n. 2 (2d Cir.2001)) (reviewing for clear error finding that two classes were not similarly situated). . See id. at 956 (citing Vezey v. Green, 35 P.3d 14, 19-20 (Alaska 2001)). . Alaska Civil Liberties Union, 122 P.3d at 785 (citing Reichmann v. State, Dep't of Natural Res., 917 P.2d 1197, 1200 & n. 6 (Alaska 1996); Sonneman v. Knight, 790 P.2d 702, 704 (Alaska 1990)) (determining de novo the applicable level of scrutiny). . Id. (citing Sonneman, 790 P.2d at 704-06) (conducting de novo equal protection analysis). . State v. Anthony, 810 P.2d 155, 156-57 (Alaska 1991) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979)) (internal quotation marks omitted) (citing Sonneman, 790 P.2d at 704) (describing independent judgment standard) reh'g granted, 816 P.2d 1377 (Alaska 1991). . Alaska Civil Liberties Union, 122 P.3d at 785 (citing Alaska Trademark Shellfish, LLC v. State, 91 P.3d 953, 956 (Alaska 2004); State, Commercial Fisheries Entry Comm'n v. Carlson, 65 P.3d 851, 858 (Alaska 2003)) (applying independent judgment to constitutional and statutory questions). . Id. at 785 (citing Brandon v. Corr. Corp. of Am., 28 P.3d 269, 275 (Alaska 2001}); see also Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d 183, 192 (Alaska 2007) (discussing the presumption of constitutionality). . Hooper v. Hooper, 188 P.3d 681, 692 (Alaska 2008). . Id. at 685. . Borchgrevink v. Borchgrevink, 941 P.2d 132, 137 (Alaska 1997) (as quoted in Hooper, 188 P.3d at 692). . State v. Jacob, 214 P.3d 353, 358 (Alaska 2009). . Id. . Cf. Kenai Peninsula Borough v. Port Graham Corp., 871 P.2d 1135, 1142 (Alaska 1994) (vacating and remanding attorney's fees award for recalculation after reversing in part and affirming in part the superior court judgment, despite our agreement with the superior court's legal conclusions concerning the nature and scope of the award authorized by the applicable statute). . Article I, section 1 states in full: This 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. . See, e.g., Alaska Civil Liberties Union v. State, 122 P.3d 781, 785 (Alaska 2005). . S.J. Res. 42, 20th Leg., 2d Sess. (Alaska 1998). . Alaska Const. art. I, § 25. . Alaska Civil Liberties Union, 122 P.3d at 786 (quoting Cusster James Antieau, Consttturionar Construction § 2.15, at 27 (1982)) (citing Owsichek v. State, Guide Licensing & Control Bd., 763 P.2d 488, 496 (Alaska 1988); State v. Ostrosky, 667 P.2d 1184, 1191 (Alaska 1983); Park v. State, 528 P.2d 785, 786-87 (Alaska 1974); Antieau, supra, § 2.06, at 18-20). . Id. at 787 (citing Bess v. Ulmer, 985 P.2d 979, 988 n. 57 (Alaska 1999); Antieau, supra note 36, § 2.16, at 27-28). . AS 25.05.013, entitled "Same-sex marriages," states in full: (a) A marriage entered into by persons of the same sex, either under common law or under statute, that is recognized by another state or foreign jurisdiction is void in this state, and contractual rights granted by virtue of the marriage, including its termination, are unenforceable in this state. (b) A same-sex relationship may not be recognized by the state as being entitled to the benefits of marriage. . 122 P.3d at 781-95. . - The couples do not argue that AS 25.05.013(b) is unconstitutional, and the superior court did not consider its constitutionality. The plaintiffs in Brause v. State, Dep't of Health & Soc. Servs., 21 P.3d 357, 360 (Alaska 2001), challenged its constitutionality, but because we held that their claim was not ripe for adjudication, we did not consider the statute's constitutionality. Id. Its constitutionality was not raised in ACLU. . AS 25.05.013 was enacted in 1996. Ch. 21, § 2, SLA 1996. The legislature in 1998 adopted the resolution that proposed the Marriage Amendment. - Voters approved the Marriage Amendment in 1998. S.J. Res. 42, 20th Leg., 2d Sess. (Alaska 1998). . - As we observed in ACLU, a state constitutional amendment that expressly denied benefits to same-sex couples would arguably offend the federal Constitution. 122 P.3d at 786 n. 20 (citing Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (holding that an amendment to the Colorado Constitution that repealed all local and statewide laws prohibiting sexual-orientation discrimination violated the federal equal protection clause)). . The published statement supporting adoption of the ballot measure instead stated that the measure "does not 'target' anybody or 'deny' anybody their rights." Loren Leman, Statement in Support, in Araska 1998 Orriciat Erection PampHLET-BaLLor Measure 2 (1998), available at http:// www.elections.alaska.gov/pub_oep.php. . Alaska Civil Liberties Union, 122 P.3d at 783. . Id. . Id. at 795. . Id. at 785-87. The State did not argue in ACLU that the Marriage Amendment foreclosed the ACLU plaintiffs' equal protection claims. . Id. at 786, 794. . - Id. at 794 & n. 60 (describing Alaska Constitution article I, section 1 and article XII, section 6 as guaranteeing "all Alaskans 'the rewards of their own industry'" and requiring merit public employment). . Id. at 786-87. . Id. . Id. at 785-87. We instead discussed that right when we reached the conclusion of our equal protection analysis. Id. at 794 & n. 60. . Id. at 786-87. . Id. at 786 (footnotes omitted). . See id. at 787. . Id. at 786-87 (superior court's emphasis). . Id. . The State does not expressly challenge the couples' standing to sue, but asserts that the terms "widow" and "widower" found in AS 29.45.030(e) are not relevant here. If that assertion were meant to imply an objection to the couples' standing, it would ignore the words of the pertinent regulation. It is undisputed that none of the plaintiffs here is, or can become, a "spouse," "husband," or "wife" of his or her partner. See 3 AAC 135.085(a), (c). . See Alaska Inter-Tribal Council v. State, 110 P.3d 947, 956 (Alaska 2005) (quoting Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 273-74, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-65, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 239-42, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). . Alaska Civil Liberties Union, 122 P.3d at 788. . Id. (quoting Joun E. Nowak & Ronatp D. Rotur-pa, ConstmurionaL Law § 14.4, at 711 (7th ed.2004)). . See AS 29.45.030(e) (benefitting a "widow" or "widower"); see also 3 AAC 135.085(a), (c) (ben-efitting a "spouse," "husband," or "wife"). . Alaska Const. art. I, § 25. . We read related provisions together, not in isolation. See Underwater Constr., Inc. v. Shirley, 884 P.2d 150, 155 (Alaska 1994). . Alaska Const. art. I, § 25. . See AS 29.45.030(e); see also 3 AAC 135.085. . Alaska Civil Liberties Union v. State, 122 P.3d 781, 789 (Alaska 2005) (alterations in original) (footnotes omitted). In ACLU, we recognized that the benefits programs became discriminatory only after the adoption of the Marriage Amendment in 1998. Id. at 789 n. 38. But we explained that "allowing a discriminatory classification to remain in force is no different than giving it the force of law in the first place." Id. The same analysis applies here. . 3 AAC 135.085(a). . Per AS 34.15.110(b), married couples in Alaska who acquire real property co-own the property as tenants by the entirety unless the conveyance or devise specifies otherwise or unless they create a community trust under AS 35.77.100. Tenancy by the entirety is "[a] common-law estate in which each spouse [owns] the whole of the property. An estate by the entirety is based on the legal fiction that a husband and wife are a single unit." Brack's Law Dicrionary 627 (Oth ed.2009); see Faulk v. Estate of Haskins, 714 P.2d 354, 356 (Alaska 1986) (holding that husband and wife's failure to recite marital status in the deed did not defeat tenancy by the entirety); see also Smith v. Kofstad, 206 P.3d 441, 445 (Alaska 2009) (discussing survivorship for tenants by the entirety). Per AS 34.15.140(c), a spouse who owns real property may convey it to "self and the other spouse" as tenants by the entirety or as tenants in common. In contrast, unmarried persons (including domestic partners) in Alaska who acquire real property together hold it as tenants in common. By law, they cannot establish a tenancy by the entirety. AS 34.15.130 (abolishing joint tenancies except interests in personalty and tenancy by the entirety); see also AS 34.15.110(a). Tenancy in common is '"[a) tenancy by two or more persons, in equal or unequal undivided shares, each person having an equal right to possess the whole property but no right of survivorship." Brack's Law Dictionary 1604 (9th ed.2009); see Voss v. Brooks, 907 P.2d 465, 468 n. 2 (Alaska 1995) (noting that unmarried couples could not hold property as tenants by the entirety). "Tenants in common are presumed to take equal undivided interests, but this presumption is re-buttable." Voss, 907 P.2d at 469 (citing D.M. v. D.A., 885 P.2d 94 (Alaska 1994)). . Alaska Civil Liberties Union, 122 P.3d at 787 (citing Alaska Inter-Tribal Council v. State, 110 P.3d 947, 966 (Alaska 2005); Lawson v. Helmer, 77 P.3d 724, 728 (Alaska 2003)). . Alaska Inter-Tribal Council, 110 P.3d at 967 ("If it is clear that two classes are not similarly situated, this conclusion 'necessarily implies that the different legal treatment of the two classes is justified by the differences between the two classes.'" (quoting Lauth v. State, 12 P.3d 181, 187 (Alaska 2000))) (citations omitted). . Cf. Alaska Civil Liberties Union, 122 P.3d at 788 ("[The proper comparison is between same-sex couples and opposite-sex couples, whether or not they are married."). . The members of a married couple do not necessarily co-own their residence. One spouse might have owned the residence before the marriage, or might inherit it after the couple marries. And there are statutory exceptions to tenancy by the entirety for property acquired by a couple during their marriage: A conveyance or devise may expressly declare otherwise, or the married couple may create a community trust. AS 34.15.110(b); AS 34.77.100. . 3 AAC 135.085(a). . Alaska Civil Liberties Union, 122 P.3d at 791 (alteration in original) (internal quotation marks omitted). . Id. at 787 (Article I, section 1 of the Alaska Constitution mandates equal treatment of those similarly - situated....") - (internal | quotation marks omitted). . Id. at 788. . Id. . Id. (footnotes and citations omitted). . Id. at 788-89. . State, Dep't of Health & Soc. Servs. v. Planned Parenthood of Alaska, Inc., 28 P.3d 904, 909 (Alaska 2001) (citing State v. Anthony, 810 P.2d 155, 157 (Alaska 1991)). . Alaska Civil Liberties Union, 122 P.3d at 787 (quoting Malabed v. N. Slope Borough, 70 P.3d 416, 420-21 (Alaska 2003)) (internal quotation marks omitted). . Alaska Civil Liberties Union, 122 P.3d at 789 (citing Matanuska-Susitna Borough Sch. Dist. v. State, 931 P.2d 391, 396-97 (Alaska 1997)). . Id. at 790 (citing Church v. State, Dep't of Revenue, 973 P.2d 1125, 1130 (Alaska 1999)). . - Id. at 790 (citing Matanuska-Susitna Borough, 931 P.2d at 396-97). . Planned Parenthood of Alaska, Inc., 28 P.3d at 911 (quoting Isakson v. Rickey, 550 P.2d 359, 362 (Alaska 1976)). . Alaska Civil Liberties Union, 122 P.3d at 790-93. . Herrick's Aero-Auto-Aqua Repair Serv. v. State, Dep't of Transp. & Pub. Facilities, 754 P.2d 1111, 1114 (Alaska 1988); see also Alaska Pac. Assurance Co. v. Brown, 687 P.2d 264, 272 (Alaska 1984). . Alaska Civil Liberties Union, 122 P.3d at 791-92. . Id. at 793. . AS 29.45.030(e). . AS 29.45.030(e). . 3 AAC 135.085(a). . Cf. AS 34.15.010(d), which implicitly recognizes a distinction between a spouse's interest in a family home as memorialized by the title and a property interest entitled to protection. Unless the spouse appears on the title, that statute provides that the spouse's failure to join in the deed or conveyance of the family home does not affect the validity of the transaction so long as the spouse does not timely sue to set aside the conveyance. Id. , When interpreting an ambiguous regulation, we give it an interpretation that avoids putting the regulation into conflict with its enabling statute. See State v. Anderson, 749 P.2d 1342, 1343-44 (Alaska 1988) (quoting AS 44.62.030) ("[NlJo regulation adopted is valid or effective unless consistent with the statute and reasonably necessary to carry out the purpose of the statute."); see also Wilber v. State, Commercial Fisheries Entry Comm'n, 187 P.3d 460, 464 (Alaska 2008) (reviewing regulations to determine whether they conflict with statutory or constitutional provisions); see also Progressive Ins. Co. v. Simmons, 953 P.2d 510, 516 (Alaska 1998) (quoting City of Anchorage v. Scavenius, 539 P.2d 1169, 1174 (Alaska 1975)) (''To determine whether two statutory provisions stand in conflict, we must interpret them together, in context with other pertinent provisions rather than in isolation, and with a view toward reconciling conflict and producing 'a harmonious whole.'"). . AS 29.45.030(e) (providing in part that "if two or more persons are eligible for an exemption for the same property," they shall decide among themselves who is to receive the benefit). . See for example, AS 29.45.030(e) (using "eligible" consistently with our interpretation); AS 29.45.030(f) (providing in part that "[to be eligi ble for [the senior citizen or disabled veteran] exemption . the municipality may by ordinance require that an individual also meet requirements under one of the following paragraphs: (1) the individual shall be eligible for a permanent fund dividend. ."); AS 29.45.040(a) (providing for a "tax equivalency payment" to a resident who "is eligible" if the resident is at least 65 years old or a disabled veteran or at least 60 years old and the widow or widower "of a person who was eligible for payment under (1) or (2)...."); AS 29.45.040(b)-(d) (using "eligible" in a way that implies it refers to the direct beneficiaries of the exemption}; AS 29.45.052(b) (requiring an individual applying for a below-poverty-level tax deferral to submit "proof of eligibility"); AS 29.45.053(b) (requiring that "if two or more are eligible" for a law-enforcement officer exemption, they shall decide among themselves who is to benefit). AS 29.45.030(e), in language parallel to the text of AS 29.45.040(a) quoted above, extends the senior citizen/disabled veteran exemption to an owner/occupant who is at least 60 years old and is "the widow or widower of a person who qualified for" the senior citizen or disabled veteran exemption. (Emphasis added.) It is probable the legislature intended "qualified" to mean the same thing as "eligible." . State, Dep't of Natural Res. v. Greenpeace, Inc., 96 P.3d 1056, 1061 n. 10 (Alaska 2004) (citing Payton v. State, 938 P.2d 1036, 1041 (Alaska 1997)). . Progressive Ins. Co. v. Simmons, 953 P.2d 510, 517 (Alaska 1998) (''The goal of reconciling conflict must thus give way when harmony between potentially conflicting provisions can be achieved only at the price of an interpretation at odds with statutory purpose."). . See Underwater Constr., Inc. v. Shirley, 884 P.2d 150, 155 (Alaska 1994) (holding that related provisions should be read together). . See Flisock v. State, Div. of Ret. & Benefits, 818 P.2d 640, 644 n. 5 (Alaska 1991) (holding claimant was not entitled to agency's mistaken application of statutory provision). . The State argues here that Snider had "no ownership interest" in the residence, and the superior court appeared to assume that he had none. The couples' complaint did not allege that Snider was in fact an owner of the residence, nor does the couples' appellate brief. The complaint instead alleged that the home "is held in Traber's name, but the couple has made it their home together and both partners view the home as belonging to both of them." Their appellate brief makes the same assertion. The parties' cross-motions for summary judgment raised no factual dispute about whether Snider in fact had any ownership interest in the residence. In short, Snider and Traber have not asserted that Snider had any legally cognizable ownership interest in the residence or that an alternative ground-that Snider in fact has some qualifying ownership interest-exists for affirming the court's judgment in their favor. . See Krone v. State, Dep't of Health & Soc. Servs., 222 P.3d 250, 255-56 (Alaska 2009). . Id. . Id. at 257-58. . Id. at 258. . Simpson v. Murkowski, 129 P.3d 435, 448 n. 65 (Alaska 2006) ("[A] superior court's order must contain specific findings of fact and conclusions of law to permit meaningful review by this court.") (internal quotation marks omitted); S.L. v. J.H., 883 P.2d 984, 986 (Alaska 1994) ("It has been our practice to remand a case to the superi- or court when its findings are not detailed enough or sufficiently explicit to allow meaningful review."). . 129 P.3d at 447-49. . 239 P.3d 1252, 1257 n. 25 (Alaska 2010) (quoting Marsingill v. O'Malley, 128 P.3d 151, 163 (Alaska 2006)) (internal quotation marks omitted). . 214 P.3d 353, 359-60 (Alaska 2009). . See AS 09.60.010(d)(2). Moreover, when it executed the order for entry of final judgment about two months before it entered the order awarding fees, the superior court struck through language proposed by the couples that would have ruled "that the plaintiffs are thus 'constitutional litigants' within the meaning of [AS] 09.60.010(c) and . Rule . 82." . Remand will give the Municipality an opportunity to elaborate on its apportionment request. The Municipality asked the superior court to apportion fees pro rata. We do not need to decide whether that request preserved the issue, because the couples do not oppose remand on the issue of apportionment, and the State's reply brief does not respond to the Municipality's appellate apportionment argument. Because we remand for further proceedings, the parties may litigate apportionment on remand.

6958764

Jennifer LOCKWOOD, Appellant, v. GEICO GENERAL INSURANCE COMPANY, Appellee

Lockwood v. Geico General Insurance Co.

2014-05-02

No. S-14552

691

700

323 P.3d 691

323

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:19:49.086852+00:00

CAP

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

Jennifer LOCKWOOD, Appellant, v. GEICO GENERAL INSURANCE COMPANY, Appellee.

Jennifer LOCKWOOD, Appellant, v. GEICO GENERAL INSURANCE COMPANY, Appellee. No. S-14552. Supreme Court of Alaska. May 2, 2014. Jeffrey J. Jarvi, Anchorage, for Appellant. David S. Carter, Hughes Gorski Seedorf Odsen & Tervooren, LLC, Anchorage, for Appellee. Before: FABE, Chief Justice, WINFREE, STOWERS, and MAASSEN, Justices.

5400

34567

OPINION FABE, Chief Justice. I. INTRODUCTION Jennifer Lockwood was injured in a car accident caused by an uninsured drunk driver. Lockwood had car insurance through Geico General Insurance Company. After exhausting her policy's medical payments coverage, Lockwood sought payment under her uninsured motorist coverage. Geico offered $750 to settle the uninsured motorist claim, and Lockwood declined. Geico questioned Lockwood's medical bills because they seemed "high" to the adjusters and refused to make additional medical payments outside of a total settlement of Lockwood's uninsured motorist claim. Geico pointed to the fact that Lockwood had received treatment for a prior back problem, but it took no action to resolve the alleged medical uncertainty, such as requesting an independent medical exam or voluntary arbitration, before refusing to pay for medical expenses. Lockwood paid out of pocket for some of her treatment costs and took out a loan for her remaining medical bills. She later ceased treatment due to its prohibitive cost and experienced ongoing pain. The parties eventually settled Lockwood's uninsured motorist claim for $25,000. Lockwood brought a tort claim against Geico for alleged breach of the duty of good faith and fair dealing implied in her insurance contract, arguing that Geico unreasonably delayed payment of Lockwood's uninsured motorist claim. Lockwood sought to discover Geieo's training and claims-handling manuals, but the superior court denied her request. The superior court subsequently granted summary judgment in favor of Geico on the bad-faith tort claim and awarded attorney's fees. We reverse the superior court's grant of summary judgment because there is a genuine issue of material fact regarding whether Geico lacked a reasonable basis for delaying payment on Lockwood's uninsured motorist claim. Because we reverse the grant of summary judgment, we vacate the award of attorney's fees and we remand for further proceedings. We also conclude that it was an abuse of discretion to deny discovery of Gei-co's manuals because they contain information that could be relevant to Lockwood's bad-faith claim. II. FACTS AND PROCEEDINGS A. Car Accident And Injuries On May 21, 2007, a drunk driver in a large van rear-ended Lockwood while she was stopped at a red light in her Nissan Sentra. It was undisputed that the drunk driver was entirely responsible for the accident. Lockwood sustained injuries in the accident. According to the emergency room report, Lockwood felt tenderness in her neck that night. The emergency room doctor diagnosed Lockwood with a cervical spine injury and strain of the muscles near the neck. An X-ray of her neck showed no spinal or "soft tissue abnormallit[ies]." Lockwood also filled out an injury form for the accident. In the form Lockwood reported that she experienced a headache, dizziness, and pain in her left wrist, neck, and back. Lockwood indicated in her affidavit that she continued to experience pain the day after the accident, particularly in her back, neck, and wrist. B. Geico Insurance Policy The drunk driver was an uninsured motorist, but Lockwood had an automobile insurance policy with Geico General Insurance Company. Lockwood's policy provided two categories of coverage that are relevant here: (1) medical payments coverage and (2) uninsured motorist coverage. The medical payments coverage covered "all reasonable [medical] expenses actually incurred by an insured" due to "bodily injury caused by accident," with payments capped at $10,000. The uninsured motorist coverage would "pay damages for bodily injury, caused by an accident, which the insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle," provided that this benefit would not pay out "until the limits of liability of all bodily injury . policies that apply have been used up." The maximum benefit for uninsured motorist coverage was $50,000 per person. The insurance policy established several conditions for receipt of payment under the uninsured motorist coverage, including notice to Geico, "written proof of claim, under oath if required," and willingness to submit to a medical exam if required. The Geico policy explained that "[this [proof of claim] will include details of the nature and extent of injuries, treatment and other facts which may affect the amount payable." C. - Medical Treatment The day after the accident, Lockwood went to a local chiropractor. He diagnosed Lockwood with neck and shoulder muscle strains. He ordered an MRI and performed x-rays of Lockwood's neck; both were normal. He informed Geico that his treatment plan for Lockwood consisted of daily chiropractic treatment for two weeks, tapering to three treatment sessions per week. But when Lockwood's back pain continued, she continued her treatment from her chiropractor beyond the initial treatment period. In July 2007 Geico sent a letter to Lockwood's chiropractor requesting that he pro vide a complete billing history and all previous treatment records for Lockwood. Geico informed the chiropractor that it was unable to issue payment for services from June 11, 2007 to July 2, 2007 until Geico received the requested information. Geilco's log notes indicate that Geico received the requested records from the chiropractor's office within the month, by August 1, 2007. The records showed that Lockwood had received treatment from the chiropractor before the May 21, 2007 accident for a prior back injury but that Lockwood had last seen the chiropractor on January 5, 2007, about five months before the accident. According to Lockwood's medical records, an orthopedic surgeon determined that Lockwood was medically stable in December 2006. By July 25, 2007, the chiropractor had released Lockwood to work. Lockwood's back felt sore from her return to work. In the summer of 2008, over a year after the accident, Lockwood was still receiving treatment from her chiropractor for her neck strain and back pain. Lockwood's back pain persisted, and her chiropractor referred her to a medical doctor about a year after the accident. D. Exhaustion Of Medical Payments Coverage Geico initially paid for Lockwood's bills under the medical payments coverage of her insurance policy. Geico paid $2,867 for medical visits and examinations within the first five days of the accident and $7,133 for Lockwood's chiropractic care from May 22, 2007 to August 17, 2007. By August 2007, about 12 weeks after the accident, these medical payments totaled $10,000, and Lockwood exhausted her medical payments coverage. Geico then informed Lockwood about her uninsured motorist coverage and the settlement process. E. Dispute Over Uninsured Motorist Coverage And Settlement Of Uninsured Motorist Claim Lockwood sought payment for her medical costs under her uninsured motorist coverage. But Geico never paid Lockwood's medical bills under her uninsured motorist policy. Lockwood paid for $1,000 of her unpaid medical expenses and took out a loan for about $5,000 to cover the rest. Because she could not afford to pay for continuing treatment, Lockwood eventually stopped treatment even though she maintained that she still suffered back pain. By May 2008 Lockwood had retained an attorney to pursue medical payments from Geico. Lockwood's claim for benefits under her uninsured motorist policy was eventually settled after three years of negotiations and the early stages of litigation of her lawsuit against Geico. Geico had first offered to settle Lockwood's uninsured motorist claim for $750 in June 2007, before she retained counsel. According to Geico, it based this settlement offer on Lockwood's request for the cost of her son's day care while she was in treatment. Lockwood declined the offer. In May 2008 Geico advised Lockwood that it would not consider paying her medical bills "[olutside [olf [tJotal [slettlement." A Geico supervisor advised the claims adjuster for Lockwood's case "to try to move the U[nin-sured] Motorist] claim in a posture to attempt to settle." In July 2008 Geico advised Lockwood's attorney that Lockwood's medical bills seemed "[bligh." In April 2009 Lockwood offered to settle for the policy limit of $50,000, and a month later Geico responded with an offer to settle for $12,000. Lockwood refused the offer. Lockwood filed her first amended complaint on January 15, 2010, asserting a breach of contract claim under her uninsured motorist coverage and a tort claim for Geieo's "breach of the covenant of good faith and fair dealing" implied in the insurance policy. Faced with a lawsuit, Geico requested for the first time in May 2010, nearly three years after the accident, that a doctor perform an independent medical evaluation of Lockwood. The doctor found that Lockwood experienced "mild discomfort" in her lower back in a range-of-motion test and diagnosed neck muscle and ligament strain or sprain as well as lower back muscle or ligament strain. At the same time, the doctor reported that "[blased upon the medical records reviewed, my history taken from Ms. Lockwood, and the physical examination, I could find no objective evidence to support Ms. Lockwood's contention that she hurt her lower back in the accident of May 21, 2007." He further concluded that he would have expected the "[sloft tissue injuries sustained by Ms. Lockwood in the accident of May 21, 2007, [to bel resolved within six to eight weeks following the date of the accident." His review of her records and medical history "provide{d] no reason to suspect extenuating circumstances which could delay recovery of the soft tissue injuries she sustained." In August 2010 Geico increased its settlement offer for Lockwood's uninsured motorist claim to $25,000. Lockwood accepted the offer in October 2010 and signed the $25,000 settlement agreement in return for the release of her contract claim against Geico arising from the May 21, 2007 accident. This release expressly preserved Lockwood's "claims for alleged extracontractual/bad faith damages." - Lockwood resumed treatment for her back pain after she settled with Geico and reported that resuming treatment "has helped my pain and my condition." F. Discovery Dispute In Lockwood's Bad-Faith Tort Action With the bad-faith tort claim before the superior court, Lockwood requested that Gei-co "produce all claims handling manuals that GEICO provides to, makes available to, or gives access to Alaska adjusters . for their use and reference in handling automobile collision claims." Geico objected, denying that the manuals were relevant "to any legitimate issue in this case." Lockwood filed a motion to compel the requested discovery, which the superior court found "exceeed[ed] the directive from the court" for "narrowly drafted discovery requests." The superior court directed Lockwood to "either redraft the discovery, or submit further argument as to why . the proposed discovery fits the parameters for which the court allowed the [Alaska Civil Rule] 56(f) continuance." After additional briefing, the superior court found that Lockwood's request for the manuals was "still overbroad and requests undiscoverable information and documents" because Lockwood was unable to identify "what specific portions or topics of the materials would be relevant to the very narrow issues before the court." But the superior court also ordered Geico to produce relevant portions of any training materials for in camera review. In response, Lockwood suggested that the superior court order a "standard, reasonable protective order" providing that "all materials designated 'confidential by the other side may only be used in this litigation; may not be viewed by anyone other than plaintiff's counsel, their staff, experts and clients in this litigation; must be filed under seal; and must be returned at the end of this litigation." Geico opposed discovery of the manual but requested that the superior court require a confidentiality agreement and protective order "[iJn the event that the court determines that some portion of the in camera materials should be disclosed to plaintiff." Geico submitted to the superior court the "Claims Function" chapter of its manual. After the superior court's in camera review, it concluded: Generally, there is nothing contained within the reviewed materials that would expand (if they could) any statutory or common law duty owed by GEICO to [its] insured. Specifically, the documents require the GEICO claims examiners to deal with insurance issues ethically, fairly, and promptly.... This hardly novel concept does not justify the release of proprietary information contained in the produced doe-uments. The Court found nothing within the materials that would directly lead to any admissible evidence regarding any complaints concerning payments from different available coverages. The documents will remain sealed within the court file available for further review should plaintiff be able to more particularly state her bad faith allegations against GEICO. The Court has been informed there are no letters of reprimand or discipline in the requested personnel file. Lockwood appeals the discovery order, arguing that the Geieo's manuals are relevant and discoverable under Alaska Civil Rule 26(b)(1). G. - Summary Judgment On February 5, 2010, Geico moved for summary judgment on Lockwood's bad-faith claim, and Lockwood opposed. The superior court granted Geico's motion for summary judgment, reasoning that "none of these facts suffice to raise a factual question as to whether [Geico] lacked a reasonable basis in failing to pay the demanded settlement amount." The superior court cited several reasonable bases for Geieo's conduct: "GEI-CO had ample reason to delay further payments to Plaintiff pending further investigation into the medical necessity of further treatment and a determination regarding causation of her injuries" and the "extent of damages." Lockwood appeals the grant of summary judgment to Geico. III. STANDARDS OF REVIEW We review rulings on motions for summary judgment de novo, "reading the record in the light most favorable to the non-moving party and making all reasonable inferences in its favor." "A party is entitled to summary judgment only if there is no genuine issue of material fact and if the party is entitled to judgment as a matter of law." "[The burden of showing the absence of a genuine issue as to any material fact is upon the moving party." Defeating a motion for summary judgment "only requires a showing that a genuine issue of material fact exists to be litigated, and not a showing that a party will ultimately prevail." "Whether the evidence presented a genuine issue of material fact is a question of law that we independently review." "We review the denial of a motion to compel discovery for abuse of disceretion." "We generally review discovery orders under the deferential abuse of discretion standard, but we apply our independent judgment in deciding whether the trial court weighed the appropriate factors, because that is a legal question." IV. DISCUSSION Lockwood raises two main arguments that we address in this appeal. First, Lockwood challenges the summary judgment order, arguing that there were genuine issues of material fact as to whether Geico unreasonably delayed payment - Second, Lockwood claims that "[the superior court erred in not ordering production of [Geico's] claims and training manuals so Lockwood could examine the adjusters about their contents at deposition and so that evidence and testimony could be presented and evaluated at summary judgment and at trial before the jury." A. It Was Error To Grant Summary Judgment To Geico. Under Alaska's contract law, "the covenant of good faith and fair dealing . is implied in all contracts." For insurance contracts, breach of this covenant by the insurer gives the insured a cause of action sounding in tort because of "[the special relationship between the insured and insurer in the insurance context" and because tort liability "provide[s] needed incentive to insurers to honor their implied covenant to their insureds." "[WJithout such a cause of action insurers can arbitrarily deny coverage and delay payment of a claim with no more penalty than interest on the amount owed." Although we have declined to define the elements of the tort of bad faith in an insurance contract," our precedent makes clear that the element of breach at least requires the insured to show that the insurer's actions were objectively unreasonable under the cireumstances. Thus, in order to prevail on her bad-faith claim at trial, Lockwood will have to show that Geico's delay in payment of her claims breached the covenant of good faith and fair dealing because it was "made without a reasonable basis." The superior court in this case granted Geico's motion for summary judgment, concluding that there was no genuine issue of material fact as to whether Geico acted unreasonably by delaying payment on Lockwood's uninsured motorist benefits. We conclude that summary judgment was improperly granted in this case. Looking at the cireumstances of this case as a whole and viewing the evidence and reasonable inferences therefrom in a light most favorable to the non moving party, we conclude that there is a genuine issue of material fact as to Geico's reasonableness in delaying payment on Lockwood's uninsured motorist claim. First, Geico initially offered to settle Lockwood's uninsured motorist claim in June 2007 for just $750. Geico based this offer solely on Lockwood's childcare expenses and not on her medical condition, the connection of that condition to the car accident, her expected medical bills, general damages, or lost wages. After exhaustion of her medical payment benefits, Lockwood was continuing to incur medical expenses and suffer lost wages and other non-economic general damages. - Under these circumstances, in conjunction with the other factors discussed below, a genuine issue of material fact exists as to whether an offer of $750 was unreasonable behavior on the part of an insurer subject to the duty of good faith and fair dealing. Second, Geico decided in May 2008 not to pay any of Lockwood's medical bills after exhaustion of the medical payments benefits without a total settlement of the uninsured motorist claim. Drawing all reasonable inferences in favor of Lockwood, a genuine issue of material fact exists as to whether the basis for Geico's decision was unconnected to Lockwood's actual medical condition but rather motivated by the exhaustion of the medical payments benefits If Geico had legitimate concerns about the extent of Lockwood's injuries, an inference can be drawn that a reasonable insurer would advise her of those concerns with specificity and either ask Lockwood for more medical information or ask for an independent medical exam. Geico took no such actions at the time it demanded a global settlement. This could raise the question whether Geico's decision to condition additional medical payments on a global settlement actually was connected to Lockwood's medical situation and the accident. Third, Geico denied any further payment under the uninsured motorist policy and declined to make any further attempts to reach a settlement, based solely on its unsubstantiated doubts about the necessity of medical care for injuries sustained in the accident. Lockwood presented evidence in her deposition, affidavit, and medical records that she experienced ongoing, life-changing pain as a result of the accident and having to cease treatment. Geico noted that she had had a prior back injury and expressed concern that her medical bills were "high" in the context of this accident. But other than asserting these doubts, Geico did nothing to reduce the alleged medical uncertainty about the cause of Lockwood's pain or to clarify the necessity of further treatment from the chiropractor. Geico did not request a second medical opinion or an independent medical exam until 2010, about three years after it stopped paying Lockwood's medical bills. Indeed, Geieo's staff did not cite a medical basis of any kind to call into question the chiropractor's treatment for Lockwood's injuries in 2007. Geico did not seek to use the voluntary-arbitration clause present in the insurance contract to resolve the issue of medical uncertainty. Nor did Geico inform Lockwood what she would have to do to resolve the medical uncertainty to Geico's satisfaction. Geico took none of these affirmative steps to clarify the alleged medical uncertainty after Lockwood presented all requested information to Geico. Taking these circumstances and all reasonable inferences that may be drawn from the facts favorable to Lockwood, we conclude that a genuine issue of material fact exists as to whether Geico acted unreasonably by delaying payment on Lockwood's uninsured motorist benefits. Geico argues that it had several reasonable bases to delay payment in this case: the severity of the car accident that "did not involve a heavy impact," Lockwood's "high" medical bills in light of "a diagnosis of a neck strain," and the fact that "Lockwood had recently treated with her chiropractor for more than a year, with similar complaints." Whether or not Geieo's arguments ultimately prevail at trial, they are insufficient to justify summary judgment. We conclude that, under the three circumstances discussed above, there is a genuine issue of material fact on the questions whether Geico had a reasonable basis for delaying payment of Lockwood's uninsured motorist benefits and whether Geico breached its duty of good faith and fair dealing. We therefore reverse the superior court's grant of summary judgment and remand for further proceedings. B. It Was An Abuse Of Discretion To Deny Lockwood's Motion To Compel Discovery Of Geico's Manuals. After its in camera review, the superior court concluded that the claims function chapter of Geico's manual requires "the GEI-CO claims examiners to deal with insurance issues ethically, fairly, and promptly.... This hardly novel concept does not justify the release of proprietary information...." As a result, the superior court denied Lockwood's motion to compel discovery of Geico's manuals, concluding that the manuals would not "directly lead to any admissible evidence regarding any complaints concerning payments from different available coverages." On appeal, Lockwood argues that Geico's manuals are relevant and discoverable under Alaska Civil Rule 26(b)(1) because (1) the "relevancy standard is to be broadly construed at the discovery stage" and (2) "the court impliedly noted that the materials were relevant to [Geico]l's handling of Lockwood's approved [uninsured motorist] claim." Geico replies that, despite the superior court's direction that Lockwood narrow her discovery, she only requested "generic" documents and "failed to articulate the relevance of her demand." We conclude that the superior court abused its discretion by not compelling relevant discovery. Alaska Civil Rule 26(b)(1) provides: Parties may obtain discovery regarding any matter, not privileged which is relevant to the subject matter involved in the pending action. . The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. As we have stated, our "discovery rules are to be broadly construed and 'relevance for purposes of discovery is broader than for purposes of trial" " After conducting an in camera review of the materials, we conclude that the claims handling chapter of Geieo's manual contains information that is arguably relevant to Lockwood's claims. In particular, the portions of the manual that address professional ethics, settlement practices, and negotiations may prove relevant to Lockwood's bad-faith claim. These portions shed light on Geieo's standard practices and could lead to admissible evidence as to what a typical investigation entails and whether the Geico adjusters followed standard procedures. We therefore conclude that, under our broad discovery rules, Lockwood is entitled to discover portions of Geico's manuals relevant to Gefico's claims-handling practices. Finally, we note that Lockwood offered to stipulate to a protective order and that Geico requested a confidentiality agreement and protective order to protect confidential information in the manual if the superior court were to compel discovery. The superior court, at its discretion, may issue a protective order to protect confidential information in the materials. v. CONCLUSION Because a reasonable inference could be drawn that Geico did not have a reasonable basis for delaying payment of Lockwood's uninsured motorist benefits, we conclude that there is a genuine issue of material fact as to Geico's bad faith. Accordingly, we REVERSE the superior court's grant of summary judgment and VACATE the award of attorney's fees. We also REVERSE the superior court's denial of Lockwood's motion to compel discovery of Geico's claims-handling and training materials The case is REMANDED for further proceedings consistent with this opinion. CARPENETI, Justice, not participating. . - When reviewing a grant of summary judgment, we view the facts in the light most favorable to the nonmoving party. See McCormick v. City of Dillingham, 16 P.3d 735, 738 (Alaska 2001). . The hospital report lists two diagnoses: "[cler-vical spine injury" and "[plaracervical muscle strain." - Cervical means "[rlelating to a neck." StEpmant's Menicat Dictionary 351 (28th ed.2006). . A contemporary report that Lockwood made to her insurer described the same injuries. . Emphasis omitted. . Emphasis omitted. . Lockwood alleges that, in addition to denying her coverage, the Geico representatives were abusive, rude, and unprofessional in their dealings with her. Lockwood alleges that during phone calls about her claim, a Geico adjuster hung up on her on two occasions. She further maintains that when she called Geico about her claim, the Geico adjuster was "sarcastic," "abusive," and "unprofessional" in handling her claim. She stated in her deposition that, because of the adjuster's negative demeanor, she felt "physically ill." The Geico adjuster acknowledged that "calls were ended abruptly" but denied hanging up on her. Lockwood alleged in her affidavit that the Geico adjuster's "rude and unprofessional behavior in handling [her] claim discouraged [her] from working with him to pursue [her] insurance claim after [she] was hit by a drunk driver." . The superior court also awarded Geico $4,657.40 in partial attorney's fees based on the superior court's determination of reasonable fees related to the bad-faith claim after the settlement of the contractual uninsured motorist claim. Lockwood appeals the Rule 82 attorney's fee award, claiming that she received a "substantial affirmative recovery" in her settlement with Gei-co. . Lum v. Koles, 314 P.3d 546, 552 (Alaska 2013) (citation omitted). . ConocoPhillips Alaska, Inc. v. Williams Alaska Petroleum, Inc., 322 P.3d 114, 122 (Alaska 2014) (citation omitted). . Wilson v. Pollet, 416 P.2d 381, 383 (Alaska 1966). . Moffatt v. Brown, 751 P.2d 939, 943-44 (Alaska 1988). . Kalenka v. Jadon, Inc., 305 P.3d 346, 349 (Alaska 2013). . Coulson v. Marsh & McLennan, Inc., 973 P.2d 1142, 1146 (Alaska 1999) (citing Stone v. Int'l Marine Carriers, Inc., 918 P.2d 551, 554 (Alaska 1996)). . Id. (citing In re Mendel, 897 P.2d 68, 72 n. 7 (Alaska 1995)). . Lockwood also argues that the "record evidence raises fact issues about whether [Geico] violated various provisions of AS 21.36.125 with its pattern of conduct in delaying payment." But that statute "do[es] not create or imply a private cause of action for a violation of this [statute]." AS 21.36.125(b); see also O.K. Lumber Co. v. Providence Wash. Ins. Co., 759 P.2d 523, 527 (Alaska 1988) (holding that the Unfair Claim Settlement Practices Act does not provide a private cause of action for insureds or third-party claimants). Accordingly, Lockwood's statutory argument on appeal is without merit. Even if there were genuine issues of material fact regarding Geico's violation of AS 21.36.125, Lockwood would have no cause of action under that statute and summary judgment for Geico on the statutory claim would have been proper. In addition, Lockwood contends that the superior court's award of attorney's fees was improper. Because we reverse the superior court's grant of summary judgment, we also vacate the award of attorney's fees to Geico without reaching the question whether that award was proper. . State Farm Mut. Auto. Ins. Co. v. Weiford, 831 P.2d 1264, 1266 (Alaska 1992) (citing Alaska Pac. Assur. Co. v. Collins, 794 P.2d 936, 947 (Alaska 1990)). . State Farm Fire & Cas. Co. v. Nicholson, 777 P.2d 1152, 1156 (Alaska 1989). . Id. at 1157. . Ennen v. Integon Indem. Corp., 268 P.3d 277, 291 (Alaska 2012) (alteration in original) (quoting Nicholson, 777 P.2d at 1156). We note that an insurer's breach of the covenant of good faith and fair dealing gives the insured the ability to sue in tort as well as contract, with the distinction determining, among other things, which types of damages will be available. See Weiford, 831 P.2d at 1266. . See Hillman v. Nationwide Mut. Fire Ins. Co., 855 P.2d 1321, 1323 (Alaska 1993) ("We had no occasion to comprehensively define the elements of the tort of bad faith in a first-party insurance context in Nicholson; we have not done so in subsequent cases, see e.g., [Weiford ]; nor do we do so now."). . See Hillman, 855 P.2d at 1324 ("[The tort of bad faith in first-party insurance cases . necessarily requires that the insurance company's refusal to honor a claim be made without a reasonable basis."). Whether the insured must also show some sort of culpable mental state in addition to objective unreasonableness in a bad-faith insurance tort action is a matter left open by our case law. See, e.g., Nicholson, 777 P.2d at 1154 n. 3 (reviewing jury verdict finding breach of duty of good faith and fair dealing by insurer under first-party insurance contract where jury was instructed that "[blad faith does not mean bad judgment or negligence, but means having a dishonest purpose through some motive of self-interest or ill will, or having maliciousness or hostile feelings toward its insureds, or acting with reckless indifference to the interests or rights of its insureds," but disposing of case on other grounds and not reviewing propriety of jury instruction); Ennen, 268 P.3d at 287-88 (upholding bench trial decision that insurer tortiously breached duty of good faith and fair dealing owed to insured where insurer engaged in no '" 'intentional' scheme to 'deceive and deny [underinsured motorist] claims' " but nonetheless acted objectively unreasonably under the circumstances and was reckless with regard to its unreasonableness); cf. Jackson v. Am. Equity Ins. Co., 90 P.3d 136, 143-45 (Alaska 2004) (disapproving use of Nicholson jury instruction in bad-faith tort action against insurer for failure to settle third-party claim against insured within policy limits); Cont'l Ins. Co. v. Bayless & Roberts, Inc., 608 P.2d 281, 293 (Alaska 1980) (holding "that an insurer, defending an action against the insured, is bound to exercise that degree of care which a man of ordinary prudence would exercise in the management of his own affairs . irrespective of fraud or bad faith." (citation omitted)). We decline to address this issue now because it is unnecessary for us to do so in the course of reversing the superior court's grant of summary judgment. . Hillman, 855 P.2d at 1324. . Cf. Weiford, 831 P.2d at 1268-69 (concluding that an initial settlement offer of $5,000, which was low in the context of the damages and ultimate outcome in that case, "might support a fact finder's conclusion that [the insurer] was guilty of bad faith"). . She explained in her deposition that her back pain has "definitely cut[] down on" her "every day activities" and "changed . [her] way of life." She claimed that even daily activities were difficult: "[flolding laundry, after a while I'm in pain, I can't finish it." Three years after the accident, she described her back as "hurt[ing] about six out of seven days a week." She reported that she finds "it difficult to roll over in bed without pain" and that her "lower back pain is worse than [her] neck pain." . A doctor had pronounced her prior back injury stable as of 2006. . See Wilson v. 21st Century Ins. Co., 42 Cal.4th 713, 68 Cal.Rptr.3d 746, 171 P.3d 1082, 1084-89 (2007) (affirming reversal of summary judgment for the insurer in a bad-faith insurance tort suit where the insurer delayed payment for two years as a result of its failure to launch a timely investigation to support its medical assertions of a preexisting injury). . This does not imply that Geico's delay of payment was necessarily unreasonable and thus will constitute bad faith in a trial on the merits. That question can be answered only by the ultimate finder of fact. . Lee v. State, 141 P.3d 342, 347 (Alaska 2006) (quoting Hazen v. Municipality of Anchorage, 718 P.2d 456, 461 (Alaska 1986)) (holding that the superior court did not abuse its discretion by granting discovery of corporate documents and information about companies' technologies and employees because they related to liability and a defense); see also Langdon v. Champion, 752 P.2d 999, 1004 (Alaska 1988) (construing the attorney-client privilege narrowly in light of "'our commitment to liberal pre-trial discovery'" (quoting United Servs. Auto. Ass'n v. Werley, 526 P.2d 28, 31 (Alaska 1974))). . - While allegations in Hillman that the insurer's agents violated company guidelines failed to raise a factual question as to whether the insurer's denial of coverage lacked a reasonable basis because "[the denial was based on an explicit exclusion in the policy," Hillman v. Nationwide Mut. Fire Ins. Co., 855 P.2d 1321, 1325 (Alaska 1993), the guidelines here may assist the fact finder in developing a complete understanding of Geico's handling of Lockwood's claim.

6958735

STATE of Alaska, Appellant, v. PUBLIC SAFETY EMPLOYEES ASSOCIATION, Appellee

State v. Public Safety Employees Ass'n

2014-05-02

No. S-14701

670

691

323 P.3d 670

323

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:19:49.086852+00:00

CAP

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

STATE of Alaska, Appellant, v. PUBLIC SAFETY EMPLOYEES ASSOCIATION, Appellee.

STATE of Alaska, Appellant, v. PUBLIC SAFETY EMPLOYEES ASSOCIATION, Appellee. No. S-14701. Supreme Court of Alaska. May 2, 2014. William Milks, Assistant Attorney General, and Michael C. Geraghty, Attorney General, Juneau, for Appellee. Stephen F. Sorensen, Simpson, Tillinghast, Sorensen & Sheehan, P.C., Juneau, for Ap-pellee. Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.

12640

81675

OPINION FABE, Chief Justice. I. INTRODUCTION An Alaska state trooper was discharged for having consensual sex with a domestic violence victim the morning after assisting in the arrest of the victim's husband. The Public Safety Employees Association (PSEA), the labor organization that represents the Alaska State Troopers, filed a grievance under its collective bargaining agreement with the State of Alaska. The matter went to arbitration. The arbitrator ordered that the trooper be reinstated with back pay after a three-day suspension, concluding that the State did not have just cause to discharge the trooper. The superior court upheld the arbitrator's order of back pay but decided that it could not enforce the ordered reinstatement because the Alaska Police Standards Council had by this point revoked the trooper's police certificate. The State now appeals, arguing that the arbitrator committed gross error and that the arbitrator's order is unenforceable as a violation of public policy. The keys to this appeal are the level of deference we accord the arbitrator and the very limited nature of the public policy exception. The State and PSEA's collective bargaining agreement provided for binding arbitration to resolve employee grievances regarding disciplinary actions,. We generally will not disturb the results of a binding arbitration, even where we would reach a different conclusion were we to review the matter independently. Because no statute, regulation, or written policy prohibited supervisors from engaging in progressive discipline of the trooper, in lieu of discharging him for his misconduct, the arbitrator's decision to impose discipline rather than uphold the termination does not violate any explicit, well-defined, and dominant public policy. Because the arbitrator's award is neither unenforceable nor grossly erroneous, we affirm the superior court's decision to uphold the arbitration award in part. II. FACTS AND PROCEEDINGS A. Facts The following facts are based on the ree-ord, the arbitration decision, and the opinion of the superior court. "[Wle give great deference to an arbitrator's decision, including findings of . fact." The Trooper-Griev-ant was discharged on November 2, 2009. The discharge was based on misconduct that occurred in April 2009, a little over a year after the Trooper-Grievant first entered the trooper training academy and less than two months after he started his position as a state trooper. The Trooper-Grievant entered the trooper academy as a recruit in February 2008, undergoing four months of "training in a variety of subjects including Criminal Code, Domestic Violence, First Aid, Handgun Radar, Search & Seizure, Handgun, and Traffic Stops." - Following field training and the completion of his probationary period, the Trooper-Grievant was promoted to the position of Alaska State Trooper in March 2009. In April 2009 the Trooper-Grievant engaged in the misconduct that led to this case. At the time, he was 24 years old. On April 19 the Trooper-Grievant responded to a request by Trooper C for backup. Trooper C had been dispatched to victim M.H.'s house after another trooper, Trooper G, asked the dispatch center to request a welfare check on M.H. Trooper G, who was an acquaintance of MH., had received calls from her that day possibly indicating that there was a domestic disturbance at her house and that she needed assistance. When Trooper C arrived at M.H.'s house, MH. appeared to be afraid of her husband, J.H. The husband was intoxicated and became physically aggressive toward Trooper C, who then called for backup. Upon his arrival, the Trooper-Grievant aided Trooper C in restraining J.H. and in transferring him to Trooper C's car. Trooper C interviewed MH., who reported that J.H. had not struck her but had threatened her verbally and put her in fear. MH. reported that J.H. was upset about her receiving phone calls from Trooper G, and MH. noted that J.H. believed she was being unfaithful to him. The Trooper-Grievant was present for portions of Trooper C's interview with M.H. After Trooper C finished interviewing MH., he asked the Trooper-Grievant to go over a pamphlet on domestic violence and victim's rights with her while Trooper C interviewed M.H.'s daughter in another part of the house. According to testimony by the Trooper-Grievant and MH., "[M.H.] flirted with [the Trooper-Grievant] as he read her the victim's rights information." MH. asked the Trooper-Grievant for his personal cell phone number, but he refused to provide it to her. Meanwhile, Trooper C arrested J.H. and charged him with assault on both M.H. and Trooper C. At the end of his shift, at approximately 1:00 a.m., the Trooper-Grievant returned home and went to sleep. At about 5:80 a.m., the Trooper-Grievant woke up, obtained M.H.'s cell phone number from his trooper notebook, and sent a text message to M.H. The Trooper-Grievant told MH. that he could give her his personal phone number now that he was off duty. MH. called the Trooper-Grievant, and after some discussion the Trooper-Grievant drove to her house in his personal car and out of uniform, arriving at about 6:00 a.m. According to the arbitrator's findings, when the Trooper-Grievant arrived, "MH. was still upset. She expressed her feeling that she was 'done with' her marriage." MH. and the Trooper-Grievant proceeded to have consensual sex. MH. later told J.H. about her sexual encounter with the Trooper-Grievant. JH. told his defense attorney, who in turn told the assistant district attorney. The District Attorney's Office investigated, and both M.H. and the Trooper-Grievant confirmed that the encounter had taken place. Ultimately the charge of assault on Trooper C was dropped and the charge of assault on M.H. was reduced to harassment. The District Attorney's Office made these decisions based on several considerations, including the Trooper-Grievant's sexual encounter, MH. and J.H.'s reconciliation, and the fact that MH. was not a cooperative witness. The arbitrator found that there was evidence that the sexual encounter had a "minimal" impact on the District Attorney's charging decisions. The State conducted an administrative investigation of the incident, during which the Trooper-Grievant remained on duty. The investigating officer concluded that the Trooper-Grievant had violated sections of the Department of Public Safety Operating Procedure Manual. The Trooper-Grievant's supervising officer, Captain Dennis E. Casanovas, recommended suspension rather than termination. Captain Casanovas recognized that the Trooper-Grievant had been progressing well despite his young age and lack of prior law enforcement experience. In forming his recommendation, Captain Casanovas relied on both his extensive previous experience as an investigation coordinator and his personal knowledge of the Trooper-Grievant's work capabilities. But the Director of the State Troopers, Colonel Audie Holloway, overruled Captain Casanovas and decided to discharge the Trooper-Grievant. The resulting termination letter informed the Trooper-Grievant that he had violated the Operating - Procedure - Manual - sections 101.010(B), 101.020(G@), 101.070(A), - and 101.070(B)3 The letter stated that "despite your knowledge of this woman's valnerable condition after her recent domestic violence victimization, you put yourself, this agency, the District Attorney's Office and the criminal prosecution of this case in jeopardy by surrendering to the temptations of a sexual encounter. The letter also characterized the Trooper-Grievant's conduct as "shocking" and "a discredit" to the Department of Public Safety. B. Proceedings Following the termination, both the Trooper-Grievant and the State sought further action. The Trooper-Grievant filed a grievance challenging his discharge under his union's collective bargaining agreement, and the dispute proceeded to arbitration. While the arbitration was in process, the State sought revocation of the Trooper Grievant's basic police certificate from the Alaska Police Standards Council, the regulatory and quasi-judicial body charged with establishing minimum selection and training standards for police officers. This certificate is a requirement for every state trooper. In December 2010 the arbitrator issued her decision. She found that the Trooper-Grievant had "engaged in unprofessional conduct and showed poor judgment." Yet she also found that the State had not fulfilled its duty to inform the Trooper-Grievant about the parameters of acceptable behavior. The arbitrator noted that past instances of sexual misconduct had not resulted in terminations, that just cause required consistent disciplinary action, and that the State must inform troopers if the policy has shifted to zero-tolerance. - Finally, the arbitrator determined that the Trooper-Grievant's conduct did not rise to the level of egregious behavior and that the principles of progressive discipline thus required the opportunity for rehabilitation. Finding that the Trooper-Griev-ant had not been discharged for just cause, the arbitrator ordered that he be reinstated with back pay and converted his discharge to a three-day suspension. In January 2011 the State filed a complaint in superior court to vacate the arbitration award. Before the superior court case could be resolved, however, an administrative law judge heard the police certificate revocation action and issued his decision on April 12, 2011. The Police Standards Council had proposed two grounds for revocation: (1) lack of good moral character under 13 AAC 85.110(a)(8), and (2) a discharge "for cause for inefficiency, incompetence, or some other reason that adversely affects the ability and fitness of the police officer to perform job duties or that is detrimental to the reputation, integrity, or discipline of the police department" under 13 AAC 85.110(a)(2). The administrative law judge determined that the Police Standards Council had a valid basis to revoke the Trooper-Grievant's police certificate. But the administrative law judge found the first of the council's two proposed grounds for revocation, lack of good moral character, to be unfounded. The administrative law judge found that revocation was in fact warranted on the second ground, which allows revocation of a certificate for an officer who has been discharged on one of the grounds contained in 13 AAC 85.110(2)(2). On May 6, 2011, the Police Standards Council voted to revoke the Trooper-Grievant's certificate. On May 9, 2011, the State filed a motion, asking the superior court to vacate the arbitration award because it was contrary to public policy and because it resulted from gross error. The superior court asked the parties to provide supplemental briefing on the effect of the Police Standards Council's revocation. In its supplemental briefing, the State argued that because a basic certificate is a requirement to be an Alaska State Trooper, the Trooper-Grievant could not be lawfully reinstated and thus the arbitration award could not be enforced. Superior Court Judge Mark Rindner concluded that the arbitration award was not the result of gross error. The superior court additionally determined that the award could not be vacated under the public policy exception to the enforcement of arbitration awards "because the State does not have an explicit, well defined, and dominant public policy that prohibits employing a person as an Alaska State Trooper who has a consensual sexual encounter with a erime victim." The superi- or court nevertheless held that it could not fully enforce the arbitration award, given that requiring reinstatement "would violate the regulatory requirement that the [Trooper-Grievant] have a basic [police] certificate. The superior court stated that it would only "enforce the Award to the extent it can be consistent with Alaska law." The superior court ordered "that the portions of the arbitrator's award providing for the payment of lost wages and benefits after May 6, 2011 [when the Police Standards Council revoked his police certificate] and for the reinstatement of the former employee are not enforced." The superior court upheld the part of the award granting back pay between the date of the Trooper-Grievant's termination and the date that his certificate was revoked. The State appeals, arguing that (1) the arbitration award should be vacated in full as contrary to public policy and (2) in the alternative, the arbitration award should be vacated in full for gross error. III. STANDARD OF REVIEW We articulated the relevant standard of review in PSEA 2010; We review de novo the superior court's decision to confirm the arbitration award. Both the common law and Alaska statutes evince a strong public policy in favor of arbitration. In order to encourage parties to pursue arbitration, Alaska courts have a policy of minimizing their interference with arbitration decisions. Thus, we give great deference to an arbitrator's decision, in cluding findings of both fact and law. We will only vacate an arbitration award arising out of a collective bargaining agreement where it is the result of gross error-those mistakes that are both obvious and significant. We will not vacate such an award merely because we would reach a different decision ourselves. This deferential standard is key to the decision we reach today."[ ] IV. DISCUSSION A. The Arbitration Award Is Not Unenforceable As A Violation Of Public Policy. The State argues that the arbitration award should be vacated as contrary to public policy "because it is in conflict with the Alaska Police Standards Council's decision to revoke the trooper's police certification, and because the nature of the trooper's conduct undermines the public's interests in a police force that acts to protect the public and the integrity of the criminal justice system." In essence, the State contends that reinstatement violates public policy because the Trooper-Grievant's underlying conduct was repugnant and because that conduct violated the public policy requiring "that law enforcement officers act with the primary purpose of protecting the public in general and crime and domestic violence victims in particular" and "that officers be persons of integrity and high moral character." But the correct ques- ' tion is not whether the Trooper-Grievant's conduct violated public policy; rather, it is whether the arbitration award of reinstate ment with back pay itself violates an "explicit, well-defined, and dominant public policy." Although we cannot disagree with the State that the Trooper-Grievant's conduct was censurable, we also cannot overturn an arbitrator's decision if that decision does not violate an explicit, well-defined, and dominant public policy. We therefore must affirm the superior court's decision to uphold the arbitrator's award in part. 1. PSEA 2011 and Alaska's public policy exception to the enforcement of arbitration awards In PSEA 2011 we considered as a matter of first impression whether to adopt a public policy exception to the enforcement of arbitration awards. We decided to recognize this exception, holding that it applied where enforcement of the arbitration decision " 'would violate an explicit, well defined, and dominant public policy' In formulating this definition, we drew on the United States Supreme Court's approach to the public policy exception to the enforcement of arbitration awards. The public policy exception derives from the common-law principle that a court may refuse to enforce illegal contracts. Accordingly, we noted in PSHA 2011 that this formulation of the exception is consistent with our previous holdings on the unenforceability of contracts. In Pavone v. Pavone, we adopted the Restatement (Second) of Contracts § 178 in its analysis of the public policy exception to the enforcement of contracts. This section of the Restatement provides: "A promise or other term of an agreement is unenforceable on grounds of public policy if legislation provides that it is unenforceable or the interest in its enforcement is clearly outweighed in the cireum-stances by a public policy against the enforcement of such terms." The United States Supreme Court has made clear that the public policy exeeption to: the enforcement of arbitration awards must be narrow and that the public policy at issue "must be explicit, well defined, and dominant . [and] [it must be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests In addition, the Supreme Court warned courts to "approach with particular caution pleas to divine further public policy" in a field in which other political branches have already created a regulatory regime. Following the United States Supreme Court's approach, the test we adopted in PSWA 2011 "establish[es] a high hurdle for the vacatur of arbitration awards" due to this court's "longstanding recognition of Alaska's 'strong public policy in favor of arbitration.' We emphasized in PSFHA 2011 that "the relevant inquiry is whether the arbitrator's decision to reinstate the employee violates public policy, not whether an employee's conduct does, so statutes or regulations that merely prohibit the conduct are insufficient to support the public policy exception." In applying this rule to the facts of PSHFA 2011, where an arbitrator reinstated a trooper who had lied about performing a prohibited maneuver at an out-of-state motorcycle training program, we provided the following analy-sig: All of the preceding sources support the conclusion that it is Alaska's policy to maintain an honest police force. But there has never been a question that it is against public policy for a police officer to lie. The question is whether it is against Alaska's public policy to reinstate a police officer who has lied as the Trooper did in the present case.[ ] We ultimately characterized the question as being whether there is a "categorical require ment in Alaska public policy for the termination of officers who engage in relatively minor forms of dishonesty." In this case, the question is not whether the Trooper-Grievant's conduct is against public policy. Rather, the relevant inquiry is whether a decision to use progressive discipline and to continue the employment of a trooper who has engaged in this type of sexual misconduct is a violation of an explicit, well-defined, and dominant public policy. Focusing selectively on language from PSEA 2011, the dissent contends that our formulation of the public policy exception to the enforcement of arbitration awards requires that we make a broader inquiry than we do here. The dissent calls attention to provisions in the Restatement that we cited in PSEA 2011 as part of our general discussion of whether to adopt the public policy exception. Of particular importance to the dissent are Restatement provisions suggesting that in some contexts a court may hold an arbitration award unenforceable even where no explicit public policy requires that result. But in focusing on our reference to these provisions of the Restatement, the dissent ignores the overall thrust of PSEA 2011. As we observed then, the Restatement provides "both general guidelines for determining un-enforceability on public policy grounds and more specific guidelines for making this determination in various commonly recurring contexts." Our express holding in PSFWA 2011 was that "reviewing arbitration awards by determining whether there is an explicit, well-defined, and dominant public policy against enforcement reflects how the general Restatement rules operate in the recurring context of arbitration awards." We established this high bar for vacatur of arbitration awards to incorporate the "special public interest in the enforcement of arbitration decisions . given our longstanding recognition of Alaska's strong public policy in favor of arbitration." Only taken out of context can the portions of the Restatement cited in PSEA 2011 on which the dissent focuses suggest that we favor substantial latitude in vacating arbitration awards on the basis of our own ideas of desirable public policy. We clearly recognized in PSEA 2011 the special importance of arbitration, and we consequently strictly limited the seope of review of arbitration awards. Our decision today corresponds with that limited review. 2. The reinstatement of the Trooper-Grievant is not unenforceable as a violation of Alaska public policy. We begin by considering whether there is "legislation specifically prohibiting enforcement of the promise or contractual term." In our analysis, we "look to the entire body of law in the State of Alaska for evidence . to determine . public policy." The State does not point to any law or regulation that specifically prohibits the employment or reinstatement of a trooper who has engaged in sexual misconduct when that trooper still has a police certificate. Rather, the State focuses on five sources of authority that it argues justify the public policy exception and prohibit the Trooper-Grievant's conduct: (1) the Alaska Constitution; (2) case law; (8) statutes and regulations; (4) the Department of Public Safety's Operating Procedures Manual; and (5) PSEA 2011's principles of public trust and heightened vigilance. But the State's focus is misguided. Again, the relevant inquiry is not whether the officer's conduct violated public policy but rather whether the arbitrator's award violates an explicit, well-defined, and dominant public policy. The public policies cited by the State do not compel termination. And the State has not directed us to any public policy that would have compelled the termination of a trooper for the misconduct at issue at the time of the arbitration. Indeed, the State clearly had the authority-and it was in fact the recommendation of the Trooper-Grievant's supervisor-to use progressive discipline rather than to discharge the Trooper-Grievant. No statute or internal regulation prohibited the use of progressive discipline in this case. Because the collective bargaining agreement provided for binding arbitration, the arbitrator also had the authority to impose progressive discipline. The arbitrator's order of reinstatement after suspension, therefore, cannot be characterized as a violation of public policy. « a. Alaska's Constitution The State cites article I, sections 1, 12, and 24 of the Alaska Constitution. Article I, section 1 provides that all persons are "entitled to equal rights, opportunities and protection under the law." Article I, section 12 states that "[cJriminal administration shall be based upon the following: the need for protecting the public . [and] . the rights of victims of crimes." Article I, section 24 provides that "[cJrime victims . shall have the following rights . the right to be reasonably protected from the accused through the imposition of appropriate bail or conditions of release by the court . [and] . the right to be treated with dignity, respect, and fairness during all phases of the criminal and juvenile justice process." But these constitutional provisions do not evince the requisite explicit, well-defined, and dominant public policy to terminate a trooper for the specific conduct in this case. b. Case law Next the State relies on our decision in Jones v. Jennings. Jones, however, involved the State's interest in public disclosure of alleged police misconduct including assault, battery, and false imprisonment. And our decision addressed privilege and the officer's right to privacy, not the public policy exception in the context of arbitration awards. Our statement that there is a public interest in "insurfing] that police behavior conforms to the code of conduct required of a democratic society" does not constitute an explicit, well-defined, or dominant public policy. The State also cites to PSEA 2010. But our brief commentary on the State's public policy argument in PSEA 2010 is not sufficient evidence of an explicit public policy that applies to the allowable discipline in this case. c. Statutes and regulations The State cites statutes and regulations concerning the Department of Public Safety's Council on Domestic Violence and Sexual Assault and minimum standards for employment as a police officer. The State points to AS 18.66.010, which establishes the Council on Domestic Violence and Sexual Assault. The mandate of the council includes planning and coordinating services for domestic violence victims. The State argues that AS 18.66.010 is an example of how "[t]he State's strong public policy requiring the protection of crime victims is evident in our state's commitment to preventing domestic violence." It is true that this statute expresses the State's public policy of aiding domestic violence victims. Yet the statute does not give any indication that reinstating a trooper who has engaged in sexual misconduct is against public policy. As such, the statute is insufficient to invoke the public policy exception. The State also notes statutory and regulatory provisions that allow it to establish minimum standards for police officers and revoke the certificate of an officer who does not meet these standards. Alaska Statute 18.65.240(c) merely provides that the Alaska Police Standards Council "may . revoke the certificate of a police officer who does not meet the standards adopted under (a)(2) of this section," including the qualification of moral character. (Emphasis added.) The legislature's use of "may" rather than "shall," in conjunction with the State's past use of progressive discipline of troopers who engaged in sexual misconduct, indicates that there is no absolute requirement for the discharge of troopers who have engaged in this type of misconduct. In addition, the State cites 13 AAC 85.110(b)(3), which provides that the State shall revoke the certificate of an officer who was discharged "for conduct . that would cause a reasonable person to have substantial doubt about an individual's honesty, fairness, and respect for the rights of others and for the laws of this state and the United States or that is detrimental to the integrity of the police department where the police officer worked." In PSEA 2011 we concluded that while this same regulation "strongly suggests that it is the policy of the State of Alaska not to employ dishonest police officers . it is unclear whether the regulation means to prohibit the employment of police officers who have been dishonest to any degree or under any circumstance." Similarly, these requirements do not make clear whether the regulation categorically prohibits the employment of troopers who engaged in consensual sexual misconduct. The dissent takes up the argument where the State leaves off, contending that 13 AAC 85.110(b)(3) is "more than sufficient" as an expression of public policy to justify disturbing the arbitrator's decision here. We cannot agree. If a court could reject an arbitration decision simply because it concludes that the conduct at issue falls into the broad categories of undesirable behavior described in 13 AAC 85.110(b)(8), the court would owe an arbitrator's decision little deference. There are countless acts that are not grounds for termination-much less mandatory termination-but that nevertheless might be "detrimental to the integrity of the police department" or might be matched with one of the other generalities found in 18 AAC 85.110(b)(8). Under the dissent's view, a court should be empowered to reject an otherwise valid arbitration award solely on the basis that the conduct at issue could reasonably fit into one of those catch-all categories. This view would make nonsense of our statement in PSEA 2011 that the public policy exception does not permit a court to reject an arbitration decision merely because the court might have decided the case differently. In that case it was undisputed that the officer lied to his superiors-conduct that we did not hesitate to call "unworthy of an Alaska state trooper." The officer's lying would almost certainly cause a reasonable person to have substantial doubt about the officer's honesty. Given the nature of the conduct about which the officer lied-carrying out a prohibited motorcycle stunt-a reasonable person would likely also have substantial doubt about the officer's respect for the law. The integrity of the police department would reasonably be in question as well. Yet we declined to overturn the arbitrator's reinstatement of the officer because the gross error standard sets a higher bar. If 13 AAC 85.110(b)(8) were an expression of public policy sufficient to reject an arbitration decision, the gross error standard would be meaningless; a court could invalidate arbitration awards far more freely than that standard allows. The dissent further argues that by finding general statements such as 13 AAC 85.110(b)(8) insufficient, we now require the other branches of government to draw unrealistically precise lines beyond which mis- conduct is intolerable as a matter of public policy. But while we require more from | the State than the vague directives at issue here, we do not demand the "luminous detail" that the dissent suggests will now be needed. The State does not have to detail precisely the forms that sexual misconduct may take or the cireumstances in which it could take place. It does not have to define in advance all the ways that employees may misbehave. But if the State wishes to bar categorically the reinstatement of officers discharged for sexual misconduct, it must make a policy to that effect. In the absence of such a policy, this court will not disturb a duly reached arbitration award. d. Internal regulations The State cites the Department of Public Safety's Operating Procedures Manual. In particular, the State highlights sections that prohibit behavior that "shocks the conscience or that violates generally recognized standards of professional behavior" or that "brings the Department into disrepute . or . impairs the operations or efficiency of the Department." The State's argument, though, is contradicted by our holding in PSWA 2011, where the State relied on a section of the Operating Procedures Manual that requires employees to respond truthfully to their superiors and to questioning during official investigations. While we recognized the requirements laid out by the Operating Procedures Manual, we explained that "the Manual says nothing about the kind of informal investigation during which the Trooper lied, and in general stops short of discussing the consequences of dishonesty." Again, the Operating Procedures Manual sections at issue in this case do not clearly concern cireumstances similar to the Trooper-Grievant's misconduct. And . more importantly, theese Operating Procedures Manual sections do not dictate disciplinary consequences for this type of misconduct. - Because no internal regulation prohibited the State from imposing discipline short of termination in response to the misconduct, it was also within the arbitrator's discretion to order reinstatement and discipline of the Trooper-Grievant. e. The principles of public trust and heightened vigilance One of the considerations that we discussed in PSEA 2011 is that the court "should be particularly vigilant where the employee's misconduct was in the performance of his or her duties and directed toward the public, and could therefore undermine confidence in public institutions that rely upon the public's trust." The State argues that the Trooper-Grievant's misconduct falls within this category of cases and thus warrants special scrutiny. PSEA responds that the State has not terminated other troopers whom PSEA alleges have engaged in similar misconduct. We acknowledge that the underlying conduct in this case involved the trooper's duties to the public. But the public policy exception still requires an explicit, well-defined, and dominant public policy even in a case involving a trooper's performance of duties directed toward the public. For example, other courts have held that the public policy exception applied in cases of police officers' inappropriate behavior with a minor boy in violation of state statute and misconduct involving false arrests, false charges, and perjury. And even before we recognized the public policy exception, we reversed an arbitrator's award of reinstate, ment of a public employee who was discharged for a serious crime, having been convicted of a felony involving violation of public trust. But in the case before us, the public policy exception does not apply because although the Trooper-Grievant's misconduct was censurable, the arbitrator's order reinstating him does not violate any explicit, well-defined, and dominant public policy. We recognize that while arbitrations in this type of case often involve egregious employee misconduct that may affect public safety, reinstatements in such cases are not always against public policy. In particular, courts have upheld reinstatement of law enforcement officers who had consensual sex with a witness or informant. For example, in an unpublished decision, an Ohio appellate court upheld an arbitrator's reinstatement of a deputy sheriff who had been discharged for initiating and then engaging in consensual sexual conduct with a confidential informant while on duty and in uniform because the act was not criminal and there was no statute or case law mandating discharge. - Similarly, the Michigan Court of Appeals upheld an arbitrator's reinstatement of a police officer who had "engaged in an improper consensual act of a sexual nature with the complaining witness after responding to her call for assistance and while on duty." In that case, after the officer had an on-duty sexual encounter with the individual who had called for assistance, the officer failed to note his visit in his log book and failed to file an incident report. In response to questions the following day, the officer lied about the sexual act. But because the arbitrator's reinstatement was based on the collective bargaining agreement and the penalty of discharge was optional, the court affirmed the arbitrator's order to reinstate the officer. In sum, although the question of the public policy exception may arise more frequently when employee conduct affects the public trust, the award will fall into the exception only if the award itself violates an explicit, well-defined, and dominant public policy. All of the State's sources support the conclusion that Alaska has a policy to protect victims and prohibit sexual misconduct But the question is not whether the Trooper-Griev-ant's misconduct violated public policy; it is whether it is against Alaska's public policy to use a progressive disciplinary sanction such as suspension for a trooper who engaged in this misconduct. The State has not pointed to any explicit, well-defined, and dominant public policy requiring termination, rather than suspension, as the only proper discipline for a trooper's consensual and non-criminal sexual misconduct. In fact, as the arbitrator found, incidents of sexual misconduct often have been punished with disciplinary sance-tions short of termination. The discipline and reinstatement of such a trooper, therefore, is not a violation of public policy. B. The Arbitrator Did Not Commit Gross Error In Concluding That There Was Not Just Cause To Discharge the Trooper-Grievant. The State also claims that the arbitrator's decision constituted gross error. We have defined gross error as "only those mistakes which are both obvious and significant." Because we conclude that the arbitrator did not commit gross error, we affirm the superior court's decision to uphold the arbitrator's award. 1. The arbitrator did not commit gross error in interpreting the collective bargaining agreement. The State first challenges the arbitrator's interpretation of the term "egregious misconduct." The collective bargaining agreement provides the following definition: "Egregious misconduct which may result in discharge includes, but is not limited to, gross disobedience or insubordination, dishonesty, chemical or alcohol intoxication at the workplace, physical misconduct, criminal conduct, abusive or lewd behavior, or abandonment of duties." (Emphasis added.) Relying on this definition, the arbitrator explained that "[elgregious behavior that warrants summary discharge includes extremely serious behavior such as stealing, striking a foreman, persistent refusal to obey a legitimate order and dishonesty. Less serious infractions of plant rules or of proper conduct such as insolence, call for some milder penalty aimed at correction." The State argues that the arbitrator committed gross error because she allegedly used her own definition of egregious misconduct instead of the definition provided by the collective bargaining agreement. PSEA responds that "[it is clear that throughout her decision [the arbitrator] was applying the correct standard set out in the Collective Bargaining Agreement as she discussed in great length and in detail the level of misconduct by the Grievant and similar acts of misconduct by other Troopers." PSEA is correct. While arbitrators must adhere to the plain language of the contract, "[a] mere ambiguity in the opinion accompanying an award, which permits the inference that the arbitrator may have exceeded his authority, is not a reason for refusing to enforce the award. In addition, "as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convineed he committed serious error does not suffice to overturn his decision." The arbitrator has broad authority to interpret the collective bargaining agreement: "The labor arbitrator's source of law is not confined to the express provisions of the contract, as the industrial common law-the practices of the industry and the shop-is equally a part of the collective bargaining agreement although not expressed in it." And "if the arbitrator's construction is plausible, it must not be disturbed." - Here, we need only ask whether the arbitrator's construction of the collective bargaining agreement constitutes an "obvious and significant" mistake. We conclude that the arbitrator's construction was not gross error. In her decision, the arbitrator interpreted the collective bargaining agreement definition to determine whether the Trooper-Grievant's misconduct was serious enough to constitute "[elgregious misconduct" warranting discharge. The arbitrator relied on Captain Casanovas's testimony and the Troop er-Grievant's "honest and forthright and sincere[ ]" responses during the hearing to assess the seriousness of his conduct, reasoning that "[why a grievant did what he or she did inevitably relates to the gravity of the misconduct." The arbitrator found that "[tlhere is no evidence to indicate that [the Trooper-Grievant's] behavior could not be corrected," concluding that, "[blased on the State's disciplinary approach in similar situations, this type of conduct has warranted an opportunity to correct the behavior." Accordingly, the arbitrator expressly disagreed with Colonel Holloway's interpretation of "[elgregious misconduct" and determined that the Troop er-Grievant's "unprofessional conduct" and "poor judgment" did not rise to the level of "[elgregious behavior . warrant[ing] sum mary discharge" under the collective bargaining agreement. Again, our standard for reviewing an arbitrator's decision is "very deferential." We review only for gross error. And because the arbitrator analyzed whether the Trooper-Grievant's misconduct rose to "(egregious misconduct which may result in discharge" under the collective bargaining agreement and the State's disciplinary practices in cases of sexual misconduct, we cannot conclude that the arbitrator's analysis was gross error. Moreover, we have held that "an arbitrator's 'use of a well-reasoned alternative definition' of just cause 'would not alone constitute gross error'" " Therefore, the arbitrator was not bound by this court's definition of just cause. Under our definition of "just cause," the termination would have been affirmed. But because we apply a deferential standard of review and because the arbitrator analyzed whether the Trooper-Grievant's misconduct rose to "[elgregious misconduct" warranting discharge, we conclude the arbitrator's interpretation of the collective bargaining agreement was not gross error. 2. The arbitrator did not commit gross error in the disparate treatment analysis. The State challenges the arbitrator's disparate treatment analysis. First, the State argues that the disparate treatment analysis was inappropriate because it could lead to toleration of police officer misconduct. See-ond, the State claims that the "record evidence did not support the arbitrator's conclusion" for several reasons: (1) some of the cases were from the 1990s; (2) many of the cases involved greater discipline than a three-day suspension; and (8) the cases involved less severe misconduct that did not mirror the misconduct in this case. Finally, the State contends that the arbitrator failed to explain how the three-day suspension is consistent with past disciplinary action and that the record does not provide support for the propriety of this penalty. In raising the concern of employer leniency toward misconduct, the State relies on PSEA 2011 and decisions from other jurisdictions. But while we cautioned in PSEA 2011 that the "disparate treatment doctrine should not operate as a one-way ratchet toward the acceptance of increasingly unethical behavior," we also noted that "it was not gross error for the arbitrator to have taken a different approach from the one we may have taken. Reasoning that the State cannot "deviate from the negotiated agreement by implementing zero tolerance for an offense that has previously been addressed through progressive discipline," the arbitrator concluded that if the State decides to implement a new zero-tolerance policy for sexual misconduct, it must provide notice to its employees. The State also attempts to distinguish the other cases relied on by the arbitrator as involving less severe misconduct or more serious punishments. We will vacate the arbitrator's award only if there was an obvious and significant mistake. Here, the arbitrator analyzed a number of cases varying in specific misconduct and severity. The State terminated the trooper in only one out of the eight cases involving sexual misconduct. The State imposed less severe discipline in all other instances of sexual misconduct, including: a trooper's inappropriate sexual contact in the trooper office while on duty; sexual harassment of and an inappropriate personal relationship with the trooper's supervisee; a trooper instructor's signing a woman's breast at a bar in front of trooper recruits; a trooper's inappropriate sexual advances; a trooper's sexual relationship with a nineteen-year-old intoxicated woman while the trooper was supposed to investigate her criminal complaint of sexual abuse by her stepfather; a trooper's extramarital "sexual relationship with an adult female from the village while on a village visit on official travel for the Department"; and a trooper's "sexual relationship with the daughter of a murder victim during an ongoing investigation." And in the only case of sexual misconduct that resulted in a termination, there were allegations of both inappropriate sexual conduct and dishonesty. Moreover, the record reviewed by the arbitrator suggests that the State still uses progressive discipline, including short periods of suspension, in cases of sexual misconduct. The arbitrator did not commit an obvious and significant error in her analysis. Finally, the State claims that the arbitrator failed to explain why the three-day suspension is consistent with the past disciplinary actions. But the arbitrator relied on Captain Casanovas's testimony and recommendation of a disciplinary suspension, which was based on his extensive experience with administrative investigations. The arbitrator further explained that, based on her findings, progressive discipline was appropriate because it was possible for the Trooper-Griev-ant to rehabilitate himself, The arbitrator noted that Captain Casanovas recommended suspension rather than termination after "carefully weigh{ing] . his knowledge of the [Trooper]-Grievant's work progression . and . the likelihood of the [Trooper}-Grievant's correcting his behavior." The arbitrator's reliance on the testimony of Captain Casanovas, who supervised the Trooper-Grievant and had personal knowledge of the Trooper-Grievant's work capabilities, does not meet our standard for gross error. v. CONCLUSION The Trooper-Grievant's misconduct was extremely serious and offensive. If we had been deciding this case it is likely that we would have concluded that under Alaska law, the State had "just cause" to discharge the Trooper-Grievant. Engaging in sexual conduct with a victim shortly after responding to her call for help, even if consensual, is inappropriate behavior for a state trooper. But we may "not vacate . an award merely because we would reach a different decision ourselves." Because there is no explicit, well-defined, and dominant public policy in Alaska prohibiting reinstatement of a law enforcement officer who has engaged in off-duty consensual sexual misconduct, and because the arbitrator did not commit gross error, we AFFIRM the superior court's decision to uphold the arbitrator's award in part. MAASSEN, Justice, with whom STOWERS, Justice, joins, dissenting. . State v. Pub. Safety Emps. Ass'n, 235 P.3d 197, 201 (Alaska 2010) (PSEA 2010). . To protect the victim's privacy and the confidentiality of personnel records under AS 39.25.080(a), we do not identify the victim, her husband, or the troopers involved in the incident. . The Department of Public Safety Operating Procedure Manual section 101.010(B) provides that "[the standards of conduct set out in this chapter do not prohibit every possible act that constitutes unacceptable behavior. Conduct that shocks the conscience or that violates generally recognized standards of professional behavior is forbidden." Operating Procedure Manual section 101.020(G), which concerns "Canons of Po lice Ethics" with regard to private conduct, provides: The law enforcement officer shall be mindful of his special identification by the public as an upholder of the law. Laxity of conduct or manner in private life, expression of either disrespect for the law or seeking to gain special privilege, reflects unfavorably upon the police officer and the police service. The community and the service require that the law enforcement officer lead the life of a decent and honorable man. Following the career of a © policeman gives no man special perquisites. It does give the satisfaction and pride of following and furthering an unbroken tradition of safeguarding the American republic. The officer who reflects upon this tradition will not degrade it. Rather he will so conduct his private life that the public will regard him as an example of stability, fidelity, and morality. Operating Procedure Manual section 101.070(A) provides: Employees shall conduct themselves at all times, both on and off duty, in such a manner as to reflect most favorably on the Department. Conduct unbecoming an employee shall include that which brings the Department into disrepute, or reflects discredit upon the employee as a member of the Department, or that which impairs the operations or efficiency of the Department or employee. Operating Procedure Manual section 101.070(B) provides that "[elmployees shall conduct their personal and business affairs in a manner that does not discredit or otherwise bring the department into disrepute or compromise the employee's ability to perform his or her duties." . See AS 23.40.210(a) ("'The agreement shall include a grievance procedure which shall have binding arbitration as its final step."); AS 23.40.200(a)(1), (b). . See AS 18.65.130; AS 18.65.220; AS 18.65.240; see generally DerartmENnt or Pusuc Sarety, History, Araska Porice Stanparps Counci, http://dps.alaska.gov/apsc/history.aspx (last visited Mar. 21, 2014). . See 13 Alaska Administrative Code (AAC) 85.010(b)(3)(A) (2012) ("A participating police department may not hire as a police officer a person . who . has had the person's basic certification revoked. ."). . The administrative law judge found that the arbitrator's order of reinstatement did not preclude the State from revoking the Trooper-Griev-ant's license based on the original discharge. 13 AAC 85.110(f) provides that "[a] personnel action or subsequent personnel action regarding a police officer by the police officer's employer, including a decision resulting from an appeal of the employer's action, does not preclude the council from revoking the police officer's basic, intermediate, or advanced certificate under this section." . The Trooper-Grievant appealed the revocation to superior court, but moved to dismiss the appeal in July 2011. The superior court accordingly dismissed the appeal in August 2011. . The superior court noted that "courts will not enforce contractual terms that directly violate legislation or regulations promulgated under valid legislation." . - The superior court also stated that "it may not necessarily agree with the arbitrator's decision or find that it would have ruled in the same manner had this been a case of first impression." . 235 P.3d 197, 201 (Alaska 2010) (internal quotation marks and citations omitted). . See State v. Pub. Safety Emps. Ass'n, 257 P.3d 151, 161 (Alaska 2011) (PSEA 2011). . Id. at 155-56. While the question of a public policy exception to arbitration awards had been raised in prior cases, this court did not previously have the opportunity to reach the issue, either finding that the issue had not been properly raised below or deciding the case on other grounds. See PSEA 2010, 235 P.3d at 203; Alaska Pub. Emps. Ass'n v. State, Dep't of Envtl. Conservation, 929 P.2d 662, 667 (Alaska 1996). . PSEA 2011, 257 P.3d at 158 (quoting PSEA 2010, 235 P.3d at 203). This court laid out three "common principles," drawn from other jurisdictions, that should be used in the public policy exception analysis: (1) the public policy exception to labor arbitration disputes involving public employees in po- sitions of public trust is most clearly applicable where a statute or regulation compels the termination (or prevents the hiring) of an employee for committing the relevant misconduct; (2) the relevant inquiry is whether the arbitrator's decision to reinstate the employee violates public policy, not whether an employee's conduct does, so statutes or regulations that merely prohibit the conduct are insufficient to support the public policy exception; and (3) a court should be particularly vigilant where the employee's misconduct was in the performance of his or her duties and directed toward the public, and could therefore undermine confidence in public institutions that rely upon the public's trust. Id. at 162. . See id. at 156 (citing E. Associated Coal Corp. v. United Mine Workers of Am., Dist. 17, 531 U.S. 57, 67, 121 S.Ct. 462, 148 L.Ed.2d 354 (2000)). . See W.R. Grace & Co. v. Local 759, Int'l Union of United Rubber, Cork, Linoleum & Plastic Workers of Am., 461 U.S. 757, 766, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983) (citing Hurd v. Hodge, 334 U.S. 24, 34-35, 68 S.Ct. 847, 92 L.Ed. 1187 (1948)) (holding enforcement of collective bargaining agreement would not violate public policy requiring obedience to court decisions or policy favoring voluntary compliance with Title VII of the Civil Rights Act of 1964). . PSEA 2011, 257 P.3d at 158-59. . Id. at 159 (discussing Pavone v. Pavone, 860 P.2d 1228, 1231 (Alaska 1993)). . Restatement (Seconp) or Contracts § 178(1) (1981). . E. Associated Coal Corp., 531 U.S. at 62, 121 S.Ct. 462 (quoting Muschany v. United States, 324 U.S. 49, 66, 65 S.Ct. 442, 89 L.Ed. 744 (1945)) (emphasis added) (internal quotation marks omitted). . Id. at 63, 121 S.Ct. 462 (upholding arbitration order to reinstate truck driver who tested positive for drugs). . PSEA 2011, 257 P.3d at 160 (quoting Baseden v. State, 174 P.3d 233, 237 (Alaska 2008)); see also AS 23.40.210(a) ("The agreement shall include a grievance procedure which shall have binding arbitration as its final step."); AS 23.40.200(a)(1), (b). . PSEA 2011, 257 P.3d at 162 (emphases added); see also E. Associated Coal Corp., 531 U.S. at 62-63, 121 S.Ct. 462 ("[The question to be answered is not whether [the grievant's) drug use itself violates public policy, but whether the agreement to reinstate him does so."); City of Boston v. Boston Police Patrolmen's Ass'n, 443 Mass. 813, 824 N.E.2d 855, 861 (2005) (citing City of Lynn v. Thompson, 435 Mass. 54, 754 N.E.2d 54, 62-63 (2001)) ("To prevail, the city must therefore demonstrate that public policy requires that [the grievant's] conduct, as found by the arbitrator, is grounds for dismissal, and that a lesser sanction would frustrate public policy."). . See PSEA 2011, 257 P.3d at 153. . Id. at 161. . Id. . Dissent at 688-89 (quoting Restatement(Sec-onp) or Contracts § 178(1) (1981)). . Id. . PSEA 2011, 257 P.3d at 159. . Id. at 160 (internal quotation marks omitted). . Id. at 159-60 (internal citations and quotation marks omitted). . Id. at 160 (quoting Pavone v. Pavone, 860 P.2d 1228, 1231 (Alaska 1993)) (internal quotation marks omitted). . Id. (omissions in original) (quoting Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123, 1132 (Alaska 1989)) (internal quotation marks omitted). . In addition, the State claims that the Alaska Police Standards Council's "decision to revoke the Trooper-Grievant's certification reaffirms that reversing the officer's discharge was contrary to public policy." After the arbitrator or dered reinstatement, the council revoked the Trooper-Grievant's certification based on the underlying "discharg[e] for conduct that adversely affected his ability and fitness to act as a police officer, and that [was] detrimental to the reputation and integrity of the Alaska State Troopers." According to the State, the certificate revocation shows that the arbitrator's decision to reverse the discharge violated public policy. But this argument is somewhat circular. Because the certificate revocation was based on the discharge that the arbitrator found lacked just cause, it is difficult to see how it can supply the justification for rejecting the arbitrator's decision. . See PSEA 2011, 257 P.3d at 162. . Counsel for the State acknowledged that there is no statute or regulation specifically prohibiting reinstatement of a trooper who has engaged in this type of misconduct when the trooper still has the requisite police certificate. Rather, counsel claimed that the relevant public policy is the trooper's basic duty to protect the public, based on a combination of constitutional, statutory, and regulatory principles. . See AS 23.40.210(a) ('The agreement shall include a grievance procedure which shall have binding arbitration as its final step."). . 788 P.2d 732 (Alaska 1990). . See id. at 733-35. . See id. at 735-39. , Id. at 739; see PSEA 2011, 257 P.3d at 160 (concluding that Jones did not establish a public policy against reinstatement of a dishonest police officer). . 235 P.3d 197, 203 (Alaska 2010). . See id. . See AS 18.66.010. . See id. (establishing the Council on Domestic Violence and Sexual Assault to "provide for planning and coordination of services to victims of domestic violence or sexual assault . and to provide for crisis intervention and prevention programs"). . See id. . See, eg., AS 18.65.130; AS 18.65.240(c) 13 AAC 85.100(a), (b); 13 AAC 85.110(a)(2), (3). . PSEA 2011, 257 P.3d 151, 161 (Alaska 2011). . We also note that the Alaska Police Standards Council did not base revocation of the Trooper-Grievant's police certificate on this provision. Rather, the council revoked his police certificate under 13 AAC 85.110(a)(2), which provides that the council will, in its discretion, revoke a certificate if the officer "has been discharged . for cause for inefficiency, incompetence, or some other reason that adversely affects the ability and fitness of the police officer to perform job duties or that is detrimental to the reputation, integrity, or discipline of the police department where the police officer worked." . Dissent at 690. . As we wrote in PSEA 2011, "If we had stood in the arbitrator's place, we may well have determined that under Alaska's doctrine of 'just cause," the State did have just cause to terminate the Trooper.... But we are bound by the gross error standard, and it was not gross error for the arbitrator to have taken a different approach from the one we may have taken." 257 P.3d at 165. . Id. at 166. . Id. . Dissent at 690-91. . Id. at 691. , See PSEA 2011, 257 P.3d at 161. . Id. . Id. at 162. . See Police Officers Labor Council v. City of Wyoming, No. 258843, 2006 WL 2000136, at *1-2 (Mich.App. July 18, 2006) (concluding that the arbitration order of reinstatement was contrary to a Michigan statute prohibiting a person from encouraging a child to engage in delinquent acts and a police regulation). . See City of Boston v. Boston Police Patrolmen's Ass'n, 443 Mass. 813, 824 N.E.2d 855, 861 (2005) (''The question to be answered is not whether [the officer's conduct] itself violates public policy, but whether the agreement to reinstate him does so.") (citations omitted) (quoting E. Associated Coal Corp. v. United Mine Workers of Am., Dist. 17, 531 U.S. 57, 62-63, 121 S.Ct. 462, 148 L.Ed.2d 354 (2000). . See Alaska State Emps. Ass'n/AFSCME Local 52 v. State, 74 P.3d 881 (Alaska 2003) (reversing reinstatement where employee was discharged upon revelation of felony conviction for theft of public funds). . See City of Worcester v. Worcester Vocational Teachers Ass'n, No. 981686B, 1999 WL 1336075, at *1, *3-4 (Mass.Super.Ct. March 3, 1999) (upholding arbitrator's award to reinstate school guidance counselor despite alleged sexually harassing comments and physical contact with a student); City of Cleveland v. Cleveland Police Patrolman's Ass'n, No. 76181, 2000 WL 573195, at *1, *3-4 (Ohio App. May 11, 2000) (affirming arbitrator's reinstatement of police officer convicted of domestic assault even though a federal statute prohibited persons convicted of misdemeanor domestic violence from possessing firearms). . See, eg., Bureau of Maine State Police v. Pratt, 568 A.2d 501, 505-06 (Me.1989) (holding that arbitrator's reinstatement of officer who had sexual encounter with witness and then possibly perjured himself on the topic did not violate public policy); City of Lincoln Park v. Lincoln Park Police Officers Ass'n, 176 Mich.App. 1, 438 N.W.2d 875, 876 (1989) (holding that enforcement of arbitrator's order to reinstate the police officer did not violate public policy even though the officer had engaged in consensual sexual conduct with a complaining witness after responding to her call for help); Monroe Cnty. Sheriff v. Fraternal Order of Police, No. 869, 2002 WL 31170168, at *1 (Ohio App. Sept. 25, 2002) (upholding arbitrator's order to reinstate the deputy sheriff who had engaged in consensual sexual conduct with confidential informant while in uniform and on duty). . See Monroe Cnty. Sheriff, 2002 WL 31170168, at *1, *7 (noting that the conduct could be seen as "an abuse of power" but nonetheless upholding the reinstatement of the deputy sheriff because there was no clearly defined public policy prohibiting employment of the deputy sheriff). . Lincoln Park Police Officers Ass'n, 438 N.W.2d at 876. . See id. . See id. . See id. at 877. . See PSEA 2010, 235 P.3d 197, 201-03 (Alaska 2010) (upholding arbitrator's order for reinstatement and suspension of officer who had harassed a fellow officer at a law enforcement academy). . Pub. Safety Emps. Ass'n, Local 92 v. State, 895 P.2d 980, 984 (Alaska 1995) (quoting City of Fairbanks v. Rice, 628 P.2d 565, 567 (Alaska 1981)) (internal quotation marks omitted). . United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 598, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). . United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987); see also United Steelworkers of Am. v. Warrior & Gulf Nav. Co., 363 U.S. 574, 581-82, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); Manville Forest Prods. Corp. v. United Paperworkers Int'l Union, 831 F.2d 72, 76 (5th Cir.1987) (approving of the use of past practice "to resolve ambiguities and gaps in written collective bargaining agreements"). . Warrior & Gulf Nav. Co., 363 U.S. at 581-82, 80 S.Ct. 1347; see also Manville Forest Prods. Corp., 831 F.2d at 75. . Bhd. of Locomotive Eng'rs & Trainmen v. United Transp. Union, 700 F.3d 891, 902 (6th Cir.2012); see also Loveless v. E. Air Lines, Inc., 681 F.2d 1272, 1278 n. 14 (11th Cir.1982) ("An arbitrator may be able to discern a latent ambiguity in a contract based upon his examination of past practice or bargaining history even though no ambiguity appears on the face of the contract. The arbitrator might then be able to resolve the latent ambiguity by resort to permissible sources of extrinsic evidence."). . See Pub. Safety Emps. Ass'n, Local 92, 895 P.2d at 984. . See PSEA 2010, 235 P.3d 197, 202 (Alaska 2010). . See id. . PSEA 2011, 257 P.3d 151, 163 (Alaska 2011) (quoting Alaska State Emps. Ass'n/AFSCME Local 52 v. State, 74 P.3d 881, 884 (Alaska 2003)). . See id. . We defined "just cause" for discharge as "one which is not for any arbitrary, capricious, or illegal reason and which is one based on facts (1) supported by substantial evidence and (2) reasonably believed by the employer to be true." Alaska State Employees Ass'n/AFSCME Local 52, 74 P.3d at 883-84 (quoting Manning v. Alaska R.R. Corp., 853 P.2d 1120, 1125 (Alaska 1993)) (internal quotation marks omitted). . See, e.g., Town of Bloomfield v. United Elec. Radio & Mach. Workers of Am., 50 Conn.Supp. 180, 916 A.2d 882, 885 (2006), rev'd on other grounds, 285 Conn. 278, 939 A.2d 561 (Conn.2008); City of Boston v. Boston Police Patrolmen's Ass'n, 443 Mass. 813, 824 N.E.2d 855, 862 n. 9 (2005). . PSEA 2011, 257 P.3d at 165. . See PSEA 2010, 235 P.3d 197, 201 (Alaska 2010). . An arbitrator later reinstated the trooper, finding that the State did not bear its burden in proving that the alleged misconduct had occurred. However, the relevant facts here concern the State's initial disciplinary action, not the arbitration award. . In that sole termination case, an arbitrator found the State did not have just cause for termination and ultimately reinstated the trooper. . The State also contends that "[the arbitrator failed to take into account the critical importance of public trust in the State Troopers," but that argument is subsumed within our public policy discussion. See supra Part IV.A.2.e. . PSEA 2010, 235 P.3d at 201.

6955408

Anita HENDRICKS-PEARCE, as Personal Representative of the Estate of Dewell W. Pearce, Appellant, v. STATE of Alaska, DEPARTMENT OF CORRECTIONS, Appellee

Hendricks-Pearce v. State, Department of Corrections

2014-04-25

No. S-14820

30

47

323 P.3d 30

323

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:19:49.086852+00:00

CAP

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

Anita HENDRICKS-PEARCE, as Personal Representative of the Estate of Dewell W. Pearce, Appellant, v. STATE of Alaska, DEPARTMENT OF CORRECTIONS, Appellee.

Anita HENDRICKS-PEARCE, as Personal Representative of the Estate of Dewell W. Pearce, Appellant, v. STATE of Alaska, DEPARTMENT OF CORRECTIONS, Appellee. No. S-14820. Supreme Court of Alaska. April 25, 2014. Ted Stepovich, Law Office of Ted Stepo-vich, Anchorage, for Appellant. Dale W. House, Senior Assistant Attorney General, Anchorage, and Michael C. Ger-aghty, Attorney General, Juneau, for Appel-lee. Before: FABE, Chief Justice, WINFREE, MAASSEN, and BOLGER, Justices.

9866

63748

OPINION BOLGER, Justice. I. INTRODUCTION A prisoner recovered a medical malpractice judgment against the State of Alaska Department of Corrections. But when DOC paid the judgment, it deducted the expenses it had incurred for unrelated medical care provided to the prisoner by outside providers. DOC then brought an action seeking a declaratory judgment that DOC had the statutory right to reimbursement from the prisoner for medical expenses incurred on his behalf. In this appeal, the prisoner's estate argues that only prisoners with access to the specified funding sources listed in the statute are liable for the cost of outside medical care. But we conclude that the statute entitles DOC to reimbursement from a prisoner regardless of whether the medical care is provided inside the prison or made available through an outside provider. We also conclude that the common fund doctrine does not require DOC to share the cost of the prisoner's attorney's fees for the medical malpractice action. II. FACTS AND PROCEEDINGS A. Legal Framework The State has a statutory and constitutional obligation to provide necessary medical care to all prisoners regardless of their ability to pay. Although the State provides medical care through DOC employees and contractors (in-house medical care), some medical conditions require treatment by outside providers (outside medical care) Alaska Statute 88.30.028 sets out the prisoner's responsibility for medical expenses incurred during incarceration - DOC has also adopted a regulation, 22 AAC 05.121, that outlines the prisoner's responsibility for payment for these services, with particular focus on the co-payment system. B. Prior Litigation And First Appeal Most of the underlying facts of this case have already been reviewed by this court in State, Department of Corrections v. Hendricks-Pearce. Dewell Pearce was a prisoner from 1994 to 2008. During his incarceration the State provided Pearce medical care for several conditions; the State paid $147,494.94 to outside medical providers. While in custody, Pearce sued the State for medical malpractice and was awarded a $369,277.88 judgment against the State in 2008. The State paid part of the judgment in May 2008, but withheld $140,847 as reimbursement for medical expenses that were unrelated to the injuries giving rise to the malpractice suit In July 2008 the State filed an action for declaratory relief regarding its right to reimbursement. The parties disputed whether the State was entitled to reimbursement from Pearce. Because Pearce had been released before the State filed its declaratory judgment action, the parties disagreed on whether AS 83.30.028 applied to former prisoners after their release from custody. The superior court determined that AS 33.30.028 did not apply to former prisoners. It therefore dismissed the State's suit and ordered the State to pay Pearce $140,847 (the amount the State had withheld from the original medical malpractice judgment) plus interest. On appeal, this court reversed the superior court's ruling. We stated that "[the primary goal of AS 38.30.028 is reducing medical costs" and observed that "preventing the State from collecting from prisoners to the fullest extent possible would contravene the statute's cost-saving purpose." ! We therefore held that for the purposes of AS 33.30.028 the term "prisoner" includes former prisoners. This court remanded two separate issues-then not yet ruled upon-to the superior court: (1) whether AS 38.30.028 entitles the State to reimbursement for the cost of outside medical care from a prisoner without the funding - sources - identified in - AS 33.30.028(a); and (2) whether the State's recovery, if allowed, was subject to a claim for attorney's fees and costs under the common fund doctrine. C. Remand And Subsequent Appeal 1. The parties' arguments On remand, both parties moved for summary judgment. Each offered a distinctly different interpretation of AS 33.30.028. Pearce argued that the statute allows reimbursement for the cost of outside medical care only from the specified funding sources identified in subsection .028(a). Pearce's reading of the statute rested on two distinctions: the first distinction related to the type of medical care at issue (whether it was in-house or outside), and the second distinction compared prisoners with access to the specified funding sources listed in subsection .028(a) to those without. Pearce argued that the statute distinguishes between two types of medical care-care "provided" by DOC (in-house medical care) and care "made available" by DOC (outside medical care)-and that under subsection .028(b), prisoners who lacked the .028(a)-specified funding sources are required to pay only for care "provided to them by the department." - Pearce therefore concluded that only prisoners with access to those specified funding sources were liable for the cost of outside medical care "made available" to them. Pearce contended that his reading of the statute was supported by the DOC regulation concerning prisoner co-payments. Pearce also argued that his attorney's fees should be deductible from any recovery made by the State under the common fund doe-trine. The State argued that liability for the cost of outside medical care is imposed on all prisoners under AS 33.30.028, regardless of access to the .028(a)-specified funding sources, and that the legislative history does not support a distinction between medical care "provided" and care "made available." It contended that the statute itself made no distinction between in-house and outside medical care and that the regulation cited by Pearce was irrelevant to the statutory interpretation question because that regulation concerned co-payments rather than reimbursement. Finally, the State argued that any recovery it made was not subject to a pro rata reduction for attorney's fees. 2. The superior court's analysis The superior court ruled in favor of DOC on both issues. It determined that AS 33.30.028 entitled DOC to reimbursement for the costs of outside medical care from prisoners like Pearce who lacked the specified funding sources identified in subsection 028(a). - It determined that subsection .028(a) identified two categories of medical care-that "provided" and that "made available" to the prisoner. But the court conelud-ed that subsection .028(a) assigned financial liability for both categories of care to the prisoner. The court determined that the distinction between care "provided" and care "made available" is relevant only in subsection .028(b), which requires some level of payment for care only when the care is "provided to [the prisoner] by the department. " Turning to the legislative history of the statute, the court found that subsection .028(b) was intended to deter prisoners' frivolous use of medical care, rather than to limit a prisoner's liability under subsection .028(a). The court also found that the legislative record reflected the legislature's intent to grant the State the ability to recover the full cost of medical care "if at some point in the present or future the prisoner had sufficient funds." The superior court also ruled that the common fund doctrine was not applicable because Pearce and his attorney did not confer a benefit upon the State through the medical malpractice lawsuit. It therefore concluded that DOC's recovery was not subject to a pro rata reduction for attorney's fees and awarded judgment against Pearce's estate in the amount of $149,730.95, including attorney's fees. Pearce appeals both rulings. III. STANDARD OF REVIEW This case primarily involves a matter of statutory interpretation. Statutory interpretation is a question of law to which we apply our independent judgment. However, "an agency's interpretation of a law within its area of jurisdiction can help resolve lingering ambiguity, particularly when the agency's interpretation is longstanding." Whether the common fund doctrine applies to this case is also a question of law that we review independently. IV. DISCUSSION A. A Prisoner Is Liable For The Costs Of Medical Care Provided Or Made Available. As noted _ above, under _ AS 33.80.028(a) "the liability for payment of the costs of medical . care provided or made available to a prisoner . is, subject to (b) of this section, the responsibility of the prisoner. ." (Emphasis added.) The following subsection, AS 33.30.028(b), states that "[the commissioner shall require prisoners who are without resources under (a) . to pay the costs of medical . care provided to them by the department. At a minimum, the prisoner shall be required to pay a portion of the costs based upon the prisoner's ability to pay." When we interpret this statutory language we begin with the plain meaning of the statutory text. The legislative history of a statute can sometimes suggest a different meaning, but "the plainer the language of the statute, the more convincing contrary legislative history must be." "Even if legislative history is 'somewhat contrary' to the plain meaning of a statute, plain meaning still controls." Pearce argues that under subsection (a), in-house services are "provided" to a prisoner and outside medical services are "made available" to a prisoner. Pearce argues that subsection (b) means that a prisoner who has no insurance or other special resources under (a) is only required to pay a co-pay for in-house services and is not required to pay anything for outside medical services. In response, the State argues that all medical services are both "provided" and "made available" to a prisoner who receives medical care. The superior court concluded that this distinction makes no difference in this case because subsection (a) makes a prisoner liable for the costs of all medical care. We conclude that the superior court's interpretation of this statute is most consistent with its plain meaning. The language of subsection (a) makes a prisoner liable for all medical care regardless of whether it is "provided" or "made available" to the prisoner. Subsection (b) requires minimum payment terms: the commissioner, at a minimum, must require prisoners without adequate resources to make a co-payment for services "provided" to them. But this subsection does not set a maximum payment for services "provided," nor does it set any limitations on liability for services "made available" to the prisoner. The dissent argues that our reading of the statute renders superfluous the statutory clause making subsection (a) "subject to" subsection (b). However, under our interpretation, subsection (a) reflects a reasonable presumption that there will be dual lability for the prisoner and the listed collateral payers, which is made subject to subsection (b): if there are no collateral payers, and the prisoner is otherwise unable to pay in full, the commissioner must collect at least a minimum payment from the prisoner for all in-house services. Even if our reading of the statute did render the "subject to" clause redundant, such an interpretation is closer to the text than the substantial negative implication proposed by the dissenting opinion: namely, that the legislature's silence regarding the situation in which a prisoner has no collateral resources warrants the addition to subsection (b) of a provision relieving the prisoner of all responsibility to pay for outside services even if the prisoner has adequate personal resources to pay for those services. In the same vein, the dissent argues that our reading of the statute renders the list of collateral payers in subsection (a) redundant because if the prisoner is responsible for all of his medical costs, then listing potential collateral sources for payment is unnecessary. - However, the enumeration of possible collateral sources serves at least three purposes: (1) it gives notice to potential collateral payers that they may be liable for medical costs if they are associated with a prisoner as described in the statute; (2) it provides prisoners with guidance about their payment and coverage options; and (8) it provides the DOC with a list of alternative payers to collect from. These are reasonable purposes that give meaning to this statutory language. To satisfy the requirements of AS 33.30.028(b), DOC adopted the regulation found at 22 AAC 05.121. Subsection (b)(1) of this regulation requires a prisoner to make a co-payment for medical services provided to the prisoner by the department through department employees or contractors. Subsection (b)(2) requires a prisoner to arrange to obtain payment or coverage from one or more of the responsible parties set out in AS 33.30.028(a) for services not provided through department employees or contractors. This portion of the regulation supports the distinction between in-house services and outside services that Pearce relies on. But the regulation does not conflict with our reading of the statute. Subsection (b) of the statute mandates that the commissioner charge prisoners at least a minimal amount for in-house services rendered. The regulation implements that command and properly goes no further. Like the statute, the regula tion says nothing of divesting the prisoner lacking collateral resources of liability for outside services if the prisoner has adequate personal resources to pay for those services. Indeed, the regulation makes no provision at all for the situation in which a prisoner without collateral resources has received outside services, which is appropriate in light of the statute's silence on the issue. One could argue that our reading of dual liability would render portions of the regulation incomplete or redundant. For example, 22 AAC 05.121(e) states that "a prisoner may be charged for the full costs of health care services [provided by outside providers], resulting from a self-inflicted injury, or an injury to the prisoner or to another prisoner resulting from an assault or other violation of facility rules or state law...." This subsection seems unnecessary if AS 83.30.028(a) makes the prisoner liable for all medical care. But we read this subsection as a clarification that the department may collect full payment from a prisoner who inflicts an injury without regard to the minimum co-payment that would otherwise apply. Interpreted in this fashion, the regulation does not conflict with the our reading of AS 83.30.028(a). The superior court's interpretation of this statute is also consistent with its legislative history. We have already recognized that the primary purpose of this statute is to reduce medical costs: The primary goal of AS 83.30.028 is reducing medical costs: the legislation that led to the reimbursement statute's enactment was directed at controlling the costs incurred in correctional institutions, and the sponsor statement indicated the proposed measures would reduce some of the costs of inmate health care and allow [the State] to focus its limited budget on its true mission. Although the legislative history does not explicitly address extending Hability to former prisoners, preventing the State from collecting from prisoners to the fullest extent possible would contravene the statute's cost-saving purpose and is not justified by another interest evident from the face of the statute or its legislative history.[ ] In this case, the superior court's decision to include a prisoner's personal wealth among those resources subject to reimbursement is consistent with the statute's primary purpose of reducing the DOC's medical costs. Moreover, the legislative record reflects an intent to take advantage of any financial resources to which a prisoner might have access. In a hearing before the House Finance Committee, a member of Representative Mulder's staff noted that "there will be individuals . that will have other coverage or resources" and that "[the legislation allows the Department to become a secondary payer to the primary health care provider." The staffer also stated that "the intent is to allow the Department to take advantage of other coverage that is available or to access the resources of someone that is independently wealthy." These statements suggest that the committee intended that a prisoner's personal wealth be included within the coverage of this statute. The dissent argues that, rather than cost-saving generally, the legislature had a more specific purpose in mind when it drafted the statute: "to deter frivolous prisoner medical complaints and the overuse of medical services." And the dissent argues that this more specific goal, while perfectly consistent with an overarching desire to cut costs, "outweighed any subsidiary goal of recovering costs." Although we do not agree with that view, even if it is taken as true, our reading of the statute is better suited to achieving this deterrence. Under our reading of this statute, a prisoner will be liable for medical costs, those rendered both in-house and outside the prison, whether or not he has collateral resources. This rule will certainly deter prisoners from overuse of medical services more than a rule relieving a prisoner of all responsibility. If Pearee's interpretation were adopted, there would be nothing to deter a prisoner from seeking outside care other than the requirement that he first obtain a referral from an in-house provider. But, whether or not prior approval is required, a prisoner's liability for the cost of outside treatment will also act as a reasonable deterrent. This is the same reasonable deterrent that affects patients outside a prison; any patient may reasonably choose to decline unnecessary medical services, especially if he has no collateral resources. If this statute was intended to deter unnecessary treatment by holding prisoners financially responsible for their treatment decisions, such deterrence will be mitigated if wealthy prisoners are relieved of their medical expenses. Thus, there is no reason why wealthy prisoners should be exempted from liability in a bill designed either to deter over-use of medical services or to reduce costs. The dissenting opinion suggests that one possible motivation for such an exemption could be to reduce poverty and recidivism. But there is no indication that the legislature believed that making prisoners responsible for their own bills would promote recidivism. From the legislative history we have reviewed, it seems more likely that the legislature concluded that controlling these medical costs will allow DOC "to focus its limited budget on its true mission," that is, to maintain correctional facilities, to provide necessary treatment, and to establish programs that are calculated to protect the public and promote rehabilitation. Medical services in this country are extremely expensive for all patients, both inside and outside prison walls. Making law-abiding Alaskans responsible for their own health care decisions and excusing prisoners from such liability could be considered deeply unfair. Indeed, if the cost of paying for a prisoner's health care is absorbed by DOC, then the public will bear that cost in taxes or foregone opportunities. In summary, the legislative history is consistent with a natural reading of AS 33.30.028(a), requiring a prisoner to be liable for the cost of all medical services provided or made available to the prisoner. The implementing regulation is not inconsistent with this interpretation. The superior court properly concluded that Pearce was liable for payment of the cost of outside medical care made available to him during his incarceration. B. The Common Fund Doctrine Does Not Apply To The State's Reimbursement Claim. Pearce also argues that the superior court should have deducted a pro rata share of the attorney's fees he incurred pursuing the medical malpractice judgment from the funds the State retained to pay for his medical care. The common fund doctrine provides that a litigant or "lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney's fee from the fund as a whole. The doctrine is implicated any time one litigant's success releases well-defined benefits for a limited and identifiable group of others." The common fund doctrine has been applied to subrogation and class action cases where the plaintiffs attorneys obtained a specific recovery for the benefit of other parties. For example, when an employee recovers on a personal injury or wrongful death claim against a third party, a pro rata share of the employee's attorney's fees and costs is deducted from the workers' compensation lien for the same injury. Likewise, when a hospital accrues a medical lien for care provided to an injured patient, the patient's attorney fees must be deducted before the lien is paid from a settlement for those injuries. - But the common fund doctrine should not be extended to general obligations that existed before the plaintiff's injury-obligations that were not dependent on the creation of a settlement fund. In Alaska Native Tribal Health Consortium v. Settlement Funds, this Court cited with approval the New Mexico Supreme Court's decision distinguishing indirect beneficiaries, such as utility creditors and mortgage holders, from the hospital that directly benefits from a hospital lien. Other jurisdictions have declined to apply the common fund doctrine to general creditors of a plaintiff simply because the plaintiff's recovery creates a new asset. In these cases, the plaintiff is not acting on behalf of its creditors in pursuing its claim. The creditors' claims are independent of the plaintiff's claim; the debts to the creditors exist regardless of the outcome of the litigation. In this case, the medical expenses Pearce incurred in prison were unrelated to the injuries he sustained from medical malpractice. The State became Pearce's creditor for his unrelated medical expenses, but the State had no special lien on his malpractice recovery. Pearce's attorneys did not create any special. fund that benefitted the State, so the common fund doctrine does not apply to this recovery. v. CONCLUSION We conclude that AS 88.30.028(a) allows the DOC to seek reimbursement for the costs of outside medical care, and that the common fund doctrine does not apply to this case. We therefore AFFIRM the superior court's judgment. STOWERS, Justice, not participating. FABE, Chief Justice, with whom MAASSEN, Justice, joins, dissenting. . AS 33.30.011(4)(A); State, Dep't of Corr. v. Hendricks-Pearce, HenP.3d 1088, 1089 (Alaska 2011) (citing AS 33.30.011(4)(A); Abraham v. State, 585 P.2d 526, 531 (Alaska 1978); Rust v. State, 582 P.2d 134, 143 (Alaska 1978)). . Hendricks-Pearce, 254 P.3d at 1089-90 (citing 22 Alaska Administrative Code (AAC) 05.121(b) (2004). . AS 33.30.028 provides, in relevant part: (a) Notwithstanding any other provision of law, the liability for payment of the costs of medical . care provided or made available to a prisoner committed to the custody of the commissioner is, subject to (b) of this section, the responsibility of the prisoner and the (1) prisoner's insurer if the prisoner is insured .; (2) Department of Health and Social Services if the prisoner is eligible for assistance (3) United States Department of Veterans Affairs if the prisoner is eligible for veterans' [medical] benefits .; (4) United States Public Health Service, the Indian Health Service, or any affiliated group or agency if the prisoner is [eligible]; and (5) parent or guardian of the prisoner if the prisoner is under the age of 18. (b) The commissioner shall require prisoners who are without resources under (a) of this section to pay the costs of medical . care provided to them by the department. At a minimum, the prisoner shall be required to pay a portion of the costs based upon the prisoner's ability to pay. . 254 P.3d 1088. . Id. at 1090. "Dewell Pearce died in November 2009 and Anita Hendricks-Pearce, his estate's personal representative, was substituted in his place." Id. at 1090 n. 3. For ease of reference we use "Pearce" throughout this opinion to refer to both the .Id. .Id. .Id. .Id. . Id. . Id. at 1091. . Id. at 1093. . Id. at 1092. . Id. at 1093. . Id. . Id. at 1093-95. . Id. at 1095 n. 25. . See 22 AAC 05.121(b) (providing that prisoners are financially liable for a co-payment for in-house medical care). . AS 33.30.028(b). . The superior court's order awards DOC a principal amount of $137,010.35 plus $12,720.60 in attorney's fees for a total of $149,730.95. The record does not indicate how the superior court arrived at the figure of $137,010.35; the State claimed to have spent $147,494.94 on outside medical care for Pearce and - withheld $140,847.00 from the final judgment award in the 2008 medical malpractice case. Neither party has appealed the amount of the award. . Native Vill. of Tununak v. State, Dep't of Health & Soc. Servs., 303 P.3d 431, 440 (Alaska 2013). . Bartley v. State, Dep't of Admin., Teacher's Ret. Bd., 110 P.3d 1254, 1261 (Alaska 2005) (citing Union Oil Co. v. State, Dep't of Revenue, 560 P.2d 21, 23, 25 (Alaska 1977)). . See Edwards v. Alaska Pulp Corp., 920 P.2d 751, 756 (Alaska 1996). . Ward v. State, Dep't of Pub. Safety, 288 P.3d 94, 98 (Alaska 2012). . Id. (internal quotation marks omitted). . Estate of Kim ex rel. Alexander v. Coxe, 295 P.3d 380, 387 (Alaska 2013) (citing Oels v. Anchorage Police Dep't Emps. Ass'n, 279 P.3d 589, 597 (Alaska 2012)). . In contrast, the regulation does state a different situation in which the department will not pursue payment: where certain inspections, examinations, or testing are required by other state regulations or are necessary to protect the health of others. See 22 AAC 05.121(c). . - Hendricks-Pearce, 254 P.3d at 1092-93 (internal citations and quotations omitted). . Minutes, House Finance Comm. Hearing on HB. 219, 19th Leg. ist Sess. (Apr. 20, 1995) (testimony of Dennis DeWitt, Legislative Assistant to Rep. Eldon Mulder) (emphasis added). . Minutes, House Finance Comm. Hearing on H.B. 219, 19th Leg. ist Sess. (Apr. 20, 1995) (testimony of Dennis DeWitt, Legislative Assistant to Rep. Eldon Mulder) (emphasis added). . Hendricks-Pearce, 254 P.3d at 1092-93. . See AS 33.30.011. . See, eg., Dan Mangan, Medical Bills Are the Biggest Cause of U.S. Bankruptcy, CNBC Health Care (June 25, 2013, 2:29 PM), http://www.cubc. comf/id/100840148; Jason Kane, Report: 1 in 3 Americans Burdened With Medical Bills, The Rundown, PBS NewsHour (March 8, 2010, 10:16 AM), http://www.pbs.org/newshour/ rundown/2012/03/report-a-third-of-americans-burdened-with-medical-bills.html. . Alaska Native Tribal Health Consortium v. Settlement Funds Held For E.R., 84 P.3d 418, 433-34 (Alaska 2004) (internal quotations and citations omitted). . Edwards v. Alaska Pulp Corp., 920 P.2d 751, 756 (Alaska 1996) (applying common fund analysis to class action case); Cooper v. Argonaut Ins. Cos., 556 P.2d 525, 527 (Alaska 1976) (applying doctrine to workers' compensation reimbursement statute). . Cooper, 556 P.2d at 525-28. . Alaska Native Tribal Health Consortium, 84 P.3d at 433-34. . Id. at 435 (citing Martinez v. St. Joseph Healthcare Sys., 117 N.M. 357, 871 P.2d 1363 (1994). . In re Key West Rest. & Lounge, Inc., 54 BR. 978, 985 (Bankr.N.D.Ill.1985); Watkins v. GMAC Fin. Servs., 337 Ill.App.3d 58, 271 Ill.Dec. 389, 785 N.E.2d 40, 45 (2003); TM Ryan Co. v. 5350 S. Shore, LLC, 361 Ill.App.3d 352, 297 Ill.Dec. 72, 836 N.E.2d 803, 811 (2005); Hilton Oil Transp. v. Oil Transp. Co., S.A., 659 So.2d 1141, 1154, n. 7 (Fla.Dist.Ct.App.1995); Villanueva v. Wolff, 175 N.J.Super. 430, 419 A.2d 1141, 1147 (N.J.Super.Ct.App.Div.1980); Leischner v. Alldridge, 114 Wash.2d 753, 790 P.2d 1234, 1237 (1990) (en banc).

6958790

Christian GOU-LEONHARDT, Appellant, v. STATE of Alaska, Appellee

Gou-Leonhardt v. State

2014-04-11

No. A-11549

700

703

323 P.3d 700

323

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T17:19:49.086852+00:00

CAP

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

Christian GOU-LEONHARDT, Appellant, v. STATE of Alaska, Appellee.

Christian GOU-LEONHARDT, Appellant, v. STATE of Alaska, Appellee. No. A-11549. Court of Appeals of Alaska. April 11, 2014. William R. Satterberg Jr., Law Offices of William R. Satterberg, Jr., Fairbanks, for the Appellant. Risa C. Leonard, Assistant District Attorney, Fairbanks, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: MANNHEIMER, Chief Judge, ALLARD, Judge, and HANLEY, District Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).

1670

10832

OPINION ALLARD Judge. In 2011, Christian Gou-Leonhardt pleaded guilty to felony driving under the influence pursuant to a plea agreement that granted him admission to the Fairbanks Wellness Court. The plea agreement specified that if Gou-Leonhardt successfully completed the wellness court program, he would receive a sentence of 24 months' imprisonment with all 24 months suspended, and 3 years of unsupervised probation. After Gou-Leonhardt successfully completed the wellness court program, he filed a motion asking the superior court to deviate from this plea agreement and grant him a suspended imposition of sentence so he could have his conviction set aside if he suceessfully completed probation. Gou-Leonhardt asserted that AS 28.35.028(b) gave the court the authority to unilaterally alter the plea agreement and impose a suspended imposition of sentence "notwithstanding . any other provision of law." The superior court disagreed with this expansive view of its authority and sentenced Gou-Leonhardt according to the terms of his plea agreement. - Gou-Leonhardt now appeals that decision. For the reasons discussed below, we affirm the judgment of the superior court. Why we conclude the superior court was bound by the terms of the plea agreement The Alaska Legislature has authorized a system of wellness courts, a jail diversion program for substance abusers that seeks to promote their abstinence and recovery by offering them intensive treatment and community supervision in lieu of imprisonments. The statutory framework for wellness courts is found in AS 28.35.028. Under this statute, both the prosecutor and the defendant must consent to a defendant's participation in the program. If the parties agree to the defendant's participation, and if the defendant is accepted for admission into the program, the statute then requires the defendant to enter a plea of guilty or no contest and directs the court "to enter a judgment of conviction for the offense or offenses for which the defendant has pleaded." Although the statute allows a defendant to plead guilty or no contest with no pre-condi-tions, the statute also permits the defendant and the State "to enter into a plea agreement to determine the offense or offenses to which the defendant is required to plead." The statute declares that if the court accepts the plea agreement, "the court shall enforce the terms of the agreement." On its face, this provision of the statute would seem to resolve Gou-Leonhardt's appeal against him. Gou-Leonhardt's plea agreement with the State specified the particular sentence he would receive if he sue-cessfully completed the Fairbanks Wellness Court program (as well as the sentence he would receive if he did not). Because AS 28.35.028(b) requires the court to "enforce the terms of the [plea] agreement," the court seemingly had no discretion to unilaterally deviate from the terms of the plea agreement. Gou-Leonbhardt argues that this interpretation of AS 28.85.028(b) ignores another clause of the statute-a clause that is found several sentences later in the statutory text. We have italicized the particular language Gou-Leonhardt relies on: [Nlotwithstanding Rule 35, Alaska Rules of Criminal Procedure, and any other provision of law, the court, at any time after the period when a reduction of sentence is normally available, may consider and reduce the defendant's sentence based on the defendant's compliance with the treatment plan.] According to Gou-Leonhardt, this provision of the statute gives wellness court judges the authority to ignore "any other provision of law" -including the provisions of law governing the enforcement of plea agreements-when sentencing a defendant who has successfully completed the wellness court program. In other words, Gou-Leonhardt argues that wellness court judges have the authority to impose any sentence they want in this cireamstance. When construing a statute, we look to three primary factors: "the language of the statute, the legislative history, and the legislative purpose behind the statute." None of these factors supports Gou-Leonhardt's expansive reading of AS 28.35.028(b). Under the normal rules of statutory construction, the meaning of an unclear word or phrase in a statute may be gleaned from the words associated with it. Here, the clause in question is preceded by the phrase "notwithstanding Rule 35 [of the] Alaska Rules of Criminal Procedure," and is followed by the clause that authorizes the wellness court judge to reduce a defendant's sentence "[even] after the period when a reduction of sentence is normally available." Thus, when read in context, the clause "notwithstanding Rule 35 [of the] Alaska Rules of Criminal Procedure, and any other provision of law" speaks only to a wellness court judge's authority to modify a defendant's sentence outside the time limits otherwise imposed by Alaska law. The legislative history directly supports this reading of the statute. In an uncodified section of the 2006 session law that enacted the wellness court statute, the Legislature declared that AS 28.35.028(b) "has the effect of amending Rule 35, Alaska Rules of Criminal Procedure, by allowing a court to consider and reduce a criminal sentence outside of the time periods currently provided by that rule. This interpretation is also supported by the remaining provisions in AS 28.35.028(b), which grant wellness courts the authority to depart from otherwise mandatory minimum sentences and otherwise applicable presumptive sentence ranges under certain ciream-stances. These grants of authority would not be necessary if, as Gou-Leonhardt contends, the wellness court judge already had unlimited authority to reduce the defendant's sentence "notwithstanding . any provision of law" to the contrary. Finally, we note that Gou-Leonhardt's interpretation is inconsistent with the underlying policy goals of the wellness courts. The Legislature created the system of wellness courts because it recognized that this form of intensive treatment and rehabilitation could serve the public interest and enhance public safety as well, if not better, than incarceration or other more traditional forms of punishment. If we interpreted AS 28.85.028(b) as Gou-Leonhardt proposes-as granting the wellness court judge the power to unilaterally alter a plea agreement that has already been accepted and executed-then the State could never be sure that it would receive the bargained-for benefits of its plea agreement with wellness court defendants. The predictable result would be an increased reluctance on the part of the State to make such plea agreements. And because no defendant can enter a wellness court program without the State's consent, this would probably mean a substantial reduction in the number of defendants in wellness courts-a result clearly at odds with the Legislature's intent. Accordingly, we conclude that AS 28.85.028(b) requires the wellness court judge to enforce the terms of a plea agreement entered into by the State and a defendant. Here, the plea agreement between the State and Gou-Leonhardt specified the sentence that Gou-Leonhardt would receive if he successfully completed the Fairbanks Wellness Court program. The superior court was required to impose this agreed-upon sentence, and therefore the court correctly denied Gou-Leonhardt's request for a suspended imposition of sentence. Conclusion The judgment of the superior court is AFFIRMED. . AS 28.35.030(a)(1), (n). . See AS 12.55.085. . For a description of the Fairbanks Wellness Court program, see Alaska Court System, Fairbanks Wellness Court, http://courts.alaska.gov/ fairbanksct.htm,/ (last visited Feb. 24, 2014). . AS 28.35.028(a). . AS 28.35.028(b). . Id. . Id. . See also Alaska R.Crim. P. 11(e)(2) (requiring the court to impose sentence in accordance with plea agreement); cf. Wooley v. State, 221 P.3d 12, 20 (defendant may not seek "selective enforcement" of only favorable terms of a plea agreement). . Oels v. Anchorage Police Dep't Employees Ass'n, 279 P.3d 589, 595 (Alaska 2012) (quoting Shehata v. Salvation Army, 225 P.3d 1106, 1114 (Alaska 2010). . Dawson v. State, 264 P.3d 851, 858 (Alaska App.2011) (citing 2A Norman J. Singer, Sutherland's Statutes - and - Statutory - Construction § 47.16, at 356-57 (7th ed.2007)). . See, eg., Alaska R.Crim. P. 35(b) (a sentencing court may only reduce a defendant's sentence within 180 days after the distribution of the judgment); Alaska R.Crim. P. 35(g) (even though a court normally has the authority to relax a procedural deadline under Alaska Criminal Rule 53, a sentencing court may only relax the 180-day deadline specified in Rule 35(b) by ten days). . Ch. 56, § 8, SLA 2006. . AS 28.35.028(b) goes on to state: [When reducing a sentence, the court (1) may not reduce the sentence below the mandatory minimum sentence for the offense unless the court finds that the defendant has successfully complied with and completed the treatment plan and that the treatment plan approximated the severity of the minimum period of imprisonment, and (2) may consider the defendant's compliance with the treatment plan as a mitigating factor allowing a reduction of a sentence under AS 12.55.155(a). . These grants of authority are analogous to a court's authority under AS 12.55.025(c) and Nygren v. State, 658 P.2d 141, 146 (Alaska App.1983), to grant jail-time credit for time spent under court order in a rehabilitation program that has conditions approximating incarceration, and to a court's authority under AS 12.55.155(a) to impose sentence below the presumptive range based on the existence of statutory mitigating factors. . See Minutes of House Judiciary Committee, House Bill 441, remarks of Representative Tom Anderson, 2:45:17 p.m. (Feb. 24, 2006). . We do not reach the question of whether a suspended imposition of sentence would be available in the absence of a plea agreement specifying the defendant's sentence. - See AS 28.35.028(h)(2) ("sentence" or "sentencing" includes a suspended imposition of sentence as authorized under AS 12.55.085). But see AS 28.35.030(b)(2)(B), (n)(2)(B); AS 28.35.032(g)(2)(B), (p)(2)(B) (prohibiting suspended imposition of sentences for driving under the influence and refusal convictions).

6955388

Richard A. MATTOX, Appellant, v. STATE of Alaska, DEPARTMENT OF CORRECTIONS, Appellee

Mattox v. State, Department of Corrections

2014-04-18

No. S-14587

23

30

323 P.3d 23

323

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:19:49.086852+00:00

CAP

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

Richard A. MATTOX, Appellant, v. STATE of Alaska, DEPARTMENT OF CORRECTIONS, Appellee.

Richard A. MATTOX, Appellant, v. STATE of Alaska, DEPARTMENT OF CORRECTIONS, Appellee. No. S-14587. Supreme Court of Alaska. April 18, 2014. Benjamin I. Whipple, Palmer, for Appellant. Susan M. West, Assistant Attorney General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Appellee. Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.

4140

25794

OPINION FABE, Chief Justice. I. INTRODUCTION A former inmate brought an action against the Department of Corrections alleging that the Department negligently failed to protect him after he reported being threatened and that he was subsequently assaulted and seriously injured while in prison. The superior court granted summary judgment in favor of the Department, concluding that the inmate had not shown that a genuine issue of material fact existed on the question whether the Department breached its duty to protect him from reasonably foreseeable harm. Specifically, the superior court concluded that the inmate's communication of the threat was too general to put the Department on notice that the inmate was at risk for the attack he suffered. The inmate appeals. We conclude that the inmate presented evidence that, taken as a whole, raised a genuine issue of fact as to the foreseeability of the attack he suffered. We therefore reverse the superior court's grant of summary judgment. II. FACTS AND PROCEEDINGS A. Facts Richard Mattox was incarcerated at Spring Creek Correctional Center, housed in the Kilo module. Mattox, who is white, alleges that his then-cellmate, Aaron, who is African-American, repeatedly made threats of a racial nature. According to Mattox, Aaron made statements to the effect of "I don't like you. Your people were killing my people back in the day. You've got to get out or something's going to happen." According to Mattox, Aaron threatened him "every time [they] were together in [their cell." Mattox understood the threat to mean that violence could come from any of "[Aaron's] people; that is, the black inmates in the mod{ule]." Mattox believed that the black inmates "wanted [him] out of the mod{[ule]." Mattox alleges that he made multiple requests to two different officers to be moved out of the Kilo module. He reports that he told the guards that the module was "too tough for [him]." Mattox was 47 years old, and he feared trouble with the "cocky, young" inmates housed there. He was particularly fearful of Aaron and Aaron's friends. Mattox claims that he submitted written transfer requests ("cop-outs") to prison officials in which he reported his fear, and that these documents are now missing from his prison file. Mattox claims that the Department of Corrections denied his requests, and he was not transferred from the Kilo module. Mattox also asserts that an officer responded to one of his transfer requests by saying: "There are racial tensions in here and you're going to have to work it out." On July 22, 2007, Mattox was watching television in a common area with several other inmates. No guard was posted in the common area. The security cameras in the room had been out of order for some time. Another inmate, Vincent Wilkerson, was seated in the row of chairs in front of Mattox. Mattox alleges that Wilkerson, who is African-American, was a friend of Aaron; the two played basketball together and ate together. At some point during the television show, Wilkerson turned around and told Mattox to "[slhut the f...k up." Mattox turned to the inmate seated next to him and asked whether Wilkerson had been speaking to him. When Mattox turned back, Wilkerson was standing in front of him and suddenly punched Mattox in the left cheek. Mattox sought help from a corrections officer in an adjacent room. Mattox had not had any previous interaction with Wilkerson and could not identify him by name. The blow to Mattox's face caused bilateral orbital fractures, a sinus fracture, and a nasal fracture. Mattox was hospitalized for treatment of his injuries, undergoing surgery that included the placement of six titanium plates and 200 titanium screws in his skull He asserts that he continues to suffer from sinus and visual problems associated with the injuries. B. Proceedings After his release from prison, Mattox filed suit in connection with the attack by Wilkerson, alleging that the Department was negligent in various ways. The Department moved for partial summary judgment on certain claims, and the superior court granted partial summary judgment, leaving intact Mattox's general claim that the Department failed to protect him after he put the Department on notice of the threat to his safety. The Department then moved for summary judgment on the remaining claim. After hearing oral argument, the superior court granted summary judgment in favor of the Department, reasoning that "Mattox has failed to show a material fact exists that the [Department] was placed on notice of a specific threat of harm against Mattox." Mattox filed a motion for reconsideration, concerned that the court's order did not address his argument "that the [Department] should be estopped from contending that [Mattox's] transfer requests provided the [DJepartment with [an] insufficiently-specific threat of harm since his written requests were misplaced while in the [Department's] custody and control." The motion was denied, and the superior court dismissed Mattox's claim against the Department with prejudice. Mat-tox appeals. III. STANDARD OF REVIEW As we recently explained: We review a grant of summary judgment de novo. We review the facts in the light most favorable to the non-moving party and draw all factual inferences in the non-moving party's favor. A grant of summary judgment is affirmed when there are no genuine issues of material fact, and the prevailing party . [is] entitled to judgment as a matter of law.... Whether the evidence presented a genuine issue of material fact is a question of law that we independently review."[ ] Summary judgment is generally disfavored on disputed questions of tort duty. We have held that summary judgment is appropriate "where the only reasonable inference from the undisputed facts is that one party owed another no duty whatsoever-or owed a duty clearly and vastly narrower in scope than the one that the other party asserts in opposing summary judgment." However, "[in cases where no one disputes the existence of a duty running from one party to another, we have disfavored summary adjudication of the precise seope of that duty, or of whether particular conduct did or did not breach it (Me., constitute negli-genee)." IV. DISCUSSION A. The Department Has A Duty to Protect Inmates In Its Care From All Reasonably Foreseeable Harm. The Department of Corrections owes a duty to inmates to exercise reasonable care for the protection of their lives and health. We have not previously considered whether assaults by other inmates fall within the seope of a jailer's duty to protect, but our precedents point in that direction, permitting liability even for intentional harmful acts, including assault by prison staff as well as suicide. There is no persuasive legal or policy argument why violence between persons in the Department's custody should be treated differently. Courts in other jurisdictions considering this issue have reached the same conclusion as we do here. As the New York Court of Appeals observed in a prisoner assault case, assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard inmates, even from attacks by fellow inmates." Kansas's high court came to a similar conclusion in a case where the victim was not even in prison but had merely been placed in handcuffs on a city sidewalk when he was attacked by a person from whom an attack was not unforeseeable. And the Department does not contest the general proposition that the duty to protect encompasses the duty to protect inmates from reasonably foreseeable assaults by other inmates. Mattox's case, therefore, does not present a situation in which "one party owed another no duty whatsoever-or owed a duty clearly and vastly narrower in seope" than the one the non moving party asserts in opposing summary judgment." Rather, the dispute here is over the precise scope of that duty. The Department contends that prison officials are required to act only when a report of a threat communicates an "immediate, identifiable, and specific danger." According to the Department, anything less is insufficient as a matter of law to make an attack reasonably foreseeable. In support of this argument, the Department draws our attention to numerous federal cases in which courts have rejected claims arising from inmate-on-inmate violence because of the lack of specificity or imminence of the alleged threats. But the Department's authority for its position is primarily cases brought either pursuant to 42 U.S.C. § 1988 or as Bivens actions under the United States Constitution. Without making any attempt to distinguish between the relevant federal law and Alaska's tort law, the Department declares that "inmates are entitled to relief only when their injury is objectively serious and prison officials act with deliberate indifference to the inmate's safety" (emphasis in original). We reject this proposed standard. As the superior court also recognized, the "deliberate indifference" standard simply does not apply to a state-law negligence claim. The Department has provided no convincing rationale for why we should replace our negligence standard with the deliberate-indifference standard in the prison context. Nor has the Department explained why reasonable foreseeability requires communication of an "immediate, identifiable, and specific danger." Evidence of specific warnings that identify potential assailants would certainly help to raise a genuine issue of fact as to foreseeability, as would evidence of an immediate threat of harm. But a threat need not meet the requirements set out in the Department's exacting formulation to be reasonably foreseeable. Traditional negligence law does not require that, and we decline to depart from the well-established standard. We instead reaffirm our prior holding that a jailer has a duty to protect prisoners in its care from all reasonably foreseeable harm. The scope of the Department's duty under our negligence standard will be determined by the factual cireumstances. There are many circumstances in which an attack might not be reasonably foreseeable. As we have recognized, the duty to protect is not limitless-the prison "should not be the insurer of the prisoner's safety." - But there are also cireumstances, including some reports of threats, which could make an attack reasonably foreseeable. The question before us is whether Mattox has raised a genuine issue of fact as to the foreseeability of the attack by Wilkerson; if so, then resolving the case on summary judgment was improper. B. It Was Error To Grant Summary Judgment For The Department. The superior court properly rejected the Department's incorrect formulation of the standard, but it was error to conclude that the attack by Wilkerson was unforeseeable as a matter of law even under the correct standard of reasonable foreseeability. If Mattox had failed to present any evidence of a connection between the information of which the Department was on notice and the attack by Wilkerson, summary judgment might have been appropriate here. That is, if the assault were entirely unrelated to the threat of harm about which the Department was on notice, holding the Department liable might indeed make the Department the "insurer of the prisoner's safety." The only limit on the Department's liability in that case would be the self-control of its inmates, as any attack by one inmate on another could be deemed reasonably foreseeable. But Mattox did provide evidence of a connection. He described circumstances in the module that, taken as a whole, raise a factual question as to the foreseeability of the attack he suffered. He claims that he told the officers that the module was "too tough for [him]." He says he told them that he feared trouble with the "cocky, young" inmates there. - And although his allegation is phrased ambiguously, he seems to claim that he told officers that he was afraid of "his roommate or his roommate's friends" and that Aaron was "friends with . Wilkerson" and associated with him on the basketball court and at mealtimes. These last claims are key factual assertions that the superior court appears to have overlooked. If prison officials were on notice of Mattox's fear of Aaron's friends and of Aaron's friendship with Wilkerson, they had considerably more notice of the risk of attack than if all they knew was that Mattox generally feared for his safety. Mattox's identification of his potential _ attackers-Aaron _- or - Aaron's friends-makes foreseeability a much closer question. Mattox further asserts that prison officials were aware specifically of racial tension in the module and put the burden on Mattox to defuse it (or handle the consequences if he could not). According to Mattox, an officer remarked on the racial tension in the module on several occasions. Mattox alleges that in response to one of his complaints, an officer told him: "There are racial tensions in here and you're going to have to work it out." The response suggests that a Department official not only knew of racial tension, but also told Mattox that he would have to address the problem if he were to avoid trouble. This acknowledgment of the need for Mattox to take some action clashes with the Department's claim that an attack on Mattox was completely unforeseeable; if there was no foreseeable risk of harm, there would be no need for Mattox to "work it out." The Department attempts to isolate particular facts which, taken alone, may have been insufficient to put the Department on notice of the attack that Mattox suffered. For example, the Department stresses that Mattox did not identify Wilkerson in advance, making much of Mattox's statement in his affidavit that he "couldn't explain in what form the violence would come, or from whom exactly, or when, because [he] didn't know this [himself]." The Department argues that because Mattox could not identify Wilkerson as his potential assailant (and could not name him after the attack), the attack was unforeseeable as a matter of law. The Department also focuses on Mattox's allegation that there was racial tension in the module, arguing that evidence of the mere existence of racial tension is too vague to trigger the Department's duty to protect. The Department may be correct that each of these facts, viewed alone, could be insufficient to create a genuine factual dispute as to foreseeability. And it is true that if Mattox had been able to identify Wilkerson as his potential assailant, or had provided evidence that Wilkerson bore racial animosity toward him, his evidence of foreseeability would be even stronger. But the fact that Mattox could not provide the level of detail that the Department would desire does not make the attack unforeseeable as a matter of law. The Department's duty to protect is not limited by an inmate's inability to predict the precise nature and time of the assault, or the identity of his attacker. As the New York Court of Appeals recognized in Sanches, "[the inmate's] testimony that the attack came as a complete surprise to him cannot be the measure of the duty of the State, as his custodian, to safeguard and protect him from the harms it should reasonably foresee." In determining the scope of the Department's duty, we consider all of the cireumstances of which the Department was on notice, including the racial atmosphere of the module, information about inmate relationships, and Mattox's identification of potential assailants. When we consider all of these cireumstances-in particular Mattox's assertions that he reported that he feared Aaron's friends and that Wilkerson was one of Aaron's friends-we conclude that Mattox has raised a genuine issue of fact as to foreseeability. We recognize that the precise substance and extent of Mattox's communications to prison officials remain somewhat unclear because his discovery responses on certain issues are ambiguous. But his statement that "particularly, [he] was afraid of trouble from his roommate or his roommate's friends" closely follows his assertions that "[rlequests were made to [correctional officers]" and that "[hlis requests were refused." We must give him the benefit of reasonable inferences, and the question of the notice provided to the correctional officers is a factual question to be developed at trial. Our summary judgment standard requires that we view the available facts in the light most favorable to Mattox as the non-moving party. Viewing these facts in that. light, we conclude that Mattox raised a genuine issue of fact as to whether the Department was on notice of the risk of attack not only from Mattox's cellmate, Aaron, but also from other inmates associated with Aaron. v. CONCLUSION The judgment of the superior court is REVERSED, and this case is REMANDED for further proceedings consistent with this opinion. . - Kalenka v. Jadon, Inc., 305 P.3d 346, 349 (Alaska 2013) (first omission and alteration in original) (footnotes and internal quotation marks omitted). . See Arctic Tug & Barge, Inc. v. Raleigh, Schwarz & Powell, 956 P.2d 1199, 1203 (Alaska 1998). . Id. . Id.; see also Maddox v. River & Sea Marine, Inc., 925 P.2d 1033, 1035 (Alaska 1996) (observing that summary judgment frequently is improper on negligence issues, including foreseeability and scope of duty, because of "the highly circumstantial judgments" that must be made}. . Wilson v. City of Kotzebue, 627 P.2d 623, 628 (Alaska 1981). . BR. v. State, Dep't of Corr., 144 P.3d 431, 435-36 (Alaska 2006) (reversing grant of summary judgment to the Department on claim that the Department negligently failed to protect plaintiff from sexual assault after she notified the Department she had previously been sexually assaulted by the same medical technician and requested protection); Joseph v. State, 26 P.3d 459, 471 (Alaska 2001) (explaining that an intentional act of suicide may not be a superceding cause, relieving the jailer of a duty to prevent that act, if the act was reasonably foreseeable). . See, eg., Jackson v. City of Kansas City, 263 Kan. 143, 947 P.2d 31, 44 (Kan.1997) (affirming denial of summary judgment for state in negligence suit by man handcuffed and placed on ground by police officers and subsequently attacked by person with whom police knew he had been fighting); see also Butler ex rel. Biller v. Bayer, 123 Nev. 450, 168 P.3d 1055, 1063-64 (2007) (explaining that "prisons and prison officials must exercise reasonable and ordinary care to prevent violence between inmates," in negligence suit arising from attack on inmate previously involved in brawl); Sanchez v. State, 99 N.Y.2d 247, 754 N.Y.S.2d 621, 784 N.E.2d 675, 678 (2002) (rejecting summary judgment for state in negligence suit brought by maximum security prison inmate attacked by unknown persons). . Sanchez, 754 N.Y.S.2d 621, 784 N.E.2d at 678. . Jackson, 947 P.2d at 41. . Arctic Tug & Barge, Inc. v. Raleigh, Schwarz & Powell, 956 P.2d 1199, 1203 (Alaska 1998). . See, eg., Dale v. Poston, 548 F.3d 563 (7th Cir.2008). . 42 U.S.C. § 1983 (2006) provides, in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.... . See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (establishing that damages are available from federal officers to vindicate constitutional guarantees). . In addition to the § 1983 and Bivens cases, the Department cites a selection of cases dealing with state-law negligence claims, but we find the authority unpersuasive. The case with perhaps the most relevance to this case, Baker v. State, Dep't of Rehab. & Corr., 28 Ohio App.3d 99, 502 N.E.2d 261 (Ohio App.1986), provides facts too thin to make any meaningful comparison, and furthermore is a case that was decided after trial, not at the summary judgment stage. . As the Seventh Circuit has explained, a plaintiff's burden on a negligence claim is far less than his burden on a § 1983 deliberate-indifference claim. Whereas [plaintiff] hals} to show that . officers knew about a substantial risk to [his] health and safety to sustain a § 1983 claim, negligence law exists to deal with the very types of allegations [plaintiff] made here-that certain individuals should have acted differently in light of the duties applicable to them, and that their failure to abide by the relevant standard of care caused [plaintiff] personal injury. Grieveson v. Anderson, 538 F.3d 763, 780 (7th Cir.2008) (emphasis in original) (internal citations omitted); see also Dale v. Poston, 548 F.3d at 571 (affirming summary judgment in Bivens action where inmate provided officers only general information about a threat of violence against him, and noting that more than negligence by officers is required to prove violation of Eighth Amendment). We also note that in one of the federal cases in the Department's string of citations, Cooper v. Bush, No. 3:06-CV-653 J-32TEM, 2006 WL 2054090 (M.D.Fla. July 21, 2006), the court rejected the inmate's allegation of danger largely on the basis that in several of the more than 70 frivolous cases the inmate had filed in that court, he claimed to have committed suicide already and threatened to "do it again" if his concerns were not addressed. Id. at * 1 n. 3. . See Sanchez v. State, 99 N.Y.2d 247, 754 N.Y.S.2d 621, 784 N.E.2d 675, 679 (2002) ("'The strict requirement of specific knowledge for foreseeability . redefines the traditional standard of reasonableness that has long been the touchstone of the law of negligence, and it cuts off consideration of other factors that have previously been found relevant to foreseeability."). . See Joseph v. State, 26 P.3d 459 (Alaska 2001). . See Wilson v. City of Kotzebue, 627 P.2d 623, 628-29 (Alaska 1981) ("[The amount of care required must be commensurate with the amount of risk or responsibility involved, Le., it is what is reasonable and prudent under the circumstances.") (citation omitted). . Joseph, 26 P.3d at 477. . See, eg., B.R. v. State, Dep't of Corr., 144 P.3d 431, 435 (Alaska 2006) (noting that the Department had a duty to protect an inmate from sexual assault by an employee whom the inmate had alleged had sexually assaulted her before); see also Grieveson, 538 F.3d at 768-69, 780 (reversing a grant of summary judgment to the state on a claim that the state negligently failed to protect where plaintiff requested a transfer because he believed he was at risk and had submitted complaints after several previous attacks). . Kalenka v. Jadon, Inc., 305 P.3d 346, 349 (Alaska 2013). We emphasize that the inquiry into reasonable foreseeability is necessarily fact-based and that this single legal standard will result in different conclusions in different cases. There is limited value, therefore, in relying on cases in which courts applying the reasonable foreseeability test have found that a particular assault was not foreseeable under the circumstances. The superior court relied on Cupples v. State, 18 Kan.App.2d 864, 861 P.2d 1360 (1993), a case that is similar in some respects to the present case but is factually distinguishable. In that case, an inmate was attacked by another inmate with whom she had never had any problems. Id. at 1363-64. As in Cupples, Mattox did not anticipate violence from the attacking inmate and did not warn prison officials about that person in particular. But in Cupples there was no meaningful link between the reported threat and the eventual attack; the only connection was that the attack occurred in the room of an inmate who had once threatened Cupples (but with whom Cupples had later reconciled). Id. at 1363. As we discuss below, Mattox makes out a more substantial connection, making summary judgment improper here. . Although the Department disputes whether Mattox submitted requests to transfer, we must draw all factual inferences in favor of Mattox. Kalenka, 305 P.3d 346, 349 (Alaska 2013). . Joseph, 26 P.3d at 477. . Sanchez v. State, 99 N.Y.2d 247, 754 N.Y.S.2d 621, 784 N.E.2d 675, 679 (2002). . Mattox also contends that because the Department lost his written transfer requests, the Department should be estopped from complaining of any deficiencies in the notice of harm. The Department correctly notes that Mattox's claim is better understood as one of spoliation of evidence. See Doubleday v. State, Commercial Fisheries Entry Comm'n, 238 P.3d 100, 106 (Alaska 2010); see also Sweet v. Sisters of Providence in Wash., 895 P.2d 484, 490-93 (Alaska 1995). This will be a matter for the trial court to address on remand. But in evaluating Mattox's motion for summary judgment, we draw all reasonable factual inferences in his favor. Thus, even without production of the written transfer requests, we must assume that Mattox requested a transfer. We have assumed the truth of Mattox's allegations, and on the basis of those allegations have concluded that summary judgment was improper.

10403332

Kenneth WOOD, Appellant, v. STATE of Alaska, Appellee

Wood v. State

1987-05-01

No. A-821

363

368

736 P.2d 363

736

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:15:56.629960+00:00

CAP

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

Kenneth WOOD, Appellant, v. STATE of Alaska, Appellee.

Kenneth WOOD, Appellant, v. STATE of Alaska, Appellee. No. A-821. Court of Appeals of Alaska. May 1, 1987. Sen K. Tan, Asst. Public Defender and Dana Fabe, Public Defender, Anchorage, for appellant. John A. Scukanec, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage and Harold M. Brown, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

3394

20748

OPINION BRYNER, Chief Judge. Kenneth Wood was convicted of two counts of sexual assault in the first degree, an unclassified felony. AS 11.41.410. He appeals his conviction and sentence. The state confesses error with respect to the sentence, conceding that Wood's sexual assaults were part of a continuous course of conduct? warranting a single sentence. See, e.g., Oswald v. State, 715 P.2d 276, 280 (Alaska App.1986). We affirm Wood's conviction but accept the state's concession of error and remand for amendment of the judgment to reflect only one conviction. Wood was convicted of sexually assaulting M.G. His defense was consent. It was undisputed that Wood and M.G. had been close friends for approximately six months before the alleged incident, which occurred on April 11, 1984. Wood described their relationship as sexual and testified that they had intercourse as often as ten to twelve times during the month of January. He conceded that the relationship was cooling in March, stating that they only had sexual relations on two or three occasions. In contrast, M.G. described the relationship as platonic. She conceded that on one occasion, while the two were intoxicated, they engaged in kissing and petting. However, she denied that they had ever engaged in sexual intercourse prior to the incident that led to the charges in the present case. As to the incident in this case, M.G. testified that she had been visiting a friend's house when Wood entered. Wood wanted to speak with her about their relationship. A short while later, M.G. agreed to accompany Wood to a local convenience store for cigarettes. After leaving the store, Wood became insistent about discussing his relationship with M.G. and appeared to be increasingly upset. He refused to take M.G. back to her friend's apartment. When M.G. tried to get out of Wood's car, he grabbed her hair, pulled her back in, and repeatedly slammed her head against the dash-board. Wood then took out a gun and threatened M.G. He drove her to her apartment and, after repeating his threats, he sexually assaulted her. As soon as Wood left the apartment, M.G. reported the incident to her boyfriend and to the police. M.G.'s account was corroborated by a physician's testimony concerning her appearance and injuries. Wood's testimony conflicted sharply with M.G.'s. For his part, Wood claimed that it was M.G. who had become upset when they went to the store for cigarettes. According to Wood, he and M.G. had argued. M.G. became hysterical and suddenly attempted to jump from the car when it was traveling at a high rate of speed. Wood pulled her back in, slapped her twice in an attempt to calm her, and drove to M.G.'s apartment. Eventually, M.G. calmed down and reconciled her differences with Wood. The couple then went into the apartment, where they engaged in consensual intercourse. Prior to trial, the state, relying on Alaska's rape-shield statute, AS 12.45.045, and on Alaska Rules of Evidence 403 and 404, moved for a protective order to prevent Wood from introducing evidence that M.G. had posed for Penthouse Magazine and that she had acted in x-rated movies. At an evidentiary hearing on the motion, Wood testified that, in October of 1983, M.G. first told him that she had posed for Penthouse. Wood had known M.G. for approximately three or four weeks at the time. In December of 1983, M.G. showed him the issue of Penthouse that contained her nude photographs. In Wood's view, M.G.'s demeanor while showing him the magazine was suggestive, and the pictures seemed to excite her. Wood also testified that M.G. told him she had acted in several x-rated movies. In addition, Wood testified that M.G. told him she had "made love with a guy three times — two or three times a day for $75 a time, in a room of mirrors so that people could take pictures." According to Wood, approximately one week later, M.G. approached him and said she wanted to have intercourse with him. Wood testified that his knowledge of M.G.'s activities led him to consider her promiscuous, however, it did not affect their relationship. Wood asserted that his sexual relationship with M.G. continued into March of 1984, until about a month before the alleged assault. After considering Wood's testimony, Superior Court Judge J. Justin Ripley granted the state's motion for a protective order. Judge Ripley reasoned that M.G.'s posing for Penthouse and acting in pornographic movies was irrelevant. He recognized that M.G.'s conduct in showing provocative pictures to Wood might be relevant under certain circumstances, but concluded that, in this case, its probative value was outweighed by the invasion of M.G.'s privacy and by the prejudice it might cause to the state's case. See A.R.E. 404(a). In Judge Ripley's view, Wood, by his own admission, did not allow M.G.'s prior conduct to affect his relationship with her. Nor did he claim that the prior conduct had any influence on his conclusion that M.G. had consented to sexual intercourse during the particular incident that gave rise to the prosecution. Judge Ripley based this conclusion on Wood's testimony that his actions on April 11 were part and parcel of a continuous sexual relationship with M.G. dating from December; it was on this relationship and not on prior conduct that Wood relied in forming his belief that M.G. had given her consent. In excluding the challenged evidence, Judge Ripley expressed particular concern that some members of the jury might be so prejudiced against M.G. for her prior activities that they would refuse to extend to her the protection of the law. In Judge Ripley's view, introduction of the evidence could divert the jury's attention from the relationship between M.G. and Wood to M.G.'s general character, in violation of the rape-shield statute and A.R.E. 404(a). Having reviewed the record, we conclude that Judge Ripley did not abuse his discretion in excluding this evidence. The primary purpose for which the evidence was offered was to show that, in the months prior to the alleged assault, Wood and M.G. had been involved in a relationship that was sexual, rather than merely platonic. The excluded evidence could have added little on this issue except by implying that M.G. was likely to have formed a sexual relationship with Wood because she was, by character, a promiscuous woman. Yet it is precisely this inference that is targeted as impermissible by Alaska's rape-shield statute and by Alaska Rule of Evidence 404(a)(2). Wood would certainly have been precluded from relying on this impermissible inference to establish directly that M.G. had consented to intercourse on the night of the alleged assault. There is no. reason why he should not have been similarly precluded from relying, on it on the. subsidiary and tangential issue of his ongoing relationship with M.G. In only one narrow aspect can the excluded evidence be viewed as something other than generalized proof of promiscuous character. It is arguable that M.G.'s willingness to discuss her past sexual conduct with Wood — as opposed to. the fact that she had actually engaged in the past conduct-might be probative of her willingness to form a sexual relationship with Wood. However, this relatively obscure theory of relevance, although focused on in the dissent, is not even mentioned by Wood. Wood offers only two theories of relevance. The first is that his knowledge of M.G.'s past conduct may have influenced his judgment as to M.G.'s consent during the alleged assault. This theory, however, is foreclosed by Wood's specific testimony that his relationship with M.G. was not influenced by his knowledge of her prior conduct. At any rate, the record makes it clear that this was simply not a case of crossed signals. The jury was faced with a clear choice between conflicting versions of the incident. If it accepted Wood's account, there was plainly consent; if it accepted M.G.'s, there plainly was not. Wood's second theory of relevance is more germane: it is that M.G.'s past conduct tends to corroborate his testimony that their relationship was sexual. In advancing this theory, however, Wood does not focus on the significance of the fact that M.G. was willing to discuss her past conduct with him. Rather, he relies only on the significance of the prior conduct itself. In other words, Wood's argument is precisely and exclusively that M.G.'s past promiscuity is relevant to show that she was probably more willing to form a sexual relationship rather than a platonic relationship with him. As argued in the appellant's brief: "What M.G. had done in the past is certainly a reflection of her attitude towards sex." As we have already pointed out, the inference of specific conduct from such a generalized showing of past promiscuity is exactly the type of inference precluded by Alaska law. Our conclusion in this regard is strongly supported by Kvasnikoff v. State, 674 P.2d 302 (Alaska App.1983), where we held similar evidence of past promiscuity to be irrelevant and inadmissible. Even assuming Wood had specifically relied on the relevance of M.G.'s willingness to talk to him about her past sexual conduct rather than on the relevance of the past conduct itself, his argument would not be persuasive. This narrow theory of relevance is attenuated, at best. Under this theory, the excluded evidence would have been relevant only to corroborate Wood's testimony concerning the nature of his ongoing relationship with M.G. This is an issue which, though perhaps not technically collateral, was certainly subsidiary to the central issues in the case. Wood was never precluded or restricted .from presenting other, more direct evidence corroborating his characterization of the relationship. He was, in fact, able to produce a significant amount of evidence to support his own •testimony in this regard. On balance, it is apparent that the realistic impact of the excluded evidence, had it been admitted, could only have been to impress the jury with the fact that the complaining witness was a person of questionable morals and .character. We conclude that exclusion of this evidence was justified under A.R.E. 404: Wood next argues that the prosecutor incorrectly instructed the grand jury on the elements of sexual assault — specifi cally, on the legal definition of consent. The record bears out Wood's contention. His failure to move to dismiss the indictment prior to trial is, however, fatal to this claim. Anthony v. State, 521 P.2d 486, 496 (Alaska 1974); Gaona v. State, 630 P.2d 534, 537 (Alaska App.1981). In any event, given M.G.'s testimony that Wood literally beat her into submission, it is unlikely that the grand jury would have refused to return an indictment even if it had been properly instructed that Wood's reckless disregard of M.G.'s lack of consent was an element of the offense. See Clifton v. State, 728 P.2d 649 (Alaska App.1986). Wood also argues that the trial court erred in permitting the state to violate a protective order regarding Wood's prior criminal history. Our review of the record establishes that Wood thoroughly exposed his criminal record to the jury on direct examination so that the state's action may have been appropriate. Even if the state committed error in cross-examining Wood, the error was harmless beyond reasonable doubt because any inadmissible evidence was cumulative of other similar evidence admitted without objection during Wood's cross-examination. Wood argues, finally, that the trial court erred in admitting testimony that one of his defense witnesses had been incarcerated with Wood on unrelated drug charges and in allowing that witness to be cross-examined about unrelated crimes. The state concedes error but contends that, in context, the error was harmless beyond reasonable doubt. We accept the state's concession of error. Dunbar v. State, 677 P.2d 1275 (Alaska App.1984). Given the trial court's strong curative instruction and the cumulative nature of most of the witness' testimony, we are, satisfied that this error was harmless. See McBeth v. State, 652 P.2d 120, 124-25 (Alaska App.1982). We are particularly impressed by the fact that the defense offered the witness' testimony to establish circumstantially that Wood and M.G. were lovers prior to the alleged sexual assault; the witness testified, however, that he believed M.G. and Wood were having a sexual relationship in October arid early November. Wood's own testimony conflicted with his account; Wood testified that he and M.G. had sexual relations for the first time on December 6, 1983. Thus, most of the observations related by the witness appear to have been contradicted by Wood, himself, in his direct testimony. The erroneous cross-examination of the witness could not have appreciably harmed Wood's case. . The judgment of the superior court is AFFIRMED in part and this case is REMANDED for resentencing. The court is directed, on remand, to impose a single sentence for Wood's conviction of first-degree sexual assault. . A.R.E. 404 provides, in relevant part: (a) Character evidence generally. Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except: (2) Character of victim. Evidence of a relevant trait of character of a victim of crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor, subject to the following procedure: (ii) The court shall conduct a hearing outside the presence of the jury in order to determine whether the probative value of the evidence is outweighed by the danger of unfair prejudice, confusion of the issues, or unwarranted invasion of the privacy of the victim. The hearing may be conducted in camera where there is a danger of unwarranted invasion of the privacy of the victim. (iv) In prosecutions for the crime of sexual assault in any degree and attempt to commit sexual assault in any degree, evidence of the victim's conduct occurring more than one year before the date of the offense charged is presumed to be inadmissible under this rule, in the absence of a persuasive showing to the contrary. . It is significant that Wood had already testified when this witness was called. Wood admitted that he had a criminal record and was a fugitive from justice. Consequently, cross-examination of the witness about being in jail with Wood did not have the effect of disclosing to the jury for the first time the fact that Wood was incarcerated.

10411892

Steven KNUTSON, Appellant, v. STATE of Alaska, Appellee; STATE of Alaska, Appellant, v. Steven KNUTSON, Appellee; Ronald E. GUDMUNDSON, Appellant, v. STATE of Alaska, Appellee; STATE of Alaska, Appellant, v. Ronald E. GUDMUNDSON, Appellee

Knutson v. State

1987-05-08

Nos. A-1420, A-1421, A-1430 and A-1431

775

781

736 P.2d 775

736

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:15:56.629960+00:00

CAP

Before COATS and SINGLETON, JJ., and WHITE, District Court Judge.

Steven KNUTSON, Appellant, v. STATE of Alaska, Appellee. STATE of Alaska, Appellant, v. Steven KNUTSON, Appellee. Ronald E. GUDMUNDSON, Appellant, v. STATE of Alaska, Appellee. STATE of Alaska, Appellant, v. Ronald E. GUDMUNDSON, Appellee.

Steven KNUTSON, Appellant, v. STATE of Alaska, Appellee. STATE of Alaska, Appellant, v. Steven KNUTSON, Appellee. Ronald E. GUDMUNDSON, Appellant, v. STATE of Alaska, Appellee. STATE of Alaska, Appellant, v. Ronald E. GUDMUNDSON, Appellee. Nos. A-1420, A-1421, A-1430 and A-1431. Court of Appeals of Alaska. May 8, 1987. Pamela Cravez, Asst. Public Advocate, Brant McGee, Public Advocate, Anchorage, for appellant and appellee Knutson. Paul E. Malin, Asst. Public Defender, Dana Fabe, Public Defender, Anchorage, for appellant and appellee Gudmundson. Maurice M. Richard and Mary Jane Sut-liff, Asst. Dist. Attys., Victor C. Krumm, Dist. Atty., Anchorage, and Harold M. Brown, Atty. Gen., Juneau, for State. Before COATS and SINGLETON, JJ., and WHITE, District Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

3182

19473

OPINION WHITE, District Court Judge, sitting by assignment. After a joint trial, Steven Knutson and Ronald E. Gudmundson were convicted by a jury of wanton waste of a big game animal, a class A misdemeanor. AS 16.30.-010(a). The offense carries a mandatory minimum sentence of seven consecutive days' imprisonment and a fine of not less than $2,500. AS 16.30.010(b). District Court Judge John D. Mason imposed fines of $1,250 each, and sentenced each defendant to fifteen days' imprisonment, with all but three and one-half days suspended. Knutson and Gudmundson appeal their convictions arguing that the court erred in rejecting their proposed jury instruction on omission liability. Knutson also appeals the court's denial of his pretrial motion for severance. The state appeals, contending that because the defendants each received half the mandatory minimum sentence, the sentences imposed are illegal. These cases have been consolidated on appeal. We affirm the convictions, but reverse the sentences. In early September 1985, the Fish and Wildlife Protection Division of the Alaska State Troopers (AST) received information that hunters had illegally taken dall sheep on Sheep Mountain, an area closed to hunting; a confidential informant gave AST the license plate number of the car used by the hunters. On September 3, Trooper Joseph M. Campbell attempted unsuccessfully to contact the owner of the vehicle, Steven Knutson, at his home and workplace. The following day, Knutson contacted Trooper Campbell and spoke briefly with him at the Fish and Wildlife Protection office. Knut-son then arranged to meet with Gudmund-son and Trooper Campbell. In a taped interview, Gudmundson and Knutson told Campbell that they had spot ted two rams on August 31 at Sheep Mountain. Knutson indicated that they had killed one ram and the other had gotten away. Gudmundson, with Knutson's help, drew a map indicating where they had abandoned the ram. Knutson indicated that after the animal was killed, it was gutted. Since it was getting dark, they decided to leave the carcass on the mountain and return for it the next morning. They traveled east to a nearby lodge to celebrate. Later, as they drove back, in the direction of Sheep Mountain, Knutson and Gudmundson, for the first time, saw signs indicating that they had been hunting in a closed area. Knut-son told Campbell that they were scared and, rather than retrieve the carcass, decided to return to Anchorage to figure out what to do. Following this interview, Trooper Campbell traveled to Sheep Mountain and, using the map drawn by Gudmundson, was able to locate the carcass, which by that time was spoiled. On September 16, Trooper Campbell contacted Gudmundson at his home and asked him who had actually shot the ram. Gudmundson told him that they did not know who had shot it, but that he, Gudmundson, had claimed the kill. Gud-mundson and Knutson were charged with wanton waste of a big game animal. I. SEVERANCE A. Untimely Motion On the day of trial, prior to jury selection, Knutson moved for severance under Alaska Criminal Rule 14, arguing that if his case were severed, he would be able to call Gudmundson as a witness. The court denied Knutson's motion, noting that it was untimely, and finding that Knutson's and Gudmundson's initial statements to Trooper Campbell constituted a joint confession in which each defendant acquiesced to the statement of the other. The court also found that the second statement made by Gudmundson to the trooper did not implicate Knutson, but instead, exonerated him. Criminal Rule 14 gives the court discretion to grant a severance. A trial court's decision to deny a motion to sever will be upheld absent an abuse of judicial discretion and a showing of prejudice to the defendant. Catlett v. State, 585 P.2d 553, 556 (Alaska 1978). Motions for severance must be raised prior to trial. Alaska R.Crim.P. 12(b)(4). Failure to make a timely motion for severance constitutes a waiver. Alaska R.Crim.P. 12(e). A trial court acts within its discretion when it denies a motion to sever filed on the first day of trial solely on the grounds of untimeliness. Wortham v. State, 689 P.2d 1133, 1136-39 (Alaska App.1984); but see Fox v. State, 685 P.2d 1267, 1268-71 (Alaska App.1984) (trial court's refusal to consider the merits of pretrial motion filed after the omnibus hearing, but before the actual start of trial was an abuse of discretion); see also Wainwright v. Sykes, 433 U.S. 72, 84, 97 S.Ct. 2497, 2505, 53 L.Ed.2d 594 (1977); Davis v. United States, 411 U.S. 233, 242, 93 S.Ct. 1577, 1582, 36 L.Ed.2d 216 (1973); 1 Wright, Federal Practice and Procedure: Criminal 2d, § 192-93 (1982). In the present case, there appears to have been no good cause for the delay in bringing this motion. Statements elicited at trial indicate that the cases were consolidated at arraignment, but that defense counsel did not attempt to sever because negotiations continued up to the day before trial. Counsel did not believe that this case would go to trial. Moreover, Knutson's desire to call Gudmundson as a witness on his behalf is not the kind of prejudice that would justify relief from prejudicial join-der. See Hawley v. State, 614 P.2d 1349, 1360 (Alaska 1980). We are satisfied that by waiting until the day of trial to move for severance, Knutson waived his ability to do so. We conclude that Judge Mason did not abuse his discretion by denying Knutson's motion for severance. B. Interlocking Confessions Knutson argues that as a matter of constitutional necessity, severance was required under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In Bruton, the Supreme Court held that the introduction of a codefend-ant's confession, inculpating Bruton, in a joint trial, when the codefendant did not take the stand, violated Bruton's right to confrontation under the sixth amendment. Alaska Appellate Courts have discussed the Bruton rule in several cases. E.g., Quick v. State, 599 P.2d 712 (Alaska 1979); Benefield v. State, 559 P.2d 91, 95 (Alaska 1977); Lemon v. State, 514 P.2d 1151, 1154-57 (Alaska 1973); Mead v. State, 504 P.2d 855, 857-60 (Alaska 1972). In Bene-field v. State, the supreme court discussed an exception to the Bruton rule. In that case, the court held that a police officer's testimony about a codefendant's statement which was exculpatory to Benefield did not violate the Confrontation Clause. 559 P.2d at 95. The United States Supreme Court in Lee v. Illinois, - U.S. -, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986), addressed the concerns that arise when a codefendant's confession inculpates a defendant. It stated: The true danger inherent in this type of hearsay is, in fact, its selective reliability. As we have consistently recognized, a codefendant's confession is presumptively unreliable as to the passages detailing the defendant's conduct or culpability because those passages may well be the product of the codefendant's desire to shift or spread blame, curry favor, avenge himself or divert attention to another. If those portions of the codefend-ant's purportedly "interlocking" statement which bear to any significant degree on the defendant's participation in the crime are not thoroughly substantiated by the defendant's own confession, the admission of the statement poses too serious a threat to the accuracy of the verdict to be countenanced by the Sixth Amendment. In other words, when the discrepancies between the statements are not insignificant, the codefendant's confession may not be admitted. Id. 106 S.Ct. at 2064-65. In the present case, both defendants, in a joint interview, indicated that they had been hunting on Sheep Mountain, and that they had both fired in the direction of two sheep. Knutson indicated that they "got one and another one got away." Knutson also told Trooper Campbell that when they realized that they had been hunting in a closed area, they did not return to get the carcass. Trooper Campbell testified that in a later, separate conversation, Gudmund-son indicated that they "both shot at it, but they don't know who actually killed it, that Mr. Gudmundson claimed it." Gudmundson's statement was not an attempt to shift blame onto Knutson or to divert attention from himself. Gudmund-son focused attention on himself by admitting that he claimed the animal. Moreover, Knutson's statements indicate joint action and lend reliability to Gudmundson's comment that they did not know who had actually killed the sheep. There is no real discrepancy between these statements. On the contrary, the confessions interlock significantly. We agree with Judge Mason's conclusion that the recorded statement taken during the joint interview was an interlocking confession. Additionally, Judge Mason's conclusion that Gudmundson's later statement was not inculpatory when viewed under the totality of the circumstances is not error. Therefore, we conclude that Judge Mason did not err in refusing to find that Bruton required severance. II. JURY INSTRUCTIONS Knutson and Gudmundson contend that Judge Mason erred in rejecting their proposed instruction on omission liability. The crux of Gudmundson's and Knutson's argument is that a jury cannot convict a person of wanton waste of a big game animal without first finding, beyond a reasonable doubt, that the individual killed the animal. The court rejected this argument, finding that a person who did not actually kill the animal could still be guilty of wanton waste and gave the following instruction: You are instructed that if two persons acting together both shoot at an animal at about the same time, with the intent of killing the animal, and the animal is killed, then both persons are responsible under AS 16.30.010(a), for killing the animal unless 1. It is clear which of the persons in fact killed the animal and that the other did not, or 2. One of the persons thereafter accepts responsibility for killing the animal and the other person reasonably believes he no longer has responsibility. Alaska Statute 16.30.010 imposes a duty to salvage on a person who kills a big game animal. It provides: Wanton waste of big game animals, (a) It is a class A misdemeanor for a person who kills a big game animal to fail intentionally, knowingly, recklessly or with criminal negligence to salvage for human consumption the edible meat of the animal. Thus, the real issue is what is meant by a person who "kills a big game animal." Since the term "kill" means to "cause the death of," the question is one of causation. Webster's Third New International Dictionary 1242 (1969). As a threshold matter, it is important to address the question of whether or not statutes which provide for legal accountability, AS 11.16.100-.110, apply to AS 16.30.010. Having reviewed the text of the applicable statutes, the commentary to the statutes, and the legislative history, we find no indication that the legislature intended to limit the application of AS 11.-16.100 or AS 11.16.110 to Title 11 offenses. In addition, we see no reasons in law or in policy for restricting the application of AS 11.16.100-.110. Moreover, the definitional section of Title 16, in discussing terms relating to mens rea, makes specific reference to AS 11.81.900(a)(l)-(4). AS 16.30.-030(2), (5), (6), (8). Therefore, we hold that the legal accountability statutes apply to fish and wildlife offenses. Although Judge Mason refused to give a specific accomplice liability instruction, his instruction served to inform the jury of accomplice liability. As argued below by the state, Knutson and Gudmundson could have been held liable for each other's acts under AS 11.16.110 which imposes legal accountability based on the conduct of another.. In Bowell v. State, 728 P.2d 1220 (Alaska App.1986), this court quoted the Commentary to the Model Penal Code in a discussion of the mens rea required for accomplice liability under AS 11.16.110: Subsection (3)(a) requires that the actor have the purpose of promoting or facilitating the commission of the offense, i.e., that he have as his conscious objective the bringing about of conduct that the Code has declared to be criminal. This is not to say that he must know of the criminality of the conduct; there is no more reason here to require knowledge of the criminal law than there is with the principal actor. But he must have the purpose to promote or facilitate the particular conduct that forms the basis for the charge, and thus he will not be liable for conduct that does not fall within this purpose. 728 P.2d at 1222, quoting, ALI, Model Penal Code and Commentaries, Part 1 § 2.06 at 310-11 (1985). Here, the evidence was uncontroverted that Knutson and Gudmundson shared a common purpose; to shoot sheep, although they may have been unaware of its illegality. Upon sighting two sheep, both fired, killing only one. It was also undisputed that once Knutson and Gudmundson discovered that they had hunted in a closed area, they agreed to abandon the carcass. We find that the instruction given, however inartfully worded and with no explanation of the proximate cause analysis which supports it, was consistent with a theory of accomplice liability. Such a theory was amply supported by the record in this case. We conclude that Knutson and Gudmundson could be convicted of wanton waste under an accomplice liability theory and that the factfinder did not have to first find that either one of them had actually killed the animal. III. SENTENCE APPEAL The state has appealed the sentence imposed in these cases as illegal given the mandate of AS 16.30.010, which provides: (b) If a person is convicted of violating this section and in the course of that violation failed to salvage from a big game animal at least the hind quarters as far as the distal joint of the tibia-fibula (stifle joint), the court shall impose a sentence of imprisonment of not less than seven consecutive.days and a fine of not less than $2,500. ' (c) The imposition or execution of the minimum sentence prescribed in (b) of this section may not be suspended under AS 12.55.080 or 12.55.085. The minimum sentence prescribed in (b) of this section may not be reduced. Judge Mason, over the state's objection, determined that under the facts of this case, the legislative intent behind the enactment would be served by splitting the mandatory minimum jail term and fine between Knutson and Gudmundson. The state contends that because the amount of unsuspended jail time is less than the minimum required by the legislature, the sentences are illegal. The state further contends that because the sentences are illegal, double jeopardy would not preclude resentencing Knutson and Gudmundson to the mandatory minimum sentences. KntftSon and Gudmundson argue that because the state has brought its sentence appeals under Appellate Rule 215, this court may disapprove the sentences as too lenient, but cannot increase the sentences. See AS 22.07.020(d). Knutson and Gud-mundson further contend that since the state.did not file a petition for review, it has waived its right to argue for correction of the sentences. Judge Mason's determination that the mandatory minimum sentence should be halved is unsupported by legal authori ty. Thus, the state's sentence appeal can be treated, on appellate review, as the equivalent of a petition for review under Appellate Rule 402(b)(2) and (3). State v. Price, 715 P.2d 1183, 1185-86 (Alaska App.1986). The double jeopardy clauses of the United States and Alaska Constitutions do not preclude us from vacating the sentences, and ordering the sentencing judge to impose the full mandatory minimum sentence and fine on both Knutson and Gud-mundson. State v. LaPorte, 672 P.2d 466, 468 (Alaska App.1983). Therefore, we AFFIRM the convictions, but VACATE the sentences. The case is REMANDED for resentencing for the imposition of the full mandatory minimum sentence and fine on both Knutson and Gudmundson. BRYNER, C.J., not participating. . The state argues that Knutson failed to preserve this issue for appeal because he did not renew his objection at the close of evidence. Since the severance motion was made on the day of trial and the court, at that time, decided that there was not a valid Bruton issue, we conclude that it was Unnecessary for Knutson to renew his objection in the middle of trial. See United States v. Kaplan, 554 F.2d 958, 965-66 (9th Cir.), cert. denied, sub nom Dolwig v. U.S., 434 U.S. 956, 98 S.Ct. 483, 54 L.Ed.2d 315 (1977). . Knutson and Gudmundson proposed the following instruction: Liability for the commission of an offense may not be based on an omission unaccompanied by action unless a duty to perform the omitted act is otherwise imposed by law. In order [sic] words, the duty to salvage the sheep specifically belongs to the killer of the sheep. Therefore, in order to convict a defendant of wanton waste, you must find that the defendant actually killed the sheep. . W. LaFave & A. Scott Handbook of Criminal Law, § 35 (1972), discusses criminal causation when two people try to kill the same person: Of course, in all these cases involving two assailants, if A and X are not acting independently, but are working together to cause B's death, one is as guilty as the other on general principles concerning accomplices in crime, no matter which one actually applies the coup de grace. LaFave & Scott, supra, at 250 (footnote omitted). . These statutes provide: Legal accountability based upon conduct. A person is guilty of an offense if it is committed by the person's own conduct or by the conduct of another for which the person is legally accountable under AS 11.16.110, or by both. AS 11.16.100. Legal accountability based upon the conduct of another: Complicity. A person is legally accountable for the conduct of another constituting an offense if (1) the person is made legally accountable by a provision of law defining the offense; (2) with intent to promote or facilitate the commission of the offense, the person (A) solicits the other to commit the offense; or (B) aids or abets the other in planning or committing the offense; or (3) acting with the culpable mental state that is sufficient for the commission of the offense, the person causes an innocent person or a person who lacks criminal responsibility to engage in the proscribed conduct. AS 11.16.110. . It is important to stress that neither Knutson nor Gudmundson objected to the specific instruction given. We do not, by this holding that it was not error to so instruct the jury, intend to give approval to the instruction.

10411945

STATE of Alaska, Appellant, v. Mark A. WEAVER, Appellee; Mark A. WEAVER, Appellant v. STATE of Alaska, Appellee

State v. Weaver

1987-05-08

A-1584, A-1616

781

783

736 P.2d 781

736

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:15:56.629960+00:00

CAP

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

STATE of Alaska, Appellant, v. Mark A. WEAVER, Appellee, Mark A. WEAVER, Appellant v. STATE of Alaska, Appellee.

STATE of Alaska, Appellant, v. Mark A. WEAVER, Appellee, Mark A. WEAVER, Appellant v. STATE of Alaska, Appellee. A-1584, A-1616. Court of Appeals of Alaska. May 8, 1987. Rehearing Denied June 1, 1987. Robert D. Bacon, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Harold M. Brown, Atty. Gen., Juneau, for the State of Alaska. William A. Davies, Asst. Public Defender, Fairbanks, and Dana Fabe, Public Defender, Anchorage, for appellee and appellant Weaver. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

1053

6651

OPINION COATS, Judge. A grand jury indicted Mark Weaver for first-degree misconduct involving weapons. AS 11.61.200(a)(3). The indictment charged Weaver with possessing a gravity knife. He moved to dismiss the indictment, contending that the statute was unconstitutionally vague. Superior Court Judge Gerald J. Van Hoomissen granted the motion and the state appeals. We reverse on the issue of the statute's constitutionality, but remand for further proceedings. A statute is impermissibly vague and violates due process if it is so indefinite that a person of ordinary intelligence would have to guess what conduct it prohibits. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983); Williford v. State, 674 P.2d 1329, 1330 (Alaska 1983). Our courts consider three factors in evaluating a statute's vagueness. First, we examine whether the statute provides adequate notice of the prohibited conduct. Second, we consider the statute's potential for arbitrary enforcement. Third, we determine whether the statute infringes on the first amendment right of freedom of expression. Summers v. Anchorage, 589 P.2d 863, 866-67 (Alaska 1979); Stock v. State, 526 P.2d 3, 7-9 (Alaska 1974). Weaver has conceded that there are no first amendment considerations at issue here. Alaska Statute 11.61.200(a)(3) makes it a felony to possess a "prohibited weapon." "Prohibited weapon" is defined in AS 11.-61.200(e)(1)(D) to include a "switchblade or gravity knife." Neither "switchblade" nor "gravity knife" is defined in the criminal law statutes. We find that the term "gravity knife" is not improperly vague. The term has a readily ascertainable and consistent definition. As commonly understood, a gravity knife is one in which the blade opens, falls into place, or is ejected into position by the force of gravity or by centrifugal force. Webster's Third New International Dictionary defines a "gravity knife" as "a switchblade knife in which the blade is sprung by a downward snap of the wrist." Webster's Third New International Dictionary of the English Language Unabridged, 993 (1963). Statutes of other states defining the term "gravity knife" are consistent with this straightforward definition. See, e.g., Colo.Rev.Stat. § 18-12-101(1 )(e) (1986); N.J.Stat.Ann. § 2C:39-1(h) (West Supp.1986); N.Y. Penal Law § 265.00(5) (McKinney 1980). Furthermore, in the Alaska Statute on prohibited weapons, the term "gravity knife" is used in conjunction with "switchblade knife." AS 11.61.200(e)(1)(D). The ordinary person is therefore put on notice that a "gravity knife" must be similar to a switchblade in operating automatically or semi-automatically. The pertinent characteristics which a switchblade and a gravity knife have in common are that they are easily concealed and quickly brought to bear. These characteristics are indicative of knives which are used as weapons, rather than tools. Some utility knives are quickly brought to bear, such as a fishing or hunting knife in a sheath, but are not easily concealed. Indeed, it is only when these utility knives are concealed that their possession is unlawful. AS 11.61.220(a)(1). An ordinary pocket knife may be carried concealed upon the person. AS 11.61.-220(a)(1). However, an ordinary pocket knife is incapable of being quickly brought to bear. Finally, we will not generally find a statute vague on the grounds that it is subject to arbitrary or discriminatory enforcement where there is no history of selective or arbitrary prosecution. Summers v. Anchorage, 589 P.2d 863, 868 (Alaska 1979); Levshakoff v. State, 565 P.2d 504, 507 (Alaska 1977); Morrow v. State, 704 P.2d 226, 233 (Alaska App.1985). Weaver has presented no evidence that the statute has a history of being discriminatorily enforced. Weaver also seems to argue that a statute which makes the possession of a gravity knife in one's home a crime, violates the right to privacy under the Alaska Constitution, article 1, section 22. The legislature may properly prohibit the possession of an object which "interferes in a serious manner with the health, safety, rights and privileges of others or with the public welfare." State v. Erickson, 574 P.2d 1, 21 (Alaska 1978). "No one has an absolute right to do things in the privacy of his own home which will affect himself or others adversely." Ravin v. State, 537 P.2d 494, 504 (Alaska 1975). The legislative commentary to AS 11.61.200, discussing the definition of "prohibited weapon," states: Such weapons have little or no legitimate function, are unnecessary for protection and are not commonly used for commercial or recreational purposes. Substantial risk of harm to others and the furtherance of crime result from private possession of such weapons. Commentary on the Alaska Revised Criminal Code, Senate Journal Supp. No. 47 at 101, 1978 Senate Journal 1399. The legislature could reasonably conclude that gravity knives have no legitimate purpose and are too dangerous to be casually possessed. Apparently, Judge Van Hoomissen never made a factual finding concerning whether or not the knife seized from Weaver was a gravity knife within the statute's meaning. We therefore remand for further proceedings. The superior court's judgment is REVERSED and this case is REMANDED for further proceedings consistent with this opinion. . Alaska Statute 11.61.220(a)(1) states: Misconduct involving weapons in the third degree. (a) A person commits the crime of misconduct involving weapons in the third degree if the person (1) knowingly possesses a deadly weapon, other than an ordinary pocket knife, that is concealed on the person. . Weaver also appeals the trial court's denial of his suppression motion which alleged that the search, during which the knife was seized, was illegal. Since the trial court dismissed the charges resulting from the search, the only "final judgment" in the case favored Weaver and we have no jurisdiction to hear this issue. AS 22.07.020; Alaska R.App. P. 202(b). Should the charges be reinstated and result in a conviction, Weaver may then appeal the denial of his suppression motion.

10417178

Louis D. HASTINGS, Appellant, v. STATE of Alaska, Appellee

Hastings v. State

1987-05-15

No. A-602

1157

1162

736 P.2d 1157

736

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:15:56.629960+00:00

CAP

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

Louis D. HASTINGS, Appellant, v. STATE of Alaska, Appellee.

Louis D. HASTINGS, Appellant, v. STATE of Alaska, Appellee. No. A-602. Court of Appeals of Alaska. May 15, 1987. Pamela Cravez, Asst. Public Advocate, and Brant McGee, Public Advocate, Anchorage, for appellant. David Mannheimer, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Harold M. Brown, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., COATS and SINGLETON, JJ.

2806

17849

OPINION COATS, Judge. Louis Hastings was convicted, based upon his pleas of no contest, of six counts of first-degree murder, and two counts of attempted murder. AS 11.41.100(a)(1); AS 11.31.100. At a hearing, Hastings presented evidence that he fell under the provisions of AS 12.47.030 and former AS 12.47.050, which provide for treatment of defendants found guilty but mentally ill. Judge Ralph E. Moody found that Hastings did not qualify as guilty but mentally ill. Judge Moody then proceeded to sentencing. Hastings moved to continue sentencing; Judge Moody denied the motion. He sentenced Hastings to six ninety-nine year terms for the first-degree murder convictions, and two twenty-year terms for the attempted murder convictions. All terms were to be served consecutively. Hastings appeals Judge Moody's findings, the denial of his motion to continue sentencing, and the sentence imposed. After sentencing, Hastings moved to withdraw his pleas, alleging that he had received ineffective assistance of counsel. Judge Victor D. Carlson was assigned to the hearing on Hasting's claim. Hastings moved to peremptorily challenge Judge Carlson. Judge Douglas Serdahely denied the motion. At the subsequent hearing, Judge Carlson found that Hastings had not received ineffective assistance of counsel. Hastings appeals the denial of his peremptory challenge and Judge Carlson's finding. We affirm the trial court's finding that Hastings did not qualify as guilty but mentally ill. We conclude that Judge Moody did not err in refusing to delay sentencing. We also affirm Hastings' sentences on the murder convictions. We vacate his sentences on the attempted murder convictions and remand for resentencing on those charges. We also remand for further proceedings to determine whether Hastings was improperly denied his right to peremptorily challenge Judge Carlson in post-conviction relief proceedings. We do not reach the issue of whether Hastings received ineffective assistance of counsel. Hastings' convictions arose from his attempt to kill all the residents of the small town of McCarthy, Alaska. The influx of money and people to Alaska disturbed Hastings. He decided to end these trends by disrupting the flow of oil through the Trans-Alaska pipeline. Having decided to blow up a pump station on the pipeline, Hastings concluded that it was necessary to kill all of McCarthy's residents to eliminate them as possible witnesses. In preparation for his plan, Hastings accumulated several firearms and at least 2,000 rounds of ammunition. He also manufactured a silencer for a pistol he intended to use. On March 1, 1983, as McCarthy's townspeople prepared to meet the weekly mail plane, Hastings systematically began killing them. He succeeded in killing six people and wounding two others. One victim escaped, after she was wounded, by eluding Hastings as he searched for her. The other surviving victim was able to escape by plane and alert state troopers. The troopers flew into McCarthy and captured Hastings as he attempted to escape on a snow-machine belonging to one of his victims. GUILTY BUT MENTALLY ILL FINDING A three-day hearing on the question of whether Hastings should be found "guilty but mentally ill" was held. Hastings presented one witness, Dr. Joseph Satten, a psychiatrist. The state presented two witnesses, Dr. David J. Coons and Dr. Irvin Rothrock; they are both psychiatrists. After hearing testimony from all three witnesses, as well as arguments from counsel, Judge Moody found that Hastings had not established that he was guilty but mentally ill. Judge Moody then approved the state's proposed findings of fact and conclusions of law. Alaska Statute 12.47.030(a) sets out the standard for a finding of guilty but mentally ill: A defendant is guilty but mentally ill if, when the defendant engaged in the criminal conduct, the defendant lacked, as a result of a mental disease or defect, the substantial capacity either to appreciate the wrongfulness of that conduct or to conform that conduct to the requirements of law. A defendant found guilty but mentally ill is not relieved of criminal responsibility for criminal conduct and is subject to the provisions of AS 12.47.050. The defendant has the burden of proving that he was guilty but mentally ill by a preponderance of the evidence. AS 12.47.-040(b); AS 12.47.060(a). Judge Moody made findings of fact supporting his decision. Unless these findings are clearly erroneous they must be approved. Troyer v. State, 614 P.2d 313, 318 n. 11 (Alaska 1980); Van Cleve v. State, 649 P.2d 972, 976 (Alaska App.1982). Both Dr. Rothrock and Dr. Coons testified that Hastings had the ability to conform his conduct to the requirements of the law. They testified that he did not suffer from any mental disease or defect which prevented him from forming the intent to kill. Dr. Satten testified that he did not believe that Hastings appreciated the wrongfulness of his conduct. Dr. Satten concluded that Hastings knew what he was doing, however, emotionally Hastings did not comprehend or appreciate the wrongfulness of his actions. Dr. Satten did believe that Hastings probably had the ability to conform his conduct to the requirements of the law. The facts of this case support Judge Moody's finding that Hastings' actions were planned over a long period of time and were carried out according to that plan. Judge Moody could reasonably rely on these facts and the opinions of Dr. Roth-rock and Dr. Coons in rejecting Dr. Sat-ten's analysis. We conclude that Judge Moody did not err in finding that Hastings did not establish that he was guilty but mentally ill. See Dolchok v. State, 519 P.2d 457 (Alaska 1974). REFUSAL TO DELAY SENTENCING At the conclusion of the hearing concerning Hastings' claim that he was guilty but mentally ill, Judge Moody announced that the sentencing hearing would immediately follow. Hastings' counsel moved to continue sentencing, arguing that he needed more time to prepare. Judge Moody denied this motion. Just prior to imposing sentence, Judge Moody gave Hastings a chance to exercise his right of allocution. Alaska R.Crim.P. 32(a). Hastings indicated that he had not had sufficient time to decide what he should say and needed more time to prepare. Judge Moody found that Hastings was attempting to manipulate the system by delaying sentencing. He proceeded to impose sentence. Hastings argues that Judge Moody erred in not granting a continuance of sentencing and that he was effectively denied his right of allocution. However, the record reflects that Judge Moody gave Hastings notice throughout the guilty but mentally ill hearing that sentencing would take place at the end of that hearing. Although Hastings was given the opportunity to explain why delay was necessary, Hastings never specifically indicated why he needed more time to prepare for sentencing or what information he might present. Hastings has not indicated on appeal specifically how he was prejudiced. The record reflects that the presentence report had been issued three months before sentencing. On this record, we conclude that Judge Moody did not err in refusing to delay sentencing. SENTENCE Judge Moody sentenced Hastings to serve six ninty-nine year sentences for the first-degree murder convictions. He imposed two twenty-year terms for the attempted murder convictions. Judge Moody imposed all of the sentences consecutively. Hastings argues that this sentence is excessive. Hastings contends, that his sentences on the attempted murder convictions are illegal. Attempted murder is a class A felony. AS 11.31.100(d)(1); AS 11.41.-100(b). The presumptive term for a first-felony offender convicted of a class A felony is seven years. AS 12.55.125(c)(2). Hastings has no prior felony convictions. Therefore, Judge Moody was required to impose the seven-year presumptive sentence unless he found aggravating or mitigating factors. McManners v. State, 650 P.2d 414, 416 (Alaska App.1982); see also AS 12.55.155. The state did not propose any aggravating factors and Judge Moody found none. Consequently, the record in this case does not support the twenty-year sentences for attempted murder. We therefore vacate the attempted murder sentences and remand for resentencing on those convictions. Even without considering the convictions for attempted murder, Hastings' sentence totals 594 years. Clearly, whatever final sentence Hastings receives, his sentence is essentially one of life imprisonment without possibility of parole. Therefore, we see no reason not to review his sentence for the murder convictions at this time. On appeal, a sentence will be affirmed unless clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). This court recently acknowledged that Alaska cases have consistently approved imposing maximum sentences for first-degree murder. Riley v. State, 720 P.2d 951, 952 (Alaska App.1986). In Nukapigak v. State, 663 P.2d 943 (Alaska 1983), the supreme court approved three consecutive ninety-nine year terms for first-degree murder convictions. The court stated: Given the heinous nature of Nukapigak's crimes and a record which is devoid of hope for his rehabilitation, we cannot say that consecutive ninety-nine year sentences are clearly mistaken. If a sentencing court has considered each of the Chaney criteria . the Alaska Constitution does not prohibit sentences which constitute, in effect, a lifetime of imprisonment without hope of parole. Until the legislature determines otherwise, consecutive ninety-nine year sentences are permissible, at the sentencing court's discretion, at least in exceptional cases such as this one. 663 P.2d at 946. Nukapigak's case is distinguishable from Hastings' because Nukapigak had a prior criminal history of serious assaultive behavior. 663 P.2d at 945. Hastings had no prior criminal record. However, given the facts in this case, we cannot find that Judge Moody was clearly mistaken in imposing a sentence of life imprisonment without the possibility of parole. The record supports Judge Moody's finding that the murders which Hastings committed were well planned over a long period of time and were carried out according to that plan. The nature of Hastings' plan and the number of victims involved are horrifying. This seems to us to be an exceptional case which clearly falls under the Nukapigak standard. We conclude that 'the murder sentences are not clearly mistaken. POST-CONVICTION RELIEF PROCEEDINGS Hastings was sentenced on July 27,1984. Sometime thereafter, Hastings filed a motion to withdraw his pleas, asserting that he had received ineffective assistance of counsel. Ultimately, an attorney was appointed to investigate Hastings' claim. At a preliminary hearing on November 27, 1984, Hastings moved to disqualify Judge Moody from hearing the case, on the ground that the judge might be called as a witness. Judge Moody refused to recuse himself. The parties' next court appearance was February 1,1985. This was apparently the scheduled date for a hearing on the merits of Hastings' claim. Judge Carlson presided at this hearing. Hastings asked if Judge Carlson's appearance as the trial judge meant that the motion to disqualify Judge Moody had been granted. Judge Carlson responded that it did not. Judge Carlson denied the renewed motion to disqualify Judge Moody. However, Judge Carlson indicated that he personally would conduct the hearing because Judge Moody had retired and was unavailable. Hastings then moved to peremptorily disqualify Judge Carlson. Judge Carlson indicated that he- would talk to the presiding judge in order to attempt to find another judge to hear the matter. On February 4, 1985, Judge Serdahely, the presiding judge, issued an order stating that Hastings' motion to challenge Judge Carlson was "untimely pursuant to Criminal Rule 25(d)(5)." He further stated that Hastings had "waived his right to peremptorily disqualify Judge Carlson." Judge Serdahely scheduled a hearing before Judge Carlson for March 6, 1985. On February 20, 1985, Hastings filed a motion for reconsideration of his request to challenge Judge Carlson. There was no ruling on this motion before the scheduled hearing on Hastings' post-conviction relief claim. At the March 6th hearing, Hastings asked Judge Carlson whether the motion for reconsideration had been denied. Judge Carlson informed the parties that there had not yet been a ruling. Hastings replied that because of the passage of time, he would assume that it had been denied. Therefore, he stated that he would appeal the denial. Hastings then requested that they not proceed in front of Judge Carlson. When Judge Carlson denied the request, Hastings' attorney stated that his client had instructed him not to proceed any further. Judge Carlson held the hearing without Hastings' participation. Judge Carlson found that Hastings had failed to show that he had received ineffective assistance of counsel and that Hastings' pleas were entered voluntarily, knowingly, and intelligently. Therefore, he denied the motion to withdraw pleas. Judge Serdahely formally denied Hastings' motion to reconsider, on March 19, 1985. On March 16, 1985, Hastings filed a pro se notiee of expedited appeal, pursuant to Alaska Appellate Rule 216(d). On March 28, 1985, Hastings submitted a memorandum in support of his motion. On April 24, 1985, the court clerk returned Hastings' pro se filings pursuant to Alaska Appellate Rule 514(f) because the Office of Public Advocacy (OPA) was then counsel of record. Apparently, however, OPA had not been assigned to represent Hastings until March 22, after Hastings had filed his notice of expedited appeal. On February 28, 1986, OPA, on Hastings' behalf, filed a motion in this court to accept a late filed expedited appeal. This court denied that motion. This court granted Hastings' subsequent motion to supplement his pre-existing appeal with this issue. The parties to this appeal assume that Hastings was entitled to a peremptory challenge in a post-conviction relief proceeding and that Alaska Appellate Rule 216 required that Hastings take an expedited appeal of the denial of his peremptory challenge. We question those assumptions but are unwilling to decide those issues; they have not been adequately briefed. Wren v. State, 577 P.2d 235, 237 n. 2 (Alaska 1978). The proper procedure for exercising a peremptory challenge in post-conviction relief proceedings and appealing the denial of a peremptory challenge in post-conviction relief proceedings is unclear. Therefore, on these facts and this briefing, we are unwilling to find that Hastings had no right to exercise a peremptory challenge or did not timely appeal the denial of his peremptory challenge. Hastings clearly indicated his intent to peremptorily challenge Judge Carlson and to appeal the denial of his peremptory challenge. On examining the record, we find that it is inadequate for us to determine why Judge Serdahely found that, on February 4, Hastings' motion was untimely and that Hastings had "waived his right to peremptorily disqualify Judge Carlson." We therefore remand to Judge Serdahely for clarification and redetermination of this issue. This case is REMANDED for further proceedings consistent with this opinion. . Alaska Criminal Rule 25(d)(1) allows a peremptory challenge in a criminal trial. Alaska Civil Rule 42(c) allows a peremptory challenge in a civil proceeding. Post-conviction relief procedures, are generally considered civil proceedings. Hensel v. State, 604 P.2d 222, 229 n. 22 (Alaska 1979); see also Alaska R.Crim.P. 35(i). Alaska Appellate Rule 216(b)(3) defines a peremptory challenge appeal as an appeal by a criminal defendant under Criminal Rule 25(d). It is therefore unclear whether a peremptory challenge in a post-conviction relief proceeding must be made under Criminal Rule 25 or Civil Rule 42, and whether an appeal from a denial of such a motion must be made on an expedited basis under Appellate Rule 216. We note that this is a case where the judge in the original criminal action did not conduct the post-conviction relief proceeding and that there is no claim that Hastings exercised a peremptory challenge in the original criminal case. . It appears as if Judge Serdahely might have been referring to a hearing on November 7, 1984, where Hastings appeared in front of Judge Carlson. We do not have a transcript of this hearing to determine whether this hearing actually was the basis for Judge Serdahely's decision. The state asks us to rule against Hastings on the grounds that there is an inadequate record for us to decide the issue. However, since we cannot know whether the November 7, 1984, hearing is the basis for Judge Serdahely's ruling, we are not inclined to default Hastings for designating an inadequate record. See Gardner v. State, 702 P.2d 250 (Alaska App.1985) (defendant's participation in a contested bail hearing in front of a judge did not waive the right to peremptorily challenge that judge under Criminal Rule 25(d)(5)). . We do not decide whether Judge Carlson properly denied Hastings' motion for post-conviction relief, since Judge Serdahely's clarification and redetermination of the denial of Hastings' peremptory challenge may make this issue moot. If Judge Serdahely again denies Hastings' motion, Hastings may then appeal Judge Carlson's finding as well as the denial of his peremptory challenge.

10358278

Theresa PEDERSON-SZAFRAN, Appellant, v. Douglas B. BAILY, Attorney General of the State of Alaska, Frank Baxter, Commissioner of Administration of the State of Alaska; and State of Alaska, Appellees

Pederson-Szafran v. Baily

1992-08-14

No. S-4257

124

129

837 P.2d 124

837

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:15:02.151835+00:00

CAP

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

Theresa PEDERSON-SZAFRAN, Appellant, v. Douglas B. BAILY, Attorney General of the State of Alaska, Frank Baxter, Commissioner of Administration of the State of Alaska; and State of Alaska, Appellees.

Theresa PEDERSON-SZAFRAN, Appellant, v. Douglas B. BAILY, Attorney General of the State of Alaska, Frank Baxter, Commissioner of Administration of the State of Alaska; and State of Alaska, Appellees. No. S-4257. Supreme Court of Alaska. Aug. 14, 1992. Robert M. Goldberg, Anchorage, for appellant. Randy M. Olsen, Asst. Atty. Gen., Fairbanks, Charles E. Cole, Atty. Gen., Juneau, for appellees. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

2941

18812

OPINION RABINOWITZ, Chief Justice. Theresa Pederson-Szafran (Szafran) appeals the dismissal of her complaint by the superior court. Szafran's complaint alleged wrongful termination and improper blacklisting from state employment and violation of her rights as an employee and citizen of the State of Alaska. She also claimed that she had exhausted her administrative remedies. FACTS & PROCEEDINGS Szafran was hired on October 14,1985 by the State of Alaska (State) to fill a paralegal position with the Department of Law in Barrow. In preparation for the job, Sza-fran was scheduled to receive training in the Fairbanks District Attorney's Office from October 14 through November 1, 1985. She was to report to work in Barrow on November 4, 1985. Upon commencing her employment Sza-fran was on probation for twelve months. The state cites Whaley v. State, 438 P.2d 718 (Alaska 1968), and 2 AAC 07.415 for the proposition that during the probationary period Szafran could be terminated without cause for any reason except one due to racial, religious, or political discrimination. On November 8, 1985, after three weeks of training and observation, Szafran was notified of her termination. Among the reasons given for her dismissal, her termination letter stated that "[djuring your training you demonstrated a marked lack of interest in the specific duties you would be required to perform, frequently absented yourself and failed to pay attention, making you unable to demonstrate that you had absorbed the information imparted to you." When Szafran was hired, probationary employees were covered by a collective bargaining agreement between the Alaska Public Employees Association (APEA) and the State of Alaska. The agreement provided that as a probationary employee she could grieve her termination through Step Four of the grievance process. Step Three involved review of the personnel decision by the department head of the hiring agency. Step Four involved review of the hiring agency's termination decision by the State's Department of Administration. Step Five provided for binding arbitration of all disputes under the agreement, except the termination of probationary employees. Upon her request, APEA filed a grievance on Szafran's behalf. She alleged that her dismissal was based on the Department's unfair judgment of her performance during a training period which was disorganized and lacked supervision. At Step Three Szafran's grievance was denied by Harold Brown, the then Attorney General. A Step Four Hearing was requested by APEA and was conducted in Fairbanks on January 23 and 24, 1986. According to the Department of Administration's response to the APEA grievance, "[t]he purpose of the hearing was to determine the facts and circumstances involved in the termination of the grievant, Ms. Theresa Szafran." After taking evidence and testimony from both sides the hearing officer confirmed the termination. Six weeks prior to Szafran's Step Four hearing, we held in Hemmen v. State, 710 P.2d 1001, 1003 (Alaska 1985), that despite union agreements to the contrary, all public employees' grievance procedures must have binding arbitration as a final step. However, following Szafran's Step Four hearing, APEA did not request binding arbitration under Hemmen. On February 19, 1986, Szafran was advised by the APEA that it had exhausted all remedies available to her as a terminated probationary employee. On February 19,1986, the Department of Administration issued a letter to Szafran stating that under the General Government Unit Agreement Articles 18.6.6 and 18.11.1, she could not exercise any rehire rights nor apply to have her name put on any eligible list for the classified state service until she could give references showing twelve months satisfactory service with another employer. Under the union agreement Szafran had a right to seek review of any restrictions on future state employment. The required "improved attitude evidence" was a condition which was subject to all of the grievance steps including binding arbitration. Szafran did not file a grievance of the decision by the Department of Administration. On November 7, 1986, Szafran filed a complaint in the superior court in Nome alleging breach of her employment contract. Thereafter, the superior court granted the State's motion to transfer venue from Nome to Fairbanks. In her complaint Szafran stated that she had exhausted the administrative remedies provided for in the applicable collective bargaining agreement. Relying on Kollodge v. State, 757 P.2d 1028, 1033 (Alaska 1988), which held that a former employee disappointed by administrative remedies is in the posture of an appellant in the superior court, the State sought judgment on the pleadings pursuant to Rule 12(c) of the Alaska Rules of Civil Procedure. In response, Szafran filed an affidavit which stated: "By exhausting the administrative remedies I mean that I attempted to seek administrative relief but was denied relief and I was not a member of the union. I was denied relief as not being a member of the union and not entitled to grievance." Szafran's complaint was dismissed by the superior court for failure to establish the superior court's subject matter jurisdiction. On appeal we held: Here Szafran alleges that she was denied the right to utilize such administrative procedures. She further claims in her affidavit that the state-union contract does not afford her any grievance rights. Based on Szafran's affidavit, and the absence of any countervailing evidence, it appears that a grievance procedure was in fact not afforded to her. It follows under Reed [v. Municipality of Anchorage, 741 P.2d 1181 (Alaska 1987)] that the filing of an original action in the superior court was appropriate in this case. The superior court therefore erred in dismissing the complaint for lack of subject matter jurisdiction. Szafran v. State, Mem.Op. & J. No. 452 at 7 (Alaska May 10, 1989). Following our remand, Szafran filed an amended complaint in which she conceded that she had received an administrative hearing at Step Four of the grievance process. She also alleged that the Department of Administration's decision to declare her ineligible for any state job until she had earned a favorable recommendation from a private employer was in violation of Alaska's constitution. After establishing that Szafran had access to union assistance in processing union grievances, the State moved for summary judgment. Szafran filed a cross motion for summary judgment, arguing among other things, that she was entitled to five years of back pay until she was granted binding arbitration. The superior court determined that Sza-fran had received an administrative hearing. Accordingly, the superior court ruled that its role should be that of an appellate court reviewing an administrative decision. Kollodge v. State, 757 P.2d 1028, 1033 (Alaska 1988). In this regard the superior court ruled in part that: here Theresa Pederson-Szafran, had a hearing step 4 before the hearing examiner as a designee of the Commissioner of Administration and the Commissioner of Administration made what the Supreme Court, under numerous cases, including [Kollodge ] and Ballard, Wein-gartner and others, made an administrative decision. As such, and tied into the foundation of Casey, review could have been sought and was available with . the Superior Court, but that review is governed by Rule 602 . Rules of Appellate Procedure. The challenge to [the termination] had to be brought within 30 days of that administrative decision and it not having been done so, the challenge is untimely. The superior court further concluded that summary judgment in favor of the State was appropriate as to Szafran's claim that the State had unlawfully blacklisted her. The superior court disposed of this claim on alternative grounds. First it concluded that Szafran's appeal of this issue was untimely. In so doing the superior court reasoned as follows: The question, therefore, remains is [Sza-fran] entitled to declaratory relief or court action challenging the period of ineligibility or does it too go the way of the discharge claim as this court has interpreted it? [Szafran] argues that the discharge and the resulting contractual ineligibility are inextricably bound together. A review of termination involves a review of the propriety of the ineligibility and that they cannot be viewed separately. As such, the court must conclude that the review of the ineligibility likewise was subject to judicial review and that review is likewise untimely. (Emphasis supplied.) The superior court further concluded, as an alternative rationale to Szafran's suggestion that the issues of termination and ineligibility (blacklisting) were "inextricably intertwined and that the challenge[d] hearing grievance appeal or other procedural devices arising from the termination were part and parcel and carried with it the ineligibility," that she had failed to exhaust her administrative remedies. If they were not tied together so that one carries with it the outcome of the other it was incumbent upon [Szafran] when she was advised either constructively [of] her termination and constructively of the ineligibility because it was in the contract, or specifically in February 1986, to challenge the applicability of the ineligibility as overly harsh or otherwise place in motion the steps of the dispute resolution mechanism. The court cannot find . a request for arbitration after step 4 or request for any relief or resolution of the contractually imposed ineligibility provision. Given the above holdings, the superior court further ruled that it was not necessary to reach the question of damages. Szafran appeals from the grant of summary judgment. I. WAS THE SUPERIOR COURT'S GRANT OF SUMMARY JUDGMENT TO THE STATE INCONSISTENT WITH SZAFRAN V. STATE, MO & J 452 (ALASKA MAY 10, 1989) (SZA-FRAN I)? Szafran asserts that when we first considered this matter in Szafran I, we sus tained her contention that she could bring an original action in superior court to protest her termination. Szafran argues that on remand, "no countervailing evidence was offered to demonstrate that Appellant was afforded a legally permissible grievance procedure." Szafran further contends that the only "new development" on remand was that the State conceded that she had an absolute right to have binding arbitration as a final step to a grievance process and that this was denied her. Szafran asserts that in light of this court's rejection of Kollodge v. State, 757 P.2d 1028 (Alaska 1988), "in the context of this record," Szafran I, n. 2, the superior court erred by relying on that case and granting summary judgment to the State. The State argues that Szafran I involved an order to dismiss based on the sufficiency of the pleadings and that this court's decision regarding jurisdiction was based on Szafran's affidavit that no administrative remedies were afforded her. Given the foregoing, the State notes that this court ruled, in Reed v. Municipality of Anchorage, 741 P.2d 1181, 1186-87 (Alaska 1987), that a terminated employee may bring an original action when administrative grievance procedures are not available. However, when grievance procedures are available, an employee must exhaust contractual or administrative remedies before pursuing a direct judicial action against the employer. Casey v. City of Fairbanks, 670 P.2d 1133, 1136 (Alaska 1983); Beard v. Baum, 796 P.2d 1344, 1348 (Alaska 1990). The State asserts that its affirmative defense of failure to exhaust administrative remedies was not struck. The State further asserts that the remand from Szafran I had the purpose and effect of allowing the litigation to proceed past the pleading stage. Thus, the State contends that entertaining a motion for summary judgment on newly developed facts was not a violation of this court's remand following Szafran I. In Szafran I this court reversed the superior court's order dismissing Szafran's complaint based on the following rationale: In Reed it was explained that a plaintiff can bring an original action in the superi- or court to challenge a job termination where administrative grievance procedures are not made available to the employee. Id. Here Szafran alleges that she was denied the right to utilize such administrative procedures. She further claims in her affidavit that the state-union contract does not afford her any grievance rights. Based on Szafran's affidavit, and the absence of any countervailing evidence, it appears that a grievance procedure was in fact not afforded to her. It follows under Reed that the filing of an original action in the superior court was appropriate in this case. Szafran v. State, Mem. Op. & J. No. 452, at 7 (Alaska May 10, 1989). However, following remand, Szafran filed an amended complaint conceding that she had received an administrative hearing at Step Four of the grievance process. Thus, Szafran's own amended complaint contradicts her assertion that on remand no new countervailing evidence was presented to demonstrate that she was afforded a legally permissible grievance procedure. In Szafran I we rejected the application of Kollodge v. State, 757 P.2d 1028 (Alaska 1988), to the case in the context of the record we then had before us. However, given Szafran's concession in her amended complaint that a grievance procedure was in fact afforded her, we conclude that Kollodge was correctly applied by the superior court. Therefore, we conclude that the superior court's grant of summary judgment to the State was not inconsistent with Szafran I. II. WAS THE SUPERIOR COURT'S GRANT OF THE STATE'S MOTION FOR SUMMARY JUDGMENT CORRECT? The superior court concluded that Sza-fran had failed to file a timely appeal from the administrative determination of her wrongful termination and blacklisting claims under Appellate Rule 602(a)(2). Our review of the applicable case law and record persuades us that the superior court correctly determined this question. In our view this issue is controlled by our decision in Kollodge v. State, 757 P.2d 1028, 1033 (Alaska 1988). There, quoting Ballard v. Stick, 628 P.2d 918, 920 (Alaska 1981), we noted that: [T]he test for determining when an entity is acting as an "administrative agency" is functional. Whenever an entity which normally acts as a legislative body applies policy to particular persons in their private capacities, instead of passing on general policy or the rights of individuals in the abstract, it is functioning as an administrative agency within the meaning of Appellate Rule [602(a)(2)]. The collective bargaining agreement between the State and the APEA, at the time of Szafran's hire, provided that the grievance procedure was the sole means for settling disputes. As noted at the outset, upon Szafran's request the APEA commenced grievance procedures on her behalf and followed them up to and including Step Four. Further, at Step Four of the grievance procedure, a full evidentiary hearing was conducted to determine the facts and circumstances involved in Szafran's termination. The record shows that following the hearing officer's adverse decision on Szafran's alleged wrongful termination claim, Szafran failed to request binding arbitration and did not file her superior court action until November 7, 1986, some nine months after the conclusion of the grievance procedure. Under Appellate Rule 602, Szafran's challenge had to be brought within 30 days of the Step Four hearing officer's decision. Since Szafran failed to do so, we hold that the superior court properly granted summary judgment in the State's favor. Alternatively, we hold that even if the issues of termination and ineligibility or blacklisting are not viewed as inextricably intertwined, the superior court properly granted summary judgment to the State on the ground that Szafran failed to exhaust her administrative remedies concerning her blacklisting claim prior to seeking judicial review of that issue. Casey v. City of Fairbanks, 670 P.2d 1133, 1136 (Alaska 1983); Beard v. Baum, 796 P.2d 1344, 1348 (Alaska 1990). AFFIRMED. . Both parties agree that the supreme court standard of review of a superior court's conclusions of law is the independent judgment standard. Foss Alaska Line, Inc. v. Northland Services, Inc., 724 P.2d 523 (Alaska 1986); Walsh v. Emerick, 611 P.2d 28 (Alaska 1980); Guin v. Ha, 591 P.2d 1281 (Alaska 1979). . In Kollodge we said: We concluded that the school board in Ballard was acting as an administrative agency because it was "applying general policy to a particular person." Id. The same analysis applies to Kollodge. Kollodge's complaint, like Ballard's, requested reinstatement, back pay and compensatory damages. Kollodge's relief in court turns on a review of the hearing conducted before hearing officer Hennen of the State Division of Labor Relations. In essence, this is an appeal of the decision rendered by the desig-nee of the Commissioner of Administration which resulted from the Division of Labor Relations' hearing. Furthermore, the hearing involved the application of policy to a particular person (Kollodge) in his private capacity. Clearly, Kollodge's claim is an appeal from an administrative agency. Therefore, it is subject to the thirty-day period of limitation contained in Appellate Rule 602(a)(2). After the hearing, the Department of Administration notified Kollodge of its decision in a letter dated July 26, 1982. The arbitration procedure mandated by step five of the grievance procedure was completed on January 23, 1983, the date of APEA's final decision not to arbitrate. Kollodge did not file his complaint in the superior court until April 25, 1984, long past the thirty-day limit. Accordingly, we affirm the superior court's grant of summary judgment. 757 P.2d at 1033 (footnotes omitted). . Szafran raised other issues on appeal including claims that her due process rights were violated and that the superior court erred in failing to address the issue of damages. However, our conclusion that the superior court correctly granted summary judgment to the state because of Szafran's failure to file a timely administrative appeal, or to exhaust her administrative remedies, makes it unnecessary to address these issues.

10371937

Michael J. D'ANTORIO, Appellant, v. STATE of Alaska, Appellee

D'Antorio v. State

1992-07-24

No. A-3824

727

737

837 P.2d 727

837

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:15:02.151835+00:00

CAP

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

Michael J. D’ANTORIO, Appellant, v. STATE of Alaska, Appellee.

Michael J. D’ANTORIO, Appellant, v. STATE of Alaska, Appellee. No. A-3824. Court of Appeals of Alaska. July 24, 1992. Christine S. Schleuss, Schleuss & McCo-mas, Anchorage, for appellant. Cynthia L. Herren, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., COATS, J., and ANDREWS, Superior Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

5361

33289

OPINION COATS, Judge. A jury convicted Michael J. D'Antorio of engaging in a scheme to defraud, a class B felony. AS 11.46.600. Superior Court Judge Joan M. Katz sentenced D'Antorio to ten years of imprisonment, with one year suspended. She placed D'Antorio on probation for a period of five years after his release from confinement. D'Antorio appeals his conviction, raising several issues. We remand. On December 9, 1986, Alaska State Trooper (AST) Sergeant Edward Stauber observed D'Antorio in the Alaska Airlines Board Room at the Anchorage International Airport. Sergeant Stauber knew that D'Antorio was on parole, that he had previously been convicted of fraud, and that, as part of his probation, he was not allowed to possess credit cards. Sergeant Stauber learned from an employee of Alaska Airlines that D'Antorio had used a credit card to pay for membership in the Board Room. As a result of obtaining this information, Sergeant Stauber began an investigation. Sergeant Stauber discovered from several credit card companies that D'Antorio had active credit card accounts. Sergeant Stauber learned from D'Anto-rio's probation officer that D'Antorio had reported that he was residing at 5211 Mockingbird Lane. On March 23, 1987, Sergeant Stauber obtained a search warrant to search D'Antorio's residence. During the search, the police located and seized blank credit card applications, copies of completed credit card applications, newspaper articles, obituaries, credit cards, and notes detailing personal information about several people. The police found credit card applications and records in the names of George Longenbaugh, Glynn Lockwood, Ron Heisman, David Blanchett, and Craig Fowler. Upon further investigation, the troopers discovered that the five individuals listed above were deceased. Sergeant Stauber used return addresses found on several documents to locate private mail services in Anchorage, Alaska; San Francisco, California; Denver, Colorado; and Washington, D.C. The troopers contacted the private mail services and inquired whether D'Anto-rio had open accounts in his own name or in the name of one of the five deceased individuals. The employees of the various mail services gave the troopers information and documents indicating who had obtained the mail boxes and the instructions concerning where the mail service was to send mail that arrived in these boxes. The troopers obtained a warrant for D'Antorio's arrest based on a violation of parole conditions for his original conviction of engaging in a scheme to defraud. On April 30, 1987, at approximately 3:00 a.m., Officer Dale Stern, a police officer with the Huber Heights, Ohio, Police Department, stopped D'Antorio for a broken headlight. Officer Stern discovered that there was an outstanding Alaska warrant for D'Antorio. Officer Stem placed D'An-torio under arrest because of the Alaska warrant. He conducted a brief search of D'Antorio's person and of the car. The car was then impounded and taken to an impound lot later that morning. The next day, Huber Heights Detective Susan Finch and United States Secret Service Special Agent Tim Flick drove to the impound yard to search D'Antorio's car. Detective Finch testified that she conducted an inventory search according to the normal procedures for her department. She testified that the purpose of the search was to identify D'Antorio's property for safekeeping. The automobile was stuffed with luggage and merchandise, leaving only the driver's seat empty. The officers searched the car; opened and searched briefcases, bags, and other containers, many of which contained various documents; and made a general inventory of the contents which they removed and placed in custody. Sergeant Stauber then traveled to Ohio. Sergeant Stauber testified that he went to Huber Heights to bring back D'Antorio and the items taken into custody by Ohio authorities. Upon his arrival in Ohio, Sergeant Stauber read, categorized, labeled, and indexed each document and brought the evidence back to Alaska. D'Antorio filed motions to suppress evidence that the troopers obtained from the private mail services and from the search of D'Antorio's car. Judge Katz denied these motions. D'Antorio was ultimately convicted by a jury of engaging in a scheme to defraud. D'Antorio first contends that Judge Katz erred in refusing to suppress the evidence that the police seized from his car in Ohio. As an initial matter, the state contends that D'Antorio has no standing to contest the warrantless search by the Ohio police of the car in which he was stopped. The state's position is that the car was owned by Hertz, a car rental company. The state contends that the car was overdue, that Hertz had reported the car stolen, and that Hertz gave the Ohio police permission to search the car. However, the state concedes that it did not develop this argument fully in the trial court. The defense has consistently contested the facts concerning D'Antorio's lack of a possessory interest in the car, and Judge Katz ruled that the state would have to produce sworn testimony on the disputed facts. The state never presented any testimony to develop its standing argument. Under these circumstances, we conclude that the state cannot raise the argument on appeal that D'Antorio had no standing to contest the warrantless search of the car. We have consistently held that the state cannot argue that a defendant does not have standing to raise a suppression issue when the state has not contested this issue in the court below. Kvasnikoff v. State, 804 P.2d 1802, 1306 n. 1 (Alaska App.1991); Murdock v. State, 664 P.2d 589, 595 (Alaska App.1983); Unger v. State, 640 P.2d 151, 156-57 (Alaska App.1982). Since the state did not develop the facts in the trial court that were necessary for Judge Katz to rule on this issue, we have no factual basis to resolve this issue. We conclude that the state cannot raise this issue on appeal. The next issue we must address is whether we should apply the law of Alaska or the law of Ohio to the searches that the Ohio police conducted of the contents of D'Antorio's car. In Pooley v. State, 705 P.2d 1293, 1302-03 (Alaska App.1985), we adopted the analysis of the California Supreme Court as stated in People v. Blair, 25 Cal.3d 640, 159 Cal.Rptr. 818, 827-28, 602 P.2d 738, 747-48 (1979). In Blair, federal officers who were assigned to a Pennsylvania field office conducted a federal investigation in Pennsylvania of a Pennsylvania resident who was prosecuted in California on the basis of evidence that was obtained in the Pennsylvania search; the California police did not instigate or participate in the Pennsylvania search. Id., 159 Cal.Rptr. at 822, 602 P.2d at 742-43. In Pooley, we summarized the Blair decision as follows: [T]he California Supreme Court upheld admission of the fruits of a.Pennsylvania seizure which was valid under federal and Pennsylvania law, even though it would have been invalid if it had occurred in California. The court reasoned that the exclusionary rule has a twofold purpose: to deter illegal police conduct and to relieve the courts from being compelled to participate in illegal conduct. Neither goal would be served by exclusion of evidence in that case, according to the court, since Pennsylvania authorities would not (and indeed, should not) be deterred from engaging in conduct which is legal in their state, and admission of the evidence in a California court would not mean placing the judicial imprimatur on lawlessness. 705 P.2d at 1303 (citation omitted). In Poo-ley, we applied federal and California law to a search of Pooley's luggage that California law enforcement officers conducted in California when the record did not contain any evidence that the police "actions were part of any ongoing or concerted effort by Alaska and California to identify and arrest persons bringing drugs to Alaska." Id. at 1302-03. Applying the Pooley analysis to the instant case, we conclude that federal law and the law of Ohio apply to the search incident to arrest and the original inventory search that Detective Finch conducted in Ohio since the police officers who conducted these searches were Ohio police officers who were simply following Ohio law. Officer Stern, who originally arrested D'Antorio, conducted the search incident to arrest. D'Antorio's basic argument in attacking this search is based on the premise that we should apply Alaska law to this search. D'Antorio argues that under Hinkel v. Anchorage, 618 P.2d 1069, 1072 (Alaska 1980) cert. denied, 450 U.S. 1032, 101 S.Ct. 1744, 68 L.Ed.2d 228 (1981), Officer Stern's search of his center console and the seizure of his wallet was illegal. See Ricks v. State, 771 P.2d 1364, 1366 (Alaska App.1989), vacated but aff'd in part, 816 P.2d 125 (Alaska 1991). However, this search was clearly valid under federal and Ohio law. See New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); State v. Crickon, 43 Ohio App.3d 171, 540 N.E.2d 287, appeal dismissed, 39 Ohio St.3d 718, 534 N.E.2d 95 (1988). We conclude that Judge Katz did not err in finding that Officer Stern's limited search was a valid search incident to arrest under federal and Ohio law — the governing law of the jurisdiction with the most significant relationship to and interest in the search. Detective Finch testified that she conducted the later inventory search of the property that was in D'Antorio's car following normal procedure in Ohio. She testified that the purpose of the inventory search was to identify and hold D'Antorio's property for safekeeping. Judge Katz found that Detective Finch conducted the search according to standard police practices of her department and that the inventory search that she conducted, which included the opening of closed containers, was valid under federal and Ohio law. D'Anto-rio argues that we should apply Alaska law to Detective Finch's search. Our supreme court has held that the Alaska Constitution prohibits police from entering and searching closed containers without a warrant while conducting inventory searches. State v. Daniel, 589 P.2d 408, 416 (Alaska 1979). However, Ohio courts, relying on federal law, allow the police to search containers which they find in impounded automobiles as inventory searches. State v. Bronaugh, 16 Ohio App.3d 237, 475 N.E.2d 171, 174-76 (1984) (citing Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983); United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)). We conclude that Judge Katz correctly applied federal and Ohio law to the searches. See 2 W. LaFave, Search and Seizure § 5.3(a) (2d ed. 1987) (describing the law applicable to inventory searches that occur after a person has been arrested). We find Judge Katz did not err in denying this portion of D'Antorio's motion to suppress. We conclude, however, that we must evaluate the investigation which AST Sergeant Stauber conducted of D'Antorio's property in Ohio under Alaska law. This was an investigation by an Alaska State Trooper who was investigating charges which arose in Alaska; Alaska has the most significant relationship to and governmental interest in Sergeant Stauber's activities in Ohio. Therefore, under our reason ing in Pooley, Alaska law should apply. 705 P.2d at 1303. The question that Sergeant Stauber's investigation raises is whether he could go through D'Antorio's property without a warrant. This issue is discussed in La-Fave, supra, § 5.3(b). The leading case in this area is United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974). Many courts have interpreted Edwards to allow the police to subsequently search a defendant's possessions which are held in police custody "merely on the basis that they are doing nothing more than could have been done at the time of arrest or booking." LaFave, supra, § 5.3(b), at 494. The Alaska Supreme Court addressed this issue in Griffith v. State, 578 P.2d 578 (Alaska 1978). In Griffith, the victim of an attempted robbery identified his assailant in part by the fact that the assailant was wearing "an unusual brown turban-like cap." Id. at 579. Griffith was wearing the brown cap when the police arrested him, but the police did not seize the cap as evidence. Jail personnel placed the cap, along with Griffith's other personal property, into a bag and stored it in a locker, according to standard jail procedure. During Griffith's trial, one of the officers who arrested Griffith realized that Griffith was wearing the hat when he was arrested and that the hat had evidentiary value. The officer asked a jail supervisor to look through Griffith's property to see whether the cap was still there. The jail officer located the cap and the police officer asked that the jail hold on to the cap. The officer obtained a court order to obtain the cap, which was introduced against Griffith at his trial. In deciding Griffith, the supreme court found it unnecessary to decide the state's contention that United States v. Edwards "validates all searches of a prisoner's personal property once that property has been taken from the prisoner for storage during his detention." Id. at 580 n. 3. Quoting from United States v. Grill, 484 F.2d 990, 991 (5th Cir.1973), cert. denied, 416 U.S. 989, 94 S.Ct. 2396, 40 L.Ed.2d 767 (1974), the court stated: The underpinning of these cases is that the items in question have been exposed to police view under unobjectionable circumstances, so that no reasonable expectation of privacy is breached by an officer's taking a second look at matter with respect to which expectation of privacy already has been at least partially dissipated. 578 P.2d at 580. The supreme court went on to state: We find this approach to be sound. No invasion of privacy occurred in the circumstances of this case. Officer Trudeau saw the cap at the time of Griffith's arrest. The later telephone call to the jail supervisor merely verified the continued availability of that which had been available and in plain view to Trudeau at the time of the arrest. In the circumstances we conclude that the seizure of the cap was reasonable, and its introduction into evidence was not error. Id. Although in Griffith the supreme court specifically reserved the issue of whether United States v. Edwards allowed the police to search a prisoner's personal property once that property had been taken during an inventory search, in Reeves v. State, 599 P.2d 727, 737-38 (Alaska 1979), the court limited the scope of an inventory search: In summary, we hold that a pre-incar-ceration inventory search is an exception to the warrant requirement, where it is conducted to further the governmental purposes recognized above and is limited to the extent necessary to respect Alaska's constitutional guarantee against unreasonable searches and seizures. The search of an arrestee's person should be no more intensive than reasonably necessary to prevent the entry of weapons, illegal drugs, and other contraband or potentially dangerous items into the jail. Any items taken from the arrestee's possession in this search may not be further searched or opened except pursuant to a search warrant or another recognized exception to the warrant requirement appli cable in the circumstances. Finally, the inventory conducted shall consist of a cataloging of the arrestee's property thus seized and may not, without a specific request from the arrestee, extend to a search and inventory of the contents of any object, closed or sealed container, luggage, briefcase, or package. We believe that a pre-incarceration search thus limited both adequately protects the reasonable interests of the state and appropriately respects an arrestee's reasonable expectation of privacy. Furthermore, in Reeves, the court noted its agreement with the following statement from Brett v. United States, 412 F.2d 401, 406 (5th Cir.1969): We are not prepared to say that an accused whose effects are held by the police for safekeeping has, by the single fact alone of the police custody of the property, surrendered his expectations of the privacy of those effects. Reeves, 599 P.2d at 734 n. 18. Reading Griffith and Reeves together, it appears that the supreme court has rejected the proposition that a prisoner has no reasonable expectation of privacy in his personal property once that property has been taken into police custody. However, when the police have already seen and identified property of evidentiary value, the police are entitled to take a "second glance" at the property. See Griffith, 578 P.2d at 580 n. 2. In her decision on the suppression motion, Judge Katz found that Detective Finch legitimately seized all of D'Antorio's property and subjected it to an inventory search. We have concluded, applying Ohio and federal law, that Judge Katz did not err in this determination. We have further found, however, that Sergeant Stauber's warrantless inspection of the seized property must be governed by Alaska law. Under Griffith and Reeves, the pertinent issue is whether the intensity of Stauber's war-rantless search of the seized articles materially exceeded the scope of the inventory that Finch had previously conducted — in other words, whether Sergeant Stauber's actions violated a reasonable expectation of privacy that had not already been "dissipated" by Finch's earlier inspection. This issue can properly be resolved only through a determination of the precise scope of Detective Finch's inventory and a comparison of that search with the subsequent search conducted by Stauber. Judge Katz, however, did not make any findings concerning the relative intensity of the searches conducted by Finch and Stauber. It appears that Judge Katz assumed, as a matter of law, that D'Antorio could have no continuing expectation of privacy in any of his property once Finch had inventoried it. Under Griffith and Reeves, such an assumption is incorrect. From the testimony below, it appears that Stauber's search of D'Antonio's property may have been more intensive than Finch's prior inventory search. However, this is a factual issue, which requires findings by the trial court in the first instance. We must therefore remand this case for additional findings. In order to provide guidance on remand, we make the following observations. The burden of proof on remand should be placed on the state, since the state has the burden of justifying any warrantless search. To the extent the state can demonstrate that Sergeant Stauber inspected articles that were plainly exposed to and observed by Finch, those articles would be similar to Griffith's turban-like cap and would clearly not be subject to suppression. On the other hand, to the extent it appears that Stauber inspected articles in closed containers that Finch had not previously opened, his conduct would clearly amount to a new and more intrusive search. Between these two extremes, it is difficult to say where the line should be drawn. See, e.g., Anderson v. State, 555 P.2d 251 (Alaska 1976). We leave the matter to the trial court's sound discretion. We therefore remand this issue to the trial court to reevaluate Sergeant Stauber's search in light of this opinion. The trial court may, but is not required to, allow the parties to introduce further evidence and to further brief this issue. In the event the trial court concludes that it erroneously allowed the state to introduce evidence at D'Antorio's trial that the court determines should have been suppressed, the court should decide whether introduction of this evidence was harmless error. D'Antorio next contends that Judge Katz erred in failing to suppress information that the police discovered from private mail services that D'Antorio utilized. D'Antorio used private mail boxes in Anchorage, Denver, San Francisco, and Washington, D.C. The troopers contacted these mail services and, according to Judge Katz's decision, "obtained business records from them including billings, notes reflecting instructions from defendant, and applications." Apparently, two of the mail services had clauses in their service contracts which provided that: "All information provided by customer is confidential and will not be disclosed except when legally mandated." In her decision, Judge Katz found that, "A person has a reasonable expectation of privacy in his mail, whether or not there is an intermediary interposed between the postal service and the ultimate recipient." However, she concluded that the troopers had no information concerning the confidentiality portion of D'Antorio's agreement with the mail services and had no reason to believe that the records would be the subject of confidentiality agreements. She concluded that the agents for the private mail services were entitled to cooperate with the police and to reveal their business records once they had reason to believe that the boxes were being used for illegal purposes. From the discussion of the court and the parties it appears that the information that Judge Katz did not suppress was basically the name of the person who opened the box, the time the box was opened, and the directions that were given to the mail services for forwarding the mail. In State v. Chryst, 793 P.2d 538, 542 (Alaska App.1990), we concluded that the police could contact a local utility company and obtain Chryst's address from all the accounts which were listed under Chryst's name. Id. at 539. We rejected Chryst's contention that the police action in obtaining this information violated his rights under article 1, section 14 of the Alaska Constitution, which is similar to the fourth amendment of the United States Constitution, and article 1, section 22 of the Alaska Constitution, which is the privacy provision of the Alaska Constitution and which does not have an analogous federal provision. The utility had a policy that declared that it would only provide the names, addresses, or telephone numbers of members with the approval of the member or in response to a subpoena or court order. Id. at 539. We stated: We agree with Professor LaFave and what appears to be the majority rule that a person's name and address, by themselves, do not constitute information about which a person can have a reasonable expectation of privacy which society is willing to recognize. Id. at 542. We conclude that the instant case is governed by Chryst. The information that the mail service employees provided was essentially who opened the account, when the account was opened, and what directions the mail service had received for forwarding the mail. We conclude that this information did not constitute information about which D'Antorio could have a reasonable expectation of privacy that society is willing to recognize. This was information concerning D'Antorio's contact with the mail service, and D'Antorio assumed the risk that the mail service might choose to reveal the nature of its business dealings with D'Antorio. This opinion should be read as only addressing the narrow factual circumstances of the present case. As in Chryst, the facts of this case do not call for this court to accept or reject cases that have provided a higher expectation of privacy in business records under state constitutional provisions. 793 P.2d at 542-43 (Bryner, C.J., concurring) (citing People v. Chapman, 36 Cal.3d 98, 201 Cal.Rptr. 628, 679 P.2d 62 (1984); State v. Butterworth, 48 Wash.App. 152, 737 P.2d 1297 (1987)); cf. United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) (no expectation of privacy in financial or bank records). Judge Katz's ruling protected D'An-torio's interest in the privacy of his mail. We accordingly affirm Judge Katz's decision. D'Antorio next asserts that Judge Katz erred in allowing the state to introduce evidence which referred to individuals other than Longenbaugh, Lockwood, Heisman, Blanchett, and Fowler, the names D'Antorio was charged with fraudently obtaining and using credit under. We conclude that Judge Katz could properly have allowed the state to introduce this evidence to show that D'Antorio had a continuing plan of collecting information on individuals other than the individuals listed in the indictment to complete the picture of the scheme to defraud. See Braham v. State, 571 P.2d 631, 640 (Alaska 1977) (evidence "had the permissible effect of completing the picture or setting the stage of the crime"), cert. denied, 436 U.S. 910, 98 S.Ct. 2246, 56 L.Ed.2d 410 (1978). D'Antorio argues that Judge Katz erred in allowing testimony that D'Antorio was in custody in Ohio. At trial, Detective Finch testified that she recognized D'Anto-rio as the person who was in custody in Ohio, and Sergeant Stauber testified that he went to Ohio to pick up D'Antorio and the evidence. We conclude that Judge Katz did not abuse her discretion in allowing this testimony. In context, we fail to see how D'Antorio was unduly prejudiced. See State v. Gretzler, 126 Ariz. 60, 612 P.2d 1023, 1050 (1980) ("The fact that Gretzler was arrested by somebody prior to trial was obvious to the jury. We are unable to perceive how testimony that Gretzler was held in another state on Arizona indictments would damage his case before the jury."), cert. denied, 461 U.S. 971, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). D'Antorio next contends that Judge Katz erred in refusing to allow him to introduce a statement by his parole officer that D'Antorio had said that Michael Knight resided at the Mockingbird Lane address with him. Judge Katz allowed the state to elicit testimony from Mr. Lonzo Henderson, D'Antorio's parole officer, that D'Antorio had listed the Mockingbird Lane address as his official residence. D'Anto-rio claims that Judge Katz erred in not allowing him to admit the remainder of the hearsay statement in which he had said that he resided at the Mockingbird Lane address with Michael Knight. D'Antorio's defense at trial was that the scheme to defraud was perpetrated by someone else who had access to the Mockingbird residence. He wanted to show that Michael Knight, John Finley, and William Crouse were possible suspects. Two defense witnesses subsequently testified that Knight, Finley or Crouse also resided or often visited at the Mockingbird Lane residence. D'Antorio also introduced evidence that two credit cards in the name of Michael Knight were found in the Ohio automobile search along with several credit card receipts bearing Knight's name. D'Antorio contends that it was critical to his defense to show that Knight was present both at Mockingbird Lane and in Ohio. D'Antorio avers that Judge Katz's ruling violated his constitutional right to confront the witnesses against him and to due process of law. He also argues that Judge Katz erred in not allowing the statement under Alaska Evidence Rule 106. Although we see the issue as close, we conclude that Judge Katz did not abuse her discretion in not allowing D'Antorio to introduce the remainder of D'Antorio's statement that he lived at the Mockingbird Lane address with Michael Knight. D'Antorio's statement to the parole officer was an admission that he lived at that address. His hearsay statement that Michael Knight also lived there would normally not be admissible. We believe that Judge Katz could properly determine that the statement was severable and that it was not necessary to admit the second part of the statement under Evidence Rule 106, and that the failure to admit the statement did not violate D'Antorio's constitutional rights. We find no error. D'Antorio next argues that Judge Katz erred in refusing to allow him to introduce past convictions of Finley and Crouse. After defense witnesses testified to the fact that Finley and Crouse had been present at the Mockingbird Lane address, D'Antorio sought to introduce certified copies of convictions showing that Crouse had been convicted for engaging in a scheme to defraud and that Finley had been convicted of forgery, passing bad checks, and attempting to obtain money by false pretenses. In her ruling, Judge Katz told the parties that she had had Crouse's presentence report faxed from Fairbanks. Judge Katz concluded that the prior convictions were not similar and were not close in time. She concluded that they had little probative value. Judge Katz did not abuse her discretion in not admitting these prior records. D'Antorio was attempting to show that because Finley and Crouse had prior convictions, they were likely to have engaged in the particular criminal activity with which D'Antorio was charged. Judge Katz could properly determine that this proposed evidence had little probative value. We find no error. D'Antorio next contends that Judge Katz erred in allowing the state to introduce evidence concerning chargeoffs that credit card companies had made against D'Anto-rio's accounts. At trial, an employee of the Credit Bureau of Alaska testified that a chargeoff was a record that a credit card company had written off a debt as uncol-lectable. Apparently, at grand jury, an employee of the. Credit Bureau of Alaska testified that D'Antorio had $57,000 in chargeoffs. D'Antorio requested a protective order against admitting this testimony. Judge Katz denied the protective order and ruled that the state could admit this evidence at trial. D'Antorio argues that this was error. He argues that the evidence was inadmissible as a prior bad act. See A.R.E. 404, 403. The state contends that the evidence was admissible to show that at some point it would become impossible for D'Antorio to get further credit in his own name since he would have a bad credit record. This would explain D'Antorio's motive to obtain credit cards in other names so that he could continue his credit card fraud. However, at trial, a different employee of the Credit Bureau of Alaska testified than had testified before the grand jury. This employee testified only that, as of March 1987, D'Antorio's account showed $6837 in chargeoffs. It therefore does not appear that the testimony of which D'Anto-rio complains was admitted at trial. Since the testimony admitted at trial differs so significantly from the testimony of which D'Antorio complains, we decline to decide this issue. D'Antorio next contends that Judge Katz erred in overruling his objections to the state's assertion in argument that D'Anto-rio's scheme may haye been more successful than Credit Bureau of Alaska records showed. We have reviewed the prosecutor's remark in context, and conclude that Judge Katz did not err in overruling D'An-torio's objection. REMANDED. . According to Judge Katz's decision, the owner of an Anchorage mail service initiated contact with law enforcement officials because she believed that the activity in D'Antorio's box was suspicious. The owner of the mail service provided the police with copies of the outside of envelopes which were sent to the mail box. The state introduced the names on the outside of the envelopes at trial. However, D'Antorio has not challenged a ruling by the trial court concerning the admission of the information on the outside of the envelopes. Furthermore, the parties' briefs address only the issue of whether D'Antorio had an expectation of privacy in the name of the person who opened a box account, the time the box was opened, and the directions that were given to the mail services for forwarding mail. Therefore, our decision need only address the narrow issue briefed by the parties. See Kristich v. State, 550 P.2d 796, 804 (Alaska 1976). . The jury was not told that Henderson was a parole officer or that D'Antorio was a parolee. . Evidence Rule 106 provides: When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it. In Stoneking v. State, 800 P.2d 949, 951-52 (Alaska App.1990) (citations omitted), this court stated: The limited purpose of A.R.E. 106 is to allow a party to admit omitted portions of a partially admitted statement only when and only to the extent that the omitted portions are necessary to provide context to the admitted portions, or to explain or clarify them. The rule does not make admissible statements that would otherwise be inadmissible; it is meant only to allow contemporaneous admission of evidence that would ordinarily not be admissible until later stages of the trial. . D'Antorio argues that Judge Katz erred in obtaining the presentence report ex parte. However, D'Antorio never objected to this procedure and we find no prejudice. See Egelak v. State, 438 P.2d 712, 715 (Alaska 1968). We do not find reversible error.

6955453

Kevin S. PATTERSON, Appellant, v. STATE of Alaska, Appellee

Patterson v. State

2014-04-11

No. A-11501

65

68

323 P.3d 65

323

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T17:19:49.086852+00:00

CAP

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

Kevin S. PATTERSON, Appellant, v. STATE of Alaska, Appellee.

Kevin S. PATTERSON, Appellant, v. STATE of Alaska, Appellee. No. A-11501. Court of Appeals of Alaska. April 11, 2014. Rehearing Denied April 28, 2014. Doug Miller, The Law Office of Douglas S. Miller, Anchorage, for the Appellant. Marika Athens, Assistant Attorney General, (briefing) and Adam Alexander, Assistant Attorney General, (oral argument), Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: MANNHEIMER, Chief Judge, ALLARD, Judge, and HANLEY, District Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).

2035

12947

OPINION Judge ALLARD. Kevin S. Patterson is required to register as a sex offender for life and to file quarterly written verifications with the Department of Public Safety. After he failed to disclose all the email addresses he used in his April 2009 quarterly verification, he was convicted of second-degree failure to register as a sex offender for "knowingly failling] to supply accurate and complete information" in his quarterly verification. Patterson appeals his conviction, arguing that he was not required to disclose all of his email addresses because the legal requirement to do so did not arise until after he had filed his initial registration. Patterson as serts that he complied with his statutory duty to disclose the email addresses that he had "established" or "changed" since his last quarterly verification and that he was under no statutory obligation to disclose the email address he created in 2006, prior to the enactment of the email disclosure requirements. For the reasons discussed below, we reject Patterson's interpretation of the sex offender registration statute and affirm Patterson's conviction. Facts and proceedings Patterson was convicted in Minnesota of felony possession of child pornography and child endangerment. Since 2007, he has been required under an interstate compact to register as a sex offender in Alaska Because Patterson has been convicted of two or more sex offenses, his duty to register continues for life, and he must file quarterly verifications with the Department of Public Safety. Since January 1, 2009, this duty to file quarterly verifications has included the duty to disclose email addresses. On April 14, 2009, Patterson's probation officer reported to the Alaska State Troopers that she suspected Patterson was using his computer in a manner that violated the conditions of his probation. In the course of the troopers' investigation, they learned that Patterson had email addresses he had not disclosed in his January 80, 2009 and April 29, 2009 quarterly verifications. In those verifications, Patterson had disclosed only his school email address, which his probation officer had given him permission to use. Patterson was consequently charged under AS 11.56.840 with one count of second-degree failure to register as a sex offender for failing to disclose all of his email addresses. Patterson moved to suppress the evidence and to dismiss the charge, arguing that AS 11.56.840 did not require him to report all of his email addresses in each written verification, only the email addresses he had recently "established" or "changed." Patterson asserted that he had established the email addresses he was charged with failing to disclose before the email disclosure requirement went into effect. Patterson additionally argued that, to the extent the statute did require him to disclose all of his email addresses, it violated his due process rights, because the statute did not give him sufficient notice of this requirement. District Court Judge Sharon Tlisley denied the motion to dismiss. The court read AS 11.56.840 to require individuals like Patterson (i.e., people who had initially registered as sex offenders before the email disclosure requirement went into effect on January 1, 2009) to disclose all of their email addresses in their annual or quarterly verifications filed after January 1, 2009. With respect to Patterson's due process claim, the court ruled that the verification forms issued to sex offenders by the Department of Public Safety gave Patterson adequate notice that he was required to disclose all of his active email addresses. Judge Ilsley also noted that Patterson was "obviously aware" of this duty because, in his April 2009 verification, he disclosed a school email address he had established in 2008, prior to the enactment of the email disclosure requirement. At the jury trial that followed, Patterson's defense was that he was not aware that he had to disclose email addresses that had been "established for some time." The jury rejected that defense and convicted Patterson. He appeals. Why we conclude Patterson was required to disclose all the email addresses he used regardless of when they were first established On appeal, Patterson abandons his claim that he had inadequate notice that he was required to disclose all of his email addresses. He raises only one claim: that his conduct was not criminal because AS 11.56.840 only required him to disclose newly established email addresses or changes to existing addresses. The email registration requirements for sex offenders are laid out in AS 12.63.010. Under AS 12.63.010(b), sex offenders who file their initial registration (a one-time duty), must provide "each electronic mail address, instant messaging address, and other Internet communication identifier used by the . offender." The statute also requires sex offenders to notify the Department of Public Safety within one working day if the offender later "establishes or changes an electronic mail address, instant messaging address, or other Internet communication identifier." Finally, the statute requires sex offenders who are required to file annual or quarterly written verifications to report, "in the manner required by the department . any changes to the information previously provided [in the sex offender's initial registration]." A companion statute, AS 11.56.840, makes the failure to comply with these registration, notification, and verification requirements a criminal offense. Under AS 11.56.840(a), a person is guilty of second-degree failure to register as a sex offender if the person is required to register under AS 12.63.010, knows of that requirement, and fails to: (A) register; (B) file written notice of (i) change of residence; () change of mailing address; (#) establishment of an electronic or messaging address or any change to an electronic or messaging address; or (iv) establishment of an Internet communication identifier or any change to an Internet communication identifier; (C) file the annual or quarterly written verification; or (D) supply accurate and complete information required [to be in compliance with these registration requirements]. Patterson acknowledges that these provisions of law apply to him, but he argues that none of these provisions requires sex offenders in his situation (4.e., sex offenders whose initial registration occurred prior to January 1, 2009, the effective date of the email disclosure requirements) to make an initial disclosure of "each electronic mail address, instant messaging address, and other Internet communication identifier used by the . offender." Patterson argues that the only duty faced by offenders in his situation is the continuing duty to "update" the Department with newly established email addresses or changes to existing addresses. This argument ignores the uncodified portion of the 2008 session law that created the email disclosure requirements. In that session law, the Alaska Legislature specifically addressed how these requirements applied to offenders like Patterson who filed their initial registration prior to the January 1, 2009 change in law. This uncodified portion of the session law provides in pertinent part: APPLICABILITY. (c) . a sex offender or child kidnapper whose duty to register as a sex offender or child kidnapper arose: (1) on or before December 31, 2008, does not have to initially report electronic or messaging addresses or Internet communication identifiers to the Department of Public Safety until the date that the sex offender or child kidnapper's next annual, or quarterly if applicable, written verification is due. As this section makes clear, convicted sex offenders like Patterson who filed their initial registration on or before December 31, 2008, still must comply with the requirement to report all of their email addresses. But for these offenders, this duty did not go into effect until their first annual or quarterly verification came due after the effective date of the January 1, 2009 email disclosure requirement. The uncodified portion of the session law also made clear that once these offenders complied with their initial disclosure requirement and reported all the email addresses they used (regardless of when those email addresses were established), these offenders had a continuing duty to report any newly established email addresses or changes to existing email addresses: after the initial report of addresses and identifiers is due, the sex offender or child kidnapper shall report the establishment of an electronic or messaging address, or any changes to those addresses, or the establishment of an Internet messaging address, or any changes to those addresses, or the establishment of an Internet communication identifier, or any change to an identifier, as required by AS 11.56.840 and AS 12.63.010. Thus, contrary to Patterson's argument, sex offenders who registered prior to January 1, 2009, were not entitled to keep the email addresses they created before that date secret. Instead, like all other sex offenders, they were required to provide an initial disclosure of all the email addresses they used, and then to keep that list current and up-to-date. At oral argument, Patterson argued that he could not be convicted of a crime for violating an uncodified provision of a session law. Because this argument was raised for the first time at oral argument, the parties have not briefed this question. We note that AS 11.81.220 declares that "Inlo conduct constitutes an offense unless it is made an offense (1) by [a provision of} this title; [or] (2) by a statute outside this title; or (8) by a regulation authorized by and lawfully adopted under a statute." It is unclear whether uncodified provisions of a session law qualify as "statutes" for purposes of AS 11.81.220. But even assuming they do not, the fact remains that Patterson was not prosecuted for violating an uncodified portion of the session law. Rather, he was prosecuted for violating AS 11.56.840(a)8)(C) and (D)-the statutory provisions that make it a crime for sex offenders to fail to "supply accurate and complete information required to be submitted" in their annual or quarterly written verification. The uncodified portion of the session law is relevant to Patterson's case only because it clarifies when and how he was required to provide his initial disclosures. We agree that the uncodified nature of this portion of the session law could potentially create due process concerns. But we note that Patterson is no longer claiming that he did not have proper notice of these reporting requirements. Nor do we believe that he would prevail on such a claim, given that his quarterly verification form, on its face, required him to disclose all of his email addresses. Indeed, Patterson demonstrated that he understood the form was not just asking for "newly established" email addresses because he did disclose a different preexisting email address (one that he established in 2008) in his 2009 quarterly verification. We therefore conclude that any notice concerns raised by the lack of codification do not exist here. For these reasons, we reject Patterson's argument that he had no legal duty to disclose his pre-existing email addresses, and we uphold the district court's decision to deny Patterson's motion to dismiss. Conclusion The district court's judgment is AP-FIRMED. . AS 11.56.840(a)(3)(C)-(D). We note that at the time Patterson committed his offense, the numbering of this subsection was different, though the substance was the same. For purposes of clarity we use the current statutory numbering scheme in this decision. See ch. 42 § 1, SLA 2008. . AS 12.63.020(a)(1)(B); AS 12.63.010(d)(2). . AS 12.63.010(b)(1)(I), (c), (d) (enacted by ch. 42, § 1, 7, SLA 2008) (effective Jan. 1, 2009). . AS 11.56.840(a)(3)(B). . AS 12.63.010(b)(1)(D). . AS 12.63.010(c). . AS 12.63.010(d)(1)-(2). . _ AS 11.56.840(a)(3)(A)-(D). . AS 12.63.010(b)(1)(D). . AS 11.56.840(a)(3)(B), (D). . Ch. 42, § 6, SLA 2008. The text of this unco-dified session law is also found in the "Editor's Notes" following AS 12.63.010 in the annotated statutes published by the Alaska Legislative Council. . Id.

10378439

Leslie WILLIAMS, Appellant, v. UTILITY EQUIPMENT, INC., Appellee

Williams v. Utility Equipment, Inc.

1992-08-14

Nos. S-4280, S-4335

1112

1118

837 P.2d 1112

837

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:15:02.151835+00:00

CAP

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

Leslie WILLIAMS, Appellant, v. UTILITY EQUIPMENT, INC., Appellee.

Leslie WILLIAMS, Appellant, v. UTILITY EQUIPMENT, INC., Appellee. Nos. S-4280, S-4335. Supreme Court of Alaska. Aug. 14, 1992. Steven D. Smith, Anchorage, and George Vogt, Kodiak, for appellant. Joan M. Unger, Richmond & Quinn, Anchorage, for appellee. Patricia L. Zobel and David Ploerchinger, Staley, DeLisio, Cook & Sherry, Inc., Anchorage, for amicus curiae Alaska Rural Elec. Co-op. Ass’n., Inc. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

3439

21565

OPINION MOORE, Justice. In this products liability action, Leslie Williams challenges several of the trial court's evidentiary rulings and argues that the court erred in denying his motion for a new trial. In a separate appeal, Williams challenges the court's determination that defendant Utility Equipment had the right to satisfy its attorney fee award from the proceeds of a pretrial settlement with two other defendants. The trial court found that Utility Equipment's right to these funds was superior to both Williams' attorneys' rights under Alaska's attorney lien statute and Williams' employer's rights under the Alaska Workers' Compensation Act. We affirm the court's order denying a new trial but reverse, in part, its order disbursing the settlement funds. We believe that the trial court properly determined that Utility Equipment's Rule 82 award is a "cost of litigation" which must be deducted from the settlement funds held in trust by Williams' attorneys before Williams' employer may obtain reimbursement under AS 23.30.015(g). However, we hold that Utility Equipment's right to satisfy its fee award out of the settlement funds is subordinate to the lien held by Williams' attorneys under AS 34.35.430. I. Facts and Proceedings On December 15, 1987, Leslie Williams, an employee of Kodiak Electric Association ("KEA"), suffered a back injury in the course of his employment as he was preparing his truck for a service run. He applied for and has regularly received workers' compensation benefits. During the course of this litigation, Williams' accounts of his accident have not been entirely consistent. In the accident report he filed with his employer on the day of his injury, Williams attributed the accident to icy conditions as he got off the truck. He wrote "stepping out of bucket truck and onto the snow and icy ground, balance and footing was lost." In a workers' compensation report filed the following day, he wrote "slipped and fell on ice while carrying things." About a month later, Williams consulted two doctors for his back pain. Both doctors' records indicate that Williams stated that his injuries were caused when he fell from a truck. In March 1988, Williams consulted a lawyer regarding possible liability for his injuries. A year later, Williams filed a products liability action against Utility Equipment, Kodiak Motors and Service Manufacturing, the manufacturers and distributors of the allegedly defective truck bed. Williams claimed that he fell off the truck due to the defective placement of the locking controls which prevented clear access to the controls. He sought damages for past and future loss of income in an amount in excess of $100,000. During discovery, Williams admitted in his deposition that he had had problems with substance abuse, but also stated that he had successfully completed a court ordered treatment program in 1976, and had not used illegal drugs in the last five years. In a signed affidavit, Williams swore that he was not under the influence of drugs or alcohol at the time he fell from the truck. He also clarified the statements he made in his deposition about illegal drug use during the past five years. He admitted having recently procured a portion of a friend's prescription for Dilaudid, a strong narcotic. Williams subsequently filed a motion asking the court to prohibit Utility Equipment from using evidence of his drug use to imply negligence or bad character. Prior to trial, Williams settled with Service Manufacturing for $50,000. Most of the settlement funds were divided between Williams' attorneys and Alaska Rural Electric Cooperative Association ("ARECA"), KEA's workers' compensation insurer. Williams later settled with Kodiak Motors for $50,000. Williams' attorneys' received this money but did not distribute it to Williams, presumably pending resolution of the competing claims of the attorneys and ARECA. Williams proceeded to a full jury trial against Utility Equipment. Williams first presented the testimony of James Hamilton, the shop steward at KEA, who stated that Williams had told him he had fallen off the truck the day of the accident. Next Williams testified that on the day of the accident, he and Darryl Walker were preparing to begin their field work. Williams testified that he climbed onto the truck to latch the truck boom which had not been properly secured. He testified that he lost his balance and fell from the truck as he was dismounting. No one saw Williams fall. Darryl Walker testified that he heard a "thud" as he entered the garage shortly after Williams. He testified as follows: Walker: I got to him as quick as I could and asked him what — if he was hurt. He couldn't hardly breathe. Williams' counsel: What happened next? Walker: He said he'd fallen off.... Utility Equipment's counsel: Excuse me. I would object — if Mr. Williams can testify, but I think it's hearsay what this witness has said, your honor. The court: The court will allow the testimony at this time. Williams' counsel: You may continue Mr. Walker, tell us. Walker: I asked him if he was all right. He was trying to catch his wind. "Les, are you all right?" "No, I hurt my back." So I kind of got him up a little bit so he could get his wind and then he kinda got up. And he got in the pick-up truck. Williams counsel: Just as [Utility Equipment's counsel] made his objection you were about to say he said something, what was that? Subsequently, Williams' counsel was unable to get Walker to explicitly state that Williams had told Walker that he had fallen from the truck. On cross-examination, Walker testified concerning the normal procedure for latching the boom. Utility Equipment's counsel also questioned Walker concerning inconsistencies between his deposition and trial testimony. Williams' counsel later sought to enter into evidence medical records recording Williams' statements that his injury resulted from falling off a truck. The court refused to admit these records on the grounds that these statements were inadmissible hearsay and that they were cumulative of other evidence already presented. Before Utility Equipment presented its case, the trial court clarified its protective order, stating that it would not allow testimony concerning Williams' use of Dilaudid or other illegally obtained pharmaceuticals. The court stated that it would allow testimony regarding Williams' prescription drug use as long as it was accompanied by a showing of relevance. Utility Equipment presented the testimony of Dr. Michael James, a physical rehabilitation specialist who started treating Williams for pain in April 1988. Dr. James reviewed in detail medical records dating back as far as 1983 indicating Williams' history of prescription drug use. He also mentioned that Williams had asked him for stronger medication and that Williams had specifically suggested Dilaudid. Dr. James testified that, in his opinion, Williams suffered from chronic pain syndrome, which is characterized by a long history of prescription drug use. Williams' counsel did not specifically object to this testimony, nor did he ask the court to rule on its relevance outside the presence of the jury. In rebuttal, Williams presented the testimony of Dr. Loren Halter, who had been treating Williams for a variety of ailments since 1983. Dr. Halter testified in great detail concerning Williams' use of prescription drugs. The jury asked to rehear Walker's testimony before reaching its verdict. The jury only answered one question on the special verdict form. It found that Williams did not fall off of the truck, and returned a verdict for Utility Equipment. Williams made a motion for a new trial which the trial court denied. On July 26, 1990, Utility Equipment filed a motion seeking to hold in abeyance the distribution of $50,000 held in trust from the pretrial settlement agreement with Kodiak Motors. Williams opposed this motion. On July 30, 1990, the court ordered these funds to be held pending the court's decision concerning the proper disbursement of these funds. On August 8, 1990, the trial court awarded Utility Equipment $65,500 in fees and costs under Alaska Civil Rule 82. On October 15, 1990, the trial court ruled that Utility Equipment's fees and costs were to be paid first out of the funds held in trust. On November 13, 1990, the court clarified its order, stating: [Utility Equipment] has first priority [to the settlement funds] for its attorney's fees and costs under AS 34.35.430(b). [Williams] and employer follow and their priority is determined by AS 23.30.015(g). This appeal followed. ARECA filed an amicus brief. At the time of this appeal, ARECA had paid Williams over $170,000 in workers' compensation benefits. II. Discussion A: Evidentiary Issues This court will review the trial court's decision on admissibility of evidence under the abuse of discretion standard. Hawley v. State, 614 P.2d 1349,1361 (Alaska 1980). The trial court's decision to grant or deny a party's motion for a new trial is likewise reviewed for an abuse of discretion. Exxon Corp. v. Alvey, 690 P.2d 733, 741 (Alaska 1984). (1) Walker's testimony Williams argues that the trial court improperly excluded Darryl Walker's testimony that he heard Williams say "I fell off the truck" immediately following his accident. Our review of the record does not support his contention. Walker was interrupted by an objection from Utility Equipment's counsel. The trial court overruled the hearsay objection, but Williams' counsel was unable to elicit the desired response from Walker because he was unable to frame his questions appropriately. Furthermore, Walker's subsequent testimony indicates that Williams told him that he had fallen "off the back." We conclude that the trial court did not improperly "exclude" any of Walker's testimony. (2) Medical records Williams argues that the trial court improperly excluded medical records substantiating his statement that he had fallen off the truck. The court refused to admit these records, holding that Williams' statements were inadmissible hearsay and cumulative of evidence already presented. Specifically, the court ruled that Williams' statements about falling off the truck were not admissible under the medical diagnosis exception to the hearsay rule because "whether it was a fall from the truck or slipping on the ice, those are not relevant to the nature of the diagnosis or treatment. ." The evidence rule which governs is Rule 803(4) which provides that: Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character or cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment . are not hearsay. We believe that the trial court erred in its hearsay analysis because Williams' statements to his physicians were made for the purpose of diagnosis or treatment, were related to the cause of his back injury, and were reasonably pertinent to its diagnosis or treatment. In Johnson v. State, 579 P.2d 20 (Alaska 1978), we observed that [sjtatements of a patient as to presently existing body conditions are generally admitted as evidence of the facts stated because there is a high likelihood of truthfulness resulting from the patient's belief that the doctor will rely on such statements in his diagnosis and treatment. Where statements going to the cause of a patient's condition relate information desirable for diagnosis and treatment, they are also admissible based on the same indicia of reliability.... McCormick and the commentary on the Federal Rules of Evidence [distinguish] between general statements made going to the cause of injury which are important to diagnosis and treatment, and statements entering the realm of fixing fault. Since statements fixing fault and indicating the identity of an assailant are not relevant to medical diagnosis or treatment, they lack assurances of reliability and should be excluded. Id. at 22 (footnotes omitted). Williams' description of his accident does not directly fix fault or identify an assailant. We also believe that it is relevant to the diagnosis of a back injury whether a person fell from a height or slipped on the ground. Therefore, under Johnson, Williams' statements were not inadmissible hearsay. However, the court did not abuse its discretion in excluding this evidence as cumulative under Alaska Rule of Evidence 403. This rule provides that relevant evidence "may be excluded if its probative value is outweighed . by considerations of . needless presentation of cumulative evidence." Alaska R.Evid. 403. Here, in addition to Walker's testimony, both James Hamilton and Dr. James testified that Williams told them that he had fallen off the truck. These statements substantiate Williams' own testimony that he had fallen off the truck. • The jury certainly heard evidence that Williams had repeatedly reported that he had fallen off the truck. See Hiller v. Kawasaki Motors Corp., 671 P.2d 369, 372-73 (Alaska 1983) (exclusion of evidence not prejudicial where same evidence presented to the jury in a different form). We conclude that the trial court did not err in excluding these medical records. (3) Dr. James' testimony concerning Williams' drug use Williams argues that the trial court violated its own protective order and erroneously admitted Dr. James' testimony concerning Williams' use of Dilaudid and other prescription drugs. During his testimony, Dr. James mentioned Williams' use of Dilaudid. He also testified at length concerning Williams' use of prescription drugs which he stated was indicative of chronic pain syndrome. This testimony was not preceded by a foundation of relevance in the absence of the jury, as the trial court's order had suggested would be necessary. Although Williams may have had grounds for objecting to Dr. James' testimony, he did not make specific objections while Dr. James was on the stand. In fact, after Dr. James finished testifying, Williams' counsel presented the testimony of another doctor who testified concerning Williams' drug use. We conclude that Williams waived his objections, despite the protective order, when he did not make specific objections as the testimony was presented. Alaska State Housing Auth. v. Vincent, 396 P.2d 531, 534 (Alaska 1964) (a party may not raise objection to evidence on appeal when evidence was admitted at trial without objection). B: Disbursement of Settlement Proceeds At the close of trial, Williams' attorneys held $54,094.79 from the pretrial settlements with Service Manufacturing and Kodiak Motors. The trial court ruled that Utility Equipment's right to satisfy its Rule 82 award from these funds was superior to both Williams' attorneys' rights under AS 34.35.430(b) and Williams' employer's rights under AS 23.30.015(g). Because the proper disbursement of the settlement proceeds depends on the interpretation of AS 34.35.430(b) and AS 23.30.015(g), a question of law is presented. In reviewing a question of law, we will "adopt the rule of law that is most persuasive in light of precedent, reason and policy." Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). (1) The employer's rights under AS 23.30.015(g) Alaska Statute 23.30.015(g) requires an employee receiving workers' compensation benefits to reimburse the employer from any third party recovery "insofar as the recovery is sufficient after deducting all litigation costs and expenses." We have previously observed that the underlying purpose of this section is to prevent an injured employee from obtaining a double recovery. Stafford v. Westchester Fire Ins. Co. of New York, 526 P.2d 37, 40 (Alaska 1974), overruled on other grounds by Cooper v. Argonaut Ins. Co., 556 P.2d 525 (Alaska 1976). In Cooper, we interpreted AS 23.30.015(g) to require the employer to pay a pro rata share of the costs of recovery in order to prevent the carrier from reaping a windfall at the employee's expense. 556 P.2d at 527. The application of AS 23.30.015(g) to this case is difficult because, although Williams recovered from Service Manufacturing and Kodiak Motors, after his unsuccessful trial against Utility Equipment, his total litigation costs exceeded his total recovery. In its amicus brief, ARECA maintains that the settlement recoveries are unconnected to Williams' unsuccessful claim against Utility Equipment and concludes that Utility Equipment has no special claims to payment from these funds. We find ARECA's arguments unpersuasive. Essentially, ARECA asks to share in the fruits of Williams' successful claims while forcing Williams to shoulder the entire cost of his unsuccessful claim against Utility Equipment. We believe that this is contrary to our holding in Cooper. See Cooper, 556 P.2d at 527. "All litigation costs" must be read broadly to include the costs a plaintiff incurs in pursuing all the claims arising out of his or her injury. We hold therefore that AS 23.30.015(g) contemplates a net gain from third party actions and allows employers to be reimbursed from that gain. The practical effect of our holding in this case will be to allow plaintiffs like Williams to control funds recovered from third parties while there are still pending claims against other defendants. Although a plaintiff may agree to an earlier disbursement to the employer under AS 23.30.015(g) (and therefore assume the risk that the cost of future litigation may exceed recovery), he or she has the right to retain any funds recovered until all third-party claims are resolved. (2) Williams' attorneys' rights under AS 3^.35.430 The trial court determined that Williams' attorneys' right to the settlement funds under AS 34.35.430 was subordinate to Utility Equipment's right to recover attorney's fees as a prevailing party. Alaska R.Civ.P. 82. We disagree. It is undisputed that Williams' attorneys had a lien on the settlement proceeds still in their possession at the close of trial. AS 34.35.430(a)(2); see In re Sea Catch, Inc., 36 B.R. 226, 230-31 (Bankr.D.Alaska 1983). Although AS 34.35.430(b) provides that an attorney lien is "subordinate to the rights existing between the parties," we believe that this section is properly interpreted to apply only to the parties actually involved in each settlement. Utility Equipment was not a party to either pretrial settlement, and therefore is not entitled to priority under AS 34.35.430(b). See Phillips v. Jones, 355 P.2d 166, 172 (Alaska 1960) (attorney lien statute should be liberally construed to effect its statutory goal of furnishing security to attorneys for their efforts). To hold otherwise would deter settlements in cases involving multiple defendants. We therefore reverse the trial court on this issue and remand this case to the trial court for a disbursement order consistent with this opinion. AFFIRMED in part, REVERSED in part and REMANDED. . Apparently the court granted Williams request for a protective order, but this order is not included in the record. . Williams' attorneys also held in trust $4,094.79, the undistributed portion of the settlement with Service Manufacturing, for a total of $54,094.79. . Williams argues that the trial court's order holding the settlement funds in abeyance does not conform to Alaska Civil Rule 65. We agree that the trial court's order does not conform to the rules governing either temporary restraining orders or attachment. See Alaska R.Civ.P. 65; Alaska R.Civ.P. 88. However, we do not address this issue, since our holding on the merits is dispositive. . AS 23.30.015(g) provides; If the employee or the employee's representative recovers damages from the third person, the employee or representative shall promptly pay to the employer the total amounts paid by the employer under (e)(1)(A), (B), and (C) of this section, insofar as the recovery is sufficient after deducting all litigation costs and expenses. Any excess recovery by the employee or representative shall be credited against any amount payable by the employer thereafter. . AS 34.35.430 provides: (a) An attorney has a lien for compensation, whether specially agreed upon or implied, as provided in this section (1) first, upon the papers of the client that have come into the possession of the attorney in the course of the professional employment; (2) second, upon money in the possession of the attorney belonging to the client; (3) third, upon money in the possession of the adverse party in an action or proceeding in which the attorney is employed, from the giving of notice of the lien to that party; (4) fourth, upon a judgment to the extent of the costs included in the judgment or, if there is a special agreement, to the extent of the compensation specially agreed on, from the giving of notice of the lien to the party against whom the judgment is given and filing the original with the clerk where the judgment is entered and docketed. (b) This lien is, however, subordinate to the rights existing between the parties to the action or proceeding.

10372292

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

Wood v. State

1992-08-14

No. A-3537

743

749

837 P.2d 743

837

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:15:02.151835+00:00

CAP

Before BRYNER, C.J., and ANDREWS and FABE, Superior Court Judges.

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

Robert D. WOOD, Appellant, v. STATE of Alaska, Appellee. No. A-3537. Court of Appeals of Alaska. Aug. 14, 1992. Larry Cohn, Anchorage, for appellant. Jill De La Hunt, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and ANDREWS and FABE, Superior Court Judges. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

3829

23507

OPINION BRYNER, Chief Judge. After a jury trial presided over by Superior Court Judge Joan M. Katz, Robert D. Wood was convicted of six counts of sexual abuse of a minor in the second degree. Wood appeals, contending that Judge Katz erred in restricting his cross-examination of the alleged victim, in refusing to suppress certain items of evidence resulting from the execution of a search warrant that failed to describe the objects to be seized with adequate particularity, and in failing to declare a mistrial due to various discovery violations. We reverse. PROCEDURAL BACKGROUND Wood's convictions stem from incidents of sexual abuse — primarily mutual masturbation — alleged to have occurred between June of 1987 and June of 1988. The incidents purportedly involved Q.C., a boy who was then twelve to thirteen years old. The alleged sexual abuse of Q.C. came to light in November and December of 1988 as a result of an investigation by the Alaska State Troopers into an unrelated incident involving Wood's solicitation of another minor for purposes of engaging in sexual acts. In the course of that investigation, a neighbor of Wood identified Q.C. to the troopers as a child who had previously associated with Wood. When questioned by the troopers, Wood acknowledged that Q.C. had frequently visited and stayed with him, but Wood denied any sexual involvement with Q.C. After receiving this information, Trooper James D. Farrell interviewed Q.C. on December 16, 1988, to determine if the boy had been a victim of molestation by Wood. Q.C. initially denied any molestation. Farrell, however, persisted. Using a technique he later described as "bluffing," Farrell urged Q.C. to "go ahead and tell us because we already know and we want to get your side of the story." In response, Q.C. acknowledged that Wood had molested him. During the balance of the December 16 interview, and in later interviews on December 19 and 20, Q.C. described an ongoing pattern of sexual contacts by Wood during the latter half of 1987 and the first half of 1988. On March 8, 1989, Q.C. testified before a grand jury, which indicted Wood. After issuance of the indictment, Wood's counsel evidently learned that Q.C. had, himself, been accused of sexually abusing a minor. On March 8, 1988 — during the same period in which Wood was allegedly molesting Q.C. — Alaska State Trooper Ellen Kord had interviewed Q.C. concerning a complaint that Q.C. had had sexual contact with J.P., a seven-year-old girl Q.C. was babysitting. Q.C. admitted molesting J.P. During the same interview, Kord asked Q.C. if he had ever been sexually abused. Q.C. told Kord that, when he was six years old, a cousin had sexually penetrated him; Q.C. also told Kord that a friend of his mother had once attempted to French-kiss him. Q.C. expressly denied any other sexual abuse. After Kord's March 8, 1988, interview, the troopers had referred Q.C.'s case to juvenile authorities for possible delinquency proceedings. In May of 1988, Q.C. had apparently entered into a "conduct agreement" — essentially a form of deferred prosecution whereby the state agreed to hold delinquency proceedings in abeyance for a one-year period, and ultimately to forego formal charges, provided that Q.C. remained on good behavior in the interim. After learning about Kord's March 8 interview with Q.C., Wood requested the trial court to allow him to cross-examine Q.C. concerning the charge that he had sexually abused J.P. Among several grounds for this request, Wood expressly asserted that, when Trooper Farrell interviewed Q.C. in December of 1988, Q.C. might have been motivated to fabricate his claims of sexual abuse against Wood. Wood theorized that Q.C. might have wanted to curry favor with Farrell, fearing that if he (Q.C.) did not accuse Wood of molesting him, Farrell might view Q.C. as being uncooperative and might use the lack of cooperation as a basis for terminating the one-year conduct agreement relating to J.P., which was still in effect at the time. Judge Katz denied Wood's request, finding that the probative value of evidence relating to Q.C.'s involvement in the J.P. incident would be outweighed by the potential prejudice such evidence would create. The judge precluded Wood from any inquiry concerning the conduct agreement resulting from the J.P. incident. Wood challenges this ruling on appeal. DISCUSSION A defendant's right to cross-examination in a criminal case is secured by the confrontation clauses of the United States and Alaska Constitutions. U.S. Const, amend. VI; Alaska Const, art. I, § 11. Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness' story to test the witness' perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness. Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974). The trial court must be particularly solicitous toward cross-examination that is intended to reveal bias, prejudice, or motive to testify falsely. See Evans v. State, 550 P.2d 830, 836-37 (Alaska 1976). See also Hutchings v. State, 518 P.2d 767 (Alaska 1974); RLR v. State, 487 P.2d 27 (Alaska 1971); Whitton v. State, 479 P.2d 302 (Alaska 1970). "The partiality of a witness is subject to exploration at trial, and is 'always relevant as discrediting the witness and affecting the weight of his testimony.' 3A J. Wigmore, Evidence §. 940 p. 775 (Chadbourn rev. 1970)." Davis v. Alaska, 415 U.S. at 316, 94 S.Ct. at 1110. The opinion of the United States Supreme Court in Davis v. Alaska embodies perhaps the most forceful delineation of a defendant's right to cross-examine a prosecution witness to establish bias or motive. Davis was charged with burglary after being identified as the perpetrator by Green, a sixteen-year-old boy who had been adjudicated a delinquent and was on juvenile probation at the time of Davis' offense. During cross-examination, Davis sought to inquire into Green's juvenile record, contending that, because Green was on juvenile probation, his identification of Davis might have been motivated by the desire to curry favor with the state. The trial judge precluded inquiry into the area, relying on an Alaska statute that barred public disclosure of juvenile records. The Alaska Supreme Court upheld Davis' conviction. Davis v. State, 499 P.2d 1025 (Alaska 1972). In reversing the Alaska Supreme Court's decision, the United States Supreme Court emphasized that "the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination." Davis, 415 U.S. at 316-17, 94 S.Ct. at 1110. The Court found that "the jurors were entitled to have the benefit of the defense theory before them so that they could make an informed judgment as to the weight to place on [the witness'] testimony which provided 'a crucial link in the proof . of [the defendant's] act.' " Id. at 317, 94 S.Ct. at 1111 (quoting Douglas v. Alabama, 380 U.S. 415, 419, 85 S.Ct. 1074, 1077, 13 L.Ed.2d 934 (1965)). The Court concluded that "[t]he claim of bias which the defense sought to develop was admissible to afford a basis for an inference of undue pressure because of Green's vulnerable status as a probationer." Davis, 415 U.S. at 317-18, 94 S.Ct. at 1111. In weighing the state's interest in protecting the anonymity of juvenile offenders against the defendant's competing interest in exercising the right to cross-examination, the Davis court clearly found in favor of the latter: Serious damage to the strength of the State's case would have been a real possibility had petitioner been allowed to pursue [the bias] inquiry. In this setting we conclude that the right of confrontation is paramount to the State's policy of protecting a juvenile offender. The State's policy interest in protecting the confidentiality of a juvenile offender's record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias in an adverse witness. Davis, 415 U.S. at 319-20, 94 S.Ct. at 1112. Federal cases have read Davis to require "that the fact of adjudication as a delinquent be disclosed along with the fact of probationary status." Camitsch v. Risley, 705 F.2d 351, 354 (9th Cir.1983). The rule of Davis has been applied in cases involving witnesses who are awaiting trial, see, e.g., Commonwealth v. Cauto, 369 Pa.Super. 381, 535 A.2d 602, 606 (1987); on probation, see, e.g., Davis; and on parole, see, e.g., Patterson v. McCarthy, 581 F.2d 220 (9th Cir.1978). Further, Davis has been applied to witnesses facing deferred prosecution. See, e.g., People v. Peterson, 633 P.2d 1088, 1091 (Colo.App.1981), rev'd on other grounds, 656 P.2d 1301 (Colo.1983). As the court concluded in McKinzy v. Wainwright, 719 F.2d 1525, 1529 (11th Cir.1983): "The rule of Davis applies if any facts could be adduced that might suggest to the jury a motive for the juvenile witness to testify favorably for the state." See also Burr v. Sullivan, 618 F.2d 583 (9th Cir.1980). Although Davis makes it clear that the trial court "must give due regard to the Sixth Amendment's right of confrontation," United States v. Crumley, 565 F.2d 945, 949 (5th Cir.1978), the right to cross-examine is not absolute. Since deciding Davis, the Supreme Court has reaffirmed that "trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant...." Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986). Nevertheless, the Court has carefully distinguished between the imposition of "reasonable limits on" inquiry and the prohibition of "all inquiry into" specific areas of possible bias. Id. See also Davis v. Alaska, 415 U.S. at 318, 94 S.Ct. at 1111 ("While counsel was permitted to ask [the witness] whether he was biased,' counsel was unable to make a record from which to argue why [the witness] might have been biased....") (emphasis in original). In the present case, Judge Katz precluded Wood from all cross-examination intended to establish that Q.C. was subject to the terms of a "conduct agreement," a type of informal juvenile probation, when he first reported being sexually abused by Wood and when he testified against Wood before the grand jury. The pendency of the conduct agreement and Q.C.'s express admission that he had engaged in the delinquent behavior upon which that agreement was based were certainly "facts . that might suggest to the jury a motive for . [Q.C.] to testify favorably for the state." McKinzy v. Wainwright, 719 F.2d at 1529. Had the jury been aware of these facts, Wood's counsel could have argued that Q.C.'s initial report of abuse to Farrell was motivated by his desire to be cooperative in order to avert the risk that the state might seek to terminate his conduct agreement and initiate delinquency proceedings. Limiting Wood's ability to advance this theory of bias seems especially problematic in light of the specific facts of this case. Q.C. originally told Trooper Kord, in March of 1988, that, except for one incident involving a cousin and another involving a former friend of his mother, he had never been sexually abused. At the outset of the December 16, 1988, interview with Trooper Farrell, Q.C. denied being abused by Wood. Q.C. only reported that Wood had molested him after Farrell refused to accept Q.C.'s denial and "bluffed" by saying that he already knew what had occurred. Without evidence of the pending conduct agreement, Wood was certainly free to argue that the manner in which Farrell conducted the December 16 interview was unduly suggestive; but the jury could have no basis for concluding that Q.C. had any reason to accommodate Farrell by fabricating a claim of abuse. Had Wood been permitted to establish the existence of the conduct agreement, the evidence would have allowed him to argue not only that Farrell suggested what he wanted Q.C. to say, but also that Q.C. was strongly motivated to say what Farrell evidently wanted to hear. Judge Katz' decision to preclude cross-examination on this issue seems to have been based in part on the conclusion that Q.C.'s conduct agreement was unrelated to Wood's case and apparently contained no express requirement of cooperation with the state. But such considerations are not determinative: "The test is the witness' expectation or hope of a reward, not the actuality of a promise by the State." State v. Little, 87 Ariz. 295, 299, 350 P.2d 756, 760 (1960), quoted in Whitton v. State, 479 P.2d 302, 317 (Alaska 1970). As held in Commonwealth v. Cauto, 535 A.2d at 605: Even if the prosecutor has made no promises, either on the present case or on other pending criminal matters, the witness may hope for favorable treatment from the prosecutor if the witness presently testifies in a way that is helpful to the prosecution. And if that possibility exists, the jury should know about it. The state argues that Q.C.'s conduct agreement was too "remote" to warrant cross-examination, because the agreement was evidently meant to remain effective for only a one-year term beginning in May of 1988; it had thus expired by the time Q.C. testified at trial in November of 1989. This argument is unpersuasive. The United States Supreme Court dealt with a similar situation in Davis v. Alaska. The Court in Davis described the position taken by defense counsel at trial as follows: In the instant case, defense counsel sought to show the existence of possible bias and prejudice of [the witness], caus ing him to make a faulty initial identification of petitioner, which in turn could have affected his later in-court identification of petitioner. Davis v. Alaska, 415 U.S. at 317, 94 S.Ct. at 1111 (footnote omitted). With regard to defense counsel's position, the Davis court cited with approval the following passage from 3A J. Wigmore, Evidence § 940, p. 776 (Chadbourn rev. 1970): [A] partiality of mind at some former time may be used as the basis of an argument to the same state at the time of testifying; though the ultimate object is to establish partiality at the time of testifying. Davis, 415 U.S. at 317 n. 5, 94 S.Ct. at 1111 n. 5 (emphasis in original). Here, even though Q.C.'s conduct agreement had apparently expired by the time Wood was brought to trial, it is undisputed that the agreement remained in effect when Farrell interviewed Wood on December 16, 1988, and also when Q.C. testified before the grand jury in March of 1989. At trial, Q.C. may well have felt committed to conform his testimony to the version of events he had already given Farrell and had repeated under oath to the grand jury. In barring cross-examination concerning the conduct agreement, Judge Katz concluded that the probative value of this evidence would be outweighed by its potential for prejudice. However, the judge did not specify the nature of the prejudice upon which she based this conclusion. The United States Supreme Court's ruling in Davis precludes a finding that the relevance of the proposed cross-examination would be outweighed by the prejudice stemming from a violation of the state's interest in preserving the confidentiality of Q.C.'s juvenile record. It seems more likely that Judge Katz was concerned — and properly so — with the potential for prejudice inherent in informing the jury that Q.C. had himself engaged in sexually abusive conduct toward others. Such information would inevitably have created at least some risk that jurors might view Q.C. as an unsavory person who was unworthy of the full protection of the law, regardless of the credibility of his claims. This potential source of prejudice, however, did not justify a complete preclusion of inquiry into Q.C.'s conduct agreement. Here, as an alternative to barring inquiry altogether, Judge Katz could readily have avoided undue prejudice by placing "reasonable limits," Delaware v. Van Arsdall, 475 U.S. at 679, 106 S.Ct. at 1435, on the scope of cross-examination. For example, Judge Katz could have allowed Wood to establish the existence of the conduct agreement and of the general fact that the agreement was based on Q.C.'s admitted involvement in delinquent behavior involving conduct amounting to a felony, while restricting inquiry into the details and specific nature of the delinquency charge. Moreover, while restricting cross-examination on the issue of motive, Judge Katz allowed Wood's counsel to question Q.C. about Q.C.'s abuse of J.P., in order to establish Q.C.'s knowledge of the term "mo- testing." Given the court's willingness to admit evidence of the J.P. incident for this purpose, the risk of incremental prejudice resulting from Wood's proposed cross-examination concerning the conduct agreement would at most have been marginal, and would not have outweighed the probative value of the evidence. In the present case, Q.C. was the state's primary witness against Wood; corroborating evidence was minimal, and the state's case hinged on Q.C.'s credibility. Under the circumstances, we are unable to say that the error in precluding cross-examination on the issue of motive was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Wood's conviction must therefore be REVERSED. . In connection with the investigation. Wood separately entered a plea of no contest to a charge of solicitation of sexual abuse of a minor in the third degree. Wood does not challenge his conviction for solicitation in this appeal. . Judge Katz did allow Wood to impeach Q.C. by establishing, in general terms, that Q.C. had been interviewed by Kord on March 8, 1988, and had denied being sexually abused by anyone other than a cousin and a former friend of his mother's. In addition, after Q.C. testified that he did not know what the word "molesting" meant when Trooper Farrell first interviewed him in December of 1988, Judge Katz permitted Wood to establish that Kord had interviewed Q.C. on March 8, 1988, and that, during the interview, Q.C. had admitted "molesting" the child. The judge instructed the jury, however, that the sole purpose of this evidence was to establish Q.C.'s awareness of the word "molesting" prior to his interview with Farrell. . For its claim of remoteness, the state relies on Coffey v. State, 585 P.2d 514, 522-24 (Alaska 1978). Coffey was a case involving an illegal drug sale, in which the defendant sought to cross-examine the undercover informant about a prior misdemeanor charge that had been brought against the informant in another state. The prior charge had already been dismissed when the alleged offense was committed. There was no evidence indicating that the dismissal was conditioned on the informant's continued good conduct. At the time of the alleged transaction, the informant was seeking to become a regular member of the Alaska State Troopers. By the time of trial, he had achieved this status and had completed a one-year probationary period. During trial, the court allowed defense counsel broad latitude in cross-examination to establish that, at the time of the alleged offense, the informant was highly motivated to enhance his prospects for employment as a trooper by making successful cases as an undercover informant. The trial court precluded cross-examination into the previously dismissed conviction, however, and the Alaska Supreme Court affirmed on appeal. The circumstances in Coffey are readily distinguishable from those in the present case. Here, Q.C. was expressly required to remain on good behavior for the duration of his conduct agreement, which had not yet expired when he made his initial claims of abuse. Moreover, Wood's cross-examination of Q.C. at trial revealed no independent evidence indicating bias or a motive to fabricate the claim of sexual abuse against Wood. . As we have Indicated in footnote 2, infra, although the trial court's ruling allowed the jury to learn that Q.C. had evidently molested J.P., it did not permit Wood to establish that Q.C. had eventually entered into a conduct agreement in connection with the incident, by virtue of which he remained vulnerable to delinquency proceedings when interviewed by Farrell on December 16, 1988. In connection with the inquiry into Q.C.'s abuse of J.P., Judge Katz expressly cautioned the jury that the evidence was to be considered for the sole purpose of establishing Q.C.'s understanding of the term "molesting." Wood's ability to cross-examine Q.C. concerning the J.P. incident for this limited purpose cannot be deemed to offset the improper restriction of Wood's right to inquire on the issue of motive: "[T]he unconstitutional limit of cross examination is not cured simply by acknowledging that other means of impeachment were possible and permitted." McKinzy v. Wainwright, 719 F.2d 1525, 1529 (11th Cir.1983). . Our decision renders it unnecessary for us to consider Wood's remaining claims of error except in passing, to provide guidance to the parties and the trial court in the event of a retrial. With regard to Wood's claim that the trial court erred in denying his motion to suppress for lack of particularity, we conclude that the trial court did not err in finding portions of the challenged warrant sufficiently particular, see Namen v. State, 665 P.2d 557, 562-63 (Alaska App.1983), and United States v. Spilotro, 800 F.2d 959 (9th Cir.1986), or in relying on the doctrine of sever-ability to allow admission of evidence seized under those portions, see generally 2 W.R. La-Fave, Search and Seizure § 4.6(a), at 234-42 (2d ed. 1987). In any event, the seized articles admitted at trial were of minimal probative value; any error in failing to suppress them would appear to have been harmless. We note, moreover, that, apart from asserting his claim that the articles were illegally seized, Wood did not object to their admission. Because some of the disputed articles would arguably be excludable on relevance grounds, see Page v. State, 657 P.2d 850 (Alaska App.1983), our resolution of Wood's suppression claim may not be determinative of the issue of admissibility in the event of a retrial. With regard to Wood's claim that the trial court erred in failing to declare a mistrial as a result of various discovery violations by the state, we conclude that the sanctions imposed against the state at trial were fully adequate and that the court did not err in refusing to dismiss the case. See Williams v. State, 629 P.2d 54, 64 (Alaska 1981); Putnam v. State, 629 P.2d 35, 43 (Alaska 1980); Abdulbaqui v. State, 728 P.2d 1211 (Alaska App.1986).

10378658

Frank STEFFENSEN, Appellant, v. STATE of Alaska, Appellee

Steffensen v. State

1992-08-28

No. A-3947

1123

1128

837 P.2d 1123

837

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:15:02.151835+00:00

CAP

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

Frank STEFFENSEN, Appellant, v. STATE of Alaska, Appellee.

Frank STEFFENSEN, Appellant, v. STATE of Alaska, Appellee. No. A-3947. Court of Appeals of Alaska. Aug. 28, 1992. Marcia E. Holland, Asst. Public Defender, Fairbanks, and John B. Salemi, Public Defender, Anchorage, for appellant. Cynthia L. Herren, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

2643

17116

OPINION MANNHEIMER, Judge. Frank Steffensen appeals from the superior court's dismissal of his petition for post-conviction relief. We affirm. On May 5, 1988, Steffensen was in the Cottage Bar in Fairbanks. Fairbanks Police Officer L.C. Brown was dispatched to the Cottage Bar to investigate a tip that another man, J.S., who was wanted on an outstanding warrant, was present in the bar. When Officer Brown entered the bar, he approached Steffensen because Steffen-sen, of all the people present in the bar, most resembled the description of J.S.. Steffensen identified himself as "Donald Felix" and produced an identification card with that name. However, the picture on this ID card did not match Steffensen. Brown asked Steffensen to step outside. Steffensen refused. At this time, another officer arrived to provide backup. This officer recognized Steffensen from a previous arrest. The officers then ran a records check on Stef-fensen and discovered that there was an outstanding $5000 bench warrant for his arrest. Even though Steffensen continued to deny that his name was Steffensen, the officers arrested him and took him outside. Before placing him in the patrol car, the officers searched Steffensen for weapons and found a bag of white powder, United States currency, and items of drug paraphernalia (glass vials, a glass pipe, and a needle). After Officer Brown transported Steffensen to jail, he checked the rear seat of his patrol car and found a paper "slip" containing white powder, an item that had not been there before Steffensen's arrest. Steffensen was charged with third-degree misconduct involving a controlled substance (possession of cocaine with intent to deliver). AS 11.71.030(a)(1). He eventually pleaded no contest to a reduced charge of fourth-degree misconduct involving a controlled substance (simple possession). AS 11.71.040(a)(3)(A). On July 12, 1990, Steffensen (now represented by the Public Defender Agency) filed an application for post-conviction relief under Alaska Criminal Rule 35.1. In this application, Steffensen's new attorney asserted that Steffensen should be allowed to withdraw his plea because his original attorney had incompetently failed to seek suppression of the evidence against him, even after Steffensen had urged the attorney to investigate and pursue a suppression motion. The State asked the superior court to dismiss Steffensen's petition because it did not contain an affidavit from Steffensen's original attorney; the petition therefore failed to comply with Criminal Rule 35.1(d) as interpreted in State v. Jones, 759 P.2d 558 (Alaska App.1988). Moreover, Steffen-sen's petition did not contain an affidavit from Steffensen himself, thus violating the requirement of Criminal Rule 35.1(d) that "[f]acts within the personal knowledge of the applicant shall be set forth separately from other allegations of facts and shall be under oath." Steffensen responded by supplying an affidavit from his original attorney. This affidavit reads (in its entirety): 1. I was the attorney for [Steffensen] in the above entitled action at the trial level. 2. After reviewing the police reports received in this matter, I determined that a motion attacking the arrest was not appropriate. 3. It is my recollection that [the] reduction of the charge in this matter was the product of the weakness in the State's case and [Steffensen's] willingness to [go to trial on] the issue of possession with intent to deliver. To my recollection, the reduction in charge was not in any manner related to the filing or not filing of a motion with respect to the [initial] stop. On November 18, 1990, Superior Court Judge Niesje J. Steinkruger issued notice that she intended to dismiss Steffensen's application. She concluded that Steffensen had failed to assert sufficient facts to warrant the inference that Steffensen's original attorney had acted incompetently when he decided not to file a suppression motion. Judge Steinkruger gave Steffensen 30 days to supplement his application or to respond in some other manner to the intended dismissal. This deadline was later extended to January 18, 1991. On that day, Steffensen filed an affidavit in which he stated his own version of events. In his affidavit, Steffensen asserted that it was unreasonable for Officer Brown to have approached him in the bar because he (Steffensen) was several inches shorter, eight years older, and about 30 pounds lighter than the description of J.S. that had been furnished to Brown. Steffensen conceded that, in response to Brown's request, he had produced false identification and then had refused to step outside the bar. However, Steffensen contended that the police searched him (and discovered the drugs he was carrying) before they found out that there was an outstanding warrant for his arrest. In this same affidavit, Steffensen asserted that he had told his original attorney that he believed he had been illegally arrested. In fact, the attorney's file contains several pages of legal research notes which Steffensen apparently provided to his attorney. These notes (appended to Steffen-sen's supplemental application) are summaries of various state and federal cases dealing with investigative stops and the legality of a police officer's requiring another person to produce identification. Judge Steinkruger found that, even thus supplemented, Steffensen's petition for post-conviction relief still failed to state a prima facie case of attorney incompetence. Noting that State v. Jones establishes a presumption that an attorney has acted competently, Judge Steinkruger ruled that Steffensen's amended application failed to rebut the presumption that his attorney had made a tactical decision not to pursue a suppression motion: [Steffensen's] application alleges facts that, even if true, do not rule out the possibility that the trial counsel's failure to file a motion to suppress evidence was a sound tactical choice. Without knowing what motivated the trial attorney, it is virtually impossible for the court to determine whether or not the attorney's action was tactical. The appellate courts have [repeatedly rejected] ineffective assistance of counsel claims where, as here, the record failed to contain allegations or proof to refute the possibility that the challenged conduct of trial counsel resulted from sound tactical choice. Steffensen filed a motion for reconsideration, arguing that his attorney's failure to file a suppression motion could not be considered "tactical" because (1) the defense attorney had not obtained any concession from the State in exchange for not filing the motion, and (2) there was no other logical reason to refrain from filing a suppression motion, since the granting of such a motion would have resolved the case in Steffensen's favor. Judge Steinkruger reaffirmed her decision on March 19, 1991. On appeal, Steffensen renews his argument that his pleadings established a prima facie entitlement to post-conviction relief. He argues that, when his factual allegations are read in the light most favorable to him, the post-conviction relief petition shows that Steffensen's original attorney, without apparent reason, failed to pursue a potentially dispositive suppression motion even after Steffensen urged him to do so. Steffensen is correct that, in the initial stage of a post-conviction relief proceeding, when the superior court decides whether the defendant's petition states a prima facie case for relief, the superior court is obliged to view the factual allega tions of the defendant's petition in the light most favorable to the defendant. See State v. Jones, 759 P.2d at 565 (the superior court's determination under Criminal Rule 35.1(f) is equivalent to a ruling on a motion under Civil Rule 12(c) for judgement on the pleadings), and J & L Diversified, Enterprises, Inc. v. Anchorage, 736 P.2d 349, 351 (Alaska 1987) (an appellate court reviewing a dismissal on the pleadings must accept as true all well-pleaded allegations of fact contained in the appellant's trial court pleadings). Howéver, even when Steffensen's petition is evaluated in this light, we agree with Judge Stein-kruger that the petition (as amended) still failed to state a claim upon which relief could be granted. Steffensen's primary argument is that, since there was everything to gain and nothing to lose by filing a suppression motion, his attorney must have been acting incompetently when he decided not to file such a motion. This argument — that a defense attorney is obliged to pursue every non-frivolous motion — was squarely rejected in State v. Jones. There, this court quoted with approval the following language from United States v. DeCoster, 624 F.2d 196, 211 (D.C.Cir.1976) (en banc): [Gjiven an unrestricted budget and freed of any constraints as to probable materiality or accountability, a lawyer might . cheerfully [log in] many hours looking for the legal equivalent of a needle in a haystack.... [A] millionaire might [retain] counsel to leave not a single stone unturned. However, a defendant is not entitled to perfection but to basic fairness. In the real world, expenditure of time and effort is dependent on a reasonable indication of materiality. Jones, 759 P.2d at 572. Steffensen's affidavit declares that the police officers misrepresented the facts of the encounter at the Cottage Bar; specifically, Steffensen disputes the officers' assertion that they did not search Steffensen until after they discovered that there was an outstanding warrant for his arrest. However, Steffensen's affidavit does not assert that he ever communicated this conflicting version of events to his attorney. In fact, in both his petition to the superior court and in his brief to this court, Steffen-sen faults his attorney for allegedly failing to discuss the facts of the case with Stef-fensen before deciding to forego a suppression motion. This allegation — that no conversations took place between Steffensen and his attorney — is likewise unsupported by either Steffensen's affidavit or his attorney's affidavit; both affidavits are silent on this point. To establish prima facie entitlement to post-conviction relief, it was essential for Steffensen's pleadings to establish either that he communicated his version of events to his attorney or that his attorney refused him any reasonable opportunity to do so. As this court noted in State v. Jones, The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. When a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable. In short, inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's investigative decisions, just as it may be critical to a proper assessment of counsel's other litigation decisions. Jones, 759 P.2d at 569, quoting Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984). Moreover, even if Steffensen's affidavit had affirmatively asserted that he told his attorney about his differing version of the events at the Cottage Bar, the fact remains that the trial attorney's affidavit does not address this crucial point. It appears that Steffensen never confronted his attorney with this allegation when he asked the attorney to provide an affidavit for the post-conviction relief application. Thus, Stef-fensen's petition remains deficient. This is not to say that a defendant whose attorney is not completely forthcoming must therefore face dismissal of a post-conviction relief action. A defendant can satisfy the requirements of State v. Jones either by supplying an affidavit from the attorney or by showing that the attorney will not supply a comprehensive affidavit. Jones, 759 P.2d at 570. But Steffensen offered the superior court no explanation of why his trial attorney's affidavit failed to address this crucial issue of fact. Steffensen asserts that his trial attorney admitted that the only reason he failed to file a suppression motion was that the time for filing such a motion had expired. This is a mischaracterization of the record. Steffensen's affidavit asserts that, "shortly after the omnibus hearing", he spoke to his attorney "about the need to address the propriety of the search of [his] person by Officers Brown and Colleta". At that time, according to Steffensen, his attorney responded that "the time for the filing of motions was over." This, however, is not equivalent to an assertion that the attorney had never given the matter any thought before. Indeed, when Steffensen's application is considered in its entirety, the application establishes that Steffensen's attorney actively considered filing a suppression motion but then concluded that he should not. The attorney kept Steffensen's legal research notes in his file, and his affidavit states that, after reviewing the police reports, he affirmatively decided that filing a suppression motion would not be "appropriate". It was Steffensen's burden to clarify the facts underlying his claim of attorney incompetence. Even viewed in the light most favorable to Steffensen, his petition does not establish that his attorney's reason for failing to file the suppression motion was that the attorney completely overlooked or unreasonably failed to investigate the potential motion until it was too late to do anything about it. The petition was therefore subject to dismissal under Criminal Rule 35.1(f)(2). Steffensen also faults his attorney for failing to review the grand jury record or to independently investigate the circumstances of the encounter at the Cottage Bar before deciding not to file a suppression motion. However, Steffensen does not indicate how such a review or such an investigation would have yielded pertinent information. In summary, an attorney's strategic decisions — including which potential defenses to pursue and whether to object to or seek suppression of the evidence offered by the government — generally rest on considerations that are not directly addressed in open court. Post-conviction relief litigation allows a defendant to delve into the bases for his or her attorney's decisions in order to show that the attorney's decisions fell below the range of competency expected of criminal law practitioners. But, as this court has repeatedly stated, the burden of proving incompetence rests on the defendant. When the record does not adequately reveal the basis for the attorney's decision, the defendant has failed to establish a case for post-conviction relief. State v. Jones, 759 P.2d at 569. As Judge Steinkruger found, Stef-fensen's pleadings offer no firm explanation of why Steffensen's attorney made the challenged decision. Under State v. Jones, the superior court was obliged to presume that the attorney's decision was a competent one. Steffensen asked the superior court, and now asks this court, to assume that there could have been no valid reason for his attorney not to file the suppression motion. But Steffensen cannot obtain post-conviction relief by asking the court to speculate one way or the other about the motives or reasoning that prompted Stef-fensen's attorney to refrain from filing a suppression motion. Under Criminal Rule 35.1, to survive summary dismissal, it was Steffensen's burden to present the superior court with specific allegations to establish the factual background of his attorney's decision and the attorney's purported reasons for that decision. It was also Steffensen's burden to convince the superior court that, under the facts of the case, there was a reasonable possibility that the attorney's reasons for not filing the motion were completely invalid — that no competent attorney skilled in criminal law would have failed to file the contemplated suppression motion. Steffen- sen's pleadings, even read in the light most favorable to Steffensen, fail to meet these burdens. For these reasons, we uphold the superi- or court's dismissal of Steffensen's application for post-conviction relief. However, given the considerable confusion that seems to exist concerning the pleading requirements imposed by Jones, and given the clarifications contained in this opinion, we believe that Steffensen should not be barred by the provisions of Criminal Rule 35.1(h) if he wishes to renew his application for post-conviction relief by submitting additional affidavits on the issues of fact discussed here. The judgement of the superior court is AFFIRMED.

10371240

WIRUM & CASH, ARCHITECTS, C. Harold Wirum, and Mary Lou Wirum, Appellants/Cross-Appellees, v. Larry CASH, Appellee/Cross-Appellant

Wirum & Cash, Architects v. Cash

1992-05-22

No. S-3680, S-3691

692

714

837 P.2d 692

837

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:15:02.151835+00:00

CAP

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

WIRUM & CASH, ARCHITECTS, C. Harold Wirum, and Mary Lou Wirum, Appellants/Cross-Appellees, v. Larry CASH, Appellee/Cross-Appellant.

WIRUM & CASH, ARCHITECTS, C. Harold Wirum, and Mary Lou Wirum, Appellants/Cross-Appellees, v. Larry CASH, Appellee/Cross-Appellant. No. S-3680, S-3691. Supreme Court of Alaska. May 22, 1992. Sarah J. Tugman, Cathleen Nelson McLaughlin, Tugman, Clark & Ray, Anchorage, for appellants/cross-appellees. Michael E. Kreger, W.D. Bennett, Kris-sell Crandall, Perkins, Coie, Anchorage, for appellee/cross-appellant. Before RABINOWITZ, C.J., and COMPTON and MOORE, JJ.

13278

81016

OPINION RABINOWITZ, Chief Justice. I. INTRODUCTION This appeal a,nd cross-appeal arise out of the relative contractual and fiduciary duties of C. Harold Wirum and Larry Cash, past partners in the architectural firm of Wirum & Cash, Architects. II. FACTS C. Harold Wirum and Larry Cash executed a written agreement on or about December 31, 1982, forming the partnership of Wirum and Cash, Architects (W & C). At that time, Wirum had been a practicing architect for approximately thirty years; Cash had been employed by Wirum for six years as an architect at Harold Wirum & Associates (HWA). Wirum had a 75% ownership interest in W & C and Cash had a 25% interest. Cash agreed to pay $250,000 for his interest; he was to pay this amount from his share of the profits of the partnership, pursuant to a buy-in agreement. Specifically, 75% of Cash's 25% share of the profits in excess of his $60,000 per year draw were to be applied to reduce the buy-in obligation. The remaining amount was income for Cash. Cash agreed to pay interest on the unpaid balance of the $250,000 at the prime rate plus 2%. Pursuant to the partnership agreement, the initial working capital of the partnership was $150,000. Each partner's capital account consisted of his initial capital contribution increased by any additional capital contributions made. The agreement provided, "[t]o the extent that a partner contributes more than his percentage of the profits to the capital he shall be entitled at the end of each year to receive interest computed monthly upon the excess capital contribution in an amount calculated by using the prime rate of interest plus 2%...." Wirum was designated managing partner and had "exclusive authority to manage and control all phases of the business." As such, Wirum delegated responsibility to his wife, Mary Lou Wirum. Mary Lou Wirum supervised the business and accounting functions of W & C. She had done the same at HWA. On January 6, 1986, Wirum gave Cash notice of his retirement effective July 1986. Cash was informed by his attorney that the partnership owed Wirum $1.5 million from the partnership assets under the retirement provisions of the partnership agreement. On March 3, 1986, Mary Lou Wirum gave both Wirum and Cash a memorandum indicating that Cash also had a negative capital account of approximately $85,000. Cash understood that this amount had to be paid within sixty days of Wirum's effective retirement. The memorandum also informed Cash that he still owed all of the $250,000 against the buy-in, plus approximately $72,-000 in interest. Moreover, it stated that W & C owed Wirum $210,304 for interest on capital contributions that Wirum had lent to the firm. Cash also understood that Wirum would be entitled to 75% of the accounts receivable and work in progress as of the day of retirement within thirty days of receipt thereof. Moreover, under Paragraph 27 of the partnership agreement, Wirum was entitled to receive the credit balance of his capital account, which was $113,261.25, within sixty days of retirement. Cash claims he relied upon the accuracy of the information provided to him by Mary Lou Wirum in the March 3, 1986 memorandum and concluded it would be a financial hardship, if not an impossibility, to make the payments demanded. Therefore, on March 24, 1986, Cash gave notice of his withdrawal from the partnership, effective May 31, 1986. When asked at trial why he decided to withdraw, Cash stated, Because . nothing in the partnership had worked, and the information that I'd been . provided by Harold or Mary Lou indicated that . I had a substantial negative capital account of about $85,000 that I owed; $250,000 of the principal on the buy-in, and another $72,000 in interest; that . the firm owed Harold $210,-000 in interest accrued for loans that he had made to the firm, and . in addition to all of those things, the commitments required by Harold's retirement was added to it.... [I]t was sort of like a black hole . that had started from the . day that I became a partner until the day that I left. I continued to work harder and harder and go further and further into the hole, and this was the only way that I could see to stop that. So, I made the decision to withdraw. Wirum then told Cash that the partnership elected to make Cash's withdrawal effective March 31, 1986. The partnership agreement contained a non-competition clause. After Cash left the firm, during the clause's two year period, he submitted bids and obtained work from the Corps of Engineers, a client of W & C at the time of withdrawal, for a fee of $400,000. He also solicited work from the Corps for a project valued at $5-10 million, although he was not awarded that contract until after the non-competition clause expired. The U.S. Postal Service also hired Cash for a fee of $200,000 during the clause's effect. On December 11, 1986, Wirum and W & C instituted suit against Cash, requesting, inter alia, that Cash's accounts be charged with all paid, as well as accrued but unpaid operating expenses, but not credited with any accrued but uncollected accounts receivable for work in progress. Wirum and W & C also requested judgment of $156,-465.84 for money owed to Wirum given Cash's negative balance in his capital drawing accounts. Thereafter, Cash filed a lawsuit against Wirum and Mary Lou Wirum. He alleged, inter alia, breach of contract, breach of contract for improper maintenance of partnership books, fraud, negligent misrepresentation, breach of fiduciary duty, breach of the duty of good faith and fair dealing, that the partnership agreement should be rescinded given misrepresentations of Wirum's prior earnings, and that the non-competition clause was void and unenforceable as a covenant restricting competition. Subsequently, on March 12, 1987, Wirum also filed for declaratory judgment and a preliminary injunction relating to the enforcement of the non-competition clause. A preliminary injunction was granted enjoining Cash from competing in violation of the non-competition clause. However, the court did not enjoin Cash in relation to an initial term of an extant contract with the U.S. Post Office, nor for the $400,000 contract with the U.S. Corps of Engineers, because Wirum did not submit qualifications for either of those contracts and the contracts were to be completed in approximately three months. The matters then proceeded to trial without a jury. Prior to final argument, Cash moved to expunge part of Paragraph 27 of the partnership agreement. The relevant portion states that a withdrawing partner is liable for "all items of accrued expense and prepaid expenses." The Wirums opposed the motion as untimely, and requested that they be allowed to submit further opposition memoranda if the court was to consider Cash's motion. Thereafter, the court issued its decision, finding numerous breaches of fiduciary duty by Wirum. This court concludes that the evidence at trial established that Wirum breached his fiduciary duty to Cash by treating the partnership as his private entity and not as a partnership; by his failure to ensure that the books of W & C were properly and accurately maintained; by permitting the commingling of W & C and Wirum personal funds; by permitting prepayment in 1982 of 1983 expenses without benefit or justification; by permitting W & C to pay without Cash's knowledge (a) personal expenses such as the fees to attorney McLaughlin and accountant Lind for advice on the partnership agreement; (b) payment of accountant fees for personal financial advice; permitting the manipulation of expenses and income at year-end 1983 and 1984; by permitting unsupported, excessive and unreasonable interest to be assessed on purported "loans" from the Wirums to W & C and the payment thereof; permitted overpayment of monies to HWA for accounts receivable; permitting the underpayment of labor costs for work done by W & C on Wirum's personal apartment projects and the non-payment of overhead costs attributable thereto; by not devoting full-time and attention to W & C in 1983, 1984, and 1985; by permitting W & C bookkeepers to devote an excessive amount of time to the activities of the Wirum personal business entities; and by permitting the deposit of W & C funds into a Wirum personal money market account and not crediting the interest earned to W & C. The superior court expunged the disputed portion of Paragraph 27, finding it an unenforceable penalty clause. In the Wirums' favor, the superior court concluded that Cash was not entitled to rescission of the partnership agreement, as he had an adequate remedy at law; that Cash violated the non-competition clause by contracting with the U.S. Corps of Engineers for the $400,000 project; and that the covenant not to compete did not violate public policy. The superior court also awarded damages to both parties: Wirum recovered $99,962 and Cash $118,447, netting Cash $18,485. Wirum's award was composed of $50,000 for the profit Cash made on the Corps of Engineers contract which violated the non-competition covenant; $10,112 which was 25% of W & C accounts payable as of March 31, 1986; and $39,850 which was Cash's negative balance on his W & C capital account as of March 31, 1986. Cash's award was composed of $5,000 which was 25% of $20,000 in payments incorrectly made to Wirum and his personal entity by W & C; $44,681 which was 25% of the accounts receivable as of March 31, 1986; $21,285 which was 25% of 1986 prepaid liability and workers' compensation insurance; and $47,481 which was the sum Cash paid Wirum under the buy-in agreement. Cash was also awarded $19,779 in prejudgment interest, $146,400 in Civil Rule 82 attorney's fees and $39,526.28 in Civil Rule 79 costs. Cash's total judgment was for $205,705.28. Wirum and his wife, Mary Lou Wirum, were held jointly and severally liable for this amount. This appeal and cross appeal followed. Based upon our review of the record and the parties' arguments, we have concluded (principal holdings only): 1. That the superior court's findings of fact concerning the following matters are supported by substantial evidence and are not clearly erroneous: (a) Wirum's breaches of his fiduciary duties, (b) loans made by Wirum to Wirum & Cash, (c) pre-payments, year-end accounting and tax reporting, (d) commingling by Wirum, (e) misrepresentations by Wirum, (f) damages awarded to Cash (with the exception of one element of damages which is remanded for clarification); 2. That the question of the enforceability of paragraph 27 should be remanded for a determination as to whether Wirum's breaches excused performance by Cash (in the event the superior court determines that Cash is not excused the superior court is to hold a hearing as to whether paragraph 27 constitutes a penalty clause and is therefore unenforceable); 3. That the issue of the enforceability of the non-compete clause should be remanded for determination as to whether Wirum's breaches excused performance by Cash; and 4. That Mary Lou Wirum is jointly and severally liable for any damages that are awarded to Cash. III. THE CONTROLLING FINDINGS OF FACT (a) Findings Relating to Breaches of Fiduciary Duties Wirum claims that the superior court's findings regarding numerous breaches of fiduciary duty by him lack the requisite evidentiary support. The following relevant findings were made by the superior court, and on the basis of our review of the record we conclude that they have adequate evidentiary support and thus are not clearly erroneous. 1) After the partnership was formed and unbeknownst to Cash, the fees for Wi-rums' attorney . in the amount of $20,-886.02, and for his accountant . in the amount of $2,978, for legal and accounting advice that Wirum received prior to the partnership agreement being signed by the parties were paid by Wirum out of the partnership instead of from personal funds. 2) At the time of the formation of the Wirum & Cash partnership, . Wirum and Mary Lou Wirum had very substantial investments under a number of separate entities in addition to their interest in HWA. The Wirums' personal entities were managed out of the offices of W & C using W & C personnel and facilities. . [Bookkeepers for W & C were responsible for the books of up to 13 different entities of the Wirums.... Mary Lou Wirum represented to Cash that work performed by the bookkeepers for the Wirum personal business entities . required only a few hours a week_ The time required . was far in excess of a few hours a week. Bookkeepers Ms. Swartzbacker and Ms. Ward estimated that 75% of their time was devoted to Wirum personal matters. Ms. Barfus estimated that 85% of her time was spent on Wirum personal matters. Ms. Pitka estimated that her time was divided approximately 80% for Wirum en-tities_ Ms. Posey spent 60% to 70% of her time on the Wirum entities. Ms. Adams devoted almost her full time to Wirum personal matters. 3) Wirum and Mary Lou Wirum managed W & C as though it was one of their personally-owned entities.... [FJunds of W & C were commingled with the personal funds or funds of HWA. 4) Mary Lou Wirum . [ordered] accounting staff that any income received by W & C which was not immediately needed by W & C be deposited in an account with Merrill Lynch owned by Mary Lou and Harold Wirum. The interest earned on W & C funds in the Merrill Lynch account was not credited to W & C. 5) In late December 1982, HWA prepaid expenses for 1983 totalling $103,-961.34_ This prepayment of expenses created the need for W & C to borrow money from the Wirums.... At the direction of Mary Lou Wirum, the prepaid expense cost of $103,961.34 was repaid to the Wirums by W & C during February and March 1983. Mary Lou Wirum also assessed W & C interest at a prime rate plus 2% for the amount of the prepaid expense. 6) The W & C financial records included numerous "Due To/Due From" accounts attributable to the Wirums' personal business entities and the Wirums' personal activities_ A "Due From" account is like an accounts receivable account or a loan account. It means that money is owed by some entity or person. As a loan, a "due from" as used by W & C was without interest. 7) W & C recorded on its books some monies received on accounts receivable of HWA. In the course of this process, monies which should have been credited only to W & C were in fact credited back to HWA. This error amounted to approximately $13,561 not being credited as income to Cash. 8) Income to HWA for accounts receivable outstanding as of January 1, 1983 received in 1983 were deposited in W & C bank accounts; the total amount of $934,532 was credited to Wirum as contributions to W & C. These "contributions" were not reasonably necessary to meet the operating capital needs of W & C in 1983 and such amounts were . withdrawn by the Wirums and/or their entities for their personal use.... 9) In December, 1983, at Mary Lou Wi-rum's direction a $75,000 W & C check was made payable to M.L. Wirum, Inc. This payment had nothing to do with W & C, but was recorded as a "Due From" HWA in the W & C books. 10) For tax purposes, Wirum and Mary Lou Wirum were seeking to shelter as much income as they could for the year 1983. Accordingly, they had a vested, personal interest in manipulating the income and expenses of W & C to ensure a reported tax loss.... At year end 1984, Mary Lou Wirum directed that W & C withhold reporting income received and further directed that income be reported as received in January 1985.... The effect of the 1984 year-end manipulation of expenses and income was to materially distort the income of W & C. This, in turn, distorted the payment which otherwise would have been made by Cash under the Buy-In Agreement and the W & C capital accounts for Wirum and Cash. 11)During 1983 and 1984, the Wirums, as the sole partners in a partnership known as the 500 Group, built two apartment projects at Anchorage.... Mary Lou Wirum, as president of M.L. Wirum, Inc. acted as construction manager for the apartment projects_ W & C provided the architectural services for the apartment projects and Wirum acted as project manager for W & C for the Apartment Projects.... W & C paid the wages of W & C employees who performed work on the apartment projects in 1983 and 1984. W & C also paid consultant bills of approximately $181,-436 for work done on the apartment pro-jects_ At year-end 1983, consultant expenses incurred by W & C were recorded as . "Due From HWA Construction." . At year-end 1983, some labor costs incurred by W & C during 1983 for work done on the apartment projects were recorded as . "Due from HWA Construction." . During 1983 and 1984 bills for third party clients of W & C were reviewed on a monthly basis at meetings usually attended by Wirum, Cash and a bookkeeper_ The Wi-rums' apartment projects were not discussed at the W & C's monthly billing meetings_ The Wirums did not recognize, charge or pay any overhead cost attributable to work performed by W & C on the apartment projects owned by the Wirums.... By W & C paying the consultant fees and additional labor costs incurred by W & C for work done on the apartment projects as "Due From" entries without any interest charged to those amounts, the Wirums took interest free loans from W & C to finance the architectural costs of the apartment projects. These interest free loans were taken throughout 1983 and 1984, and into 1985. 12)The records for W & C understated the direct labor costs incurred by W & C for work done on the apartment projects in 1983 and 1984. The records of W & C further failed to accurately reflect personal expenses of the Wirums paid by W & C. The adjustment for 1983 is $64,121 and for 1984 is $41,862, reflecting additional monies owed by Wirums to W & C.... [Hjours worked by W & C personnel on the apartment projects . were not included in the calculations of W & C for the purposes of labor costs to be reimbursed by the Wirums. 13) Wirum . had in 1983 and 1984, a priority with his apartment projects and as a result he could not devote his full time attention to W & C. Wirum devoted a substantial amount of time to his own interests in the apartment projects. 14) On March 12, 1986, Mary Lou Wirum directed Ms. Niemann to draw a check from W & C payable to C. Harold Wirum for $210,295.29 for purported interest owed to Wirum for loans to W & C from 1983 through 1985. Cash was not informed of this payment while he was a partner to W & C. (b) Findings Relating to Pre-Pay-ments, Year-End Accounting and Tax Reporting One of the specific findings of breach which Wirum challenges is the prepayment of expenses in 1982 and 1983 and the manipulation of expenses and income at year-end in 1983 and 1984. Wirum argues that the court erred in making factual findings, in applying the wrong legal standard, and by improperly shifting the burden of proof. First, the evidence does show that in late December 1982, Wirum permitted prepayment of W & C partnership expenses for 1983, totaling $103,961.34. Some of these prepayments went to the Wirums' entities. The prepayment of these expenses was not required and did not benefit W & C. In early 1983, Wirum loaned W & C money to repay these payments. Wirum charged W & C prime plus 2% per annum for the loan. While W & C income was used in 1983 to repay the loan, interest was allowed to accrue. Second, Wirum states that Cash knew of the manipulation of the income and the prepayment of the expenses because Cash had access to the partnership's tax returns, books, and records. A partner only overcomes a breach of fiduciary duty if there is a full and complete disclosure to the other partner and if the breaching partner secures the other partner's approval and consent. Skone v. Quanco Farms, 261 Cal.App.2d 237, 68 Cal.Rptr. 26, 29 (1968). This includes a full disclosure of the fact that he or she is dealing on his or her own account and all the facts which are material to the transaction. Starr v. International Realty, Ltd., 271 Or. 396, 533 P.2d 165, 168-69 (1975). Consent must be informed consent with knowledge of facts necessary to an intelligent choice. Id. This duty of full disclosure is especially great when the breaching partner is experienced in business compared to the non-breaching partner. In re Stanton, 38 B.R. 746, 752 (Bankr. 9th Cir.1984), appeal dismissed, 766 F.2d 1283 (9th Cir.1985). In Application of Lester, 87 Misc.2d 717, 386 N.Y.S.2d 509 (Sup.Ct.1976), the question arose whether various dissenting partners ratified an agreement buying out a past partner. Although the dissenting partners knew of the agreement and were silent, the court held that only when the self-dealing partner speaks and the other has a duty to respond can silence be taken as assent. In order for there to be a ratification or estoppel, the partners need "detailed knowledge," so that "by their silence there was acquiescence, ratification or estoppel." Quoting Trustees of East Hampton v. Bowman, 136 N.Y. 521, 32 N.E. 987, 988 (1893), the court explained, But before a principal can be held to have ratified the unauthorized act of an assumed agent he must have full knowledge of the facts, so that it can be said that he intended to ratify the act. If his knowledge is partial or imperfect, he will not be held to have ratified the unauthorized act, and the proof of adequate knowledge of the facts should be reasonably clear and certain. Application of Lester, 386 N.Y.S.2d at 514. In the case at bar, merely presenting the books to Cash was not sufficient, especially as the information contained in them was erroneous. Moreover, Burke, the expert accountant, testified that the partnership records were very complex: [This made] it extremely difficult to determine the financial position of the partnership at any point in time; it made it difficult to identify what was income to the partnership; it made it difficult to determine what working capital was actually needed by the partnership at any point in time; it made it difficult to determine what amounts were owed, if any, to either the Wirum entities or to Wirum & Cash at any point in time. In fact, the superior court found, [b]ecause Wirum as the managing partner of W & C failed to assure that W & C was run as a complete and separate entity from the Wirums' other 13 personal entities, it became necessary for accountants for both parties to do a complex accounting reconstruction of the financial position of W & C, as well as the financial status of each partner, by the application of complex accounting theories, principles and assumptions. Here merely presenting the books does not constitute full disclosure for an informed consent. Lack of a full disclosure substantiated Cash's testimony that he did not know the interest Wirum claimed was due until he received the March 3, 1986 memorandum. Moreover, for some improprieties, such as year end manipulation of expenses, the superior court found that "Mary Lou represented to Cash that what had been done was what was always done, was proper, and was approved by their accountants." The Wirums also argue that the superior court erroneously shifted the burden of proof and applied the wrong legal standard in judging these management decisions. They claim the standard is whether such decisions were made in good faith for legitimate business reasons. Cash argues that fiduciaries do not discharge their burden of proof as to the propriety of their conduct by proving a legitimate business purpose. Generally, partners are not liable to the partnership for failure to use ordinary skill and care in the supervision and management of business because "harm to the partnership is frequently outweighed by the need to give the partner sufficient leeway to exercise discretion on behalf of the partnership;" however, a partner may be charged with losses resulting from acting in a self-interested manner or in violation of the agreement. Bromberg & Ribstein on Partnership, § 6.07(f), at 6:85-6. Alaska recognizes the business judgement rule. See Alaska Plastics, Inc. v. Coppock, 621 P.2d 270, 278 (Alaska 1980); Betz v. Chena Hot Springs Group, 657 P.2d 831, 835 (Alaska 1982). In a case that involves both an exercise of the managing partner's discretion and self-dealing, we adopt the higher standard to judge that partner's actions. See Bassan v. Investment Exchange Corp., 83 Wash.2d 922, 524 P.2d 233, 237-38 (1974). The need to exercise discretion does not excuse the managing partner's fiduciary duties. See Labovitz v. Dolan, 189 Ill.App.3d 403, 136 Ill.Dec. 780, 786, 545 N.E.2d 304, 310 (1989) (Despite a partnership agreement giving a general partner wide discretion in deciding whether or not to distribute cash to the limited partners, the general partner "still owed his limited partners a fiduciary duty which necessarily encompasses the duty of exercising good faith, honesty and fairness in his dealings with them and the funds of the partnership."). Consequently, the allegation of self-dealing invokes the higher burden and it is allocated to the breaching partner. Here, given the litany of fiduciary breaches the superior court found, the superior court did not err in its conclusion that the actions in question were taken to benefit Wirum at the expense of the partnership, or Cash. Therefore, we hold that the allocation of the burden and the standard by which the superior court evaluated Wirum's behavior was not error. (c) Findings Concerning Loans Made From Wirum to Wirum & Cask Burke performed a cash flow analysis showing that Wirum's practices caused an unnecessary need for excess cash. Burke testified that the interest legitimately owed to Wirum was $11,228 for his working capital contributions in 1983, $5,450 for his excess capital contributions in 1983, and $816 in working capital loans in 1984. Yet, the following amount of interest was calculated as being owed to Wirum for loans and excess capital contributions: $44,036.90 in 1983; $50,940.63 in 1984; $106,325.71 for 1985; and $19,089.51 for January and February 1986. The discrepancy occurred because money received on account of HWA projects totalling $934,532 was commingled with income of W & C and credited to Wirum as a "contribution." Therefore, interest was calculated based on HWA contributions passing through the W & C accounts, rather than on what was reasonably necessary to meet W & C's operating needs. Burke called these contributions unnecessary. Based on income actually earned and received, W & C had no need to carry loans or receive excess capital contributions from Wirum after February 1984. Wirum argues that the evidence does not support a finding that excessive loans were made or that the partnership could have operated with no cash reserves. Specifically, Wirum argues the following: that Cash's witness, Burke, was not qualified as a business expert, but only as an auditor; that Cash agreed that initial working capi tal of the partnership would be $150,000 cash; and that Cash acknowledged he would need operating capital in the amount of $250,000 and the firm's accounts receivable to continue the firm alone. While Wirum challenges Burke's qualifications, Burke was a Price Water-house Certified Public Accountant. The superior court accepted Burke as an expert C.P.A., "specifically to testify in areas of accounting and audit . in accounting." Burke explained that one of the duties of an accountant "is to advise on good business practices." She provides business consulting to clients which includes cash flow management. Burke explained her methodology. Burke performed a cash flow analysis, examining all accounting records. This included books of original entry, invoices, memorandums that refer to or support numbers in books of original entry, and tax returns. It also included the partnership agreement. She completed this type of analysis for her other clients as well. While she admits not having experience in running an architectural firm, she could see trends within W & C itself that supported her conclusions. For example, in testifying that funds received at the end of 1983 were not deposited in a reasonable time, she explained, based on an analysis that I performed, it's clear that the receipts as recorded in the accounting records are less toward the end of a calendar year than the typical amount deposited for other months, and that there are large deposits made in January. It's my opinion that these funds did not, they were not received in the same way they were recorded in the accounting records.... If you look at the deposits, the income as recorded in the general ledger on a monthly basis, you will see a drop in deposits toward the end of the year and a significant increase the following January. The trial involved extensive testimony by the Wirums' accountants, John Rothenbueler and Ron Lind, as well as the testimony of Burke on Cash's behalf. The amount of weight to give to a witnesses' testimony is in the sound discretion of the trial court. Civil Rule 52(a); Associated Eng'rs & Contractors, Inc. v. H. & W. Constr. Co., Inc., 438 P.2d 224 (Alaska 1968). Wirum's witness Rothenbueler admitted that he did not determine whether the loans were reasonably necessary. He conceded, however, that "the bookkeepers . didn't have a good handle on what the cash balances were." Burke questioned parts of Rothen-bueler's analysis. Overall, we conclude that the superior court did not err in heavily crediting Burke's testimony. Evidence exists in the record that Wirum never determined the amount of loans reasonably required to meet W & C's capital needs. When asked if the money lent was necessary to meet the operating expenses of W & C, Wirum responded, "that was up to the bookkeepers. They had the freedom . to draw the money whenever they needed it." When asked if he ever reviewed whether the bookkeepers borrowed money only when necessary to meet the partnership's operating expenses, he stated, "I personally never did_" Yet, neither did Mary Lou Wirum ever direct the bookkeepers to calculate loans on what was reasonably necessary for W & C to meet its operating capital needs. When the $210,-295 check was drawn, representing interest on loans from 1983 through 1985, Wirum did not try to determine if this amount was the correct amount owed to him. He said, "This check just came in and was deposited. That's about all I can say. I didn't think about it at all." The superior court found this interest charge was substantially and materially erroneous. (d) Findings Regarding Commingling The superior court found, The evidence clearly established that at significant times, Wirum and Mary Lou Wirum managed W & C as though it was one of their personally-owned entities instead of a completely separate partnership entity. As a result, funds of W & C were commingled with the personal funds or funds of HWA. Wirum argues that the records contained all the information needed for an accounting or an audit to be done. He contends that if adequate records are kept, the commingling of accounts is not a breach of contract or of fiduciary duty. In our view this argument fails. As Cash argues, the breach was not poor record keeping, but managing the funds for Wirum's own interest. For example, the superior court noted that Mary Lou Wirum order[ed] accounting staff that any income received by W & C which was not immediately needed by W & C be deposited in an account with Merrill Lynch owned by Mary Lou & Harold Wirum. The interest earned on W & C funds in the Merrill Lynch account was not credited to W & C. Similarly, when HWA money was commingled with W & C money in 1983, it was entered as a contribution, for which Wirum received interest. This type of commingling constitutes a breach of fiduciary duty. See Glazer v. Kurman, 384 Pa. 283, 120 A.2d 892, 894 (1956) ("Defendant kept the books of the company and he alone had the power to draw checks. He mingled partnership funds and personal funds in one bank account and, on this one account, drew checks to pay both partnership obligations and his own personal obligations. It requires no citation of authority to support the proposition that defendant's conduct amounted to a breach of the fiduciary duty which one partner owes to another."). (e) Findings Relating to Misrepresentation In its findings of fact relating to misrepresentation the superior court stated, Harold and Mary Lou Wirum represented to Cash during partnership negotiations that Harold's architectural practice had averaged a net income of $500,-000 during the five-year period 1978 through 1982. At the time of this representation, both Harold and Mary Lou Wirum knew that the net income of $500,000 was derived not only from Harold's architectural practice but was in fact his net income from all his entities and investments. Based on the Wirums' representations that the $500,000 per year was income from Harold's architectural practice, Cash proceeded with the negotiations of a "buy in" into the firm. Wirum argues that this finding caused the superior court to rescind the buy-in, awarding $47,481 paid in under it. He also argues that Cash failed to prove the elements necessary to avoid the buy-in contract on the grounds of fraud or misrepresentation, as the record did not support the finding that misrepresentations were made regarding the value of the business, or that Cash's reliance on any such statements was reasonable. Cash, however, argues that the trial court did not rescind the buy-in or award Cash damages on his claim of negligent misrepresentation. As noted above, the superior court found numerous breaches of fiduciary duties, and emphasized all of them in its conclusions of law. Given the purposes of our remand, which is discussed below, we need not reach this issue since, if on remand the superior court determines that Wirum's breaches of fiduciary duties were material, Cash would be excused from further performance of the buy-in agreement. (f) Findings Relating to Damages Awarded Cash Wirum claims that he cannot tell from where the court drew its damage figures. Wirum asserts, therefore, that the damage award cannot be adequately reviewed. Wi-rum, however, does not specify any particular error. Nevertheless, we will briefly review the evidentiary bases for the damage findings. (i)"$5,000 which is 25% of $20,000 payments incorrectly made to 500 L Group and to C. Harold Wirum by W & C" The $20,000 in payments incorrectly made by W & C to Wirum's entities was actually composed of $16,000 paid to the 500 L group and $4,000 paid to Wirum personally. Burke found, in journal entries 634 and 720, that both of these amounts receivable had been deducted from the books twice. The double deductions meant, [a]s detailed on Exhibit GV, we have now reduced those two accounts twice. We have reduced it and zeroed it out at the end of June so that at the end of June, . the general ledger showed that they [entities of 500 L Group and personal] did not owe any monies to the partnership of Wirum & Cash. The third journal entry in fact creates an amount that the partnership owes to those entities by changing it from a receivable to a payable. This amount was then credited to the respective entities. W & C was therefore due $20,000, 25% of which represented Cash's share. (ii)"$44,681.00 which is 25% of accounts receivable as of March 31, 1986." W & C accounts receivable were $178,723 as of March 31, 1986. This amount was earned while Cash was a partner. W & C itself provided the document from which this figure was generated. Cash's award of $10,112 was arrived at by deducting Cash's share of the questioned payments to consultants from his 25% share of the accounts receivable. The evidence supports this offset. (iii)25% of 1986 prepaid liability and workers' compensation insurance . Larry Cash's share of this amount is $21,-285" The superior court stated, "Since W & C existed only for the first three months of 1986, Larry Cash is entitled to recover his share of prepaid liability and workers' compensation insurance, paid for all of 1986." For 1986, professional liability insurance cost $104,172 and workers' compensation insurance cost $9,349. Prepaid expenses for the nine months remaining in 1986 after Cash's withdrawal amounted to $85,140 for professional liability and workers' compen sation insurance. Twenty-five percent of $85,140 amounts to $21,285. (iv) "$47,481 which is the sum Cash paid to Wirum under the terms of the buy-in agreement." Cash argues he lost this amount when he forfeited his interest in the partnership due to Wirum's breach of his fiduciary duties. Yet, the tax returns Cash and Burke cite as supporting the $47,481 do not indicate that Cash paid this amount in compliance with the terms of the buy-in agreement. Moreover, Wirum argues the math is wrong. Upon remand the superior court is directed to clarify this issue by entering additional findings of fact and, if necessary, modified conclusions of law. IY. WAS PARAGRAPH 27 AN UNENFORCEABLE PENALTY CLAUSE? Upon Cash's notice of withdrawal, Wi-rum told Cash that Cash owed $68,915.75 for payables accrued prior to Cash's withdrawal, pursuant to Paragraph 27. On October 7, 1988, after the parties had rested but before final arguments commenced, Cash requested that the court find Paragraph 27's clause "all items of accrued expense and prepaid expenses" to be an unenforceable penalty clause. Wirum opposed the motion as untimely, and requested that the court allow him to address the merits with further memoranda if the court was going to consider it. The superior court did not respond to the question of timeliness or allow further briefing. In its findings, it held, Under the provisions of Paragraph 27 of the partnership agreement, a withdrawing partner is charged with all prepaid, as well as accrued but unpaid operating expenses, including a proportionate share of normal fiscal year-end expenses and he is not entitled to receive "any amount for accounts receivable or work in progress." These provisions requiring Cash as the withdrawing 25% partner to pay all prepaid as well as accrued but unpaid operating expenses, including a proportionate share of normal fiscal year-end expenses and the same time for him not to be entitled to receive any amount for accounts receivable is clearly an unenforceable "penalty". These contract provisions fixing damages in advance of a partner's withdrawal are intended to penalize a withdrawing partner [and] do not constitute an enforceable liquidated damage clause. Under the facts of this case where the majority and managing partner of the partnership breached his fiduciary duty of good faith and fair dealing owed to a minority partner, a penalty clause that has no relation to what actual losses the partnership suffered by the minority partner's withdrawal is unenforceable. The superior court awarded Cash $44,681, constituting 25% of the accounts receivable as of March 31, 1986, and $21,285, representing 25% of 1986 prepaid liability and workers' compensation insurance. Wirum questions the timeliness of Cash's argument, the lack of an evidentiary hearing, and the absence of critical findings by the court. Wirum claims that Cash's motion was untimely; he argues that the pleadings did not address the concept of "reformation" or "expunging" a part of the partnership agreement, nor was it addressed at trial. Cash responds that while he briefed the legal defense after the close of evidence, the enforceability of Paragraph 27 was an issue in the pleadings and throughout the trial because the Wirums sought money damages based on Paragraph 27. We answer these contentions in alternative fashion since we have concluded that the question of the enforceability of paragraph 27 should be remanded to the superior court for additional findings of fact and conclusions of law. It is a basic principle of contract law that a contract breach may excuse further performance. On this point, the superior court failed to make the necessary determinations whether, under a contract analysis Wirum's breaches of his fiduciary duties excused Cash's performance of his obligations under paragraph 27. Thus, on remand the superior court should enter additional findings and conclusions as to whether Wirum's various breaches, discussed above, were material breaches of the parties' contract. Restatement (Second) of Contracts, § 237, comment d; § 241 (1981); Howard S. Lease Constr. Co. v. Holly, 725 P.2d 712, 715-16 (Alaska 1986). In the event the superior court determines that none of Wirum's breaches relieved Cash of his obligations under paragraph 27, we hold that the superior court abused its discretion in refusing to allow Wirum to brief the issue of whether paragraph 27 constituted an unenforceable penalty clause and therefore should be expunged. Cash did not assert in the pleadings that paragraph 27 constituted an unenforceable penalty clause. Furthermore, review of the record persuades us that this issue was not tried with Wirum's consent. This penalty clause issue was raised for the first time after Wirum had rested his case. In brief, Wirum was never afforded the opportunity to present countervailing evidence or to argue the matter fully. V. THE NON-COMPETE CLAUSE Cash argues that Wirum is not entitled to enforce the non-compete clause because Wirum's breaches of fiduciary duties discharged Cash's further obligations under this clause. Wirum argues that he breached no duty to Cash, and that any breaches were not wilful or material. Wirum argues that Cash voluntarily left the firm because of the amount of money he was required to pay upon Wirum's retirement and stresses that Cash received the benefits which he reasonably could have expected based on the partnership agreement. Wirum also argues that Cash can be adequately compensated if a breach occurred, and that Wirum will suffer an unjust and unnecessary forfeiture if Cash is excused. Given the remand we discussed above as to the enforceability of paragraph 27 we think a similar disposition is called for as to this issue. We therefore remand the question of the enforceability of the non-compete clause for the purpose of permitting the superior court to enter additional findings of fact and conclusions of law as to whether Wirum's breaches were material and whether such material breaches excused Cash from any obligations he had under the provisions of the non-compete clause. In the event the superior court on remand determines that Wirum's breaches did not relieve Cash of his obligations under the non-compete clause we will address the parties' arguments regarding the supe rior court's rulings pertaining to the non-compete clause. (i) Postal service contract The superior court found "Cash did not violate the 'non-competition' clause by entering into a contract with the United States Postal Service within two (2) years of March 31, 1986, because Wirum did not submit a bid on the Postal Service contract." In essence, the superior court approved Judge Joan Katz's preliminary injunction, refusing to enjoin Cash from completing the contract for Phase I of the project because Wirum had not attempted to obtain the contract. Cash, citing Data Management, Inc. v. Greene, 757 P.2d 62 (Alaska 1988), claims both Judge Katz and Judge Gonzalez adopted a rule of reasonableness in their interpretation of the clause. He also emphasizes that these clauses are disfavored and Wirum had not submitted a bid. Wirum responds, however, that the superior court should have looked at whether Cash's contract was with a W & C or HWA client, and not whether Wirum had placed a bid on that particular contract. Based on the language of the partnership agreement, we conclude that Wirum's argument has merit. Paragraph 16 of the agreement reads, No partner shall directly or indirectly engage in competition with the business of the partnership as described in paragraph 5. If any partner withdraws or is expelled for the partnership he shall not perform services for a client of the partnership, past or present, or a client of Wirum's architectural practice as a sole practitioner, for a two year period thereafter without the consent of the other partners. A partner may engage in other enterprises which do not conflict or compete with the business or interest of the partnership and a partner need not offer such business opportunities to the partnership or the other partners. (Emphasis added.) The U.S. Postal Service was Cash's client, as well as a former client of W & C. The U.S. Postal Service contract provided total fees of $200,000 and was entered into within two years of leaving the partnership. Judge Katz, ruling for Wirum on the preliminary injunction, acknowledged "that contacts have been made which, at least on the face of the noncompete agreement, violate that agreement, and those more specifically are the contacts and the contracts with the Postal Service and Corps of Engineers." Cash claims that Wirum did not submit a bid on this project. Yet, this factual issue is irrelevant given the plain language of the clause. (ii) Corps of Engineers Contract Cash has a contract to perform architectural services for a dining facility for the U.S. Corps of Engineers at Fort Wainwright, valued at $5-10 million. Wi-rum alleges that Cash solicited work for this project during the non-compete period. The Corps of Engineers was Wirum's client for twenty five years, including at the time Cash withdrew. Wirum claims he submitted for the Corps job and was "shortlisted"; he believed he had a good chance of getting it. However, the project was put on hold and Cash obtained the actual award after the two year non-compete period expired. Wirum alleges that the trial court erred by not awarding damages for this breach. The court made no finding as to whether this action violated the clause. Cash responds that the Corps contract did not commence within the two-year term of the non-competition clause, but six months later. Cash cites Judge Katz's ruling at the preliminary injunction that the clause would only be construed to prevent Cash from "competing" where the "effective date of any contract would fall within the two-year period," because one needs to treat such clauses restrictively. See De-Cristofaro v. Security Nat'l Bank, 664 P.2d 167, 169 (Alaska 1983). In our view Cash has the more persuasive position. While the Corps of Engineers first solicited the statement of qualifications on the project in September 1987, and Cash submitted a bid in October 1987, Cash was only selected for the project on January 6, 1988. At the date of trial, August 30, 1988, no negotiations had occurred, no contract was signed, no work was performed, nor was a proposal predicate to negotiating the fee for services prepared. Simply, no services had been "performed," which is what the partnership agreement prohibited. While an allegation existed that collusion delayed the project, Claude Vining, assistant chief of the engineering division of the Alaska District Corps of Engineers, testified that it was not an unusual period of time between the solicitation and selection. He explained that "our user [the Army] has not authorized us to complete the project." Yining denied that the Corps and Cash agreed to delay work on the project. Cash also denies it. (iii) Contracts with the United States Cash submitted a statement of qualifications for a U.S. Army Corps Engineers architectural services contract and was selected for negotiations. The Corps ultimately awarded him an indefinite delivery of architectural services contract. He performed approximately $250,000 in architectural services on the contract, yet he was unable to identify his profit. The superior court awarded Wirum $50,000 representing the profit the court determined that Cash made on this contract. Wirum testified that he also bid on this contract, although conflicting evidence existed. At the preliminary injunction hearing, Judge Katz allowed Cash to continue to perform the contract to its completion. Judge Katz found that Wirum had not submitted qualifications for the contract and Cash's performance under it was likely to be finished in two or three months. Judge Katz did not issue a preliminary injunction. Mr. Cash is in midstream on that job, and Mr. Wirum did bid on that particular option — at least he thinks he probably did. That one will apparently run out at about the same time that the noncompete clause itself expires. I think here, because there is a potential for serious harm to Mr. Cash's reputation should he effectively breach his contract by breaking it off in the middle, since there's a harm to his employees potentially if this contract not be completed, I am not going to enjoin him from continuing with the Corps contract for this particular year. At trial on the merits, superior court Judge Gonzalez found that Cash had violated the non-compete clause by contracting with the Corps to perform architectural services within two years of March 31, 1986 for "a client for whom HWA and/or W & C had done work." The superior court found the clause "not unreasonably restrictive nor is it violative of public policy." Cash argues that a restraint on his ability to contract with the United States, e.g. the Army Corps of Engineers, is unreasonable because it eliminates "ordinary competition," as opposed to competition which would be unfair to W & C. Cash emphasizes that the competitive federal proce dures for procuring architectural services exist. We reject Cash's argument. Cash places much emphasis on Data Management, Inc. v. Greene, 757 P.2d 62 (Alaska 1988). First, Data Management addressed an overbroad covenant not to compete. Id. at 64. Here, there is no finding that the covenant is too broad. Second, the language in Data Management that Cash emphasizes, the distinction between "whether the covenant seeks to eliminate competition which would be unfair to the employer or merely seeks to eliminate ordinary competition," is just one factor among nine that are listed. Id. at 65. Other factors, such as "whether the covenant operates as a bar to the employee's sole means of support," and "the absence or presence of limitations as to time and space," indicate that the clause is reasonable. Id. at 65. This conclusion is reenforced by our reference to U.C.C. § 2-302 which indicates that the clause must be unconscionable in order to alter the covenant. Data Management, 757 P.2d at 65. Even assuming that Cash is correct on the procedures for obtaining Corps contracts, other courts have refused to place the public's interest in competitive bidding on public projects ahead of a partner's obligation not to compete. See Leff v. Gunter, 33 Cal.3d 508, 189 Cal.Rptr. 377, 384, 658 P.2d 740, 747 (1983) (en banc) (partner still violating continuing duty not to compete with partnership even though partner withdrew). Moreover, Judge Katz found that "there is no evidence that enforcement of the covenant not to compete against Cash is likely to cause significant harm to public interest." (iv) Damages awarded under the non-compete clause Finally, Cash argues that the superior court incorrectly measured Wirum's damages for Cash's breach of the non-compete clause by Cash's expected profits. Cash claims that Wirum had to prove some actual damages. Wirum responds that the trial court did not award damages based on Cash's profit. Rather, it considered Cash's profit as evidence of Wirum's loss. Wirum further contends that if the court awarded Wirum Cash's profit, it is legally supportable. Cash offers no authority for his argument. Wirum, by contrast, convincingly argues that a court can consider the profit of the breaching party. In National Bank of Alaska v. J.B.L. & K of Alaska, Inc., 546 P.2d 579, 590 (Alaska 1976), we held, "[t]he measure for breach of a covenant not to compete is generally not the profits earned by the breaching party asserting the breach." We cited to Merager v. Turnbull, 2 Wash.2d 711, 99 P.2d 434, 439 (1940), which held that the defendant's profit may be considered in evidence if shown to correspond in whole or in part to plaintiff's loss for impairment of good will. Other courts have found that the breaching party's profits can be a reasonable basis for estimating plaintiff's damages. See North Pac. Lumber Co. v. Moore, 275 Or. 359, 551 P.2d 431, 435-36 (1976); Dunn v. Ward, 105 Idaho 354, 356, 670 P.2d 59, 61 (Idaho App.1983). VI. WHETHER MARY LOU WIRUM IS JOINTLY AND SEVERALLY LIABLE FOR DAMAGES ASSESSED AGAINST WIRUM The superior court found that, Mary Lou Wirum owed a fiduciary duty to the partnership of Wirum & Cash and to Larry Cash because she was entrusted to manage money belonging to the partnership and to keep accurate records for the benefit of both partners and not for the primary benefit of C. Harold Wirum, her husband and herself.... Mary Lou Wirum breached her fiduciary duties owed to Larry Cash. Wirum argues that inadequate findings of fact exist to show that Mary Lou Wirum had agreed to act on Cash's behalf. Wi-rum alternatively argues that assessing liability for damages assessed against himself and against Mary Lou Wirum, as well, was error because only Wirum was party to the partnership and buy-in agreement. Mary Lou Wirum should be held jointly and severally liable. The superior court held that "the evidence in this case proved that Mary Lou Wirum had substantial interwoven interests with C. Harold Wirum in the acts and transactions involved in this litigation." This factual finding is not clearly erroneous. The court lists "[a] few [twenty-six] of the facts which support [its] conclusion." The superior court found that while Wirum was managing partner, "in actual practice, at all times during its existence, Wirum delegated this responsibility to Mary Lou Wirum who undertook the responsibility for and supervised the business and accounting functions of the partnership." Mary Lou Wirum herself said, For the past 30 years, I have been intimately involved in the organizational and financial matters of Wirum & Cash, Architects, and of C. Harold Wirum as a sole practitioner, as well as CCWC, Architects, and Maynard & Wirum, Architects, partnerships of which C. Harold Wirum was a member. My involvement with each entity was for the entire period of that entity's existence. Apart from the factual intertwining of actions, several legal theories support the joint and several award. First, Mary Lou Wirum assisted Wirum in committing a tort (here breach of fiduciary duty); she is therefore liable as a joint tortfeasor. An agent who assists another agent or the principal to commit a tort is normally himself liable as a joint tort feasor for the entire damage. Thus, those who assist in the wrongful removal of chattels . all are subject to liability together with those for whom they act, except where their good faith creates a privilege in them to act. Restatement (Second) Agency, § 343 comment d (1958). The superior court's ability to join the parties is clear. (1) Principal and agent can be joined in an action for a wrong resulting from the tortious conduct of an agent or that of agent and principal, and a judgment can be rendered against each. Restatement (Second) Agency, § 217(B) (1958). However, the Restatement of Torts reaches a slightly different conclusion: A person who knowingly assists a fiduciary in committing a breach of trust is himself guilty of tortious conduct and is subject to liability for the harm thereby caused . The measure of his liability, however, may be different from that of the fiduciary since he is responsible only for harm caused or profits that he himself has made from the transaction, and he is not necessarily liable for the profits that the fiduciary has made nor for those that he should have made. Restatement (Second) Torts, § 874 comment c (1979). However, given the intertwining of Mary Lou Wirum and Wirum's actions, as well as their status as partners in other business entities and as husband and wife, Wirum's gains are indistinguishable from Mary Lou Wirum's gain. Given these theories, we find it is unnecessary to resolve whether Mary Lou Wi-rum was an agent of Cash as well as the partnership, since we may affirm a trial court's ruling on different grounds than those adopted by the trial court. VII. MISCELLANEOUS CLAIMS OF ERROR (i)The buy-in agreement Wirum argues that the superior court erred in refunding Cash $47,481 that he paid under the buy-in agreement and simultaneously, crediting Cash with the benefits of 25% ownership when he withdrew (e.g. $44,681 which was 25% of the accounts receivable as of March 31, 1986). More particularly, Wirum contends that the buy-in agreement and the partnership agreement were one contract, that the evidence did not support that Wirum knowingly misrepresented past income or that Cash's reliance was reasonable, and that the court improperly shifted the burden of proof. Wirum asserts that the trial court treated the buy-in agreement and the partnership agreement as two separate contracts, allowing rescission as to the buy-in agreement and a damage remedy as to the partnership agreement. He contends that a damage remedy should have been applied to both. Wirum argues that he is entitled to have the buy-in agreement enforced and to receive from Cash the remainder of the $250,000, or to have the unpaid buy-in sums subtracted from the damage award. Cash does not deny that the two agreements should be read together as one contract. Yet, he contends that the court was awarding restitution for his buy-in contributions in its damage award. Cash argues that he suffered this loss, and that Wirum derived this gain, from his breach of fiduciary duties. Contrary to what Wirum and Cash argue, it seems that the superior court employed a reliance measure of damages. However, as the measure of damages is not specified, upon remand the superior court shall clarify the precise damage theory it is applying. (ii)Costs and attorney's fees Given our conclusion that a remand for certain aspects of this case is necessary we find it unnecessary to address Wirum's attack on the superior court's award to Cash of attorney's fees and costs. Depending on the superior court's resolution of the issues remanded it could conceivably make adjustments to its previous award of attorney's fees and costs. (iii)New trial and additional errors In footnote 112 of his brief, Wirum claims this case should be remanded for a new trial given the overall number of errors. In that footnote, Wirum lists six alleged errors in addition to those discussed throughout this opinion. Given the cursory nature of their presentation, we decline to address them. Where a point is not given more than a cursory statement in the argument portion of a brief, the point will not be considered on appeal. State v. O'Neill Investigations, Inc., 609 P.2d 520, 528 (Alaska 1980); Fairview Development, Inc. v. City of Fairbanks, 475 P.2d 35, 36 (Alaska 1970), cert. denied, 402 U.S. 901, 91 S.Ct. 1374, 28 L.Ed.2d 642 (1971). Furthermore, we are not persuaded that a new trial, as opposed to the limited remand called for above, is appropriate. AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion. BURKE and MATTHEWS, JJ., not participating. . At the partnership's inception, Cash's capital contribution was $16,000 and Wirum's was $48,-OOO, not including the depreciated cost tax basis of Wirum's furniture, equipment and books worth $83,671. . Paragraph 16 of the agreement read, in part, If any partner withdraws or is expelled from the partnership he shall not perform services for a client of the partnership, past or present. or a client of Wirum's architectural practice as a sole practitioner, for a two year period thereafter without the consent of the other partners. . Cash claims that as this finding was not challenged in Wirum's opening brief, it is waived. That Wirum's accountant and legal fees were paid is supported by the record. The total appears to be approximately $20,000. W & C did not pay the equivalent fees for Cash in the formation of the partnership. . These diversions of partnership resources are supported by the record. Wirum contends that these costs were cleared monthly by offsets through "due-to" and "due-from" accounts. Wirum contends he understood "overhead" to mean only "labor burden" or FICA, FUTA, and worker's compensation, and not rental costs or office expenses. This belies the clear meaning of the term. Black's Law Dictionary 995 (5th ed. 1979) defines overhead as "[a]Il administrative or executive costs incident to the management, supervision, or conduct of the capital outlay, or business." It goes on to say that overhead includes "office expenses." Wirum also contends that he told Cash that the bookkeepers would work for Wirums' personal projects in exchange for Mary Lou Wi-rum's supervisory services. This is not supported by the agreement; the record indicates Mary Lou Wirum received free office space for her services, not free bookkeeping services. . The record supports that monies not needed immediately were transferred to the Wirums' personal account. Interest earned was not credited to W & C. This finding is not challenged. Rather, Wirum contends this money was due to him as a result of HWA receivables flowing through W & C, therefore he practiced good money management. Wirum cites John Roth-enbueler to support his position, yet Rothen-bueler's testimony acknowledges its "a very complex question" and nowhere states that the money transfers reflected perfectly the money transferred to the Merrill Lynch account. He even admitted "you can't tell . in hindsight." Wirum also contends the amounts transferred reduced the interest W & C owed to Wirum for monies he loaned to the firm. Yet, Marianne Burke, an expert accountant, showed these transfers resulted in a loss of $99,185.16 in potential interest to W & C in 1984 through 1986. While Wirum criticizes her analysis, his attacks go to the damage amount rather than the existence of a breach. Moreover, Wirum fails to demonstrate how Burke's conclusion would differ if she considered the factors Wi-rum indicated she did not consider. . In 1984 alone, if that money had been kept in the partnership, 135,946 could have been interest earned on excess cash. . This is supported by the record. Wirum argues that this bookkeeping error "when dealing with millions of dollars and hundreds of transactions, is not a breach of fiduciary duty." There is no evidence, however, to show that it is a mere bookkeeping error. . M.L. Wirum, Inc. was the construction manager for the apartment complexes built by a Wi-rum entity. That company charged HWA $75,-000 for the services in 1983, yet Mary Lou Wirum caused W & C to pay this expense. HWA was never charged interest on this payment. Even John Rothenbueler, Wirum's expert, could not say that this money was repaid. . Expenses for 1983 were posted in December 1983 but not sent out until January 1984. In that year, income received by W & C was not reported as being received in 1983, but rather as received in January 1984. This overstated expenses and understated income for W & C for 1983. In 1984, the same thing occurred. Expenses were recorded although checks were not mailed until 1985. Income was under reported, recording it instead in 1985. The distortion of W & C's income negatively affected the amount credited to Cash under the buy-in and created unnecessary excess capital contributions and interest charges for Wirum. Wirum contends that the year end activity affected the cash income reported to IRS, not the firm's accrual income and therefore benefited both W & C and Cash. He contends it did not effect Cash's buy-in obligation. However, there is no record support given by Wirum. . The court found that these billing practices were continued through mid year 1984. No interest was paid on these loans. . The record supports that W & C employees working on the apartment projects were paid by W & C. Also W & C records understate the direct labor costs incurred by the partnership for work on the apartment projects. Evidence supports the court's conclusion that Wirum did not reimburse W & C for any overhead costs attributable to work performed by W & C employees. In 1984, that amount is estimated at 129,918. Similarly, third party consultant costs between $181,436 and $193,000 were paid by W & C. To pay this back, Wirum made "due from" entries on the accounts; these did not accrue interest for W & C. These interest free loans were taken throughout 1983, 1984, and 1985. Finally, the record supports that the Wirums also owed W & C for expenses related to personal projects in the amount of $64,121 in 1983 and $41,862 in 1984. . This is supported by the record. An exhibit submitted by Cash showed Wirum dedicated 21% of his time to personal projects versus 37% to W & C projects in 1983, 31% to personal projects and 23% to W & C projects in 1984, 1% to personal projects and 21% to W & C projects in 1985, and none to personal projects and 28% to W & C projects in the first quarter of 1986. Again, Cash emphasizes that as Wirum did not challenge this finding in his opening brief, his arguments are waived. However, in his cross-appellee brief, Wirum claims W & C received credit for all time spent on these projects. Yet, Rothenbueler's testimony only indicated that he computed W & C employees' contributions, not the partner's time spent on personal projects. While Cash might have known of these projects when he entered the partnership, it is unclear if Cash knew of the magnitude of time involved or, if his knowledge was relevant given that the partnership agreement stated, "Each partner shall devote substantially all of his full time, attention and best efforts to the interests and affairs of the partnership." While Wirum says this time included time off for personal emergencies which Cash authorized, he does not detail the quantity of time this entailed. .While W & C reported a loss of $212,019 in 1983, W & C reported profits of $252,305 in 1984, $431,091 in 1985 and $96,018 in the first three months of 1986. W & C had no need to carry loans or receive excess capital contributions after February 1984. In fact, under Burke's analysis, W & C should have had excess cash which would have earned $85,572 by the end of 1985. Yet, interest due to the Wirums for loans and excess capital contributions to-talled $229,064 for the partnership years, and less than half was attributable to 1983 and 1984, the time for which the firm may have needed excess capital contributions. In March 1986, a check was drawn for interest owed to Wirum for loans to W & C from 1983 to 1985 in the amount of $210,295.29. The loans were unnecessary. Rather, the true interest that was due was $5,466 for the original excess capital contribution plus $11,228 for working capital loans in 1983. The interest should have been $816 for working capital loans in 1984. There should have been no interest due for 1985 or 1986. Janet Niemann, a CPA and firm bookkeeper, prepared computations on interest due Wirum for providing operating capital to the firm for 1983-85. She determined that $210,295 was due Wirum and a check for this amount was paid to Wirum. The calculations of interest during this period were based on contributions passing through the accounts of W & C rather than on what was reasonably necessary to meet the operating capital needs of W & C. Touche Ross did an accounting for the firm and determined the correct amount should have been $94,369. Wirum agrees an error was made and it should be corrected. . There is no explicit requirement in Alaska's Uniform Partnership Act that any books be kept, although it is arguably implicit in AS 32.-05.140 (location and access to partnership books) and AS 32.05.150 (duty of partners to provide information). However, once Wirum chose to keep books, they needed to be adequate. Bromberg and Ribstein on Partnership, § 6.05(b), at 6:53. Otherwise, the partnership may be deemed to have breached the duty to disclose. Rogers v. Stacy, 63 N.M. 317, 318 P.2d 1116 (1957); Jackson v. Jackson, 343 Ill.App. 31, 98 N.E.2d 169 (1951). Clear financial records delineate the parties' individual interests and deter self-dealing and mismanagement by providing a monitoring mechanism. See Bromberg and Ribstein on Partnership, § 6.05(a), at 6:52-3. See also, Frankel, Fiduciary Law, 71 Cal.L.Rev. 795, 826 (1983). . Wirum claims that he acted in good faith. However, a finding of the absence of good faith is implicit in a finding that a fiduciary breach occurred. Froemming v. Gate City Federal Sav. and Loan Ass'n, 822 F.2d 723, 731 (8th Cir.1987). In Froemming, the court said, Good faith in turn depends upon the knowledge, understanding, and intent of the partner who is charged with breach of fiduciary duty, as well as the understanding, knowledge, and intent of his co-partners. It also depends upon the circumstances of whatever action is alleged to be a breach of duty. Necessarily, the determination of whether an action is undertaken in good faith requires the fact-finder to weigh the credibility of the witnesses, gauge nuances of voice and expression, and sift through competing and conflicting versions of what occurred and what state of mind each actor brought to the occurrence. Id. As to the specifics, the superior court found that the prepayment of expenses did not benefit W & C, but created a need for the partnership to borrow from the Wirums. Wirum claims that this was clearly erroneous. The Wirums claim the partnership would have had to borrow from a bank and no evidence existed that W & C had the funds to pay the first two months rent and parking from partnership income. Cash does not specifically respond to this argument. However, the superior court appears to have considered Wirum's contention in finding a breach. It acknowledged that W & C needed additional working capital during the first few months of its existence, but not after 1984. The superior court found that the year-end tax reporting system diminished Cash's ability to pay off his buy-in obligation. Wirum claims that "it reduced the principal that Cash had to pay Mr. Wirum on his buy-in." Cash seems to accept this argument and calls it "false comfort." He claims, rather, that he may not have withdrawn had the profits been fairly represented. It is clear, in any event, that the practice created unnecessary working capital loans and interest charges, and it caused Cash to owe $45,000 more on his capital accounts and an additional $48,000 on the buy-in. The finding that Wirum had a personal interest in manipulating W & C's income was not clearly erroneous. As to the capital account, Wirum argues that Cash never paid his negative balance and that tax deferral procedures catch up eventually. Cash responds that he never received the benefits of the partnership and the superior court charged him for his share of the partnership's capital accounts in its damage award. While Cash undoubtedly received some benefit from the partnership, the superior court did award Wirum $39,850 which was Cash's negative balance of his capital account as of March 31, 1986. . The interest owed by W & C to Wirum based on the amount passing through in 1983 amounted to $52,729.73. A bookkeeper later computed the correct amount to be $44,037. Another bookkeeper, however, used the $52,729.73 figure to compute interest for 1984, 1985, and part of 1986. From 1983 until March 1986, $229,064.52 was calculated as interest accruing on loans made to W & C by Wirum. Wirum now admits an error was made and should be corrected. . However, Burke admitted she did not perform an audit in accordance with generally accepted auditing standards on the W & C financial statements. . However, Mary Lou Wirum claims she herself undertook to determine what loans were reasonably necessary for W & C to meet its operating capital needs. . Testimony of Susan Monsen, an accountant who worked at W & C, supports that these deposits were made. Testimony from Margaret Ward, a bookkeeper at W & C, supports that the interest earned was not returned to W & C. . Arguably sufficient evidence exists to support a finding of misrepresentation. Most significantly, Cash testified that he believed HWA was making an average of $500,000 per year for the last five years based on "[rjepresentations that had been made to me during the partnership negotiations . both verbally and in written documentation." The verbal representations were made by Wirum and Mary Lou Wirum in 1982. While Wirum contends that this "self-serving testimony" as to Cash's subjective belief is not probative, Cash's testimony is corroborated. A letter to a loan officer signed by Wirum and Cash, and typed by Mary Lou Wirum stated, "Wirum's last five years earning as a sole practitioner have averaged $500,000/year. Wi-rum's experience at start-up of his sole practice was a negative cash basis profit in Year 1, a positive (to approximately equal the Year 1 negative) cash basis profit in Year 2." (Emphasis added.) Also, a letter from Wirum to a potential partner stated, "Prior to forming the partnership my earnings had been in the $500,000 annual range. It should be stressed that for the future partnership to continue to generate these type earnings (sic) will take an overall-team-management effort . in which case, the monetary benefits are there." Although these letters were written on March 19, 1985 and October 25, 1984 respectively, after the partnership was formed, they corroborate Cash's allegations of misrepresentation. Also, attorney Thomas McLaughlin wrote in December 17, 1982, that the assumption was earnings from the new partnership would be $500,000 per year, which could be applied to Cash's buy-in obligation. This assumption was based on -a letter addressed to McLaughlin and Touche Ross & Co. from Mary Lou Wirum on December 15, 1982. Mary Lou Wirum's letter does contain some ambiguity because it does not affirmatively state that the $500,000 figure is only from Wirum's architectural practice: Instead, in the agreement Larry and Harold will agree that for purposes of computing the retirement, death or disability pay, Wirum's agreed five consecutive full highest years will be a minimum of $500,000/year. The retirement, death or disability pay payment formula to Wirum will be based upon this figure unless Wirum has higher earnings following the formation of the partnership. . Paragraph 27 reads: Payments to Withdrawn or Expelled Partner. A former partner who has withdrawn or been expelled from the partnership shall be entitled to receive the following amounts and no others, provided the former partner has complied with all the provisions of this agreement; (i) The credit balance of his capital account; (ii) The credit balance of his drawing account. The books and records of the partnership shall be closed at the end of the month in which the withdrawal or expulsion occurs. A computation of capital and drawing accounts shall then be made in the same manner as at the end of each quarter and so will reflect as operating expenses all items of accrued expenses and prepaid expenses. Accrued expense shall include a reasonable provision for a proportionate share of normal fiscal year end expenses. . No other amounts or benefits shall be payable to a withdrawn or expelled partner including any amount for accounts receivable or work in process. Such measures are agreed upon to compensate the partnership for its costs and losses arising from the withdrawing or expulsion of the former partner. (Emphasis added.) . Compare with Obert v. Environmental Research & Devel. Corp., 112 Wash.2d 323, 771 P.2d 340, 341 (1989). . Barrett v. Byrnes, 556 P.2d 1254, 1255 (Alaska 1976) (no implied consent exists when an issue is raised for the first time after plaintiff has rested his case). .Cash additionally argues that the superior court's findings relating to Wirum's breach of contract and fiduciary duties constituted a finding of unclean hands and thus "are complete defenses to Wirum's claims on the non-competition clause." The doctrine of unclean hands is an equitable remedy. Here we conclude that the superior court did not abuse its discretion in failing to apply the doctrine. . Cash also emphasizes that Judge Katz reasonably interpreted the clause. Yet, there is no showing that the clause here is "unreasonable" given the factors to be considered. Data Management, 757 P.2d at 65. A predicate to the court altering an overbroad covenant not to compete to render it enforceable (based on what restrictions would be reasonable between the parties) is that the overbroad covenant was drafted in good faith. Data Management, 757 P.2d at 64. . There are two different Corps projects mentioned in the appeal. One was a project done for $400,000 during the non-compete period. The court found a violation of the non-compete clause and awarded Wirum $50,000. This is the subject of Cash's cross-appeal, infra. The Corps project under discussion here was a project at Fort Wainwright solicited during the non-compete period. The superior court made no finding as to whether or not this violated the non-compete clause. . Cash also states that no findings concerning violation of the non-competition clause were necessary given this language and because no contract was formed during the relevant period. The superior court did find that the preliminary injunction was well founded in law, adopting the original court's reasoning. . The superior court found, Cash violated the "non-competition" clause by contracting with the Corps of Engineers to perform architectural services within two (2) years of March 31, 1986. Wirum submitted a bid with the Corps of Engineers and Cash competed with Wirum. Cash claims Wirum never submitted a bid with the Corps of Engineers on this project. Cash's argument lacks merit. First, as Wirum argues, the evidence conflicted on this point. The trial court's resolution of this dispute is not clearly erroneous. Preferred General Agency of Alaska, Inc. v. Raffetto, 391 P.2d 951, 952-53 (Alaska 1964). Second, and not argued by Wi-rum, the non-compete clause restrains Cash from doing business with a client of W & C, regardless of whether Wirum chose to bid on the project. In fact, in its conclusions of law, the superior court said "Cash violated the non-competition clause by contracting and performing work for a client for whom HWA and/or W & C had done work, the U.S. Corps of Engineers. Wirum is entitled to recover the profit of $50,000 Cash made on this contract." . Cash argues that the facts adduced at trial indicate that the injunction should not have been issued. Cash claims he should have received damages for being wrongfully enjoined. In the event the superior court determines on remand that Wirum's breaches excused Cash from compliance with the non-compete clause, the superior court should redetermine this issue. . Mary Lou Wirum was head bookkeeper. Her accounting "caused Cash's withdrawal." The superior court found, "Cash relied upon the information provided to him by the Wirums and concluded that it would be a financial hardship if not impossible to make the payments demanded by the Wirums under the partnership agreement." . Harold Wirum is liable for Mary Lou Wi-rum's errors. A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless: (c) in the supervision of the activity^] Restatement (Second) Agency, § 213 (1958). Similarly, A master or other principal who unintentionally authorizes conduct of a servant or other agent which constitutes a tort to a third person is subject to liability to such person. Restatement (Second) Agency, § 215 (1958). . Restatement (Second) Contracts, § 349 (1979) provides: Damages Based on Reliance Interest As an alternative to the measure of damages stated in § 347, the injured party has a right to damages based on his reliance interest, including expenditures made in preparation for performance or in performance, less any loss that the party in breach can prove with reasonable certainty the injured party would have suffered had the contract been performed.

10371350

William Lee BARBER, a contingent beneficiary, Appellant, v. William F. BARBER Sr., Edward G. Barber Jr., individually, and the Fanni Barber Soine Trust, Edward G. Barber, Trustee, Appellees

Barber v. Barber

1992-08-14

No. S-4322

714

718

837 P.2d 714

837

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:15:02.151835+00:00

CAP

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

William Lee BARBER, a contingent beneficiary, Appellant, v. William F. BARBER Sr., Edward G. Barber Jr., individually, and the Fanni Barber Soine Trust, Edward G. Barber, Trustee, Appellees.

William Lee BARBER, a contingent beneficiary, Appellant, v. William F. BARBER Sr., Edward G. Barber Jr., individually, and the Fanni Barber Soine Trust, Edward G. Barber, Trustee, Appellees. No. S-4322. Supreme Court of Alaska. Aug. 14, 1992. Richard G. Haggart, Maloney & Hag-gart, Anchorage, for appellant. Gary Foster, Call, Barrett & Burbank, Fairbanks, for appellees. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

2228

13900

OPINION RABINOWITZ, Chief Justice. INTRODUCTION William Lee Barber, a contingent beneficiary of the Fanni Barber Soine Trust, challenges the superior court's approval of a settlement agreement which resulted in the termination of the trust over his objection. FACTS AND PROCEEDINGS Fanni Barber Soine created a family trust to benefit her two sons, Edward G. Barber Sr. and William F. Barber Sr., and their wives and children, on January 2, 1956. A second document, entitled "Clarification of Intent of Creator of Intervivos Trust" was executed in June 1967. The trust instrument named Edward Sr. as the trustee and indicated that upon his death his wife was to succeed him as trustee. Upon his wife's death, trustee powers would pass in turn to their three sons, Edward Jr., Hugh, and Richard. Pursuant to an agreement entered by Edward Sr. and William Sr. in 1968, the trust income would go to Fanni Soine during her lifetime. The trust instrument provided that upon Soine's death (which occurred in 1975) the trust income, minus expenses and trustee's fees of 20% of the trust income after expenses, was to be divided between Edward Sr. and William Sr. In the event that either beneficiary died, his share was to be paid to his wife and after her death, to his surviving children. Edward Sr. served as trustee from the trust's creation in 1956 until his resignation in December 1979. He was succeeded as trustee by his wife Janet. Janet resigned as trustee on July 8, 1982, two days after Edward Sr.'s death, and was succeeded by Edward Jr. Janet died in 1985. Edward Jr. continued as trustee until he was removed by order of the superior court on May 24, 1990. In 1987, William Sr. brought a suit against the Trust and his nephew Edward Jr., individually and as trustee, alleging various breaches by Edward Jr. of his fiduciary duties. After trial the superior court found, inter alia, that Edward Jr. breached his duty of care and misused trust funds and that "a non-family institutional Trustee must be appointed." The superior court then appointed Security Pacific Bank (Bank) as the successor trustee, effective August 7, 1990. In the fall of 1990, the Bank sought the superior court's approval to sell the major real property asset in the trust corpus to Nye Frontier Toyota. Counsel for the Bank explained "in view of the unsettled nature of the estate, we're seeking court approval for the trustee's exercise of discretion . [T]he question before the court is [whether] the trustee's exercise of discretion [is] reasonable." At the October 2, 1990 hearing, Hugh and Richard, as designated successor trustees under the trust instrument and beneficiaries under the trust, sought to intervene in the original suit, that resulted in the removal of Edward Jr. as trustee, to object to the appointment of the Bank as trustee. They also objected to the sale of property. William Sr., as party to the original action naming the Bank as trustee objected to the intervention of Hugh and Richard as untimely. The superior court denied the motions to intervene. Interested parties began to negotiate a settlement concerning the sale of trust real property. Income beneficiaries William Sr., Edward Jr., Richard, and Hugh, were all present and represented by counsel at the negotiations, as was the Bank. Attorney Peter Ginder was present at the negotiations and purported to represent the inter ests of all non-income beneficiaries. On October 8, 1990, the superior court held a hearing concerning the positions of each of the parties on the settlement with Judge J. Justin Ripley acting as the settlement judge. Appellant William Lee Barber (William Lee), son of William Sr. and a non-income beneficiary of the trust, was not present but was within the class whose interests attorney Ginder purported to represent. The parties and Ginder all agreed to the settlement. At the October 8 hearing, attorney Ginder indicated to the superi- or court that he found that the "proposed settlement as it comes together is fair and equitable to all concerned, including the non-income beneficiaries." At this hearing, the superior court approved an order allowing sale of the principal asset of the trust property. A final hearing was scheduled for October 24, 1990 for the purpose of placing the final settlement stipulation on the record. Before the final hearing, William Lee contacted attorney Ginder and indicated his objection to the settlement. At the October 29 hearing, attorney Ginder acting on behalf of William Lee, withdrew his approval of the settlement agreement. The other parties objected to attorney Ginder's withdrawal of his approval because actions had already been taken in reliance upon the settlement agreement, including the sale of the principal asset in the trust and distribution of trust funds. Despite Ginder's objections, the superior court approved the settlement stating, It is in the best interest of all vested and/or contingent beneficiaries born or unborn to settle this case and to distribute the corpus of this trust. It is contrary to the basic tenants [sic] of fairness and justice to permit an alleged remain-derman or an alleged contingency beneficiary to involve all of the vested and the known contingent beneficiaries in his paternity dispute with one of the vested beneficiaries. In this case the major asset of this trust has been sold by order of the Court, which is separate from this settlement agreement. The assets that are remaining and even the cash or the value of the sold asset are finite. And, therefore, the only foreseeable consequence of this Court not approving this settlement based upon the claim of the — of Mr. William Lee Barber or an individual who identifies himself to this Court as such through Counsel, is that it would further decrease the corpus of the trust for all of the beneficiaries, and it would increase the costs and the fees to be charged against the trust because it would involve the trust itself in the issue of heir status, if any, of what is before this Court today, merely an alleged contingent beneficiary. And therefore, the Court declines to grant the objection as stated by Mr. Ginder and to deny approval of the settlement on those grounds. Subsequently, the superior court approved the settlement and the attorneys for the parties, with the exception of Gin-der, signed the settlement agreement. William Lee now appeals from the superior court's approval of the settlement. William Lee argues that the superior court erred in approving the settlement stipulation over his objection founded on lack of notice, in finding that his interests had been represented by attorney Peter Ginder, and in concluding that the settlement was in the best interest of the beneficiaries. DID THE SUPERIOR COURT ERR IN OVERRULING WILLIAM LEE'S OBJECTION TO THE OCTOBER 29, 1990, SETTLEMENT STIPULATION? William Lee argues that the superior court's approval of the stipulation for set tlement deprived him of property without due process of law and violated basic standards of fairness. William Lee further argues that he was stripped of his contingent beneficial interest in the trust without proper notice and opportunity to be heard. Specifically, he asserts that he was not notified of the appointment of attorney Peter Ginder to represent his interests or of the settlement proceedings of October 8, 1990. ' He further claims that when he learned of attorney Ginder's approval of the settlement in his behalf he requested that attorney Ginder withdraw his approval. William Sr. argues that the settlement was in the best interests of all parties, that attorney Ginder represented William Lee, and that attorney Ginder recognized the necessity of stipulating to the settlement to save trust assets. He also asserts that attorney Ginder approved the settlement on behalf of William Lee and that the other parties relied on his approval and acted in reliance upon it. Therefore, William Sr. contends, "[t]his Court could hardly be presented with a more compelling occasion for the enforcement of an on-the-record, stipulated settlement." Resolution of this issue centers on the answers to two questions: (1) Did William Lee have an interest deserving of constitutional due process protection? and (2) Was William Lee afforded notice and an opportunity to be heard prior to the superior court's approval of the October 29, 1990 settlement stipulation? We answer the first question in the affirmative. William Lee's interest as a contingent beneficiary was sufficiently definite to warrant constitutional protection. As to the second question, review of the record shows that William Lee was not given notice and an opportunity to be heard prior to the superior court's approval of the October 29, 1990 settlement stipulation. In regard to the superior court's jurisdiction over the internal affairs of trusts, AS 13.36.060 provides in relevant part that proceedings are initiated by filing a petition "and giving notice under AS 13.-06.110 to interested parties." AS 13.06.-050(20) provides that: 'interested person' includes heirs, devi-sees, children, spouses, creditors, beneficiaries and any others having a . claim against a trust estate.... AS 13.06.050(2) states that: 'beneficiary' as it relates to trust beneficiaries, includes a person who has any present or future interest, vested or contingent. . Given the above it is clear that AS 13.36.-060 required that notice be given to William Lee as an "interested person." This follows because an "interested person" is defined by AS'13.06.050(20) to include beneficiaries and under. AS 13.06.050(2) the term "beneficiary" includes a person who has a contingent interest. Since William Lee was not given personal notice of the settlement proceeding of October 8 which led to the superior court's approval of the October 29, 1990 settlement stipulation we hold that the superior court erred in overruling William Lee's objection to the settlement. CONCLUSION The superior court erred in overruling William Lee Barber's objections to the settlement stipulation. REVERSED and REMANDED for further proceedings consistent with this opinion. . Appellant William Lee Barber's beneficial interest under the trust was contingent upon his surviving his father, William F. Barber Sr. . The approval of a settlement stipulation is within the discretion of the court. Thus, the standard of review is the clear abuse of discretion standard. See Pavek v. Curran, 754 P.2d 1125, 1126 (Alaska 1988); see also Corkland v. Boscoe, 156 Cal.App.3d 989, 203 Cal.Rptr. 356, 359 (1984). The superior court's factual findings are reviewed under the clearly erroneous standard. Parker v. Northern Mixing Co., 756 P.2d 881, 887 n. 11 (Alaska 1988). . The superior court approved the settlement over William Lee's objections because it viewed the settlement as being in the best interests of the beneficiaries and because actions had been taken in reliance upon the stipulated settlement. . William Sr. cites authority for the proposition that "[w]hen a stipulated settlement is made in open court, recognized by the Court, and there is no dispute as to its material terms, the stipulation is enforceable." Murphy v. Murphy, 812 P.2d 960, 965 (Alaska 1991); Kerslake v. Kerslake, 609 P.2d 559, 560 (Alaska 1980); Interior Credit Bureau, Inc. v. Bussing, 559 P.2d 104, 106 (Alaska 1977). This legal rule is' inapposite where, as in the instant case, not all the parties have agreed to the stipulation. . For example William Lee's consent would be required before a termination by consent of beneficiaries could be effected. Section 337 Restatement (Second) of Trusts. . See AS 13.36.035. . Inherent in our holding is the conclusion that attorney Ginder did not represent William Lee. First, William Lee had no notice of attorney Ginder's appointment purportedly representing his interests prior to the October 8, 1990 hearing. Ginder was appointed in 1988 by Judge Shortell to serve as the guardian ad litem for the unborn and unascertained heirs of Richard Barber in a companion case concerning the inclusion of the trust assets in the property division in the divorce of Richard and Faith Barber. In the October 8 hearing, Ginder indicated that his representation had been broadened, Your Honor . at the time of our last meeting asked that I assist and participate in the settlement discussions which you had mandated, and that I look after the interest of the non-income beneficiaries to the extent that their interest could be protected. I agreed to do so. At the October 8 hearing, upon the request of the Bank, the court made a finding of fact that Ginder adequately represented the interests of all non-income beneficiaries. Neither William Lee nor his attorney was present at that hearing. Second, since there is no indication in the record that William Lee Barber is incompetent the superior court lacked statutory authority to appoint a guardian ad litem to represent William Lee. In this regard, AS 13.06.120 provides in part: In formal proceedings involving trusts or estates of decedents . and in judicially supervised settlements.... (4) At any point in the proceeding, a court may appoint a guardian ad litem to represent the interest of a minor, an incapacitated, unborn, or unascertained person, or a person whose identity or address is unknown, if the court determines that representation of the interest otherwise would be inadequate;

10403129

Eddie Jo ANDERSON, Appellant, v. Vernon R. ANDERSON, Appellee

Anderson v. Anderson

1987-04-24

No. S-1320

320

324

736 P.2d 320

736

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:15:56.629960+00:00

CAP

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

Eddie Jo ANDERSON, Appellant, v. Vernon R. ANDERSON, Appellee.

Eddie Jo ANDERSON, Appellant, v. Vernon R. ANDERSON, Appellee. No. S-1320. Supreme Court of Alaska. April 24, 1987. Charles A. Winegarden, Kodiak, for appellant. C. Walter Ebell, Jamin, Ebell, Bolger & Gentry, Kodiak, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

2757

17262

OPINION MATTHEWS, Justice. Eddie Jo Anderson appeals from the superior court's denial of her motion to order execution on a limited entry permit held by her former husband, Vernon Anderson, to satisfy a judgment against him for past due child support. The sole issue presented is whether the Alaska Exemptions Act (AS 09.38.065) (permitting creditors to levy against exempt property of any kind for child support) allows Mrs. Anderson to execute on Mr. Anderson's limited entry permit to satisfy a judgment against him for past due child support, notwithstanding a provision of the Alaska Limited Entry Act (AS 16.43.150) (entry permits may not be attached on execution of judgment or under any other process or order of any court). We hold that the legislature intended to provide certain specific and limited exceptions whereby child support claims may be made against otherwise exempt limited entry permits. We therefore reverse the superior court's denial of Mrs. Anderson's motion to execute against Mr. Anderson's limited entry permit, and remand for the court to grant her motion. I. FACTS AND PROCEEDINGS Vernon Anderson is the father of three children. Eddie Jo Anderson adopted the children during her marriage to Vernon. The Andersons were divorced and as part of the decree, Mrs. Anderson was awarded custody of the children. Mr. Anderson was required to pay a total of $500 per month in child support. Mr. Anderson failed to pay a significant portion of the child support payments. The parties entered into a stipulation and judgment in the Superior Court of the State of Washington, that Mr. Anderson was in arrears in payment of past due child support in the amount of $54,404.73. Of this amount, $31,900 was due to the State of Washington for welfare assistance benefits it paid to Mrs. Anderson and the children. The remaining $22,504.73 was due directly to Mrs. Anderson, which the court awarded to her. The foreign judgment was recorded in the Alaska Superior Court, Third Judicial District at Kodiak. Mrs. Anderson filed a motion to order execution on Mr. Anderson's Alaska Limited Entry Permit No. S01K 60983Q. The motion was denied, as was Mrs. Anderson's motion to reconsider. She timely appeals. II. DISCUSSION A.Standard of Review The issue in this appeal is purely a matter of statutory interpretation; therefore, our review of the trial court's interpretation is de novo. See Jackson v. White, 556 P.2d 530, 533 n. 8 (Alaska 1976). B.Statutory Analysis and Construction The Alaska Exemptions Act, AS 09.38, provides in part that "[a]n individual is entitled to exemption of . (8) limited entry permits granted under AS 16.43, except as provided in that chapter." AS 09.38.-015(a)(8). The Exemptions Act further provides, however, that "[n]otwithstanding other provisions of this chapter, (1) a creditor may make a levy against exempt property of any kind to enforce a claim for (A) child support." AS 09.38.065(a)(1)(A). Thus, it is apparent that under the plain meaning of the Exemptions Act, Mrs. Anderson is entitled to an order of execution against Mr. Anderson's limited entry permit for past due child support. The seemingly unambiguous provision of the Exemptions Act is affected by another act, however. The Alaska Limited Entry Act provides that "[e]xcept as provided in [sections not directly relevant in this case], an entry permit may not be: . (3) attached, distrained, or sold on execution of judgment or under any other process or order of any court." AS 16.43.150(g)(3). It is apparent that under the plain meaning of the Limited Entry Act, Mrs. Anderson is not entitled to a court order of execution against Mr. Anderson's limited entry permit. Thus, there is an ambiguity arising from the co-application of the conflicting provisions of the Exemptions Act and the Limited Entry Act. These are not the only statutes dealing with exempt property and the enforcement of child support obligations. Alaska Statute 47.23.250, which authorizes the Child Support Enforcement Agency to issue orders to withhold and deliver property of a parent who fails in his/her child support obligations, provides in part that "[exemptions under AS 09.38 [Exemptions Act] do not apply to proceedings to enforce the payment of child support under AS 47.23.-230 — 47.23.270." AS 47.23.250(i). We must construe these statutes, looking first to the legislative intent underlying the competing statutory schemes. Hafling v. Inlandboatmen's Union of the Pacific, 585 P.2d 870, 872-73 (Alaska 1978). C.Legislative History and Intent 1. Limited Entry Act In 1973, the Alaska legislature enacted the Limited Entry Act. Ch. 79, § 1, SLA 1973, codified at AS 16.43. The purpose of this act was "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...." AS 16.43.010; see also Commercial Fisheries Entry Commission v. Apokedak, 606 P.2d 1255, 1258-61, 1264-65 (Alaska 1980). Indications of legislative intent relevant to the prohibition of execution against limited entry permits do not specifically address execution for past due child support. Rather, the legislature appeared to be con cerned that limited entry permits might be pledged as security and subsequently taken pursuant to court judgment A report issued by the House Resources Committee explained: During deliberations on HB 126 the possible problems resulting from the transfer and sale of entry permits were considered at some length. Concern was expressed that the free transferability of entry permits might result in a pattern of economic coercion against fishermen holding permits. Fear was expressed that the general lack of adequate financing for fishermen . might make it possible for those providing financing to indirectly control entry permits to some degree. Certain safeguards against the abuse of the transfer provisions were contained in HB 126 and have been retained in the committee substitute. . Entry permits cannot be pledged as security for loans or taken pursuant to judgement [sic]. 1973 House Journal 503, 504 (emphasis added). As part of the complicated statutory scheme designed to regulate and control the issuance of entry permits, the legislature later amended the act in 1977 to provide that, with certain exceptions not relevant in this case, "an entry permit may not be (1) pledged, mortgaged, leased, or encumbered in any way; (2) transferred with any retained right of repossession or foreclosure; or (3) attached, distrained, or sold on execution of judgment or under any other process or order of any court" Ch. 73, § 1, SLA 1977, codified at AS 16.43.-150(g) (emphasis added). With this background in mind, we now turn to the parties' arguments. Both parties rely on Brown v. Baker, 688 P.2d 943 (Alaska 1984), the only case construing AS 16.43.150(g). Mr. Anderson cites Brown for the proposition that subsection (g)(3) was "designed to insulate fishermen from 'economic coercion' and 'to prevent the forced loss of livelihood that would result from the court-ordered sale of permits.' " Brown, 688 P.2d at 948. In Brown, however, this court was construing subsections (g)(1) and (g)(2) in the context of a limited entry permit purchaser's pledge of the permit as security for the purchase. The application of subsection (g)(3) was neither in issue nor discussed. In holding the purchaser's pledge and the seller's retained interest in the permit invalid, we found that "the security agreement contravenes and defeats the purpose of the statute." Id., citing 1973 House Journal 504. It is not surprising that the court would cite the 1973 House Journal in gleaning the legislative purpose of the statute, for Brown involved the very kind of evil that the legislature wanted to prevent. For this reason, "and because we [saw] no special public interest in enforcing the illegal agreement," 688 P.2d at 948, we held that the agreement was unenforceable. Brown is thus of limited application to this case. Nonetheless, it is clear that subsection (g)(3) is effective beyond the core concern of financiers' control of the right to fish as a permit holder, and that subsection cannot be ignored merely because it goes further than the core concern. 2. The Exemptions Act In 1982, the Alaska legislature enacted the Alaska Exemptions Act. Ch. 62, § 2, SLA 1982, codified at AS 09.38. The Exemptions Act provides in part that "[a]n individual is entitled to exemption of . limited entry permits granted under AS 16.43, except as provided in that chapter." AS 09.38.015(a)(8). The legislature further provided, however, that certain claims were enforceable against exempt property. Thus, "Notwithstanding other provisions of this chapter [AS 09.38], a creditor may make a levy against exempt property of any kind to enforce a claim for child support." AS 09.38.065(a)(1)(A) (emphasis added). The legislature made the following statement of intent in enacting the Exemptions Act: It is the intent of the legislature to modernize the procedures for execution on a judgment and to afford to a judgment debtor adequate protection of his personal property and income necessary to pro vide for his own needs and the needs of his dependents while remaining independent of further public assistance. Ch. 62, § 1, SLA. 1982. From the language of the Act and the legislature's expression of its intent, we find that the legislature expressly considered the competing interests of protecting limited entry permits and enforcing child support awards, and has given child support a higher priority. The legislature adopted the National Conference of Commissioners on Uniform State Laws' Uniform Exemption Act, as modified by the Alaska Code Revision Commission. See Code Revision Commission Chairman's January 9,1981 transmittal letter accompanying HB 74 "An Act relating to the right of creditors and debtors," to the Twelfth Legislature, First Session, Alaska Legislative Council, reprinted in 1981 House Journal 151-52. The Uniform Exemptions Act does not contain an exemption for limited entry permits. See 13 Uniform Law Annotated, Uniform Exemptions Act § 5 (1980). Moreover, the provisions governing exemptions prior to the enactment of the 1982 Act contained no exemption for limited entry permits. AS 09.35.-080 (repealed 1982). Thus, the inclusion of a limited entry permit exemption was a deliberate act of the legislature which took place later in time than the adoption of the "no execution" language of AS 16.43.-150(g)(3). The Uniform Act also differs from the Alaska Act with respect to the types of claims enforceable against exempt property. The Uniform Act provides in part that "[n]otwithstanding other provisions of this Act: (1) a creditor may make a levy against exempt property of any kind to enforce a claim for: (i) alimony, support, or maintenance." Uniform Exemptions Act § 10(a)(l)(i) (emphasis added). The Alaska Act differs by providing that "a creditor may make a levy against exempt property of any kind to enforce a claim for child support." AS 09.38.065(a)(1)(A) (emphasis added). Again, it is clear that the legislature made a deliberate determination to provide an exception for child support claims enforceable against otherwise exempt property, for it did not simply adopt wholesale the broader exceptions under the Uniform Act. From this, we conclude that the legislature intended to provide certain specific and limited exceptions where claims may be made against otherwise "exempt property of any kind." It is not surprising that one such limited exception is for actions to collect for past due child support obligations, for the legislature has consistently expressed its concern with and support for the compelling public policy favoring enforcement of child support obligations. Mr. Anderson argues that the specific statute, the Limited Entry Act, controls the general statute, the Exemptions Act, because where two statutes conflict, the specific statute should prevail regardless of whether it was passed prior to the general statute, "unless it appears that the legislature intended to make the general act controlling." State, Department of Highways v. Green, 586 P.2d 595, 602 (Alaska 1978), aff'd sub. nom., 823 Square Feet v. State, 660 P.2d 443 (Alaska 1983). As we conclude from our analysis of the legislature's intent in enacting the relevant statutes, we believe the legislature intended the general Exemptions Act to prevail in this type of case. III. CONCLUSION The expressions of legislative intent in combination with the clear provisions of the 1982 Exemptions Act persuade us that the legislature meant what it said in permitting a parent with past due child support claims to execute against an otherwise exempt limited entry permit. Therefore, we REVERSE the superior court's denial of Mrs. Anderson's motion to execute on Mr. Anderson's limited entry permit for past due child support, and REMAND with instructions to grant her motion. REVERSED and REMANDED. . Subsection (g) of AS 16.43.150 Terms and conditions of entry permit; annual renewal, provides in full: Except as provided in AS 16.10.333 — 16.10.337 and in 44.81.230 — 44.81.250, an entry permit may not be: (1) pledged, mortgaged, leased, or encumbered in any way; (2) transferred with any retained right of repossession or foreclosure; or (3) attached, distrained, or sold on execution of judgment or under any other process or order of any court. AS 16.10.333 — 16.10.337 provide that a limited entry permit may be pledged as security for loans by the state to individual commercial fishers for the purchase of limited entry permits, and for default and foreclosure on such loans. AS 44.81.210 and 44.81.230-44.81.250 similarly provide for bank loans by the Commercial Fishing and Agriculture Bank for the purchase of limited entry permits, wherein the permit may be pledged as security for the loan, and in the event of default on the loan, the bank may foreclose on the permit. . The legislature has made its strongest statement of public policy favoring the enforcement of child support obligations in the Child Support Agency Act and the Act relating to child support enforcement of July 4, 1984. In 1977, the Alaska legislature enacted the Child Support Enforcement Act, AS 47.23, creating the Child Support Enforcement Agency. Ch. 126, § 1, SLA 1977. The legislature stated its purpose as follows: The state . declares that the common law and Alaska statutes pertaining to the establishment and enforcement of child support obligations shall be augmented by additional remedies in order to meet the needs of minor children. It is declared to be the public policy of this state that this Act be construed and administered to the end that children shall be maintained from the resources of responsible parents, thereby relieving, at least in part, the burden presently born by the general citizenry through welfare and welfare-related programs. Id. One of the additional remedies which the legislature provided was to authorize the Child Support Enforcement Agency to issue an order to withhold and deliver property. In this context, the legislature provided that "[e]xemptions under AS 09.38 do not apply to proceedings to enforce the payment of child support under AS 47.23.230 — 47.23.270." AS 47.23.250(0 (amended 1984). Notwithstanding the 1977 Act, the legislature recently found that the problem of "the failure of parents to support their children is vast and far reaching. The harmful effects of unpaid child support touch not only the poor but reach far beyond, diminishing the overall quality of life for all Alaskans." Ch. 144, § 1, SLA 1984 (An Act relating to child support enforcement, July 4, 1984). Therefore, the legislature amended the Child Support Enforcement Act "to enhance the efforts of those persons who seek to enforce the payment of child support obligations by noncustodial parents having the duty of support." Id. Relevant to this case is the legislature's statement of findings and purpose. The legislature found that a disproportionately high percentage of lower-income, single-parent families are headed by women. The difficulties in obtaining child support from noncustodial parents contributes significantly to the hardship of those families.... The legislature also finds that the hardship experienced by children in families who may rely on support from a noncustodial parent should not be a necessary condition that must be endured by those families. Statutory tools have been provided to enable the child support enforcement agency to collect unpaid child support owed by a parent.... Ch. 144, § 1, SLA 1984. One of the statutory tools provided in the 1977 Act was the provision that exemptions under the Exemptions Act do not apply to proceedings to enforce the payment of child support. AS 47.23.250(i).

10403277

Timothy T. TOOVAK, Appellant, v. STATE of Alaska, Appellee

Toovak v. State

1987-04-24

No. A-1690

355

356

736 P.2d 355

736

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:15:56.629960+00:00

CAP

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

Timothy T. TOOVAK, Appellant, v. STATE of Alaska, Appellee.

Timothy T. TOOVAK, Appellant, v. STATE of Alaska, Appellee. No. A-1690. Court of Appeals of Alaska. April 24, 1987. Mary P. Treiber, Asst. Public Defender, Barrow, and Dana Fabe, Public Defender, Anchorage, for appellant. Alan Hooper, Asst. Dist. Atty., Barrow, Harry L. Davis, Dist. Atty., Fairbanks, and Harold M. Brown, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., COATS and SINGLETON, JJ. .

473

3025

OPINION BRYNER, Chief Judge. Timothy T. Toovak was convicted on his plea of no contest to the charge of assault in the first degree. Superior Court Judge Michael I. Jeffrey sentenced Toovak to the applicable seven-year presumptive term and ordered him to pay restitution in the amount of $2,471. Toovak appéals, challenging only the validity of the restitution order. Alaska Statute 12.55.045(a) provides' in part: In determining the amount and method of payment of restitution, the court shall take into account the financial resources of the defendant, and the nature of the burden its payment will impose. To comply with this provision, the sentencing court must first determine what the accused's future earning capacity is likely to be; it must then fix the amount and terms of restitution to fall within the realistic limits of that capacity. See Kramer v. State, 735 P.2d 754 (Alaska App.1987); Brezenoff v. State, 658 P.2d 1359, 1364 (Alaska 1983). In the present case, Judge Jeffrey considered the fact that Toovak, although unemployed at the time of the offense, had previously been employed and had been capable of earning a substantial income. Judge Jeffrey also considered that the total amount of restitution was relatively small and would be substantially reduced during Toovak's incarceration through application of his permanent fund dividend checks; The judge concluded that, even if economic conditions in the Barrow area were depressed upon Toovak's release, Toovak would likely be capable of finding employment that would permit him to repay the remaining amount of restitution while still on parole. The determination of future earning capacity will invariably require a certain amount of prediction. So long as the sentencing court's determination is based on information in the sentencing record rather than on mere speculation, we will not disturb the exercise of its sound discretion. In our view, Judge Jeffrey's consideration of Toovak's past and future earning capacity complied with the statutory mandate. Toovak relies on our decision in Brezenoff, 658 P.2d at 1364, to argue that a more prudent course for the sentencing court would have been to wait until Toovak's release before attempting to fix the final amount of restitution. Following our decision in Brezenoff, however, this option was expressly foreclosed by the Alaska Supreme Court's decision in Karr v. State, 686 P.2d 1192 (Alaska 1984). The sentence is AFFIRMED. . The judge ordered that Toovak's permanent fund dividend checks be applied to restitution to the maximum extent permitted by law during Toovak's incarceration.

10403306

Douglas A. CARSON, Appellant, v. STATE of Alaska, Appellee

Carson v. State

1987-04-24

No. A-1608

356

362

736 P.2d 356

736

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:15:56.629960+00:00

CAP

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

Douglas A. CARSON, Appellant, v. STATE of Alaska, Appellee.

Douglas A. CARSON, Appellant, v. STATE of Alaska, Appellee. No. A-1608. Court of Appeals of Alaska. April 24, 1987. Kevin F. McCoy, Asst. Public Defender, Kenai, and Dana Fabe, Public Defender, Anchorage, for appellant. Nathan A. Callahan, Asst. Dist. Atty., Thomas M. Wardell, Dist. Atty., Kenai, and Harold M. Brown, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

3886

23499

OPINION BRYNER, Chief Judge. Douglas A. Carson was convicted, following a jury trial, of one' count of resisting arrest, in violation of AS 11.56.700. Carson appeals, contending that the trial court erred in giving incomplete jury instructions on the circumstances in which deadly force is permitted in making ah arrest. Carson also argues that the court erred in allowing the prosecution to show the jury a videotape of Carson and in failing to allow the defense to review the personnel records of Carson's arresting officer. We affirm. Carson's initial contention is that the trial court erred in failing to instruct the jury on the circumstances in which a police officer may use deadly force to effect an arrest. At trial, Carson defended against his resisting arrest charge by contending that the officers who arrested him used excessive force. Under AS 11.81.400, force may be used to resist an arrest that is made by a peace officer only when the officer has used excessive force: Justification: Use of force in resisting or interfering with arrest, (a) A person may not use force to resist personal arrest or interfere with the arrest of another by a peace officer who is known by the person, or reasonably appears, to be a peace officer, whether the arrest is lawful or unlawful, unless (1) the force used by the peace officer exceeds that allowed under AS 11.81.370. (b) The use of force justified under this section in resisting arrest or interfering with the arrest of another may not exceed the use of force justified under AS 11.81.330 or 11.81.335. As indicated in this provision, the amount of force a peace officer may use in making an arrest is governed by AS 11.81.370; this statute provides that nondeadly force may be used and deadly force may be threatened to make an arrest in any situation where the officer reasonably believes it to be necessary; the actual use of deadly force, however, is restricted to a narrow range of situations: Justification: Use of force by a peace officer in making an arrest or terminating an escape, (a) In addition to using force justified under other sections of this chapter, a peace officer may use nondeadly force and may threaten to use deadly force when and to the extent the officer reasonably believes it necessary to make an arrest, to terminate an escape or attempted escape from custody, or to make a lawful stop. The officer may use deadly force only when and to the extent the officer reasonably believes the use of deadly force is necessary to make the arrest or terminate the escape or attempted escape from custody of a person the officer reasonably believes (1) has committed or attempted to commit a felony which involved the use of force against a person; (2) has escaped or is attempting to escape from custody while in possession of a firearm on or about the person; or (3) may otherwise endanger life or inflict serious physical injury unless arrested without delay. (b) The use of force in making an arrest or stop is not justified under this section unless the peace officer reasonably believes the arrest or stop is lawful. (c) Nothing in this section prohibits or restricts a peace officer in preparing to use or threatening to use a dangerous instrument. At trial, District Court Judge James C. Hornaday gave the jury an instruction on use of force to resist an arrest that was compatible with the substance of AS 11.81.-400. In support of his defense, Carson requested an additional instruction on the circumstances in which AS 11.81.370 permits an officer to use both deadly and nondeadly force. Carson theorized that there was sufficient evidence to support both a finding that his arresting officers unnecessarily used nondeadly force and a finding that they impermissibly used deadly'force. Judge Hornaday declined to instruct fully on AS 11.81.370. Apparently based on the conclusion that insufficient evidence of deadly force had been presented, the judge instructed only on the portion of this statute dealing with the use of nondeadly force and the threat of deadly force. The court's instruction provided: A peace officer may use nondeadly force and may threaten to use deadly force when [and] to the extent he reasonably believes it necessary to make an arrest. The use of force in making an arrest is not justified unless the peace officer reasonably believes the arrest is lawful. Carson contends that the trial court erred in refusing to instruct the jury on the portion of AS 11.81.370 dealing with the permissible use of deadly force by arresting officers. Resolution of this issue necessarily turns on whether sufficient evidence of deadly force was presented to warrant submission of the question to the jury. It is undisputed that Carson was arrested for a misdemeanor under circumstances that would not justify the actual use of deadly force by his arresting officers. Thus, if the arresting officers were found to have used deadly force, that force would have been per se excessive. Accordingly, we must determine whether Carson produced "some evidence" of deadly force. The burden of producing "some evidence" is not a heavy one. The question is whether the evidence, when viewed in the light most favorable to the accused, would permit a rational fact-finder to conclude that a reasonable doubt had been established as to the existence of the defense. Once "some evidence" is presented, the. accused is entitled to an instruction on the defense, and the state bears the burden of disproving the defense beyond a reasonable doubt. AS 11.81.900(b)(15). Even weak and implausible claims must be submitted to the jury. Brown v. Anchorage, 680 P.2d 100, 103 (Alaska App.1984). See also LaPierre v. State, 734 P.2d 997 (Alaska App.1987); Paul v. State, 655 P.2d 772, 778 (Alaska App.1982); Folger v. State, 648 P.2d 111, 113 (Alaska App.1982). The evidence at trial was sharply disputed. Carson's own testimony provides the most favorable account of his arrest and is the only version we need consider. According to this version, Carson was riding in the back seat of a car that was stopped by Homer Police Officer Andrew Klamser on suspicion of drunken driving after a high speed chase. After the car was stopped, Carson got out and walked in the direction of Klamser's patrol car. Apparently believing that Carson was the driver, Klamser, still in the patrol car, ordered Carson to stop and told him he was under arrest for eluding a police officer. Carson tried to tell Klamser that he had not been driving, but Klamser got out of his car, holding a nightstick. Carson told Klamser there was no need for the nightstick. Klamser ordered Carson to pláce his hands on top of the car and spread his legs. Carson, afraid that Klamser might hit him with the nightstick, started backing up. He went only a few steps before he was forced to stop by a car that was parked behind him. Klamser continued to approach, holding the nightstick up in front of himself, and waving it in a menacing manner. Carson reached out and placed his hand on the nightstick, to prevent Klamser from hitting him. After a momentary scuffle, Carson managed to break away from Klamser; Klamser again approached Carson, holding the nightstick in a threatening manner. As Carson grasped the nightstick a second time, Klamser kicked him in the groin. Carson collapsed to the ground but continued to hold onto the nightstick. By that time, another officer had arrived at the scene; he released a police dog to help subdue Carson. The dog began biting Carson on the lower leg. As Carson tried to avoid being bitten, he was pushed from behind by an officer and knocked to the ground. Once Carson was down, Klamser hit him on the head, but not with the nightstick. The dog continued to bite, moving its grip from Carson's lower leg to his buttock. The second officer told Carson that the dog would stop biting when Carson stopped moving. Carson lay still and the dog let go. The entire encounter lasted for only a minute to a minute and a half. Carson contends that Klamser's use of the nightstick could have been construed by the jury to constitute deadly force. He reasons that the trial court's failure to instruct on the portion of AS 11.81.370 dealing with deadly force precluded him from arguing that the amount of force used by Klamser was excessive as a matter of law. Even viewing Carson's testimony in its most favorable light, however, we are unable to conclude that it would amount to "some evidence" that Klamser used deadly force. Although deadly force is defined for most purposes to include both the actual use of deadly force and the threatened use of deadly force, AS 11.81.370(a) and (c) expressly authorize peace officers to threaten the use of deadly force in effecting a misdemeanor arrest. Legislative commentary dealing with this provision makes it clear that the drafters specifically intended to empower police officers to threaten deadly force, even though they realized that the definition of deadly force was sufficiently broad to include both actual and threatened use of deadly force. Alaska Statute 11.81.370 is discussed in the legislative commentary to AS 11.81.-900(b)(12), which sets out the statutory definition of "deadly force." The commentary states: During the legislature's consideration of the justifiable use of force, the issue whether deadly force could be threatened in situations when its actual use would be improper was frequently discussed. Because of the possibility that such threats could tragically escalate a conflict, the legislature concluded that only peace officers making an arrest should have the authority to threaten deadly force in situations where the actual use of deadly force was not justified. See AS 11.81.370. While making this specific change in AS 11.81.370, no corresponding change was made in the definition of "deadly force." While it can be argued that because of the express inclusion in AS 11.-81.370 of the phrase "a peace officer may use nondeadly force and may threaten to use deadly force," nondeadly force does not include a threat of deadly force, the definition of deadly force appears to provide otherwise. This amendment [the amendment to AS 11.81.900(b)(12) being discussed in the commentary] provides that pointing a firearm in the direction of another person as well as intentionally placing another person in fear of imminent serious physical injury by means of a dangerous instrument constitutes deadly force. Commentary and Sectional Analysis for the 1980 Amendments to Alaska's Revised Criminal Code, Senate Journal Supp. No. 44 at 20, 1980 Senate Journal 1436. Hence, it is apparent that Klamser's conduct would not have been prohibited as an impermissible use of deadly force unless it involved the actual use, as opposed to the threatened use, of such force. In the present case, the evidence establishes, at best, that Klamser threatened Carson with the nightstick. Carson stated that Klamser never struck him with the nightstick. He consistently characterized Klamser's conduct with the stick as menacing, and he never intimated that Klamser actually attempted to strike him. Based on our review of the record, we are satisfied that reasonable fact-finders could not conclude that Klamser committed any act with the nightstick amounting to an actual — as opposed to a threatened — use of deadly force. It follows that there was insufficient evidence that Klamser's threats with the nightstick amounted to a prohibited use of "deadly force" under AS 11.81.370. Carson further contends that the jury might have found that deadly force was used when Klamser kicked Carson in the groin and when another officer ordered his police dog to attack Carson. Under AS 11.81.900(b)(12), "deadly force" includes any force used under circumstances that "create a substantial risk of causing death or serious physical injury." Although we can certainly conceive of cases in which specific testimony describing a kick to the groin or an attack by a dog would support the inference that a substantial risk of death or serious physical injury was created, we are unwilling to conclude that testimony establishing no more than the unadorned fact of a kick to the groin or an attack by a police dog is per se sufficient to create a jury question as to the use of deadly force. The issue is not one to be resolved in the abstract. There must, at a minimum, be some particularized evidence from which a reasonable juror could conclude that a substantial risk of serious physical injury was actually created in the specific case at bar. The issue is analogous to one we considered in Wettanen v. State, 656 P.2d 1213 (Alaska App.1983). There, we held that, while any object, including an unshod foot, that was capable of inflicting serious physical injury might qualify under the broad statutory definition of "dangerous instrument," the actual determination of whether a dangerous instrument was used must be made on a case-by-case basis, based on the totality of the circumstances surrounding the actual use of the object in question. Id. at 1218. We find nothing in the testimony presented at trial to support an inference that a substantial risk of serious physical injury arose from the kick delivered by Klamser or from the bites inflicted by the police dog. Serious physical injury is defined, in relevant part, to include: (A) physical injury caused by an act performed under circumstances that create a substantial risk of death; or (B) physical injury that causes serious and protracted disfigurement, protracted impairment of health, protracted loss or impairment of the function of a body member or organ, or that unlawfully terminates a pregnancy. AS 11.81.900(b)(50). Viewing the evidence in the light most favorable to the defense, we do not believe a reasonable juror could find a reasonable possibility that Carson was actually exposed to substantial risks of injuries of this magnitude. Because we find that the evidence presented at trial was insufficient to raise a jury question as to the actual use of deadly force by the police, we hold that the trial court did not err in refusing to instruct the jury on the portion of AS 11.81.370 covering the use of deadly force by peace officers. Carson next claims that the trial court erred in admitting a videotape of Carson that was made at the Homer Police Station. The tape was apparently made because Carson was originally arrested on suspicion of drunken driving. It was offered by the prosecution on rebuttal to establish that Carson was under the influence of intoxicating liquor at the time of his arrest. This issue first arose at trial in the course of Carson's testimony, when Carson admitted having consumed liquor but denied being influenced thereby. Because the issue of Carson's intoxication was not part of the prosecution's case-in-chief and was first raised during Carson's own testimony, we hold that the trial court did not abuse its discretion in allowing the videotape to be offered on rebuttal. See Alaska R.Crim.P. 27(a)(3); Gafford v. State, 440 P.2d 405 (Alaska 1968), cert. denied, 393 U.S. 1120, 89 S.Ct. 996, 22 L.Ed.2d 125 (1969). Having reviewed the videotape, we further conclude that the trial court was not clearly erroneous in finding that its probative value would outweigh its potential for prejudice. See A.R.E. 403. Finally, Carson argues that the trial court erred in refusing to order disclosure to the defense of Klamser's personnel records. The court instead subjected the records to an in camera inspection; it then revealed what it considered to be discoverable and sealed copies of the records for appellate review. At no time has Carson advanced any particular reason to support the conclusion that the undisclosed portion of Klamser's personnel record might contain any potentially relevant evidence or information. We are unable.to make.an independent examination of the undisclosed materials, because Carson has not designated them as part of the appellate record. Under the circumstances, we find no abuse of discretion in the trial court's handling of the matter. Compare Dana v. State, 623 P.2d 348 (Alaska App.1981) with Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S.Ct. 2246, 56 L.Ed.2d 410 (1978). The conviction is AFFIRMED. . AS 11.81.330 and 11.81.335, referred to in subsection (b) of this provision, delineate the circumstances under which nondeadly and deadly force may be ordinarily used in self-defense. Thus, when a person is authorized under subsection (a) to use force to resist an arrest, the permissible amount of force is restricted under subsection (b) to the amount of force that would ordinarily be allowed in self-defense. AS 11.81.-330 provides: Justification: Use of nondeadly force in defense of self, (a) A person may use nondeadly force upon another when and to the extent the person reasonably believes it is necessary for self defense against what the person reasonably believes to be the use of unlawful force by the other, unless (1) the force involved was the product of mutual combat not authorized by law; (2) the person claiming the defense of justification provoked the other's conduct with intent to cause physical injury to the other; or (3) the person claiming the defense of justification was the initial aggressor. (b) In circumstances described in (a)(1) — (3) of this section, the person claiming the defense of justification may use nondeadly force if that person has withdrawn from the encounter and effectively communicated the withdrawal to the other person, but the other person persists in continuing the incident by the use of unlawful force. AS 11.81.335 provides: Justification: Use of deadly force in defense of self, (a) Except as provided in (b) of this section, a person may use deadly force upon another person when and to the extent (1) the use of nondeadly force is justified under AS 11.81.330; and (2) the person reasonably believes the use of deadly force is necessary for self defense against death, serious physical injury, kidnapping, sexual assault in the first degree under AS 11.41.410(a)(1) or (2), sexual assault in the second degree, or robbery in any degree. (b) A person may not use deadly force under this section if the person knows that, with complete personal safety and with complete safety to others, the person can avoid the necessity of using deadly force by retreating, except there is no duty to retreat if the person is (1) on premises which the person owns or leases and the person is not the initial aggressor; or (2) a peace officer acting within the scope and authority of the officer's employment or a person assisting a peace officer under AS 11.-81.380. . Definitions for the terms "deadly force," "force," and "nondeadly force" are, in turn, set out in AS 11.81.900(b): (12) "deadly force" means force which the person uses with intent of causing, or uses under circumstances which he knows create a substantial risk of causing, death or serious physical injury; "deadly force" includes intentionally discharging or pointing a firearm in the direction of another person or in the direction in which another person is believed to be and intentionally placing another person in fear of imminent serious physical injury by means of a dangerous instrument; (22) "force" means any bodily impact, restraint, or confinement or the threat of imminent bodily impact, restraint, or confinement, "force" includes deadly and nondeadly force; (32) "nondeadly force" means force other than deadly force. . With respect to permissible use of force to resist an arrest, the court instructed: A person may not use force to resist the arrest of himself by a peace officer who is known to him or reasonably appears to be a police officer, whether the arrest is lawful or unlawful, unless the force used by the police officer exceeds that allowed by law. The use of force justified in resisting arrest may not exceed the use of force justified in defense of self. Therefore, unless the state has proved beyond a reasonable doubt that the defendant did not act in these circumstances, you shall find the defendant not guilty. . The definitions of "deadly force," and "non-deadly force," as set out in AS 11.81.900(b), are quoted in footnote 2, supra. . See AS 11.81.900(b)(12), quoted in full in footnote 2, supra. This section also provides that " 'deadly force' includes intentionally discharging or pointing a firearm in the direction of another person or in the direction in which another person is believed to be and intentionally placing another person in fear of imminent serious physical injury by means of a dangerous instrument." As we have previously noted, however, a police officer is expressly privileged under AS 11.81.370 to threaten deadly force in making a misdemeanor arrest, even though such a threat would ordinarily be included in the definition of "deadly force" set out in AS 11.81.900(b)(12). . Carson has also challenged the trial court's failure to give ancillary instructions concerning the use of force issue. He argues that the court should have given instructions on the statutory definitions of "deadly force," "force," "nondeadly force," "deadly weapon," and "serious physical injury." Since the need for instructions defining these terms hinged on Carson's right to an instruction on the permissible use of deadly force by a peace officer under AS 11.81.370, we do not separately address Carson's claim of error with respect to these instructions. Carson further maintains that the trial court erred in failing to instruct the jury on the circumstances in which deadly and nondeadly force may be used in self-defense, as set out in AS 11.81.330 and .335 (quoted supra, footnote 1). We find no error. The trial court instructed the jury that, if Carson was justified in using force to resist his arrest, the amount of force he used could not exceed the force that would be justified in self-defense. This instruction comports with AS 11.81.400(b). The jury was further told that Carson could resist arrest only to the extent that he reasonably believed such resistance was necessary to protect himself from the excessive use of force by the police. In substance, these instructions incorporated the statutory provisions governing the use of non-deadly force in self-defense. See AS 11.81.330. All of the evidence in this case suggested that the force used by Carson in resisting arrest was relatively slight, and certainly fell far short of amounting to deadly force. The prosecution never intimated that, while Carson might have been justified in using some force to resist, he unnecessarily used deadly force. The prosecution's theory was that Carson was never entitled to resist at all, because the arresting officers did not use excessive force. Under these circumstances, we find no reasonable possibility that the jury could have been confused or misled by the trial court's refusal to instruct on the circumstances in which deadly force may be used in self-defense, as set forth in AS 11.81.335.

10416826

DONNYBROOK BUILDING SUPPLY CO., INC., Appellant, v. ALASKA NATIONAL BANK OF THE NORTH, a National Banking Association, Appellee

Donnybrook Building Supply Co. v. Alaska National Bank of the North

1987-05-15

No. S-1385

1147

1154

736 P.2d 1147

736

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:15:56.629960+00:00

CAP

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

DONNYBROOK BUILDING SUPPLY CO., INC., Appellant, v. ALASKA NATIONAL BANK OF THE NORTH, a National Banking Association, Appellee.

DONNYBROOK BUILDING SUPPLY CO., INC., Appellant, v. ALASKA NATIONAL BANK OF THE NORTH, a National Banking Association, Appellee. No. S-1385. Supreme Court of Alaska. May 15, 1987. Peter J. Aschenbrenner, Aschenbrenner & Brooks, Fairbanks, for appellant. Winston S. Burbank and Constance A. Cates, Call, Barrett & Burbank, Fairbanks, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

4197

26287

OPINION MOORE, Justice. This case involves a dispute between a construction lender and a material supplier under Alaska's stop-payment notice statute, AS 34.35.062, as it read in 1985. Donnybrook Building Supply, Inc., (Donnybrook) provided $46,000 worth of building supplies on credit to a contractor for two houses financed by Alaska National Bank of the North (ANB). Donnybrook, asserting that it had not been paid by the recently-bankrupt contractor, sued ANB to recover the $46,000 under the stop-payment notice statute and other theories. The trial court granted partial summary judgment on liability in favor of ANB. The court held that ANB could not be liable under the stop-payment notice statute because it had made no disbursals from the construction funds after receiving the stop-payment notices. Without considering Donnybrook's other theories of recovery, the court entered final judgment against Donnybrook. Donnybrook appeals. It claims that the stop-payment statute guarantees its interest in undisbursed construction funds and that the statute is not its exclusive remedy. We affirm. A stop-payment notice does not give a supplier an interest in undis-bursed construction funds. A construction lender becomes directly liable to a supplier only if it has disbursed construction funds after receipt of a stop-payment notice. Additionally, the statutory mechan ics' lien scheme, of which the stop-payment statute is a part, constitutes a complete remedy that preempts common law and equitable remedies. FACTS AND PROCEEDINGS Donnybrook sold building supplies on open account to Eugene Cain and Violet Mullen, doing business as Executive Builders (Cain/Mullen), for houses they built in Fairbanks in 1981 and 1982. Cain/Mullen's first projects were financed by Interior City Branch, First National Bank (ICB); their last three projects were financed by ANB. Donnybrook established a separate charge account for each house project. In mid-October 1982, Donnybrook was advised that ANB was the construction lender for the last three houses. At that time, several of Cain/Mullen's other accounts with Donnybrook were in arrears. ANB issued two checks for $25,000 each payable to Mullen, Cain and Donnybrook on October 27, intending that they be applied to the accounts for two of the ANB-financed houses. Instead, Donnybrook applied the money to Cain/Mullen's accounts with the oldest balances. These were for houses financed by ICB. Donnybrook filed Notices of Right to Lien pursuant to AS 34.35.064 for the two house projects at issue here on October 29. In December, Cain left Fairbanks, leaving the two houses incomplete. The market value of the houses plus the remaining construction funds held by ANB totalled less than the construction debt Cain/Mullen owed on them to ANB. Donnybrook filed stop-payment notices totalling $47,181.39 with ANB against the two projects pursuant to AS 34.35.062 on January 6, 1983. It recorded lien claims for $46,181.08 against the properties on January 20. Donnybrook filed suit to enforce its stop-payment notices pursuant to AS 34.35.062(c) on February 7, 1983. On February 25, Cain/Mullen filed for bankruptcy. ANB did not disburse funds from the construction accounts after receiving Donnybrook's stop-payment notices. ANB declared the Cain/Mullen notes in default and foreclosed on its deeds of trust in the properties. The value of the properties was less than the outstanding loan balance. DISCUSSION The first issue raised by the trial court's decision is whether AS 34.35.062 gives a supplier a direct interest in construction funds on termination of the project when the lender does not disburse the funds but instead applies them against the builder's loan balance. The second issue is whether the mechanics' lien laws create an exclusive remedy for unpaid suppliers. Our standard of review of issues of law is the substitution of judgment test. Borkowski v. Snowden, 665 P.2d 22, 25 (Alaska 1983). Alaska Statute 34.35.062 was part of a complex statutory scheme designed to protect subcontractors and material suppliers who provide labor and materials on construction projects. AS 34.35.050-.120. Typically, a private construction project is financed by a construction lender who commits a fixed sum to the project. This loan is secured by a first mortgage in the development. The loan is paid out in installments as work progresses. Suppliers also extend credit to the developer. See generally Reitz, Construction Lenders' Liability to Contractors, Subcontractors, and Materialmen, 130 U.Pa.L.Rev. 416, 417-18 (1981). Before 1978, subcontractors and suppliers were able to protect themselves by taking a priority lien in the real property under construction. Former AS 34.35.-060 (repealed by ch. 175, § 19, SLA 1978); see Brand v. First Federal Sav. & Loan Ass'n. of Fairbanks, 478 P.2d 829, 832 (Alaska 1970). In 1978, the legislature repealed this lien priority, and substituted the statutory "stop payment notice" procedure. Under this procedure, a supplier can re solve claims against a developer by "intercepting" construction loan disbursements made by the lender. We have not previously construed a stop-payment notice statute. A. A Stop-payment Claim Does Not Reach Undisbursed Construction Funds Our starting point for interpreting a statute is the language of the statute construed in light of the purpose for its enactment. Commercial Fisheries Entry Comm'n v. Apokedak, 680 P.2d 486, 489-90 (Alaska 1984). Alaska Statute 34.35.062 permits a supplier who has maintained his right to a mechanics' lien by recording necessary notices and whose bills to a developer are 20 days overdue to serve a stop-payment notice on the construction lender. AS 34.35.-062(a)(2). Upon receipt of the stop-payment notice, the lender "shall withhold" from the contractor's subsequent draws the sum claimed by the supplier. AS 34.-35.062(a)(4). The lender can only disburse the claimed amount upon court order or written agreement of the' claimant and developer. AS 34.35.062(a)(5). If the lender does disburse funds in violation of a stop- payment notice, the lender becomes directly liable to the supplier for the lesser of the sum disbursed or the amount of the valid claim. AS 34.35.062(b). The stop-payment notice expires automatically after 30 days unless the supplier files a bonded suit to enforce his claim. AS 34.35.062(c). The stop-payment notice thus puts direct financial pressure on the contractor to pay his suppliers. If he does not, the amount claimed will normally be withheld from his next draw. The lender can pay the claimant directly if the claimant and developer agree, or if a court orders it. The lender will be directly liable to the claimant if it disburses funds without withholding funds to pay the claim. In this case, however, after ANB received the stop-payment notice, it apparently neither prevailed upon the developer to pay the claim nor disbursed funds in violation of the statute. Instead, ANB ceased making disbursals and declared Cain/Mullen's loan in default. Cain/Mullen became insolvent. ANB foreclosed on the construction property but recovered less than the debt owed to it by Cain/Mullen. Now ANB apparently seeks to apply the remaining construction funds to the outstanding debt pursuant to its loan agreement with Cain/Mullen. Donnybrook contends that its stop-payment claim must be paid from the undisbursed construction funds. ANB argues that it is not liable under AS 34.35.062 because the stop-notice remedies against the lender are explicitly limited to the lesser of the amount claimed or the amount "disbursed in violation of those subsections." AS 34.35.062(b). Because it did not disburse the funds remaining in the accounts, ANB argues, those funds are not subject to Donnybrook's claims and thus can be applied toward the deficiency remaining on Cain/Mullen's construction loan debt. Donnybrook argues that a stop-payment notice requires the lender to ensure that a supplier's claim is settled before the lender releases construction funds for any us.e, including repayment of the construction loan. Donnybrook observes that the statute is remedial in purpose and argues that it should be construed liberally to achieve the remedies intended. We agree that this statute is remedial and that its purpose is to protect subcontractors and material suppliers. We will construe a remedial statute liberally to fulfill its purposes. See Moores v. Alaska Metal Buildings, Inc., 448 P.2d 581, 584 (Alaska 1968) (adopting liberal construction of the former mechanics' lien statute). However, the language of this statute compels the determination that a stop-payment claim does not take a priority interest in undisbursed construction funds. Alaska Statute 34.35.062(a)(4) states: "After receipt of a stop-payment notice under this section, the lender shall withhold from the next and subsequent draws sufficient money to pay the amount claimed ." (emphasis added). Subsection (b) provides for direct lender liability for the lesser of the valid claim amount as determined by a court or the amount disbursed. When no funds are disbursed, the lender incurs no liability. The lender's duty to withhold funds does not attach to the entire construction fund, but only to "the next and subsequent draws." AS 34.35.062(a)(4). "Draws" are "periodic disbursements of construction financing by a lender." AS 34.35.120(6). The draw procedure is mandated by statute on unbonded projects. AS 34.35.062(a). The lender issues draws based on construction progress; if no further progress is made, as determined by the lender's certification, then no draws become payable to the contractor. In effect, the statute assigns to the claimant the developer's right to collect a draw due from the lender. Where no draw becomes due based on the lender's agreement with the developer and the statute, there is nothing to assign to the claimant. The State of Washington has a similar stop-payment notice statute. A comment evaluating this statute observed that the lender had three options upon receipt of the stop-payment notice: (1) to withhold the claimed sum from later draws; (2) to permit later draws and risk loss of its senior lienor status (the Washington statute provides this remedy where Alaska's provides for direct lender liability); or (3) to "avoid the effect of the stop notice altogether by making no further loan advances and foreclosing his mortgage. In this last situation, the [claimant's] only recourse is to his mechanics' lien which will have no enhanced priority by reason of the stop notice." Comment, supra note 7, 695-96. In In re Aspen Homes, Inc., 54 B.R. 541, 545 (Bankr.E.D.Wash.1985), a bankruptcy court cited this comment with approval, and held that the Washington statute allowed a lender to foreclose the interest of a supplier by declaring the developer's loan in default and using remaining construction funds to pay new suppliers to complete the project. Id. The California stop-notice statute has been interpreted to impose on the lender the duty to pay stop-notice claimants out of undisbursed construction funds. A-1 Door and Materials Co. v. Fresno Guarantee Sav. & Loan Ass'n, 61 Cal.2d 728, 40 Cal.Rptr. 85, 89, 394 P.2d 829, 833-34 (1964) (decided under earlier version of present statute). The A-l Door court held that a construction lender, having fully committed a given sum to a developer for a project, holds undisbursed funds as an assignee (for security) of the developer. Id. 40 Cal.Rptr. at 89, 394 P.2d at 834. The statute expressly barred any assignment of the loan funds in derogation of a claimant's right. Id. Furthermore, the court held that the stop notice attaches to the entire fund, not just to funds subsequently disbursed. Id. 40 Cal.Rptr. at 90, 394 P.2d at 833. A stop-notice claimant is thus guaranteed payment even though the developer has disappeared or gone bankrupt. Ilyin, supra note 7, 187. Unlike the California statute, AS 34.35.-062 expressly applies only to funds disbursed after the lender receives the stop-payment notice. Furthermore, AS 34.35.-062 does not bar an assignment by the developer of his right to receive loan funds. Indeed, the draw procedure of AS 34.35.-062(a)(1) suggests that the legislature did not view the lender's interest in the loan funds as an assignee of the developer, but instead established that the developer's interest in the loan funds did not vest until the lender certified each draw. We do not see that the equities sharply favor either party. While a supplier may be less able to assess the credit-worthiness of a developer than a lending institution, and may implicitly rely on the loan in extending credit to the developer, the lender is also in the business of providing an essential "material" for construction and does not intend to insure the payment of other suppliers nor to bear the unavoidable risk of the project. Placing upon lenders the obligation to ensure that suppliers are paid may well have the effect of increasing interest rates and limiting loan availability, especially to smaller developers. See Gutierrez, supra note 7, 520-21. Particularly where the project is incomplete, courts have been reluctant to make lenders liable to suppliers under equitable theories. E.g., JG Plumbing Service Inc. v. Coastal Mortgage Co., 329 So.2d 393, 395 (Fla.App.1976); see generally Reitz, supra p.6, 442-50. We conclude that the legislature intended to empower lenders to cut off suppliers' claims if the lenders are willing to risk the loss of the developer's efforts before the project is complete. Therefore, we affirm the trial court's decision that Donnybrook has no remedy under AS 34.35.062. B. Alternative Remedies Donnybrook asserts that, even if its stop-payment claim is unsuccessful, ANB is nonetheless liable for Cain/Mullen's debt under several other theories. First, Donnybrook seeks an equitable lien against the construction funds. Second, Donnybrook claims that the draw procedure of AS 34.-35.062(a)(1) imposes a duty of care upon a lender toward suppliers, for the breach of which a supplier may recover damages. Alaska's mechanics' lien law, AS 34.35.-050-.120, establishes a complex and detailed scheme for the protection of suppliers on construction projects. The legislature clearly sought to balance the conflicting interests of developers, lenders and suppliers under this statutory umbrella. The statutes provide two separate remedies for suppliers: the stop-payment remedy of AS 34.35.062, and the mechanics' lien under AS 34.35.050. All suppliers have an equal right to the stop-payment notice remedy, but an "individual actually performing labor" (or his trust fund) is entitled to a priority lien. AS 34.35.060(c). While no party to this action asserts a claim under AS 34.35.060(c), we believe that that ex press priority is an indication of legislative intent to provide a complete and prioritized system of remedies. To impose judicially additional remedies on behalf of suppliers here would disturb this balance. Furthermore, the legislature expressly retained the right of a lienor "under a contract" to utilize his contract remedies regardless of his lien. AS 34.35.045. Because only this exception to the exclusivity of the mechanics' lien law remedies is expressed, the statutory maxim expressio un-ius est exclusio alterius suggests that other remedies are excluded. Burrell v. Burrell, 696 P.2d 157, 165 (Alaska 1984). We conclude that the mechanics' lien law preempts the remedies sought by Donnybrook. Cf. Aleut Corp. v. Arctic Slope Regional Corp., 424 F.Supp. 897, 399-400 (D. Alaska 1976) (Alaska's legislative scheme of attachment-type remedies preempts common law sequestration). C. Conclusion We conclude that the plain language of AS 34.35.062 precludes Donnybrook's stop-payment notice action because ANB did not disburse construction funds following receipt of the notice. Furthermore, the mechanics' lien law is an exclusive remedy which preempts Donnybrook's equitable lien and statutory duty theories of recovery. Therefore, we AFFIRM the trial court's judgment. . AS 34.35.062 was extensively revised in 1986. Ch. 102, § 1, SLA 1986. All citations in the opinion will be to the statute as it read in 1985. . Contrary to Donnybrook's assertion, the court was not bound by a previous ruling in favor of Donnybrook under a "law of the case" theory. A trial court can correct its own mistakes before entry of judgment. Lamer v. McKee Industries, Inc., 721 P.2d 611, 613 n. 2 (Alaska 1986); Hayes v. Xerox Corp., 718 P.2d 929, 934 (Alaska 1986). Se also Stepanov v. Gavrilovich, 594 P.2d 30, 36 (Alaska 1979). . The judgment required ANB to pay $1,230 to Donnybrook. ANB had confessed judgment for this amount based on Donnybrook's claim that ANB had guaranteed payment of Cain's NSF check for that sum. . A claimant under the stop-payment notice statute may be, inter alia, a contractor, subcontractor, or material supplier. AS 34.35.062(a)(2); AS 34.35.050. We will refer to claimants generally as suppliers. . The discrepancy is attributed to finance charges. . Although Donnybrook did not assert as error the trial court's decision on this issue in its Statement of Points on Appeal as required by Alaska R.App.P. 210(e), we choose to address it because the issue was raised before the trial court and was fully briefed by both parties. See Mullen v. Christiansen, 642 P.2d 1345, 1350 (Alaska 1982). . Stop-payment statutes have been passed in several states. Reitz, supra p. 6, 433 n. 54. Washington's stop-payment statute, Wash.Rev. Code Ann. § 60.04.210 (West Supp.1986); and California's stop-notice statute, Cal.Civ.Code § 3162 (West 1974), are most like Alaska's. Stop-notice statutes have also been the subject of considerable legal commentary. See, e.g., Reitz, supra p. 6, 432; Gutierrez, California Civil Code Section 3264 and the Ghost of the Equitable Lien, 30 Hastings LJ. 493, 518 (1979); Comment, Mechanics' Liens: The "Stop Notice" Comes to Washington, 49>Wash.L.Rev. 685, 694 (1974); Ilyin, Stop Notice! — Construction Loan Officer's Nightmare, 16 Hastings LJ. 187 (1964). . In 1985, AS 34.35.062 read as follows: Construction financing, (a) A lender providing construction financing where there is not a payment bond of at least 50 per cent of the amount of construction financing shall observe the following procedures: (1) Draws against construction financing shall be made only after certification of job progress to the lender by the general contractor, if any, and the owner. The form of the certification may be prescribed by the lender. (2) A claimant described in AS 34.35.050 who has not received payment within 20 days after the date for payment required by the contract or employee benefit trust agreement or, if no date for payment is specified, then 30 days after the labor, materials, services, or equipment are first furnished, may within 20 days thereafter give a stop-payment notice of the sums due for which the claimant may claim a lien under AS 34.35.095. (3) The stop-payment notice shall be given to the lender and to the owner. The stop-payment notice shall state in substance , (A) the name of the person ordering the labor, materials, services, or equipment; (B) a sufficient legal description of the real property being improved or developed; (C) a description of the labor, materials, 'services or equipment furnished, or obligation owed to an employee benefit trust; (D) the name, business address and telephone number of the claimant; and (E) the sum due and not yet paid under the claimant's contract which may include an amount not to exceed 50 per cent of the principal amount of the claim for interest, reasonable costs, and attorney fees. (4) After receipt of a stop-payment notice under this section, the lender shall withhold from the next and subsequent draws sufficient money to pay the amount claimed in the stop-payment notice. (5) Sums withheld under a stop-payment notice may not be disbursed by the lender except under the terms of a written agreement signed by the claimant, owner and general contractor or by order of a court of competent jurisdiction. (b) If a lender fails to comply with the provisions of (a)(4) or (5) of this section, the lender shall be liable to the claimant for an amount equal to the sum disbursed in violation of those subsections or the sum ultimately determined to be due the claimant by a court of competent jurisdiction, whichever is less. (c) Within 30 days after filing a stop-payment notice the claimant may file an action in a court of competent jurisdiction to obtain the sums claimed in the stop-payment notice. The complaint shall be accompanied by a bond in an amount equal to the amount claimed with sufficient sureties as approved by the court. The claimant shall give notice to the lender that the action has been filed and include a copy of the bond filed with the action. If a claimant fails to file an action under this subsection and to serve notice of the filing and a copy of the bond upon the lender within 30 days after filing the stop notice, or to execute a written agreement under (a)(5) of this section, the lender may disburse the money withheld under the claimant's stop-payment notice without incurring liability to the claimant. . ANB contends that Donnybrook's claims were previously paid but that Donnybrook misapplied the funds to other Cain/Mullen accounts. Because we find that ANB has no liability to Donnybrook in any event, we need not resolve this claim. . The Washington stop-payment notice statute reads in part: Any lender providing interim or construction financing where there is not a payment bond of at least fifty percent of the amount of construction financing shall observe the following procedures: (1) Draws against construction financing shall be made only after certification of job progress by the general contractor and the owner or his agent in such form as may be prescribed by the lender. (2) Any potential lien claimant who has not received a payment within five days after the date required by his contract, employee benefit plan agreement, or purchase order may within twenty days thereafter file a notice as provided herein of the sums due and to become due, for which a potential lien claimant may claim a lien under chapter 60.04 RCW. (4)After the receipt of such notice, the lender shall withhold from the next and subsequent draws such percentage thereof as is equal to that percentage of completion as certified in subsection (1) of this section, which is attributable to the potential lien claimant as of the date of the certification of job progress for the draw in question less contracted re-tainage. The percentage of completion attributable to the lien claimant shall be calculated from said certification of job progress, and shall be reduced to reflect any sums paid to or withheld for the potential lien claimant. Alternatively, the lender may obtain from the general contractor or borrower a payment bond for the benefit of the potential lien claimant in such sum. (5) Sums so withheld shall not be disbursed by the lender except by the written agreement of the potential lien claimant, owner and general contractor in such form as may be prescribed by the lender, or the order of a court of competent jurisdiction. (6) In the event a lender fails to abide by the provisions of subsections (4) or (5) of this section, then the mortgage, deed of trust or other encumbrance securing the lender will be subordinated to the lien of the potential lien claimant to the extent of the interim or construction financing wrongfully disbursed, but in no event in an amount greater than the sums ultimately determined to be due the potential lien claimant by a court of competent jurisdiction, or more than the sum stated in the notice, whichever is less. Wash.Rev.Code Ann. § 60.04.210 (West Supp. 1986). . The California stop-notice statute reads: Upon receipt of a stop notice pursuant to Section 3159, the construction lender may, and upon receipt of a bonded stop notice the construction lender shall, withhold from the borrower or other person to whom it or the owner may be obligated to make payments or advancement out of the construction fund, sufficient money to answer such claim and any claim of lien that may be recorded therefor,' unless a payment bond has been recorded pursuant to the provisions of Section 3235 at qny time prior to the serving of the first stop notice or bonded stop notice. Cal.Civ.Code § 3162 (West 1974). . If several stop-notice claims total more than the total remaining in the loan fund, the claimants share the loan fund pro-rata. Ilyin, supra note 7, 191. . Even if we assumed that the developer took a vested right to receive the loan funds when he executed the loan documents, and subsequently assigned this right first to the lender and then (by statute) to the supplier, we would find that the lender's priority in time gave it priority in right. Cf. McKnight v. Rice, Hoppner, Brown & Brunner, 678 P.2d 1330, 1334 (Alaska 1984) (first assignee in time is first in right); Restatement (Second) of Contracts § 342 (1981). .Suppliers in other states have claimed access to the loan fund under a variety of theories, including the equitable lien, constructive trust, negligent entrustment, negligent disbursement of loan funds and concealment of loan funds. Gutierrez, supra note 7, 497. The supplier may also make contract claims directly against the lender on the ground that the supplier was a third party beneficiary of the loan agreement, or that the lender guaranteed the developer's debt, or independently promised to pay it. Promissory estoppel might support such a claim. Reitz, supra p. 6, 422, 429-30. Finally, a supplier could claim tort damages for misrepresentation by a lender. Id. at 432.

10418921

NORTHERN LIGHTS INN, CO., Appellant, v. EMPLOYMENT SECURITY DIVISION, DEPARTMENT OF LABOR, State of Alaska, Appellee

Northern Lights Inn, Co. v. Employment Security Division, Department of Labor

1985-02-15

No. S-390

723

725

695 P.2d 723

695

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:11:48.367668+00:00

CAP

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

NORTHERN LIGHTS INN, CO., Appellant, v. EMPLOYMENT SECURITY DIVISION, DEPARTMENT OF LABOR, State of Alaska, Appellee.

NORTHERN LIGHTS INN, CO., Appellant, v. EMPLOYMENT SECURITY DIVISION, DEPARTMENT OF LABOR, State of Alaska, Appellee. No. S-390. Supreme Court of Alaska. Feb. 15, 1985. Kenneth R. Atkinson, Atkinson, Conway, Bell & Gagnon, Anchorage, for appellant. David T. LeBlond, Asst. Atty. Gen., Anchorage, Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

1072

6737

OPINION MOORE, Justice. Northern Lights Inn, Co. (Northern Lights) appeals the assessment against it of delinquent employment security contributions initially incurred by Cox Enterprises, Inc. (Cox). The Employment Securities Division of the Alaska Department of Labor (the ESD) contends that Northern Lights is personally liable for Cox's unpaid contributions under AS 23.20.260(c) as a successor to Cox. The Notice of Assessment issued by the ESD on August 26, 1981 states that Northern Lights owes $45,272.39 in unpaid contributions plus interest and penalties. Lomas & Nettleton Financial Corporation (Lomas & Nettleton) obtained Cox's business property, a hotel including land, buildings and personal property, when it foreclosed on the property under a deed of trust and purchased it with an offset bid. Lomas & Nettleton then conveyed the property to Northern Lights, a wholly owned subsidiary created for the purpose of operating a hotel business on the property. The ESD originally asserted that Northern Lights was liable for Cox's delinquent unemployment security contributions under AS 23.20.250 and AS 23.20.260. The ESD subsequently abandoned its claims for lien liability and relied solely on AS 23.20.260(e) to assert that Northern Lights had become personally liable for Cox's debt. After a hearing on the ESD's claim, the Commissioner of Labor (the commissioner) issued a decision imposing personal liability on Northern Lights for $31,024.68. The trial court affirmed the commissioner's decision. In interpreting AS 23.20.260(c) we use our independent judgment. Earth Resources Co. of Alaska v. State Department of Revenue, 665 P.2d 960, 965 (Alaska 1983). In 1947, AS 23.20.260(c) was enacted as part of a legislative scheme to collect employment security contributions. The intent of this statute is to divert sufficient purchase money from an employer to the state to cover the employer's tax debt when a business is transferred. In order to achieve that end, the purchaser or successor in business is required to withhold consideration from the employer until the employer has furnished proof that its tax debt has been satisfied. If the successor fails to withhold consideration and the tax debt is unpaid after ten days, the successor becomes personally liable for the debt. Statutes similar to AS 23.20.260(c) have been interpreted to apply only in cases in which the successor, through the handling of the purchase money, can protect the state's interest in collecting unpaid taxes. Knudsen Dairy Products Co. v. State Board of Equalization, 12 Cal.App.3d 47, 90 Cal.Rptr. 533, 538 (1970). That interpretation is consistent with the. purpose of successor liability statutes such as AS 23.20.260(c). Essentially, AS 23.20.260(c) puts a successor in the position of a tax collecting agent of the state. The requirement in AS 23.20.260(c) that a successor "withhold purchase money" implies that the successor has the ability to withhold consideration. Therefore, when there is no fund available from which a successor can withhold the amount of the tax debt, the obligation to withhold does not arise. The personal liability imposed by AS 23.20.260(c) is contingent upon the successor's ability to withhold. In the instant case, Northern Lights contends that it was not in a position to withhold purchase consideration from Cox. Northern Lights foreclosed on the Cox property and purchased it with an offset bid for the amount of Cox's debt. Obviously, consideration that can be diverted does not result from the making of an offset bid. Diversion is possible only to the extent that a bid is made in excess of the debt owed. On the specific facts in this case we are satisfied that Northern Lights' inability to withhold purchase consideration from Cox was bona fide. Therefore, Northern Lights had no obligation to withhold such consideration and should not have been assessed for Cox's unpaid taxes. REVERSED. . In 1971, Cox had granted Lomas & Nettleton a deed of trust and security interest in the real and personal property to secure purchase money and construction loans for the property. Cox then built and operated a hotel on the property. Lomas & Nettleton obtained the property at the foreclosure sale in 1979 with a bid for the amount of Cox's indebtedness to it. . AS 23.20.250 provides in relevant part: (a)If the assets of an employer are distributed under a court order, . or in the case of an assignment for the benefit of creditors, a composition, or a similar proceeding, contributions which are or which become due are a lien upon all the assets of the employer. AS 23.20.260 provides: (a) The contributions required by this chapter are a lien upon the property of an employer subject to the provisions of the chapter who sells out the business or stock of goods, who quits business, or whose property used or acquired in the business is sold under voluntary conveyance or under foreclosure, execution or attachment, distraint or other judicial proceeding. (b) The employer shall file the reports which the department prescribes and pay the contributions required by this chapter with respect to wages payable for employment up to the date of the occurrence of each contingency. (c)The purchaser or successor in business shall withhold enough purchase money to cover the amount of contributions due and unpaid until the employer produces a receipt from the department showing that the contributions have been paid, or a certificate that no contributions are due. If the purchaser or successor fails to withhold purchase money as provided, and the contributions are not paid within 10 days, the purchaser or successor is personally liable for the payment of the contributions accrued and unpaid on account of the operation of the business by the former owner. . In arriving at this figure, the commissioner subtracted penalties and interest owed by Cox. . The words "purchase money" should not be read literally to permit employers to defeat the purpose of the statute by structuring sales so that no cash is exchanged. Bank of Commerce v. Woods, 585 S.W.2d 577 (Tenn.1979). . The California successor liability statutes differ from AS 23.20.260(c) in that they apply only to purchasers of a business. However, the statutes are similar to AS 23.20.260(c) in other respects.

10425976

Kenneth Wayne KELTNER, Fumiko Keltner and Stanley Blackketter, Appellants, v. Emmert CURTIS, Appellee

Keltner v. Curtis

1985-02-22

No. S-162

1076

1081

695 P.2d 1076

695

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:11:48.367668+00:00

CAP

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

Kenneth Wayne KELTNER, Fumiko Keltner and Stanley Blackketter, Appellants, v. Emmert CURTIS, Appellee.

Kenneth Wayne KELTNER, Fumiko Keltner and Stanley Blackketter, Appellants, v. Emmert CURTIS, Appellee. No. S-162. Supreme Court of Alaska. Feb. 22, 1985. D. Randall Ensminger, Fairbanks, for appellants. Charles D. Silvey, Schaible, Staley, DeLi-sio & Cook, Inc., Fairbanks, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

2420

14289

MATTHEWS, Justice. I. In 1982 Emmert Curtis obtained a judgment of $116,514 against Kenneth Keltner. Stanley Blackketter and Fumiko Keltner, appellants, claim to own property that was levied upon by Curtis while attempting to collect this judgment. Blackketter filed third-party claims to an excavator and two generators and Fumiko Keltner filed a third-party claim to a Fruehauf tanker. Curtis moved for a determination of Kenneth Keltner's interest in this property. At the oral argument of this motion held August 31, 1983, an evidentiary hearing was scheduled for an unspecified time the following week, no earlier than Tuesday, September 6th. Counsel for appellants consented to this. The evidentiary hearing was commenced on September 8, continued to September 14, 1983, and completed on that day. The court, on September 28, 1983, entered the following order: The plaintiff having moved for an order recognizing the ownership interest of Kenneth Wayne Keltner in the following described property and the court, based upon the documents submitted and considering all of the contrary evidence, finds that (1) Kenneth Wayne Keltner has an ownership interest in the following described property: (a) Poclain Excavator serial no. 0789261; (b) Fruehauf Tanker serial No. FRD219301; and (c) 2 Army K.W. generators, Westinghouse # 1162 and 1281 skid mounted; (2) that ownership interest may be sold at an execution sale following the terms of A.S. 09.35.140; and (3) Stan Blackketter does not have an ownership interest in the property in question; IT IS ORDERED that an execution sale of the above described property may proceed and that a bill of sale recognizing the ownership interest of the property set forth above may issue. Blackketter and Fumiko Keltner appeal from this order. II. The appellants' first argument is that AS 09.35.130 is not a grant of authority to the court to determine title to property that is levied upon. This argument is correct because AS 09.35.130 only deals with the circumstances under which property levied upon may be retained after a claim of ownership or the right of possession by a third party. However, the argument is irrelevant to the question whether the court's order of September 28,-1983, is valid. The order was entered following an evidentiary hearing to determine Kenneth Keltner's ownership interest in the property in question. The court had inherent power to conduct such a hearing. III. Appellants claim that they were not given adequate notice of the hearing, claiming that "only thirty hours notice" was given. This contention is without merit for appellants agreed that an evidentiary hearing would be held during the week of September 5, not before September 6. Under the calendaring order the parties had an obligation to be ready for the hearing at any time during that week, except for September 5. The fact that appellants were told 30 hours before the hearing on the 8th that the hearing would begin was consistent with the calendaring order to which they had consented. IV. Appellants, next contend that they were entitled to a jury trial of their ownership claims. We agree that a party to a proceeding adjudicating ownership of personal property should be entitled to a jury trial. However, in civil cases a party does not obtain a jury trial unless he makes an appropriate request. Appellants' counsel, at the oral argument at which the eviden-tiary hearing was scheduled, stated the following concerning a jury trial: Counsel: I also am wondering whether the ultimate decision in this case maybe doesn't need to be made by a jury to find fact on whether or not the — who's got the most credible position. The Court: Well, I'm not going to rule on that at this time. Appellants did not again raise the question of a jury trial until the conclusion of the evidentiary hearing. We do not regard the inquiry made by counsel on August 31st as a request for jury trial. It was not definite and it was not in writing. It was no more than an unanswered inquiry. We conclude that appellants have waived their right to a jury trial because they failed to request one. V. Appellants next claim that the court erred in determining that Keltner owned the various items of property in question. We note at the outset that the term "ownership interest" used in the order is ambiguous. The order does not specify whether Keltner was the sole owner or only an owner of a partial share in the property. However, in the context of this case the ambiguity is unimportant. With respect to the excavator and the two generators, the superior court decided that Blackketter had no interest in them. Thus, the only litigant having an interest in the property would have been Kenneth Keltner. As to the Fruehauf, the superior court did not discuss Fumiko Keltner's interest. Thus, there was no indication to prospective purchasers at the execution sale of what was being sold. However, since we reverse the court's finding that Kenneth Keltner had an interest in the Fruehauf, the ambiguity is unimportant. Next we must address the question of burden of proof. Curtis contends that the burden of proof should rest with the appellants. Some third party claim statutes do, in fact, place the burden of proof on the claimant. E.g., Cal. Code of Civ.Proc. § 720.360 (West Supp.1984). Others more commonly make the burden of proof dependent upon possession of the subject property; that is, if the levied property is in the possession of the judgment debtor, then the burden of proof is on the third party claimant, but if the third party claimant is in possession, then the judgment creditor bears the burden. E.g., Ariz.Rev. Stat.Ann. § 12-1338 (1982); Tex.R.Civ. Proc. 730; Ashburn Air Service, Inc. v. Ashburn Bank, 127 Ga.App. 872, 195 S.E.2d 272, 274 (1973). We hold that the most reasonable approach is the second: the burden of proving ownership to levied property will depend on possession. The party out of possession claiming ownership as against a defendant in possession is the party seeking a change in status quo, and as such should have the burden of proof. Blackketter and Fumiko Keltner were not in possession of the claimed property. Kenneth Keltner had actual possession of the property at his mine in the summer of 1982. Later he stored all of the property with an agent. Thus, the burden was appellants' to prove by a preponderance of the evidence that they, and not Kenneth Keltner, owned the property. In determining whether the court erred in deciding that Keltner owned the property in question, the clearly erroneous standard expressed in Civil Rule 52(a) applies: Findings of fact will not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. In applying this standard: It is not our appellate function to reweigh evidence which was adduced before the trial court or to substitute our own judgment for that of the trial court.... Further, it is well established that this court will only disturb trial court findings . when we are left with a definite and firm conviction on the entire record that a mistake has been made, even though there may be evidence to support the finding. Martens v. Metzger, 591 P.2d 541, 544 (Alaska 1979). With respect to the excavator and the two generators claimed by Stanley Blackketter, we are unable to say that the court's determination was clearly erroneous. The evidence on both sides of the ownership question was hearsay which was neither objected to at the hearing nor complained of on appeal. Curtis's evidence supported the court's conclusion that Kenneth Keltner was the owner of the excavator and the two generators. We do not have a definite and firm conviction that the court was mistaken in accepting it. With respect to the Fruehauf tanker, we conclude that the court did err. In support of her claim, Fumiko Keltner introduced a copy of an Alaska Vehicle Registration slip which lists her as the sole owner of the tanker. Under AS 28.10.261, this was a prima facie showing that Fumi-ko Keltner was the sole owner. The only evidence offered to rebut this showing was a statement that Kenneth Keltner used the tanker to haul fuel to his mine, stored it with an agent, and executed a power of attorney allowing another agent to sell and store it. We think that the superior court erred when it found that this evidence was sufficient to establish Kenneth Keltner's "ownership interest" in the tanker. None of this evidence is inconsistent with sole ownership of the tanker by Fumiko Kelt-ner. Kenneth Keltner could well have used, stored, and attempted to sell it with the consent of his wife. The decision of the superior court as to the excavator and the two generators therefore is AFFIRMED. The decision regarding the Fruehauf tanker is REVERSED, and REMANDED to the superi- or court for further proceedings. . Fumiko Keltner is the wife of Kenneth Kelt-ner. . The property in question was sold, along with other items, to the highest bidder on November 1, 1983. It brought a total of $26,300, and the sale was confirmed by order on December 5, 1983. . AS 09.35.130 provides: If property levied upon is claimed by a third person as the person's property by an affidavit of title to the property, or right to the possession of the property and the ground of the title or right, stating the value of the property, and delivered to the person making the levy, that person shall release the property. However, the plaintiff, on demand of the person, may give the person an undertaking executed by two sufficient sureties in a sum equal to double the value of the property levied upon. The undertaking shall be in favor of and shall indemnify the third person against loss, liability, damages, and costs, by reason of the taking or sale of the property by the person. . A court has inherent power to do that which is reasonably necessary for the administration of justice. E.g., People v. Cirillo, 100 Misc.2d 527, 419 N.Y.S.2d 820, 824 (S.Ct.N.Y.1979); Patterson v. Pollock, 84 Ohio App. 489, 84 N.E.2d 606, 611 (1948). We think that the final determination of the interests of third party claimants in levied property prior to the sale of that property is reasonably necessary to the fair administration of justice. After such a determination, buyers at the execution sale will be certain that the judgment debtor is the sole owner of the property, and thus will not be discouraged from bidding what they think is the full value of the property. . Article I, § 16 of the Alaska Constitution provides: "In civil cases where the amount in controversy exceeds two hundred and fifty dollars, the right of trial by a jury of twelve is preserved to the same extent as it existed at common law." At common law, actions at law were given the right to trial by jury, whereas actions in equity were tried by the chancellor. Thus, where equitable relief is sought, such as reformation, an injunction, or restitution, this court has disallowed the right to a trial by jury. Alaska Northern Dev., Inc. v. Alyeska Pipeline Service Co., 666 P.2d 33, 40-41 (Alaska 1983); State v. First Nat'l Bank, 660 P.2d 406, 423-24 (Alaska 1982). But, where damages or other relief at law is sought this court has allowed a jury trial. See Loomis Electronic Protection, Inc. v. Schaefer, 549 P.2d 1341, 1344 (Alaska 1976). In third party claim proceedings the relief that will be sought is in the nature of replevin, or damages arising out of conversion. Indeed, Fumiko Keltner and Blackketter in this case demanded return of the levied property. Such relief is legal, not equitable in nature. Gindin v. Silver, 430 Pa. 409, 243 A.2d 354, 356 (1968); Greenberg v. Dunn, 245 Md. 651, 227 A.2d 242, 247 (Md.App.1967). Thus, a third party claimant is entitled to a jury trial upon proper demand. .Civil Rule 38 provides in relevant part: (b) Demand. Any party may demand a trial by jury of any issue triable by a jury by serving upon the other parties a demand therefore in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue. Such demand shall be made in a separate written document signed by the party making the demand or by his attorney. (d) Waiver. The failure of a party to serve a demand as required by this rule and to file it as required by Rule 5(d) constitutes a waiver by him of trial by jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties. . E. Cleary, McCormick on Evidence, 786 (2d ed.1972): The burdens of pleading and proof with regard to most facts have been and should be assigned to the plaintiff who generally seeks to change the present state of affairs and who therefore naturally should be expected to bear the risk of failure of proof or persuasion. . If they had been in possession, the question of ownership would have been triable under the rule governing garnishee proceedings, Civil Rule 89(f). No parallel to this rule exists as to claims of third parties not in possession. . Hearsay evidence is not excluded unless objected to at the time its admission is sought. E. Cleary, McCormick on Evidence § 52, at 113 (2d ed.1972). . AS 28.10.261 provides: (a) In a civil or criminal proceeding, when the title or right to possession of a vehicle is involved, the record of registration and certificates of title as they appear in the files and records of the department are prima facie evidence of the ownership or right to possession. Proof of ownership or right to possession of a vehicle shall be made by a copy of the record certified by the department or by an original certificate of registration or title issued by the department. (b) Lien information indicated upon the title shall be accepted as prima facie evidence of legal ownership and the filing of a lien.

10412684

James GOENETT, Appellant, v. STATE of Alaska, Appellee

Goenett v. State

1985-02-22

No. A-363

243

245

695 P.2d 243

695

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:11:48.367668+00:00

CAP

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

James GOENETT, Appellant, v. STATE of Alaska, Appellee.

James GOENETT, Appellant, v. STATE of Alaska, Appellee. No. A-363. Court of Appeals of Alaska. Feb. 22, 1985. Margaret W. Berck, Asst. Public Defender, Juneau, and Dana Fabe, Public Defender, Anchorage, for appellant. Richard Svobodny, Dist. Atty., and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

1148

7351

OPINION BRYNER, Chief Judge. James Goenett was originally charged with three counts of sexual assault in the first degree, in violation of AS 11.41.-410(a)(1). He was convicted of one count upon entering a plea of no contest; the two remaining counts were dismissed. At the time of Goenett's crime first-degree sexual assault was a class A felony, punishable by a maximum term of twenty years. Presumptive sentences of ten and fifteen years were prescribed for second and subsequent felony offenders. Goenett was a first felony offender and thus was not subject to presumptive sentencing. Superior Court Judge Rodger W. Pegues sentenced Goe-nett to fifteen years' imprisonment. Goe-nett appeals, contending that his sentence was excessive. We affirm. On appeal, Goenett relies on Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981), in which we held: "normally a first offender should receive a more favorable sentence than the presumptive sentence for a second offender. It is clear this rule should be violated only in an exceptional case." In Peetook v. State, 655 P.2d 1308, 1310 (Alaska App.1982), we elaborated on the circumstances in which a case could properly be considered exceptional for purposes of applying the Austin rule: [I]n deciding whether a first felony offense is exceptional under Austin, it is appropriate for the sentencing court to determine whether any of the aggravating factors specified in AS 12.55.155(c) apply to the case at hand or whether any additional, unspecified aggravating factors exist that would constitute extraordinary circumstances under AS 12.55.165 and that would warrant referral of the case to a three judge sentencing panel if presumptive sentencing applied. See also Langton v. State, 662 P.2d 954, 961 (Alaska App.1983). In this case, Goenett argues that his offense was not an exceptionally aggravated first-degree sexual assault and that he was therefore entitled to receive a sentence more favorable than the presumptive ten-year term that would have been applicable had he been a second felony offender. We disagree. Although Goenett was convicted of only one count of sexual assault, it is undisputed that his conviction reflected a continuous pattern of similar offenses that Goe-nett committed against his stepson, S.J.M. Goenett first sexually assaulted S.J.M. when the boy was only six years old. He continued to assault S.J.M. regularly, as often as once a week, until S.J.M. was thirteen years old — a period of more than six years. The assaults occurred at Goe-nett's home. In each instance Goenett would force S.J.M. to participate in acts of fellatio and sodomy by beating him about the face and body. The assaults were extremely painful to S.J.M. and the acts of sodomy often caused rectal bleeding. S.J.M. suffered serious and apparently lasting emotional damage as a result of Goenett's prolonged series of sexual assaults. In imposing Goenett's sentence, Judge Pegues found that Goenett's offense was exceptionally serious. We believe Judge Pegues' conclusion to be well-founded. There appear to be several statutory aggravating factors that could be applied to Goenett if he were subject to presumptive sentencing. See, e.g., AS 12.55.155(c)(1) (physical injury to the victim); AS 12.55.-155(c)(5) (victim vulnerable or incapable of resisting due to extreme youth); and AS 12.55.155(c)(18) (victim a member of the social unit living with the defendant). Moreover, the frequency of Goenett's assaults, the lengthy period over which they occurred, and the severe emotional damage that he inflicted are extraordinary circumstances that might justify referral to a three-judge sentencing panel if presumptive sentencing applied. We have previously approved lengthy sentences for first offenders convicted of particularly serious sexual assaults. See, e.g., Peetook v. State, 655 P.2d 1308 (Alaska App.1982) (approving sentence of twenty years with five years suspended for an aggravated single episode of first-degree sexual assault). In Langton v. State, 662 P.2d 954 (Alaska App.1983), we considered challenges to the sentences imposed in three separate cases of first-degree sexual assault. Melvin Joe, the defendant in one of the cases, was a first offender who had received a maximum term of twenty years' imprisonment for committing a single act of sodomy on a young child. After considering the totality of the circumstances, we held Joe's sentence excessive and ordered it reduced to ten years' imprisonment. In terms of their prior criminal history, personal background and underlying motivation, Goenett and Melvin Joe appear to be similarly situated offenders. While Joe's offense was more serious in that it involved a two-year-old child, this factor is somewhat offset by the greater extent of violence employed by Goenett, as well as by the physical and emotional injuries suffered by Goenett's victim. Goenett's offense appears to be comparable in seriousness to Joe's in all respects but one: Goe-nett's crime was part of a long and continuous pattern of sexual abuse. Given Goenett's lengthy history of violent sexual assaults against S.J.M., we believe that his conduct must be regarded as being substantially more serious than the conduct involved in Joe's case; a sentence that substantially exceeds the ten-year term received by Joe is therefore justified in this case. Having independently reviewed the totality of the sentencing record, we cannot say that Judge Pegues was clearly mistaken in sentencing Goenett to a term of fifteen years' imprisonment. The sentence is AFFIRMED. . Since Goenett committed his offense, sexual assault in the first degree has been redesignated as an unclassified felony, punishable by a maximum term of thirty years and by presumptive terms of eight, fifteen, and twenty-five years for first, second, and subsequent felony offenders. See AS 11.41.410; AS 12.55.125(i). . Alternatively, these circumstances could have been viewed by Judge Pegues, in conjunction with the specific statutory aggravating factors established by the evidence, as justifying a conclusion that Goenett's assault was among the most serious within the definition of the offense. See AS 12.55.155(c)(10). . Compare Ecker v. State, 656 P.2d 577 (Alaska App.1982) (six-year sentence approved for sexual assault involving lengthy pattern of incest with victim, a child who suffered serious psychological damage), with Smith v. State, 691 P.2d 293 (Alaska App.1984) (approving fifteen-year sentence for first offender convicted of two separate acts of forcible rape). .In Langton, 662 P.2d at 961, we stated: A dangerous offender is one who either engages in repetitive criminal conduct or can be diagnosed as one who will likely engage in repetitive criminal conduct in the future. See Viveros v. State, 633 P.2d 289, 291 (Alaska App.1981). There is nothing in this record to support a finding that Joe has engaged in similar conduct in the past or is likely to engage in such conduct in the future.

7264778

Marilyn A. COPPE, Appellant, v. Michael BLEICHER, M.D. and Laurie Bleicher, M.D., and Liberty Northwest Insurance Company, Appellees

Coppe v. Bleicher

2014-02-14

No. S-14938

369

380

318 P.3d 369

318

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:13:56.271734+00:00

CAP

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

Marilyn A. COPPE, Appellant, v. Michael BLEICHER, M.D. and Laurie Bleicher, M.D., and Liberty Northwest Insurance Company, Appellees.

Marilyn A. COPPE, Appellant, v. Michael BLEICHER, M.D. and Laurie Bleicher, M.D., and Liberty Northwest Insurance Company, Appellees. No. S-14938. Supreme Court of Alaska. Feb. 14, 2014. Marilyn A. Coppe, pro se, Anchorage, Appellant. Randall J. Weddle and Selena R. Hopkins-Kendall, Holmes Weddle & Barcott, P.C., Anchorage, for Appellees. Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.

6183

38604

OPINION FABE, Chief Justice. I. INTRODUCTION Marilyn Coppe worked in the medical offices of Drs. Michael and Laurie Bleicher from 1994 to 2008. In early 2003, she began to experience respiratory and pain symptoms, which she attributed to her work environment. After her work with the Bleichers ended in October 2003, Coppe sued them in superior court for wrongful discharge. According to Coppe, she became aware during the course of the litigation that she could file a claim with the Alaska Workers' Compensation Board for work-related medical problems. She filed a report of injury in August 2005, alleging that she had suffered an orthopedic strain from repetitive work. She also alleged that she suffered respiratory symptoms due to her work environment. After a hearing, the Board denied her claim, and the Alaska Workers' Compensation Appeals Commission affirmed the Board's decision. Coppe argues that the Board and Commission made factual and legal errors in deciding her case. We affirm the Commission's decision. II. FACTS AND PROCEEDINGS Marilyn Coppe worked for Drs. Michael and Laurie Bleicher for almost nine years, performing clerical and office work. During the time she worked for the Bleichers, she occasionally strained her back from lifting and experienced some shoulder and arm pain. According to Coppe, she did not have employment-related health insurance, and Dr. Laurie Bleicher treated her for some of her medical problems. In April 2008 Coppe began to experience numerous symptoms, "including sore throat, dry mouth, headache, dizziness, and pain in the upper part of her chest." She thought that her symptoms were caused by her work environment because the symptoms improved when she was not at work. Coppe saw a nurse practitioner, who ordered testing to rule out other conditions; the nurse practitioner did not give Coppe a definitive diagnosis, noting a "[plossible allergic reaction" related to her workplace. Coppe visited the nurse practitioner again a few weeks later and asked for a note excusing her from work while environmental testing was performed. Coppe was concerned that the testing would cause her symptoms to increase, and the nurse practitioner provided the requested note. Coppe also wrote to other occupants of the building to learn if anyone else was experiencing symptoms like hers. A few people responded, indicating that they had experienced some of the symptoms Coppe listed. Coppe asked her employers to investigate, and Dr. Michael Bleicher wrote the building manager to request that the duct system and fluorescent lights be cleaned. The building owners hired an environmental consultant to conduct indoor air quality tests. The environmental consultant identified two possible areas of concern: "a possibility of decaying organic matter generating allergenic bioaerosols and the potential for inadequate outdoor air being added" to the indoor air. The consultant suggested modifying the outdoor-air intake to bring in more outside air and cleaning the leaves, brush, and other organic material from the area near the air intake. Monitors placed in two of the office suites, including the Bleichers' offices, found no evidence of harmful levels of carbon monoxide or carbon dioxide. In July Coppe saw an allergist, who conducted tests and found that Coppe had no allergies. Coppe next contacted Alaska Occupational Safety and Health (AKOSH), asking it to inspect the office. She continued to experience symptoms, and on October 3, 2003, she saw Dr. Robin Galloway, who diagnosed her with allergic rhinitis and possible bronchospasm. The bronchospasm diagnosis was based on a report that Coppe sometimes wheezed at work. Dr. Galloway provided Coppe with medication, noted that Coppe's symptoms were "consistent with allergies that have developed as a consequence of an environmental exposure," and instructed her to come back in a month. Coppe then contacted the Bleichers about her work. According to the Bleichers' notes, they met with Coppe after her appointment with Galloway; Coppe asked them for leave, which they allowed. The notes reflect that Coppe was going to take two weeks of unpaid leave to look for other work and would "let [the Bleichers] know her thoughts" after the AK-OSH response to her inspection request. AKOSH informed Coppe by letter on October 7, 2008 that it would not inspect the Bleichers' office because regulatory standards did not "address [her] complaint item at this time." Coppe again talked to the Bleichers; their notes reflect that they had a series of phone conversations with her on October 9 and 10, 2008 about her respiratory symptoms and her work. Coppe insisted that her symptoms had originated in the work environment, maintaining that they had "escalated" after a wind storm in March 20083. Coppe was convinced that whatever was causing her symptoms was in the ventilation system of the building and pointed out that other workers in the building had complained about being sick as well. Dr. Michael Bleicher responded that the building manager had reported that those workers' symptoms had improved. Coppe and Dr. Michael Bleicher spoke about ending Coppe's employment with the Bleichers; they also discussed Coppe's pension and a letter of recommendation. Coppe was to pick up her belongings from the office the following Monday. Coppe received unemployment with no waiting period after the state unemployment division decided she had left work "due to health reasons." Soon after Coppe stopped working for the Bleichers, she reported to her doctor that "her [respiratory] symptoms [had] completely resolved without the assistance of medications," but she then began experiencing symptoms of depression. Coppe also reported hand pain, which she thought was related to "repetitive use during her former employment." Her doctor told her to take ibuprofen for the hand pain and offered her medication for depression; Coppe expressed an interest in psychotherapy rather than medication. In December Coppe began taking an antidepressant, which she discontinued after she began to feel better. The record reflects that she was again taking an antidepressant in October 2005 but continued to experience symptoms of depression; her doctor referred her to psychotherapy at that time. In 2005 Coppe sued the Bleichers for wrongful discharge. Dr. Michael Bleicher moved for summary judgment based on AS 28.30.055, the exclusive liability provision of the workers' compensation act. According to Coppe, someone told her during the course of the employment litigation that she could file a claim with the Board. She signed a report of injury on August 26, 2005. The Bleichers filed a notice of controversion on November 8 on the basis that the claim was "barred under AS 23.30.100." On November 16, 2005, Coppe filed a written workers' compensation claim for permanent partial impairment (PPT), medical and transportation costs, penalty, interest, and "unfair or frivolous controvert." She alleged that she suffered from depression, rhinitis, and bronchospasm and that she had experienced work-related injuries to her back, hands, and knees, as well as her right shoulder and wrist. The Bleichers filed another controversion notice on December 1, listing a number of reasons to deny the claim. Coppe engaged in counseling and saw a psychiatrist for medication from late 2005 to about July 2006. During this time she also consulted with Dr. Claribel Tan, who diagnosed Coppe with fibromyalgia. Dr. Tan gave the opinion that "there is no current evidence for any environmental causes for fibromyalgia" and recommended "psychiatric evaluation and consultation." In March 2006 Coppe testified at a deposition related to her workers' compensation claim. During the deposition she testified that her allergy-like symptoms ended after she stopped working for the Bleichers. She testified about her back, shoulder, and wrist pain and her respiratory symptoms. She said she hoped to get some back pay and compensation for doctor visits related to her earlier injuries. The Bleichers arranged an employer's independent medical evaluation (EIME) with Dr. Bryan Layeoe, an orthopedist; he examined Coppe on April 15, 2006, and reviewed her medical records. Dr. Layeoe diagnosed Coppe with major depression by history and multiple pain complaints. He did not think Coppe's "work activities were a substantial factor in her complaints of pain" and found "no diagnosis of a physical condition which [could] be related" to her work activities. He recommended treatment for depression, in part because he thought it might improve her perception of her pain, but he did not think the treatment would be for a work-related condition. Coppe began treating with a chiropractor, Dr. James Pizzadili, in 2006. Also in 2006, Coppe had thermograms performed and saw a naturopath. The naturopath ordered allergy testing as well as testing for heavy metals. The tests showed no evidence of significant allergies but indicated that Coppe had high levels of some metals. She received chelation therapy for elevated levels of copper in her blood. Coppe also continued treating with Dr. Pizzadili; he diagnosed her with multiple problems related to toxic encephalopathy from exposure to chemicals at work. He ordered an MRI, the results of which were normal. In November 2006 Coppe filed an amended workers' compensation claim, seeking increased medical costs, as well as permanent total disability (PTD) and an additional penalty because the Bleichers had not reported her injury in 2003. The Bleichers answered, denying all claims, and filed two more contr-oversion notices. In February 2007 Dr. Eric Goranson, a psychiatrist, examined Coppe at the Bleich-ers' request. He concluded that Coppe most probably suffered from a conversion disorder, although he could not rule out malingering or factitious disorder. He did not think her psychiatric conditions were work related. The Bleichers then filed a controversion notice based on Dr. Goranson's report. The Bleichers scheduled another EIME, to take place in July 2007 in Oregon, with two doctors, Dr. Emil Bardana, Jr., a professor of immunology and allergy, and Dr. Brent Burton, a professor of toxicology and occupational medicine. Coppe did not attend the EIME, so the doctors based their opinions on a review of her medical records. Neither Dr. Bardana nor Dr. Burton thought Coppe had a work-related condition; both noted psychological diagnoses, but neither could find any evidence of disease or injury in his specialty. Coppe consulted with Dr. Gunnar Heuser, a physician in California, in 2007. He performed some testing, including tests for attention deficit disorder and respiratory problems, and concluded that her symptoms were consistent with toxic exposure. Dr. Heuser provided a report to the Board in February 2009 that explained why Coppe might be suffering from "sick building syndrome" even though she had not worked for the Bleichers for several years. Dr. Heuser diagnosed Coppe with toxic encephalopathy, fibromyal- gia, depression, orthopedic problems, and a sleep disorder. In his opinion, all of these conditions except the orthopedic problems were "due to a toxic work environment." Because of the conflicting opinions of Coppe's and the Bleichers' experts, the Board ordered a second independent medical evaluation (SIME) and selected Dr. Thomas Martin, who specializes in occupational and environmental medicine and toxicology, as the SIME physician. Dr. Martin performed a record review but did not examine Coppe because she was too ill to travel. Dr. Martin concluded there was no evidence that Coppe had suffered a work-related exposure to any toxin, in part because "[tJhere is no evidence of any toxins in the workplace that would or could be responsible for creating a sick building." He also concluded that Coppe did not have any condition or disability related to her employment with the Bleichers. Dr. Martin thought Coppe could work as an administrative assistant with no restrictions. The Board held a hearing on Coppe's claim in December 2010. Coppe represented herself with the assistance of a lay representative. Dr. Burton testified at the hearing, as did Coppe, Dr. Michael Bleicher, Dr. Pizzadi-Ii, and Coppe's husband. The Board had deposition testimony from a number of other witnesses, including Dr. Bardana, Dr. Goran-son, and the employees who returned Coppe's 2008 questionnaire about symptoms. Coppe's husband, who is a general contractor, testified about an inspection he had done of the office building in 2008. He identified a number of deficiencies in the building and testified that because of water damage, the building might be susceptible to mold, which he said was part of sick building syndrome. He also testified that his wife's symptoms arose after a storm in March 2008, but they did not know until 2006 that her symptoms were associated with the building. Dr. Pizzadili testified about his treatment of Coppe and his PPI rating. He testified that the tests she had undergone for heavy metals and brain damage were reliable, and he concluded that she had suffered an exposure to toxins in the workplace that had caused her current disability. He noted that others in the building had also suffered environmental illnesses. Dr. Pizzadili testified that he had no formal training in toxicology or psychiatry; his training was in forestry and chiropractics. Dr. Michael Bleicher testified about maintenance in the office building as well as steps that had been taken to address Coppe's environmental complaints. He testified that he and his wife had displayed a notice about workers' compensation insurance in the office; he also said that he told his employees how to file for workers' compensation when they reported an injury. Dr. Burton testified at length. He agreed with Dr. Martin's SIME report as well as Dr. Bardana's EIME report. Dr. Burton still held the same opinions he gave in his written report. According to Dr. Burton, Dr. Heu-ser had been "excluded as a witness based on the Da[ulbert criteria" in at least one lawsuit. He questioned the accuracy and reliability of the testing Dr. Heuser had performed on Coppe; Dr. Burton also questioned the value of thermographic testing. Dr. Burton denied that fibromyalgia could be caused by exposure to toxins, saying it is a rheumatologic disorder. Although Dr. Burton questioned the validity of the test used by Coppe's physicians to diagnose exposure to toxins, he said that even if it were a valid measure of metals in her system, none of the values showed any cause for concern. Dr. Burton added that even if there were mold in the building, there was no evidence to connect any of Coppe's medical problems with exposure to mold. In its final decision, the Board denied Coppe's claim. The Board first decided that Coppe's claim was filed late but that the Bleichers had actual notice of the injury. As a result, the Board did not dismiss the claim, but it held that the presumption of compens-ability in AS 28.30.120 did not apply to the claim so that Coppe had to prove all elements of her claim by a preponderance of the evi dence. The Board went through the initial two steps of the presumption analysis in the alternative, deciding that if the presumption analysis applied, the presumption would have attached through the testimony of Coppe, her husband, and Dr. Pizzadili. The Board then concluded that the Bleichers would have rebutted the presumption through the testimony of Drs. Bardana, Burton, Goranson, and Laycoe. In evaluating the evidence to determine whether Coppe had proved her claim by a preponderance of the evidence, the Board decided that Coppe had not met her burden of proof. The Board found Dr. Burton to be a credible witness and also decided that Dr. Martin was credible. The Board gave less weight to Dr. Pizzadili's testimony because he did not have specific training in toxicology and because his opinions relied in part on erroneous factual information, including Coppe's report that others in the building suffered symptoms similar to hers. The Board noted that (1) Coppe had reported to her doctor in November 2008 that her symptoms had resolved and (2) the other employees who initially responded to Coppe's questionnaire later denied that the building caused their symptoms. The Board further supported its decision by pointing out that an environmental consultant had found "no unsafe levels of lead, arsenic, mereury, or nickel" in the office water and that the allergy doctor who examined Coppe in 2003 found no evidence of allergies. The Board summarized the relevant testimony of the medical witnesses it found more credible, specifically recognizing that "there is no evidence the building produced any contaminants that would be toxic to [Coppel." The Board also observed that Coppe's symptoms "improved by November 2008 so if the building were making her sick, her removal from the building cured the problem." Additionally Coppe's "symptoms did not actually worsen until more than two years later." The Board decided that "[the preponderance of the evidence . establishes the work environment was not toxic and is not the source of [Coppe's] current disability." The Board went on to decide Coppe's PTD claim separately, finding that the evidence showed that Coppe was able to work in 2008. It also found that "[alny work injury was at most temporary" because Coppe's "symptoms resolved by November 2003, and her depression resolved by July 2006." The Board further noted that Coppe looked for work until early 2006, work was available in her occupation, and Coppe indicated that "the only reason she could not find work as a secretary was because [the Bleichers] would not give her a reference." The Board denied the PTD claim. Coppe appealed to the Commission. During the course of the appeal, a dispute developed about whether certain documents had been filed with the Board. The Commission wrote to Coppe and told her that the documents in question were not in the record and, as a result, it could not consider them. According to a memo in the record, Coppe responded by calling the Commission and claiming that she had filed the missing documents on June 11, 2009, along with other documents that were in the record. The Commission's clerk advised Coppe to include the documents in her excerpt of record and to provide record citations in her brief to support her contention that she had discussed the missing documents at the Board level. Coppe included the pages in her excerpt; the Bleichers asked the Commission to order Coppe to "cure defects" in her brief and excerpt of record and to dismiss the appeal. One of the defects they identified was the inclusion of documents in her excerpt that were not in the Board record. The Commission ordered that Coppe remove six documents from her excerpt, including a report of injury for allergic rhinitis and bronchospasm, and revise her brief. The Commission issued a supplemental order in which it acknowledged that the report of injury was in fact in the record; the Commission nevertheless determined that the document was "inadmissible" for purposes of Coppe's appeal because it had a different workers' compensation number and the Board had "issued no decision or order" related to that case. The Commission affirmed the Board's decision. The Commission decided that any problem with the Board's application of the presumption analysis was moot because the Board had provided two different analyses of the evidence, one applying the presumption and one not applying it. The Commission determined that the Board had not overlooked evidence and that substantial evidence supported the Board's decision. The Commission also decided that Coppe had waived or abandoned certain issues-'"the orthopedic and cigarette smoke inhalation issues"-because of inadequate briefing. Coppe now appeals to this court. III. STANDARD OF REVIEW In an appeal from the Workers' Compensation Appeals Commission, we review the Commission's decision rather than the Board's decision. We apply our indepen dent judgment to questions of law that do not involve ageney expertise. We independent ly review the Commission's conclusion that substantial evidence in the record supports the Board's findings, which "requires us to independently review the record and the Board's factual findings." We interpret the pleadings of pro se litigants less stringently than those of lawyers. IV. DISCUSSION A. The Board's Error In Applying The Presumption Analysis Was Harmless. Coppe contends that the Board improperly applied the presumption analysis to her claim. The Board decided that Coppe did not have the benefit of the presumption of compensability because she filed her claim late, but the Board then performed an alternative analysis in which it found that if the presumption applied, the presumption had attached, and the Bleichers had rebutted it. The Commission decided the issue was moot because of the Board's alternative analysis. Alaska Statute 23.30.100(a) requires an employee to report her work-related injury to the Board and to the employer within 30 days of the injury. If an employee does not give the required notice, her claim may be barred. Alaska Statute 28.30.100(d) sets out "three enumerated cireumstances" in which late filing is excused. Alaska Statute 23.80.100(d)(1) excuses late notice if the employer had knowledge of the injury and was not prejudiced by the failure to give notice. In Coppe's case, the Board decided that her claim was filed late, but it found that the Bleichers had notice of the injury. The Board then determined, relying on AS 23.30.120, that although it would consider Coppe's late claim, the presumption did not apply. The Commission interpreted the Board's decision as relying on subsection (d)(1) because the Board found that the Bleichers had actual notice of the sick building syndrome complaints. The Commission observed that the Bleichers had not challenged this part of the decision on appeal and that substantial evidence supported this part of the Board's decision. The Commission decided that any issue related to the Board's decision not to apply the presumption was moot because of the Board's alternative analysis. McGahuey v. Whitestone Logging, Inc. presented a similar issue. In McGahkuey the claimant filed a report of injury more than a year after the date of injury. The Commis sion and Board both decided the notice was not timely but did not analyze when the time period for giving written notice began. We decided that both the Commission and the Board erred in failing to identify the date on which the 30-day period began to run, but that the error was harmless because the Board had performed an alternative analysis in which it analyzed the compensability of the claim. We concluded that the Board's al ternative analysis was correct. Coppe's case is analogous: We conclude that the Board erred but that the error was harmless. The Commission's determination that the Board applied AS 28.80.100(d)(1) is unchallenged on appeal, and the Commission correctly decided that substantial evidence in the record supports the Board's finding that the Bleichers had notice of Coppe's claim that the building was causing her respiratory complaints. The Board erred in deciding that the presumption analysis did not apply because AS 28.80.120(b) only deprives a claimant of the presumption of compensability "if delay in giving notice is exeused by the board under AS 28.80.100(d)(2)." If the delay is excused under AS 28.30.100(d)(1), the presumption applies. The Board's error in failing to apply the presumption analysis was harmless, however, because it provided an alternative analysis in which it hypothetically, but correctly, applied the presumption analysis. It decided that the presumption of compensability would have attached through the combined testimony of Coppe, her husband, and Dr. Pizzadili, and that the Bleichers would have rebutted it through the testimony of their medical experts. The Board's alternative approach of attaching the presumption was correct as a matter of law. B. The Board Applied The Correct Legal Standard To Coppe's Claim. Coppe asserts that the Board incorrectly applied the post-2005 causation standard to her claim rather than the pre-2005 standard. Her argument is based on the Board's statements that her work environment was not "the source" of her disability. The Commission did not discuss this issue, and it is unclear whether Coppe raised it before the Commission. Assuming that Coppe preserved this issue for appeal, we conclude that the Board applied the correct legal test to her claim. Although the Board did not use the words "a substantial factor" in its concluding sentence, it used these words in the narrative related to the presumption analysis. The Board noted that if the presumption analysis applied, Coppe had provided enough evidence that "her place of employment [was] a substantial factor in her current disability and need for medical treatment" to attach the presumption. The Board also determined that the Bleichers had to "overcome the presumption with substantial evidence [that her place of employment was] not a substantial factor." It further stated that the EIME physicians "ruled out employment as a substantial factor." From these statements, we conclude that the Board correctly applied "a substantial factor" as the legal test rather than "the substantial cause." C. - The Commission Correctly Concluded That Substantial Evidence Supported The Board's Decision. The central issue in this appeal is whether the Commission erred in deciding that substantial evidence in the record supported the Board's decision. Coppe contends that the Board ignored or failed to evaluate substantial evidence to support her claim. The Bleichers respond that substantial evidence supports the conclusion that Coppe did not suffer a work-related injury. We agree with the Commission that substantial evidence in the record supports the Board's decision. The Board found Dr. Burton, the EIME toxicologist, and Dr. Martin, the SIME toxicologist, to be credible witnesses. The Board's credibility determinations are binding on the Commission. Both doctors concluded that Coppe did not suffer any work-related exposure to toxins that would cause her to suffer the disabling conditions she described. Because Coppe alleged that her debilitating conditions were related to toxins in her work environment, these physicians' opinions were substantial evidence supporting the Board's decision that she did not suffer a work-related injury. Moreover, we have held in many cases that when the Board is presented with two or more conflicting medical opinions, each of which constitutes substantial evidence, we will defer to the Board's weighing of the evidence. - Because the Board assigned Coppe's evidence less weight than the Bleich-ers' evidence, she did not meet her burden of proof at the last step of the presumption analysis. Coppe contends that the Board did not discuss her medical evidence, but the Board in fact did summarize the testimony and reports of her doctors. The Board decided to give their opinions less weight in part because the doctors relied on Coppe's representations that others were also sickened by the building environment. The Board had depositions of the three employees who responded to Coppe's earlier survey; all three employees testified that their symptoms arose from causes other than their work environment. D. The Commission Did Not Err In Deciding That Coppe Waived Some Issues On Appeal Due To Inadequate Briefing. Coppe argues that the Commission and Board erred in failing to deal with her orthopedic complaints and her concerns about smoking in the office. The Board did not address them, and the Commission decided that she had waived these issues on appeal. Because Coppe is pro se, her brief is subject to a more relaxed standard than a brief prepared by an attorney. Coppe complains that the Commission did not tell her that her brief was inadequate. The Commission reviews briefs to determine whether they meet the technical requirements set out in its regulations, and it can reject a brief that does not meet its technical requirements. The adequacy of briefing an issue is not a technical requirement covered by the regulation; rather, it is a legal judgment subject to independent review. Thus the Commission had no legal duty to notify Coppe that she had inadequately briefed an issue. The Commission did not err in deciding that Coppe waived due to inadequate briefing issues about second-hand smoke and her orthopedic complaints. In her brief before the Commission, she listed evidence that she thought the Board had ignored in making its decision, including her testimony that Dr. Michael Bleicher smoked in the office. Second-hand smoke was presented as an environmental toxin at the hearing; the Board addressed her environmental complaints, as did the Commission. But as the Commis sion noted, Coppe's brief consisted principally of a summary of the evidence; only four pages had any legal argument, and those arguments were primarily directed at her toxic-exposure claim. Her argument about the orthopedic complaints lacked citation to authority or a legal theory to support it. We therefore conclude that the Commission correctly decided that Coppe inadequately briefed these issues. E. The Commission's Error In Deciding That A Document In The Record Was "Inadmissible" For Purposes Of The Appeal Was Harmless. Coppe argues that some documents, which the Commission required her to remove from her excerpt in the Commission appeal, should have been included in the record and that the Commission deprived her of the opportunity to "challenge missing records." The regulation she cites in support of her argument, 8 AAC 57.180(a)(4), permits a party in a Commission appeal to include in her excerpt of record any evidence that was excluded at the Board level when the appeal challenges the Board's ruling about admissibility. This regulation does not apply here because the Board did not make a ruling about the admissibility of the documents and Coppe did not challenge a Board ruling about admissibility. Instead, Coppe contended that she had filed the documents with the Board but that the Board had misplaced them. Coppe found documents from another claim in the record in her appeal and argues that this supports her contention that the Board misplaced documents she filed. We have reviewed the documents, which were included in her excerpt before this court, and see no prejudice to Coppe from their exclusion. But the Commission also prohibited Coppe from discussing a document that was part of the record. The Commission noted that Coppe's initial report of injury about her environmental complaints, with case number 200824746, was in the record on appeal. The Commission nonetheless decided that it was "inadmissible" for purposes of the appeal and ordered Coppe not to refer to this document in her brief, The Commission did not cite any legal authority for its order, stating only that "no issues arising out of that case" were part of the appeal. The Commission erred in deciding that a document in the record was "inadmissible" for purposes of the appeal, but the error was harmless in this case. One of the Commission's regulations states that the record on appeal consists of "the entire board file, including all original papers." Because it is uncontested that the report of injury was part of the Board's record, the Commission had no basis for excluding it from the record on appeal. A report of injury could potentially be used to rebut a charge of recent fabrication or simply to show that a report had in fact been filed. But the Commission's error was harmless. Coppe fails to show how her rights were affected by her inability to refer to this document; moreover, other documents discussed her respiratory symptoms and her allegations that these symptoms were work related. Because the exclusion of this report of injury did not substantially affect her rights, the Commission's error was harmless. v. CONCLUSION For the foregoing reasons, we AFFIRM the Commission's decision. . Whether Coppe quit or was fired was contested. See Coppe v. Bleicher, Mem. Op. & J. No. 1377, 2011 WL 832807, at *2 (Alaska, Mar. 9, 2011). . See id. at *2-3 (setting out factual and procedural history). Coppe initially sued only Dr. Michael Bleicher; she later added Dr. Laurie Bleicher as a defendant, but the superior court dismissed the case against Dr. Laurie Bleicher based on the statute of limitations. Id. at *2. . Id. at *2. . AS 23.30.100(a) requires that notice of a work-related injury be given to both the employer and the Board within 30 days of the injury. . An employer is required to report an employee's illness or injury to the Board within 10 days after the employer knows of the injury or illness; the statute permits the Board to assess a penalty equal to "20 percent of the amounts that were unpaid when due." AS 23.30.070(a), (®. . Evidently Coppe misread the departure time and missed her flight to Oregon. . He was apparently referring to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (setting out test for admissibility of scientific testimony). . Before 2005, the presumption analysis consisted of three steps: (1) the employee was first required to attach the presumption of compensa-bility through some evidence linking her work and her disability; (2) if the presumption attached, the employer had to rebut the presumption by presenting evidence that the disability was not work related; and (3) if the presumption was rebutted, the employee had to prove all elements of her claim by a preponderance of the evidence. See Smith v. Univ. of Alaska, Fairbanks, 172 P.3d 782, 788 (Alaska 2007). . Coppe included in her excerpt of record before this court some of her recent medical records. She apparently filed another claim with the Board, alleging that neck pain and surgery she had in 2012 were compensable. The neck surgery is not an issue in this appeal. . Shehata v. Salvation Army, 225 P.3d 1106, 1113 (Alaska 2010) (citing Barrington v. Alaska Commc'ns Sys. Grp., Inc., 198 P.3d 1122, 1125 (Alaska 2008)). . Id. . Smith v. CSK Auto, Inc., 204 P.3d 1001, 1007 (Alaska 2009). . Id. at 1011 (citing DeNardo v. Calista Corp., 111 P.3d 326, 330 (Alaska 2005)). . McGahuey v. Whitestone Logging, Inc., 262 P.3d 613, 619 (Alaska 2011) (citing AS 23.30.100(d)). . Alaska State Hous. Auth. v. Sullivan, 518 P.2d 759, 761 (Alaska 1974). . McGahuey, 262 P.3d at 613. . Id. at 615. . Id. at 619. . Id. at 619-20. . Id. at 620-22. . The issue was not moot, as the Commission said, because Coppe's eligibility for benefits was still a live controversy. See Williams v. Williams, 252 P.3d 998, 1007 (Alaska 2011) ("A claim is moot if it has lost its character as a present, live controversy...." (quoting Akpik v. State, Office of Mgmt. & Budget, 115 P.3d 532, 535 (Alaska 2005)) (internal quotation marks omitted)). Instead, it was harmless error. See RLR v. State, 487 P.2d 27, 45 (Alaska 1971) (distinguishing between mootness and harmless error). . This court has reviewed the question whether the presumption should attach as a matter of law. See, e.g., DeYonge v. NANA/Marriott, 1 P.3d 90, 95 (Alaska 2000). . The legislature changed the standard for com-pensability from "a substantial factor" to "the substantial cause" in 2005. See Rivera v. Wal-Mart Stores, Inc., 247 P.3d 957, 959 n. 2 (Alaska 2011) (citing Pietro v. Unocal Corp., 233 P.3d 604, 616 n. 31 (Alaska 2010)) (noting change in causation standard). Coppe's claim arose before the statutory amendments took effect. . AS 23.30.128(b). . See, eg., Cowen v. Wal-Mart, 93 P.3d 420, 426 (Alaska 2004) (quoting Doyon Universal Servs. v. Allen, 999 P.2d 764, 767-68 (Alaska 2000)). . Smith v. CSK Auto, Inc., 204 P.3d 1001, 1011 (Alaska 2009) (citing DeNardo v. Calista Corp., 111 P.3d 326, 330 (Alaska 2005)). . 8 Alaska Administrative Code (AAC) 57.150 (2011). . See Bluel v. State, 153 P.3d 982, 986 n. 5 (Alaska 2007) (citing Wilkerson v. State, Dep't of Health & Soc. Servs., 993 P.2d 1018, 1021 (Alaska 1999)) (reviewing adequacy of briefing as question of law). . To the extent Coppe was attempting to link second-hand smoke to heart disease in her brief to the Commission, she did not make a claim for heart disease and did not present medical evidence about it at the hearing. The doctor's testimony that Coppe cited in her brief before the Commission did not in any way link her medical test results to heart disease, nor did it link heart disease and second-hand smoke. Her doctor was describing medical tests he ordered to investigate Coppe's complaints of joint pain. . See Thoeni v. Consumer Elec. Servs., 151 P.3d 1249, 1257 (Alaska 2007) (discussing waiver of inadequately briefed issues when litigant is pro se). . The documents in question are correspondence from the insurance company and a transcript of a recorded conversation from September 2005 between Coppe and an unnamed person about her claim. . 8 AAC 57.110(a)(2). . Cf. Alaska R. Evid. 801(d)(1)(B) (defining as not hearsay prior consistent statements that are offered to rebut charges of recent fabrication). . See Hill v. Giani, 296 P.3d 14, 22 n. 23 (Alaska 2013) (stating that a court should disregard errors that "have no substantial effect on the rights of the parties or on the outcome of the case." (citing Fairbanks N. Star Borough v. Rogers & Babler, 747 P.2d 528, 531 (Alaska 1987))). . Coppe's brief mentions a number of other issues that we do not address; they have been waived because they were inadequately briefed or not preserved for appeal. Some issues were never raised before the Board or the Commission and are waived for that reason. Rude v. Cook Inlet Region, Inc., 294 P.3d 76, 101 (Alaska 2012) (quoting Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280 (Alaska 2001)) (holding that an issue may not be raised for first time on appeal).

10426098

William F. HALL, and Hall Yenta Mining Company, A Limited Partnership, Appellants, v. ADD-VENTURES, LTD., A Limited Partnership, Successor in Interest to Add-Ventures, Inc., an Alaskan Corporation, Appellees

Hall v. Add-Ventures, Ltd.

1985-02-22

No. 7130

1081

1090

695 P.2d 1081

695

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:11:48.367668+00:00

CAP

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

William F. HALL, and Hall Yenta Mining Company, A Limited Partnership, Appellants, v. ADD-VENTURES, LTD., A Limited Partnership, Successor in Interest to Add-Ventures, Inc., an Alaskan Corporation, Appellees.

William F. HALL, and Hall Yenta Mining Company, A Limited Partnership, Appellants, v. ADD-VENTURES, LTD., A Limited Partnership, Successor in Interest to Add-Ventures, Inc., an Alaskan Corporation, Appellees. No. 7130. Supreme Court of Alaska. Feb. 22, 1985. Rehearing Denied April 1, 1985. William F. Hall, Anchorage, pro per. A. Lee Petersen, and Randall E. Far-leigh, Anchorage, for appellees. Before BURKE, C.J., RABINOWITZ, MATTHEWS and COMPTON, JJ.

4697

28591

OPINION RABINOWITZ, Justice. This appeal arises out of a quiet title action which was instituted by Add-Ventures in superior court regarding approximately 140 mining claims near Petersville, Alaska. In his answer appellant William F. Hall asserted in part, by way of counterclaim, that Add-Ventures had agreed to sell him all of the mining properties involved in the quiet title action. Asserting that he was the equitable owner of the subject mining properties Hall requested specific performance of the alleged contract of sale. The superior court held that no contract was formed and therefore denied specific performance and this appeal followed. I. Facts In July, 1978, after falling behind on payments to John Jacobsen in connection with its 1976 purchase of the Peters Creek mining properties (Petersville claims), Add-Ventures leased thirteen of the claims. The lease was negotiated between C.E. Bergland, President of Add-Ventures, and William Hall; it listed as lessees C.E. Berg-land, K.C. Bergland, William Hall, and Paul Walters (4 Due's). The lease provided in part that the 4 Due's had a right of first refusal as to any proposed sale of the Pe-tersville claims. On November 7, 1978 Add-Ventures and Alice Bergland, to whom Add-Ventures had conveyed a portion of the Petersville claim, offered Hall the Petersville property. The offer read as follows: November 7, 1978 The mining properties known as the Peters Creek Mines are hereby offered for sale to Mr. William Hall for a total price of One Million Dollars ($1,000,-000.00) by Add-Ventures, Inc. and Alice E. Bergland. The down payment is 25% ($250,000.00) and the terms are negotiable. Mrs. Bergland's property comprises 10% of the total property. s/C.E. Bergland, C.E. Bergland, President Add-Ventures, Inc. s/Alice E. Bergland Alice E. Bergland Subsequently, on November 29, 1978, Alice Bergland conveyed to Hall, by quit claim deed, her portion of the Petersville property. On March 27, 1979, Hall wrote C.E. Bergland indicating in part that he was "in a position to exercise the remainder of the purchase agreement on the Pe-tersville mining property with a down payment of $225,000 on the selling price of $900,000." Three days later, on March 30, 1979, Add-Ventures and Hall signed an escrow agreement and opened the account with an initial deposit of $100.00. Instructions accompanying the escrow agreement provided that $275,000 was to be deposited as a down payment on the purchase price. By mutual agreement the amount of the down payment was changed to $270,000. On April 5, 1979, Hall's financier, Vern Hall, arranged for a $200,000 deposit into the escrow account. Although deposited with the bank, this money was inaccessible to Add-Ventures as both the bank and Vern Hall placed restrictions on any withdrawal. On April 4, 1979, the shareholders of Add-Ventures approved the sale of the Pe-tersville claims to Hall. The relevant part of the minutes from that meeting read as follows: RESOLVED: The shareholders approve the terms for sale in Mr. Hall's letter of March 27, 1979, provided the terms are sufficient to deal with current liabilities of Add-Ventures to John Jacobsen and other bills needed to be paid. The Board of Directors is authorized to proceed with negotiations of the sale of the Peters Creek Mining Properties. Thereafter, on April 9, 1979, C.E. Bergland notified Hall of the shareholders' unanimous approval of the sale of the Petersville mining claims to him. Bergland's letter reads in relevant part: The Board of Directors and Stockholders of Add-Ventures, Inc. have approved the sale of the Peters Creek mining claims to you on the terms stated in your letter of March 27, 1979, provided there is a substantial earnest money posted to show your good faith and the payoff terms are agreed at not less than $100,-000.00 per year plus 9% interest. Due to the pressures from legal actions pending against Add-Ventures at the present time, no more than 30 days from the date of your letter can be allowed for closing of this transaction. If more than 30 days elapses from your letter of March 27, in other words, if the sale is not closed by April 28th, 1979, Add-Ventures will not be bound to sell to you and any rights you may have under the lease-option to 4-Ducs will be considered to have expired. Please advise whether this is acceptable to you. Upon receiving Bergland's letter of April 9th, while in the presence of both Bergland and an attorney, Hall wrote "received" on the letter, then signed and dated it. On April 10, 1979, the board of directors of Add-Ventures convened. During this meeting the board requested that Hall, who was present at the meeting, deposit $270,000 as earnest money, apparently forfeitable. This figure reflected the amount of money the board considered necessary to forestall the pending Jacobsen foreclosure on the Petersville claims. Hall protested the requirement of a $270,000 forfeiture deposit; in lieu, Hall offered to advance $10,000 in earnest money. Add-Ventures rejected this offer. Subsequently, on April 11, 1979, C.E. Bergland wrote Hall, informing him that the board had rejected his purchase offer "for lack of substantial earnest money." Bergland's letter stated in part: For all these reasons and many others discussed at the Board meeting which you attended, you are hereby formally notified that your offer to purchase the Peters Creek Mining Claims was rejected by the Board of Directors of Add-Ventures, Inc. on April 10, 1979 for lack of a substantial earnest money deposit; that nothing less than $270,000 (the full down payment) can be accepted as an earnest money deposit because of Add-Ventures' current financial situation and for the reason stated at the Board meeting; that you will be allowed an additional grace period until 10:00 A.M. April 16, 1979, to post with Add-Ventures' attorney . an acceptable earnest money deposit, not less than $270,000, showing ability to complete your proposed purchase; and that if such earnest money is not posted by April 16, that the Board of Directors of Add-Ventures, Inc. feels that they have been more than reasonable in efforts to accomodate you, and therefore will recognize no further obligation to sell the mining claims to you on the price and terms previously discussed nor to accord you any priority of right to purchase such mining claims over any other prospective purchaser. On April 17, 1979, Add-Ventures formally notified Hall that his allowed purchase time had elapsed. Thereafter Hall made repeated attempts to "close the deal" as to the Petersville mining claims. Hall had secured another financier, Frank Coluccio, willing to put up $270,000 or whatever amount was needed to close, but Add-Ventures subsequently rejected all offers. As indicated at the outset, after a non-jury trial the superior court concluded that Hall was not entitled to specific performance of his alleged contract to purchase the Petersville mining claims. The superior court's rationale for its holding was: That the parties engaged in numerous negotiations, changes, and modifications of terms and conditions related to sale of the Peters Creek mining claims. That on April 10, 1979 at the Board meeting attended by the defendant William F. Hall, all parties agreed to enter into a contract of the sale of said mining claims on the condition that the defendant William F. Hall would deposit the sum of $270,000 into the escrow account at Security National Bank on or before Monday, April 16, 1979 at 10:00 A.M. This agreement between the parties constituted a condition precedent of a necessary and essential condition to the formation of the bilateral contract to purchase said mining claims. The defendant William F. Hall and his partner Paul Walters failed to perform that condition on time. Accordingly, the court finds that no contract was entered into between the parties and there exists no equitable grounds in favor of the defendants Hall and Walters that would permit this court to grant a request for specific performance. II. Specific Performance Hall argues that a binding contract for the purchase of the Petersville mining claims was entered into entitling him to specific performance against Add-Ventures. Add-Ventures argues that the requisite contractual elements of intent, acceptance, and essential terms áre lacking, thus precluding finding that anything other than negotiations had taken place. Alternatively, Add-Ventures argues that even had a contract existed, Hall's prospective inability to perform excused Add-Ventures from performance. A. Statute of Frauds and Hall's Alleged Prospective Inability to Comply With Any Contract of Sale. 1. Statute of Frauds AS 09.25.010(a) provides in relevant part: In the following cases and under the following conditions an agreement, promise, or undertaking is unenforceable unless it or some note or memorandum of it is in writing and subscribed by the party charged or by an agent of that party: (6) an agreement for leasing for a longer period than one year, or for the sale of real property, or of any interest in real property, or to charge or encumber real property; . Assuming an agreement for the sale of the Petersville mining properties was reached between Add-Ventures and Hall, the contract would then come within the statute of frauds. Hall argues that the contract provides a reasonably definite written description as to all terms, thereby satisfying the statute. Add-Ventures claims that the documents upon which Hall relies are to uncertain to constitute an agreement under the statute. Specifically, Add-Ventures claims that the documents fail to delineate which mining claims Hall was to purchase. When a contract is subjected to a statute of frauds claim, "extrinsic evidence may be received to show the application of the terms of the description given in the memorandum, but not to supply missing elements without which the description is hopelessly defective." In the case at bar, the question does not concern a missing element but rather indefinite description. Review of the extrinsic evidence in this case reveals that the Petersville mining claims listed in Bergland's April 9, 1979 letter and in Hall's earlier March 27, 1979 letter refer to the same claims described in Exhibit A accompanying the July 1978 lease between Add-Ventures and Hall (4-Duc's). No indication exists that either party referred to different property or intended a different description. Thus, we conclude that if the parties reached an agreement for the sale and purchase of the Petersville mining claims, such contract is not invalid under the statute of frauds. 2. Hall's Alleged Inability to Comply With Any Contract of Sale. Again, assuming the existence of a contract, Add-Ventures asserts that Hall's prospective inability to perform discharged Add-Ventures' duty to perform. Add-Ventures claims that during the board meeting of April 10, 1979 it became clear that Hall was insolvent; he did not have the money to pay the $270,000 down payment and he did not know how he would get it. The uncontested facts in the instant case are that Hall had arranged a $200,000 deposit to the escrow account established by Add-Ventures and Hall on March 30, 1978 and that he had offered Add-Ventures a $10,000 forfeiture deposit on April 10, 1979. In our view, these facts in themselves are sufficient to establish that Hall was not actually insolvent at any time in question. Although Add-Ventures may have suspected that Hall was insolvent, mere doubt as to the other party's solvency does not justify repudiating the contract. B. Contract Formation It is generally held that specific performance is an equitable remedy, the granting or withholding of which rests in the discretion of the trial court. Stenehjem v. Kyn Jin Cho, 631 P.2d 482 (Alaska 1981); Hitz v. Property Investments, Inc., 368 P.2d 929 (Alaska 1962). The granting of specific performance presumes the existence of a valid contract. In his treatise on Contracts, A. Corbin writes: . A court cannot enforce a contract unless it can determine what it is. It is not enough that the parties think that they have made a contract; they must have expressed their intentions in a manner that is capable of understanding, it is not even enough that they have actually agreed, if their expressions, when interpreted in the light of accompanying factors and circumstances, are not such that the court can determine what the terms of that agreement are. Vagueness of expression, indefiniteness and uncertainty as to any of the essential terms of an agreement, have often been held to prevent the creation of an enforceable contract. In Stenehjem v. Kyn Jin Cho we observed that: [TJhese statements are tempered by language in the same section encouraging courts to give legal effect to the intentions of the parties where necessary to reach a fair and just result. [1 A. Cor-bin, Contracts § 95, at 400] . Similarly, Restatement (Second) of Contracts § 32(2) (Tent. Drafts 1-7, 1973) provides, "The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy." We have adopted this method of analysis in the past, and a review of the factual situations presented to the court is important to an understanding of the principles involved. Hall contends that all documents relevant to the purchase contract, viewed as a whole, evince the essential terms of a binding contract. Add-Ventures argues that no specific designation existed and thus the description "Peters Creek mining claims" is too uncertain to be enforceable, particularly because problems of title existed as to several of the individual claims. Our previous discussion of, and holding relating to, the statute of frauds is disposi-tive of this issue. Here, the property offered to Hall was described as the "Peters Creek mines." The record shows that Bergland understood that the November 7, 1978 offer conveyed all of Add-Ventures' Peters Creek claims. Also, Add-Ventures admitted in its answer to Hall's counterclaims that the offer was for the mining claims described in Exhibit A of Add-Ventures' quiet title complaint. Given this extrinsic evidence, we conclude that the property designated for sale was described with "reasonable definiteness." We now turn to the most significant aspect of this appeal, namely, whether an enforceable contract was formed by the parties. In our view, Kodiak Island Borough v. Large, 622 P.2d 440 (Alaska 1981) is relevant to the resolution of this contract formation issue. That case involved an action for specific performance of a municipal land-sale contract. The Borough claimed that the writings did not possess the requisite certainty of terms of a specifically enforceable contract. The language of the Borough's offer read as follows: The Assembly has authorized this office to negotiate a sale for the 4.22 acres of land for a price of $10,550.00. This would be $2,500 per acre. Please be advised that you should notify this office within ten days, or by September 25, 1975, if you wish to accept this proposed sale price. Id. at 447. The language of the acceptance, dated September 24, 1975, read as follows: I accept the price of $10,550.00 for the 4.22 acres of land that you suggest in your letter 15 September, 1975. I note that you say you have the power to negotiate, which I presume means to discuss and agree upon the mode of payment. I propose a down-payment of ten percent (or $1,000) and propose the payment of the balance over a term of ten years at six percent (6%) interest on the unpaid balance. Please notify me of a convenient time that we may meet to finalize this matter. Id. In Large we stated that: [I]t is clear that the offer constituted an invitation to contract, as opposed to mere preliminary negotiations, despite its paucity of terms. As Professor Williston states: Where the property to be sold is accurately defined and an amount stated as the price in a communication made, not by general advertisement, but to one person individually, no reasonable interpretation seems possible except that the writer offers to sell the property described for the price mentioned. [Footnote omitted]. Thus, to determine whether an enforceable contract has been created, it is necessary to evaluate the nature of Large's reply to the offer. If the reply is a valid acceptance, an enforceable contract would be created. If the terms suggested by Large constitute a condi tional acceptance, it would be a counteroffer and thus a rejection of the original offer. However, when the acceptance of the offer is initially unconditional, the fact that it is accompanied by a request or a direction looking to the performance of the contract does not render the acceptance ineffective nor give it the character of a counter-offer so long as it does not limit the contract. Here, Large unequivocally accepted the Borough's offer. The fact that the assent was accompanied by a suggestion as to terms of payment, a detail not inconsistent with the Borough's offer, did not convert it into a counter-offer.... Large's reply was an unconditional assent which did not materially depart from the offer [footnotes omitted]. Adopting an analysis similar to that employed in Kodiak Island Borough v. Large, we conclude that an enforceable contract was created in the instant case. On November 28, 1978, Add-Ventures and Alice E. Bergland offered the subject properties specifically to Hall for $1,000,000 with a down-payment of $250,000. On March 27, 1979 Hall wrote to C.E. Berg-land, the president of Add-Ventures, saying that he was in a position to purchase the remaining Petersville properties for $900,-000 with a down-payment of $225,000. Then on March 30, 1980, Add-Ventures and Hall signed an escrow agreement which provided for a down payment of $275,000 on a purchase price of $900,000 with the balance to be secured by a deed of trust and the remaining payments to be not less than $100,000 annually. Also of significance is the fact that on April 4, 1979 the stockholders approved the sale of the Pe-tersville claims to Hall on the terms of Hall's March 27, 1979 letter. We therefore conclude that Add-Ventures' offer of November 28, 1978, Hall's letter of March 27, 1979, and the agreed upon escrow terms of March 30, 1979 together constitute an enforceable contract. G. Remedy The question remains whether Hall's failure to deposit the full $270,000 down payment into the escrow account by April 16, 1979, was a breach of a condition of timeliness which could justify Add-Ventures' repudiation of the contract. There is no indication of a specific time limit in the writings which we have held comprise the contact. Where no provision is made as to time of performance, a reasonable time is implied, to be determined upon consideration of the subject matter of the contract, what was contemplated at the time the contact was made, and other surrounding circumstances. Ordinarily, what constitutes a reasonable time is a question of fact for the trial court. If, upon remand, the superior court determines that no time was agreed upon in the contract for deposit of the $270,000, it should determine whether Hall exceeded a reasonable time limit by failing to complete the down payment deposit by April 16, 1979. REVERSED and REMANDED. . The parties and issues involved in the quiet title action were both numerous and complex. The superior court's holding that no contract was formed and denial of specific performance to Hall are the only issues decided by the superi- or court that any of the parties have appealed. . Hall, in turn, signed a deed of trust and a trust note. . Hall's acceptance was explicitly contingent upon the following terms and conditions: (1) That, the two law suits by Mr. Jacobsen against Add-Ventures, Inc. be dismissed with prejudice. (2) That the deed of trust foreclosure by Mr. Jacobsen against Add-Ventures, Inc. be terminated. (3) That any other claims by Mr. Jacobsen against Add-Ventures, Inc. pertinent to the mining property in question be released. (4) Then it is understood that the various releases and dismissal of the law suits will be executed at the time of closing of the purchase escrow, bringing all payments current on the property, plus interest, costs, and reasonable attorney's fees incurred, and payment of all liens against the property. . The special escrow instructions which were part of the escrow agreement provided as follows: SPECIAL ESCROW INSTRUCTIONS— PROPERTY PLACED IN ESCROW $100 ck#815 from William F. Hall to open escrow account— escrow to receive approx. $275,000 to disburse in payment of purchase price on Peters Creek mining claims for $900,000. Balance to be secured by Deed of Trust payable at $100,000 per year due on June 1 of 1980 and payable on the 1st business day after January 1, 1981 and each year thereafter until paid in full. —Deed, Deed of Trust & Note to be escrowed. Release of Liens for DOWL Engineers & La-Valde Renshaw Stipulations for Dismissal of 2 lawsuits Ja-cobsen vs Add-Ventures. . The balance of Bergland's letter of April 11, 1979, reads as follows: Pursuant to direction of the Board of Directors of Add-Ventures, Inc. in a meeting on April 10, 1979, which you attended at my invitation, this letter is to formally advise you of the action of the Board of Directors on your proposed purchase of the Peters Creek Mining Claims. Since you were present at the meeting, I need not repeat all of the considerations which entered into the Board's conclusion and resolution to reject your offer to purchase the Peters Creek Mining Claims. Suffice it to say that after more than five months of waiting for you to arrange your financing for the purchase, with many pressures of litigation and creditors in the meantime and substantial expenditures of time and money to protect the propertys [sic] that you could complete your proposed purchase, that a closing date was set for April 3 with your full knowledge and concurrence, and that you were unable to perform your part of the bargain on April 3 and the closing had to be postponed; that another closing date has now been set for April 17, two weeks later, and it does not now appear that you are currently in any better position to complete the closing by that date; that due to the pressures of litigation and the possibility that Add-Ventures may be enjoined from selling the property unless the settlement agreement with Mr. Jacobsen can be completed (which is dependent on your closing by the 17th of April), that Add-Ventures is in a position of substantial risk and exposure to loss which has been at least in part caused by your prolonged inability to perform your part and complete the purchase of the property, and that Add-Ventures is simply not in a position to wait any longer and must begin to look for alternative financing or for an alternative purchaser of the property. . [Deleted ¶ quoted in text] In other words, you have until April 16, 1979 at 10:00 A.M. to raise the money to complete the purchase. Otherwise, all deals are off. You should also be aware that I will be making every effort in the meantime to arrange alternative financing either on a short-term or long-term basis, and will be contacting stockholders and others for a loan to the company or other financing arrangements in order to raise the required funds to protect Add-Ventures' interests in the property. And, if I am successful in any of these efforts, that we will expect you to live up to your commitment, stated to the Board of Directors at the meeting on April 10, 1979, to increase the purchase price and down payment accordingly- Best of luck. We hope to see you succeed. But the purchase must be completed by the first of next week. . In Custis v. Valley Nat. Bank of Phoenix, 92 Ariz. 202, 375 P.2d 558, 561 (1962) the court stated that in order to satisfy the statute of frauds the contract must include "the identity of the buyer and seller, the price to be paid, the time and manner of payment, and the property to be transferred, describing it so it may be identified." . Mitchell v. Land, 355 P.2d 682, 685 (Alaska 1960). . Insolvency is "not a conclusive factor" of prospective inability and "does not in itself discharge the other party from further duty" A. Corbin, Corbin on Contracts § 1263, at 1022. See also Restatement (Second) of Contracts § 252 (1981). . Formation of a contract requires an offer, encompassing all essential terms, an unequivocal acceptance by the offeree of all terms of the offer, consideration, and intent to be bound by the offer. S. Williston, Williston on Contracts, (Third Edition) § 64, at 211, § 72, at 235, § 73, at 238 (1957). Where acceptance is conditional, altering material terms of the offer, a counteroffer results. In such event, the original offeror becomes the offeree to whom power of acceptance transfers; formation of a contract in this circumstance requires unconditional assent to the counter-offer. At any time prior to acceptance, however, the power of acceptance can be revoked by the offeror. A. Corbin, Corbin on Contracts § 38, at 61, § 82, at 130 (1952). . 1 A. Corbin, Contracts § 95, at 394 (1963). . Stenehjem v. Kyn Jin Cho, 631 P.2d 482, 485. . It is well established that to be specifically enforceable a contract must be reasonably definite and certain as to its terms. Hollaus v. Arend, 511 P.2d 1074, 1075 (Alaska 1973); Rego v. Decker, 482 P.2d 834, 838 (Alaska 1971); Lewis v. Lockhart, 379 P.2d 618, 622 (Alaska 1963); Alaska Creamery Products, Inc. v. Wells, 373 P.2d 505, 510 (Alaska 1962). Where uncertainty of terms is alleged, the general view is that contracts are to be interpreted so as to "give effect to the reasonable expectations of the parties, that is, to give effect to the meaning of the words which the party using them should reasonably have apprehended that they would be understood by the other party." Craig Taylor Equipment Co. v. Pettibone Corp., 659 P.2d 594, 597 (Alaska 1983). Determining the "reasonable expectations" of contracting parties is assessed through reference to "the language of the disputed provision, the language of other provisions of the contract, and relevant extrinsic evidence." Mitford v. De Lasala, 666 P.2d 1000, 1005 (Alaska 1983). . Kodiak Island Borough v. Large, 622 P.2d 440, 447-48 (Alaska 1981). . The November 28, 1978 offer to Hall indicated that Alice E. Bergland owned 10% of the properties comprising the land subject to the offer. Between the November 28, 1978 offer and Hall's letter of March 27, 1979, Hall had entered into a purchase agreement with Alice Bergland for her separate share of the properties. . The superior court held that no enforceable contract was entered into because, as a result of the April 10, 1979 meeting of the Board of Directors of Add-Ventures, the sale of the Pe-tersville mining properties was made conditional upon Hall's depositing the sum of $270,000 in the escrow account on or before 10:00 a.m. April 16, 1979. The superior court's reliance upon a condition precedent rationale is inappropriate since an enforceable contract was entered into by the parties prior to the April 10, 1979 meeting of the Board of Directors. . Neither párty has briefed the question of the time contemplated for performance of the $270,000 deposit. . Stewart v. Cunningham, 219 Kan. 374, 548 P.2d 740, 745 (1976); Smith v. Smith, 4 Wash.App. 608, 484 P.2d 409, 411 (1971); City and County of Honolulu v. Kam, 48 Hawaii 349, 402 P.2d 683, 687 (1965); Shull v. Sexton, 154 Colo. 311, 390 P.2d 313, 316 (1964). . Dutch Inns of America, Inc. v. Horizon Corp., 18 Ariz.App. 116, 500 P.2d 901 (1972). . If, upon remand, it is determined that no breach of a condition of timeliness occurred, and that Hall is entitled to specific performance, the superior court should then: grant Hall a reasonable time within which to comply with the contract payment terms, and, if necessary, require an accounting in order to determine the respective rights and obligations of the parties under the contract.

7269432

Adam SAGERS, Appellant, v. Colleen SACKINGER, Appellee

Sagers v. Sackinger

2014-02-14

No. S-14843

860

867

318 P.3d 860

318

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:13:56.271734+00:00

CAP

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

Adam SAGERS, Appellant, v. Colleen SACKINGER, Appellee.

Adam SAGERS, Appellant, v. Colleen SACKINGER, Appellee. No. S-14843. Supreme Court of Alaska. Feb. 14, 2014. Adam Sagers, pro se, Fairbanks, Appellant. Margaret O'Toole Rogers, Foster & Rogers, LLC, Fairbanks, for Appellee. Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.

4030

25167

OPINION MAASSEN, Justice. I. INTRODUCTION Adam Sagers appeals the superior court's award of physical and legal custody of his minor son to the boy's mothér, Colleen Sack-inger. Adam contends that the superior court abused its discretion in denying a continuance of trial, that it clearly erred in its factual findings, and that it abused its discretion in conditioning unsupervised visitation on Adam's completion of a psychological evaluation. Adam also contends that the trial judge was personally biased against him. Finding no error, we affirm the judgment below. II. FACTS AND PROCEEDINGS Adam Sagers and Colleen Sackinger are the parents of a five-year-old son. Colleen has two other children with her husband, Joseph Sackinger, from whom she is separated. Adam and Colleen began living together in 2006. Adam exhibited controlling tenden-cles from the start; he called Colleen derogatory names, limited her contacts with male acquaintances, and harassed her at work. In one incident he cut all the telephone and computer cords in the home after seeing a picture of a male friend on Colleen's computer. Following another argument in 2007, Colleen, fearing for her safety, tried to leave the home with her children. Adam blocked the doorway, forcing her to push him out of the way. She fled to a women's shelter. Adam ransacked the home in her absence, destroying household items and nearly all of Colleen's personal property. He collected everything belonging to her that he considered to be sexual in nature and burned it in the front yard. In May 2007 Colleen learned she was pregnant. Adam moved back in with her in January 2008. He took care of Colleen during the remainder of her pregnancy but refused to leave after their son was born. In May 2008 Colleen obtained a domestic violence restraining order against Adam and ejected him from her home with the assistance of the police. Adam filed this suit shortly thereafter, seeking custody of their son. Trial was originally set for June 2009. The court continued trial until February 2010 to allow Adam to address what he claimed to be a life-threatening lung condition. The parties twice more continued trial by stipulation before setting the date for February 2011. The court then continued the trial three times pending the resolution of Adam's criminal domestic violence case. The court granted a last continuance, to June 2012, when Adam asserted that he needed a hernia operation. At the pretrial conference at the end of May 2012, Adam requested another continuance on grounds that he was recovering from pneumonia. The court refused to grant the continuance without testimony from a doctor. On the day trial was to begin, Adam presented a note from a physician's assistant, who wrote that Adam suffered from a "serious medical condition" which "should preclude his court activity for at least one week." The court refused to continue the trial without medical testimony that it was necessary to do so. The physician's assistant testified tele-phonically that Adam had recently had pneumonia, and that as of the preceding Friday he still had symptoms indicating that he was not yet fully recovered. The court also heard from Colleen, who testified that, according to her son, he and Adam had been bike-riding all day the day before and had then gone to "the go-carts in North Pole" until late in the evening. The physician's assistant testified that given Adam's condition it would have been inappropriate for him to engage in vigorous activity, and that if he was able to bicycle with his son he should be able to participate in court proceedings. The court then made an oral finding that Adam was exaggerating the effects of his pneumonia. The court nonetheless granted Adam a 24-hour continuance to recover-his seventh continuance. The next day Adam appeared in court unable or unwilling to speak and communicated by passing notes to the court,. The court reiterated its finding that Adam's claims of illness were not credible. After the court declined to communicate with Adam through note-passing, trial began with Adam initially refusing to speak. Before long he regained enough of a voice to restate requests that the judge recuse himself and to make other objections that had already been overruled, and he repeatedly coughed into the microphone in what the court found to be an attempt to disrupt testimony that harmed his case. When he left the courtroom a few times to "get some air," trial proceeded in his absence, the court having warned him about the consequences and then reiterating for the record its finding that Adam was faking the extent of his illness. Less than two hours into the trial, Adam gathered his things and left the courtroom for the rest of the day; the trial continued without him. The next morning Adam filed a motion for reconsideration of the court's ruling that he was faking his illness. The court denied the motion, reiterating its findings that Adam appeared able to speak despite his claims to the contrary, that his cough seemed to occur selectively, and that his weekend recreational activities belied his condition. Adam again left the courtroom and did not return. As trial continued, the court heard testimony from the court-appointed custody investigator, counseling center officials who had interviewed the family members, and Colleen, all of whom testified that Adam was abusive, unstable, and controlling. The Office of Children's Services (OCS) had referred Adam and Colleen to Fairbanks Counseling and Adoption, and one of its counselors, Randy Lewis, testified as an expert in diagnosing and treating mental health conditions. He testified that he had provisionally diagnosed Adam with oppositional defiant disorder and definitively diagnosed him with narcissistic personality disorder, and that these behavioral disorders impeded Adam's parenting ability. The custody investigator, Greg Galanos, was qualified as an expert in custody investigations and mental health issues. He reviewed the counselor's notes and testified that the identified disorders would make it difficult for Adam to co-parent with Colleen and would impede his ability to recognize and attend to the needs of their son. Galanos and a program manager at Fairbanks Counseling and Adoption, Linda Huffaker, both testified about Adam's history of domestic violence. Galanos testified that Adam should undergo a complete psychological evaluation, and he recommended that Adam should receive only short, supervised visitation until that was done. Colleen testified about the abuse described above. Based on this testimony the superior court found that Adam had a history of domestic violence that triggered the statutory presumption against awarding him custody, citing the incidents in which he cut the computer and telephone cables in the home, blocked the doorway, and destroyed Colleen's personal property. The court granted Colleen sole legal and primary physical custody and granted Adam supervised visitation two days each week, three weeks out of every month, for four to six hours each visit. The court also ruled that Adam would be eligible for unsupervised visitation only after he had completed a psychological evaluation. Adam appeals the court's denial of his motions for continuance, its award of eustody to Colleen, its requirement that he complete a psychological evaluation before being allowed unsupervised visitation, and its denial of his motion that the judge recuse himself. III. STANDARD OF REVIEW We "will not disturb a trial court's refusal to grant a continuance unless an abuse of discretion is demonstrated. An abuse of discretion exists when a party has been deprived of a substantial right or seriously prejudiced by the lower court's ruling. The court will consider "the particular facts and circumstances of each individual case to determine whether the denial was so unreasonable or so prejudicial as to amount to an abuse of discretion." "The superior court has broad discretion in its determination of child custody. We will not set aside a lower court's child custody determination unless its factual findings are clearly erroneous or unless it abused its discretion." We will set aside factual findings as clearly erroneous "only 'when our review of the entire record leaves us with a definite and firm conviction that a mistake has been made.'" We will find an abuse of discretion for custody and visitation decisions "if the trial court considered improper factors, or improperly weighted certain factors in making its determination." We review de novo the question of whether a judge appears biased, which is assessed under an objective standard. We review for an abuse of discretion the denial of a motion to disqualify an allegedly biased judge. IV. DISCUSSION A. The Superior Court Did Not Abuse Its Discretion When It Denied Adam's Request To Continue The Trial Because Of Illness. We have stated that a party's claimed illness "does not ipso facto require that a continuance be granted"; the trial court must balance the "competing goals [of] prompt resolution of litigation on [the] one hand, and a fair opportunity for all parties to present their cases on the other." Under this test a party's illness requires a continuance "only to the extent that the illness prejudices the party's case by preventing him from adequately preparing for or participating in trial." Thus, it was not enough in this case for Adam to show that he was sick or even that a medical professional thought it best that he not attend trial; a superior court does not abuse its discretion when it orders a sick litigant to proceed with trial if the litigant is "capable of participating in trial without serious risk to his life or well-being." Adam argued that his in-court symptoms and the testimony of the physician's assistant who had treated him showed that he was unable to participate in trial But the witness's testimony failed to establish Adam's claim for two reasons. First, although the physician's assistant had originally recommended that it would be "better if [Adam] had a week to recover from pneumonia," he never stated that courtroom activity would pose a serious risk to Adam's health. And second, he modified his original recommendation after hearing that Adam had gone bicycling the day before, testifying that if Adam was able to do that, he should be able to participate in the trial as well. Furthermore, even if the medical testimony had unequivocally supported Adam's claim, it is the superior court's task to weigh the evidence, and we give particular deference to the trial court's rulings based on the demeanor of witnesses. The trial judge in this case, Judge Paul R. Lyle, carefully and repeatedly described for the record his contemporaneous observations of Adam's appearance, conduct, and demeanor; this record greatly aids our appellate review of the issue. In concluding that Adam was feigning the symptoms of his illness, Judge Lyle noted that Adam's demeanor was no different than on days when he was well; that Adam appeared able to speak when he really wanted to, despite his note-passing; and that he coughed only during testimony that was damaging to his case. Judge Lyle also ered-ited Colleen's testimony that Adam was able to speak in a normal voice outside the courtroom. We see no clear error in the judge's finding that Adam's claim of serious illness was not credible, and we therefore conclude that there was no abuse of discretion in the court's refusal to continue the trial yet again on the basis of that claim. B. Adam Has Waived The Argument That The Superior Court Erred In Failing To Order Further Discovery From Colleen. Adam argues that his discovery rights were violated because Colleen never provided "any admission, productions, or any expert reports," specifically "any statement or diagnosis by the Fairbanks Counseling and Adoption, Randy Lewis, Linda Huffaker, or OCS regarding Mr. Sagers." Adam does not identify when he requested this information, the efforts he took to obtain it in the superior court, or how the alleged lack of disclosure affected his preparation for trial. We do not ordinarily address arguments that are cursorily briefed. Adam's allegation of discovery abuses is too vague for review, and we consider it waived. C. The Superior Court Did Not Abuse Its Discretion In Awarding Colleen Custody. Adam argues that the superior court abused its discretion in granting custody to Colleen because it based its decision "on false pretense with no physical or factual proof." To the contrary, the superior court based its decision on testimony by an OCS employee, family counselors, a child custody investigator, and Colleen. Adam's decision not to give testimony rebutting Colleen's case was his own decision, made against the strong advice of the superior court that he make an effort to support his position. The superior court addressed each of the best interests factors in its written decision, and its findings of fact were based on the evidence and not clearly erroneous. 1. Evidence of Adam's behavioral issues and abuse Adam argues that the superior court clearly erred in finding that he had behavioral disorders and a violent past. Specifically, he attacks the superior court's reliance on the testimony of Galanos, the custody investigator, arguing that Galanos lacked "[clonerete evidence to support what he said was true." But the court did not clearly err in finding otherwise. Galanos met several times during his investigation with Adam, Colleen, and their son. He reviewed the records kept by OCS and the family's counselors. He was qualified as an expert in child custody recommendations and mental health issues. He based his recommendation on his in-person interactions with the parties, his review of relevant documents, and his expertise. His testimony was probative of the parties' relative parenting abilities and the court did not err in considering it. Adam also argues that the superior court erred in crediting the testimony of employees of Fairbanks Counseling and Adoption. When Galanos cited the center's records as evidence of Adam's behavioral issues, Adam objected on the ground that "I never spoke to them ever onee. They don't know who I am." But even if Adam's unsworn factual assertion-made in the context of a spoken objection-was sufficient to create a factual dispute as to the veracity of the counselors' testimony, the superior court did not clearly err in finding that Adam had been seen by the center. Both counselors testified that they had personally met with Adam, and they provided details of the timing and duration of their visits. Huffaker testified that the center had recorded 62.75 hours of in-home consultation with Adam and Colleen in late 2006 and early 2007. Lewis confirmed that he had met with Adam twice in February 2007. The superior court found the counselors' testimony to be generally "credible and persuasive." It did not clearly err when it chose to eredit the sworn testimony of the two counselors over Adam's unsworn denial that the counseling had ever occurred. Adam also appears to argue that the superior court clearly erred in ignoring the testimony of Dana Pictou, a clinician at a behavioral health clinic. Pictou testified at an earlier proceeding in 2008 that Adam had once sought help from Pictou's clinic for dealing with his grief after witnessing a fatal accident. According to Adam, Pictou testified that psychiatrists at the clinic found him to be "stable and normal." But in fact Pictou merely testified that Adam had consulted with two other psychiatrists at the clinic and that neither recommended any continuing course of anxiety medication. He did not testify that Adam was "stable and normal," as Adam contends. The superior court did not clearly err when it failed to cite this ambiguous, four-year-old testimony as evidence of Adam's mental stability, especially given the overwhelming and contemporaneous evidence that Adam continued to have serious mental health issues. 2. Evidence of violence and substance abuse in Colleen's household Adam also argues that the superior court abused its discretion by not considering "all issues [regarding the child's] safety with Colleen Sackinger and Joseph Sackinger." We again find that the superior court did not abuse its discretion and adequately considered the relevant facts. Adam first contends that the superior court ignored issues of violence in the Sack-inger household. But although the superior court did not discuss the specific allegations of domestic abuse, it did acknowledge that Colleen had once obtained a short-term domestic violence restraining order against Joseph; it found that Colleen had attended counseling and support groups to deal with her history of abusive relationships and had thus "obtained the protective capacity she needs to recognize potential domestic violence and to be a protective parent for her children"; and it found that Joseph had sue-cessfully co-parented his other children. The court further observed that OCS considered Joseph to be "a safe placement" and that there was no evidence he was "presently a danger to his children." Given the careful consideration the superior court gave to this issue and given its resultant findings of fact, we see no abuse of discretion in the way it weighed the domestic violence in Colleen's past. Adam further argues, mistakenly, that the superior court "totally ignored" Colleen's past drug use. The superior court acknowledged that Colleen used drugs in the past, but it also cited testimony that she was in "full remission" and that she did not "presently halve] either a drug or aleohol problem." Both Galanos and Colleen testified to that effect, and it was not clear error for the superior court to credit their testimony. Adam also argues that the court erred by ignoring testimony from 2009 that Colleen had attacked him in front of their son. Adam apparently refers to the 2008 testimony of a neighbor who witnessed an argument between Adam and Colleen. But the log notes from that earlier hearing indicate that while the neighbor saw both parties shouting at each other, he "did not witness any physical stuff," nor did he "see anybody hit anybody." Even if Adam had relied on this testimony during the custody trial-and he does not claim that he did-it would not have been clear error for the superior court to reject it as evidence of domestic violence perpetrated by Colleen against Adam. Adam appears to argue in addition that the superior court erred in concluding that the domestic violence presumption against custody applied to him, because in a hearing held after the custody trial Colleen admitted that Adam had never physically assaulted her. But if Adam hoped to attack the validity of the custody order based on newly discovered evidence, the proper means for doing so was through a motion for either a new trial under Alaska Civil Rule 59 or relief from judgment under Alaska Civil Rule 60(b). This court will not weigh new evidence in the first instance. Any such motion would likely have been futile in any event; a successful post-judgment attack based on newly discovered evidence must present evidence that was not available at the time of trial, and Colleen was present and testified at trial. Adam did not cross-examine her because he had voluntarily absented himself from the proceedings. The superior court did not err in its application of the statutory presumption against Adam. D. The Superior Court Did Not Abuse Its Discretion By Requiring That Adam Undergo A Psychological Evaluation Before Having Unsupervised Visitation. Adam takes issue with the superior court's requirement that he undergo a psychological evaluation before he is allowed to have unsupervised visitation with his son. While not directly refuting the reasons for this requirement, Adam contends that the superior court showed bias when it failed to impose a similar requirement on Colleen. This argument is without merit for two reasons. First, Colleen had already undergone a psychological evaluation voluntarily, after the custody investigator recommended that each parent have one. Adam refused. Second, the court's other findings about the parents' relative capacities to care for their son justified the court's continued concern. The superior court found that Adam was likely to surround his son with "an atmosphere of conflict, paranoia, upset, anger[,] and stress if [he did] not obtain mental health treatment," whereas the court credited Galanos's testimony that there were "no concerns about Ms. Sackinger's capability or willingness to meet[] [the child's] needs." The court's imposition of this condition on Adam, and not on Colleen, was well supported by the evidence and not an abuse of discretion. E. The Judge Did Not Abuse His Discretion By Denying The Motion To Disqualify Him. Finally, Adam argues that Judge Lyle should have disqualified himself because of his obvious bias against Adam, citing the judge's failure to order further discovery from Colleen, his finding that Adam was faking the symptoms of his illness, and his reliance on Galanos's testimony - about Adam's mental health. Having made several unsuccessful attempts to recuse Judge Lyle before trial, Adam made another oral request in the midst of trial, apparently in response to the judge's repeated observations that Adam was feigning his illness and the judge's admonition that trial would continue regardless of whether Adam remained in the courtroom. - But "[dlisqualification was never intended to enable a discontented litigant to oust a judge because of adverse rulings made." Mere evidence that a judge has exercised his judicial discretion in a particular way is not sufficient to require disqualification." Having upheld the various rulings that Adam claims were the result of judicial bias, we conclude that the judge, under an objective standard, did not appear biased against Adam and did not abuse his discretion in declining to disqualify himself. v. CONCLUSION We AFFIRM the superior court's custody decision. © . The history of the parties' relationship is taken from the trial court's findings of fact following the custody trial. . Greenway v. Heathcott, 294 P.3d 1056, 1062 (Alaska 2013) (internal quotation marks and footnotes omitted). . Id. (quoting Bigley v. Alaska Psychiatric Inst., 208 P.3d 168, 183 (Alaska 2009)). . Cusack v. Cusack, 202 P.3d 1156, 1158-59 (Alaska 2009). . Id. at 1159 (quoting Millette v. Millette, 177 P.3d 258, 261 (Alaska 2008)) (internal quotation marks omitted). . Id. (quoting Millette, 177 P.3d at 261). . Griswold v. Homer City Council, 310 P.3d 938, 941 n. 6 (Alaska 2013) ("On the separate issue of whether, given the circumstances, reasonable people would question the judge's ability to be fair, the proper standard of review is de novo-because 'reasonable appearance of bias' is assessed under an objective standard.") (quoting Phillips v. State, 271 P.3d 457, 459 (Alaska App.2012)). . Greenway v. Heathcott, 294 P.3d 1056, 1062-63 (Alaska 2013) ("We review denial of a motion to disqualify a judge for abuse of discretion."). . Azimi v. Johns, 254 P.3d 1054, 1060 (Alaska 2011) (internal quotation marks and footnotes omitted). . Id. . 1d. . Millette at 177 P.3d at 261 (Alaska 2008) (quoting Ebertz v. Ebertz, 113 P.3d 643, 646 (Alaska 2005)). . See Aviation Assocs., Ltd. v. TEMSCO Helicopters, Inc., 881 P.2d 1127, 1130 n. 3 (Alaska 1994). . The superior court also ruled that Adam "waived the opportunity" to present allegations of domestic violence against Colleen "by voluntarily absenting himself from trial," an independent basis for rejecting Adam's argument on this issue. . See Millette at 261 (quoting Ebertz at 646). . See Alaska R. Civ. P. 60(b); State, ex rel. Palmer Supply Co. v. Walsh & Co., 575 P.2d 1213, 1221 (Alaska 1978). . Again, there is an alternative and independent basis for affirming the superior court's decision of this issue: Adam's claim that he never physically assaulted Colleen is irrelevant because the court's finding that he had committed domestic violence rested on the incidents in which he destroyed her property and placed her in fear of physical injury. See, eg., Stephanie F. v. George C., 270 P.3d 737, 750 n. 35 (Alaska 2012) ("Placing another person in fear of imminent physical injury 'by words or other conduct' is assault.... Assault is within the definition of 'domestic violence.'" (citing AS 25.90.010 and AS 18.66.990(3)(A))). . Wasserman v. Bartholomew, 38 P.3d 1162, 1171 (Alaska 2002)(footnote and internal quotation marks omitted). . State v. City of Anchorage, 513 P.2d 1104, 1112 (Alaska 1973), overruled on other grounds by State v. Alex, 646 P.2d 203, 208 n. 4 (Alaska 1982) (alteration and internal quotation marks omitted).

7264985

Todd CHRISTIANSON, individually and d/b/a Great Alaska Lawn and Landscaping, Inc., Appellant, v. CONRAD-HOUSTON INSURANCE, Appellee

Christianson v. Conrad-Houston Insurance

2014-02-21

No. S-14305

390

418

318 P.3d 390

318

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:13:56.271734+00:00

CAP

Before: FABE, WINFREE, and STOWERS, Justices, and EASTAUGH, Senior Justice.

Todd CHRISTIANSON, individually and d/b/a Great Alaska Lawn and Landscaping, Inc., Appellant, v. CONRAD-HOUSTON INSURANCE, Appellee.

Todd CHRISTIANSON, individually and d/b/a Great Alaska Lawn and Landscaping, Inc., Appellant, v. CONRAD-HOUSTON INSURANCE, Appellee. No. S-14305. Supreme Court of Alaska. Feb. 21, 2014. Kevin T. Fitzgerald, Ingaldson, Maassen & Fitzgerald, P.C., Anchorage, for Appellant. Thomas A. Matthews and Kenneth G. Schoolcraft, Jr., Matthews & Zahare, P.C., Anchorage, for Appellee. Before: FABE, WINFREE, and STOWERS, Justices, and EASTAUGH, Senior Justice. Sitting by assignment made under article IV, section 11 of the Alaska Constitution and Alaska Administrative Rule 23(a).

17189

109210

OPINION EASTAUGH, Senior Justice. I. INTRODUCTION When Keith Jones sued Todd Christianson for severe personal injuries Jones suffered while working for Christianson's landscaping business, Christianson tendered his defense to his general liability insurer. It did not accept his tender. It instead sent him a letter that told him he should defend himself and that discussed an exclusion for claims of employees. Christianson then began to incur defense expenses. No insurer on the policies obtained by Christianson's insurance broker, Conrad-Houston Insurance (CHI), ever defended him in Jones's lawsuit. Nearly four years after receiving the insurer's letter, Christianson sued CHI for malpractice. After conducting an evidentiary hearing, the superior court applied the discovery rule and dismissed the malpractice lawsuit because it was filed after the applicable three-year statute of limitations had run. The superior court ruled that because the insurer's letter put Christianson on inquiry notice he might have a claim against CHI, the statute of limitations had begun to run more than three years before Christianson sued CHI. Because the superior court did not clearly err and committed no legal error, we affirm. II. FACTS AND PROCEEDINGS A. Facts Todd Christianson owns and has owned a number of past and current Alaska businesses. - He incorporated Great Alaska Lawn and Landscaping (GALL) in 1992, but it was involuntarily dissolved in 2002. He started Titan Topsoil, Inc. in 1995, and started Titan Enterprises LLC in 2002. Titan Enterprises performed many of the same services GALL had performed. At all times, Christianson was the sole owner of both Titan entities. We refer to the two Titan entities collectively as "Titan." In 2008 Christianson approached Mike Dennis, an agent at CHI, and sought insurance. A different brokerage firm had obtained insurance for Christianson's businesses in 2002. Christianson later testified that when he talked to Dennis, he "was looking for complete insurance on all my commercial entities that needed insurance." He testified that he expected the broker to "get the information, find out about my business and make sure I'm covered." He asserts in his appellate reply brief that he expected CHI to obtain insurance covering "all abilities and potential liabilities" for his landscaping business. It appears that CHI understood that it was primarily responsible for obtaining insurance covering Titan. Chris-tianson admitted when his deposition was taken that he owned entities that he did not insure through CHI. But he also testified that he provided Dennis with information about GALL, titles and registration on his vehicles, and "all [his] past [commercial insurance] policies," including GALL's. CHI's Titan file included a list of vehicle registrations; the file listed at least two vehicles registered to GALL, including the truck pertinent here. CHI knew when the insurance was placed that Christianson's business used a piece of equipment known as a hydroseeder or hydromuleher. We refer to it here as a "hydroseeder" for consistency with the superior court decision we are reviewing. CHI obtained three policies insuring Titan: a workers' compensation policy from AIG, a general liability policy from Great Divide Insurance Company, and an auto policy from Cascade National Insurance Company. The three policies took effect in April and May of 2008. Christianson was an insured under the two liability policies. Keith Jones was an employee of Titan. In June 2008 Jones was severely injured in a work-related accident with the hydroseeder being used by Titan. The hydroseeder was owned by GALL, but was "on loan" to Titan. It was mounted on a truck most recently registered to GALL. Because GALL's assets were subject to a federal tax lien at the time, Christianson had not transferred them to Titan. Titan reported the accident to CHI, and Titan's workers' compensation insurer, AIG, was notified. AIG then provided workers' compensation benefits to Jones. On September 14, 2004 Jones filed a personal liability lawsuit against the manufacturer of the hydroseeder (Bowie Industries, Inc.) and Christianson individually and doing business as GALL. Titan was not a defendant. As to Christianson, the lawsuit alleged negligence in transferring the hydroseeder to Titan, loaning a defective hydroseeder to Titan, making modifications to the hydroseeder that contributed to its defects, and failing to warn Jones of the inherent dangers involved in operating the machinery. - Christianson contacted his lawyer, and Christianson's defense in Jones's personal injury claim was tendered to Titan's general liability insurer, Great Divide. Great Divide replied to the tender by letter dated September 24, 2004. The letter was addressed to Christianson and Titan; it stated that Great Divide was investigating the claim and that, in the interim, Christian-son would have to file an appropriate response to Jones's lawsuit and pay for his own defense. The letter stated that should Great Divide determine that it did have a duty to provide coverage or a defense, Christianson would be reimbursed for the reasonable fees and costs of his defense. The letter then referred to and quoted the policy's exelusion of coverage for claims of bodily injury to an employee of the insured. The letter stated that "[slhould it be determined or confirmed through the investigation that Keith Jones was an employee of Titan Enterprises, LLC . at the time of the incident, Great Divide Insurance Company may refuse to defend or indemnify you for this matter." Although Great Divide did not then, or ever, agree to defend Christianson or reimburse his defense costs with respect to the Jones lawsuit, the letter asserted that Great Divide was reserving all its rights under its policy. Christianson soon began personally incurring legal fees in defending himself in the Jones lawsuit. In March 2006, about 18 months later, Great Divide sent Christianson a letter denying coverage and filed a complaint in federal court seeking a judgment declaring that its policy did not cover Christianson for Jones's claims. In November 2006 Dennis's deposition was taken in Great Divide's declaratory judgment action. Dennis took CHI's Titan file to the deposition and agreed that it contained a list of vehicle registrations that Dennis would use "to create an application with." Dennis also testified that if Christianson was using GALL vehicles in his Titan business, CHI should have told Christianson to register them to Titan. He agreed that auto coverage listing only Titan as an owner might well exelude liability coverage for GALL. Asked whether, because some of the vehicles appeared to be owned by GALL, CHI attempted to make sure GALL was an insured, he answered, "no." The Jones personal injury trial was scheduled to begin in August 2007. In March 2007 Christianson tendered defense of the Jones lawsuit to Titan's auto insurer, Cascade National. In July 2007 the federal court declared that Great Divide's policy did not cover Jones's claims against Christianson. That same month, Christianson tendered his defense in Jones's personal injury lawsuit to CHI. CHI declined the tender. In October Cascade National, the auto insurer, filed a declaratory judgment complaint against Christianson; in November Caseade National obtained a declaration of no coverage. The Jones personal injury trial eventually commenced in February 2008. Christianson and GALL prevailed at trial. The superior court entered a directed verdict for Chris-tianson and the jury returned a verdict for GALL. This court later reversed the defendants' judgments. B. Malpractice Lawsuit Against CHI Christianson sued CHI on August 6, 2008. His complaint alleged that CHI and Dennis breached their professional duty of care in exposing him to the costs of litigation and the risk of an uninsured judgment, and therefore caused him "to spend money in his own defense." It also alleged that Christianson had incurred over $100,000 in attorney's fees in defending against Jones's claims and the insurers' - declaratory - judgment - actions. CHI's answer denied liability. In 2010 CHI moved for summary judgment, arguing that Christianson's malpractice action was barred by AS 09.10.0583 because the statute of limitations began to run more than three years before Christianson sued CHI in August 2008. CHI argued that the statute had begun to run no later than October 2004, after Christianson was sued, was informed that it was questionable whether the insurance policies CHI had obtained for Titan would cover the Jones lawsuit, and began incurring attorney's fees. Christianson's opposition argued that a genuine issue of material fact existed as to when he discovered the elements of his claim against CHI. Christianson did not contend that the doctrine of equitable tolling applied. Before deciding CHI's summary judgment motion, Superior Court Judge Frank A. Pfiff-ner held an evidentiary hearing to determine when the statute of limitations began to run. The court heard the testimony of Christian-son and his lawyer, reviewed exhibits that included passages from Dennis's deposition, and read Christianson's deposition. The court granted CHI's summary judgment motion after making findings of fact about the contents and effect of the September 24, 2004 letter and what information Christianson would have learned had he then made an inquiry. The court made the following findings about the letter and its effect: On [September 24, 2004], Great Divide sent Mr. Christianson a letter with several critical pieces of information. First, Great Divide informed Mr. Christianson that it would be "necessary for [him] to protect [his] own interest in regard to the Complaint." And that he "should consider consulting with an attorney to file the appropriate response to the Complaint." This is critical because Great Divide was effectively disclaiming its duty to defend Mr. Chris-tianson. Under Titan's general liability policy with Great Divide, it had a "duty to defend the insured against 'any' suit seeking [personal injury] damages." . The September 24th letter disclosed Great Divide's preliminary determination that the hydroseeder incident did not trigger even the duty to defend. At least for the time being, Mr. Christianson was on his own and began incurring actual damages in the form of litigation costs. Second, Great Divide noted that [Chris-tianson's] policy "specifically excludes coverage for 'bodily injury' to an 'employee' of the insured arising out of the course and scope of employment." The letter identifies the policy at issue as the "Commercial General Liability policy issued to Titan ." and informed Mr. Christianson that "[slhould it be determined or confirmed through the investigation of the above referenced incident that Keith Jones was an employee of Titan Enterprises, LLC dba: Titan Top Soil at the time of the incident, Great Divide Insurance Company may refuse to defend or indemnify you for this matter." Although Great Divide had not confirmed Mr. Jones's employment status, Mr. Christianson was fully aware that Mr. Jones was Titan's employee. He was on notice of the precise reason Great Divide eventually declined to indemnify his loss or reimburse legal costs. At that point it was evident that there were potential coverage gaps for Mr. Christianson and his non-Titan entities The September 24, 2004, letter is a reasonably clear indication that the Great Divide policy did not cover entities other than Titan and did not cover Titan employees injured in the seope of employment. A reasonable person in Mr. Christianson's cireumstances would have had enough information to alert him that he should begin an inquiry to protect his rights. . The letter was, in effect, a disclaimer of Great Divide's duty to defend. The letter also drew [Mr. Christianson's] attention to gaps in his coverage. Specifically, the letter informed Mr. Christianson of the possibility that Great Divide would deny both defense and indemnification if it confirmed that Mr. Jones was a Titan employee. Mr. Christianson knew that Mr. Jones was a Titan employee and was on notice of the potential coverage gaps.... . At that point [upon receipt of the September 24, 2004 letter], Mr. Christian-son was aware of potential coverage gaps, despite the fact he had asked his broker to purchase all-inclusive insurance. (Emphasis in original.) The court then made these findings about what an inquiry "at that point" would have revealed: [AJn inquiry at that point would have revealed what Mike Dennis allegedly conceded at his deposition: that CHI failed to advise Mr. Christianson of the need to obtain coverage for the continued operation of GALL's bhydroseeder. The inquiry would also have revealed that Cascade National was unwilling to cover the loss. The superior court consequently ruled that the applicable three-year statute of limitations had begun running on September 24, 2004, the date of Great Divide's initial letter to Christianson, and that the limitations period had expired before Christianson commenced suit in August 2008. It therefore dismissed Christianson's complaint. Christianson appeals. III. STANDARD OF REVIEW When the superior court holds an evidentiary hearing to resolve factual disputes about when a statute of limitations began to run, we review the resulting findings of fact for clear error A factual find ing is clearly erroneous if, after reviewing the entire record in the light most favorable to the party prevailing below, we are left with a definite and firm conviction a mistake has been made. We reverse a trial court's factual findings only when we are left with a definite and firm conviction a mistake has been made. is a legal question whether undisputed facts establish that a plaintiff is on inquiry notice." We give de novo review to rulings on legal questions. We review for clear error fact findings regarding the reasonableness of an inquiry It is a legal question whether a court has failed to make necessary findings regarding the reasonableness of a claimant's inquiry. IV. DISCUSSION The ultimate issue here is whether the superior court correctly decided that Great Divide's initial letter put Christianson on inquiry notice and that the statute of limitations on Christianson's malpractice claim against CHI therefore began to run when Great Divide sent him that letter. Christian-son agrees that "the application of the discovery rule controls the result in this appeal," but advances various arguments to support his contention that the court erred factually and legally. He also argues that the court erred in resolving the "reasonable inquiry" issue. Alaska applies a three-year statute of limitations for professional malpractice actions. A statute of limitations usually be gins to run upon the occurrence of the last element essential to the cause of action. But Alaska has adopted the discovery rule, which can affect when the applicable statute begins to run. Under the discovery rule, a cause of action accrues when the plaintiff has "information sufficient to alert a reasonable person to the fact that he has a potential cause of action." We look to the date when "a reasonable person in like cireumstances would have enough information to alert that person that he or she has a potential cause of action or should begin an inquiry to protect his or her rights." Cameron v. State articulated the discovery rule as follows: (1) a cause of action accrues when a person discovers, or reasonably should have discovered, the existence of all elements essential to the cause of action; (2) a person reasonably should know of his cause of action when he has sufficient information to prompt an inquiry into the cause of action, if all of the essential elements of the cause of action may reasonably be discovered within the statutory period at a point when a reasonable time remains within which to file suit.! If a person makes a reasonable inquiry that does not reveal the elements of the cause of action within the limitations period while a reasonable time remains within which to file suit, the discovery rule tolls the running of the limitations period until a reasonable person would obtain actual knowledge of, or would again be prompted to inquire into, the cause of action. The discovery rule therefore simply determines when the cause of action acerues for purposes of triggering the applicable limitations period. We have stated that "the discovery rule operates only to lengthen- and never to shorten-the limitations period." - As we will see, that principle does not prevent us from affirming the judgment. The first question is whether, as the superior court ruled, Christianson was put on inquiry notice by Great Divide's September 24, 2004 letter, That legal question turns on whether the superior court committed clear error in finding the facts that led it to con-elude that Christianson had "enough information to alert him that he should begin an inquiry to protect his rights." . The next question is whether Christianson made a reasonable inquiry that did not timely reveal all elements of his cause of action. That question turns on whether the superior court committed clear error in finding facts bearing on what Christianson would have learned had he made an inquiry after receiving the September 24, 2004 letter. It also turns on whether the court failed to make fact findings material to the reasonable-inquiry issue and therefore committed legal error. A. The Superior Court Did Not Commit Clear Or Legal Error In Ruling That Christianson Was Put On Inquiry Notice. 1. The court did not clearly err in finding facts regarding inquiry notice. After conducting the evidentiary hearing, the superior court made findings of fact about the information Christianson possessed when or soon after he received the September 24, 2004 letter. We quoted its pertinent findings above, in Part II.B. In summary, the court found that the letter told Christianson he had to "protect [his] own interest" and should consider consulting an attorney to respond to Jones's complaint. It found that the liability insurer had effectively disclaimed its duty to defend Chris-tianson. It found that the letter disclosed a "preliminary determination" that the accident did not trigger the duty to defend. It found that the letter indicated that the policy did not cover entities other than Titan and did not cover claims of Titan employees injured at work. It found that upon receipt of the letter, "Christianson was aware of potential coverage gaps, despite the fact he had asked his broker to purchase all-inclusive insurance." It found that this was sufficient to alert a reasonable person in Christianson's position that he should begin an inquiry to protect his rights. And it found that Chris-tianson began incurring actual damages in the form of litigation costs. Christianson disputes these findings. We review them for clear error. "On appeal, findings of fact by a trial court may not be disturbed unless they are clearly erroneous." But before beginning that analysis, we consider the undisputed facts in their most elemental form. As of the fall of 2004, Christianson had expected CHI to procure insurance coverage for his landscaping activities He knew Jones was suing him for reasons connected with those activities. He knew Great Divide, following his tender, had not provided him a defense. He knew Great Divide had identified two policy provisions that potentially foreclosed coverage. He knew he was incurring defense costs. Those circumstances were enough to put him on notice that he needed to make an inquiry to determine why Great Divide was not providing him a defense-including asking whether CHI had failed to secure adequate insurance for his businesses. These undisputed circumstances establish as a matter of law that Christianson had a duty to make a reasonable inquiry to protect his interests. Gudenau & Co. v. Sweeney Insurance, Inc. is analogous. That case involved a denial of coverage under an insurance policy obtained through a broker that had promised the insured a policy covering virtually all damage to the property at issue. We held that the insurer's letter to the insured, "which drew the reader's attention to the policy's structural defect exclusion clause," was "sufficient to alert a reasonably diligent plaintiff" to the possibility of a gap in coverage and, accordingly, to the possibility of the broker's potential breach of warranty. Onee Christianson began incurring defense costs, all elements of the alleged tort-the claim he filed almost four years later-were present: duty (to use adequate professional skill); breach of the duty (in failing to secure coverage allegedly requested or to recommend that GALL get coverage); causation (of the coverage gap by the alleged breach); and damages (from incurring defense costs). Moreover, the evidence persuades us that the superior court's findings of fact concerning the content and effect of the letter are not clearly erroneous. After Christianson tendered his defense to Great Divide, it sent him the September 24, 2004 letter telling him he would be responsible for his own defense while it investigated whether coverage existed. The letter thus communicated Great Divide's present refusal to defend Christian-son. Great Divide's contemporaneous conduct confirmed this message: It did not in fact defend him. The letter also called attention to the employee exclusion and stated: "Should it be determined or confirmed through the investigation . that Keith Jones was an employee of Titan Enterprises, LLC . at the time of the incident, Great Divide Insurance Company may refuse to defend or indemnify you for this matter." Christianson knew Jones was a Titan employee and therefore knew Great Divide's employee exelusion was factually applicable to Jones's personal injury claims. Christianson has not discussed any theory that might have justified a reasonable belief in 2004 that this exclusion was inapplicable on legal or factual grounds. He has likewise not discussed any theory that would have justified a reasonable belief Great Divide might have a change of heart. Christianson also knew GALL, not Titan, owned the hydroseeder and the truck carrying it. Christianson knew he had sought coverage for the equipment that was to be used in Titan's operations and believed he had talked with CHI about GALL. He knew he had given CHI his vehicle registrations, including those for vehicles owned by GALL, and thus the registration for the equipment central to Jones's lawsuit against Christian-son. -And from his communications with CHI when the insurance was being placed, he must have known the facts that later caused him to testify that CHI had not told him that he should insure GALL or vehicles registered to GALL. He does not claim CHI ever told him that the truck or hydroseeder was covered by any liability insurance obtained by CHI. Normally no duty to inquire can be imposed under the discovery rule unless the plaintiff should know he has suffered some loss attributable to the defendant, or unless he realizes he has been injured and his injury may be connected to the defendant's conduct. But Christianson knew he was personally incurring defense costs and knew it was because the insurer on the general liability policy obtained by CHI was not defending him. The dissenting opinion contends that Jarvill v. Porky's Equipment, Inc. is similar and controls. That case is instructive, but not for the reasons the dissent advances. Jarvill concerned a "product defect claim" arising out of a commercial contract to purchase a boat. Although an inspector had warned the buyer that the boat's hull was too thin, the boat performed as expected until it sank. We held that no tort claim acerued until the boat sank; until then, the purchaser had suffered no tort damages, even though he might have suffered contract damages by "receiving a boat that was 'not services-bie." In this case, incurring expenses of a defense was equivalent to the sinking of the boat; both satisfied the damages element of a tort claim. Christianson does not contend that he was unaware that Great Divide's conduct, as de-seribed in its September 24, 2004 letter, was causing him to incur significant expenses. He does not appeal the superior court's finding that "[alt least for the time being, Mr. Christianson was on his own and began incurring actual damages in the form of litigation costs." Christianson began to incur attorney's fees almost immediately. He was therefore aware he was presently suffering an out-of-pocket loss; he was also aware Great Divide might not reimburse him, and indeed would not do so unless it chose to waive the policy provisions it had identified. His loss was large enough to put him on notice of the damage element of a potential claim against CHI. That he could not know in late 2004 what his damages might eventually total did not prevent his cause of action from accruing. The dissent contends that there was only a "potential future injury" and that Chris-tianson "had not yet suffered an injury attributable to CHI." These contentions are incorrect He was suffering an injury attributable to CHI's alleged malpractice because he was paying expenses an insurer would have borne had CHI secured the coverage Christianson claimed he had expected. Nor does the theoretical possibility his out-of-pocket defense expenses might be reimbursed in the future obviate the fact Christianson was then suffering an actual injury that triggered the duty of inquiry as a matter of law. The possibility an insurer might later indemnify an insured party does not stop the statute of limitations from running once the party has been injured by the insurer's failure to defend. The dissent argues that Christianson could not then (in the fall of 2004) have sued CHI for malpractice. This contention mis-com-prehends the discovery rule, which presupposes that a person who knows enough to have a duty to inquire may not yet know enough to file suit-that is, he has not yet discovered all of the existing elements of his cause of action. The issue to be decided by the superior court was whether Christianson had sufficient knowledge as of the fall of 2004 to require him to inquire whether he had a cause of action related to Great Divide's refusal to defend him in the Jones litigation. That issue did not turn on whether Christian-son then could have filed suit against CHL The dissent's contention also fails to recognize that, as the superior court implicitly found, reasonable inquiry would have soon revealed the cireumstances supporting the same malpractice complaint Christianson actually filed almost four years later, and thus all elements of his claim. 2. The superior court did not err in finding that the September 24, 2004 letter alerted Christianson to the fact that Great Divide would not pay for his defense. Christianson advances three main contentions in arguing that the superior court misinterpreted the September 24, 2004 letter. He first contends that the letter did not disclaim the duty to defend. We conclude that the superior court did not misinterpret the letter and did not clearly err in characterizing it as disclaiming a duty to defend Christianson. The letter on its face conveyed that message, even though it purported to reserve a future right to reimburse reasonable defense costs following Great Divide's coverage investigation. The letter made it clear that the insurer was not providing Christianson a defense in Jones's personal injury lawsuit, and instead told Christian-son to defend himself. Christianson notes that the September 24, 2004 letter held out the possibility that Great Divide would reimburse him for reasonable defense costs if it concluded after investigation that there was coverage. But that message does not negate the letter's meaning or effect, and Christianson himself apparently read the letter as presently denying him a defense, because he promptly retained counsel to defend him, at substantial personal expense. The possibility Great Divide, after investigating, might someday acknowledge coverage would not have excused a reasonable person from realizing that Great Divide's initial denial was presently causing him to suffer significant financial injury and that CHI had potentially breached professional duties. The superior court did not misinterpret Great Divide's letter as failing to provide a present defense and as triggering the duty to inquire. Similarly, Christianson asserts that the letter's discussion of exelusions was not unusual and did not inform him that his tender would ultimately be rejected. He also asserts that his vigorous defense in Great Divide's declaratory judgment action shows he genuinely believed he was covered, and that the federal court's later declaration of no coverage did not prove that his position was frivolous or that he had believed it had no merit. These assertions do not demonstrate any error by the superior court in interpreting the letter and its effect on a reasonable person; the superior court simply had to decide whether Christianson was on inquiry notice. Chris-tianson's subjective belief did not preclude a finding of fact that the letter would cause a reasonable person with Christianson's knowledge to realize there was a question about whether the broker was responsible for the potential coverage gap identified in Great Divide's letter. Christianson's alleged "good faith belief" in contesting Great Divide's 2006 declaratory judgment action does not demonstrate that the court clearly erred in interpreting the letter or in finding that it put Christianson on inquiry notice in 2004. Moreover, Christianson has offered no analysis of the September 24 letter that would plausibly demonstrate any reason to think, in 2004 or now, that Great Divide's policy actu ally covered him in Jones's lawsuit. And to the extent he argues that the superior court erred in failing to consider his good faith belief, he has not brought to our attention any evidence that would permit a finding or conclusion that his professed belief was reasonable. He has raised no dispute here (nor did he in the superior court) about either the validity of Great Divide's reading of its policy language or Great Divide's understanding of the facts (Including Jones's employment status). His subjective belief was at most one of the cireumstances bearing on whether he was on inquiry notice. The other cireum-stances overwhelmingly supported the superior court's findings of fact and inquiry-notice ruling. Christianson has not demonstrated either clear or legal error. Second, Christianson contends that Great Divide's March 15, 2006 letter finally denying any duty to defend shows that Great Divide's September 24, 2004 letter had not denied a duty to defend. But neither the sending nor the content of the 2006 letter renders clearly erroneous the superior court's interpretation of the 2004 letter and its effect on the application of the discovery rule. And, notwithstanding the dissent's contentions, the insurer's actual failure to defend Christianson in 2004 made irrelevant to the inquiry-notice issue any contention that the September 24, 2004 letter did not convey a final, absolute refusal to defend. No such refusal was required here to trigger a duty to inquire. Third, Christianson contends that insurance companies rarely accept a tender without a reservation of rights. But Great Divide did not accept his tender and defend him under a reservation; it instead told him he should defend himself, causing him to begin suffering damages. The superior court's findings of fact about what the September 24 letter said are not clearly erroneous. 3. The superior court did not erroneously fail to find facts regarding Christian-son's good-faith belief that he was covered in the Jones lawsuit. Christianson argues that, despite the letter, he was not put on inquiry notice. In addition to the letter, the superior court's inquiry-notice ruling relied on findings that Christianson had asked his broker to purchase "all-inclusive" insurance; that Christianson knew Jones was a Titan employee; and that Great Divide's failure to defend him was causing him to incur "actual damages in the form of litigation costs." These findings are not clearly erroneous, and Christianson does not challenge them on appeal. Christianson seems to argue that the court should have found additional facts that he thinks were relevant to the inquiry-notice issue: that he had a good-faith belief he was covered when he contested Great Divide's declaratory judgment action; that Dennis did not admit, until he was deposed in 2006, he had failed to recommend purchasing needed insurance, and had instead told Christianson he and his companies were "fully covered" for Jones's injury; and that it was not until the Cascade National policy was "made available" at Dennis's deposition that Christian-son learned that an auto coverage form listed the hydroseeder, resulting in Christianson's tender to Cascade National. Christianson's arguments have little or no relevance to the inquiry-notice issue. And they do not show that the superior court committed any legal or factual error. We assume without deciding that a broker's reassurances that could persuade a reasonable client that the broker had obtained the needed insurance coverage or had been professionally faultless could be relevant to the inquiry-notice issue - Such reassurances might delay imposing a duty to investigate a possible claim against the broker. But there is no evidence of such reassurances here. Christianson asserts that CHI, through Dennis, had represented that Chris-tianson and his companies were fully covered for Jones's injury. The testimony he cites only concerns reassurances about the workers' compensation coverage, not the accuracy of Great Divide's letter or the application of the employee exclusion to the Jones lawsuit. Christianson refers us to no evidence CHI reassured him that it had obtained liability insurance - covering - Christianson against the claims made in Jones's lawsuit. He refers us to no evidence of reassurances that CHI had discharged the duties identified in Christianson's 2008 malpractice complaint. No reassurances based on workers' compensation could have obviated the duty to inquire: Despite the workers' compensation remedy and the exclusive liability statute, Jones had sued Christianson, causing him to incur defense costs, For purposes of the discovery rule, no reassurances concerning workers' compensation could have been so compelling that the superior court could be regarded as having erred legally or factually. Moreover, if Dennis told Christianson he was "covered" by workers' compensation, it was potentially relevant only to the merits of Jones's lawsuit; it was irrelevant to the question of whether Great Divide's exelusion applied to Jones's claims or to the question of whether the broker had breached the duties Christianson later claimed it owed him. No insurer, including the workers' compensation insurer, was defending Christianson against Jones's lawsuit; a reassurance that the ex-elusive liability statute barred Jones's lawsuit could not have satisfied a reasonable person, because it did not address Christianson's exposure to substantial defense expenses. Consequently, a defendant raising the exclusive liability issue as a defense to the tort suit should have realized that the defense might not be successful, that CHI's reassurance might be incorrect, and that no liability insurer was paying his tort defense costs. Failing to find facts relevant to a material, factual dispute could be legal error, but the propositions Christianson raises do not demonstrate that the court's findings of fact were clearly erroneous or legally insufficient. Nor do they demonstrate that the court's legal conclusions were erroneous. Given what the court did find about the message communicated by the letter and the facts known to Christianson, a reasonable person in Chris- tianson's position would have realized there was a significant possibility CHI had not discharged its professional duties to him. The propositions Christianson advances do not rebut that conclusion. The superior court concluded that a reasonable person in Christianson's "cireum-stances would have had enough information to alert him that he should begin an inquiry to protect his rights." It held that Christian-son "had a duty to investigate all potential claims, including those against his broker." Because the cireumstances put Christianson on notice of the likelihood there was a coverage gap, of the possibility his broker was responsible for that gap, and of the certainty he was suffering financial harm, the court's inquiry-notice rulings were not factually or legally erroneous. - It is irrelevant there were other possible explanations, not implicating CHI, why Christianson was incurring defense costs. As we stated in Gudenau & Co. v. Sweeney Insurance, Inc., To the extent that the insurance carrier offered different interpretations of the policy language, Gudenau's cause of action was not obscured, but rather two potential causes of action were revealed: one against the carrier, another against the broker. The two conflicting interpretations were sufficient to alert Gudenau to the need to take action to protect its rights.[ 1 The existence of other possibilities did not excuse or satisfy a duty to inquire. This does not mean that Christianson then had to know enough either to sue CHI for professional malpractice or to decide whether Great Divide had erroneously interpreted its insuring duties. For purposes of applying the discovery rule, the superior court only had to decide whether Christianson knew enough to put him on notice that he should inquire whether he had a cause of action against CHL Similarly, in discussing this discovery-rule dispute, we do not mean to suggest that CHI was actually at fault,. The only question pertinent to this part of our analysis is whether the superior court, having considered the evidence, erred in deciding that a reasonable person who knew what Christianson knew or should have known about his insurance expectations, his dealings with CHI, the cireumstances of Jones's accident, and his losses, was on notice in 2004 of a need to make diligent inquiry into whether CHI had been negligent. We hold that the superior court did not err in holding that Christianson was on inquiry notice. B. The Superior Court Did Not Erroneously Resolve The Issue Of Reasonable Inquiry And Did Not Fail To Consider Christianson's Efforts. The superior court ruled that because Christianson was on inquiry notice and because a reasonable inquiry would have revealed the essential elements of the cause of action, the statute of limitations began to run on September 24, 2004. Under the discovery rule, a cause of action "acerues if, within the statutory period, the essential elements [of the cause of action] may reasonably be discovered." In considering an equivalent malpractice claim, we held in Gudenau & Co. that despite an insured's uncertainty about whether either its property insurer or its insurance broker was responsible for a coverage gap, the statute of limitations on Gudenau's claim against its broker began running on the date its insurance company sent a letter denying coverage. The superior court here correctly applied the discovery rule when it held that the statute of limitations began running when Christianson learned information that should have caused him to make an inquiry that would have discovered the essential elements of his cause of action against CHI Our review of the record convinces us the court did not err in holding that a reasonable inquiry by Christianson would have revealed the factual basis for a potential malpractice claim against CHI, and would have revealed Cascade National's unwillingness to cover the loss. The dissent argues that the superior court "erred by failing to make findings about whether Christianson's inquiry was reasonable," but Christianson did not preserve that argument. His opening appellate brief does not argue that the superior court failed to make findings about reasonableness; it instead argues that the court failed to consider his inquiry, specifically, his tender to Cascade National in 2007. Only one sentence of his reply brief claims that the court made no finding about reasonableness. He asserts there that the superior court never found that his inquiry was not reasonable. Failing to make a finding is not the same as failing to consider a fact. Raising the latter issue does not preserve the former. Even if the issue had been preserved, Christianson discusses no evidence that would have permitted a finding that he made an objectively reasonable inquiry that delayed the running of the limitations period. The statute of limitations is tolled if "a person makes a reasonable inquiry which does not reveal the elements of the cause of action within the statutory period at a point where there remains a reasonable time within which to file suit." The superior court made pertinent findings. It found that "[a]) reasonable inquiry would involve an investigation of both his insurer's position and the actual coverage that his broker obtained for him." It found that "an inquiry [in October 2004] would have revealed . that CHI failed to advise Mr. Christianson of the need to obtain coverage for the continued operation of GALL's hy-droseeder. The inquiry would also have revealed that Cascade National was unwilling to cover the loss." Given what Christianson actually did and did not do after Jones sued and after Great Divide sent the September 24, 2004 letter, we read these findings as effectively finding that Christianson did not make a reasonable inquiry. And the superi- or court's discussion of what facts a reasonable inquiry would have revealed, given Christianson's undisputed failure to learn those facts, would preclude a finding that he had made a reasonable inquiry. There is no evidence Christianson contacted CHI to determine whether there was a gap in his liability coverage, and if there was, whether CHI was responsible for that gap. His only contacts with CHI after Jones sued him appear to have resulted in reassurances that Jones's exclusive remedy was workers' compensation. No reassurances on that topic could have justified a reasonable belief that CHI had obtained liability insurance covering Christianson for Jones's lawsuit and covering his defense expenses in that action. Any reasonable inquiry would have promptly revealed that workers' compensation did not bar Jones's tort lawsuit. Jones's exclusive remedy against Christianson in Christian-son's capacity as owner or operator of Titan would indeed have been workers' compensation. But Jones was suing Christianson in his capacity as owner and operator of GALL, which owned and loaned the allegedly defective hydro seeder. The exclusive liability statute, AS 23.30.055, did not bar Jones's tort claims, because he was not suing Christian-son in his capacity as Jones's employer. Christianson therefore remained under a continuing duty to inquire. Christianson also asserts that the superior court "ignore[d] the significance" of the admissions made by Dennis at his deposition in 2006. But the court took that deposition into account when it found the same information would have been revealed if Christianson had inquired in 2004. The court also implicitly found Christianson's inquiry was unreasonable because he had not learned that information sooner. Christianson also seems to argue that only in 2006 did Dennis's admissions reveal any failure by CHI; he asserts that until then, Dennis represented that Christianson and his companies were "fully covered for Jones'[s] injury." But Christian-son never testified that Dennis told him any insurer, including Great Divide, owed Chris-tianson a defense in the Jones lawsuit or would indemnify his potential liability to Jones. Christianson's description of Dennis's reassurances cannot be read as reassurances that CHI had obtained any liability insurance that covered Christianson in Jones's tort suit. Nor was there any evidence Christianson made other efforts to determine whether he in fact had liability coverage for the Jones lawsuit. It should have been readily apparent to him that Great Divide was probably correct in thinking the employee exclusion applied. Christianson has offered no analysis of the September 24 letter or Great Divide's policy that would demonstrate any plausible reason to think then or now that Great Divide's insurance policy actually covered him in Jones's lawsuit. Christianson's allegations of good faith in contesting Great Divide's declaratory judgment action do not demonstrate that he made a reasonable inquiry or that the superior court clearly erred. Christianson contends that the superior court ignored "the circumstances and legal significance" of his tender to Cascade National, Titan's auto insurer. That contention is answered by the superior court's finding that a reasonable inquiry in the fall of 2004 would have revealed that Cascade National was unwilling to cover the loss. Christian-son has not shown that finding was clearly erroneous. Moreover, he refers us to no evidence he thought in 2004 that Cascade National's policy covered Jones's claims. Indeed, he refers us to no evidence he thought in 2004 he had any liability coverage other than Great Divide's. Even after Great Divide declined in 2004 to defend him, causing him to begin incurring defense costs, he did not tender defense of the Jones lawsuit to Caseade National until 2007. He likewise refers us to no evidence that it would have been reasonable for him to think that CHI, by obtaining the Cascade National auto coverage for Titan, had discharged its alleged professional duty to obtain insurance protecting him from claims based on use of vehicles owned by GALL. Christianson's opening appellate brief implies that an insurance form produced from the CHI files at the 2006 deposition of Dennis caused him to tender the defense to Cascade National. But because Christianson claims he first learned of that form in 2006, it could not have caused him to think in 2004 that CHI had obtained coverage for suits like Jones's; the form he first saw in 2006 likewise could not have justified his failure to make a reasonable inquiry after he received Great Divide's September 24, 2004 letter. On the other hand, the availability of the form in CHI's file supports the superior court's finding that the same information would have been available upon request made to CHI had Christianson made any reasonable inquiry after receiving Great Divide's letter. Given the conceded importance of liability insurance to Christianson after Jones sued, and given that Christianson was personally paying for his own defense, it was unreasonable for Christianson to fail to ask CHI for the Cascade National policy until Dennis was deposed in November 2006. The superior court did not clearly err or commit legal error in resolving the reasonable-inquiry issue. C. - The Superior Court's Decision Raises No Public Policy Concerns. Christianson argues that the superi- or court's decision has practical and public policy implications, such as encouraging excessive or premature malpractice litigation. The discovery rule can sometimes give rise to tension between a claimant's need to make timely claims and a possible social desire to discourage avoidable malpractice lawsuits. And we assume, as Christianson implies, that a party defending himself in a personal injury lawsuit or in an insurer's action seeking a no-coverage declaration would prefer not to be distracted from his defense efforts by having to inquire about his insurance broker's possible malpractice or having to sue the broker for malpractice. But what the discovery rule effectively does-requiring a party to take steps to protect its interests-is simply a reflection of what the statutes of limitations do. Potentially conflicting social interests do not broadly vitiate the discovery rule, or indeed, the applicable statute of limitations. Nor do they prevent the discovery rule's application here, where such tensions might have been easily mitigated. Reasonable inquiry would have given Christianson that information in ample time to sue CHI before the statutory period expired or to obtain CHI's agreement to extend the limitations period until after any coverage and liability issues were resolved. And in any event, Christianson had a full three years after he began incurring defense costs in which to sue or reach an extension agreement with CHI. Public policy was not somehow violated by applying the discovery rule to Christianson. D. Equitable Tolling Does Not Apply Here. Finally, Christianson argues briefly that the limitations period equitably tolled. As CHI points out, he did not raise this issue in the superior court. We also conclude that he did not brief it adequately in this court and has consequently waived the argument. While rightly conceding that Chris-tianson did not raise equitable tolling in the superior court and did not adequately brief the issue on appeal, the dissent would nonetheless hold that the limitations period was equitably tolled while the insurance companies declaratory judgment actions and Jones's personal injury lawsuit were pending. But because the superior court in conformity with our precedent held an evidentiary hearing to resolve the factual disputes relevant to the lawsuit's timeliness, Christianson was obligated to raise all potentially relevant factual disputes so the superior court could make the necessary findings of fact. Equitable tolling inherently raises potential factual disputes. There is no basis for remanding to try an unpreserved and fact-dependant issue that was not litigated at the evidentiary hearing. Apart from these procedural barriers, equitable tolling does not apply here, because it requires, among other things, that the party have pursued a past claim in a "judicial or quasi-judicial governmental forum." - Christianson did not previously pursue a claim against CHI in any forum. Defending in the insurers' declaratory judgment actions and Jones's personal injury lawsuit was no substitute for a claim against CHI. CHI was not a party, and its potential liability to Christianson was not relevant, in those lawsuits. The dissent would apply Brannon v. Continental Casualty Co. to hold that the statute of limitations was equitably tolled until the declaratory judgment and personal injury lawsuits were resolved. There we considered and explicitly rejected cases from other states that held that the limitations period in a duty-to-defend case does not begin to run until the underlying litigation ends. Brannon concerned the timeliness of an insured's claims against his lability insurer. We adopted California's equitable tolling rule in duty-to-defend cases and held that although an insured may immediately file a contract action against the insurer for breach of the duty to defend, the insured is not required to do so. California has refused to extend its equitable tolling doctrine from duty-to-defend cases against insurers to malpractice actions against insurance brokers. The California Court of Appeal has explained that "the relationships among insureds, insurers, and brokers give rise to different duties that, in turn, are subject to different statutes of limitations." We agree. An insurance broker will generally not have the same opportunity, motivation, or contractual duty that an insurer has to investigate a coverage dispute. The dissent argues that a party should not be required to defend two lawsuits simultaneously. In Part IV.C we considered and rejected Christianson's equivalent policy argument. And Brannon would not prevent simultaneous lawsuits even if no broker claim were being made: An insurance company (or an insured) may always sue seeking a declaration on coverage issues before the underlying lawsuit ends. We there recognized that any party could immediately ask a court to construe the insurance contract rather than wait for any underlying litigation to end, stating, "[the California approach . allows (but does not force) an insured to file suit for breach immediately after the insurance company denies the defense." But a malpractice action against a broker is different: A broker cannot protect itself from stale claims by asking the court to declare that it has not committed malpractice. The rule proposed by the dissent would permit a broker like CHI to be sued for malpractice many years after it placed the insurance and the insured began suffering actual damages from the broker's alleged malpractice. This is not the case to adopt such a sweeping change. The dissent, in discussing equitable tolling, relies on Peat, Marwick, Mitchell & Co. v. Lane. The Florida Supreme Court there held that an accounting malpractice cause of action did not accrue until a tax court entered a final judgment. Peat, Marwick is founded on Florida's rule for accrual in attorney malpractice cases; in Florida "a cause of action for legal malpractice does not accrue until the underlying legal proceeding has been completed on appellate review." Alaska does not follow that approach to accrual: We explicitly rejected "the 'exhaustion of appeals' rule" in Beesley v. Van Doren, and Christianson has not asked us to reverse settled law about accrual of malpractice actions. Equitable tolling would not excuse the untimeliness of Christianson's lawsuit or justify remand. v. CONCLUSION We AFFIRM the judgment of the superior court. CARPENETI, Chief Justice, not participating. FABE, Justice, dissenting. . Because the superior court granted summary judgment after conducting an evidentiary hearing and entering findings of fact, we rely here on the parties' evidentiary submissions, including passages from the depositions of Christianson and CHI's broker, and the hearing testimony of Christianson and his lawyer in this case. Some facts set out in the record in this case differ immaterially from those described in Jones v. Bowie Industries, Inc., 282 P.3d 316 (Alaska 2012) (reversing defendants' judgments in Jones's personal injury lawsuit and remanding). . Cascade National was taken over by the Alaska Insurance Guaranty Association, but for the sake of continuity we refer to the auto insurer as Cascade National. . In 2012 this court reversed the superior court's directed verdict for Christianson, reversed the defendants' judgments, and remanded for retrial of most of Jones's claims. Jones, 282 P.3d at 340. . Williams v. Williams, 129 P.3d 428, 431 (Alaska 2006). . John's Heating Serv. v. Lamb, 129 P.3d 919, 922 (Alaska 2006) (citations omitted). . Williams v. GEICO Cas. Co., 301 P.3d 1220, 1225 (Alaska 2013) (quoting In re Protective Proceedings of W.A., 193 P.3d 743, 748 (Alaska 2008)). . Egner v. Talbot's, Inc., 214 P.3d 272, 277 (Alaska 2009). . Id. . Cf. Pedersen v. Zielski, 822 P.2d 903, 908 (Alaska 1991) (holding that issues of material fact existed concerning reasonableness of inquiry). . See Beals v. Beals, 303 P.3d 453, 459 (Alaska 2013) (holding that sufficiency of superior court's findings is subject to de novo review). . AS 09.10.053. See Preblich v. Zorea, 996 P.2d 730, 733-34 (Alaska 2000) (applying statute of limitations for contract claims to malpractice case). . Greater Area Inc. v. Bookman, 657 P.2d 828, 829 (Alaska 1982). . Id. . Preblich, 996 P.2d at 734 (quoting Pedersen, 822 P.2d at 908). . Lee Houston & Assocs., Ltd. v. Racine, 806 P.2d 848, 851 (Alaska 1991) (quoting Mine Safety Appliances Co. v. Stiles, 756 P.2d 288, 291 (Alaska 1988)). > . 822 P.2d 1362, 1366 (Alaska 1991). . Id. at 1367 (citing Pedersen, 822 P.2d at 908). . Id. at 1365 n. 5 (characterizing discovery rule as "specifying the meaning of 'accrual' under the statute"). . Gefrev. Davis Wright Tremaine, LLP, 306 P.3d 1264, 1274 (Alaska 2013) (citation omitted). The dissenting opinion contends that affirming CHI's judgment violates this principle. That contention mistakenly assumes that the discovery rule cannot establish an accrual date earlier than the date the claimant first has actual knowledge of all elements of his cause of action. If the discovery rule applies, "[wle have held the inquiry-notice date, rather than the actual-notice date, is generally the date from which the statutory period begins to run." - Id. at 1275. . The "coverage gap" was the absence of liability insurance covering Christianson against the claims in Jones's personal injury lawsuit. The superior court described the Great Divide gap as resulting from policy provisions that covered Titan and Christianson with respect to Titan's activities, but not other entities, and excluded claims brought by Titan employees (such as Jones). Had liability insurance covered the GALL vehicle and hydroseeder or covered Chris-tianson when he loaned GALL 's vehicles to Titan, the insurer would have had a duty to defend Christianson against Jones's claims. The superior court did not precisely describe the gap in the auto policy Cascade National issued to Titan. It seems to have arisen out of the fact that the truck carrying the hydroseeder was most recently registered to GALL, not Titan. Apparently no auto policy covered GALL at the time of the accident. . Williams v. Williams, 129 P.3d 428, 431 (Alaska 2006). . Griffin v. Weber, 299 P.3d 701, 704 (Alaska 2013) (citing In re Protective Proceedings of W.A., 193 P.3d 743, 748 (Alaska 2008)). . See Palmer v. Borg-Warner Corp., 818 P.2d 632, 634 (Alaska 1990) (holding that plaintiff has duty to "investigate all potential causes of action" (emphasis in original) (citing Mine Safety Appliances Co. v. Stiles, 756 P.2d 288, 292 (Alaska 1988))). . 736 P.2d 763 (Alaska 1987). . Id. at 765-66. . Id. at 767. . See Belland v. O.K. Lumber Co., 797 P.2d 638, 640 (Alaska 1990) (citing Linck v. Barokas & Martin, 667 P.2d 171, 173 n. 4 (Alaska 1983)) (setting out elements of professional negligence claim). . In contrast, the broker in Guderau & Co. reassured the insured that the policy provided coverage. Gudenau & Co., 736 P.2d at 766. . Cf. Jarvill v. Porky's Equip., Inc., 189 P.3d 335, 340-41 (Alaska 2008). . Cf. John's Heating Serv. v. Lamb, 129 P.3d 919, 925 (Alaska 2006) (holding that plaintiffs who were on inquiry notice furnace was causing soot problems were not necessarily on inquiry notice it was exposing them to carbon monoxide). . 189 P.3d 335 (Alaska 2008). . Id. at 340. . Id. at 339. . Id. at 340. . Courts in other states have determined that incurring attorney's fees constitutes damages for purposes of triggering the statute of limitations in a malpractice case against an insurance broker. See Am. Home Assurance Co. v. Osbourn, 47 Md.App. 73, 422 A.2d 8, 15-16 (1980); Spurlin v. Paul Brown Agency, Inc., 80 N.M. 306, 454 P.2d 963, 964 (1969). See also Wallace v. Helbig, 963 S.W.2d 360, 360-61 (Mo.App.1998) (holding that insured's malpractice claim accrued at end of declaratory judgment action against insurer; before that, insured had suffered no damages because insurer was paying for defense of underlying lawsuit). Cf. Int'l Mobiles Corp. v. Corroon & Black/Fairfield & Ellis, Inc., 29 Mass.App.Ct. 215, 560 NE.2d 122, 124-25 (1990) (holding that statute of limitations did not begin to run until judgment was entered against insured because until then insured had not suffered a loss, but noting fact insurer paid for insured's defense "bears decisively on the outcome"). Although the dissent distinguishes these cases and Gude-nau & Co. from Christianson's case because they concerned a "definitive denial" of coverage, this distinction is irrelevant here. Great Divide's letter correctly identified policy provisions relevant to defense of Jones's lawsuit against Christian-son: (1) the employee exclusion, applicable because Jones was a Titan employee, and (2) identification of Titan-not GALL or Christianson's other businesses-as the insured. The dissent does not explain how a "definitive denial" would have given Christianson more information than he received in the September 2004 letter. . Christianson does not argue that the expenses he began incurring were insufficiently large to put him on notice in 2004 he was suffering a loss. . Sopko v. Dowell Schlumberger, Inc., 21 P.3d 1265, 1272 (Alaska 2001) (holding that lack of knowledge of full extent of injury was irrelevant in application of discovery rule). . In applying the discovery rule, the superior court focused on September 24, 2004, the date of Great Divide's letter. Although there is no evidence Christianson had yet suffered damages when he received the September 24 letter, it is undisputed that he soon began incurring defense costs. . - In arguing that no tort claim had yet accrued, the dissent relies on Thomas v. Cleary, 768 P.2d 1090 (Alaska 1989). In holding that the taxpayer had no cause of action against accountants who gave the taxpayer negligent advice, this court thought it crucial that the IRS had never assessed additional taxes against the taxpayer. Id. at 1092-93. Because the taxpayer had consequently incurred no damages, the cause of action was unripe. Id. Thomas is distinguishable be cause Christianson did incur damages. The distinction is confirmed by the Thomas court's description of a case it cited in support of its holding, Godfrey v. Bick & Monte, 77 Or.App. 429, 713 P.2d 655, 657 (1985). Thomas described Godfrey with the following parenthetical: "(plaintiff was damaged when he incurred attorney and accounting fees in his attempt to resolve the IRS problems)." Thomas, 768 P.2d at 1093. Thomas's reliance on Godfrey confirms that incurring attorney's fees can satisfy the damages element of a professional tort claim. That conclusion is especially germane to a claim that a broker's allegedly negligent failure to obtain coverage entitling the insured to a defense in a personal injury lawsuit caused damages measured by the insured's costs in defending himself. . His malpractice complaint against CHI alleged that he and GALL had incurred "well over" $100,000 in attorney's fees in litigating the Jones case and the two declaratory judgment actions. . - For the same reason, the dissent's observation that Great Divide "could have decided" in the future to provide a defense misconceives the discovery rule and the duty to inquire. It also ignores the extreme improbability, as of 2004, that the bases for Great Divide's unwillingness to defend were factually and legally invalid and that Christianson did not know the relevant facts. The dissent does not argue that the facts would have caused a reasonable person to think that the Great Divide policy actually covered Jones's claims. . See Liberty Transp., Inc. v. Harry W. Gorst Co., 229 Cal.App.3d 417, 280 Cal.Rptr. 159, 165-66 (1991), overruled on other grounds by Adams v. Murakami, 54 Cal.3d 105, 284 Cal.Rptr. 318, 813 P.2d 1348, 1354-55 (1991) (affirming trial court's interpretation of letter as denial of coverage even though letter asked for information about loss and indicated willingness to investigate information further). . The dissent describes the superior court's findings as interpreting the letter as "an actual denial of coverage" and as "equivalent" to denying the duty to indemnify. That description is at least in part incorrect, because the superior court did not interpret the letter as broadly denying "coverage" or as denying the duty to indemnify. It instead found that the letter denied a duty to defend. That description also raises an immaterial dispute. The finding the court did make was the foundation for the court's inquiry-notice ruling. Any dispute about whether the letter also denied a duty to indemnify is irrelevant to this appeal because the letter failed to accept the defense tender. A liability insurer's duty to defend is broader than its duty to indemnify. See, eg., Afcan v. Mut. Fire, Marine & Inland Ins. Co., 595 P.2d 638, 645 (Alaska 1979) ("[TJhe insurer may have an obligation to defend although it has no ultimate liability under the policy."). Whether or not its letter also denied coverage or a duty to indemnify, Great Divide's failure to defend Chris-tianson would have breached its defense duty if its policy covered Christianson. . Cf. Sharrow v. Archer, 658 P.2d 1331, 1334 (Alaska 1983) (agreeing in dictum with superior court that nature of doctor-patient relationship justified some reliance by plaintiff on doctor's reassurances). . The Alaska Workers' Compensation Act's exclusive liability statute, AS 23.30.055, would have prevented Jones, a Titan employee who received workers' compensation benefits for the injuries suffered during his employment, from suing Titan for his personal injuries. Christianson does not claim that the statute prevented Jones from suing Christianson in his capacity as the owner of the hydroseeder or GALL. Nor does he claim that anything CHI told him caused him to think CHI was without fault. . AS 23.30.055 was not the basis for Christian-son's directed verdict in the Jones lawsuit. Jones v. Bowie Indus., Inc., 282 P.3d 316, 323 (Alaska 2012). And Christianson, in arguing for affir-mance in Jones's appeal from Christianson's directed verdict, did not contend that Jones's tort suit against Christianson was barred by that statute. . See Lowery v. McMurdie, 944 P.2d 50 (Alaska 1997) (remanding for failure to make adequate findings). . 736 P.2d 763, 767 n. 6 (Alaska 1987). . Id. at 768 (holding that statute of limitations began to run when plaintiff should have discovered exclusion clause). . See, eg., Mine Safety Appliances Co. v. Stiles, 756 P.2d 288, 291 (Alaska 1988) (holding inquiry notice exists "when a reasonable person has enough information to alert that person that he or she has a potential cause of action or should begin an inquiry to protect his or her rights"). . Pedersen v. Zielski, 822 P.2d 903, 908 (Alaska 1991) (citing Palmer v. Borg-Warner, 818 P.2d 632, 638 (Alaska 1990)). . 736 P.2d at 767 & n. 6. See the text accompanying footnotes 48, 49, above. . The record does not reveal when Christianson received the letter, but he does not contend any delay in its transmission or receipt affects application of the discovery rule or the result in this case. There is no dispute that he received the letter and began to incur defense costs in 2004, more than three years before he sued CHL. . Cf. Lowery v. McMurdie, 944 P.2d 50 (Alaska 1997) (remanding for failure to make adequate findings). . John's Heating Serv. v. Lamb, 46 P.3d 1024, 1031-32 (Alaska 2002) (quoting Cameron v. State, 822 P.2d 1362, 1367 (Alaska 1991)). Christian-son does not contend that a reasonable inquiry would have been unsuccessful or futile, or that he could not have learned in 2004 what he learned in 2006. Cf. Egner v. Talbot's, Inc., 214 P.3d 272, 281 (Alaska 2009). . See Gefre v. Davis Wright Tremaine, LLP, 306 P.3d 1264, 1275 (Alaska 2013) ("If an inquiry has not been made, we ask in the abstract whether a reasonable inquiry would have produced knowledge of the cause of action." (citing Pedersen v. Zielski, 822 P.2d 903, 908 (Alaska 1991))). . Statev. Pub. Safety Emps. Ass'n, 257 P.3d 151, 165 (Alaska 2011) ("[A]rguments are waived on appeal if they are inadequately briefed." (citing Barnett v. Barnett, 238 P.3d 594, 598 (Alaska 2010))). Equitable tolling's inapplicability here might explain why Christianson did not raise the issue at trial or preserve it on appeal. . See Pedersen v. Zielski, 822 P.2d 903, 907 n. 4 (Alaska 1991) (recommending that trial court hold evidentiary hearing on statutes of limitations disputes to resolve fact questions). . The dissent cites Larson v. State, Department of Corrections, Mem. Op. & J. No. 1257, 2006 WL 1868494 (Alaska, July 5, 2006), in which we applied equitable tolling and remanded a case to the superior court, even though the pro se appellant had not relied on equitable tolling in the superior court. But the State there agreed a remand was appropriate; it stated "it had 'no problem with' allowing [the] appeal of [the later case] to proceed." Id. at *6 n. 16. CHI made no similar concession here, and Christianson, who was not pro se, mentioned equitable tolling only briefly at oral argument before us. Also, Larson's two lawsuits involved the same issue (prisoner classification) and the same parties. Id. at *5-*6. But here Christianson brought a new cause of action-for professional malpractice-against a different party-CHI. The opposing parties in the other lawsuits were his insurers and his former employee. . See Dayhoff v. Temsco Helicopters, Inc., 772 P.2d 1085, 1088 (Alaska 1989) (remanding "for resolution of the factual questions" of notice and prejudice); Gudenau & Co. v. Sweeney Ins., Inc., 736 P.2d 763, 768 (Alaska 1987) (noting potential issues about whether any prior remedies gave the defendant notice of the claim). . Gudenau & Co., 736 P.2d at 768. . 137 P.3d 280 (Alaska 2006). Christianson's briefs do not cite Brannon. . Id. at 286. Florida follows this rule. Cont'l Cas. Co. v. Fla. Power & Light Co., 222 $o.2d 58, 59 (Fla.App.1969). . Brannon, 137 P.3d at 285-86. . Hydro-Mill Co. v. Hayward, Tilton & Rolapp Ins. Assocs., Inc., 115 Cal.App.4th 1145, 10 Cal. Rptr.3d 582, 597-98 (2004). . Id. at 598. . Brannon, 137 P.3d at 286 (citation omitted). . This court reversed and remanded Jones's personal injury action against Christianson in 2012. Jones v. Bowie Indus., Inc., 282 P.3d 316 (Alaska 2012). The dissent's analysis would toll the running of the limitations period on the claim against CHI until Jones's claims are finally resolved, at some future date following remand. The limitations period would therefore be tolled for at least nine years after Christianson asked Dennis to get him insurance, and thus long after the communications and events relevant to obtaining insurance took place. And only then would the three-year period arguably begin to run. . 565 §o.2d 1323 (Fla.1990). . Id. at 1327. . Id. at 1325 (citations omitted). . 873 P.2d 1280, 1282 (Alaska 1994) (citing Wettanen v. Cowper, 749 P.2d 362, 365 (Alaska 1988)). Cf. Thomas v. Cleary, 768 P.2d 1090, 1093 (Alaska 1989) (holding that clients had suffered no harm because IRS had not sent deficiency notice).

7264849

DENALI CITIZENS COUNCIL, Appellant, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES, and Usibelli Coal Mine, Inc., Appellees

Denali Citizens Council v. State, Department of Natural Resources

2014-02-14

No. S-14896

380

390

318 P.3d 380

318

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:13:56.271734+00:00

CAP

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

DENALI CITIZENS COUNCIL, Appellant, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES, and Usibelli Coal Mine, Inc., Appellees.

DENALI CITIZENS COUNCIL, Appellant, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES, and Usibelli Coal Mine, Inc., Appellees. No. S-14896. Supreme Court of Alaska. Feb. 14, 2014. Peter Van Tuyn and Karen E. Schmidt, Bessenyey & Van Tuyn, LL.C., Anchorage, for Appellant. Rebecca Kruse, Assistant Attorney General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Appellee Department of Natural Resources. David J. Mayberry and Kyle W. Parker, Crowell & Moring L.L.P., Anchorage, for Appellee Usi-belli Coal Mine, Inc. Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.

5202

33928

OPINION BOLGER, Justice. I. INTRODUCTION This is an administrative appeal from a decision by the Department of Natural Resources (DNR) to grant Usibelli Coal Mine (Usibelli) a gas exploration license in the Healy Basin (the Healy license). Denali Citizens Council (Denali Citizens), a community-based public interest group located in the Denali Borough, challenges DNR's finding that issuing the Hcense is in the best interests of the state on two grounds: first, that DNR failed to take a "hard look" at the economic feasibility of exeluding certain residential areas and wildlife habitat from the license; and second, that DNR's treatment of environmental mitigation measures in the best interest finding was arbitrary and capricious. We affirm the superior court's order upholding DNR's decision to issue the gas exploration license to Usibelli because we conclude that DNR did not act arbitrarily in developing and publishing its best interest finding. II. FACTS AND PROCEEDINGS A. Statutory Background Alaska Statute 38.05.1382 authorizes the Commissioner of the Department of Natural Resources (the commissioner) to issue "exploration licenses" to individuals or corporations seeking to discover oil or gas on state land. Such a license gives the holder the exclusive right to explore the land described in the license for oil or gas deposits for up to ten years, as well as an option to convert the exploration license into a lease if the licensee satisfies certain requirements. In considering a proposal for an exploration license, the Director of the Division of Oil and Gas (the director) is required to make a written finding that issuing the exploration license will be in the best interests of the state (a best interest finding or BIF) Prior to publishing a final best interest finding (final finding or final BIF) and approving a license proposal, the director must make a preliminary best interest finding (preliminary finding or preliminary BIF) available to the public and provide an opportunity for public comment. The final written finding, issued after the close of the comment period, must contain a summary of public comments received by DNR and the director's responses to those comments. The written finding must set out "the basis for the director's preliminary or final finding . that, on balance, leasing the area would be in the state's best interest." At a minimum, the director must "consider and dis cuss" two categories of "facts": first, facts that are "material to issues that were raised during" the public comment period and "within the scope" of the finding, as determined by the director; and, second, facts material to ten specified matters, including "the reasonably foreseeable fiscal effects of the lease sale and the subsequent activity" and "lease stipulations and mitigation measures." Any person who participated in the public comment process by submitting a written comment and who is "aggrieved" by the final BIF may file a request for reconsideration of the finding with the commissioner. An adverse decision on reconsideration may then be appealed to the superior court. Points on appeal in the superior court are limited to those presented to the commissioner in the request for reconsideration. The party seeking judicial review of a best interest finding has the burden of proving that the finding is invalid. B. Facts Usibelli submitted a gas-only exploration license proposal to DNR in April 2004. The proposal covered 208,630 acres in the Healy area, including land west of the Nenana River and adjacent to Denali National Park. In November 2004, DNR provided notice of its intent to evaluate the proposal and sought public comment in January 2005. Denali Citizens, a "non-profit citizens group . with a mission of supporting sound planning and sustainable development in the Denali Borough," responded. It noted that the license included residential areas and the wildlife-rich Wolf Townships area west of the Nenana River, and asked DNR to consider excluding some of these areas from the license. Denali Citizens also requested that DNR address noise mitigation and facility siting in its best interest finding. In August 2005, DNR issued a "Preliminary Best Interest Finding" concluding that issuing the Healy license would be in the best interests of the state. The preliminary finding addressed the reasonably foreseeable effects of the proposed license, including statewide and local fiscal effects and cumulative effects on the area's fish and wildlife. It also described proposed measures "to mitigate the potential adverse social and environmental effects of specific license related activities." These mitigation measures included specific standards addressing noise, such as a noise monitoring plan requirement and maximum ambient noise limits, as well as restrictions on the siting of exploration equipment, such as a minimum setback requirement. - Usibelli would also be required to obtain the consent of every landowner in a residential subdivision before constructing drill pads or compressor stations on any plot within that subdivision. However, the director would have discretion to grant exceptions to these mitigation measures upon a showing by the licensee that compliance with the mitigation measures is not feasible or prudent, or that the licensee will undertake an equal or better alternative to satisfy the intent of the mitigation measure. The preliminary finding defines "[fleasible and prudent" as "consistent with sound engineering practice and not causing environmental, social, or economic costs that outweigh the public benefit to be derived from compliance with the standard." Upon issuing the preliminary finding, DNR provided public notice, sought public comment, and conducted two public meetings during the comment period. Denali Citizens submitted comments in response to the preliminary finding, asserting that the finding failed to address its concerns about the seope of the proposed license area and that the proposed mitigation measures were inadequate. It again requested that DNR exclude sensitive areas west of the Nenana River from the license. In June 2010, DNR issued a final best interest finding, concluding that it was in the state's best interests to issue the exploration license. The final finding did not remove any acreage from the license proposal. In response to Denali Citizens' request that areas west of the Nenana River be excluded from the license, DNR wrote: Removing the area west of the Nenana River from the license area may make the project economically unfeasible. The imposition of mitigation measures to avoid, minimize, or mitigate potential impacts is preferable to removing a large acreage from the license area. As specific projects are proposed, additional mitigation measures may be imposed. Given these measures, license advisories, and existing laws and regulations, removing the area west of the Nenana River from the license area is unnecessary. With respect to specific concerns regarding the Wolf Townships, DNR noted that the Wolf Townships are not part of Denali National Park and that mitigation measures would provide adequate protection for wildlife in the area. The final finding also modified several mitigation measures. DNR substantially revised the noise standards, removing the noise monitoring plan requirement and the maximum ambient noise limits prescribed in the preliminary finding. The final BIF provided that "ImJeasures to be used to mitigate potential noise impacts associated with facilities and compressor stations will be considered on a site-specific basis." DNR also eliminated the requirement that Usibelli obtain consent from all surface property owners within a residential subdivision before constructing any drill pads or compressor stations in the subdivision. The setback requirements remained largely the same. Finally, DNR modified the blanket exception to mitigation measures: the final finding allowed for exceptions to mitigation measures "upon a showing by the licensee that compliance with the mitigation measure is not practicable." The final BIF defines "[plracticable" as "feasible in light of overall project purposes after considering cost, existing technology, and logistics of compliance with the mitigation measures." Denali Citizens filed a request for reconsideration of the final BIF with the commissioner. The commissioner granted the request and affirmed. With respect to Denali Citizens' objection to the decision not to exclude the area west of the Nenana River from the license, the commissioner determined that mitigation measures adequately addressed concerns about facility siting, the protection of wildlife and habitat, and conflicts with recreational activities. The commissioner also noted, in response to Denali Citizens' observation that the Wolf Town ships had been classified as wildlife habitat and public recreation land in the Tanana Basin Area Plan (the Plan), that the Plan allows oil and gas leasing throughout the license area. With respect to Denali Citizens' claim that mitigation measures had been weakened or eliminated in the final finding, the commissioner wrote that The intent of changes to the mitigation measures concerning noise and buffers around residential areas was not to weaken protections, but to ensure flexibility while not unnecessarily restricting the licensee's activities. Specifically disallowing drill pads and compressor stations in subdivisions and stipulating specific noise thresholds may be unnecessarily restrictive, especially when lots are unoccupied or undeveloped, perhaps for long periods of time. Requiring the consent of all property owners in a subdivision could result in drill pads and compressor stations not being allowed in subdivisions at all. The commissioner also asserted that the mitigation measures in the final finding were "stronger, more protective, and more detailed than mitigation measures for most other [state gas leases or licenses]." Denali Citizens appealed DNR's decision to the superior court, and the court affirmed. The court concluded that DNR had a reasonable basis to grant Usibelli the exploration license without reducing its size because: (1) the license area was within the parameters established by statute; (2) the license area was consistent with the exploration Heensing statute's purpose, that is, to encourage exploration in areas with low or unknown potential; and (8) given this purpose, it was reasonable for DNR to conclude that a larger license area subject to mitigation measures was more consistent with the state's best interests than a smaller license area. With respect to mitigation measures, the court held that it was premature to consider the adequacy of the measures imposed in the final finding. Alternatively, the court concluded that the proposed mitigation measures were not arbitrary. This appeal followed. III. STANDARD OF REVIEW In an administrative appeal, we "independently review the merits of the underlying administrative decision." When an agency decision, such as a best interests finding, involves "administrative expertise as to either complex subject matter or fundamental policy formulations," the reviewing court need only determine whether the decision had a "reasonable basis." " Under this standard, the BIF will survive judicial review so long as it is not "arbitrary, capricious, or unreasonable." Although this is a deferential standard, the reviewing court must "ensure that DNR has taken a hard look at the salient problems and has genuinely engaged in reasoned decision making," and that the best interest finding includes a discussion of all the important factors DNR considered. IV. DISCUSSION Denali Citizens challenges the Healy BIF on two grounds. First, it argues that DNR inadequately addressed the economic feasibility of reducing the size of the Healy license. Second, it argues that DNR's treatment of mitigation measures in the final BIF was arbitrary and capricious. A. DNR Was Not Required To Consider The Economic Feasibility Of Removing The Area West Of The Ne-nana River From The Healy License. Denali Citizens first argues that the BIF inadequately addressed the economic feasibility of reducing the size of the license. Despite concluding that it must consider the economic feasibility of Usibelli's license proposal in the best interest finding, DNR merely asserted, without analysis, that reducing the size of the license might "make the project economically unfeasible." - Therefore, Denali Citizens concludes, the agency failed to take a "hard look" at what it itself acknowledged is a salient issue. As the commissioner wrote in his response to Denali Citizens' request for reconsideration, the economic feasibility of a license proposal is relevant to one of the factors DNR is required to discuss under AS 38.05.085(g), "the reasonably foreseeable fiscal effects of the [license sale] and the subsequent activity on the state and affected municipalities and communities." Many of the economic consequences of granting a license will not obtain if the project is not feasible and does not oceur. Therefore, the director is required to consider the economic feasibility of the license proposal in order to predict accurately the "reasonably foreseeable fiscal effects" of the license sale. But Denali Citizens does not fault DNR for its discussion of the economic feasibility of the license as proposed. Rather, Denali Citizens argues that DNR's BIF is arbitrary and capricious because it fails to give adequate treatment to the economic feasibility of the Healy project if the area west of the Nenama River were excluded from the license. But there is no basis for Denali Citizens' assertion that the director is required to address this separate issue. Consideration of the economic feasibility of the license as proposed simply does not require consideration of the feasibility of alternatives to the proposal. Nor do the "foreseeable fiscal ef-feets" of the Healy license as proposed depend on the economic feasibility of reducing the size of the license. Therefore, Denali Citizens' assertion that DNR did not "actually analyze whether limiting the license area applied for by Usibelli actually would make the project infeasible," even if accurate, is irrelevant. B. DNR's Treatment Of Mitigation Measures Was Not Arbitrary. Denali Citizens advances two distinct arguments challenging DNR's treatment of mitigation measures: first, that DNR did not adequately explain its decision to relax mitigation measures in its final finding; and second, that the mitigation measures imposed in the final finding are inconsistent with the Tanana Basin Area Plan. 1. Denali Citizens' challenge to DNR's treatment of mitigation measures is ripe. The superior court concluded that Denali Citizens' challenge to the BIF's treatment of mitigation measures was not ripe. The court cited our opinion in Trustees for Alaska v. State, Department of Natural Resources (Camden Bay II) for the proposition that a challenge to mitigation measures is not ripe at the BIF stage, since DNR cannot be expected to evaluate the efficacy of "mitigation measures even before knowing which activities it needs to mitigate." In Camden Bay II, we rejected the argument that a "detailed" assessment of mitigation measures was necessary for DNR to make a finding, at the leasing stage, that issuing a lease would be consistent with the Alaska Coastal Management Plan (ACMP). But this court did not hold that DNR had no obligation to consider potential mitigation measures in making that finding. On the contrary, the Camden Bay II court relied in part on the fact that "DNR's mitigation measures provide sensible guidelines to minimize the harmful effects of oil and gas development" in holding that DNR's consistency determination was reasonable. In other words, while DNR is not required to provide a detailed analysis of mitigation measures in a best interest finding, it may be arbitrary and capricious to conclude that issuing a lease or license is in the best interests of the state if the director has not identified adequate measures to reduce impacts on conflicting uses. Moreover, Denali Citizens is challenging the process by which DNR determined that the mitigation measures proposed in the final BIF are in the best interests of the state rather than the adequacy of the mitigation measures themselves. In addition to reaching reasonable conclusions, DNR must engage in a reasonable decision-making process while preparing a best interest finding. Even if it were true that a challenge to the substantive adequacy of DNR's proposed mitigation measures is premature, Denali Citizens' challenge to DNR's decision-making process is certainly ripe at this stage. In conclusion, it was error to conclude that Denali Citizens' challenge to DNR's proposed mitigation measures was not ripe. But because the superior court held, in the alternative, that DNR's treatment of mitigation measures was not arbitrary, we will address the merits of Denali Citizens' argument as well. 2. DNR adequately explained its decision to change mitigation measures in the final best interest finding. Denali Citizens first challenges DNR's treatment of mitigation measures on the grounds that DNR failed adequately to explain its decision to adopt more relaxed mitigation measures in its final BIF. It is well-established in administrative law that when an agency departs from a prior policy, it must give "a reasoned explanation . for disregarding facts and cireum-stances that underlay or were engendered by the prior policy." Although the agency "need not demonstrate to a court's satisfaction that the reasons for the new policy are better than the reasons for the old one," it must "display awareness that it is changing position" and "may not . depart from a prior policy sub silentio." " Importantly, "the law does not require the explanation to be exhaustive." The final BIF excluded several mitigation measures that were included in the preliminary BIF. In particular, it eliminated a requirement that Usibelli obtain the consent of all the surface property owners in a residential subdivision before constructing facilities within that subdivision and replaced specific noise restrictions with a commitment to consider such restrictions "on a site-specific ba-iu " SIS On reconsideration, the commissioner explained that The intent of changes to the mitigation measures concerning noise and buffers around residential areas was not to weaken protections, but to ensure flexibility while not unnecessarily restricting the licensee's activities. Specifically disallowing drill pads and compressor stations in subdivisions and stipulating specific noise thresholds may be unnecessarily restrictive, especially when lots are unoccupied and undeveloped, perhaps for long periods of time. Requiring the consent of all property owners in a subdivision could result in drill pads and compressor stations not being allowed in subdivisions at all. Denali Citizens alleges that this explanation "is unsupported by any analysis" and lacks a basis in the record. However, reasonable basis review is deferential, and DNR's explanation for its change of course need not be exhaustive. To ask for an in-depth treatment of every conceivable sub-issue, as Denali Citizens suggests, would be to require something much more than simply "reasoned decision making." Therefore, we conclude that the commissioner's explanation for DNR's decision to eliminate the specific noise and subdivision mitigation measures was adequate. The final BIF also adopted a different standard for granting exceptions to mitigation measures, providing that exceptions "will only be granted upon a showing by the licensee that compliance with the mitigation measure is not practicable" rather than upon a showing that compliance is "not feasible or prudent." Denali Citizens argues that the former standard is significantly more permissive than the latter and that DNR did not adequately explain this change. There is substantial support for Denali Citizens' assertion that the "not feasible or prudent" standard is different from the "not practicable standard." First, DNR defines the two terms differently. "Feasible and prudent" is defined as "consistent with sound engineering practice and not causing environmental, social, or economic costs that outweigh the public benefit to be derived from compliance with the standard." "Practicable," by contrast, is defined as "feasible in light of overall project purposes after considering cost, existing technology, and logistics of compliance with the mitigation measures." The former standard appears to require the licensee to show that the public benefits of implementing the mitigation measure outweigh the public ("environmental, social, or economic") costs, while the latter standard only appears to require the licensee to demonstrate that the private costs of the measure to the licensee are too high. Second, Usibelli submitted a comment on the preliminary BIF asserting that the standards for exeeptions for certain mitigation measures did not permit DNR to take into account economic considerations. In response, DNR wrote that [elxeeptions may be granted if it is not practicable to comply with the standard. The final finding uses the term practicable instead of "feasible or prudent." Practicable means feasible in light of overall project purposes after considering cost, existing technology, and logistics of compliance with the mitigation measure. It is difficult to understand how this explanation is responsive to Usibelli's comment if the new standard does not permit greater consideration of its costs. However, both Usibelli and DNR maintained at oral argument that the revision to the blanket exception was merely cosmetic and that the new standard is no less stringent than the old. We are satisfied that as long as the "not practicable" standard is applied so as to be no more permissive than the "not feasible or prudent" standard, there will have been no substantive change to the blanket exception and, therefore, no requirement that DNR provide a reasonable explanation. In view of DNR's commitment to apply these standards identically, we need not address whether DNR provided an adequate explanation for the change in the wording of the blanket exeeption. C. The Best Interest Finding Is Consistent With The Tanana Basin Area Plan. Denali Citizens also claims that the BIF is arbitrary and capricious because it is inconsistent with the Tanana Basin Area Plan. Denali Citizens maintains that because the Stampede Trail Management Unit-which overlaps with the section of the license adjacent to Denali National Park-is primarily classified as public recreation and wildlife habitat land, oil and gas development as a "secondary use" may be permitted in Stampede Trail only "when its occurrence will not adversely affect achieving the objectives for the primary uses." The Plan also provides that on caribou from [oil and gas] exploration and development will be avoided or mitigated, especially during the calving season" and that "[s]pecific measures [to mitigate impacts] will be determined in the leasing process." Denali Citizens argues that DNR's failure both to protect the "primary" uses of Stampede Trail through adequate mitigation measures and to identify "[s}pecif-ie measures" to protect caribou rendered its best interest finding arbitrary. We note initially that neither the Alaska Statutes nor DNR regulations indicate that a regional land use plan is legally binding on the Department. To the contrary, in a case holding that a land use plan is not a regulation, we expressed doubt that the provisions of such a plan are enforceable against DNR. | However, even if the Plan is legally binding, the best interest finding is fully consistent with its provisions. First, contrary to Denali Citizens' representations, the Plan does not classify oil and gas development as a disfavored "secondary use" within Stampede Trail, Rather, the Plan emphasizes that state land in Stampede Trail is "open to mineral entry." Therefore, oil and gas development is generally permitted within the Stampede Trail Management Unit. Second, although the Plan does call for the identification of "[s}pecific measures" to protect the local caribou herd, such measures are to be identified in the "leasing process, not the licensing process. Although Denali Citizens maintains that licensing and leasing are identical for purposes of the Plan, the statute creating the exploration license program makes clear that they are not. Therefore, DNR is not required to identify specific mitigation measures to protect caribou at this juncture. v. CONCLUSION We AFFIRM the superior court's order upholding the decision of the Department of Natural Resources. . AS 38.05.132(a). ._ AS 38.05.132(b)(1). 2 . AS 38.05.132(b)(2). . AS 38.05.133(f). Although the statute assigns this respons1b111ty to the commissioner, the commissioner delegated this duty to the director with respect to the Healy license. . AS 38.05.035(e)(5). . AS 38.05.035(e)(7). . AS 38.05.035(g)(2). The legislature has determined that it is "in the best interests of the state . to encourage an assessment of its oil and gas resources" so as to "minimize the adverse impact of exploration, development, production, and transportation activity"; and "to offer acreage for oil and gas leases or for gas only leases." AS 38.05.180(a)(2). . AS 38.05.035(g)(1). The director must also consider and discuss (i) property descriptions and locations; (ii) the petroleum potential of the sale area, in general terms; (iii) fish and wildlife species and their habitats in the area; (iv) the current and projected uses in the area, including uses and value of fish and wildlife; (v) the governmental powers to regulate the exploration, development, production, and transportation of oil and gas or of gas only; (vi) the reasonably foreseeable cumulative effects of exploration, development, production, and transportation for oil and gas or for gas only on the sale area, including effects on subsistence uses, fish and wildlife habitat and populations and their uses, and historic and cultural resources; (viii) the method or methods most likely to be used to transport oil or gas from the lease sale area, and the advantages, disadvantages, and relative risks of each; [and] (x) the reasonably foreseeable effects of exploration, - development, production, and transportation involving oil and gas or gas only on municipalities and communities within or adjacent to the lease sale area.... AS 38.05.035(g)(1)(B). . AS 38.05.035(). . AS 38.05.035(7). . Id. . AS 38.05.035(m). . The "Wolf Townships" are located near the northeast corner of Denali National Park and are surrounded by park lands. The Denali Caribou Herd uses the Wolf Townships as an overwintering ground. . See AS 38.05.035(g)(1)(B) (listing matters that must be addressed in a preliminary finding). . The preliminary finding required setbacks from residential structures of at least 500 feet for drill pads and at least 1,500 feet for compressor stations. The final finding expanded the application of these setback requirements to "community or institutional building{s]." . The Tanana Area Basin Plan, adopted pursuant to AS 38.04.065, "determines major land uses on state lands within the planning area, describes management intent, and sets management guidelines for various resources" in the Tanana Basin Planning Area. See Tanana Basin Area Plan, 1-5, available at http://dnr.alaska.gov/ miw/planning/areaplans/tanana/pdf/ch_1 .pdf. The town of Healy and other lands covered by the proposed exploration license are included in the Planning Area. See id. at 1-3 to 1-4. The Wolf Townships are included in Subunit 4E1, the Stampede Trail Management Unit. . AS 38.05.132(c)(2) (providing that exploration license area must be between 10,000 and 500,-000 acres and "must be reasonably compact and contiguous"). . See AS 38.05.180(a)(2) (It is "in the best interests of the state . to encourage an assessment of its oil and gas resources" so as to "minimize the adverse impact of exploration, development, production, and transportation activity"; and "to offer acreage for oil and gas leases or for gas only leases."). . State, Dep't of Health & Soc. Servs. v. N. Star Hosp., 280 P.3d 575, 579 (Alaska 2012) (internal citation and quotation marks omitted). . Hammond v. N. Slope Borough, 645 P.2d 750, 758 (Alaska 1982); see also Kachemak Bay Conservation Soc'y v. State, Dep't of Natural Res., 6 P.3d 270, 275-76 (Alaska 2000) (Kachemak Bay ). . Ninilchik Traditional Council v. Noah, 928 P.2d 1206, 1213 (Alaska 1996). . Kachemak Bay, 6 P.3d at 275 (internal quotation marks omitted). . Irs. for Alaska v. State, Dep't of Natural Res., 795 P.2d 805, 811 (Alaska 1990) (Camden Bay I ). . Denali Citizens' Statement of Points on Appeal alludes to a third argument based on Article VIII of the Alaska Constitution, but it does not develop this argument in its brief. This constitutional claim is, accordingly, waived. Great Divide Ins. Co. v. Carpenter ex rel. Reed, 79 P.3d 599, 608 n. 10 (Alaska 2003) ("Points that are inadequately briefed are considered waived."). . 851 P.2d 1340, 1346-47 (Alaska 1993). . Id. at 1347; see also AS 38.05.035(h) ("In preparing a written finding ., the director may not be required to speculate about possible future effects subject to future permitting that cannot reasonably be determined until the project or proposed use for which a written best interest finding is required is more specifically defined. ."). . 851 P.2d at 1347. . Id. . See Ninilchik Traditional Council v. Noah, 928 P.2d 1206, 1212 (Alaska 1996) (finding that DNR's determination that a project is consistent with the ACMP was reasonable where DNR "prescribed general mitigation measures at the lease sale stage to ensure that these activities do not interfere with other water-dependent and water-related uses. ."); see also AS 38.05.035(g)(1)(B) (DNR must discuss "lease stipulations and mitigation measures" in a BIF); AS 38.05.180(a)2)(A)Gi) (It is in the best interests of the state to "minimize the adverse impact of exploration, development, production, and transportation activity."). . Under Alaska law, agencies must give "rea-sonmed discretion to all the material facts and issues," Camden Bay I, 795 P.2d 805, 811 (Alaska 1990), and "engage[ ] in reasoned decision making." Kachemak Bay, 6 P.3d 270, 275 (Alaska 2000). These requirements speak more to the reasonableness of the agency's decision-making process than to the reasonableness of its final decision. . Cf. Kachemak Bay, 6 P.3d at 275-76. . FCC v. Fox Television Stations, Inc., 556 U.S. 502, 516, 129 S.Ct. 1800, 173 LEd.2d 738 (2009); see also Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). . Fox, 556 U.S. at 515, 129 S.Ct. 1800; see also Arkema, Inc. v. EPA, 618 F.3d 1, 6 (D.C.Cir.2010). . Modesto Irrigation Dist. v. Gutierrez, 619 F.3d 1024, 1035 (9th Cir.2010). . See Kachemak Bay, 6 P.3d at 292-93 (Although "DNR's analyses are not exhaustive," they are sufficient to show that DNR considered the relevant issues.); see also Modesto Irrigation Dist., 619 F.3d at 1035. . Denali Citizens did not ask the commissioner to reconsider this blanket exception in its request for reconsideration of the final BIF. But the State has not asserted that this omission restricts our consideration of this issue. See generally AS 38.05.035( ). . - For example, if the "not feasible or prudent" standard only permits DNR to weigh the public costs of implementing a mitigation measure, DNR may not rely on language in its definition of "practicable" to justify the consideration of costs to Usibelli. . - Tanana Basin Area Pran 1-5 (1990), available at http://dnr.alaska.gov/mlw/planning/areaplans/ tanana/pdf/ch_1 .pdf. . See AS 38.04.065, 11 Alaska Administrative Code 55.010-.280 (2005). . See State, Dep't of Natural Res. v. Nondalton Tribal Council, 268 P.3d 293, 304 n. 93 (Alaska 2012) ("[Allthough it guides future DNR policy, the [Bristol Bay Area Plan] is likely not enforceable by the public against DNR either." (citing Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 67-72, 124 S.Ct. 2373, 159 LEd.2d 137 (2004))). . Tanana Basin Ara Puan 3-132 (1990), available at - http://dnr.alaska.gov/mlw/planning/areaplans/ tanana/pdf/subde.pdf - ("[MJineral - entry, - coal prospecting, and leasing will be allowed.... This unit is open to mineral entry.... This unit is available for oil, gas, and coal leasing...."). . 1d. . AS 38.05.132(b)(2) (An exploration license gives the licensee "the option to convert the exploration license for all or part of the state land . into an oil and gas lease . upon fulfillment of the work commitments contained in the exploration license.") (emphasis added). . - Moreover, far from ignoring impacts on caribou, the BIF provides that "[the director . may impose seasonal restrictions on activities located in, or requiring travel through or overflight of, important moose and caribou calving and wintering areas."

10393596

Chris N. NELSON, Appellant, v. STATE of Alaska, Appellee

Nelson v. State

1989-11-03

No. A-1697

994

1000

781 P.2d 994

781

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:09:08.575920+00:00

CAP

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

Chris N. NELSON, Appellant, v. STATE of Alaska, Appellee.

Chris N. NELSON, Appellant, v. STATE of Alaska, Appellee. No. A-1697. Court of Appeals of Alaska. Nov. 3, 1989. Susan Orlansky, Asst. Public Defender and John B. Salemi, Public Defender, Anchorage, for appellant. Robert D. Bacon, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage and Douglas B. Baily, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

3278

19821

OPINION COATS, Judge. Chris N. Nelson was convicted, following a jury trial, of sexual assault in the first degree and kidnapping. AS 11.41.410 and AS 11.41.300(a)(1)(C). Nelson appeals his conviction and we reverse. On November 17, 1985, Nelson was charged with the sexual assault and kidnapping of N.F. in Seward, Alaska. Nelson's major contention on appeal is that he was denied his right to an impartial jury. Nelson argues that Superior Court Judge Charles K. Cranston abused his discretion during jury selection by denying his motions for change of venue, denying his request for additional peremptory challenges, and denying his challenge for cause of juror Steve Lemme. Jury selection started in May 1986. The parties questioned fifty-seven prospective jurors. Judge Cranston excused twenty-seven jurors for cause. Of the jurors whom Judge Cranston excused for cause, ten knew N.F. well or at least knew her as more than a mere acquaintance. Judge Cranston excused two other jurors on the panel because they knew the Nelson family. Judge Cranston excused another juror who was a nurse on duty at the hospital on the night that N.F. came in for the rape examination following the sexual assault. The court excused one other juror because he said he was unable to disregard an article which he had read in a newspaper, the Phoenix Log, concerning the assault on N.F. That article stated that Nelson had been arrested and charged with sexual assault in the first degree based upon N.F.'s positive identification of him from a photo lineup. The article indicated that Nelson had prior felony convictions for three counts of sexual assault in the first degree and a burglary conviction. It reported that, based upon these convictions, Nelson served three years in prison and had been released approximately one month before the most recent sexual assault charge and was on probation. The article also reported that, earlier in the month, the police had charged Nelson with the misdemeanor offense of furnishing liquor to a minor. According to the article, Nelson was imprisoned on $100,000 bail. The court excused several other jurors for various reasons; some had problems regarding transportation, some knew several witnesses, and others were especially sensitive to the issue of sexual assault. Nelson exercised all of his peremptory challenges, his ten statutory challenges and one additional challenge for an alternate juror. All the jurors whom Nelson peremptorily challenged were acquainted with at least one of the state's witnesses and six of them stated that they had seen the article in the Phoenix Log. After Nelson had exercised nine of his peremptory challenges, he asked the court for three additional peremptory challenges. Judge Cran-ston denied this motion but did excuse one juror for cause, sua sponte. Nelson then moved for a change of venue. Judge Cran-ston denied this request as well. After Nelson had used all ten of his peremptory challenges, the next prospective juror was Lemme, who ultimately served as juror number 12. Lemme stated that he had known N.F. and her husband for approximately two years. He had worked with N.F.'s husband and had been invited to their home, although he had never been able to accept the invitations. Lemme stated that he was not close friends with the F.'s although he respected them as a family. He indicated that, if he returned a verdict not guilty and later saw the F.'s again, it would be natural for him to feel a little uncomfortable. He admitted that it would be hard for him not to think about his relationship with the F.'s but that he considered himself to be a fair person and that he did not believe it would affect his deliberations as a juror. Out of the presence of the other jurors, Lemme said that he had seen the article in the Phoenix Log. He was familiar with some of the details of the sexual assault as reported in the paper. Lemme remembered that the article reported where the victim of the rape worked and that he and his wife had assumed that the victim might be N.F. He stated he had not talked to the F.'s about the matter because it was too personal. He said he believed that he could disregard everything that he read in the article. Nelson asked Judge Cranston to grant him additional peremptory challenges or to excuse Lemme. Judge Cranston denied both requests. Judge Cranston found that, based on the overall tone of his answers, Lemme could be a fair and impartial juror. After jury selection was complete, Nelson again moved for a change of venue. Nine of the seated jurors knew at least one of the state's witnesses and five remembered seeing the article in the Phoenix Log. Judge Cranston denied this second motion for a change of venue. The federal and state constitutions guarantee a criminal defendant the right to an impartial jury. U.S. Const., Amend. 6; Alaska Const, art. 1, § 11. Alaska Statute 22.15.080(1) provides that the court shall grant a change of venue where "there is reason to believe that an impartial trial cannot be had." Nelson contends that Judge Cranston abused his discretion during the jury selection when he denied Nelson's motions for a change of venue, denied Nelson's requests for additional peremptory challenges, and denied Nelson's challenge for cause of juror Lemme. We conclude that there is a substantial doubt whether Nelson was tried by an impartial jury. We accordingly reverse Nelson's conviction. The voir dire shows that this was a case where it was particularly difficult to select an impartial jury. The parties questioned fifty-seven prospective jurors. The court excused twenty-seven of these for cause. Of the challenges for cause which the court granted, all appear to have been for substantial reasons where the jurors' impartiality was in question. One major cause for concern, which the jury voir dire revealed, was that a number of jurors were familiar with the state's witnesses. This was not unusual for a small town, but it was a factor which made selection of an impartial jury difficult. Another factor was the pretrial publicity in the Phoenix Log. In Mallott v. State, 608 P.2d 737, 749 (Alaska 1980), the supreme court adopted the recommendation of the American Bar Association that "[a] prospective juror who has been exposed to and remembers reports of highly significant information, such as the existence or contents of a confession, or other incriminating matters that may be inadmissible in evidence, or substantial amounts of inflammatory material, shall be subject to challenge for cause without regard to the prospective juror's testimony as to state of mind." II Standards for Criminal Justice, § 8-3.5(b) (Approved Draft 1978). ABA Standard 8-3.5(c) provides: "Whenever there is a substantial likelihood that, due to pretrial publicity, the regularly allotted number of peremptory challenges is inadequate, the court shall permit additional challenges to the extent necessary for the impaneling of an impartial jury." In considering pretrial publicity, the supreme court and this court have focused on the exposure of jurors to highly prejudicial information. Mallott, 608 P.2d at 749; Oxereok v. State, 611 P.2d 913, 919 (Alaska 1980); Jerrel v. State, 756 P.2d 301, 304 (Alaska App.1988); Chase v. State, 678 P.2d 1347, 1351 (Alaska App.1984). The article in the Phoenix Log contained material which was highly prejudicial to Nelson. The article reported that Nelson had been convicted of burglary and three counts of sexual assault. It indicated that Nelson had been imprisoned and recently released on probation. The article also stated that Nelson had been charged with a misdemeanor offense and that his bail on the present charge was $100,000. Five of the jurors who actually sat on the case remembered reading the article in the Phoenix Log. Although none of these jurors indicated that they remembered any of the prejudicial information, we find the exposure of the jurors to this article to be problematic. In Mallott the court stated that "the voir dire process is not an infallible Geiger counter of juror prejudice, and to rely excessively on its efficacy in uncovering 'actual prejudice' places an unrealistic burden on a defendant." Mallott, 608 P.2d at 748. It is difficult to question a juror about his or her exposure to prejudicial material without running the risk of further prejudicing the juror. A juror who has been exposed to inflammatory material, but indicates that he or she cannot remember this material, may find his or her memory refreshed during the course of the trial. In Oxereok, 611 P.2d at 919, the supreme court pointed out that inflammatory pretrial publicity had the potential of creating prejudice "much of which might be unconscious but no less real." We are not convinced that the court could not have selected an impartial jury in Seward. We do not believe that the court erred in refusing to change venue. However, given the number of jurors who were familiar with the witnesses in the case, and the exposure of several of the jurors to prejudicial pretrial information, the court needed to exercise extreme diligence to select an impartial jury. See Mallott, 608 P.2d at 749; Jerrel, 756 P.2d at 305; Chase, 678 P.2d at 1351. Given these problems, we conclude that the court was required to, at a minimum, either grant Nelson's challenge for cause of juror Lemme or grant Nelson additional peremptory challenges. Although Lemme ultimately stated that he could be fair, his answers on voir dire indicated that he was well acquainted with N.F. and her husband. On several occasions, he was equivocal as to whether he could fairly judge the case. In addition, Lemme had been exposed to the article in the Phoenix Log. His answers revealed that he was familiar with the details of the sexual assault which was reported in the paper. Again, "the voir dire process is not an infallible Geiger counter of juror prejudice, and to rely, excessively on its efficacy in uncovering 'actual prejudice' places an unrealistic burden on a defendant." Mallott, 608 P.2d at 748. Given the substantial difficulties in impaneling an impartial jury under the circumstances which we have outlined, the court should either have granted Nelson's challenge for cause of Lemme or have permitted additional peremptory challenges as suggested in the ABA Standards. We conclude that there is a substantial doubt whether Nelson was tried by an impartial jury. We accordingly reverse his conviction. Nelson raises one other issue which is necessary for us to decide. He contends that the trial court erred in refusing to suppress evidence which was seized from him at the jail following his arrest for the sexual assault. Police Corporal Michael Chapman obtained an arrest warrant and arrested Nelson shortly after the sexual assault. Chapman took Nelson to the Seward jail. At the jail David Thompson, a correctional officer, strip searched Nelson. Nelson's clothes were folded and placed on a chair. Following the search, Thompson gave Nelson a jumpsuit to wear. Chapman then transported Nelson to the hospital for a medical examination. Thompson completed the booking procedures when Nelson returned from the hospital. Chapman directed Thompson to place Nelson's clothes in the police evidence locker rather than follow the standard booking procedure, which would have been to place the prisoner's clothes in a prison locker for safe keeping. Chapman filled out an SD-10 form which was a standard police form which records items that have been seized as evidence. Thompson made an inventory of the articles of Nelson's clothing during the booking procedure. Nelson signed the inventory record. Thompson testified that it was standard procedure to have an inmate sign the inventory even when items had been placed in the evidence locker. The police sent Nelson's clothes to the FBI for examination. The analysis by the FBI revealed two of N.F.'s pubic hairs adhering to Nelson's undershorts. This evidence was introduced against Nelson at trial. Nelson moved to suppress the evidence which was obtained from the police seizure of his clothing. Nelson argued that when he was booked into the jail, his clothing was seized as part of the inventory procedure. The state contends, and Judge Cran-ston found, that Chapman seized Nelson's clothing during a search incident to an arrest. The parties to this appeal agree that, if Chapman seized Nelson's clothes as a search incident to an arrest, then it was not necessary for him to obtain a search warrant to seize the items. The parties also agree that if the clothing was not seized as a proper search incident to an arrest, but was instead seized as a preinearceration inventory search, then the police needed a warrant to seize Nelson's clothing. Reeves v. State, 599 P.2d 727, 736 (Alaska 1979). The parties are correct in their agreement as to the law governing this case. Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (appellate court independently must find that concessions are well-founded). There are only two valid justifications for a preincarceration inventory search. The first is to prohibit the introduction of weapons and other contraband into the jail. Reeves, 599 P.2d at 735. The second is to protect the inmate's property and to protect the jail against claims of loss or damage. Id. During the inventory search, correctional officials have no authority to conduct a general exploratory and investigatory search. The search is limited only to the noninvestigative. Id. at 736 n. 24. Therefore, if the search of Nelson's clothing was solely a preincarceration inventory search, then the seizure by the police of Nelson's clothing without a warrant was improper, and the evidence obtained from the examination of Nelson's clothing would have to be suppressed. If, however, the seizure of Nelson's clothing was a valid search incident to an arrest, then the seizure and examination of Nelson's clothing was lawful. During a search incident to arrest, the officer may search the arrestee for "weapons which might be used to harm the officer and for evidence of the crime for which the person has been arrested." Id. at 732 n. 11, quoting Feldman, Search and Seizure in Alaska: A Comprehensive Review, 7 UCLA-Alaska L.Rev. 75, 97-98 (1977) (citations omitted). The supreme court set out the requirements for a valid search incident to an arrest in McCoy v. State, 491 P.2d 127, 138 (Alaska 1971). The court restated those requirements in Zehrung v. State, 569 P.2d 189, 196 (Alaska 1977), mod. on reh'g, 573 P.2d 858 (Alaska 1978) (footnote omitted): (1) The arrest must be valid — probable cause for the arrest must exist or the search is unconstitutional. (2) The search must be roughly contemporaneous with the arrest.... (3) The arrest must not be a pretext for the search; a search incident to a sham arrest is not valid.... (4) Finally, the arrest must be for a crime, evidence of which could be concealed on a person. Nelson does not dispute the fact that his arrest was valid. As to the second requirement, that the search be roughly contemporaneous with the arrest, "a search of an arrestee remains incident to an arrest when it is conducted thereafter at the jail or place of detention rather than at the time and place of arrest." McCoy, 491 P.2d at 131. The Reeves court suggested that a search incident to arrest could be conducted at the jail, even contemporaneously with the preincarceration search. Reeves, 599 P.2d at 732 n. 10. In Lemon v. State, 514 P.2d 1151, 1157-58 (Alaska 1973), the court stated that it was permissible to conduct a search incident to an arrest at the station house to allow a more thorough investigation and to spare the arrestee unnecessary public embarrassment. Nelson argues that his case is similar to Reeves and Lyle v. State, 600 P.2d 1357 (Alaska 1979), cases where the supreme court found that the searches in question were preincarceration inventory searches. In Reeves, the police officer had arrested Reeves for driving while under the influence of intoxicating liquor. The officer conducted a breathalyzer examination at the police station and transported Reeves to the jail. After the officer left the jail, Reeves was searched by a correctional officer as part of the booking procedure. When the correctional officer found a balloon which appeared to contain drugs, he telephoned the police officer. The officer returned to the jail and examined the balloon. Reeves, 599 P.2d at 730. In Lyle, the arresting officer had turned Lyle, who had been arrested for operating a motor vehicle while under the influence of intoxicating liquor, over to the correctional officer for booking. The arresting officer had not left the facility at the time that the correctional officer found drugs on Lyle's person. However, the court concluded that "it is clear that the sole purpose of the search was to inventory Lyle's possessions as part of the booking procedure and not to make a delayed search incident to his arrest." Lyle, 600 P.2d at 1358 n. 4. In Nelson's case, Chapman was present when Nelson's clothes were removed and Chapman personally directed the correctional officer to place them in the evidence locker. Chapman filled out the standard form to show that he had seized the items as evidence. These actions were consistent with the procedures to be used during a search incident to an arrest. We believe that Judge Cranston could find, on these facts, that Chapman was conducting a search incident to an arrest at the same time that Nelson was being booked into the correctional facility. The third factor set out in McCoy, that the arrest must not be a pretext for the search, is also satisfied. The McCoy court stated, "Where there is probable cause to arrest for a particular crime of a type which can be evidenced by items concealed on a person there is little danger of a pretext arrest." McCoy, 491 P.2d at 139. As we have previously mentioned, Nelson has never disputed the validity of his arrest. Under the fourth requirement of McCoy, the arrest must be for a crime, evidence of which could be concealed on the defendant's person. Hair and fiber evidence is common and critical in sexual assault cases. It is clear from the record that it was standard police procedure to examine Nelson's clothes and person for evidence of sexual assault. We conclude that Judge Cranston could properly find that the police seized Nelson's clothing pursuant to a search incident to an arrest. Accordingly, we conclude that Judge Cranston did not err in refusing to grant Nelson's motion to suppress. The conviction is REVERSED. . The supreme court quoted this section of the ABA standard in Mallott at 608 P.2d 737, 749 n. 30. . The article was inaccurate in reporting that Nelson had been convicted of three counts of sexual assault; he had in fact been convicted on only a single count. The fact that Nelson had been convicted of burglary was introduced at trial, and there has been no claim that the prior conviction was introduced improperly. We are therefore less concerned about the fact that the jurors were exposed to information that Nelson had been convicted of burglary than we are about the other information concerning Nelson's criminal history which was inadmissible. . Our reversal of Nelson's conviction makes it unnecessary to reach the other issues which Nelson raises concerning his sentence.

10393430

Timothy Allan BUNESS, Appellant, v. Seanne GILLEN and Gerry Wayne Smith, Appellees

Buness v. Gillen

1989-10-27

No. S-2802