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10313299

NEAL & COMPANY, INC., an Alaska corporation, Appellant, v. CITY OF DILLINGHAM and CH2M Hill Northwest, Inc., Appellees

Neal & Co. v. City of Dillingham

1996-08-30

No. S-6525

89

96

923 P.2d 89

923

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T16:59:37.070555+00:00

CAP

Before RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

NEAL & COMPANY, INC., an Alaska corporation, Appellant, v. CITY OF DILLINGHAM and CH2M Hill Northwest, Inc., Appellees.

NEAL & COMPANY, INC., an Alaska corporation, Appellant, v. CITY OF DILLINGHAM and CH2M Hill Northwest, Inc., Appellees. No. S-6525. Supreme Court of Alaska. Aug. 30, 1996. R.R. De Young, Wade & De Young, Anchorage, for Appellant. R. Eldridge Hicks and Jeffrey S. Moeller, Hicks, Boyd, Chandler & Falconer, Anchorage, for Appellee City of Dillingham. D.K. “Kirby” Wright, Jr., Hintze • & Wright, Anchorage, for Appellee CH2M Hill Northwest, Inc. Before RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

4144

25091

OPINION RABINOWITZ, Justice. I. INTRODUCTION This appeal centers on the application of the notice requirement of the Differing Site Conditions clause found in a contract between appellant Neal & Company, Inc. (NCI) and appellee City of Dillingham (City). Ap-pellee CH2M Hill (Hill), the City's engineer on the project, is involved in this appeal primarily because it acted as the City's representative on the project. NCI claims that it encountered difficulties in excavation during the project because of unexpected soil conditions, that it gave notice of these unexpected conditions to Hill (and thus constructively to the City), and that therefore it is entitled to assert a claim under the Differing Site Conditions clause. The City and Hill claim that no notice of a differing site condition was given. The superior court ruled on partial summary judgment that NCI did not give adequate notice of a differing site condition. NCI also appeals the superior court's denial of its motions for leave to amend its complaint, for continuance of the trial, and for disqualification of thé trial judge. II. FACTS In February 1987 the City solicited bids for the construction of a sewerage facility. The project included two lagoon ponds. The lagoons were to be dug into a bluff outside of Dillingham. Interested bidders received a set of drawings and a volume containing bidding requirements, contract forms, conditions of the contract, and construction specifications, along with a "Geotechnical Data Summary." The geological survey and the data summary, as well as all technical specifications for the project, were completed by Hill, the City's engineer and on-site representative for the project. The first dig in the construction of the lagoons was to be a wedge-cut into the bluff from the surface down to an elevation of forty-seven feet. After the first dig down to the forty-seven foot level, the second dig would begin, consisting of the excavation of two ponds down from the flat area created by the first dig. The pools were to be eighteen feet deep, reaching an elevation of twenty-nine feet at their lowest point. The data summary stated that there was a layer of peat containing some silt infilling extending four feet to eight feet below the original ground surface. Below the peat was a layer of sand and silty sand interbedded with layers of silt extending about six to twelve feet below the peat zone. Below that, the data summary described the remaining depth of the excavation as "fairly uniform to the remaining depth of the borings, showing a layer of stiff-to-hard clay having low-to-medium plasticity." Regarding the clay layer, the data summary specified: "Occasional samples contained clay with gravel and sand suspended in the clay matrix, indicating that the clay unit may be a glacial till. No distinct bedding or layers of coarse grained material were found in the clay unit." The data summary went on to describe the process by which the lagoons could be constructed: The most attractive aspect of constructing the lagoons in the lower clay zone of the bluff is that they will not have to be lined. Also, native materials will not have to be recompacted to form the dikes, as the dikes can be constructed by carving the lagoons out of the bluff and leaving the clay intact around them. Construction concerns for this configuration are primarily slope protection against seepage and removal and disposal of the excavated material. A set of contract documents was sent to NCI. On April 1,1987, bids were opened and NCI was declared the low bidder at $2,059,-991. NCI began the excavation on June 6, 1987. Excavation of the first dig, down to the forty-seven foot elevation of the pond surface, was completed. Work was suspended in October 1987. The second dig, excavation of the pond prisms, began when the ground froze. Excavation was completed by April 20,1988. During the summer of 1987, while excavating the first dig, NCI encountered water bubbling through sand lenses in the excavation. Randy Mattoon, NCI's project superintendent, discussed with Tony Neal, president of NCI, the possibility of the existence of sand lenses impairing the integrity of the lagoon, which would allow sewage to escape. Mattoon also discussed the issue of water permeable sand lenses with Bob Richie, Hill's representative. Ken Green, a Hill geotechnical engineer, was scheduled to visit the project the week of July 27,1987. NCI contends that Green's visit was scheduled after and because of the Mattoon-Riehie conversation regarding the sand lenses. The City and Hill contend that Green's visit had already been scheduled. During Green's visit, a test pit was dug in each of the pond prisms, and a soil sample was taken from one of the pits. Green's field notes, taken at the time the pits were dug, indicate that at the level where the lagoons were to be dug, he saw "clayey silt Slightly plastic Blue Gray Moist slightly Blocky structure, stiff to n. stiff[.]" This level (two to nineteen feet down from the forty-seven foot elevation of the surface of the lagoon) had been described in the Data Summary as "a layer of stiff-to-hard clay having low-to-medium plasticity." During this time, the consistency of the soil was causing difficulties in NCI's excavation. The soil in the lagoon area turned into a sticky mud, creating problems with excavation and transportation. The consistency of the soil, and the difficulty of excavating it, form the basis of NCI's Differing Site Condition claim. During the 1988 phase of the excavation, water infiltration continued to cause problems. In October 1988, NCI advised Hill that it was considering legal action. NCI then filed suit. III. SUPERIOR COURT PROCEEDINGS . During the course of these proceedings, numerous claims and cross-claims were filed. The following are relevant to this appeal. On March 29, 1990, NCI filed a second amended complaint, which added NCI's Differing Site Condition claim to the lawsuit as the sixth cause of action, and added what NCI interprets as a defective specifications claim as the seventh cause of action. In May, NCI filed a substitute second amended complaint. Judge Beverly Cutler granted the motion to amend on August 6, 1990. In January 1991, the City, seeking indemnity from NCI's claims, filed a third-party complaint against Hill. In November 1991, Hill filed a motion for partial summary judgment based on the limitation of liability and indemnity clause in its contract with the City. The superior court ruled for Hill. The City filed a petition for review, which this court accepted and has since decided in City of Dillingham v. CH2M Hill Northwest, Inc., 873 P.2d 1271 (Alaska 1994). In April 1993, NCI moved for partial summary judgment, seeking to establish the sufficiency of its notice of differing site conditions. The City moved for summary judgment against both NCI and Hill. In October 1993 the superior court granted partial summary judgment to the City and dismissed NCI's sixth and seventh causes of action. The court subsequently denied NCI's motion for reconsideration. Meanwhile, in November 1993, NCI filed a motion for leave to amend its complaint and a motion to continue the trial. The superior court denied these motions. The superior court also denied NCI's motion to reconsider the denial of its motion to amend. On January 26,1994, NCI filed a motion to disqualify the judge. The next day, Judge Cutler refused to recuse herself, and referred the motion to the presiding judge for assignment. The motion was assigned to Judge Peter A. Michalski, who denied the motion for disqualification on January 31. On February 3, 1994, the parties reached a settlement, reserving to NCI the right to appeal the rulings which are now before us: the dismissal of NCI's sixth and seventh causes of action, the denial of NCI's motions for leave to file a third amended complaint and for continuance of the trial, and the denial of the motion to disqualify Judge Cutler. IV. DISCUSSION A. The Summary Judgment Dismissing NCI's Sixth and Seventh Causes of Action Resolution of this summary judgment turns on the interpretation and application of the Differing Site Conditions clause which, at the time the contract for this project was made, was required by the Environmental Protection Agency in contracts for projects with EPA funding. 40 C.F.R. § 33.1030 (1986). NCI filed a motion seeking to establish that oral communications with Hill constituted actual notice sufficient to meet the notice requirements in the Differing Site Condition contract clause. Paragraph 4(a) of the contract requires that the notice be in writing. Though there is no claim that NCI provided timely written notice of any differing site condition, case law establishes that under certain circumstances timely actual notice, even in the absence of written notice, will be considered sufficient notice under the clause. See, e.g., Brechan Enter. v. United States, 12 Cl.Ct. 545 (1987) ("[N]otice does not need to be in any specific format; it need only show the existence of the condition."). Therefore, the appeal of this summary judgment requires an interpretation of what qualifies as the minimum necessary notice under the clause, and, secondly, of whether the acts alleged here satisfy that minimum. In Brinderson Corp. v. Hampton Rds. San. Dist., 825 F.2d 41 (4th Cir.1987), a contractor had problems with wet soil conditions which forced it to incur increased costs. The court stated that "[generally, when the owner has actual or constructive notice of the conditions underlying the claim and an opportunity to investigate, that is sufficient." Id. at 44. Similarly, NCI's notice to the City, though not in writing, will be considered sufficient if it was clear and it alerted or should have alerted the City to the fact that NCI believed it had encountered differing site conditions. NCI claims that Green, and therefore Hill, was put on notice when Green met with NCI representatives to talk about problems with the composition of the soil and then actually took a soil sample and noted that its composition differed from what the data summary predicted. If Green knew upon looking at the soil that the site condition was materially different from what was expected, he was on notice even if the contractor continued to labor ignorantly, having no idea why work was progressing so slowly. NCI's position is that after concerns about sand lenses were expressed to Richie, Green was specially brought in to test the soil. When he looked at the pits he saw "clayey silt, " not clay, at the elevation of the lagoon prisms (ie., between elevations forty-seven and twenty-nine). NCI asserts that the clayey silt constituted a differing site condition, and that Green knew that it was. But NCI's assertions and suppositions are not supported by reasonable inferences from the evidence. When Green came to inspect the soil — even if he came in especially because of NCI's concerns — the reason for his visit was possible sand lenses in the floor of the lagoon, not the consistency of the material to be excavated. The notes he took were simply a recording of what he saw at various levels, not the focus of his investigation. Because of the concerns about sand lenses, Green came to the site and took a soil sample in the presence of representatives of NCI and Hill. The sample came from the twenty-seven foot elevation, which was two feet below the level anticipated for the lagoon floors. This again indicates that the concerns Richie and Green were addressing related to the eventual integrity of the lagoon floor, not to the difficulty of excavation. Green's log notes describing the composition of the soil on the way down the test pits were offhand assessments, not the focus of his attention. NCI asserts that Mattoon's characterization of the material within the lagoon prism as blue clay, and the level the sample was taken, are both evidence that Green knew about the differing site condition and attempted to mislead NCI into believing there was none. NCI speculates that Green, knowing that the presence of clayey silt was a differing site condition, lied to Mattoon to cover up the problem, telling him that they were looking at blue clay. But there is no evidence in the record that Green told Mattoon that the soil was blue clay, except for Mattoon's note indicating that they had found blue clay. Mat-toon's note nowhere states that he received this classification from Green. NCI also suggests that Green "used his superior knowledge to select a single sample that aided in the deception." Because the sample was taken from test pit 1, and not pit 2, and because it was taken from below the lagoon floor, NCI concludes that Green was taking the sample from a place he knew would be clay. But NCI's June-July 1987 concern regarding the soil composition, which Mattoon had expressed to Richie, was the integrity of the pond floors, not the difficulty of excavation. None of NCI's representatives found it remarkable at the time that Green took a sample from below the bottom of the lagoon. The only reasonable conclusion is that, since seepage in the lagoon floor was the concern, Green took a sample from the material which would eventually form the floor of the lagoon in order to test its characteristics. NCI's interpretation of the evidence is untenable. It relies entirely on conjecture to convert concerns expressed about the integrity of the pond floors into notice of unexpected conditions within the pond prisms. There is no reasonable interpretation of the facts which supports NCI's contention that it gave clear non-written notice of a differing site condition. The superior court correctly, dismissed NCI's sixth and seventh causes of action. B. Denial of NCI's Motions to Amend Complaint and for Continuance of Trial In November of 1993, NCI sought to amend its complaint. It reworded its seventh cause of action to indicate that it was intended to state a defective specifications claim rather than simply repeat the sixth cause of action's claim of differing site conditions. Also, NCI attempted for the first time to assert four separate claims directly against Hill. To this point, NCI had made all of its claims against the City, which then sought indemnity from Hill; there had been no direct NCI claims against Hill. Finally, NCI sought a continuance. The superior court denied all of these motions. NCI argues that the superior court's denial of leave to amend was based on a failure to apply Civil Rule 15(a), which provides that "leave shall be freely given when justice so requires." The superior court stated that it finds no manifest injustice in denying Neal leave to amend its complaint at this late date. Therefore the court finds that justice does not require amendment. Neal has had ample opportunity to pursue in a timely fashion all of the claims listed in the proposed Third Amended Complaint.... [Tjhere is no manifest injustice in failing to permit amendment on the eve of trial, after five years of preparation and motions. NCI claims that the superior court's application of the "manifest injustice" standard was an error. The superior court indicated in its order denying Neal's motion to amend his complaint that its reason for applying the "manifest injustice" standard was Civil Rule 16(e). While Civil Rule 15(a) directs that leave be "freely granted" by the court "when justice so requires," Civil Rule 16(e) states that pretrial orders following a final pretrial conference shall control unless modified by the judge "to prevent manifest injustice." NCI argues that the superior court was mistaken in its belief that a Civil Rule 16(e) pretrial order had been issued, and, therefore, that the superior court's application of Civil Rule 16(e) instead of Civil Rule 15 was an error. However, it is unnecessary to determine whether the superior court had issued a Civil Rule 16(e) pretrial order. If there was no Civil Rule 16(e) pretrial order, and the superior court therefore erred in applying the "manifest injustice" standard, that error was harmless. Even under the "freely given when justice so requires" standard, it is difficult to see why NCI should be allowed to amend its complaint again. After five years of litigation, including two amendments to its complaints, and after losing a major summary judgment motion, NCI requested leave to rework its causes of action and to bring four claims against Hill for the first time. Justice does not require that such leave be granted. The superior court carefully and accurately analyzed the amendments which NCI was offering to its complaint. All of its findings would sustain a denial of leave to amend under either the Rule 15(a) or the Rule 16(e) standard. Similarly, it was not an abuse of discretion for the superior court, at that late point in the litigation, to deny a continuance to NCI. C. Denial of NCI's Motion for Disqualification During a conference involving Tony Neal, President of NCI, NCI's counsel, and Hicks and Moeller, counsel for the City, Hicks told Neal about some contact he had with Judge Cutler. Judge Cutler had worked for Hicks approximately twenty years earlier, and they had occasional social contact since. There are some minor disputes as to some details. However, there is no record support for NCI's assertion of bias or lack of impartiality. In short, there is no merit in NCI's claim that Judge Cutler should have been disqualified. Judge Cutler and Judge Michalski did not err in denying the motion to disqualify. V. CONCLUSION Review of the record shows that the superior court correctly granted summary judgment against NCI on its Differing Site Conditions claim. NCI's other points on appeal, regarding the motions to amend, to continue the trial, and to recuse the trial judge, are also without merit. The rulings of the superior court and of Judge Michalski are AFFIRMED in all respects. MOORE, C.J., not participating. . In reviewing a grant of summary judgment, we "must determine whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law." Saddler v. Alaska Marine Lines, 856 P.2d 784, 787 (Alaska 1993). All reasonable factual inferences must be drawn in favor of the non-moving party. Wright v. State, 824 P.2d 718, 720 (Alaska 1992). When reviewing a trial court's interpretation of contract language, based solely on documentary evidence, this court will use its independent judgment. Klosterman v. Hickel Inv. Co., 821 P.2d 118, 122 (Alaska 1991). . The Brinderson court held that the resident engineers "were on the site, and aware of the problems, and they had abundant opportunity to inspect and investigate. This satisfied the notice requirement." Brinderson, 825 F.2d at 45. . "A DSC exists if the actual conditions of the site differ materially from what . a contractor would have expected based on indications in the contract." Municipality of Anchorage v. Frank Coluccio Constr. Co., 826 P.2d 316, 323 (Alaska 1992). .The superior court entered the following relevant findings of fact regarding the differing site condition issue: Here the court finds that, under the case law cited by Neal & Co., in order for oral notice to be sufficient to replace the written notice specifically called for in the contract, either the oral notice must have given actual notice of differing site conditions to CH2M Hill and/or the City, or the oral notice must be oral notice that would have given notice of differing site conditions to CH2M Hill and/or the City except for conditions beyond Neal & Co.'s control. The court notes that in this case there is a genuine dispute regarding to whom notice of a differing site condition must be given. Given the court's holding discussed below that Neal & Co. did not give adequate notice to CH2M Hill, the court does not reach this latter issue. The court finds that Neal & Co. failed to give oral notice of differing soil conditions in the lagoon excavation, sufficiently forceful to anyone to replace the contractual requirement of clear written notice. This holding is based on the fact that Neal & Co. merely suggested, once, that there might be a differing soil condition, and when this suggestion was rejected by CH2M Hill, Neal & Co. dropped the subject. There was no appeal to higher authority of this rejection by Neal & Co., or specific or repeated oral notice given, as occurred in W.C. Shepherd [v. United States, 125 Ct.Cl. 724, 113 F.Supp. 648 (1953)] and Brinderson. The court also finds nothing in the record indicating that CH2M HU1 had any actual knowledge of differing conditions. There were no Field or Change Orders requested by any party, or issued because of the alleged sand lenses. Neal & Co. has not submitted any evidence tending to show that any CH2M Hill employee observed a changed condition. The record does indicate that CH2M Hill examined the site once for sand lenses, and did not find any. The court holds that the mere fact that CH2M Hill conducted such examination is not evidence that CH2M Hill had actual knowledge of a differing condition. The court finds that, at best, Neal & Co. gave a tentative and equivocal notice that there may have been a differing site condition at the lagoon site, and holds that this notice was not sufficient to replace the written notice requirement of E.P.A. Contract Clause 4(a), or to support a claim for equitable adjustment of the contract price under 4(c). See, Blankenship Const[r], Co. v. N.C. State Highway Comm'n, 28 N.C.App. 593, 222 S.E.2d 452, 461 (1976). Based on the discussion above, the court finds that there is no material fact dispute regarding Neal & Co.'s purported notice to CH2M Hill, and based on the facts noted, the court holds as a matter of law that the City is entitled to summary judgment that Neal & Co.'s differing site condition claim is barred for lack of adequate notice as required by E.P.A. Contract Clause 4(c) and Contract General Condition 58. Neal & Co.'s differing site condition claim against the City of Dillingham is hereby dismissed from this case. In denying NCI's motion for reconsideration, the superior court stated in part: If Neal in fact encountered a differing site condition for which contract adjustment and written notice were required, Neal as the contractor on a large public works project, engaged in the actual earthwork that was the primary focus of the project and doing the actual encountering of differing conditions, if such were truly encountered, had the responsibility to give written notice or other compelling notice. . The superior court read NCI's seventh cause of action as a restatement of the sixth cause of action, which was explicitly a Differing Site Condition claim. NCI maintains that the seventh cause of action was a defective specifications claim, not a Differing Site Condition claim. It is unnecessary to determine whether NCI is correct in this assertion, as a defective specifications claim under the circumstances of the case at bar would fall to the same deficiency of notice which defeats the Differing Site Condition claim. NCI contends that the notice requirement does not apply to defective specifications claims. For this proposition, NCI cites Paragraph 3(a)(4) of the standard EPA specifications. But Paragraph 3 deals with compensation for change orders issued by the City or Hill, whereas Paragraph 4 addresses equitable adjustments due to site conditions differing materially from those contemplated in the contract. Compare 40 C.F.R. § 33.1030 ¶ 3 with 40 C.F.R. § 33.1030 ¶4. Regardless of whether NCI's seventh cause of action states a different claim from its sixth cause of action, both are subject to the notice requirement of Paragraph 4. . We apply an abuse of discretion standard in reviewing a trial court's denial of a motion for leave to amend. James v. State, 815 P.2d 352, 359 (Alaska 1991). A denial of a motion for continuance is also reviewed under an abuse of discretion standard. House v. House, 779 P.2d 1204, 1206 (Alaska 1989). . A trial court's decision not to recuse itself is reviewable on an abuse of discretion standard, as is a decision by a reviewing judge not to disqualify the trial judge. Amidon v. State, 604 P.2d 575, 577 (Alaska 1979). The refusal to recuse the trial judge will be reversed only when it is evident that no fair-minded person could have come to the same conclusion on the basis of the known facts. Alaska Trams Corp. v. Alaska Elec. Light & Power, 743 P.2d 350, 353 (Alaska 1987); Amidon, 604 P.2d at 577.

10398651

Major TOWNSEL, III, Appellant, v. STATE of Alaska, Appellee

Townsel v. State

1988-11-04

No. A-1850

1353

1356

763 P.2d 1353

763

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T16:59:32.179770+00:00

CAP

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

Major TOWNSEL, III, Appellant, v. STATE of Alaska, Appellee.

Major TOWNSEL, III, Appellant, v. STATE of Alaska, Appellee. No. A-1850. Court of Appeals of Alaska. Nov. 4, 1988. Michael Dieni, Asst. Public Advocate, and Brant McGee, Public Advocate, Anchorage, for appellant. David Mannheimer, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

1857

11480

OPINION COATS, Judge. Major Townsel was convicted, following a jury trial, of four counts of robbery in the first degree, AS 11.41.500(a)(1), and one count of misconduct involving weapons in the first degree, AS 11.61.200(a)(3). Judge Rene Gonzalez sentenced Townsel to the presumptive seven-year term for each count of robbery. He imposed three of the robbery sentences concurrently but imposed the fourth sentence consecutively. Judge Gonzalez sentenced Townsel to a five-year concurrent term for misconduct involving weapons. Thus, Townsel's composite sentence is fourteen years. Townsel appeals his conviction and sentence. Townsel first argues that Judge Gonzalez erred in failing to grant his suppression motion. He argues that the evidence against him was obtained as the result of a traffic stop which was used as a pretext for a search. In deciding this issue, Judge Gonzalez issued a written decision which set out the facts of the case as he found them. Judge Gonzalez found as follows: On January 5, 1986 at approximately 11:58 p.m. an individual robbed the Oaken Keg at 900 East Dimond Boulevard in Anchorage. Anchorage Police Officer Mizelle responded at approximately 11:59 p.m. and made contact with the alleged victim Glenda Morrison. Ms. Morrison informed the officer that a juvenile black male between the ages of 16-20, approximately 5'6"-5'-7" and 130-140 pounds with black hair and brown eyes had just robbed the Oaken Keg. The individual was described as wearing a brown and white bandanna and a floppy or ski type hat. The individual had left on foot travelling east bound from the Oaken Keg and Carrs complex. After the robbery Ms. Morrison had contacted her supervisor by intercom. The supervisor apparently contacted Ms. Morrison in person and notified the police. A police dispatcher relayed the information obtained from the Oaken Keg personnel over the radio to on duty officers. At approximately 11:58 p.m. Officer David Rochford was on duty at the intersection of 36th and "A" when he was advised by dispatch that an armed robbery had taken place at the Oaken Keg at Old Seward and Dimond. Dispatch indicated that the suspect was a juvenile black male, armed with a rifle, and had fled on foot. Officer Rochford proceeded to the intersection of New Seward and 36th Avenue and arrived at said intersection approximately two minutes later. Upon his arrival he observed a vehicle traveling north bound at the speed limit. The following vehicle infractions were observed by Officer Rochford: vehicle had its left headlight out, the driver's window was obstructed by clouded visqueen, a taillight lens was broken allowing white light to shine through, and the license plate was obscured. Rochford let the vehicle travel out of view. He used his emergency lights to cross the intersection and turn onto the New Seward. When Officer Rochford was behind subject vehicle, he determined that the vehicle was exceeding the speed limit by ten miles per hour — by travelling at approximately 55 miles per hour in a 45 mile per hour zone. Officer Rochford testified that he would have stopped the vehicle for the traffic and vehicular infractions in the normal course of his duties. Consequently the officer stopped the vehicle. At the driver's window, the officer asked the driver to exit the vehicle. The driver explained that because the driver's door did not open, he had to exit from the passenger side. As the driver slid across the seat and exited from the car, the officer asked him for his driver's license. As the driver spoke the officer saw the muzzle of a rifle in the back seat of the car. When the officer told the driver not to touch the rifle the defendant reached for the gun. The officer drew his weapon and the defendant threw the rifle to the ground and fled on foot. The officer was unable to catch the defendant. Another officer arrived on the scene and seized a license, a wallet, a bag and a rifle from the vehicle. A search warrant was issued to search defendant's residence and to further search the vehicle based upon the evidence seized. Relying upon the evidence found in the vehicle and at the defendant's residence, the defendant was charged in the indictment with four courts of robbery in the first degree, one count of burglary in the second degree, and one count of misconduct involving weapons in the first degree. These facts, as found by Judge Gonzalez, are supported by the record. Judge Gonzalez then concluded as follows: Officer Rochford had substantial evidence to stop defendant's vehicle for violations of traffic regulations and the evidence presented does not support the assertion that this was merely a pretext stop. Townsel cites Brown v. State, 580 P.2d 1174 (Alaska 1978) as the leading Alaska case in support of his position. Brown does establish that "an arrest (or a traffic stop) should not be used as a pretext for a search." Id. at 1176 (footnote omitted). However, the case also establishes that where "there is substantial evidence to support the trial court's determination that [the defendant's] vehicle was stopped for a violation of traffic regulations and that [the stop] was not a pretext stop," then the stop was not illegal. Id. at 1176 (footnote omitted). Officer Rochford testified that he stopped the vehicle for the traffic and vehicular infractions, not on a pretext to enable him to investigate the robbery. He testified that he would have made this stop under normal conditions if he was not investigating the robbery. Judge Gonzalez found the officer's testimony to be credible and this conclusion is not clearly erroneous. We conclude that Brown is controlling, and we affirm the trial court's decision. Townsel next argues that his sentence was excessive. Townsel was thirty-five at the time of these offenses and had no prior felony convictions. In 1981, he served seventeen days in jail for misconduct involving weapons; in the presentence report Town-sel indicated he had discharged a firearm in the city limits. In 1976, he was fined $500 dollars for possession of marijuana. He has had several non-serious traffic violations. Townsel served two years in the military and received an honorable discharge. In sentencing Townsel, Judge Gonzalez found that the four armed robberies were planned. He noted that all of the robberies involved robbing businesses at a time when older women were alone in the establishment. He noted that the robberies were all done with a weapon which had been specially modified so that it could be easily concealed. Judge Gonzalez also considered the fact that Townsel had lunged for the weapon when confronted by the officer during the stop. He found Townsel's pattern of conduct to be particularly serious. Robbery in the first degree is a class A felony. The maximum sentence is twenty years. The presumptive sentence for a first felony offender who possesses a firearm during the offense is seven years. A second felony offender faces a ten-year presumptive term, a third felony offender fifteen years. In Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981), we stated the general rule that "[njormally a first offender should receive a more favorable sentence than the presumptive sentence for a second offender. It is clear this rule should be violated only in an exceptional case." Thus, Judge Gonzalez could sentence Townsel to a sentence of ten years or greater only if he found the case to be exceptional. Furthermore, the A.B.A. Standards governing sentencing alternatives and procedures provide that "[f]or most offenses, the maximum prison term authorized ought not to exceed ten years and normally should not exceed five years. Longer sentences should be reserved for particularly serious offenses committed by particularly dangerous offenders." Ill Standards for Criminal Justice, § 18-2.1 (2nd ed. Supp.1982). We have defined who is a particularly dangerous offender by referring to the A.B.A. Standard governing habitual offenders. Id. at § 18-4.4. That standard defines an habitual offender as one who has been convicted of at least two prior felonies, which were committed on two different occasions, within five years of the present offense. Under the standards, the habitual offender must have previously served a sentence in excess of one year. Under the A.B.A. Standards, therefore, Townsel does not qualify as either a habitual offender or a particularly dangerous offender. Because Townsel has never been previously convicted of a felony nor served an extensive period of confinement, we do not believe that there is a reliable basis for concluding that he is incapable of rehabilitation or that his isolation from society for a period in excess of ten years is necessary. Except in cases where the defendant has committed an unclassified felony, this court and the Alaska Supreme Court have followed the A.B.A. Standard ten-year benchmark. See Pruett v. State, 742 P.2d 257 (Alaska App.1987); Skrepich v. State, 740 P.2d 950 (Alaska App.1987). Recently, in Williams v. State, 759 P.2d 575 (Alaska App.1988), this court followed the A.B.A. Standards in a case similar to Townsel's. Williams was sentenced to ten years' imprisonment in federal court for armed bank robbery and for using a deadly weapon during a crime of violence. Williams was also convicted of three second-degree robberies in state court. In state court, the sentencing judge sentenced Williams to eight years with five years suspended, but imposed that sentence consecutively to the earlier ten-year federal sentence. We found that the sentencing judge was clearly mistaken in imposing Williams' three-year unsuspended terms consecutively to his ten-year federal prison term. We thus ordered Williams' sentence reduced to a composite sentence of fifteen years with five years suspended on both his state and his federal charges. Thus, Williams' term of actual imprisonment was ten years. It appears to us that Townsel's case is very similar to Williams. Townsel was thirty-five years old at the time of his offense. Williams was a significantly younger offender at eighteen years of age. However, Williams had an extensive history of minor property and weapon offenses as a juvenile. Furthermore, Williams had been arrested soon after committing the sixth in a series of strong-armed robberies. While he was released on bail, Williams committed the armed robbery of a federal credit union. Townsel's case is aggravated by his consistent use of an illegal weapon and his dangerous confrontation with the police officer when he was stopped. On balance, we conclude that Williams and Townsel are similar offenders who deserve similar sentences. Although both offenders qualify for severe sentences, we do not believe that they qualify for sentences in excess of the ten-year A.B.A. Standard benchmark. We accordingly find Town-sel's sentence to be clearly mistaken. We AFFIRM Townsel's conviction. We VACATE Townsel's sentence, and we REMAND to the trial court with directions to impose a sentence of fourteen years with four years suspended.

10398713

George A. KONRAD, Appellant, v. STATE of Alaska, Appellee

Konrad v. State

1988-11-10

No. A-2126

1369

1381

763 P.2d 1369

763

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T16:59:32.179770+00:00

CAP

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

George A. KONRAD, Appellant, v. STATE of Alaska, Appellee.

George A. KONRAD, Appellant, v. STATE of Alaska, Appellee. No. A-2126. Court of Appeals of Alaska. Nov. 10, 1988. Janet L. Crepps, Gilmore & Feldman, Anchorage, for appellant. Cynthia M. Hora, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

6563

40790

OPINION BRYNER, Chief Judge. George A. Konrad was convicted, following a jury trial, of assault in the third degree, assault in the second degree, and terroristic threatening. Konrad appeals, arguing that the trial court erred in failing to dismiss his indictment, that Alaska's ter-roristic threatening statute is unconstitutionally vague, that the evidence presented at trial was insufficient to support his conviction, that the trial court erred in excluding testimony offered to impeach the victim, and that the court erred in denying his motion for a new trial when a new judge was assigned to his case for purposes of conducting sentencing proceedings. We affirm Konrad's convictions for second-degree assault and terroristic threatening, but vacate his conviction for third-degree, assault. BACKGROUND Konrad was indicted for a series of incidents that occurred during the breakup of his marriage to Luann Konrad. The indictment charged Konrad with third-degree assault for recklessly causing physical injury to Luann Konrad by striking her on the head and ribs with his hands, with second-degree assault for recklessly causing serious physical injury to Luann by throwing her off a bed onto a wooden crate, and with terroristic threatening for engaging Luann in a telephone conversation in which Konrad repeatedly threatened to kill her. ASSAULT IN THE THIRD DEGREE On May 9, 1986, following a heated argument, George Konrad struck Luann Konrad twice with his hands: once on the head and once on the ribs. Luann Konrad experienced abdominal pain following the assault. Several days later a physician determined that the blow to Luann's midsection had injured her spleen, causing it to bleed into her abdominal cavity. The injury resolved itself without treatment. Based on the May 9 incident, the state requested the grand jury to charge Konrad with assault in the third degree. The state proceeded under AS 11.41.220(a)(2), which states that "a person commits the crime of assault in the third degree if that person recklessly . causes physical injury to another person by means of a dangerous instrument." The state's theory was that Konrad's hands were dangerous instruments. After reading the statutory definition of "dangerous instrument" to the grand jury, the prosecutor stated, in relevant part: "I would instruct you at this time that in the state of Alaska hands or feet can be considered a dangerous instrument under the definition that I have given you of a dangerous instrument." The grand jury returned a true bill. Prior to trial, Konrad moved to dismiss the third-degree assault charge, challenging the propriety of the prosecutor's instruction to the grand jury. The superior court denied Konrad's motion. At trial, Konrad unsuccessfully moved for a judgment of acquittal on the third-degree assault charge, contending that the evidence was insufficient to establish the use of a dangerous instrument. Konrad now renews these arguments on appeal. The term "dangerous instrument" is defined in AS 11.81.900(b)(ll): (11) "fDJangerous instrument" means any deadly weapon or anything which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is capable of causing death or serious physical injury. "Physical injury" and "serious physical injury" are in turn defined in AS 11.81.-900(b)(40) and (50): (40) "[Pjhysical injury" means a physical pain or an impairment of physical condition; (50) "[S]erious physical injury" means (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. This court has never squarely decided whether a bare hand can be a "dangerous instrument" within the meaning of these provisions. In Wettanen v. State, 656 P.2d 1213 (Alaska App.1983), we held that a bare foot could qualify as a dangerous instrument under certain circumstances. The evidence there established that Wetta-nen had kicked another person repeatedly about the face and head, inflicting serious physical injuries. Because the state neglected to establish whether Wettanen was shod when he committed the assault, it was necessary to decide if a bare foot could qualify as a dangerous instrument. We concluded that sufficient evidence had been presented at trial to allow a finding that Wettanen's foot was a dangerous instrument, even if it was unshod. Id. at 1218. In reaching, this conclusion, we expressly declined to decide whether a bare hand could similarly qualify as a dangerous instrument, noting that the cases from other jurisdictions on the issue are in conflict. Id. at 1218. Since deciding Wettanen, we have had no occasion to resolve this issue. In at least one case, however, we have assumed that a hand might qualify as a dangerous instrument in some situations. See New v. State, 714 P.2d 378, 383 (Alaska App.1986). For the purpose of deciding the present case, we may likewise assume that there is no categorical prohibition against a hand being deemed a dangerous instrument under the definition set forth in AS 11.81.900(b)(ll). Our prior cases nevertheless firmly establish that the question of whether a hand qualifies as a dangerous instrument in any given case must be answered by examining the precise manner in which the hand is actually used. The need to focus on the specific circumstances of each case derives from the definition of "dangerous instrument." While the statutory definition encompasses "anything" that is capable of causing death or serious physical injury, the express language of the statute requires that an instrument's potential for causing death or serious physical injury be assessed in light of "the circumstances in which it is used, attempted to be used, or threatened to be used." AS 11.81.900(b)(ll). It is the actual use of the instrument in each case that must be considered, not abstract possibilities for use of the instrument in hypothetical cases. We emphasized this point in Wettanen, cautioning that "every . blow, even if it causes serious injury, will not automatically be an assault with a dangerous instrument." Wettanen, 656 P.2d at 1217. We pointed out that the inquiry must focus on the vulnerability of the victim and the specific nature of the assault in each case. Id. at 1217. In this regard, we emphasized that "the requirement of a dangerous instrument serves to shift the focus of the trier of facts' attention from the result (physical injuries), which in any given case may have been unforeseeable to the defendant at the time the assault was committed, to the manner in which the assault was committed." Id. at 1218. We elaborated on Wettanen in Carson v. State, 736 P.2d 356 (Alaska App.1987), hearing denied, 742 P.2d 782 (Alaska 1987), a case involving an analogous situation. In that case, police officers performing a misdemeanor arrest subdued Carson by kicking him in the groin and unleashing a police dog, which bit Carson on the legs and buttocks until he ceased struggling. At issue was whether the officers' actions amounted to "deadly force." The applicable statute defined "deadly force" to include any force used under circumstances that "create a substantial risk of causing death or serious physical injury." See AS 11.81.900(b)(12); Carson, 736 P.2d at 361. We found that the evidence in Carson did not support a finding that deadly force had been used. In reaching this conclu sion, we emphasized the need to focus on the actual risk of serious physical injury posed in the specific case, rather than on the abstract possibility of serious physical injury under other, hypothetical circumstances. We said, in relevant part: 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. 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. Carson, 736 P.2d at 361 (citations omitted). When read together, Wettanen and Carson stand for the proposition that, before a hand may be deemed a "dangerous instrument," the state must present particularized evidence from which reasonable jurors could conclude beyond a reasonable doubt that the manner in which the hand was used in the case at issue posed an actual and substantial risk of causing death or serious physical injury, rather than a risk that was merely hypothetical or abstract. Obviously, whenever serious physical injury does in fact occur, there will be prima facie evidence to support a finding that a dangerous instrument was used. Conversely, when serious physical injury does not occur, other case-specific evidence must be adduced to establish that the risk of such injury was both actual and substantial, even though it did not in fact occur. The facts of the present case are problematic when viewed in light of this analysis. We consider initially the grand jury proceedings. The state did not contend below, and it does not argue on appeal, that Luann Konrad suffered serious physical injury when Konrad struck her with his hands. In presenting its case to the grand jury, the prosecution instructed that "under Alaska law hands or feet can be considered dangerous instruments." The ambiguity of this instruction is troublesome. While it might be taken to indicate that the decision as to whether Konrad's hands were dangerous instruments was a factual one to be made by the grand jury, it might as readily be taken to indicate that there was no need at all for the grand jury to consider the issue, since it was settled as a matter of Alaska law. In our view, the giving of this instruction raises a serious question as to whether the grand jury in Konrad's case ever actually determined, as a factual matter, whether Konrad used his hands in a manner capable of inflicting death or serious physical injury- In any event, even without the ambiguous instruction, we believe that the circumstances of the present ease would have been sufficiently unique to require a specific admonition to the grand jury concerning the manner in which it was required to determine whether a dangerous instrument had been used. We recognize that the grand jury was appropriately instructed on the statutory definitions of "dangerous instrument," "physical injury," and "serious physical injury." Nevertheless, when, as in the present case, the defendant is alleged to have used a dangerous instrument that was not a "deadly weapon" and that did not actually inflict death or serious physical injury, the possibility that the grand jury might decide the instrument's potential for causing injury as an abstract or hypothetical matter is, in our view, sufficiently great to require that an express instruction be given. The instruction should alert the grand jury to the need for it to find, based on the evidence in the case before it, that the defendant used an instrument in a manner that actually created a substantial risk of death or serious physical injury. In view of the lack of an appropriate clarifying instruction and the ambiguity of the instruction actually given, we conclude that the trial court erred in denying Konrad's pretrial motion to dismiss the count charging him with assault in the third degree. We must separately consider whether sufficient evidence was presented at trial to support Konrad's conviction of assault in the third degree. As we have already indicated, the state does not allege that the evidence established that Konrad inflicted serious physical injury by striking Luann Konrad with his hands. While Luann suffered internal bleeding from the spleen, the condition healed without treatment within a short period of time. No medical evidence was adduced to establish that Luann's condition verged on becoming more serious or that a blow to the ribs similar to that inflicted by Konrad actually posed a risk of inflicting more severe injuries to the spleen or to other internal organs. See, e.g., James v. State, 671 P.2d 885, 888-89 (Alaska App.1983), rev'd on other grounds, State v. James, 698 P.2d 1161 (Alaska 1985). Apart from Luann Konrad's testimony that Konrad's hand was in a fist when he struck her, there is nothing in the record to establish that the manner in which Konrad used his hands was inordinately violent or particularly calculated to inflict serious physical injury. No evidence was offered to suggest that Konrad had received martial arts training or that he was otherwise skilled in using his hands to inflict physical injury. Other than the fact that Konrad had awakened Luann Konrad shortly before he assaulted her, there was no evidence to suggest that she was especially susceptible to incurring a serious physical injury. Although it can be inferred that Luann would have been better able to ward off Konrad's blows and to prevent the injuries that she did receive had she not recently been asleep, nothing in the evidence establishes that she was vulnerable to suffering injury more serious than that actually inflicted merely because she had been sleeping and was caught off guard by Konrad's assault. In arguing that the evidence was sufficient to support a finding that Konrad's hands were dangerous instruments, the state notes that, after the assault, Konrad offered to take Luann to the doctor when he got back from work. The state contends that this evidence reflects upon the seriousness of Konrad's assault and could legitimately be relied on by the jury. To the extent that Konrad's offer of assistance betrayed his awareness that he had assaulted Luann Konrad with sufficient force to inflict injuries requiring medical treatment, the state is correct. However, the evidence does nothing to indicate that Konrad believed he had inflicted serious physical injury, as opposed to nonserious physical injury. Consequently, the evidence fails to establish, either directly or inferentially, that his assault created an actual and substantial risk of serious physical injury. In ruling on the sufficiency of the evidence at trial, we must view the evidence and the inferences arising therefrom in the light most favorable to the state to determine whether reasonable jurors could conclude that the defendant's guilt was established beyond a reasonable doubt. Snyder v. State, 661 P.2d 638, 641 (Alaska App.1983); Des Jardins v. State, 551 P.2d 181, 184 (Alaska 1976). Applying this standard to the present case, we conclude that insufficient evidence was adduced to support Konrad's conviction of third-degree assault. In our view, the evidence cannot justify a finding that Konrad's hands qualified as dangerous instruments. On the record of the present case, a conclusion that Konrad's hands were capable of causing death or serious physical injury under the circumstances in which they were actually used— that is, that they actually created a substantial risk of death or serious physical injury to Luann Konrad — would be wholly speculative. Were we to find sufficient evidence in this case to support a conclusion that Konrad's hands were dangerous instruments, a similar conclusion would be justified in virtually every case involving blows struck with fists that inflicted some physical injury. We conclude that the trial court erred in denying Konrad's motion for a judgment of acquittal as to the charge of assault in the third degree. ASSAULT IN THE SECOND DEGREE On August 24, 1986, Konrad became angry with Luann Konrad and threw her off of their bed. She struck the corner of a wooden crate that was on the floor; as a result of the blow Luann suffered a collapsed right lung. Treatment of this injury required surgical perforation of Luann's ribcage and the insertion of a tube to reinflate the lung. The treatment necessitated Luann's hospitalization for a period of six days. Konrad's August 24 assault was the basis for his conviction of assault in the second degree. Under AS 11.41.210(a)(2), second-degree assault occurs when a "person recklessly causes serious physical injury to another person." On appeal, Konrad argues that the evidence below was insufficient to establish serious physical injury. "Serious physical injury" may be proved, inter alia, by evidence establishing that the defendant inflicted physical injury by "an act performed under circumstances that create a substantial risk of death." AS 11.81.900(b)(50)(A). This definition of serious physical injury focuses on the circumstances in which the defendant performed the act that caused physical injury. The fortuity of prompt medical treatment and speedy recovery by the victim is not a primary consideration. See James v. State, 671 P.2d at 888-89. At trial, Dr. David D. Anderson testified that Luann Konrad sustained a pneumotho-rax, or a collapsed lung caused by air seeping into the chest cavity. Dr. Anderson characterized the injury as life threatening. He likened the risk of death to that involved in open heart surgery. Despite repeated cross-examination by Konrad's counsel, Dr. Anderson steadfastly refused to say that the risk of death posed to Luann Konrad by her injury was not substantial. To the contrary, the doctor testified that "there is a definite risk of death, there is no getting around it." When viewed in the light most favorable to the state, Dr. Anderson's testimony provides ample evidence from which the jury could have reasonably concluded that Luann Konrad suffered a serious physical injury as a result of the August 24 assault. The trial court did not err in denying Konrad's motion for a judgment of acquittal as to the charge of assault in the second degree. TERRORISTIC THREATENING On November 20, 1986, George and Luann Konrad spoke to each other by telephone. Their conversation lasted for about one-half hour. During the second half of the conversation, Konrad repeatedly threatened to kill his wife if she prevailed in a child custody dispute that was then pend ing in the superior court. Luann Konrad recorded the entire conversation. Konrad's death threats served as the basis for his conviction of terroristic threatening. A. Failure to Present Exculpatory Evidence to the Grand Jury During the grand jury hearing on Konrad's case, the prosecution played only the latter portion of the recorded conversation between Konrad and his wife. That was the portion in which Konrad made his threatening statements. Prior to trial Konrad unsuccessfully moved to dismiss the terroristic threatening charges, arguing that the prosecution breached its duty to present exculpatory evidence by failing to play the entire recorded conversation, as well as two prior conversations between Konrad and Luann that were recorded on the same tape. Konrad renews his argument on appeal. He contends that the first portion of the tape would have tended to establish that Luann was not particularly afraid of Konrad and that she in effect goaded him into making the threats upon her life. We are unpersuaded by Konrad's argument. While the prosecution must disclose exculpatory evidence to the grand jury, Frink v. State, 597 P.2d 154, 164 (Alaska 1979), there is no duty to present "possibly favorable" evidence or to develop potential theories of defense. Abruska v. State, 705 P.2d 1261, 1272 (Alaska App.1985); Tookak v. State, 648 P.2d 1018, 1021 (Alaska App.1982). In the present case, there was nothing inherently exculpatory in the portion of the recorded conversations that remained unplayed. Konrad was charged with terroristic threatening under AS 11.-56.810(a)(2), which applies when a person, "with intent to place another person in fear of death or serious physical injury to the person or the person's immediate family, makes repeated threats to cause death or serious physical injury to another person." Because this statutory definition hinges the offense of terroristic threatening on the specific intent of the accused rather than on the subjective reaction of the victim, the fact that Luann Konrad may not have appeared to be particularly afraid of Konrad during the initial portion of their conversation is not directly relevant to the issue of Konrad's guilt or innocence. Moreover, no defense arises under the statutory definition of the offense merely because the accused is in some manner provoked to threaten the victim. It is theoretically possible that the un-played portions of the tape might have had some indirect relevance on the issue of Konrad's specific intent to place Luann Konrad in fear. A person who is provoked and makes threats out of anger may act without a specific intent to cause fear. Thus, if the earlier portion of the recorded conversation revealed significant provocation, it should arguably have been played to provide a context from which the grand jury could have determined Konrad's intent in making the threats contained in the latter part of the recording. In this connection, however, our review of the recorded conversation convinces us that the unplayed portion of the tape could have had no substantial exculpatory value. To the extent that the unplayed portion reveals any provocation of Konrad by Luann Konrad, that provocation is decidedly slight in comparison to the threats of death that followed. Given the marginal extent of provocation on the unplayed portion of the tape and the repeated and apparently deliberate nature of Konrad's subsequent death threats, we are satisfied that a playing of the full conversation would not have been substantially favorable to the defense in this case. We find no error. B. Lesser-Included Offense Konrad was initially charged by information with attempted coercion, in violation of AS 11.41.530(a)(1) and AS 11.31.100(d)(4). Because coercion is a class C felony, attempted coercion constitutes a class A misdemeanor. AS 11.31.100(d)(4). In presenting Konrad's case to the grand jury, the prosecution elected to ask for a charge of terroristic threatening instead of attempted coercion. The offense is a class C felony. See AS 11.56.810(b). During the grand jury hearing, a grand juror asked the prosecutor, with respect to the terroristic threatening charge: Is there — are there other avenues of potential counts or charges for threatening people's lives? The prosecutor responded: We considered other charges, but unfortunately there's not anything that's a real good fit, and the legislature amended terroristic threatening; it used to not include threats that were made to people and their family members, and they recently amended it so it seems to me that that's probably the closest fit that we're going to get. In moving to dismiss the indictment below, Konrad argued that the prosecutor was obligated to submit the crime of attempted coercion to the grand jury as a possible lesser-included offense of terroristic threatening. Konrad repeats this argument on appeal. He acknowledges that there is normally no duty to offer the grand jury a lesser-included offense when sufficient evidence is presented to support a greater offense. See Oxereok v. State, 611 P.2d 913, 916-18 (Alaska 1980); Castillo v. State, 614 P.2d 756, 763 (Alaska 1980). Nevertheless, Konrad insists that an instruction on attempted coercion was necessary in the present case in light of the grand jury's specific request for possible alternative charges. In our view, however, the prosecution's response to the grand juror's inquiry was reasonable. "[A]s legal advisor to the grand jury, the prosecutor may appropriately explain the law and express an opinion on the legal significance of the evidence...." I Standards for Criminal Justice, Standard 3-3.5 (2d ed. 1980). Here, the prosecutor's opinion that terroristic threatening appeared to be the "best fit" was accurate. Contrary to Konrad's position below and on appeal, attempted coercion is not a lesser-included offense of terroristic threatening. As defined in AS 11.41.-530(a)(1), coercion is committed when the accused instills fear in another person by threats of physical injury in order to compel the other person "to engage in conduct from which there is a legal right to abstain or abstain from conduct in which there is a legal right to engage-" To prove attempted coercion, the prosecution would have been required to establish not only that Konrad intended to cause fear on Luann Konrad's part, but also that he did so with the express purpose of coercing her to abstain from pursuing her custody claim. This additional burden would have placed the prosecution at a significant disadvantage. Because Konrad may well have intended to place Luann Konrad in fear without actually intending to coerce her into relinquishing her claim of custody, he might have been found guilty of terror-istic threatening without also being found guilty of attempted coercion. Under the circumstances, then, attempted coercion was not a lesser-included offense of terror-istic threatening, and the prosecution's advice that terroristic threatening was a "better fit" was not unreasonable. C. Vagueness Konrad argues for the first time on appeal that Alaska's terroristic threatening statute is unconstitutionally vague and overbroad. In relevant part, AS 11.56.-810(a)(2) provides: (a) A person commits the crime of ter-roristic threatening if the person (2) with intent to place another person in fear of death or serious physical injury to the person or the person's immediate family, makes repeated threats to cause death or serious physical injury to another person. Konrad's claim of vagueness is premised on the statute's use of the word "repeated," which modifies the word "threats." According to Konrad, "repeated" is ambiguous, because it may be understood to mean either a threat uttered more than one time in a single conversation or a threat made on more than one occasion. Konrad claims that this ambiguity deprived him of fair notice as to what conduct on his part was prohibited. He also claims that the ambiguity invites arbitrary enforcement of the statute. Konrad's argument is unconvincing. A statute is impermissibly vague when it fails to give adequate notice of what conduct it prohibits, that is, when it is so imprecise that ordinary persons of common intelligence are left to guess at its meaning and are apt to differ as to its scope. Summers v. Anchorage, 589 P.2d 863, 866-67 (Alaska 1979). We find no such imprecision in the statutory phrase "repeated threats." "Repeated" is not defined in Alaska's revised criminal code. Its ordinary definition must be considered. Gibson v. State, 719 P.2d 687, 690 (Alaska App.1986). According to Webster's Collegiate Dictionary, "repeated" means: "said, made, done, or happening again, or again and again." We find little ambiguity in this definition. In context, a "repeated threat" is simply a threat made more than once. See, e.g., State v. Diede, 319 N.W.2d 818, 821 (S.D.1982). While the ordinary meaning of "repeated threats" certainly encompasses a threat made on more than one occasion, there is no reason to suppose, as Konrad suggests, that these words can reasonably be read to exclude threats made more than once on a single occasion. The Colorado Supreme Court, relying on the ordinary meaning of "repeatedly," rejected a vagueness claim almost identical to the one advanced by Konrad here. See People ex rel. VanMeveren v. County Court, Etc., 191 Colo. 201, 551 P.2d 716 (1976). In reaching its conclusion, the court said: "Repeatedly" is a word of such common understanding that its meaning is not vague. It simply means in the context of this statute that the defendant used insulting, taunting or challenging language more than one time. Id. 551 P.2d at 720. We find no sound basis for refusing to apply the ordinary meaning of "repeated" in the present case. The challenged portion of Alaska's terroristic threatening statute was adopted by the legislature in 1984, apparently without commentary. See Chapter 108, § 1, SLA 1984. Of the various other states having terroristic threatening statutes similar to Alaska's, almost none require more than a single threat. See generally Model Penal Code § 211.3 commentary at 206 n. 8 (1980); Annotation, Validity And Construction of Terroristic Threat Statutes, 45 A.L.R. 4th 949 (1986). Accordingly, there seems to be no statutory history in Alaska or general trend elsewhere indicating a need to restrict the plain meaning of Alaska's statute. The only state adopting a requirement similar to that urged by Konrad appears to be Hawaii, which provides for a misdemeanor conviction of terroristic threatening based on a single threat, see Haw.Rev.Stat. § 707-715 (1985), but requires "threatening another person on more than one occasion" for conviction of a felony. See Haw.Rev.Stat. § 707-716 (1985). It is uncertain whether Alaska's terroristic threatening provision was patterned after Hawaii's. For purposes of construing Alaska's statute, the issue seems unimportant. Assuming Alaska's statute was drawn from Hawaii's, our legislature's election to depart from the wording of the Hawaii statute by requiring a "repeated" threat rather than a threat "on more than one occasion," would appear to be significant. Assuming Alaska's statute was not taken from the Hawaii code, then Hawaii's decision to require a threat "on more than one occasion" would be significant only insofar as it establishes that the Alaska legislature could easily have drafted a statute to require a threat on more than one occasion had it wanted to do so. While we hold that the terroristic threatening statute is not impermissibly vague when "repeated" is accorded its ordinary meaning, we nonetheless recognize that applying the literal definition of the word may create problems in certain unusual circumstances in which a question might arise as to whether a single statement contains more than one threat. The obvious purpose in requiring that a threat be "repeated" before becoming a terroristic threat within the meaning of AS 11.56.-810(a)(2) is to assure that the harsh sanction of felony prosecution will not be visited upon a person for making a rash statement out of transitory anger or in the heat of passion. This purpose is reflected in the reading generally given to terroristic threatening provisions in other jurisdictions. See, e.g., Annot., supra, 45 A.L.R. 4th § 31. Accordingly, strict adherence to the literal meaning of "repeated threats" will be inappropriate in some situations. When a threat is uttered several times in virtually the same breath, elaborated upon without any significant interruption, or repeated at the request of the listener, the statutory requirement of repetition will not, in our view, be met. Rather, in order to justify the finding that a threat has been repeated or that more than one threat has been made during a single conversation, the evidence must establish a clear break in context between initial and subsequent threats and the passage of sufficient time between threats to permit reflection. The ultimate question should be whether the repetition of the threat amounted to a separate act by the accused or whether it is part of a single continuous act. Resolution of this question lends itself to no inflexible rule and should ordinarily be left to the jury, whose decision should be on the totality of the evidence in the case at issue. In the present case, there was ample evidence to permit a finding that Konrad made "repeated threats" to take Luann Konrad's life. The recording of the telephone conversation reveals that Konrad threatened to kill his wife numerous times. The threats were not made in a continuous manner. Rather, they were repeated over a period of more than fifteen minutes. Konrad's threats were separated not only in time, but also by the subject matter of the conversation. The individual threats were interspersed with discussion concerning other matters. Sufficient time elapsed between the threats to permit reflection, and the threats were uttered in a composed and calculated tone of voice. Konrad's conduct is thus within the core prohibition of the statute. To the extent that there is any potential for uncertainty in some situations, Konrad's case falls well outside the area of uncertainty. See, e.g., Levshakoff v. State, 565 P.2d 504, 508 (Alaska 1977). We reject both Konrad's vagueness argument and his related contention that insufficient evidence was presented below to support his conviction for terroristic threatening. OTHER ISSUES Konrad raises two additional issues that do not require extended discussion. First, he contends that the trial court erred in excluding the testimony of Keith Wiger. Wiger's testimony, however, was offered for the sole purpose of impeaching Luann Konrad's testimony concerning an entirely collateral matter. We find no abuse of discretion in the exclusion of his testimony. See, e.g., Moss v. State, 620 P.2d 674, 676-77 (Alaska 1980); Oswald v. State, 715 P.2d 276, 278-79 (Alaska App.1986). Konrad also claims that the court erred in failing to grant a new trial. Konrad's trial was conducted before Superior Court Judge Duane K. Craske, who was on temporary assignment in Anchorage from Sitka. Following the trial, Judge Craske returned to Sitka; Konrad's sentencing hearing was assigned to Superior Court Judge S.J. Buckalew, Jr., of Anchorage. Konrad thereafter moved for a new trial, pursuant to Alaska Criminal Rule 25(c), which provides: After Verdict. If by reason of absence from the district . the judge before whom the action has been tried is unable to perform the duties to be performed by the court after a verdict or finding of guilt, any other judge regularly sitting . may perform those duties; but if such other judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial. Judge Buckalew denied Konrad's motion and proceeded to impose sentence. Judge Buckalew's denial of a new trial did not amount to an abuse of discretion. Criminal Rule 25(c) vests a newly-assigned judge with discretion to order a new trial if that judge "is satisfied that he cannot perform those duties [i.e., sentencing] because he did not preside at the trial or for any other reason...." Here, there is no indication that Judge Buckalew was unable to perform his duties. To the contrary, the record discloses that the judge thoroughly familiarized himself with the case by reviewing the entire record of trial proceedings. Even had he not reviewed the record, Judge Buckalew would have been in essentially the same position as any judge who imposes a sentence after a plea of guilty or no contest. Under the circumstances, we find no abuse of discretion. The convictions for terroristic threatening and assault in the second degree are AFFIRMED. The conviction for assault in the third degree is VACATED. This case is REMANDED to the superior court, with directions to amend the judgment accordingly. . "Deadly weapon" is defined in AS 11.81.-900(b)(13) as follows: "[D]eadly weapon" means any firearm, or anything designed for and capable of causing death or serious physical injury, including a knife, an axe, a club, metal knuckles, or an explosive.... Under the definition of "dangerous instrument" set out in AS 11.81.900(b)(ll), any deadly weapon qualifies as a dangerous instrument, without regard to the circumstance in which it is actually used. The inherent danger posed by deadly weapons justifies their treatment as dangerous instruments without regard to actual use. See, e.g., Krasovich v. State, 731 P.2d 598 (Alaska App.1987). We emphasize that our discussion in the text is restricted to dangerous instruments that would not qualify within the statutory definition for a deadly weapon. . Although the argument in the body of Konrad's briefs appears to be that attempted coercion is the lesser offense that the prosecution should have called to the attention of the grand jury, the statement of points on this issue in Konrad's opening brief refers to the class B misdemeanor of harassment, AS 11.61.120(a)(4), which prohibits threatening telephone calls that are made with intent to harass or annoy. Like attempted coercion, harassment is not a lesser-included offense of terroristic threatening under the circumstances of the present case. Harassment requires proof that the accused was the person who made the threatening telephone call and that the call was made with the intent to harass. In the present case, the recording made by Luann Konrad did not reveal who initially placed the call. Even assuming the state could have proved that it was Konrad, rather than his wife, who placed the call, it would still have had to prove that Konrad's original purpose in placing the call was to harass or annoy. In contrast, the crime of terroristic threatening required the state to prove only that Konrad's purpose was to instill fear of serious physical injury in his wife at the time he uttered the threatening remarks. . The word "threat" is defined in AS 11.81.-900(b)(55) to include "a menace, however, communicated," to inflict physical injury. Konrad does not challenge the adequacy of the statutory definition of "threat." . The derivation table included in the Alaska Department of Law's Criminal Law Manual lists Hawaii Revised Statute 707-715 in connection with Alaska's terroristic threatening statute. This reference to the Hawaii statute is of questionable significance, however, because the derivation table does not necessarily indicate the actual source of any given Alaska statute. A preface to the derivation table cautions, in relevant part: It should be noted that the derivation listing was compiled by the Criminal Division of the Department of Law after enactment of the revised code. Statutes from other jurisdictions that were actually considered by the Criminal Law Revision Subcommission are set out in a table appearing as an appendix to each volume of the six-part Tentative Draft of the code published by the Subcommission. Id. at 6-1 — 6-2 (emphasis in original). The tentative draft contained no terroristic threatening provision. We note, moreover, that the derivation table referred to Hawaii Revised Statute 707-715 even before the terroristic statute was amended in 1984 to add subsection (a)(2), which for the first time added the provision requiring "repeated threats." . Insofar as Konrad has claimed that AS 11.56.-810(a)(2) would permit arbitrary enforcement, he has failed to establish any history of arbitrary enforcement to support his claim. See, e.g., Summers v. Anchorage, 589 P.2d at 866-67; Holton v. State, 602 P.2d 1228, 1234 (Alaska 1979). . The record discloses no efforts by Konrad's trial counsel to reschedule sentencing for a time when Judge Craske might have been available or to make other arrangements that might have allowed the sentencing hearing to be conducted by Judge Craske. Had trial counsel made such efforts, we believe that reassignment of the case for sentencing purposes would have amounted to error, absent compelling circumstances precluding the trial judge's participation. We emphasize, however, that on appeal Konrad does not argue that he should have been sentenced by Judge Craske. Rather, his only point is that he should have received a new trial before Judge Buckalew. Our holding addresses only that contention.

10398665

Richard D. ROBISON, Appellant, v. STATE of Alaska, Appellee

Robison v. State

1988-11-04

No. A-2049

1357

1360

763 P.2d 1357

763

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T16:59:32.179770+00:00

CAP

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

Richard D. ROBISON, Appellant, v. STATE of Alaska, Appellee.

Richard D. ROBISON, Appellant, v. STATE of Alaska, Appellee. No. A-2049. Court of Appeals of Alaska. Nov. 4, 1988. Susan Orlansky, Asst. Public Defender, and Dana Pabe, Public Defender, Anchorage, for appellant. Nancy Simel, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

2088

12493

OPINION SINGLETON, Judge. A jury convicted Richard D. Robison of kidnapping, but accepted the affirmative defense that he released his victim without harming her. Consequently, the offense was reduced to a class A felony. AS 11.-41.300(d). The jury also convicted Robison of attempted sexual assault in the first degree. AS 11.41.410(a)(1); AS 11.31.-100(a). Robison, a first felony offender, was subject to a five-year presumptive term. AS 12.55.125(c)(1). The trial court rejected Robison's claim that his conduct was among the least serious within the definition of the offense, AS 12.55.155(d)(9), and found instead that the conduct was among the most serious. AS 12.55.-155(c)(10). Robison received a sentence of ten years with five years suspended. He appeals his conviction and sentence. We affirm Robison's conviction, but vacate his sentence and remand for imposition of the presumptive term. FACTS In October 1986, C.R. was living and working in Anchorage. She rode the bus to work each day and had to change buses at the University Mall. During the afternoon of October 27, 1986, she had taken the bus to the mall and had gone inside the mall while waiting for her connecting bus. As she walked back out through the mall parking lot towards the bus stop, a man in a small pickup truck asked her for directions to Tudor Road. C.R. answered the man and then went across the street to the bus stop. She waited a few minutes and became concerned that she had missed her bus. She then went to a nearby phone booth to call her employer to say she was late. C.R. testified that while she was in the phone booth, bending over her purse to find change, the man to whom she had earlier given directions backed up his pickup truck near the phone booth. He got out of the truck and came up behind C.R. C.R. testified that she felt something against her back and heard the man say to her, "I have a gun and I want you to suck my dick." C.R. said that the man directed her to get into the passenger side of his truck and she complied. When C.R. and the man were in the truck she could not see a gun. He again requested sexual activity which she refused. C.R. testified that the man started the truck and proceeded down the road, not traveling very fast. As the truck pulled slowly away from a stop sign, C.R. jumped out. The man drove away. C.R. scraped her hand "a little bit" but was not otherwise hurt. C.R. immediately reported the abduction to a passer-by, who took her to a nearby office from which C.R. summoned the police. At trial, C.R. identified Robison as the man who had abducted her. Robison testified at trial. He admitted that he had offered a ride to C.R. and requested that she "suck his dick." He denied having a gun or threatening C.R. with any object. He indicated that he was slowing down to let her out of the truck at her request, when she panicked and jumped out. He drove off. DISCUSSION Alaska Statute 11.41.300(a)(1)(C) provides in pertinent part that a person commits the crime of kidnapping if the person restrains another person with the intent to sexually assault the other person. Particularly relevant to this case is AS 11.41.300(d), which provides as follows: In a prosecution for kidnapping, it is an affirmative defense which reduces the crime to a class A felony that the defendant voluntarily caused the release of the victim alive in a safe place before arrest, or within 24 hours after arrest, without having caused serious physical injury to the victim and without having engaged in conduct described in AS 11.41.410(a)(1) or (2) [sexual assault in the first degree] or AS 11.41.420 [sexual assault in the second degree]. Also significant is AS 11.81.900(b)(1) which provides in relevant part: In this title, unless otherwise specified or unless the context requires otherwise, (1) "affirmative defense" means that (A) some evidence must be admitted which places in issue the defense; and (B) the defendant has the burden of establishing the defense by a preponderance of the evidence^] Prior to sentencing, Robison filed notice of a mitigating factor and the state filed notice of aggravators. Robison contended that the conduct constituting his offense was among the least serious conduct included in the definition of the offense. AS 12.55.155(d)(9). The state contended that the conduct constituting the offense was among the most serious included in the offense "because it was part of a series of five inappropriate approaches to women who did not know him." AS 12.55.-155(c)(10). In support of the aggravating factor, the state called three witnesses at the sentencing hearing and relied on the testimony of a fourth witness at trial. Each of these women testified that Robison had approached them at a mall, asked directions, and impressed them as "weird," "strange," or "unusual." One of the women, L.S., testified that Robison called to her while sitting in his truck and asked directions to Spenard. As she looked over to answer him she thought, but was not certain, that he was masturbating. L.S. could not positively identify Robison as the man she had seen, but her description generally matched Robison and his vehicle. Construing this evidence most favorably to the state, it appears that Robison approached female strangers in shopping malls and asked for directions as an unsuccessful ploy in making their acquaintance. Judge Ripley relied heavily on this evidence in rejecting the mitigating factor and concluding that Robi-son's conduct was among the most serious included within the definition of the offense of which he was convicted. The state concedes that this aggravating factor refers only to defendant's conduct in committing the offense and not to his propensity to commit similar crimes. In the state's view, however, Judge Ripley relied on the other contacts only as evidence indicating the character of the present assault. The state claims that in the judge's view, this evidence established that the defendant's act was not an impetuous isolated incident but a calculated approach, part of an ongoing plan to gain access to women as a means of sexually assaulting them. Finally, the state argues that Judge Ripley, in performing his role as sentencing judge, could disregard the jury's contrary conclusion regarding the victim's having been injured and could find that the defendant committed a more serious offense than that for which he was ultimately convicted. Monroe v. State, 752 P.2d 1017, 1021 (Alaska App.1988); Fee v. State, 656 P.2d 1202, 1204 (Alaska App.1982). See also Ridgely v. State, 739 P.2d 1299, 1302 (Alaska App.1987); Huckaby v. State, 632 P.2d 975, 976-77 (Alaska App.1981). In the state's view, Judge Ripley's rejection of the jury's finding would permit the conclusion that Robison's offense was among the most serious within the definition of the crime. See AS 12.55.155(c)(10); Braaten v. State, 705 P.2d 1311, 1322-23 (Alaska App.1985); Peetook v. State, 655 P.2d 1308, 1311-12 n. 3 (Alaska App.1982). We reject these arguments. First, the jury's finding that Robison sustained his burden of proving, by a preponderance of the evidence, that he released his victim without harm was binding on the trial court. See Briggs v. State, 732 P.2d 1078, 1081 (Alaska 1987) (order suppressing breathalyzer test in criminal case operates as collateral estoppel in license revocation proceeding). Cases such as Schnecker v. State, 739 P.2d 1310, 1312-14 (Alaska App.1987), Ridgely and Huckaby are distinguishable. In those cases, the defendant either pled to a lesser offense, or was convicted of the lesser offense, rather than the greater, arguably because the jury had a reasonable doubt regarding the element that distinguished the greater and lesser offenses. In contrast, the jury in this case expressly found, by a preponderance of the evidence, that the victim was released unharmed. In this circumstance, the trial court was bound by that finding. We agree with the parties that the trial court could not find Robison's conduct to be among the most serious within the definition of the offense based upon his contacts with other women. This is true even if those contacts supported an inference that the instant offense was premeditated and not impulsive. The fact that a kidnapping is premeditated does not, standing alone, take it out of the class of typical offenses. Judge Ripley erred in concluding that Robison's conduct fell within AS 12.55.155(c)(10). On the other hand, Robison's reasons for characterizing his offense as among the least serious included within the offense seems to be subsumed within the affirmative defense. See AS 12.55.155(e). We therefore conclude that the trial court was not clearly mistaken in rejecting the mitigating factor. The judgment of the superior court is AFFIRMED. Robison's sentence is VACATED and this case REMANDED for resentencing to the presumptive term. . Robison challenges both his sentence and his conviction on appeal. We briefly address his merit appeal in this footnote. His sentence appeal is discussed in the text of this decision. Robison challenges his conviction on two grounds. First, he argues that he is entitled to a new trial because the investigating officer signaled the prosecuting witness and thereby coached her during her testimony. The trial court noticed the officer's actions and brought it to counsel's attention. Defense counsel expressly waived any remedy, indicating that the jury was probably aware of the officer's actions and would hold it against the state. It would appear that counsel's conscious waiver of a remedy during trial would be binding on the defendant in the absence of ineffective assistance of counsel. Lanier v. State, 486 P.2d 981, 983-88 (Alaska 1971). Since counsel obviously had strategic reasons for foregoing a remedy, i.e., a cautionary instruction, we are not able to find either plain error or ineffective assistance of counsel. See Potts v. State, 712 P.2d 385, 394 n. 12 (Alaska App.1985). Robison notes that he brought a "habeas corpus" petition raising this issue after trial, which he contends should be construed as a motion for new trial. In Robison's view, by seeking "habeas corpus," he brought the issue to the attention of the trial court and therefore should not be bound by the plain error rule. As we have seen, however, matters of trial strategy are within the waiver rule established in Lanier. In addition, the plain error rule applies to all objections which should have been made at trial. Clearly, the trial court gave Robison an opportunity to seek a remedy during trial. His failure to do so could not be cured by a post-trial motion for new trial or for "habeas corpus." Id. at 390 n. 8. Robison next argues that he is entitled to a new trial because one of the jurors voting to convict him later reconsidered his verdict and concluded that it was the product of fatigue. Robison concedes that we would have to overrule a number of Alaska Supreme Court cases and an applicable evidentiary rule in order to grant him relief. See, e.g., A.R.E. 606(b) and, e.g., LaLonde v. State, 614 P.2d 808, 811 (Alaska 1980). We have no power to overrule our state's supreme court. We note that the United States Supreme Court, likewise, would not grant Robison relief on this claim. See Tanner v. United States, — U.S. -, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987). We therefore find no error. . The state also filed notice that another aggravating factor, that the victim sustained physical injury as a result of the defendant's conduct, applied. See AS 12.55.155(c)(1). The trial court made no finding with respect to this factor. We believe that this aggravating factor is precluded by the affirmative defense found by the jury. . If Judge Ripley felt that Robison's conduct in accosting the other women established a dangerous pattern of behavior, warranting a suspended sentence in excess of the presumptive term, his remedy was to refer the case to the three-judge panel for sentencing on the theory that the presumptive term was too lenient. See, e.g., AS 12.55.165-.175.

10398692

Darryl W. SLEDGE, Appellant, v. STATE of Alaska, Appellee

Sledge v. State

1988-11-10

No. A-1892

1364

1369

763 P.2d 1364

763

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T16:59:32.179770+00:00

CAP

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

Darryl W. SLEDGE, Appellant, v. STATE of Alaska, Appellee.

Darryl W. SLEDGE, Appellant, v. STATE of Alaska, Appellee. No. A-1892. Court of Appeals of Alaska. Nov. 10, 1988. Blair McCune, Asst. Public Defender, Dana Fabe, Public Defender, Anchorage, for appellant. Robert D. Bacon, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

3529

20975

OPINION SINGLETON, Judge. Darryl W. Sledge was convicted of one count of sexual assault in the first degree, an unclassified felony. AS 11.41.410(a)(1). He was sentenced to serve the applicable eight-year presumptive term. AS 12.55.-125(i)(l). Sledge appeals. We conclude that it is necessary to remand this case for a further hearing to determine whether Sledge was denied his constitutional right to confront his accuser. FACTS AND PROCEEDINGS D.W., a fourteen-year-old girl, testified that on November 9, 1985, she accepted a ride with Darryl W. Sledge in his automobile. D.W. agreed to accompany Sledge to the store, and then Sledge was to take her home. D.W. testified that instead of taking her home as promised, Sledge purchased beer at the store and then drove her to a secluded place where he attempted to sexually assault her. He succeeded in penetrating her vagina with his finger. The sexual assault was interrupted by a passing police officer. Sledge recounted a substantially different story. He agreed that he gave D.W. a ride in his car, but contended that D.W. gave him money and he bought her a six-pack of beer. Sledge further stated that after leaving the store he and D.W. drove around so that D.W. could smoke a marijuana cigarette. Sledge claimed that he and D.W. got into an argument because she was drinking in his car. He stopped the car and poured out the beer she had opened. Sledge said that when the police arrived, D.W. panicked and jumped out of the ear. D.W.'s testimony that she was sexually assaulted was corroborated in part by medical testimony that she had a small cut on the lower part of her vagina. Prior to the start of trial, Sledge filed a discovery motion, requesting D.W.'s "Child in Need of Aid" (CIÑA) file, and her file from the Division of Family and Youth Services (DFYS). In support of his request, he argued in part: [D.W.] alleged that Sledge had sexually assaulted her in his vehicle. She denied consuming any alcohol or marijuana with Sledge. Sledge claimed that [D.W.] went with him voluntarily and consumed alcohol at her own request. [D.W.] informed the officers that she was a ward of the state. Therefore, she had been unwilling to violate any drinking laws with Sledge. [D.W.] was the one who informed the officers of her legal custody status. Discovery of [D.W.'s] Child in Need of Aid file, both the court file and the Division of Family and Youth Services file, is necessary for Sledge to explore the possibility that [D.W.] is biased and motivated to shade or fabricate her testimony in order to avoid detrimental consequences for herself in the Child in Need of Aid case. Sledge agreed that Superior Court Judge S.J. Buckalew, Jr., the omnibus hearing judge, should conduct an in camera inspection of the DFYS file to determine if anything in the file should be disclosed to Sledge. After conducting the in camera inspection, Judge Buckalew determined that nothing in the DFYS file should be disclosed to Sledge. Superior Court Judge J. Justin Ripley substituted for Judge Buckalew at trial and sentencing. Based on Judge Buckalew's ruling that nothing in the DFYS file was discoverable, the state requested a protective order barring Sledge from inquiring into D.W.'s residence in a foster home during the course of trial. In response, defense counsel pointed out that: [D.W.], in making the statement to the police, explaining why she did certain things, or did not do certain things, raised up the fact that she was a ward of the state and therefore to avoid getting in trouble she did not do certain things in the car with Mr. Sledge. And since she brought it up, I intend to ask her about that. Defense counsel therefore requested that Judge Ripley not enter a protective order. Judge Ripley replied that this would appear to be going into "misconduct of the victim." Defense counsel responded: Well, mostly motive and bias actually. As to — she's saying that she's under some sort of restriction. I don't know what the restrictions are, I don't know if — anything about that. But there is something there that she did not drink with Mr. Sledge, or accept what she claims is an offer of marijuana because she was a ward of the state. And she was afraid that if she violated whatever those conditions were, she would get in trouble with the state and with her foster parents. Judge Ripley asked that no examination on the matter be conducted until a hearing out of the presence of the jury could be held to determine whether the evidence had any relevance. Judge Ripley did not review D.W.'s DFYS files, but he accepted Judge Buckalew's ruling on this matter, concluding that it was the law of the case unless relaxed at a later time. After D.W. had testified on direct and cross-examination, the jury was excused and Sledge renewed his request to inquire into her wardship status. The defense counsel reasoned: Your honor, my request is that I be allowed to — at least outside the presence of the jury to ask her about her — why she is a ward of the state. The reason is this. When the police officer — she was explaining to the police officer that I don't — I didn't take any marijuana, I told him I didn't want any and I wouldn't have any beer because I'm a ward of the state and that would violate my — whatever the . conditions were. I simply want to ask her . I assume it's a CINA situation. But I don't know why she is a — of course. And it may be entirely innocent. It may, however, be related to prior difficulties. I don't know whether her being there would result in some sort of adjudication against her. That's what I want to get to. And I know — and it may well be entirely innocent and not something that the jury should hear. It may well be, however — it may go toward motive or bias. I don't know. And I think we should at least ask her outside the presence [of the jury] and clarify that. The state did not dispute this offer of proof, arguing that if, in fact, D.W. was worried about her wardship status, that would motivate her to refrain from drugs and alcohol. The state's attorney said: That she didn't want — no, I don't want to smoke any marijuana because I'm not allowed to because I'm in the custody of the state. This is the statement that he wants to tap all this on to. So, even if it shows that she's in the custody of the state and she's under some kind of probation, all it shows is that she was telling the truth when she said that. It just drags in all these bad acts to confirm her statement, which is not before the jury. Judge Ripley concluded that Judge Buck-alew's prior ruling barring discovery of D.W.'s wardship status should stand. Thus, the ruling precluded the.cross-examination requested by Sledge. Additionally, on direct examination of Sledge, defense counsel attempted to elicit testimony from Sledge that D.W. told him she was a ward of the state. Sledge had been explaining his version of what occurred when the police arrived. The state objected, and outside the presence of the jury, Sledge told the court the statement he wanted to make. He was allowed to say, in front of the jury, that D.W. panicked and jumped out of the car, saying, "I don't want to get my parents in trouble." Sledge wanted to testify that D.W. said she didn't want to get her parents in trouble because she was a ward of the state. He also wanted to testify that immediately before jumping out of the car D.W. said, "I'm in . trouble now." Judge Ripley ruled that Sledge could mention neither that D.W. told him she was a ward of the state nor that she was in foster care. The jury found Sledge guilty of sexual assault in the first degree. AS 11.41.410(a)(1). No statutory, aggravating, or mitigating factors were proposed at trial. Sledge, however, requested that his case be referred to the three-judge panel. AS 12.55.165-175. Judge Ripley denied Sledge's request, and imposed the applicable eight-year presumptive term. AS 12.55.125(i)(l). DISCUSSION Sledge first argues that the trial court abused its discretion by excluding evidence regarding D.W.'s status as a ward of the state. Sledge argued that D.W.'s statements regarding her wardship status were made at the scene and reflected her state of mind at the time she first told the police that Sledge assaulted her. In Sledge's view, this information could be relevant to show why D.W. apparently had a particularized fear that, if caught in the activity Sledge said she had engaged in, i.e., drinking beer and smoking marijuana, she could be subject to adverse consequences that would not be present if she were not a ward of the state. Consequently, in Sledge's view, this would show D.W.'s bias and motive to fabricate. D.W. might have hoped that by falsely accusing Sledge of sexual assault, she would divert attention from her own activities and gain sympathy, rather than sanction, from the authorities. Sledge claims that by not allowing D.W.'s foster care status into evidence, the trial court denied Sledge his right to cross-examine the prosecution's witness in violation of the confrontation clauses of the United States and the Alaska constitutions. U.S. Const. amend. VI; Alaska Const., art. 1, § 11. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Jackson v. State, 695 P.2d 227, 230-33 (Alaska App.1985); Fox v. State, 685 P.2d 1267, 1272-73 (Alaska App.1984). The state argues that the evidence was irrelevant and, even if relevant, its probative value was outweighed by the prejudice involved in violating D.W.'s privacy with regard to her status as a ward of the state. See Alaska Evidence Rule 403; Larson v. State, 656 P.2d 571, 575 (Alaska App.1982) (Alaska Evidence Rule 403, when properly applied, does not violate a defendant's constitutional right to confront the witnesses against him and present evidence in his own behalf). Finally, the state argues that any error was harmless. First, the state notes that Sledge was allowed to testify to the following before the jury: that D.W. told him she did not wish to get her parents in trouble, and that she feared she was in trouble by being with Sledge in a parked car. The state points out that Sledge was able to argue this point in closing argument. Second, the state argues that the probative value of the evidence was weak because, assuming the worst, D.W.'s wardship status would not put her under the same pressures to "play ball with the state," that a person on probation for a criminal or delinquent act would have. Third, the state points out that D.W.'s testimony was substantially corroborated by medical evidence of the injury to her vagina and by physical evidence of her torn clothing. Fourth, the state points out that when D.W. ran from Sledge's vehicle to the police vehicle, she ignored a snarling police dog. In the state's view, this is more consistent with a frightened rape victim seeking protection than a calculating liar seeking to explain away a consensual sexual encounter and voluntary consumption of marijuana and alcohol. Finally, the state points to Sledge's allegedly false and inconsistent exculpatory statements to the police which the state contends establish his consciousness of guilt. We are concerned that Sledge may have been restricted in his ability to present evidence to show the victim's motive to fabricate, and that he was unable to adequately present his theory of defense to the jury. Sledge was only able to make a generalized argument as to D.W.'s motive to testify falsely. Essentially, Sledge was only left with the argument that anyone in D.W.'s position would have a motive to testify falsely. It is possible that Sledge was prevented from making the much stronger argument that D.W. had a special fear of adverse consequences because she was a ward of the state and under foster care. Sledge could argue that another young woman who was not a ward of the state would not have the same fear under similar circumstances. D.W. attached great importance to her wardship status. This is indicated by her statements to the police and her fear that adverse consequences would result if she had voluntarily consumed alcohol and smoked marijuana. Thus, her wardship status strongly suggests that she had a motive to fabricate. Consequently, the exclusion of evidence concerning D.W.'s status as a ward of the state may have unduly infringed on Sledge's confrontation rights. We therefore remand this case for a hearing to enable counsel to voir dire D.W. regarding her statements to the police and her understanding of the circumstances surrounding her wardship status. If the court concludes on remand that a jury could reasonably conclude that D.W. did tell the police she would not take drugs or use alcohol because she was a ward of the state, Sledge should be granted a new trial so that a jury can consider the effect of such statements. This could indicate D.W.'s state of mind and might support an inference that she had a motive to falsely accuse Sledge of a sexual assault. The state may be correct that D.W.'s concerns about her wardship status would motivate her to refrain from alcohol and marijuana and, thus, corroborate her claims. However, as Sledge points out, it might also motivate her to lie about her activity with Sledge if, in fact, she had consumed drugs and alcohol and was concerned about the consequences of her conduct being discovered. In such cases, it was for the jury to determine the true interplay between D.W.'s state of mind and the accuracy of her testimony. We stress the limited nature of our holding. The fact that D.W. may have voluntarily used drugs or alcohol with Sledge in violation of her wardship conditions clearly would not provide a defense to his sexually assaulting her. Since D.W. was only fourteen years old, her consent would not provide a complete defense to a charge of sexual assault. The significance is the possibility that D.W.'s use of drugs or alcohol might, under the circumstances, motivate her to falsely accuse Sledge of sexual assault when they were discovered by the police. We stress that it is D.W.'s state of mind exemplified by her statements to the police that is in issue, not D.W.'s wardship as such, or the reasons why she may have been in custody. We are not suggesting that extrinsic evidence regarding the facts leading to her status is admissible unless necessary to enable the jury to evaluate her state of mind in accusing Sledge of a sexual assault. The trial court should address one additional issue on remand. Sledge argues that he should have had access to any information in D.W.'s DFYS and CINA files that would be relevant to show her bias or motive to fabricate. The state argued at trial that only juvenile adjudications relevant to D.W.'s truth and veracity should be discoverable. See Alaska Evidence Rule 609(e). At the time Judge Buckalew reviewed the files, he failed to indicate what type of information he viewed as discoverable. In his findings after remand, however, Judge Buckalew indicated that he viewed the material with the intent to disclose only material relating to the witness' credibility and veracity. It appears that a broader standard for disclosure is required. In Braham v. State, 571 P.2d 631 (Alaska 1977), the Alaska Supreme Court considered the state's duty to disclose otherwise privileged information to a criminal defendant and stated that only relevant evidence must be disclosed. The court explained that the term "relevant" encompassed both logical relevance and materiality. Id. at 643 n. 17. Nondisclosure, the court indicated, would be proper only if the prosecution showed that disclosure would be inconsistent with enforcement or protection of the privacy interests of the individual, and if the information was not relevant to the defense. "Disclosure is . required if the judge's in camera inspection showed that the material was relevant to the defense — whether or not the prosecutor had demonstrated that discovery would be inconsistent with enforcement or protection efforts." Id. at 643. Relevant evidence, in the context of this case, would seem to include evidence showing D.W.'s bias or motive to fabricate. The United States Supreme Court recently decided a case very similar to the one at bar. In Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), the Court held that the defendant was not entitled to disclosure of certain records pertaining to investigation into the victim's sexual abuse. The Court approved an in camera review of the records by the trial court similar to the review required by Braham. Id. 107 S.Ct. at 1002-04. With regard to the standard of disclosure, the Court stated that any material evidence should be disclosed to the defendant. Material evidence means any evidence where "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceedings would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Id. 107 S.Ct. at 1001 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383-84, 87 L.Ed.2d 481 (1985)). In his concurring opinion, however, Justice Blackmun points out that evidence which could be used to impeach a witness by demonstrating bias would be within the court's definition of materiality. Ritchie, 107 S.Ct. at 1006 n. 2 (Blackmun, J., concurring). We agree with this conclusion. Therefore, on remand, the judge reviewing D.W.'s DFYS and CINA files should disclose to Sledge any information that is relevant to show D.W.'s bias or motive to fabricate, as well as any other relevant evidence. One additional point needs clarification. In Ritchie, the Supreme Court stated that, "the duty to disclose is ongoing; information that may be deemed immaterial upon original examination may become important as proceedings progress, and the court would be obligated to release information material to the fairness of the trial." Ritchie, 107 S.Ct. at 1003. In the present case, Judge Buckalew reviewed the files, but Judge Ripley presided over the case at trial. To comply with the ongoing duty of disclosure, the trial judge, at trial, must review the files. Consequently, the trial judge, on remand, should review the files to determine whether there was any discoverable material. The judgment of the superior court is REVERSED, and this case is REMANDED for further hearing to determine whether D.W. made statements to the police indicating a motive to falsely accuse Sledge of sexual assault. If the court is satisfied that such statements were made under circumstances which would permit a jury to infer bias, a new trial should be granted; if, on reconsideration, any materials in D.W.'s file should have been made available to the defense and, if made available, might have affected the results of the trial, a new trial should be granted. If not, the trial court may reinstate Sledge's conviction. . It was unclear from the original record exactly what files Judge Buckalew inspected. This issue was remanded to Judge Buckalew for clarification. After this issue was remanded, DFYS was ordered to turn over all of D.W.'s files. According to Judge Buckalew's findings after remand, DFYS had turned over additional files that were not turned over to Judge Buckalew prior to trial. Consequently, Judge Buckalew did not have an opportunity to review all of D.W.'s DFYS files prior to trial. . D.W.'s DFYS and CINA records are confidential, and access to them can be had "only with the court's permission and only by persons having a legitimate interest in them." AS 47.10.-090(a). The use of this information to impeach D.W. by showing her motive to fabricate would appear to give Sledge a legitimate interest in the records. Therefore, if there was information in the files that could be used to impeach D.W., then the statute would allow disclosure. . On appeal, Sledge raises two additional issues. First, Sledge argues that the trial court erred in denying his motion to dismiss the case for violation of Alaska Criminal Rule 45. This issue is foreclosed by Lindsay v. State, 698 P.2d 659, 662-63 (Alaska App.1985). Second, Sledge also argues that the trial court erred in refusing to refer his case to the three-judge panel for sentencing. Our decision to remand this case for further proceedings may render sentencing issues moot. Consequently, we decline to comment upon them at this time. Should the trial court, on remand, reinstate Sledge's conviction, Sledge may reinstate his sentencing appeal in this court.

10398637

Oliver Andrew HOFSTAD and Sarah Angelette Hofstad, Appellants, v. STATE of Alaska, Appellee

Hofstad v. State

1988-11-18

No. S-2048

1351

1353

763 P.2d 1351

763

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T16:59:32.179770+00:00

CAP

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

Oliver Andrew HOFSTAD and Sarah Angelette Hofstad, Appellants, v. STATE of Alaska, Appellee.

Oliver Andrew HOFSTAD and Sarah Angelette Hofstad, Appellants, v. STATE of Alaska, Appellee. No. S-2048. Supreme Court of Alaska. Nov. 18, 1988. Fred W. Triem, Petersburg, for appellants. William F. Cummings, Asst. Atty. Gen., Grace Berg Schaible, Atty. Gen., Juneau, for appellee. Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON, and MOORE, JJ.

1356

8003

FACTS MATTHEWS, Chief Justice. On May 20, 1983, the State of Alaska filed a complaint against Oliver Hofstad, Sarah Hofstad, and the City of Petersburg, seeking to take, by eminent domain, property owned by the Hofstads in Petersburg. The state also filed a declaration of taking, and deposited $27,900 into the registry of the court. The Hofstads filed an answer and counterclaim on June 16, 1983. On July 13, 1983, the state sent to the Hofs-tads a stipulation for disbursement of the funds. This stipulation required the signature of a representative of the City of Petersburg acknowledging that the city had no claim against the condemned premises. The Hofstads did not return the stipulation to the state until January 3, 1984. In September 1985, the Hofstads and the state stipulated to a settlement of the case. The parties agreed that $30,450 should be paid as just compensation for the taking of the property. The state also agreed to pay certain sums of interest on the award. The parties disagreed, however, as to whether the state should be required to pay interest on the amount of the state's initial deposit of $27,900 for the period from June 16, 1983 through January 3, 1984. On November 8, 1985, the Hofstads moved for an award of interest on the sum that was deposited by the court. The Hofs-tads argued that the state should have informed them of their right to withdraw funds without prejudice. In addition, the Hofstads argued that the state's refusal to comply with certain discovery requests impeded their ability to withdraw the funds. The trial court ruled that the "delay of withdrawal of funds was solely due to actions of the Hofstads, and not the state, [and therefore the Hofstads are not entitled to] interest during the period in question." DID THE TRIAL COURT ERR IN REFUSING TO ALLOW PREJUDGMENT INTEREST ON THE FUNDS DEPOSITED BY THE STATE WITH THE COURT AS ESTIMATED JUST COMPENSATION? The Hofstads make three arguments as to why they are entitled to prejudgment interest on the amount deposited with the court. First, they argue that they were not free to withdraw the funds because the state did not send the stipulation regarding the release of the funds until July 13, 1983, and that the stipulation required a release from the city. Second, they argue that AS 09.55.440 does not allow risk-free withdrawal of funds because it requires a con-demnee to return funds plus interest if the final award by the court is less than the amount withdrawn. Finally, the Hofstads argue that the state's failure to furnish discovery prejudiced them, and prevented them from making an informed decision with regard to the withdrawal of the funds. Each of these arguments lacks merit. In Russian Orthodox Catholic Church of N. Am. v. Alaska State Hous. Auth., 498 P.2d 737 (Alaska 1972), we discussed the payment of interest on funds deposited with the court: "In situations where the failure to withdraw funds on deposit in the registry of the court is attributable to the delay of the property owner, no interest should be allowed on the portion of the award so deposited." Id. at 743. We then cited, in a footnote, two cases in which the failure of the property owner to apply for the withdrawal of funds on deposit was held to constitute a delay attributable to the property owner and eliminated the right to interest. See Atlantic Coastline Rail Co. v. United States, 132 F.2d 959, 962-63 (5th Cir.1943); United States v. 0.45 Acres, 151 F.2d 114 (2nd Cir.1945). The Hofstads did not make a motion to withdraw the deposited funds as allowed by AS 09.55.440(b). The Hofstads' failure to make such a motion constitutes a delay attributable to them, and therefore no interest is payable on the amount deposited by the state. The Hofstads first argue that they were not free to withdraw the funds because the state did not send its stipulation for release of the funds until July 13, 1983, and that that stipulation required a release from the city. This argument lacks merit. Alaska Statute 09.55.440(b) allows a party to make a motion to the court for withdrawal of funds on deposit. The Hofstads could have made this motion any time after making an appearance in the case. Thus, it was unnecessary for the Hofstads to wait for the stipulation from the state prior to withdrawing funds. As the Hofstads never made a motion pursuant to AS 09.55.440, any delay in withdrawal is attributable to them and the timing with regard to the state's stipulation is irrelevant. The Hofstads next argue that AS 09.55.440 does not allow a risk-free withdrawal of funds. Alaska Statute 09.55.-440(b) requires that if the actual amount awarded as just compensation is less than the amount withdrawn, then the con-demnee must pay back the excess to the state. The Hofstads argue that this may put the condemnee in "double jeopardy:" If the condemnee withdraws the deposited money and the court enters a judgment that just compensation is less than the state has estimated (and deposited); the condemnee will have to repay the excess to the state (plus interest). A more prudent course is to leave the money on deposit until a final order fixes the exact amount of just compensation. This argument also lacks merit. If the condemnee is truly concerned about having to pay an excess back to the state, it is free to withdraw the funds on deposit and place them in an interest bearing account. In this way, if the condemnee is required to pay such an excess, the funds will be readily available. Finally, the Hofstads argue that the state's failure to furnish discovery prejudiced the Hofstads and prevented them from making an informed decision with regard to withdrawal of the funds. The Hofstads argue that without the requested discovery they were unable to determine if it was prudent to withdraw the funds. The Hofstads are again incorrect. First, the Hofstads did not seek formal discovery from the state until April 1984, several months after the Hofstads actually had withdrawn the deposited funds. Second, the state's failure to respond to the Hofs-tads' informal discovery requests did not prejudice the Hofstads. As previously discussed, the Hofstads could have withdrawn the funds and placed them in an interest bearing account. Then, if it turned out the amount withdrawn exceeded the actual award, they would have the excess readily available. Thus, it was unnecessary for the Hofstads to assess the value of the land prior to withdrawal of the funds and the state's failure to respond was not prejudicial. CONCLUSION The Hofstads are not entitled to interest on the amount of funds deposited by the state with the court. The Hofstads were free to make a motion to the court to withdraw the funds pursuant to AS 09.55.-440. Because they did not do so, any delay is attributable to them and no interest is payable on the amount deposited. AFFIRMED. .Alaska Statute 09.55.440(b) provides: Upon motion of a party in interest and notice to all parties, the court may order that the money deposited or a part of it be paid immediately to the person or persons entitled to it for or on account of the just compensation to be awarded in the proceedings. If the compensation finally awarded exceeds the amount of money deposited, the deposit shall be offset against the award. If the compensation finally awarded is less than the amount of money deposited, the court shall enter judgment in favor of the plaintiff and against the proper parties for the amount of the excess. . See supra note 1. . The Hofstads do not argue that their failure to make a motion under AS 09.55.440 was in reliance on the state's sending the stipulation.

10331970

THANE NEIGHBORHOOD ASSOCIATION, Alaskans for Juneau, Appellants, v. CITY AND BOROUGH OF JUNEAU, Appellee, and Echo Bay Alaska, Inc., Intervenor-Appellee

Thane Neighborhood Ass'n v. City & Borough of Juneau

1996-09-06

No. S-6710

901

910

922 P.2d 901

922

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:01:11.631102+00:00

CAP

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

THANE NEIGHBORHOOD ASSOCIATION, Alaskans for Juneau, Appellants, v. CITY AND BOROUGH OF JUNEAU, Appellee, and Echo Bay Alaska, Inc., Intervenor-Appellee.

THANE NEIGHBORHOOD ASSOCIATION, Alaskans for Juneau, Appellants, v. CITY AND BOROUGH OF JUNEAU, Appellee, and Echo Bay Alaska, Inc., Intervenor-Appellee. No. S-6710. Supreme Court of Alaska. Sept. 6, 1996. Eric Smith, Anchorage, for Appellants. John R. Corso, City & Borough Attorney, Juneau, for Appellee City & Borough of Juneau. James F. Clark, Terry L. Thurbon, Robertson, Monagle & Eastaugh, Juneau, for Intervenor-Appellee Echo Bay Alaska. 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.

4934

32079

OPINION MATTHEWS, Justice. Echo Bay Alaska, Inc., applied to the City and Borough of Juneau in November 1990 for a large mine permit for the AJ Mine. The proposed mine is located four miles from downtown Juneau. The tailings that will result from the processed ore are to be pumped into a tailings pond created by constructing a dam in Sheep Creek Valley. The proposed dam mil be 332 feet high and 750 feet long. If the mine goes into production 100 million tons of tailings are expected to be produced and pumped into the pond. The excess water from the tailings pond will be discharged into Gastineau Channel. The discharge from the tailings pond to the channel could be as great as 250 cubic feet per second. The City and Borough of Juneau Planning Commission (Commission) approved the application in a notice of decision issued on May 14, 1993. The approval was subject to a set of conditions. The permit was to be issued after a financial warranty was paid and after Echo Bay agreed to the conditions and signed a mitigation agreement. Approval of the tailings dam and impoundment and the discharge of wastewater was withheld until additional information was provided. Appellants, Thane Neighborhood Association (TNA) and Alaskans for Juneau (AEJ), appealed the Commission's decision to the City and Borough of Juneau Assembly (CBJ) on June 7, 1993. Echo Bay was granted permission to participate as a party. The CBJ heard oral argument on August 30, 1993, and issued a decision denying the appeal on September 22, 1993. TNA and AFJ then appealed to the superior court and Echo Bay was permitted to intervene. On October 26, 1994, the superior court affirmed the decision of the CBJ. In this appeal, the appellants argue that the "CBJ impermissi-bly used a 'phased' approach in approving" the permit and that the CBJ's finding that issuance of the permit complied with standards set forth in the CBJ mining ordinance is not supported by substantial evidence. In December 1995 CBJ and Echo Bay filed a supplemental brief, and TNA and AFJ filed a response addressing the issue of whether the "Planning Commission [could] assure future compliance with the substantive standards for mining operations . by imposing permit conditions requiring future performance rather than by demanding pre-application-approval demonstration of future ability to comply." THE CODE The review of large mine permits is governed by the Code of the City and Borough of Juneau (CC & B J) 49.65 (1989). CC & B J 49.65.110 provides in part: "It is the purpose of this article to foster the development of a safe, healthy and environmentally sound mining industry while protecting the overall interests of public health, safety and the general welfare and minimizing the environmental and surface effects of mining projects for which an exploration notice or mining permit is required." The procedure for obtaining a large mine permit is governed by CC & BJ 49.65.130. CC & BJ 49.65.130(b) requires an application for a large mine permit to be submitted in the form of a report containing sufficient information so that the department can, after reviewing the application, evaluate, in accordance with the standards of subsection 49.65.135(a), the impacts[ ] described in this subsection that the mining operation may have on the city and borough. The application shall contain a map on a scale of 1:63,360 or a more detailed scale, a description of the mine site and affected surface; a description and timetable of the proposed mining operation, including all roads, buildings, processing and related facilities; a description and timetable of proposed reclamation of affected surface; a description of proposals for the sealing of open shafts, adits and tunnels upon the completion or temporary cessation of mining operations; a description of methods to be used to control, treat, transport and dispose of hazardous substances, sewage and solid waste; and a description of other potential environmental, health, safety and general welfare impacts, as well as neighboring property impacts and measures to be taken to mitigate their adverse effects. The application shall also contain additional information normally prepared by the operator for its feasibility studies and mining plans, including information establishing the right to use the affected surface, labor force char- acteristies and timing, payroll projections, anticipated duration of the mining operation, construction schedules, infrastructure description, and other information reasonably requested by the department in the preapplication conference held pursuant to Section 49.15.330(b)_ (Emphasis added.) Likewise, CC & BJ 49.15.130(b), which governs applications for land use permits in general, provides that "[a]n application is complete when it contains all of the information necessary to determine if the development will comply with all of the requirements of the permit applied for." CC & B J 49.65.130(f) requires the Community Development Department (Department) to conduct an application review, which shall include, but not be limited to, the following determinations: whether air and water quality will be maintained in accordance with federal, state, and city and borough laws, rules and regulations; where sewage, solid waste, hazardous and toxic materials will be properly contained and disposed of in accordance with federal, state, and city and borough laws, rules and regulations; the extent to which the operator will agree to mitigate adverse impacts on the city and borough; whether the mining operation will be conducted in such a way as to minimize safety hazards to the extent reasonably practicable and will mitigate adverse impacts on the public and on neighboring properties such as those from traffic overloading, noise, dust, unsightly visual aspects, surface subsidence, avalanches, landslides and erosion; and whether appropriate historic sites will be protected.[ ] CC & BJ 49.65.130(f) further provides: The department shall form a recommendation as to whether the permit should be approved_ The department's recommendation may include such conditions or stipulations as the department deems to be reasonably necessary to mitigate any adverse environmental, health, safety, or general welfare impacts which may result from the proposed mining operation.... If the [planning] commission determines that the application, with stipulations or conditions[ ] as appropriate, satisfies the standards of Sections 49.65.135 and 49.15.330, it shall approve the application. . The primary requirements for a large mine permit are contained in CC & BJ 49.65.135 (1989), which states: STANDARDS FOR ISSUANCE OF PERMITS AND CONDUCT OF OPERATIONS. (a) In determining whether to recommend issuance of a permit, the [community development] department shall require that: (1) The mining operations be conducted in accordance with this article, Section 49.15.330,[ ] and any other applicable provisions of the city and borough code in such a way as to mitigate adverse environmental, health, safety and general welfare impacts; (2) Air and water quality be maintained in accordance with federal, state, and city and borough laws, rules and regulations; (3) Hazardous and toxic materials, sewage, and solid waste be properly contained and disposed of in accordance with applicable federal, state, and city and borough, laws, rules and regulations; (4) The operator conduct all mining operations according to the standards of the city and borough, as contained in this article, Section 49.15.330, the permit, and any other applicable provisions of the city and borough code, so as to minimize to the extent reasonably practicable safety hazards and to control and mitigate adverse impacts on the public and neighboring properties, such as from traffic overloading, noise, dust, unsightly visual as pects, surface subsidence, avalanches, landslides and erosion; (5) Appropriate historic sites designated as significant by the city and borough be protected; (6) Reclamation of the affected surface be in accordance with the approved reclamation plan of the operator; and (7) With respect to a large mine permit application, the operator negotiate and enter into a mitigation agreement with the city and borough.... (b) Reclamation of all affected surfaces shall be completed as soon as is reasonable after affected surface areas are no longer being used in exploration and mining operations. Reclamation shall include the following: cleanup and disposal of dangerous, hazardous or toxic materials; regrading of steep slopes of unconsolidated material to create a stable slope; backfilling underground shafts and tunnels to the extent appropriate; adequate pillaring or other support to prevent subsidence or sloughing; plugging, or sealing of abandoned shafts, tunnels, adits or other openings; adequate steps to control or avoid soil erosion or wind erosion; control of water runoff; revegetation of tailings and affected surface areas with plant materials that are capable of self-regeneration without continued dependence on irrigation and equipment where appropriate; rehabilitation of fisheries and wildlife habitat; and any other conditions imposed by the commission. Subsequent to the issuance of a permit or the grant of authority under an exploration notice, the operator's compliance shall be measured against the requirements contained in that permit or the conditions of the exploration notice and the operator's plans submitted with the permit application or the notice. THE LARGE MINE PERMIT After making its determination, the Commission issued a notice of decision, granting approval for the application for a large mine permit subject to a set of conditions. The notice of decision lists the six requirements that are applicable to all conditional use permits as set forth at CC & BJ 49.15.330 and the twenty-one requirements set forth in the mining ordinance (CC & BJ 49.65.100-195), and states its findings for each of these requirements. TNA and AFJ argue that the findings and conditions in the notice of decision evidence a lack of compliance with the code. They argue that the CBJ used a " 'phased' approach in approving the large mine permit." They point to three ways in which they believe the CBJ engaged in phasing. First, the Commission withheld approval of the dam, the tailings pond and marine water discharges until further information was provided, yet granted the permit for the remainder of the project. Second, the Commission approved the permit, yet required Echo Bay to provide further information on certain matters. Third, the Commission imposed as a condition that Echo Bay obtain necessary permits from other agencies. Echo Bay and CBJ argue that this phasing is consistent with the code. CBJ argues "[t]he purpose of the mining ordinance and the Commission is to grant permits, not to deny them." CBJ and Echo Bay argue that "the CBJ mining ordinance does not vest the commission with discretion to disapprove a large mine permit application when the standards for permit issuance have been met," relying on CC & BJ 49.65.130(f), which states that "if the commission determines that the application, with stipulations or conditions as appropriate, satisfies the standards of Sections 49.65.135 and 49.15.330, it shall approve the application." (Emphasis added.) CBJ and Echo Bay also contend that the mining ordinance can be satisfied by including permit conditions which incorporate the requirements of the ordinance — it is not necessary to determine in advance whether the plans submitted in the permit application will satisfy those requirements. CBJ argues that the purpose of the ordinance "is to mandate compliance not predict it." DISCUSSION This court must determine to what extent the City and Borough of Juneau's code allows phasing when evaluating large mine permit applications. This is a question of statutory interpretation which does not involve agency expertise. Thus, this court will use its independent judgment. See Marlow v. Municipality of Anchorage, 889 P.2d 599, 602 n. 1 (Alaska 1995) (reviewing zoning commission's and board's constructions of zoning ordinance under independent judgment standard, as issues presented were "pure questions of statutory construction which d[id] not involve agency expertise"). A. Did the Commission Err by Granting a Large Mine Permit Which Excluded the Tailings Dam and Impoundment and Wastewater Discharge? In this case, CC & BJ 49.65.135(a)(2) requires that "water quality be maintained in accordance with federal, state, and city and borough laws, rules and regulations." In its findings concerning the AJ Mine, the Commission stated that it could not "conclusively determine at this time with current information that the proposed treatment system will maintain water quality in accordance with federal, state and local laws, rules and regulations." The Commission further found that "[t]he available data shows that the federal limit for total suspended solids (TSS) will not be met by the marine water discharge." CC & BJ 49.65.135(a)(4) provides that a mine operator must "conduct all mining operations . so as to minimize to the extent reasonably practicable safety hazards." The staff had various concerns about the safety of the AJ Mine's proposed tailings dam. The Commission responded to these problems by withholding approval of the tailings dam and impoundment and the marine wastewater discharge components of the project. The Commission decided that it would determine whether to approve the tailings dam and impoundment and the marine wastewater discharge after the receipt of further information. While the Juneau code does have provisions allowing the Commission to put conditions on a permit, see CC & BJ 49.15.330(g), 49.65.130(f), there is nothing in the code to support granting the permit for a project as a whole, while excepting one part of a project. Past decisions of this court make clear that phasing a project by permitting it in stages is disfavored. Three of our recent cases provide considerable guidance as to what sorts of permit approval "phasing" techniques are appropriate and what kinds are not: Trustees for Alaska v. Gorsuch, 835 P.2d 1239 (Alaska 1992); Trustees for Alaska v. State, Department of Natural Resources, 851 P.2d 1340 (Alaska 1993); and Kuitsarak Corp. v. Swope, 870 P.2d 387 (Alaska 1994). In Gorsuch, we held that in granting mining permits, "[Department of Natural Resources (DNR) ] may not ignore cumulative effects of mining and related support facilities . by permitting facilities separately." 835 P.2d at 1246. We ruled that when DNR reviews a mining permit application, it must "consider the probable cumulative impact of all anticipated activities which will be a part of a 'surface coal mining operation,' whether or not the activities are part of the permit under review." Id. "If DNR determines that the cumulative impact is problematic," we stated, "the problems must be resolved before the initial permit is approved." Id. We explained that "[tjhis type of 'concept approval' is necessary to avoid a situation where, because of industry investment and reliance upon a past mining permit approval, DNR might feel compelled to approve a subsequent permit for a related but environmentally unsound facility." Id. at 1246 n. 6. We added that "[i]n some cases, this may require concurrent, as opposed to serial, review of separate, related permit applications," while "[i]n other cases, anticipated problems resulting from cumulative impacts may require that approval of an initial permit be conditioned upon satisfactory resolution of the problems anticipated in subsequent permits." Id. This court split in Gorsuch on whether an access/haul road for the mining operation could be permitted under a separate mining permit. The majority determined that a specific regulation implied that separate permitting was allowed and that cumulative impacts could be adequately considered under separate permitting in that instance. Id. at 1245-46. Justice Rabinowitz, joined by Justice Matthews, dissented, arguing that the appli cable regulations prohibited separate permitting, and that a single permit was necessary to ensure that the cumulative effects of the mining operation would be adequately considered. Id. at 1250-51. Justice Rabinowitz contended that "[e]ourts have disallowed segmentation of a proposed project . to assure that the cumulative effects of the project are adequately considered_" Id. at 1251. Justice Rabi-nowitz cited Thomas v. Peterson, 753 F.2d 754, 760 (9th Cir.1985), for the proposition that "allowing consideration of cumulative impacts after a portion of [a] project is already approved" swings the balance in favor of project approval even if the project would have been disapproved had all components of the project been considered in the initial permit application. Gorsuch, 835 P.2d at 1251. In Trustees for Alaska v. State, Department of Natural Resources, 851 P.2d 1340, 1341 (Alaska 1993) (Camden Bay II), DNR's approval of a sale of oil and gas leases was challenged. A regulation required DNR to identify known geophysical hazard areas, and prohibited approval of development in such areas until measures to minimize geophysical hazards were provided. Id. at 1343. DNR identified the entire sale area as a geophysical hazard area. Id. DNR intended to consider particular geophysical hazards on a lease-site-by-lease-site basis, requiring lessees to submit plans to mitigate potential geophysical hazards before approval to develop a specific lease site would be given. Id. at 1343-44 & n. 7. We disapproved DNR's approach. We held that DNR was required to identify known or substantially possible hazard areas before approving the lease sale as a whole. Id. at 1344-45. We explained that "deferring a careful and detailed look at particularized geophysical hazards to later stages of the development process . entails certain practical risks." Id. at 1344. Such deferral "may tend to mask appreciation of any cumulative environmental threat that would otherwise be apparent if DNR began with a detailed and comprehensive identification of [the] hazards." Id. We again noted that "the more segmented an assessment of environmental hazards [is], the greater the risk that prior permits will compel DNR to approve later, environmentally unsound permits." Id. Another regulation at issue in Camden Bay II required DNR to identify important historic sites. Id. at 1345. DNR purportedly attempted to comply with this regulation by requiring the lessees to report on such sites and to try to preserve such sites, arguing that the regulation did not state when historic sites had to be identified. Id. at 1345 & n. 9. We held that DNR had not complied with the regulation, and that DNR was required to identify known historic sites before approving the initial sale. Id. at 1346. We explained that evaluation of historic sites on a lease-site-by-lease-site basis ran "the risk of undervaluing the cumulative cultural significance of the region as a whole," and that the lessees would have an incentive to underreport historic sites. Id. We added that our holding that the regulation at issue required identification of historic sites before approval of the initial sale did "not mean that more intensive duties are not required by this regulation at later stages of development." Id. We also ruled in Camden Bay II, however, that DNR did not have to examine transportation routes and utility sites before approving the initial sale because "[u]ntil exploration is proposed and, in all likelihood, until and unless a commercially exploitable discovery is made, there will be no occasion for siting, designing or constructing transportation and utility routes." Id. We further decided that DNR was not required "to evaluate the effectiveness of [environmental harm mitigation] measures before even receiving detailed development proposals," since DNR would not be able to assess "detailed mitigation measures even before knowing which activities it needs to mitigate." Id. at 1347. In Kuitsarak Corp. v. Swope, 870 P.2d 387 (Alaska 1994), DNR approved offshore prospecting permits in a region without conducting an in-depth analysis of the effects of mining in the region. Id. at 391 n. 13, 394 & n. 21. DNR contended that it lacked sufficient information to conduct such an analysis and that it would be easier to do the analysis when specific mining activities were performed. Id. at 391 n. 13, 394 n. 21. We rejected this procedure. We found that DNR had not adequately considered the potential and cumulative impacts of mining in the region. Id. at 395-96. We noted that DNR's argument that it was difficult to obtain the information necessary to perform a proper evaluation of the impacts of mining in the region was undermined by evidence of federal studies similar to the studies which DNR needed to do. Id. at 396. We stated that "[o]nce the initial impact of mining on the region has been assessed, any unforeseen occurrences or conditions that are revealed during exploration can be dealt with by DNR through use of stipulations and conditions imposed on mining." Id. (emphasis added). We disapproved of DNR's use of conditions to require the development of plans to minimize potential dangers as a substitute for a complete analysis of the potential dangers. See id. at 396 n. 27. We can draw three general, guiding principles concerning when and in what manner "phasing" or "segmentation" is permissible from Gorsuch, Camden Bay II, and Kuit-sarak. First, unless a specific statute or regulation allows phasing, phasing is disfavored. Compare Gorsuch, 835 P.2d at 1245-46 (regulation interpreted as permitting phasing) with Gorsuch, 835 P.2d at 1250-51 (Rabinowitz, J., dissenting) (regulation interpreted as prohibiting phasing). Where a statute is silent or ambiguous, phasing should generally not be allowed. See Camden Bay II, 851 P.2d at 1345—46 (regulation silent on when historic sites must be identified, but best interpreted as requiring identification of known sites at initial permitting stage). Second, phasing is prohibited if it can result in disregard of the cumulative potential environmental impacts of a project. See Kuitsarak, 870 P.2d at 396 n. 30; Camden Bay II, 851 P.2d at 1344, 1346; Gorsuch, 835 P.2d at 1246. The more interlinked the components of a project are and the greater the danger that phasing will lead to insufficient consideration of cumulative impacts, the greater the need to bar phasing. Compare Gorsuch, 835 P.2d at 1245-46 (separate permitting permissible so long as DNR determines that cumulative impacts will not be problematic) with Gorsuch, 835 P.2d at 1250-51 (Rabinowitz, J., dissenting) (unified permitting process necessary to ensure adequate consideration of cumulative effects). Third, conditions and stipulations may be used to address unforeseen occurrences or unforeseen situations that may arise during exploration or development, but permit conditions may not serve as a substitute for an initial pre-permitting analysis that can be conducted with reasonably obtainable information. See Kuitsarak, 870 P.2d at 395-96 & n. 27 (approving possible use of conditions to deal with unforeseen events but disapproving use of conditions as substitute for feasible, complete analysis). Thus, phasing through the use of conditions is prohibited where it is feasible to obtain the information necessary to determine whether environmental standards will be satisfied before granting an initial permit, but allowed where it is impractical or impossible to create detailed development plans without conducting additional physical exploration. See Camden Bay II, 851 P.2d at 1343-47 (geophysical hazards and historic sites can be investigated during initial permitting stage but transportation routes and mitigation measures cannot be analyzed without further exploration and planning). Based on these principles the Commission should not have granted the AJ Mine permit while excepting major portions of the project. The tailings dam and impoundment and the marine wastewater discharge system are integral components of the mining project; they are significantly interlinked to other parts of the project. If extensive redesigns to these components become necessary, the mining project could have a significantly greater environmental impact. Phasing the approval of those components could therefore cause the cumulative impacts of the mining project to be inadequately considered. After the Commission granted Echo Bay the large mine permit for the project as a whole, the United States Environmental Protection Agency (EPA) disapproved the pro posal for the dam at Sheep Creek, and Echo Bay abandoned the plan to build the dam there. The EPA's action will undoubtedly force major redesigns in the mine project. This sequence of events illustrates the dangers of CBJ's improper use of phasing — the initial approval for most components of the AJ Mine may cause CBJ to fail to take into account the cumulative impacts of the redesigns made necessary by the change in the location of the tailings dam. For these reasons we conclude that the Commission erred in granting permit approval of the project while deferring consideration of important portions of the project. B. Did the Commission Err by Granting the Permit, Yet Imposing as a Condition that Echo Bay Provide Further Information? As noted, the Commission found that it could "not conclusively determine at this time with current information that the proposed treatment system will maintain water quality in accordance with federal, state and local laws, rules and regulations." In addition, the Commission found that "[t]he available data shows that the federal limit for total suspended solids (TSS) will not be met by the marine water discharge." In addition to withholding approval of a portion of the project, the second way the Commission responded to this problem was to place conditions into the permit requiring the project "to comply with federal and state water quality standards." The Commission should not have granted the AJ mine permit without knowing whether the plan that was submitted to it would satisfy water quality standards.. The ordinance requires that an application contain enough information for the Department and the Commission to make determinations as to impacts and compliance. First, CC & BJ 49.65.130(f) requires the Department to conduct an application review, form a recommendation and provide the recommendation to the Commission. CC & BJ 49.65.130(b) provides that the application must contain "sufficient information so that the Department can, after reviewing the application, evaluate, in accordance with the standards of subsection 49.65.135(a), the impacts described in this subsection that the mining operation may have on the city and borough." That subsection includes "a description of other potential environmental, health, safety and general welfare impacts." Subsection 49.65.135(a)(2) provides that "[a]ir and water quality be maintained in accordance with federal, state, and city and borough laws, rules and regulations." Second, after the Department provides the recommendation, the Commission must determine whether the "application, with stipulations or conditions as appropriate satisfies the standards of Sections 49.65.135 and 49.15.330." CC & BJ 49.65.130(f). CC & BJ 49.65.330(e)(1)(B) in turn provides that the Commission shall determine whether the application is complete. CC & BJ 49.15.130(b) provides that "[a]n application is complete when it contains all of the information necessary to determine if the development will comply with all of the requirements of the permit applied for." Thus the ordinance requires that (1) the application contain sufficient information for the Department to determine the environmental impacts of the mining operation; and (2) the Commission determine whether the application contains the information necessary to determine whether it will comply with water quality rules and regulations. The Commission's statement that it did not have enough information to determine whether the system would adhere to water quality standards makes it clear that the application failed to meet either of these requirements. Without this information, the Department lacked sufficient information to determine the environmental impacts of the project. In addition, without this information the Commission could not have determined that the application was complete. This interpretation of the code is further supported by Kuitsarak, 870 P.2d at 394-96. In Kuitsarak, DNR did not gather necessary information regarding environmental impacts before granting an offshore prospecting permit. Id. Similarly, in this case, further information on water quality was necessary before the Commission could grant the min- tog permit, or even consider the application complete. CONCLUSION The Juneau Planning Commission engaged in impermissible phasing in its approval of the AJ Mine permit. The Commission deferred approval of components of the mine which are interlinked with other components, creating an unacceptable danger that cumulative impacts would not be sufficiently analyzed. The Commission utilized conditions as a substitute for evaluations that could have been conducted with feasibly obtainable information. The Commission reacted by placing conditions on the permits and deferring approval of mine components when it was faced with data that the proposed mine projects would not comply with Juneau code requirements or when it did not have sufficient information to determine whether the requirements would be met. If allowed to use such phasing in response to defects in mining applications, the Commission could grant approval to any permit application no matter how deficient it is, making the Juneau code virtually meaningless and Commission decisions effectively unreviewable. For these reasons, we REVERSE the decision of the superior court and REMAND this case to the court with directions to vacate the decisions of the Juneau Assembly and of the Commission granting the mine permits, and to REMAND to the Commission for further proceedings to accordance with this opinion. . CC & BJ 49.80.120 defines "impact" as used in CC & BJ 49.65 as "the reasonably foreseeable effects or consequences of a mining operation." . These required determinations track the "standards for issuance of permits and conduct of operations" put forth in CC & BJ 49.65.135. . CC & BJ 49.15.330(g) allows the Commission to place seventeen kinds of enumerated conditions, as well as "other conditions as may be reasonably necessary," on a conditional use permit. .CC & BJ 49.15.330 contains the general standards for obtaining a conditional use permit in Juneau. . AFJ and TNA argue that "an applicant simply cannot demonstrate compliance with all applicable requirements unless it first has obtained the necessary permits from other agencies." The code does not necessarily require this level of demonstration of compliance, but at the very least, the application must contain the "information necessary to determine" whether the project will comply. CC & BJ 49.15.130(b). . The issues regarding the existence or lack of substantial evidence to support various CBJ findings are mooted by our decision.

10396377

Stephen J. STEWART, Appellant, v. STATE of Alaska, Appellee

Stewart v. State

1988-11-10

No. A-2422

515

518

763 P.2d 515

763

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T16:59:32.179770+00:00

CAP

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

Stephen J. STEWART, Appellant, v. STATE of Alaska, Appellee.

Stephen J. STEWART, Appellant, v. STATE of Alaska, Appellee. No. A-2422. Court of Appeals of Alaska. Nov. 10, 1988. William R. Satterberg, Jr., Law Offices of William R. Satterberg, Jr., Fairbanks, for appellant. Marlin D. Smith, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Grace Berg Schaible, Atty. Gen., Juneau, for ap-pellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

1588

9839

OPINION BRYNER, Chief Judge. Magistrate Paul K. Verhagen tried Stephen J. Stewart and found him guilty of DWI, AS 28.35.030. Stewart appeals, alleging that the court committed error in denying his motion to dismiss and in sentencing him as a second DWI offender. We affirm the court's denial of the motion to dismiss but remand for further proceedings on the sentencing issue. On July 23, 1987, while transporting a prisoner north on the Parks Highway, Alaska State Trooper Ellis noticed a car parked on the side of the highway near mile 262 in an area that was not a normal vehicle turnout. The driver, Stewart, appeared to be slumped over his seat. About-an hour later, on his return trip, Ellis spotted Stewart's car on the side of the highway at mile 283. Its engine was running, its headlights were on, and Stewart again appeared to be slumped over in his seat. Ellis pulled his car in behind Stewart, walked up to Stewart's car, and opened the door to the driver's side. According to the trooper, he was concerned that Stewart might have a medical problem, might be sleeping, or might be drunk. Upon opening the door, Ellis smelled a strong odor of alcohol and saw that Stewart's eyes were bloodshot and watery. Ellis asked Stewart for identification. Stewart fumbled with his wallet and had trouble taking his license out. Ellis asked Stewart to perform several field sobriety tests. Stewart failed the tests and was arrested for DWI. Stewart moved to dismiss the DWI charge on two grounds. First, he contended that his right to privacy was violated when the door to his car was opened by the trooper. Stewart also argued that the trooper lacked probable cause to make a warrantless stop and search of the car. The court denied the motion. Stewart renews these arguments on appeal. Stewart's arguments assume that Trooper Ellis' actions amounted to a warrantless search. In our view, however, the limited intrusiveness of the trooper's conduct warrants treating the case under the law dealing with investigative stops. In Coleman v. State, 553 P.2d 40 (Alaska 1976), the Alaska Supreme Court held that an investigative stop is permissible where "the police officer has a reasonable suspicion that imminent public danger exists or serious harm to persons or property has recently occurred." Id. at 46. Relying on Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the court noted that the central inquiry is "the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security." Coleman, 553 P.2d at 44. According to the court, the governmental interest justifying the official intrusion must be balanced against the invasion of the constitutionally protected interests of the private citizen. The court concluded: [T]he police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion_ And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search "warrant a man of reasonable caution in the belief" that the action taken was appropriate? Id. at 45. The test enunciated in Coleman was met in the present case. Trooper Ellis believed that Stewart might be drunk, sleeping, or having a medical problem. Stewart was slumped over the wheel of his car, apparently unconscious. The car was running. An hour earlier, Ellis had seen Stewart slumped over the wheel of his car approximately twenty-one miles further away. Ellis obviously had a legitimate interest in determining whether Stewart required assistance. Because Stewart's car was running, Ellis also had an immediate interest in ensuring that Stewart's presence behind the wheel did not pose a public danger. The interference with Stewart's right to privacy was minimal when weighed against such important societal interests. The fact that Ellis could have conceivably attempted to accomplish his purpose less intrusively by first knocking on Stewart's window is not determinative. Ellis had a reasonable suspicion that Stewart either posed an imminent risk of driving while intoxicated or needed immediate medical attention. The trooper was thus justified in opening the car door for the limited purpose of making contact with Stewart. Moreover, even assuming that Ellis' action constituted a warrantless search and seizure, the minimal intrusion in this case would be independently justified under the emergency exception to the warrant requirement. Anchorage v. Cook, 598 P.2d 939, 942 (Alaska 1979). We conclude that there was no violation of the fourth amendment in the present case. Stewart also contends that the court erred when it sentenced him as a second DWI offender. He bases his argument solely on the fact that, at the sentencing hearing, the only evidence of a prior conviction offered by the state was a computer printout of his driving record. The printout indicated that Stewart was convicted of DWI on October 3, 1984. When Stewart objected to the computer printout, the state requested a continuance to obtain proper documentation. Stewart opposed any continuance, arguing that he had a right to be sentenced without further delay and that, in the absence of proper evidence establishing a prior DWI conviction, the court was required to treat him as a first offender. The court denied the state's motion for a continuance and elected to rely on the computer printout and sentence Stewart as a second DWI offender. In so doing, the court placed the burden on Stewart to move for modification of his sentence if he could establish that he had not previously been convicted. On appeal, Stewart argues that the trial court erred in relying on the computer printout to establish his prior conviction. Stewart further maintains that, because the state was not prepared with documentary evidence establishing a prior conviction, he was entitled to be treated as a first DWI offender. We agree that the trial court erred in relying on the computer printout to sentence Stewart as a second DWI offender. We believe the issue to be governed by AS 12.55.145(b), which states: When sentence is imposed under this chapter [Chapter 55, Title 12], prior convictions not expressly admitted by the defendant must be proved by authenticated copies of court records served on the defendant or on the defendant's counsel at least twenty days before the date set for imposition of sentence. Although the mandatory minimum sentences for DWI are set out in AS 28.35.-030(c), the offense has expressly been made a class A misdemeanor. See AS 28.-35.030(b). DWI offenders are therefore subject to the general sentencing provisions of AS 12.55.135. Since DWI sentences are subject to the general sentencing provisions of AS 12.55.135, they qualify as sentences imposed "under this chapter" for purposes of AS 12.55.145(b). Alaska Statute 12.55.145(b) clearly contemplates that the prosecution must ordinarily bear the burden of proving prior convictions by recourse to authenticated copies of court records. Given the provisions of AS 12.55.-145(b), the trial court erred in relying on a computer printout of Stewart's prior record and in placing upon Stewart the burden of establishing that he had not previously been convicted. It does not follow, however, that Stewart was entitled to be treated as a first DWI offender. The notice requirements of AS 12.55.145 were plainly drafted with the expectation that sentencing hearings would normally be scheduled for a date substantially later than the date of the verdict or the entry of a plea of guilty or no contest. The expectation accurately reflects the typical procedure for felony sentencing but not for misdemeanor sentencing, which typically follows immediately upon the adjudication of guilt. Literal compliance with the notice requirements of AS 12.55.145 in misdemeanor cases would in effect require the issue of prior convictions to be addressed prior to an adjudication of guilt, a process that would appear to be both premature and highly inefficient. In the present case, the state was not prepared to proceed at the sentencing hearing with formal proof of Stewart's prior DWI conviction. Our prior decisions suggest that when a mandatory minimum sentence is prescribed for a repeat offender, it would be inappropriate for the court to sentence the defendant as a first offender merely because the state has failed to obtain proof of the prior conviction in time for sentencing. See, e.g., Hartley v. State, 653 P.2d 1052 (Alaska App.1982). The normal recourse under such circumstances is a continuance. See, e.g., Kelly v. State, 663 P.2d 967, 974 (Alaska App.1983). In the present case, Stewart's objections to a continuance were based entirely upon the inconvenience and expense of a delay in the sentencing proceedings. These objections do not outweigh the state's legitimate interest in establishing Stewart's prior record of convictions. Thus, although reliance on the computer printout was inappropriate in the absence of an express admission of a prior conviction by Stewart, AS 12.55.145(b), we hold that, under the circumstances, the state was entitled to a brief continuance in order to obtain the appropriate documents. The conviction is AFFIRMED. The sentence is VACATED, and this case is REMANDED for resentencing.

10331102

Rodney AHWINONA, Appellant, v. STATE of Alaska and Clarence Jackson, Appellees

Ahwinona v. State

1996-08-16

No. S-6750

884

889

922 P.2d 884

922

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:01:11.631102+00:00

CAP

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

Rodney AHWINONA, Appellant, v. STATE of Alaska and Clarence Jackson, Appellees.

Rodney AHWINONA, Appellant, v. STATE of Alaska and Clarence Jackson, Appellees. No. S-6750. Supreme Court of Alaska. Aug. 16, 1996. Rodney Ahwinona, pro se, Anchorage. Raymond M. Funk, Assistant Attorney General, Fairbanks, and Bruce M. Botelho, Attorney General, Juneau, for Appellees. Before COMPTON, C.J., RABINOWITZ, MATTHEWS and EASTAUGH, JJ., and SHORTELL, Justice, Pro Tem. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

3382

20804

OPINION EASTAUGH, Justice. I. INTRODUCTION This case concerns the effect of a personal injury release executed by Rodney Ahwinona in 1991. The superior court granted a Civil Rule 12(b)(6) motion dismissing a 1994 lawsuit Ahwinona brought against two of the releasees. We affirm. II. FACTS AND PROCEEDINGS Rodney Ahwinona suffered a broken leg while he was in custody of the State of Alaska, Department of Corrections (DOC), and riding on a snowmachine driven by Clarence Jackson, a DOC employee. Through his attorney, Ahwinona sued Jackson, the State, and the Maniilaq Association for personal injury damages arising out of the accident. At the time of the accident, Ahwinona was incarcerated at a rehabilitation camp run by Maniilaq. The accident occurred while Ahwinona was being transported to Kotzebue to obtain supplies. The complaint was filed November 2, 1990, in the superior court in Nome. On May 21, 1991, Ahwinona signed a document entitled "Release of All Claims." It recited that for consideration of $6,000, re ceipt of which was acknowledged, Ahwinona "hereby releases and forever discharges Clarence Jackson, the Maniilaq Association, and the State of Alaska." Ahwinona's signature was affixed before a notary public. His attorney signed an attached "Attorney's Representation" dated May 28 stating that she had explained and discussed the nature and purpose of the release with Ahwinona and that to the best of her knowledge, "my client understands the nature and effect of this document and assents to its terms." On May 15, prior to signing the release, Ahwinona executed a document entitled "Special Power of Attorney," which permitted his attorney "as my attorney-in-fact" to endorse and cash "the settlement check in the amount of $6,000.00" and sign release documents in the case "against the State of Alaska, Clarence Jackson, and Maniilaq Association." That power was also executed before a notary. On June 24 Ahwinona's attorney sent to Ah-winona a letter which enclosed his "full and final settlement check in the amount of $4,000.00 and a copy of your Settlement Sheet." The settlement sheet, countersigned by Ahwinona on June 18, acknowledged that the "full settlement amount" was $6,000 and that $4,000 was the "total due client" after deduction of attorney's fees. The attorney's trust account check to Ahwinona in the amount of $4,000 bore the notation "Full & Final Settlement." In April 1994 Ahwinona filed in the superi- or court in Anchorage a pro se complaint against Jackson and the State. He claimed personal injury damages arising from the snowmachine accident and other damages from the alleged failure of Jackson and the State to honor the settlement agreement. Ahwinona attached to his new complaint copies of various documents, including the release of all claims, the attorney's representation, the special power of attorney, the $6,000 settlement check payable jointly to Ahwinona and his attorney (apparently issued by the insurer for Maniilaq Association), the letter from Ahwinona's attorney conveying the settlement check, and the settlement sheet discussed above. The State and Jackson filed an answer to Ahwinona's complaint, raising the 1991 settlement and release as a defense. The State then moved to dismiss pursuant to Civil Rule 12(b)(6), asserting that the claims were barred by the prior settlement. In support, the motion to dismiss relied upon Ahwinona's 1994 complaint and the documents which Ah-winona attached to that complaint, including the 1991 release and attorney's representation. Ahwinona opposed the motion in an un-sworn memorandum which asserted that the release he signed released only Maniilaq Association. He asserted that when he agreed to settle, he expected settlement from all three defendants, including the State and Jackson, but learned "while in the process of signing [the] release for Maniilaq Association" that the State was not going to pay for the settlement. He also asserted that the State's lawyers did not send him release papers to sign to release the State and Jackson "formally." He further asserted that Jackson and the State were responsible for his injury, and that they had agreed to settle but then "turned around" and said that they were not going to pay for the settlement. The trial court granted the State's motion to dismiss and dismissed Ahwinona's claims with prejudice. Ahwinona sought reconsideration, and elaborated on his theory that the State and the Department of Law had agreed to settle but "went back on their word" when they failed to pay the settlement and provide a release of liability for him to execute. It appears to have been Ahwinona's theory that the State could not settle the claims against itself and Jackson unless the State itself paid the settlement proceeds to Ahwinona and provided him with a release document authored by the Attorney General's Office. It was also apparently his theory that the check and the release did not discharge the State's responsibility to settle the claims against the State and Jackson. The trial court denied the motion for reconsideration. The State moved for entry of final judgment. Ahwinona filed an unsworn statement in opposition, asserting that when he agreed to settle with all the defendants, he was expecting settlement from each defendant in the amount of $6,000. The trial court entered final judgment against Ahwinona. Ahwinona appeals. III. DISCUSSION It is uncertain what documents the trial court considered apart from the complaint. Normally, if the trial court in deciding a Rule 12(b) motion to dismiss relies on "matters outside the pleadings," the motion is to be treated as one for summary judgment, and resolved in accordance with Rule 56. Alaska R. Civ. P. 12(c). Maynard v. State Farm Mutual Auto. Ins. Co., 902 P.2d 1328, 1329 (Alaska 1995); Shotting v. Dillingham City Sch. Dist., 617 P.2d 9, 11 n. 4 (Alaska 1980). In Brice v. State, 669 P.2d 1311, 1314 (Alaska 1983), we summarized the three alternatives available to a reviewing court when it is unclear whether the trial court relied on matters outside the pleadings. We stated: The reviewing court may either (1) reverse the decision and remand for proper consideration as either a Rule 12(b)(6) motion or a Rule 56 summary judgment motion; (2) review the decision as if it were á Rule 12(b)(6) decision, with accompanying exclusion of the materials external to the pleadings; or (3) review the decision as if it were the grant of summary judgment after conversion of the Rule 12(b)(6) motion to one for summary judgment. Id. (citing Martin v. Mears, 602 P.2d 421, 427 (Alaska 1979)). In this case the documents evidencing the prior settlement and terms of the release were attached to Ahwinona's 1994 complaint. Under these circumstances, the trial court could properly rely upon these materials in deciding the State's motion to dismiss under Rule 12(b)(6) without converting it into a motion for summary judgment under Rule 56. Industrial Constructors Corp. v. Bureau of Reclamation, 15 F.3d 963, 964-65 (10th Cir.1994); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir.), cert. denied, — U.S. —, 114 S.Ct. 2704, 129 L.Ed.2d 832 (1994); Hall v. Bellmon, 935 F.2d 1106, 1112 (10th Cir.1991); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1555 n. 19 (9th Cir. 1990); Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir.1990); Morton v. Becker, 793 F.2d 185, 187 (8th Cir.1986); Sullivan v. United States, 788 F.2d 813, 815 n. 3 (1st Cir.1986); Quiller v. Barclays Am./Credit, Inc., 727 F.2d 1067, 1069 (11th Cir.1984), cert. denied, 476 U.S. 1124, 106 S.Ct. 1992, 1993, 90 L.Ed.2d 673 (1986); 2A James W. Moore, Moore's Federal Practice ¶ 12.09[3] n. 6, at 12-107 (2d ed.1995); 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357, at 299 (2d ed.1990). Therefore, under alternative two outlined in Brice, we can review the superior court decision as a Rule 12(b)(6) motion with reference to the documents attached by Ahwinona to his complaint. The release documents attached to Ahwinona's complaint are clear on their face. They compel a conclusion as a matter of law that Ahwinona agreed to settle his claims against Maniilaq, Jackson, and the State for a total of $6,000, and that Ahwinona received the agreed-upon consideration. The settlement clearly contemplated payment of a single consideration of $6,000 to discharge all three defendants. The settlement clearly did not contemplate payment by each defendant of the $6,000 consideration recited in the release. Nothing Ahwinona subsequently argued to the court permits a different conclusion. His assertion that the State and Jackson had not been released because the State had failed to provide the check and a separate release is irrelevant. It does not matter which defendant paid or advanced the settlement proceeds, or which defense attorneys prepared the release documents. Consequently, as a matter of law, Ahwinona's claim is one for which relief cannot be granted. The superior court correctly granted the State's Rule 12(b)(6) motion. Because we have the discretion to review the superior court's decision as if that court converted the State's motion to a summary judgment motion, Brice, 669 P.2d at 1314 (citing Douglas v. Glacier State Telephone Co., 615 P.2d 580, 591-92 (Alaska 1980)), we alternately review and affirm the superior court decision under that standard. After the court granted the motion to dismiss, denied Ahwinona's motion for reconsideration, and was considering entry of final judgment, Ahwinona asserted that he understood he would be paid $6,000 by each defendant. This was the first time he expressly made this factual assertion. Ahwinona did not make this assertion in any sworn documents. Nonetheless, disregarding the fact that this unsworn assertion was not timely raised and did not qualify as evidence creating a genuine fact dispute, Ahwinona's misunderstanding of the terms of the release raised no material factual issue. In Witt v. Watkins, 579 P.2d 1065 (Alaska 1978), we articulated the test for setting aside a release: Once the party relying on a release establishes that it was given with an understanding of the nature of the instrument, the burden is on the releasor to show by clear and convincing evidence that the release should be set aside. Factors that may be considered are the manner in which the release was obtained including whether it was hastily secured at the instigation of the releasee; whether the relea-sor was at a disadvantage because of the nature of his injuries; whether the relea-sor was represented by counsel; whether he relied on representations of the releasee or a physician retained by the releasee and whether liability was seriously in dispute. The relative bargaining positions of the parties and the amount to be paid should also be considered. Id. at 1069-70. Ahwinona presents no persuasive argument that his signing of the release was coereed, the result of disadvantaged bargaining ability due to his injury or otherwise, or founded on representations made to him by the State or Jackson or their agents. Rather, Ahwinona's claim is based on his misunderstanding of the settlement agreement. Ahwinona states "[wjhen I agreed with the defendants to settle out of court, I was expecting settlement of six thousand dollars from each of the defendants." In support of this expectation, Ahwinona argues that "[t]he release of liability signed by me states that each side bear their own cost and attorney's fees. That means specifically that . the state has its own cost for personal injury; . [and] Clarence Jackson has his own cost for personal injury." When he settled in 1991 Ahwinona was represented by counsel who attested to the fact that she explained the release and that Ahwinona understood "the nature and effect of [the release] and assent[ed] to its terms." Absent any showing of coercion or fraud, Ahwinona's mistaken understanding of the release is not sufficient to set it aside. See Mitchell v. Mitchell, 655 P.2d 748, 753 (Alaska 1982) (refusing to set aside a settlement, stating that the releasor's mistake was "legally irrelevant because the [settlement] clearly and unambiguously dismisses the entire lawsuit."). Despite Ahwinona's misinterpretation, the release clearly discharges all claims against the State and Jackson arising out of the snowmobile incident. Even if we assume Ahwinona was seeking reformation of the release to reflect his alleged understanding of the release terms, Ahwinona fails to raise material fact issues sufficient to succeed on such a claim. Therefore, Ahwinona did not raise any genuine issues of material fact sufficient to avoid the clear terms of the release and the effect of the prior settlement. IV. CONCLUSION Given the record before it, the superior court could not permissibly have denied judg ment to the State of Alaska and Clarence Jackson. It consequently did not err in dismissing Ahwinona's complaint. Accordingly, we AFFIRM the trial court's entry of final judgment against Ahwinona. . See also Murat v. F/V Shelikof Strait, 793 P.2d 69, 75 (Alaska 1990) (stating that unauthenticated documents can be considered in support of a motion when no timely objection to the documents is made, relying on "the well-recognized principle that a failure to timely raise any eviden-tiary objection constitutes waiver of that objection and permits the court to consider the proffered evidence") (citing Kvasnikoff v. Weaver Bros., Inc., 405 P.2d 781, 784 (Alaska 1965) (holding that unauthenticated documents may be considered in support of a motion for summary judgment where the documents were not objected to or their authenticity disputed)). . In Brock v. Rogers & Babler, Inc., 536 P.2d 778, 782 (Alaska 1975), we held that the respondent in a summary judgment motion "must set forth specific facts showing that he could produce admissible evidence reasonably tending to dispute the movant's evidence. Assertions of fact in pleadings and memoranda are not admissible evidence and cannot be relied upon for the purposes of summary judgment." (Citations omitted.) . Ahwinona's mistaken belief that he would receive $6,000 from each defendant is not a sufficient basis for reformation of the release. "Reformation of an instrument is the proper remedy where it is alleged that the instrument does not conform to the actual intentions of the parties." D.M. v. D.A., 885 P.2d 94, 96 (Alaska 1994) (citing Oaksmith v. Brusich, 774 P.2d 191, 197 (Alaska 1989)). Under Alaska law, the equitable remedy of reformation is available only in certain well-defined circumstances. These include situations involving mistake of fact, fraud, mutuality of mistake, and cases in which "a party executes a written instrument knowing the intention of the other party as to the terms to be embodied therein, and knowing that the writing does not accurately express that intention.'' Lathrop Co. v. Lampert, 583 P.2d 789, 790 (Alaska 1978) (footnotes omitted) (quoting Holiday Inns of America, Inc. v. Peck, 520 P.2d 87, 94 (Alaska 1974)). See also Riley v. Northern Commercial Co., 648 P.2d 961, 969 (Alaska 1982) ("The general rule is that reformation is not available to obtain relief from a unilateral mistake."). Ahwinona does not argue that the State or Jackson knew of his alleged understanding of the intended release terms or that they induced this mistaken understanding.

10320742

Pier HALE, Appellant, v. ANCHORAGE SCHOOL DISTRICT, Appellee

Hale v. Anchorage School District

1996-08-16

No. S-6180

268

271

922 P.2d 268

922

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:01:11.631102+00:00

CAP

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

Pier HALE, Appellant, v. ANCHORAGE SCHOOL DISTRICT, Appellee.

Pier HALE, Appellant, v. ANCHORAGE SCHOOL DISTRICT, Appellee. No. S-6180. Supreme Court of Alaska. Aug. 16, 1996. Michael J.. Jensen, Chancy Croft Law Office, Anchorage, for Appellant. James M. Bendell, Anchorage, for Appel-lee. Before COMPTON, C.J., and RABINOWITZ, MATTHEWS, EASTAUGH and FABE, JJ.

1610

10227

OPINION COMPTON, Chief Justice. I. INTRODUCTION Pier Hale appeals the superior court's af-firmance of a Workers' Compensation Board decision denying her claim for certain medical expenses. The Board held that the Anchorage School District was not required to pay Hale's physical therapist for treatments in excess of the Board's standard treatment frequency because the physical therapist failed to submit a conforming treatment plan within the statutory period. The Board also held that the School District was required to pay Hale's chiropractor for ten treatments. We affirm the former holding and reverse the latter. II. FACTS AND PROCEEDINGS The following facts are taken from Anchorage Sch. Dist. v. Hale, 857 P.2d 1186 (Alaska 1993) (Hale I), the first appeal of this case: On September 26, 1988, Pier Hale suffered injuries to her back and right shoulder while working as a teachers' assistant for the Anchorage School District. She received medical attention for these injuries at the Providence Hospital Emergency Room on October 2nd. Three days later her doctor recommended that she undergo daily therapy for these injuries for two weeks. This therapy began on October 7, 1988, at Anchorage Physical Therapists. Since daily therapy would exceed the number of compensable treatments allowed under the Alaska Workers' Compensation Board's (Board) continuing treatment guidelines, 8 Alaska Administrative Code (AAC) 45.082(f) (1992), Hale was required to gain Board approval for the excess treatments if she wanted her employer to pay for them. The Board can give such approval only if the employee's doctor furnishes the employer -with a detailed treatment plan within fourteen days after starting the treatments. AS 23.30.095(c). On October 7, Physical Therapists prepared a treatment plan, but failed to include the statutorily required information regarding the "objectives, modalities, frequency of treatments, and reasons for the frequency of treatments." AS 23.30.095(c). Physical Therapists did not prepare a full treatment plan until November 1, 1988, after the statutory period for filing the plan had expired. The School District issued a controversion notice for Hale's physical therapy, arguing that it had not received the treatment plan within the statutory period and thus was not required to compensate Hale for continuing treatments in excess of the regulation's frequency standards. The School District subsequently paid for some but not all of Hale's treatments. Hale filed an application for adjustment of claim with the Board seeking payment for her treatments in excess of the Board's frequency standards. The Board denied this request, limiting Hale to compensation for the number of treatments allowed under the Board's guidelines. The Board based its decision solely upon Physical Therapists' failure to file a timely, conforming treatment plan. Hale appealed the Board's decision to the superior court on the ground that the Board's standards and procedures for compensation for continuing similar treatments are invalid. The superior court held that 8 AAC 45.082(f) is invalid, reversed the Board's decision, and remanded the ease to the Board for further consideration. The School District then filed this petition for review. Id. at 1187-88 (footnotes omitted). In Hale I we held that 8 AAC 45.082(f) was a valid exercise of the Board's rulemaking authority. Id. at 1188-91. We reversed and remanded for further proceedings. Id. at 1191. On remand, the superior court affirmed the Board on the medical expenses issue, holding that the School District was not required to pay Physical Therapists for treatments in excess of the Board's frequency standards, based on Physical Therapists' failure to file a timely treatment plan. The superior court also affirmed the Board's order requiring the School District to pay for ten chiropractic treatments Hale received from Dr. Kenneth Ketz. Hale appeals. III. DISCUSSION A. Standard of Review When the superior court acts as an intermediate appellate court, we review the merits of the underlying administrative decision, giving no deference to the superior court's determination. Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987). We review the Board's denial of Hale's medical expenses claim under the independent judgment test, since whether Physical Therapists failed to file a treatment plan in accordance with AS 23.30.096(e) is a question of law involving no agency expertise. See Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992). We review the Board's factual finding that Dr. Ketz was entitled to reimbursement for ten chiropractic treatments under the substantial evidence test. Id. B. Physical Therapists' Treatments Hale argues that Physical Therapists complied with AS 23.30.095(c) by submitting a treatment plan within fourteen days after it was determined that Hale would need continuing treatment. Hale misreads AS 23.30.095(c) by assuming that a health care provider's obligation to file a treatment plan turns on the indefinite or continuous nature of the recommended treatment. In fact, the obligation to file a treatment plan is entirely dependent on the frequency, not the duration, of treatments. By its plain language, AS 23.30.095(c) requires a physician or health care provider to submit a conforming treatment plan "if the course of treatment will require more frequent outpatient visits than the standard treatment frequen-cy_" AS 23.30.095(c). If the treatments exceed the standard treatment frequency, then a plan must be submitted "within 14 days after treatment begins." Id. The standard treatment frequency for the first month of any treatment is three treatments per week. 8 AAC 45.082(f). On October 7 Hale began receiving daily physical therapy at Physical Therapists. It was therefore incumbent on Physical Therapists to submit a conforming treatment plan by October 21, in order to be paid for treatments in excess of the standard treatment frequency. AS 23.30.095(c). This was the Board's conclusion. We agree. Hale argues that the Board's reading of AS 23.30.095(c) places an unfair burden on the health care provider by requiring it to anticipate, at the outset, that the prescribed treatment will continue "for some indefinite period of time." As the statutory analysis outlined above makes clear, Physical Therapists needed no "clairvoyance" to comply with AS 23.30.095(c). Once it began a course of treatment of daily physical therapy, the fourteen-day notification period of AS 23.30.095(c) commenced. Regardless of when Hale's treating physician determined that Hale would need long-term physical therapy, Physical Therapists was required to submit a conforming treatment plan within fourteen days after October 7, the date it began physical therapy in excess of the standard treatment frequency. C.Dr. Ketz's Treatments On April 24, 1989, Hale began a course of treatment with Dr. Kenneth Ketz. On April 27 Dr. Ketz filed a treatment plan calling for chiropractic treatments in excess of the standard treatment frequency. The Board found that the plan was timely filed; that it conformed with AS 23.30.095(c); and that the treatments called for in the plan were likely to improve Hale's condition. See 8 AAC 45.082(g). The effect of these findings was to make the School District responsible for all of Dr. Ketz's treatments, including those in excess of the standard treatment frequency. After reviewing the payments the School District had already made to Dr. Ketz, the Board determined that the School District still owed Dr. Ketz for eleven treatments. Later in the same decision, the Board held, without explanation, that Dr. Ketz was entitled to payment for ten treatments. The Board's initial finding that Dr. Ketz was owed for eleven treatments was correct. The Board's later conclusion that Dr. Ketz was owed for ten treatments is not supported by substantial evidence. We therefore reverse, and direct the Board on remand to enter an order requiring the School District to pay Dr. Ketz for eleven treatments. IV. CONCLUSION We AFFIRM the Board's holding that the School District was not required to pay Physical Therapists for treatments in excess of the standard treatment frequency. We REVERSE the Board's holding that the School District must pay Dr. Ketz for ten chiropractic treatments. The case is REMANDED to the Board for an order requiring the School District to pay Dr. Ketz for eleven treatments. . AS 23.30.095(c) provides in part, When a claim is made for a course of treatment requiring continuing and multiple treatments of a similar nature . the physician or health care provider shall furnish a written treatment plan if the course of treatment will require more frequent outpatient visits than the standard treatment frequency for the nature and degree of the injury and the type of treatments. The treatment plan shall be furnished to the employee and the employer within 14 days after treatment begins. The treatment plan must include objectives, modalities, frequency of treatments, and reasons for the frequency of treatments. If the treatment plan is not furnished as required under this subsection, neither the employer nor the employee may be required to pay for treatments that exceed the frequency standard. . Hale argues in her reply brief that the Board should have excused Physical Therapists' failure to file a timely treatment plan. See AS 23.30.095(c) ("The board shall, however, excuse the failure to furnish notice [of injury and treatment] within 14 days when it finds it to be in the interest of justice to do so."). This argument was not made below and is therefore waived. See Nenana City Sch. Dist. v. Coghill, 898 P.2d 929, 934 (Alaska 1995); see also Alaska R.App.P. 212(c)(3) (A reply brief "may raise no contentions not previously raised in either the appellant's or appellee's briefs.").

10320262

Timothy C. GUNDERSON, d/b/a Alaska Contract Motor Express, Appellant, v. UNIVERSITY OF ALASKA, FAIRBANKS, Appellee

Gunderson v. University of Alaska, Fairbanks

1996-08-09

No. S-7130

229

237

922 P.2d 229

922

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:01:11.631102+00:00

CAP

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

Timothy C. GUNDERSON, d/b/a Alaska Contract Motor Express, Appellant, v. UNIVERSITY OF ALASKA, FAIRBANKS, Appellee.

Timothy C. GUNDERSON, d/b/a Alaska Contract Motor Express, Appellant, v. UNIVERSITY OF ALASKA, FAIRBANKS, Appellee. No. S-7130. Supreme Court of Alaska. Aug. 9, 1996. Lloyd I. Hoppner, Hoppner & Paskvan, Fairbanks, for Appellant. James A. Sarafin, Moran & S'arafin, Anchorage, for Appellee. Before COMPTON, C.J., and RABINOWITZ, MATTHEWS, EASTAUGH and FABE, JJ.

3822

24652

OPINION FABE, Justice. I. INTRODUCTION This is an appeal from the decision of the superior court upholding the University of Alaska's award of a coal hauling and unloading contract to Royal Contractors. We affirm. II.FACTS AND PROCEEDINGS The University of Alaska, Fairbanks (UAF or the University) generates its own power and produces heat for the campus buildings by means of a coal-burning power plant. For many years the University obtained coal for its power plant through the Alaska Railroad Corporation (ARRC), which delivered the coal in rail cars to a siding next to the power plant. This method of delivery required UAF employees to unload the coal into the hoppers. In 1992 Timothy C. Gun-derson, d/b/a Alaska Contract Motor Express, (Gunderson) submitted an unsolicited proposal to UAF, offering to truck coal to UAF and to deliver the coal directly into the coal hoppers at the UAF power plant. UAF entered into a sole-source contract with Gunderson in the fall of 1992. Upon learning of this contract, ARRC filed a formal written protest with UAF, asserting that the sole-source contract violated both state and university procurement codes. In response to the protest, UAF appointed a hearing officer who determined that the sole-source contract violated competitive contracting requirements. UAF responded to the hearing officer's decision by issuing Request For Proposal (RFP) number 93P0085TK. A preproposal conference was held between UAF and interested contractors. The criteria for evaluation and award of the contract were set forth in the RFP as follows: Award will be to the low responsive, responsible offeror whose offer conforms in all essential respects to the solicitation requirements, price and other factors specifically set forth herein considered. The University may award a contract on the basis of initial proposals received, without discussions. Therefore, each initial proposal should contain the offeror's best terms from a cost or price and technical standpoint. Discussions or negotiations may be conducted with all offerors in the competitive range. If "Best and Final" offers are requested, they will be evaluated against the same criteria as were the initial proposals. The RFP also requested information describing the offerors' proposed methodology and a checklist of requirements for contractors to be considered responsive and responsible, as well as a detailed pricing schedule and specifications for performance. Following the pre-proposal conference, UAF issued an amendment to the RFP clarifying issues raised at the conference. There were no objections to the RFP, and none of the contractors, including Gunderson, complained or asserted that UAF had failed to set forth adequate criteria for the evaluation of the proposals and determination of the final award. In response to the RFP, UAF received nine proposals, including Gunderson's. Royal Contractors (Royal) offered the lowest price at $7.82 per ton of coal delivered and unloaded. Alaska Pacific Transport, Inc. offered the second lowest price, at $8.00 per ton. Haulin Hanna, Inc. proposed a price of $8.12 per ton, while Gunderson was the fourth lowest proposer at $8.18 per ton. As permitted under the competitive proposal method of contract selection, UAF requested from the qualified offerors further proposal information and clarification, including price confirmation. This request did not reveal the prices offered by other contractors, nor did it disclose any recipient's ranking in relation to the other proposals received. In response, Royal offered a price reduction to $7.57 per ton. UAF determined that Royal was the low responsive and responsible proposer, and a Notice of Intent to Award Contract to Royal was issued. Gunderson timely protested the notice of intent. Gunderson's protest was denied, and he appealed to the University's chief procurement officer. The chief procurement officer concluded that Gunderson had failed to demonstrate any factual or legal errors that would substantiate his appeal. Gunderson appealed this administrative decision to the superior court. The superior court upheld the chief procurement officer's determinations and the denial of Gunderson's protest. In reaching this conclusion, the court found that (1) UAF did not violate the state procurement code or its own procurement regulations and procedures by using the RFP procedure to award the coal hauling and unloading contract at issue; (2) UAF's RFP included sufficient evaluation factors to satisfy the requirements of state law and UAF's own regulations; (3) Gunderson had standing to challenge the responsiveness of Royal's proposal as it relates to the question of UAF's implied duty to consider, fairly and honestly, all of the proposals; and (4) Royal's proposal was responsive as it did not contain any variance that would give it a substantial advantage over any of the other contractors. This appeal followed. III. DISCUSSION Gunderson asserts that UAF disregarded the rules and regulations governing the award of public contracts. He raises the following issues on appeal: (1) the RFP issued by UAF did not contain any evaluation factors, in violation of AS 36.30.210(b) and UAF Procurement Regulations and Procedures P-3-064; (2) the proposal of Royal, the successful bidder, was not responsive to the terms and specifications of the RFP; and (3) Royal amended its proposal after the due date in violation of AS 36.30.240 and UAF Procurement Regulations and Procedures P-3-081 by further reducing its price. A. Standard of Review In an appeal from a judgment of the superior court acting as an intermediate court of appeal, we independently review the agency decision. Cook Inlet Pipe Line Co. v. Alaska Pub. Utils. Comm'n, 836 P.2d 343, 348 (Alaska 1992). When an appeal of an agency decision involves a question of statutory interpretation, this court applies one of two standards. "The 'rational basis' test is used when the issue involves agency expertise or the determination of fundamental policies within the agency's statutory function." Public Employees' Local 71 v. State, 775 P.2d 1062, 1063 (Alaska 1989). This standard is generally applied in two circumstances: First, . where the agency is making law by creating standards to be used in evaluating the case before it and future cases. Second, . when a case requires resolution of policy questions which lie within the agency's area of expertise and are inseparable from the facts underlying the agency's decision. Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987) (quoting Earth Resources Co. v. State, Dep't of Revenue, 665 P.2d 960, 964 (Alaska 1983)). However, when the statutory interpretation does not involve agency expertise, or the agency's specialized knowledge and experience would not be particularly probative, this court independently reviews the decision and substitutes its own judgment. Public Employees'Local 71, 775 P.2d at 1063. The superior court found that the applicability of UAF's procurement regulations and procedures to the award of a coal hauling and unloading contract was a question of statutory interpretation not involving agency expertise, since the regulations and procedures were developed in accordance with the requirements of the State Procurement Code in AS 36.30.005 — .995. The superior court then substituted its judgment in the resolution of the issues presented. UAF asserts that the superior court erred in substituting its judgment for the conclusions of the chief procurement officer and maintains that the officer's determinations should be upheld if they meet the "reasonable basis" test. Chris Berg, Inc. v. State, Dep't of Transp. & Pub. Facilities, 680 P.2d 93, 94 (Alaska 1984) ("The determination by a public agency of the responsiveness of a bid is within the agency's discretion, subject, on judicial review, to an ascertainment that there was a reasonable basis for the agency's action."). We conclude that the appropriate standard for reviewing the decision of the University's chief procurement officer is the reasonable basis standard rather than the substitution of judgment standard employed by the superior court. Under this standard, we seek to "determine whether the agency's decision is supported by the facts and has a reasonable basis in law, even if we may not agree with the agency's ultimate determination." Teso-ro Alaska Petroleum, 746 P.2d at 903. B. The Request for Proposals Gunderson claims that UAF violated the Alaska procurement code and its own regulations by failing to disclose relevant evaluation criteria in the RFP as required by state law and UAF procurement regulations. Specifically, Gunderson claims that the RFP failed to list the factors that were going to be considered by the procurement officer in evaluating the proposals and omitted information about the relative importance of price and other evaluation factors. AS 36.30.200, which sets forth the competitive sealed proposal method for awarding an "agency contract," does not apply to the Uni versity because AS 36.30.990(1) specifically exempts the University from the definition of "agency" under the state procurement code. Furthermore, under AS 36.30.005(c), "all rights, powers, duties and authority relating to the procurement of supplies, services, professional services, and construction" are delegated to the University's Board of Regents. However, this provision also states that "[t]o the maximum extent possible, authority granted under this subsection shall be exercised in accordance with this chapter." Additionally, the Board of Regents is directed to "adopt regulations . that are substantially equivalent to the regulations adopted by the commissioner of administration." AS 36.30.005(c). The requirements governing the issuance of an RFP are contained in the University's Procurement Regulations and Procedures (PR & P). PR & P 3-064(2) requires an RFP to include (1) the purchase description; (2) the evaluation criteria; (3) the delivery or performance schedule; and (4) the inspection and acceptance requirements that are not included in the purchase description. We conclude that in addition to a purchase description, the RFP contained all of the requirements, including a statement of the criteria for evaluation and award. RFP No. 93P0035TK provides in part: The University of Alaska Fairbanks is soliciting offers for the hauling and off loading of coal for the UAF Power Plant. Transportation services are to be provided from mine mouth, Healy, Alaska to the UAF Power Plant. Coal shall be off loaded into the coal receiving facility located below the railroad tracks at the UAF Power Plant facility. The successful offeror shall provide all labor, equipment and supplies necessary to execute the terms and conditions contained in this RFP. The University requires from 110 to 220 tons of coal per day depending on load and weather conditions. Hauling and off loading services shall be performed in support of continuous operation of the Power Plant. The contract shall commence upon award and shall continue until June 30,1994, with one (1) year renewal options for up to seven (7) additional years, ending not later than June 30,2001. We hold that the foregoing satisfies the requirement of a "purchase description" for purposes of P-3-064(2) as well as explicitly describing the "delivery or performance schedule." The RFP also contains evaluation criteria, including price, responsiveness and responsibility: Subject to provisions of section 11, Instructions to Offerors, and the terms and conditions contained herein, an award will be to a single offeror. Award will be to the low responsive, responsible offeror whose offer conforms in all essential respects to the solicitation requirements, price and other factors specifically set forth herein considered. The University may award a contract on the basis of initial proposals received, without discussions. Therefore, each initial proposal should contain the offeror's best terms from a cost or price and technical standpoint. Discussions or negotiations may be conducted with all offerors in the competitive range. If "Best and Final" offers are requested, they will be evaluated against the same criteria as were the initial proposals. Even if the evaluation criteria listed in the RFP were deficient in some unexplained respect, Gunderson has "failed to demonstrate that such error prejudiced [his] proposal in comparison to others, since each proposal received identical treatment." King v. Alaska State Hous. Auth., 512 P.2d 887, 894 (Alaska 1973) (holding agency's failure to assign specific grade to earthquake risk did not deprive evaluation of proposals of reasonable basis); see also Fairbanks N. Star Borough Sch. Dist. v. Bowers Office Prods., Inc., 851 P.2d 56, 59 n. 3 (Alaska 1993) (finding consideration of factors only implicitly included in RFP justified). A review of the record confirms the University's assertion that the RFP contained the evaluation factors required by P-3-064. We therefore affirm the superior court's decision holding that UAF's RFP included sufficient evaluation factors to satisfy the requirements of state law and UAF's own regulations. C. Royal's Proposal 1. Responsiveness to Terms and Specifications Gunderson contends that Royal's proposal was not responsive to the terms and specifications of the RFP. Gunderson complains that Royal's successful bid proposed the use of "end-dump containers" while the RFP in Specification No. 2, Scope of Services stated: The coal must be delivered in bottom dump containers to enable dumping through a grill . and into a grizzly located below the railroad tracks. Services shall be performed in strict accordance with these specifications, and all terms and conditions of the contract. Gunderson argues that the competition for the contract was not equal among the various trucking companies, since the rest of the bidders complied with the specifications in the RFP and submitted their bids based upon the use of bottom-dump containers. UAF concedes that the type of truck proposed by Royal, a self-unloading trailer that emptied through the rear by means of a conveyor belt, was not the type of trailer initially contemplated by the University. However, UAF points out that "the reason for the bottom-dump trailer specification was that clearance in the University's facility did not allow raising a conventional end-dump trailer for unloading purposes." It is well settled that a public entity "is required to reject bids which vary materially from the specifications set forth in the published request for proposal." McBirney & Assocs. v. State, 753 P.2d 1132, 1136 (Alaska 1988). We have previously held that "[a] variance is considered material if it gives one bidder 'a substantial advantage over other bidders and thereby restricts or stifles competition.' " Id. (quoting Chris Berg, Inc., 680 P.2d. at 94). In this case, the purpose of the bottom-dump specification in the RFP was to allow adequate clearance for dumping at UAF's facility. In denying Gunderson's protest, the chief procurement officer concluded that the proposal by Royal contained only a "minor variation on the theme established by the RFP — that is that coal may be delivered to the UAF Power Plant by means other than rail car." He based this conclusion on his finding that "the size and capacity of the grizzly located in the coal handling facility does not restrict end dumping as proposed by Royal.... For purposes of this RFP they have proposed a method of delivery and off loading that appears viable and they will be held to the requirements for performance." We conclude that Gunderson has failed to show that Royal's proposed equipment was a material deviation from the RFP requirements. There was thus a reasonable basis for the University's action in accepting Royal's proposal under the RFP. Furthermore, there is no evidence in the record to suggest that such equipment gave Royal a substantial advantage over other bidders. In fact, the chief procurement officer's decision did not represent UAF's final action on this issue. Prior to awarding the contract to Royal, the University obtained confirmation that Royal was "not making any exceptions to the specifications, including scope of services, paragraph 2." The contract was then awarded to Royal "in strict accordance with the terms and conditions" of the RFP. Accordingly, Royal is using bottom-dump equipment in compliance with the RFP requirements, and any error by the chief procurement officer is harmless. 2. Reduction of Proposed Price After evaluating the proposals received, UAF sent a form letter to those offerors "within the competitive range for further consideration." This June 24, 1993 letter requested a confirmation of the price schedule from the original proposal and further informed these offerors that [a]s soon as the evaluation is completed you will be advised of the results. In addition, you are notified that additional clarification or information and a best and final offer may be requested at a later date. (Emphasis added.) Upon receipt of this letter, Royal amended its proposal by further reducing the price on its price schedule, without awaiting a request by UAF for a best and final offer. Gunder-son argues that the University did not provide any of the other offerors an opportunity to make a best and final offer at a later date. Gunderson also contends that Royal's price reduction violated University PR & P 3-081. As UAF points out, changes in price after the proposal deadline are expressly permitted under the University's competitive sealed proposals procedure. P-3-061(a) provides: The competitive sealed proposals method differs from competitive sealed bidding in two important ways. First, it permits discussions with competing offerors and changes in their proposals including price; and second, it allows comparative subjective evaluations to be made when determining acceptable proposals for negotiation and award of the contract. The ability of offerors to make price adjustments is further recognized under P-3-061(b): "Under competitive sealed proposals, revisions in a proposal, including prices, may be made after proposals are opened." Furthermore, Royal's submission was not an untimely modification to the RFP but instead was a response to a letter requesting verification of its proposal. There is no support for Gunderson's assertion that he was not given the same opportunity to adjust his price as was given to the other proposers. The University representative at the pre-proposal conference informed all of the potential proposers that the University had the right to obtain clarifications and enter into negotiations with the proposers after the proposal deadline. Gun-derson was further advised in a letter that the alternative procedure of requesting best and final offers was optional. The chief procurement officer found that the University did not accept a "late modification" but had merely allowed a change in price expressly permitted by P-3-061(b). The chief procurement officer's decision did not constitute an abuse of discretion, and the decision has a reasonable basis in the law. IV. CONCLUSION "The determination by a public agency of the responsiveness of a bid is within the agency's discretion, subject, on judicial review, to an ascertainment that there was a reasonable basis for the agency's action." Chris Berg, Inc., 680 P.2d at 94. In this ease, the chief procurement officer did not abuse his discretion in awarding the coal hauling contract to Royal. We hold that there is a reasonable basis for the award to Royal and AFFIRM the decision of the superior court upholding the award of the contract to Royal. . Gunderson filed suit in response to the hearing officer's finding. The superior court dismissed Gunderson's claims against ARRC, ruling that ARRC was immune from suit under the Noerr-Pennington doctrine. This court concluded that the superior court properly granted summary judgment in favor of ARRC. Gunderson v. University of Alaska, Fairbanks, 902 P.2d 323 (Alaska 1995). . Alaska Pacific Transport, Inc. and Gunderson did not change their prices in response to the request for clarification and price confirmation; however, Haulin Hanna, Inc. increased its price to $13.82 per ton, changing Gunderson's ranking to the third most favorable proposal. . The contract was formally awarded to Royal on September 23, 1993. . Gunderson refers to AS 36.30.210(b) which provides: A request for proposals must contain that information necessary for an offeror to submit a proposal or contain references to any information that cannot reasonably be included with the request. The request must provide a description of the factors that will be considered by the procurement officer when evaluating the proposals received, including the relative importance of price and other evaluation factors. . AS 36.30.990(1) states that " 'agency' . does not include (i) the University of Alaska." . Gunderson also acquiesced to the RFP process and did not object until after he learned that the contract would go to another bidder. The University's RFP clearly stated in Section 7(a): Offerors must read the RFP thoroughly. Any ambiguity, conflict, discrepancy, omission or other errors in this RFP should be reported in writing to the University of Alaska address for inquiries shdwn on the face of the RFP prior to the Pre-proposal Conference and in any case must be reported prior to the proposal submit-tal deadline. Therefore, UAF has a strong argument that Gun-derson has waived his objections. This argument finds support in the federal government contract bidding process. Protests against the language and specifications of an Invitation for Bids (IFB) must be received by the Comptroller General (Comp.Gen.) prior to bid opening. The Comp. Gen. will not consider a protest against an alleged deficiency in the IFB if the protester goes along with the procurement without objection until it appears that the award may go to another bidder. If the bidder has not protested before then, he is deemed to have acquiesced in the terms of the IFB. Paul A. Shnitzer, Government Contract Bidding 573 (2d ed.1982). Because we find that the RFP was not deficient, we need not decide whether Gunderson waived his objection by failing to object prior to the award of the contract. . P-3-081 states:- Unless otherwise provided in the request for proposals, any proposal, withdrawal, or modification received after the established due date at the place and closing time designated for receipt of proposals is late and may only be considered if its lateness is due solely to mishandling by the university. . In response to the University's request for clarification, Gunderson indicated that he was proposing to use his own new type of specially designed equipment; two other bidders adjusted their prices. .In its decision the superior court addressed the issue of whether Gunderson had standing to protest the responsiveness of Royal's proposal. The court determined that Gunderson had a sufficient personal stake in the outcome to have standing to protest the responsiveness of Royal's proposal. In holding that Gunderson had standing, the superior court stated: Acknowledging the Alaska Supreme Court's stated liberal construction of standing in administrative appeals, and the fact that the responsiveness issue is only part of Gunderson's argument, this court finds that Gunderson has standing to challenge the responsiveness of Royal's proposal as it relates to the question of UAF's implied duty to fairly and honestly consider all of the proposals. UAF renews its argument before this court that Gunderson lacks standing to protest the responsiveness of Royal's proposal. It argues that Gun-derson does not have a sufficient personal stake in the outcome of the controversy since he did not present the second lowest price proposal. Although a judgment of the superior court may be affirmed on different grounds than those advanced by the trial court, we need not reach the issue of standing given our conclusion that the chief procurement officer did not abuse his discretion in the contract award.

10332376

Clint D. KNIX, Appellant, v. STATE of Alaska, Appellee; Connie J. KNIX, Appellant, v. STATE of Alaska, Appellee

Knix v. State

1996-08-02

Nos. A-5621, A-5634

913

923

922 P.2d 913

922

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:01:11.631102+00:00

CAP

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

Clint D. KNIX, Appellant, v. STATE of Alaska, Appellee. Connie J. KNIX, Appellant, v. STATE of Alaska, Appellee.

Clint D. KNIX, Appellant, v. STATE of Alaska, Appellee. Connie J. KNIX, Appellant, v. STATE of Alaska, Appellee. Nos. A-5621, A-5634. Court of Appeals of Alaska. Aug. 2, 1996. Rehearing Denied Aug. 27, 1996. Paul E. Malin, Assistant Public Defender, and John B. Salemi, Public Defender, Anchorage, for Appellant No. A-5621. Leslie A. Hiebert, Assistant Public Advocate, and Brant McGee, Public Advocate, Anchorage, for Appellant No. A-5634. Elizabeth Vazquez, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

6404

39929

OPINION BRYNER, Chief Judge. Codefendants Clint D. and Connie J. Knix appeal their convictions of perjury, AS 11.56.200(a), engaging in a scheme to defraud, AS 11.46.600(a)(2), and second-degree theft, AS 11.46.180(a) and AS 11.16.110(2)(B), raising various constitutional claims and statutory construction questions. We affirm the perjury and scheme to defraud convictions but hold that the theft convictions merge with the convictions for scheme to defraud. Clint and Connie Knix applied for and received public assistance from the State of Alaska, Division of Public Assistance (DPA), from October 1991 through October 1992. From October 1991 through April 1992, the Knixes declared no income. Early in 1992, DPA received an allegation of welfare fraud, which indicated that the Knixes were earning income through a business venture called "Scrumptious Sourdough." On May 21,1992, DPA employee Guy Swafford interviewed the Knixes concerning their business. During the interview, Clint Knix acknowledged that the Knixes had previously done business under the name Scrumptious Sourdough, but he told Swafford that the business had made no sales and had earned no income since September of 1991. At Swafford's request, Clint Knix wrote out a statement declaring that the Knixes had received no income from their business venture from September 1991 through May 1992. Beneath this declaration, Swafford wrote, "UNDER PENALTY OF PERJURY, THIS IS A TRUE AND ACCURATE STATEMENT." Both Knixes signed and dated the statement. Swafford, a notary public, then added his own signature and affixed his notary seal. Subsequent DPA investigation established that the Knixes had in fact obtained substantial income, both from their business and from other sources, while they were receiving public assistance. For fraudulently claiming and obtaining welfare benefits, the Knixes were charged with engaging in a scheme to defraud and theft in the second degree; for submitting the false sworn statement denying income, they were charged with perjury. Following a joint jury trial presided over by Acting Superior Court Judge Sigurd E. Murphy, the Knixes were convicted of all charges. On appeal, the Knixes first argue that the evidence at trial was insufficient to support their convictions for perjury. The Knix-es specifically argue that the state failed to prove that their May 21, 1992, statement to Swafford qualified as a "sworn statement" for the purposes of the perjury statute. Under AS 11.56.200(a), "[a] person commits the crime of perjury if the person makes a false sworn statement which the person does not believe to be true." Alaska Statutes 11.56.240(2) defines two forms of "sworn statement." For present purposes, we need consider only the form of sworn statement defined in subparagraph (2) (A) of the statute: "a statement knowingly given under oath or affirmation attesting to the truth of what is stated, including a notarized statement[.]" By its own terms, subparagraph (2)(A) requires this form of sworn statement to be given under oath or affirmation. Under AS 09.63.010, oaths or affirmations may be taken by justices, judges, and magistrates, by clerks of court or their deputies, or by notaries, postmasters, and commissioned officers and municipal clerks in certain circumstances. Under AS 09.63.030(a), any officer authorized to administer an oath may notarize a document by certifying "on the document that it was signed and sworn to or affirmed before the officer." The Knixes point out that DPA employee Guy Swafford testified at trial that he never actually administered an oath or affirmation to the Knixes; and although Swafford affixed his notary seal and signature to the Knixes' statement, he did not certify on the statement "that it was signed and sworn to or affirmed before [him]," as required under AS 09.63.030(a). Given Swafford's failure to administer an oath or affirmation and his failure to include a proper certification, the Knixes insist that their signed statement to Swafford cannot properly be considered a sworn statement as defined in AS 11.56.240(2)(A). However, in Gargan v. State, 805 P.2d 998 (Alaska App.1991), we considered an argument similar to the one advanced by the Knixes. Relying on the Alaska Supreme Court's opinion in Anchorage Sand and Gravel Co. v. Wooldridge, 619 P.2d 1014 (Alaska 1980), we observed that, for purposes of determining whether a signed declaration qualifies as a sworn statement, the crucial issue is not whether an oath was actually given, but whether the signed declaration amounts to "a verification on its face of the truthfulness of the facts contained therein." Gargan, 805 P.2d at 1005. We concluded: "When the notary is present at the signing of a document which purports to be sworn, and when the notary then notarizes the document, the requirements of the oath have been satisfied; the document qualifies as a sworn statement." Id. The Knixes nevertheless say that Gargan is distinguishable. They point out that, unlike Gargan, the signed statement in this case does not certify on its face that the Knixes were under oath and does not otherwise "purport[] to be sworn." Id. at 1005. For these reasons, according to the Knixes, their statement to Swafford cannot be construed as "a verification on its face of the truthfulness of the facts contained therein." Id. We disagree. As we have previously pointed out, a sworn statement can be made under either "oath or affirmation attesting to the truth of what is stated[J" AS 11.56.240(2)(A). Although the Knixes' statement does not on its face purport to have been given under oath, it clearly does purport to have been given under affirmation. "An 'affirmation' is a statement by which a person signifies that he is bound in conscience to act truthfully. No particular form of oath or affirmation is required by Alaska law[.]" Anchorage Sand and Gravel Co., 619 P.2d at 1016. On its face, the written statement given to Swafford by the Knixes de- elared that, "under penalty of perjury, this is a true and accurate statement." By virtue of this language, the Knixes plainly "signifie[d] that [they were] bound in conscience to act truthfully." Id. This readily qualifies as an affirmation, and its presence on the face of the notarized statement renders the statement one that "purports to be sworn." Gargan, 805 P.2d at 1005. Although Swafford did not expressly "certify on the [face of the statement] that it was signed and sworn to or affirmed before [him,]" AS 09.63.030(a), the inference that it was so affirmed flows logically from the presence of the affirmation itself, coupled with Swafford's signature seal of office. Alaska's perjury statute specifically provides that "it is not a defense [to a charge of perjury] that . the oath or affirmation was taken or administered in an irregular manner." AS 11.56.200(b)(2). To the extent that Swaf-ford's certification failed to comply with the formal statutory requirements governing certification of notarized documents, the deficiency falls squarely within the realm of this provision. Cases from other jurisdictions support this conclusion. The required certification for an affidavit, traditionally called a jurat, is typically regarded as "merely a certificate of the due administration of the oath. Its purpose is to evidence the fact that the affidavit was duly sworn to before an officer authorized to administer it." Craig v. State, 232 Ind. 293, 112 N.E.2d 296, 297 (1953); see also Cintuc, Inc. v. Kozubowski, 230 Ill.App.3d 969, 172 Ill.Dec. 822, 825, 596 N.E.2d 101, 104 (1992) (holding that the jurat is not the affidavit, but simply evidence of a properly sworn affidavit). Errors or omissions in the jurat ordinarily will not render void an otherwise valid affidavit. See, e.g., American Home Life Ins. Co. v. Heide, 199 Kan. 652, 433 P.2d 454, 458 (1967) ("If a declaration has in fact been made under oath, it is an affidavit although no jurat be attached.") (quoting James v. Logan, 82 Kan. 285, 108 P. 81 (1910)); Land Clearance for Redevelopment Auth. of St. Louis v. Zitko, 386 S.W.2d 69, 78 (Mo.1964) ("the omission of a jurat will not render a properly executed affidavit a nullity"); King v. State, 167 Tex.Crim. 440, 320 S.W.2d 677, 678 (App.1959) ("When a jurat on its face is defective, the fact that it was properly sworn to may be shown by other evidence.") (citing Stanzel v. State, 112 Tex.Crim. 628, 18 S.W.2d 158,160 (App.1929)). The principal exception involves situations in which the jurat is blank and the affidavit lacks both the notary's signature and the official notary seal. In such cases, some courts have been unwilling to allow extrinsic proof that the affidavit was in fact executed in the presence of a notary. State v. Phippen, 244 N.W.2d 574 (Iowa 1976); Miller v. Palo Alto Bd. of Supervisors, 248 Iowa 1132, 84 N.W.2d 38 (1957). In short, the superior court properly concluded that sufficient evidence was presented at trial to allow the jury to find that the written statement signed by the Knixes in Swafford's presence on May 21, 1992, amounted to perjury: a "false sworn statement which [the Knixes did] not believe to be true." AS 11.56.200(a). The Knixes next assert that the trial court did not properly elicit from them an on-record waiver of their right to testify, as required under LaVigne v. State, 812 P.2d 217 (Alaska 1991). This claim lacks merit. Prior to the conclusion of the Knixes' trial, Judge Murphy conducted a painstakingly thorough on-record inquiry to determine whether the Knixes wished to exercise their right to testify at trial. During the inquiry, the Knixes made veiled, conelusory references to threats that had purportedly been made to them in connection with their contemplated exercise of the right to testify. However, despite repeated efforts by the trial court to delve into the nature of and circumstances surrounding the alleged threats, despite a break in proceedings to allow the Knixes to consult with their attorneys, and despite repeated assurances by Judge Murphy that the court stood ready to hear further information and to take appropriate curative action, the Knixes steadfastly refused to substantiate their vague claim of threats or to divulge any further information explaining their situation. In response to questioning by Judge Murphy, each of the Knixes' trial attorneys denied threatening their clients, professed ignorance of any actual threats, and assured Judge Murphy that the Knixes had been thoroughly apprised of their right to testify. But defense counsel, too, spoke only in general terms: apparently seeking to avoid a violation of the attorney-client privilege, counsel declined to provide the court with any significant detail or to shed meaningful light on the situation. Upon completion of the inquiry by Judge Murphy, neither the Knixes nor their attorneys requested any action or relief from the court. The case proceeded, and neither Knix testified. In spite of Judge Murphy's mid-trial offer of a post-trial inquiry into the alleged threats, neither the Knixes nor their trial attorneys ever requested a post-trial hearing. Now, however, the Knixes complain that they were coerced into remaining off the stand and that their waiver of the right to testify was involuntary. The right to testify is undeniably one of the most fundamental rights constitutionally secured to a person accused of committing a crime. For this reason, the Alaska Supreme Court stated in LaVigne that, before allowing a criminal trial to conclude without the defendant taking the stand, the trial court must carefully explain the defendant's right to testify, ascertain that the defendant understands that the decision to exercise the right rests with the defendant, and elicit a voluntary waiver of the right. A trial judge faced with a defendant who, in the course of this process, voices fears of reprisal as a consequence of testifying — even vague and insubstantial fears — must do everything realistically possible to delve into the issue and elicit an informed, voluntary choice. To this end, the judge should invite a full disclosure by the defendant and the defendant's counsel of any purported threat, offer to invoke the full weight of the court's protective powers against the source of any threat, and conduct a thorough inquiry in response to any information disclosed. The judge should also ensure that the defendant has been provided an adequate opportunity to consult with counsel concerning any potential threats or pressure and should take appropriate measures in the event that an active conflict of interest between client and attorney comes to light. In the Knixes' ease, Judge Murphy did all of the foregoing, but to no avail. When the judge received no response to his efforts, there was little else he could do. The inescapable corollary of the fundamental right to testify is the equally fundamental right to silence. Faced with the Knixes' persistent refusal to elaborate on their situation, Judge Murphy confronted a practical dilemma. On the one hand, the judge could hardly order the unwilling Knixes to take the stand and testify in their own defense. On the other hand, with nothing more than an unsubstantiated hint of threats and repeated assurances by the Knixes and their counsel that no further information was forthcoming, the judge could hardly stop the trial in midstream. As a practical and legal matter, Judge Murphy was powerless to do anything but what he did: require the Knixes to choose among their clearly explained options and to live with the consequences of their choices. At this late date, still lacking any colorable evidence to substantiate their claim of threat or any explanation for their failure to air that claim before the trial court in a timely manner, the Knixes cannot be heard to complain that their election to remain silent was coerced. The Knixes' skeletal assertion of a threat cannot sustain their challenge to the voluntariness of their waiver. The record currently before us supports only one conclusion: that both Clint and Connie Knix knowingly, intelligently, and voluntarily declined to take the stand. We find no LaVigne violation. The Knixes next argue that the trial court erred in instructing the jury on the culpable mental state required for conviction of the offense of scheme to defraud. The trial court instructed the jury, in relevant part, that to prove the crime of scheme to defraud, the state was required to establish that the Knixes "knowingly engaged in conduct constituting a scheme" and "that the scheme was to defraud one or more persons of $10,000[.]" The Knixes now complain that the court should have instructed the jury that the state was required to prove not just that the Knix-es knowingly participated in a scheme, but that they did so with specific intent to defraud their victims. Because the Knixes failed to object below to the elements of the offense instruction for scheme to defraud, we review their claim only for plain error. Hilbish v. State, 891 P.2d 841, 850 (Alaska App.1995). A plain error is one that is both obvious and obviously prejudicial. Id.; see also S.R.D. v. State, 820 P.2d 1088, 1095 (Alaska App.1991) ("A plain error is an obvious one that results in substantial prejudice."); Reischman v. State, 746 P.2d 912, 915 (Alaska App.1987) ("In order to establish plain error, the appellant must show that the error was obvious and substantially prejudicial"). Alaska's scheme to defraud statute, AS 11.46.600, does not specify a culpable mental state: (a) A person commits the crime of scheme to defraud if the person engages in conduct constituting a scheme (1) to defraud five or more persons or to obtain property or services from five or more persons by false or fraudulent pretense, representation, or promise and obtains property or services in accordance with the scheme; or (2) to defraud one or more persons of $10,-000 or to obtain $10,000 or more from one or more persons by false or fraudulent pretense, representation, or promise and obtains property or services in accordance with the scheme. The state argues that in the absence of an explicitly designated culpable mental state, AS 11.81.610(b) controls the statute's interpretation. According to AS 11.81.610(b), when "a provision of law defining an offense does not prescribe a culpable mental state, the culpable mental state [for] . conduct is 'knowingly[.]' " The state concludes that this provision required proof that the Knixes "knowingly" engaged in a scheme to defraud. The state's argument is sound as far as it goes, but it does not go far enough, for it ignores the ordinary and unmistakable meaning of the words "scheme to defraud." The ordinary definitions of both words strongly imply an element of intentionality. In relevant part, Webster's defines "scheme" as "a plan or program of something to be done: a planned undertaking . as A. a crafty or unethical project[.]" And Webster's defines "defraud" to mean "to take or withhold from (one) some possession, right, or interest by calculated misstatement or perversion of truth, trickery, or other deception." Alaska's scheme to defraud statute provides no indication that the words "scheme" and "defraud" are used in anything other than their ordinary meaning. Neither word is defined in Alaska's criminal code. As defined by the dictionary, the individual words describe conduct directed toward a specific objective. These words are coupled in AS 11.46.600(a) by the purposive word "to," yielding the statutory phrase, "scheme to defraud," which unmistakably refers to purposive conduct — a scheme — that is intended to achieve a specific result — a fraud. The notion of intentional conduct is thus intrinsic in the ordinary meaning of the term "scheme to defraud." The legislative commentary to the scheme to defraud statute corroborates this analysis. The commentary makes it clear that Alaska's scheme to defraud provision was based in part on the federal mail fraud statute: Subsections (a)[ (1) ] and [ (2) ] of the statute are based on 18 U.S.C. § 1341 (1970) and the revised versions of that provision appearing in the proposed Federal Criminal Code § 1437 95th Cong., 1st Sess. § 1734 (1977). The federal provision is commonly referred to as the mail fraud statute. A substantial body of case law has developed around the mail fraud statute making it an effective tool in the area of consumer frauds. Because the language of the proposed statute in part parallels that of the mail fraud statute, it is expected that the judicial decisions under the federal provision will be highly relevant to the construction of the Code provision. Commentary on the Alaska Revised Criminal Code, Senate Journal Supplement 47 (1978). Case law interpreting the federal statute uniformly supports our conclusion that the phrase "scheme to defraud" describes purposeful conduct. Like Alaska's scheme to defraud provision, the federal mail fraud statute proscribes participation in a scheme to defraud and does not specify the applicable culpable mental state: Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises . [uses the mail commits a felony]. 18 U.S.C. § 1341. Federal courts construing the mail fraud statute's reference to "scheme . to defraud" unanimously agree that the phrase necessarily implies specific intent. In short, we think the state mistaken in arguing that Alaska's scheme to defraud statute does not require proof of specific intent. We construe the statutory phrase "scheme to defraud" as meaning a scheme intended to defraud. Our conclusion, however, does not necessarily mean that the trial court committed plain error — or, for that matter, any error at all — in failing to instruct the jury, sua sponte, on the need to find specific intent. Here, the trial court gave the jury the Alaska Pattern Jury Instruction for the offense of scheme to defraud, which required the state to prove beyond a reasonable doubt that the defendant "knowingly engaged in conduct constituting a scheme." The culpable mental state instruction challenged by the Knixes thus faithfully reflects the wording of the pattern instruction. The Knixes cannot plausibly claim that this instruction was erroneous in requiring proof of knowing participation in a scheme to defraud. If the instruction was erroneous at all, its error was one of omission: its failure to require proof of specific intent to defraud in addition to proof of knowing participation in a scheme. This point is well illustrated by the federal pattern jury instruction for the mail fraud statute, an instruction cited and relied on by the Knixes themselves. In relevant part, it requires the jury to find both knowing participation and specific intent to defraud: (1) the defendants] . knowingly participated in a scheme . to defraud [or] . knowingly participated in a scheme to obtain money or property by means of false or fraudulent pretenses, representations, or promises . (2) the defendants did so with the intent to defraud[.] Devitt, Blackmar & O'Malley, Federal Practice and Instructions, § 40.03 (1990). As we have previously pointed out, the Knixes can belatedly complain of the instruction given below only if its omission of specific intent language amounted to plain error: that is, if the omission was obviously erroneous and substantially prejudiced the Knixes' trial. We find no obvious error or substantial prejudice. We reach this conclusion for precisely the reason that prompted us to hold that the crime of scheme to defraud requires proof of specific intent: the element of specific intent is implicit in the plain meaning of the words "scheme to defraud." Under AS 11.81.900(a)(1), "a person acts 'intentionally' with respect to a result described by a provision of law defining an offense when the person's conscious objective is to cause that result[.]" It seems all but inconceivable that a knowing participant in a scheme to defraud — that is, by dictionary definition, "a planned undertaking" or "crafty or unethical project" to "take or withhold [property of another] by calculated misstatement or perversion of truth" — could avoid acting intentionally. Just as the phrase "scheme to defraud" unmistakably refers to conduct directed at achieving a conscious objective — obtaining property of another by fraud — so the trial court's instruction requiring the jury to find that the Knixes knowingly engaged in a scheme to defraud unmistakably communicated the need to find that the Knixes acted with specific intent to defraud — that they engaged in their scheme with the "conscious objective . to cause that resultf.]" AS 11.81.900(a)(1). And just as it is all but inconceivable that the Knixes could have knowingly engaged in a scheme to defraud without acting intentionally, so it is all but inconceivable that a reasonable juror could find them guilty of knowing participation in the scheme without necessarily concluding that they acted with specific intent to defraud. The Knixes complain that the omission of specific intent language from their scheme to defraud instruction might have prejudiced them by allowing the jury to convict them for participating in a "scheme that defraud[ed]" rather than in a "scheme to defraud." (Emphasis by the Knixes.) The simple and sufficient answer to this complaint is that the court never told the jury to convict the Knix-es upon proof of a scheme "that" defrauded; rather, the court explicitly instructed the jury to convict only if convinced beyond a reasonable doubt that they engaged in a scheme "to" defraud. As a matter of common sense, we think that this distinction is one that reasonable jurors would understand and correctly apply. The jury instructions as a whole said nothing to suggest that knowing participation in a scheme to defraud did not require a finding of intent to defraud. Moreover, at no point in its final argument to the jury did the state attempt to characterize scheme to defraud as a general intent, rather than a specific intent, crime. Indeed, the prosecution expressly characterized the Knixes' acts as intentional. The controversy at trial centered on the existence of a scheme. The prosecution argued that the Knixes intentionally schemed to defraud the state of welfare benefits; the Knixes responded that there was no scheme at all — that they had acted innocently and that if the state overpaid their welfare benefits, this was due to miscommunication and good-faith error. In convicting the Knixes of engaging in a scheme to defraud, the jury obviously decided this dispute in favor of the state. Moreover, in simultaneously convicting the Knixes of the additional crime of theft by deception, the jury necessarily found that the Knixes had acted intentionally, since the jury instruction on theft by deception expressly required proof of specific intent to defraud. We ordinarily presume that a jury follows the trial court's instructions. The record in this case provides no reason to suppose that the Knixes' jury strayed from its duty to heed the scheme to defraud instruction as actually given or that the jury interpreted the instruction in other than a common sense manner. In summary, even though the disputed scheme to defraud instruction failed to expressly incorporate a specific intent requirement, the instruction did not preclude the jury from basing its verdict on proof of specific intent to defraud; to the contrary, the instruction implicitly required such proof. Absent an objection and a request for specific intent language, the instruction was legally sufficient as given; and under the circumstances of this ease, it resulted in no discernible prejudice. We find no plain error. The Knixes' final claim is that their convictions for theft by deception (second-degree theft) should have merged with their scheme to defraud convictions. The state concedes error. We are empowered to accept this concession if it is supported by law and factually grounded. Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972). We find that it is. Under the charges and theory pursued by the state at trial, the fraudulent scheme for which the Knixes were convicted consisted of the individual acts of theft for which they were simultaneously convicted. Under the circumstances of this case, the thefts and the scheme to defraud involved no appreciable differences in intent or conduct; and in the specific factual context of this case, there was no significant variance in the basic societal interests served by the theft and scheme to defraud statutes. Double jeopardy thus precludes multiple punishment for these offenses. Whitton v. State, 479 P.2d 302, 312 (Alaska 1970). Accordingly, the convictions for perjury and scheme to defraud are AFFIRMED; on remand, the superior court is DIRECTED to issue amended judgments vacating the convictions for second-degree theft. . Clint Knix was individually charged with and convicted of an additional count of perjury as a result of a false sworn statement he made on October 16, 1992. The circumstances surrounding this offense are not at issue here, and Knix does not dispute the sufficiency of the evidence to support his conviction on the separate perjury count. . The second form of "sworn statement," defined in AS 11.56.240(2)(B), permits a perjury charge to be established without proof of an oath or affirmation when a statement is made "under penalty of perjury" by a person who certifies, in accordance with AS 09.63.020(a), that "a notary public or other official empowered to administer oaths is unavailable!)]" Since we conclude that sufficient evidence existed to prove that the Knix-es' statement was given under oath or affirmation, and so qualified as a "sworn statement" under AS 11.56.240(2)(A), we need not decide whether it also qualified as a sworn statement under AS 11.56.240(2)(B). . AS 09.63.030(a) provides: (a) When a document is required by law to be notarized, the person who executes the document shall sign and swear to or affirm it before an officer authorized by law to take the person's oath or affirmation and the officer shall certify on the document that it was signed' and sworn to or affirmed before the officer. Subsection (b) of the same statute prescribes a generic form of certification that "may be" used by any officer who notarizes a document; subsection (c), which deals specifically with notaries (as opposed to other types of authorized officers), spells out the manner in which a notary must sign the document and affix the notary seal. . The Knixes also claim that Gargan is not binding because our opinion alternatively concluded that Gargan's conviction could be sustained even if the disputed statement in that case did not qualify as a "sworn statement." See Gargan, 805 P.2d at 1005 n. 2. Although technically correct in characterizing our conclusion on the issue of the sworn statement in Gargan as dictum rather than holding, the Knixes set forth no persuasive argument suggesting that Gargan was incorrectly reasoned and no cogent justification for disregarding that decision. Under the circumstances, the distinction between holding and dictum becomes inconsequential. .See also United States v. Thai, 29 F.3d 785, 812 (2nd Cir.1994) ("An affirmation is simply a solemn undertaking to tell the truth; no special verbal formula is required."); State v. Zamorsky, 159 N.J.Super. 273, 387 A.2d 1227, 1232 (App.Div.1978) ("The remaining step was to obtain from [the witness] . a solemn commitment that she would speak the truth. This is the substance of an oath, or of an affirmation or declaration, all of which are forms of attestation by which a witness signifies that [he or she] is bound in conscience to perform an act faithfully and truth-&Hy[.]"). . The Knixes argue that LaVigne requires a knowing and voluntary on-record waiver of the right to testify. The state reads LaVigne as requiring something less: an on-record inquiry to ensure that the defendant understands that the right to testify is personal to the defendant and cannot be usurped by the defendant's counsel. LaVigne itself is ambiguous on this score. Although the LaVigne court appears to have been primarily concerned with the personal nature of the right to testify and the danger of that right being waived by counsel, the closing paragraph of the decision advises: To avoid future cases such as LaVigne's, we believe that trial judges should take steps to insure that a criminal defendant's failure to take the stand in his or her own defense was the result of a knowing and voluntary decision made by the defendant. To accomplish this, we believe judges should make an on-the-record inquiry after the close of the defendant's case, although out of the jury's hearing, into whether a nontestifying defendant understands and voluntarily waives his right. Such action insures a valid waiver of the defendant's right. LaVigne, 812 P.2d at 222. This passage ostensibly indicates that the supreme court meant to require that the record in all cases reflect a personal, knowing, and voluntary waiver of the right to testify by the defendant. However, if read to require a knowing and voluntary on-record waiver of the right to testify, LaVigne becomes conceptually troublesome. Most constitutionally guaranteed procedural rights stand alone, without any constitutionally guaranteed equal-but-opposite corollary. For example, a criminal defendant enjoys the right to be tried by a jury but has no opposing constitutional right to be tried before a judge alone, without a jury. In the absence of a clear waiver of the right to a trial by jury, the right may be preserved by ordering the defendant to stand trial before a jury; the order will encroach on no other basic procedural rights. A notable exception is the constitutionally protected right to counsel, whose corollary is the constitutionally protected right to self-representation. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Within this corollary pair, however, the right to counsel is clearly dominant, and right to self-representation is clearly subordinate. A criminal defendant who does not affirmatively and expressly waive the right to counsel must proceed with legal representation. But while forfeiture of the right to counsel is not tolerated, forfeiture of the right of self-representation is the established norm: the right is commonly ignored unless a defendant affirmatively asserts it, and even then, the trial court must attempt to discourage the defendant from proceeding without counsel and must ensure that the defendant is minimally qualified to pursue a course of self-representation. The right to testify and its corollary, the right to silence, stand on unique footing. Both are fundamental and constitutionally enshrined. Neither has been established as clearly dominant over the other; they are equally vital. Yet one right is essentially active, while the other is passive: exercise of the right to testify requires the defendant's active participation; the right to silence can be asserted by complete inaction. And the two rights are mutually exclusive. A defendant cannot simultaneously exercise the right to testify and to remain silent. The exercise of one right necessarily entails a relinquishment of the other. Given the unique nature and relationship of these corollary rights, a rule actually requiring an on-record, voluntary waiver of the right to testify leads to a profound conundrum: what is to be done in the case of a defendant who is unwilling to knowingly and voluntarily relinquish either the right to testify or the right to remain silent? There is seemingly no default option. If a defendant stands mute in the face of a LaVigne inquiry or expresses continuing confusion over the court's explanation of procedural rights, a finding of voluntary waiver of the right to testify might strain law and logic. Yet the trial court cannot direct the defendant to testify; nor would it be a palatable alternative to abort the trial — a measure that would put the power of mistrial in the hands of virtually any enterprising defendant. More difficult still would be a defendant who actively professed a desire to testify yet steadfastly refused to waive the right to silence, offering convincing evidence of third-party threats or other coercive forces. A finding of voluntary waiver of the right to testify would be difficult to justify in these circumstances, but would the existence of coercive forces over which the court has no control actually require that the prosecution be abandoned? In the present case, we assume that LaVigne does require a knowing and voluntary waiver, and we conclude that the record establishes that the Knixes did knowingly and voluntarily relinquish their right to testify. We thus avoid the hypothetical problems illustrated above. These hypotheticals, however, counsel against a hasty conclusion that LaVigne should be construed to hold that knowing and voluntary on-record waiver of the right to testify will always be required when a criminal defendant declines to testify. . The Knixes suggest on appeal that Judge Murphy might have conducted in camera proceedings in the absence of their attorneys or ordered independent counsel appointed for the limited purpose of consulting with them concerning the exercise of their right to testify. These measures were neither suggested nor requested below. Conducting in camera proceedings in the absence of counsel or appointing special consultative counsel would inevitably have intruded upon the existing relationship between the Knixes and their trial counsel. Measures of this kind could be justified, if at all, only upon a substantial showing of necessity. Nothing in the record indicates the existence at trial of a potential conflict between the Knixes and their attorneys warranting interference with the Knixes' established attorney-client relationships. And nothing suggests that either of the Knixes would have been more forthcoming in camera than they were in the courtroom. . Moreover, even assuming the Knixes had established a LaVigne violation, the error would be harmless beyond a reasonable doubt. To make a threshold showing of prejudice stemming from denial of the right to testify, the Knixes were required to show that they would have offered relevant testimony if allowed to testify at trial. LaVigne, 812 P.2d at 221. To date, the Knixes have made no showing that any testimony they proposed to give might have been relevant; indeed, they have never unequivocally asserted that they actually would have testified had the trial court undertaken further efforts to elicit a voluntary waiver. . Webster's Third New International Dictionary (unabridged ed.1966). . See, e.g" United States v. McNeive, 536 F.2d 1245, 1247 (8th Cir.1976) ("Since the term 'scheme to defraud' connotes some degree of planning by the perpetrator, it is essential that the evidence show the defendant entertained an intent to defraud."); United States v. Nance, 502 F.2d 615, 618 (8th Cir.1974) (" 'Scheme' to defraud within the purview of this section involves some connotation of planning and pattern. Thus, intent to defraud is an essential element."); see also United States v. Kreimer, 609 F.2d 126 (5th Cir.1980); United States v. Van Dyke, 605 F.2d 220 (6th Cir.1979); United States v. Beecroft, 608 F.2d 753 (9th Cir.1979); United States v. Williams, 545 F.2d 47 n. 2 (8th Cir.1976) ("The government must show beyond a reasonable doubt that the defendant acted with an intent to defraud under § 1341."); United States v. Jones, 425 F.2d 1048 (9th Cir.1970); United States v. Koenig, 388 F.Supp. 670 (S.D.N.Y.1974). . We note that the legislature has defined "intent to defraud" in AS 11.46.990(10) as meaning: (A) an intent to injure someone's interest which has value or an intent to use deception; or (B) knowledge that the defendant is facilitating a fraud or injury to be perpetrated or inflicted by someone else. .Alaska Pattern Jury Instruction (Criminal) 46.600 reads, in relevant part: In order to establish the crime of scheme to defraud, it is necessary for the state to prove beyond a reasonable doubt the following: First, that the event in question occurred at or near (place) and on or about (date) ; Second, that (defendant) knowingly engaged in conduct constituting a scheme; Third, that the scheme was to [defraud five or more persons] [obtain property or services from five or more persons by false or fraudulent pretenses, representation, or promise] [to defraud one or more persons of $10,000] [obtain $10,000 or more from one or more persons by false or fraudulent pretense, representation, or promise]; and Fourth, that defendant obtained property or services in accordance with the scheme. . See Adams v. State, 718 P.2d 164, 166 (Alaska App.1986) (finding no plain error despite erroneous instruction — given strength of the evidence as well as the nature of the theory of defense, no obvious prejudice resulted); cf. Hilbish v. State, 891 P.2d at 850; Bidwell v. State, 656 P.2d 592, 595 (Alaska App.1983).

10320135

Frank ARBELOVSKY and Chris Garcia, Appellants, v. EBASCO SERVICES, INC., Ebasco Constructors, Inc., Losinger USA, Inc., and Enserch Alaska Construction, Inc., individually and collectively, d/b/a Enserch Constructors, J.V., and City Electric, Inc., Appellees

Arbelovsky v. Ebasco Services, Inc.

1996-08-09

No. S-6869

225

229

922 P.2d 225

922

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:01:11.631102+00:00

CAP

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

Frank ARBELOVSKY and Chris Garcia, Appellants, v. EBASCO SERVICES, INC., Ebasco Constructors, Inc., Losinger USA, Inc., and Enserch Alaska Construction, Inc., individually and collectively, d/b/a Enserch Constructors, J.V., and City Electric, Inc., Appellees.

Frank ARBELOVSKY and Chris Garcia, Appellants, v. EBASCO SERVICES, INC., Ebasco Constructors, Inc., Losinger USA, Inc., and Enserch Alaska Construction, Inc., individually and collectively, d/b/a Enserch Constructors, J.V., and City Electric, Inc., Appellees. No. S-6869. Supreme Court of Alaska. Aug. 9, 1996. Robert C. Erwin and Roberta C. Erwin, Law Offices of Robert C. Erwin, and Richard B. Collins, Anchorage, for Appellants. Michael W. Sewright, Burr, Pease & Kurtz, Anchorage, for Appellee Enserch Constructors, J.V. Cynthia L. Ducey and Andrew Guidi, Delaney, Wiles, Hayes, Gerety & Ellis, Inc., Anchorage, for Appellee City Electric, Inc. Before COMPTON, C.J., RABINOWITZ and MATTHEWS, JJ., and SHORTELL, J. Pro Tem. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

2858

17801

OPINION SHORTELL, Justice Pro Tem. In this appeal, we are called upon to determine whether the trial court abused its discretion in ordering Arbelovsky's and Garcia's case dismissed with prejudice. We reverse. I. FACTS AND PROCEEDINGS On February 4, 1991, plaintiffs Frank Ar-belovsky and Chris Garcia (the plaintiffs) filed a lawsuit against City Electric, Inc. (City Electric) and a group of defendants that consists of Ebasco Services, Inc., Ebasco Constructors, Inc., and Enserch Constructors, J.V. (ECJV) (City Electric and ECJV are referred to collectively as "the defendants"). ECJV was served in March 1991. ECJV answered the complaint on April 17, 1991. Two and one-half years later, on July 2, 1993, the plaintiffs served the complaint and summons on City Electric. City Electric moved to dismiss the suit under Civil Rule 41(e) for failure to prosecute because more than one year had passed "without any proceedings having been taken." On August 11, 1993, the superior court dismissed the lawsuit without prejudice. Prior to becoming aware of the court's August 11 dismissal without prejudice, ECJV filed a motion for dismissal with prejudice. On August 20, 1993, the plaintiffs refiled their lawsuit against the defendants. City Electric joined ECJV's motion to dismiss with prejudice on August 27, 1993. The superior court denied this motion as moot in light of the August dismissal without prejudice. However, the court noted that the defendants could raise their claim for dismissal with prejudice in the case refiled on August 20. They did not do so. Instead, City Electric and ECJV both filed motions for awards of costs and attorneys' fees as a precondition to the plaintiffs continuing their second lawsuit. On May 11, 1994, the superior court issued two orders granting both motions for fees and costs. The court ordered the plaintiffs to pay $2,856.14 in costs and attorneys' fees to City Electric and $2,925.00 to ECJV as a condition of maintaining the suit. Each order required the plaintiffs to pay within thirty days or the case would be dismissed with prejudice. Payment was due on June 10, 1994. On May 19, 1994, the plaintiffs served a motion asking the court to reconsider its May 11, 1994 orders. Denial of this motion was entered on June 6, 1994, but not mailed by the court until June 21,1994. Perhaps due to a mistaken belief that their motion for reconsideration automatically stayed the order to pay costs and fees, the plaintiffs did not mail payment until June 23, 1994, and defendants did not receive it until June 27, 1994. Thus, payment was tendered thirteen days after the June 10 due date. On June 22, 1994, ECJV filed a motion to dismiss with prejudice for failure to obey the court's order to pay fees and costs. City Electric joined the motion. These motions to dismiss were based solely on the failure to pay costs and fees in a timely manner. The next day, June 23,1994, the plaintiffs filed an opposition to the motions, arguing that their May 19 motion for reconsideration stayed the May 11 orders and that they had made pay ment immediately after reconsideration was denied. On June 30, 1994, the court (apparently prematurely) denied the motion to dismiss. On July 7, the plaintiffs filed an additional opposition to the motion. The defendants subsequently moved for reconsideration of the denial of the motion. The court granted reconsideration on July 29,1994, and vacated its June 30 order. The court scheduled oral argument on the motions to dismiss for September 22,1994. Counsel for the plaintiffs did not appear at the September 22 hearing. The court attempted to contact plaintiffs' counsel at his office, but received only an outdated message. After proceeding with oral argument in the absence of the plaintiffs' counsel, Judge Link granted the pending motions. Judge Link expressed frustration -with the fact that his orders had not been followed in a timely manner. He noted that the sanctions he had imposed for failure to prosecute should have warned the plaintiffs to pay particular attention to the case. He expressed concerns about the ability of the defendants to litigate the case because of the time that had passed since the case was filed and said that he thought that sanctions short of dismissal with prejudice would not be sufficient to make up for the injuries suffered by the defendants. He dismissed the case with prejudice. II. DISCUSSION A trial court's decision to dismiss a case with prejudice is evaluated under the abuse of discretion standard of review. Power Constructors, Inc. v. Acres Am., 811 P.2d 1052, 1054 (Alaska 1991). Under the abuse of discretion standard, the trial court's decision will only be overturned if this court has "a definite and firm conviction that the judge made a mistake." City of Kenai v. Ferguson, 732 P.2d 184, 190 (Alaska 1987). A trial court's discretion to order litigation-ending sanctions is severely limited, whether the dismissal is requested as a discovery sanction under Civil Rule 37, or for non-compliance with court orders pursuant to Civil Rule 41(b), or as a result of a litigant's failure to prosecute a claim as required by Civil Rule 41(e). There must be "willful noncompliance" with court orders, or "extreme circumstances," or "gross violations" of the Rules. The record must also "clearly indicate a reasonable exploration of possible and meaningful alternatives to dismissal." Power Constructors, 811 P.2d at 1055. Exploration of alternative sanctions will not be assumed if the record is inadequate, nor will conclusory rejection of all sanctions short of dismissal be accepted as a reasonable exploration of meaningful alternatives. Hughes, 875 P.2d at 753. If meaningful alternative sanctions are available, the trial court must ordinarily impose these lesser sanctions rather than a dismissal with prejudice. Power Constructors, 811 P.2d at 1055, citing Zeller v. Poor, 577 P.2d 695, 697 (Alaska 1978); see also Mely, 409 P.2d at 983 (holding Rule 41(b) sanction of dismissal with prejudice too harsh). Applying these principles to the present case, we conclude that Judge Link abused his discretion in dismissing this action with prejudice. The motions before him complained of the plaintiffs' late payment of approximately $6000 ordered as a condition to prosecuting their lawsuit. Payment had been made no more than thirteen days late, immediately after denial of the plaintiffs' motion for reconsideration of the payment order. Judge Link did not find non-compliance with his payment order to be willful and the record would not support such a finding. The circumstances of the delay fall far short of the requisite willful non-compliance required to uphold such a drastic sanction. Mely, 409 P.2d at 982 (Alaska 1966). Judge Link considered more, however, than the minimal delay in payment in entering his dismissal order. He took into consideration the history of the case, his prior dismissal without prejudice, the frustrating, unresponsive conduct of the plaintiffs and their lawyer, and the defendants' assertions of prejudice resulting from that conduct. He appears to have expanded the issues before him to encompass arguments for dismissal with prejudice raised in prior motions. He decided that alternative sanctions short of complete dismissal would be inadequate under the circumstances. To the extent the dismissal here was ordered based on the trial court's re-evaluation of arguments made in prior defense motions, the findings supporting his dismissal order are problematic for a number of reasons. First, attorneys' fees to compensate the defendants for prior dilatory conduct had been deemed adequate sanctions shortly before the final dismissal order was entered. Although the defendants complained that these fees were inadequate compensation under the circumstances, there would seem to be nothing hindering the trial court from ordering increased monetary sanctions against the plaintiffs for their latest transgressions, including, perhaps, compensation for all attorneys' fees reasonably spent on the latest motions. Further prosecution of the lawsuit could have been conditioned on payment of those fees. Second, the passage of time and its effect on the defendants was the focus of the trial court's concern at the September 22 hearing. Prior to that hearing, the court had never found that the passage of time had prejudiced the defendants. The evidence in support of those assertions was not particularly strong. ECJV's initial motion to dismiss with prejudice was supported solely by the affidavit of its lawyer. Fairly summarized, that affidavit stated that ECJV's lawyer had been informed that the ECJV joint venture had terminated, that one of the joint ventur-ers had gone out of business, that the offices of the other joint venturers had relocated out of Alaska, that five of the employees of the joint venturer no longer worked for any of the ECJV defendants, that "none of these persons has been interviewed or contacted" regarding the lawsuit, and that locating joint venture records as of August 1998 would be "unusually difficult and expensive." City Electric's joinder in the motion did not supplement ECJV's counsel's affidavit with any additional evidence. Both motions would have been properly denied on the evi-dentiary record that then existed. No further evidence of prejudice was brought to the court's attention in any of the defendants' subsequent motions to dismiss. The only supplementary proof on this issue consisted of three affidavits submitted in support of ECJV's May 1994 motion for protective order. Two of these affidavits were signed by ex-employees of ECJV; they described with more particularity the expense and difficulty of finding records from the project and locating its prior employees. Significantly, neither of these affidavits actually said that any particular employee could not be located after diligent efforts had been attempted. The third affidavit was signed by ECJV's lawyer. It set out at greater length his previous affidavit's assertions of difficulty and expense of locating pertinent ECJV documents and identifying those that were discoverable. The proof available to the court on September 22, 1994 on all motions, including motions other than the pending motions to dismiss, showed no more than that future discovery would be an expensive and difficult process, and witnesses might be difficult to locate. Judge Link had considered these assertions before. He had reserved the option of ordering the plaintiffs to pay up to $10,000.00 of future discovery costs "pending a showing of how much cost is attributable to delay and how much would have been incurred with a timely prosecution." He could have ordered payment of these fees as a condition of continued prosecution if the proof had been supplemented appropriately. It never was. The evidentiary record available at the time of dismissal was insufficient to support the conclusion that dismissal with prejudice was the only sanction reasonably available. The trial court abused its discretion in granting the defendants' motions. III. CONCLUSION The plaintiffs engaged in serious dilatory conduct. They inexcusably delayed prosecuting their case for years and the trial court appropriately dismissed the case without prejudice for the initial delay. It properly conditioned further prosecution of the case on the payment of costs and attorneys' fees. It reasonably reserved the option of requiring payment of further costs occasioned by the plaintiffs' delay and inactivity. But it abused its discretion in dismissing the case with prejudice after the plaintiffs did not comply promptly with its order for payment of costs and fees. Even assuming that the record showed the type of extreme eircum-stances required for such a dismissal, the trial court did not adequately explore possible and meaningful alternatives to dismissal. Further orders requiring payment of costs and fees occasioned by the plaintiffs' conduct might have been appropriate, as well as orders requiring pretrial discovery and trial preparation to be completed within a reasonable time. These measures and appropriate sanctions for failure to comply with them in the future are still available to the trial court. The trial court's order dismissing the plaintiffs' complaint with prejudice is REVERSED. EASTAUGH, J., not participating. .ECJV's motion states: Come now the defendants . and move for an order dismissing the plaintiffs' claims against them herein with prejudice, in accordance with this court's order dated May 11, 1994. The attached affidavit of counsel read: 2. On May 11, 1994, this court entered an Order directing that plaintiffs' case against the ECJV defendants would be dismissed with prejudice unless the plaintiffs paid those defendants $2,925 in costs and attorney's fees within 30 days of the order and provided the court with proof of payment. 3. More than 30 days has elapsed since the date of the Order without the plaintiffs making payment to the ECJV defendants in accordance with that order. Plaintiffs have made no payment to the ECJV defendants and, insofar as the ECJV defendants are aware, have not provided the court with any sort of proof of payment. Therefore, according to the terms of the May 11, 1994 Order, plaintiffs' case against the ECJV defendants should be dismissed with prejudice. City Electric's July 5, 1994 joinder in ECJV's motion to dismiss with prejudice states: City Electric, Inc., joins in Enserch's motion to dismiss the above-referenced case with prejudice for failure to pay court ordered costs and attorney's fees in a timely fashion. City Electric received payment from Mr. Collins' trust account well past the deadline set by the court for payment of costs and fees. Payment was received by uncertified check in the law offices of Guess & Rudd on June 27, 1994. See Affidavit of Cynthia L. Ducey attached. The check has been deposited in Guess & Rudd's trust account to ensure that it will clear. Pursuant to the court's order, payment was to have been received no later than June 15, 1994 (payment to be made "within 30 days" of the May 11, 1994 order). Payment is untimely and the case should be dismissed with prejudice. This is simply the latest in a series of failures by Mr. Collins to prosecute the case or to follow court orders. The case should be dismissed with prejudice. .Otis Elevator Co. Inc. v. Garber, 820 P.2d 1072, 1074 (Alaska 1991); Hughes v. Bobich, 875 P.2d 749 (Alaska 1994). . Mely v. Morris, 409 P.2d 979, 982 (Alaska 1966). . Power Constructors, 811 P.2d at 1055. . He said: [W]ell, I can't pass judgment on the validity of the plaintiffs' claims, I don't know anything about them, but I do know that the affidavits that have been submitted saying how hard this thing is to defend as a result of the passage in time make perfect sense. The JV has been dissolved, the records are at different parts of the country, people have retired, moved to different parts of the country, memories have faded. You know, there comes a point in time when enough is enough, and this is enough. If there was a way to level the playing field, for example, if I could require that plaintiffs paid each defendant $25,000.00 and costs and attorney fees or something so that the attorneys could be compensated for the amount of time they spent trying to make plaintiff comply with the Civil Rules and the case could then proceed on an even playing field level — on a level playing field, I'd probably do that. But I can't because of the dissipation of the evidence that the defendants need to defend this case. That sanction wouldn't work. I've tried everything else. So it's, as far as I'm concerned, the system simply can't tolerate any more of the abuse that it's taken, and I don't expect the defendants to. . This motion was denied by Judge Link as moot. In denying this motion, Judge Link said: "The parties are also advised that this court believes that affidavits given in support of motions to dismiss must be made from personal knowledge." . This is not to say that a party's past record of misconduct is off-limits to a court when it considers imposition of sanctions. On the contrary, the scope and duration of prior misconduct should be considered in determining whether sanctions should he imposed and how severe they should be. But the ultimate sanction of dismissal with prejudice should be reserved for cases in which lesser sanctions are not reasonably available or the misconduct of the party being sanctioned is so egregious that a lesser sanction would be inappropriate. Even if prejudice need not be shown in all cases involving unreasonable delay, Power Constructors, 811 P.2d at 1056 n. 7, in cases such as this, where the court actually considered prejudice as a disposi-tive factor supporting its dismissal order, the evidentiary record must support its conclusion that the most drastic sanction available should be applied.

10320845

T.B., Appellant, v. STATE of Alaska, Appellee

T.B. v. State

1996-09-06

No. S-6924

271

277

922 P.2d 271

922

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:01:11.631102+00:00

CAP

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

T.B., Appellant, v. STATE of Alaska, Appellee.

T.B., Appellant, v. STATE of Alaska, Appellee. No. S-6924. Supreme Court of Alaska. Sept. 6, 1996. John Aschenbrenner, Assistant Public Defender, Kenai, John Salemi, Public Defender, Anchorage, for Appellant. Dianne Olsen, Assistant Attorney General, Anchorage, Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before COMPTON, C.J., and RABINOWITZ, MATTHEWS, EASTAUGH and FABE, JJ.

3253

18963

OPINION RABINOWITZ, Justice. I. INTRODUCTION The superior court determined that R.C., the natural child of T.B., is a child in need of aid under AS 47.10.010(a)(2)(A), (C), and (F), and that it is in the best interests of R.C. for the State to retain custody of him for two years. T.B., R.C.'s mother, who was earing for R.C. until the State interceded, now brings this appeal. II. FACTS AND PROCEEDINGS T.B. is R.C.'s mother. A Colorado court terminated her parental rights in 1988, after finding that she had abandoned R.C. and had not complied with a rehabilitation plan. The Colorado court awarded custody first to R.C.'s grandfather, and then to R.C.'s uncle, G.C. Thereafter, G.C. executed two separate powers of attorney giving custody of R.C. to T.B. The first one, executed on December 18, 1990, was entitled "Special Power of Attorney and Grant of Temporary Custody" and was effective "until its revocation by me." The second one, executed on October 13, 1994, contained similar language, but was entitled, "Special Power of Attorney and Grant of Permanent Custody." On December 23, 1990, R.C. arrived in Alaska, and lived with T.B. until May 1993, at which time the State took emergency custody of him. In November of 1992, T.B. withdrew R.C. from school. She re-enrolled him on January 21, 1993. He missed about six weeks of classes. The previous spring, R.C. had been severely injured when another child kicked him in the testicles. T.B. claims that R.C. was assaulted again in the fall of 1992, which prompted her to withdraw him from school. She attempted to enroll him in a home schooling program, but when her application was denied, she returned R.C. to school. The State took custody of R.C. on May 18, 1993. On that date T.B. threatened R.C. after he struck a motorcycle with a sword. Specifically, she threatened to "beat your fucking ass" and may also have threatened to kill him. R.C. fled to a neighbor's house, where a fight then .ensued between the neighbor and T.B. There were allegations that T.B. was drunk, though T.B. only admitted to having had "a couple of beers" that day. Following the State's exercise of emergency custody in the wake of the May 18 incident, the State designed a plan which would enable T.B. to resume caring for R.C. The plan called for her to attend regular meetings at Alcoholics Anonymous, complete parenting classes, participate in a psychological evaluation, have regular meetings with R.C., and complete individual and family counseling. However, T.B. did not comply with the treatment plan. The superior court found that she attended only four of six parenting classes, that she visited R.C. only "sporadically," that she did not provide the court with a record of AA meetings, and that she did not undergo counseling. The superior court noted that T.B. claimed that her failure to complete the program set up by the State was caused by the distance between her home and the location of the classes and by her inability to afford cab fare to the location of the classes. The superior court determined that R.C. is a child in need of aid pursuant to AS 47.10.010(a)(2)(A), (C), and (F). The superi- or court then awarded custody of R.C. to the Department of Health and Social Services for up to two years and also provided for visitations with T.B. T.B. appeals the superior court's classification of R.C. as a child in need of aid and also appeals the superior court's dispositional order awarding custody to the Department of Health and Social Services. III. STANDARD OF REVIEW A superior court's finding that a child is in need of aid will be overturned if this court is left with the definite and firm conviction that a mistake has been made. In the Matter ofAS.W., 834 P.2d 801, 806 (Alaska 1992). Factual findings supporting the superior court's determination that a minor is a child in need of aid are reviewed under the clearly erroneous standard. A.H. v. State, 779 P.2d 1229, 1231 (Alaska 1989). IV. DISCUSSION A. Did the Superior Court Err in Holding that R.C. Is a Child in Need of Aid? Since the superior court articulated three separate grounds in support of its conclusion that R.C. is a child in need of aid, we address each in turn. 1. Did the superior court err in concluding that R.C. is a child in need of aid pursuant to AS 17.10.010(a)(2)(C)? In its Memorandum of Decision the superi- or court found: 1. This Court has jurisdiction of this case for purposes of adjudication and disposition under the provisions of A.S. 47.10.010(a)(2)(C). 2. As a result of actions done by or conditions created by R.C.'s mother, T.B., on May 18, 1993, there was an imminent and substantial risk that R.C. would suffer substantial physical harm. R.C. thwarted the risk of harm by his actions in seeking assistance from Jessica Townsend. Jessica Townsend thwarted the risk of harm to R.C. by her actions in assisting R.C. and in preventing T.B.'s access to R.C. during the incident. Alaska Statute 47.10.010(a)(2)(C) provides for jurisdiction over a child who is in need of aid as a result of the child having suffered substantial physical harm or if there is an imminent and substantial risk that the child mil suffer such harm as a result of the actions done by or conditions created by the child's parent, guardian, or custodian or the failure of the parent, guardian, or custodian adequately to supervise the child[.] (Emphasis added). Our review of the record leads us to the conclusion that sufficient evidentiary support is lacking for the superior court's conclusion that "[a]s a result of actions done by or conditions created by R.C.'s mother, T.B., on May 18, 1993, there was an imminent and substantial risk that R.C. would suffer substantial physical harm" under AS 47.10.010(a)(2)(C). Essentially, after R.C. swung a sword at a motorcycle (or possibly at a person), T.B. yelled at R.C. and threatened him. This may have been an overreaction to the incident. However, this isolated incident, without evidence that T.B. was prone to violence or that T.B. had any history of violence towards R.C., falls short of establishing an imminent and substantial risk that the child will suffer substantial physical harm. See F.T. v. State, 862 P.2d 867 (Alaska 1993) (where the state presented no direct evidence concerning father's alleged physical abuse of son, insufficient evidence existed to support the superior court's adjudication under AS 47.10.010(a)(2)(C)); In the Matter of S.A, 912 P.2d 1235, 1238 (Alaska 1996) ("Likewise, the testimony that [the mother] sometimes disciplines [her children] by yelling at them cannot justify a CINA adjudication under subsection (C)."). We therefore hold that evidence of T.B.'s actions on May 18, 1993 is insufficient to support the superior court's adjudication that R.C. is a child in need of aid under AS 47.10.010(a)(2)(C). 2. Did the superior court err in concluding that R.C. is a child in need of aid pursuant to AS 17.10.010(a)(2)(F)? The superior court found that R.C. is a child in need of aid under the terms of AS 47.10.010(a)(2)(F). More particularly, in its Memorandum of Decision it stated: The Court concludes that as a result of T.B.'s action in withholding R.C. from school from November, 1992 through January, 1993, he suffered substantial neglect. Alaska Statute 47.10.010(a)(2)(F) provides for jurisdiction over a child who is in need of aid as a result of "the child having suffered substantial physical abuse or neglect as a result of conditions created by the child's parent, guardian, or custodian." (Emphasis added). Our review of the evidence persuades us that support for an adjudication of R.C. as a child in need of aid under AS 47.10.010(a)(2)(F) is lacking. T.B. claims that she withdrew R.C. from school soon after he was assaulted at a school bus stop. This assault followed an assault the previous spring which caused serious injuries to R.C. During R.C.'s absence from school, T.B. attempted to enroll him in a home schooling program. When her application for home schooling was denied, she re-enrolled R.C. in school. While T.B. should have attempted to enroll R.C. in the home schooling program before withdrawing him from school, her actions do not constitute "substantial physical neglect." In Matter of S.D., Jr., 549 P.2d 1190, 1197-98 (Alaska 1976), we held that parents show neglect or a lack of proper care when they keep their children from attending school for an extended period of time without "some justifiable reason." Here T.B.'s concern for her son's health and safety constitutes a justifiable reason, especially given the history of assaults committed against him. Therefore, we hold that the superior court erred in adjudicating R.C. a child in need of aid under the provisions of AS 47.10.010(a)(2)(F). 3. Did the superior court err in concluding that R.C. is a child in need of aid pursuant to AS 4.7.10.010(a)(2)(A)? Alaska Statute 47.10.010(a)(2)(A) provides for jurisdiction over a child who is in need of aid- as a result of "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_" (Emphasis added). In its Memorandum of Decision the superior court determined that it "must give full faith and credit to the ORDER TERMINATING THE PARENT CHILD RELATIONSHIP, issued in the Matter of R.C-by the District Court of the State of Colorado _ According to that order, T.B.'s personal right to R.C. was terminated, and R.C.'s legal custody and guardianship was granted to R.C. and F.C. [the minor's maternal grandparents]." Custody was later transferred to the minor's uncle, G.C. The superior court additionally found that "R.C. has no parent, guardian, custodian or relative caring or willing to provide care" and determined that R.C. is a child in need of aid pursuant to AS 47.10.010(a)(2)(A). On appeal, T.B. claims that the superior court erred in holding that she was not R.C.'s custodian during the relevant times. She argues that the powers of attorney executed by G.C. appointed her custodian of R.C. The State advances two reasons for upholding the superior court. First, the State argues that, under CIÑA Rule 2(b), G.C. had no authority to appoint T.B. as a custodian. Rule 2(b) states: "Custodian" means a person over 18 years of age to whom a parent has transferred temporary physical care, custody, and control of the child for the period of time immediately preceding the conduct alleged in the petition. (Emphasis added). Accordingly, the State claims that, since G.C. was merely R.C.'s guardian and not his parent, he had no authority to appoint T.B. as a custodian. We view the State's argument as exceedingly technical. Common sense dictates that a legal guardian who has all the authority of a parent may do what a parent may do, so if a parent may appoint a custodian, a guardian may also appoint one. Additionally, it is not clear that CINA Rule 2(b) provides the definition of "custodian" for purposes of AS 47.10.010(a)(2)(A), since Chapter 10 of Title 47 provides no definition of "custodian." See AS 47.10.990. Furthermore, AS 13.26.020 states: A parent or guardian of a minor or incapacitated person, by a properly executed power of attorney, may delegate to another person, for a period not exceeding one year, any powers regarding care, custody, or property of the minor child or ward, except the power to consent to marriage or adoption of a minor ward. We believe that the provisions of AS 13.26.020 are relevant and controlling in in terpreting AS 47.10.010(a)(2)(A). In short, G.C. had authority, pursuant to AS 13.26.020, to appoint a custodian for R.C. The State also argues that G.C. lacked authority to appoint T.B. as R.C.'s custodian for an indefinite period of time. This is because AS 13.26.020, quoted above, permits custodians to be appointed for only one year. Accordingly, under G.C.'s December 18, 1990 power of attorney appointing T.B. as a custodian, T.B.'s appointment expired in December 1991, approximately one and one-half years before the State took emergency custody of R.C. Technically speaking, then, R.C. had no custodian after December 1991 willing to assume care for him after the State took custody. T.B., however, persuasively argues that her role as R.C.'s care taker for two and one-half years should be taken into account, and that she qualifies as R.C.'s custodian on that basis. Specifically, she claims: T.B.'s care for R.C. for approximately two and a half years under the power of attorneys and guardianship documents certainly qualifies her at the very least as a custodian. There is merit in T.B.'s argument. T.B. exercised actual care of and had sole custody of R.C. for a period of approximately two and one-half years immediately prior to the May 18, 1993 incident which culminated in the State's taking emergency custody of R.C. Considering this fact, we think it just and appropriate to characterize T.B. as a custodian willing to provide care for R.C. Given our conclusion that T.B. functioned as R.C.'s de facto custodian, we hold that the superior court erred in adjudicating R.C. a child in need of aid under the provisions of AS 47.10.010(a)(2)(A). V. CONCLUSION The superior court's judgment that R.C. is a child in need of aid under AS 47.10.010(a)(2)(A), (C), and (F) is REVERSED and VACATED. Additionally, the superior court's judgment granting custody of R.C. to the State for a period of two years is REVERSED and VACATED. . There is some indication that R.C. attempted to strike the person who was on the motorcycle. . AS 47.10.010 provides in part: (a) Proceedings relating to a minor under 18 years of age residing or found in the state are governed by this chapter, except as otherwise provided in this chapter, when the court finds the minor (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 .; (C) the child having suffered substantial physical harm or if there is an imminent and substantial risk that the child will suffer such harm as a result of the actions done by or conditions created by the child's parent, guardian, or custodian or the failure of the parent, guardian, or custodian adequately to supervise the child; (F) the child having suffered substantial physical abuse or neglect as a result of conditions created by the child's parent, guardian, or custodian. . The State claims that the school investigated the bus stop incident, and determined that no assault took place. The superior court did not make a finding as to whether this assault took place, but rather stated, "According to T.B. she removed R.C. from school because of assaultive behavior directed at him by peers." .In Matter of S.D., Jr., we referred to AS 14.30.010, which requires parents and guardians to "maintain the child in attendance at a public school...." AS 14.30.010 also lists circumstances pursuant to which a child will be excused from attending a public school. It might be inferred that in Matter of S.D., Jr., we intended to limit "justifiable reason[s]" to the exceptions listed in AS 14.30.010. Matter of S.D., Jr. should not be interpreted in such a manner. Circumstances might arise, such as those in the case at bar, where an absence from school is not justified by the exceptions noted in As 14.30.010, but which nevertheless do not warrant characterizing the minor as a child in need of aid. . The superior court further found that [tjhe powers of attorney executed by G.C. have no legal significance as to T.B.'s status as R.C.'s mother or guardian. G.C. lacked the legal capacity to make either designation. . No restrictions regarding R.C.'s uncle's guardianship have been brought to our attention. . A State social worker testified that she was not aware of any other relatives who are willing to care for R.C. However, the Guardian Ad Litem's report filed in conjunction with the dispositional phase of the proceedings notes that R.C.'s grandmother is willing to care for R.C. The superior court did not note this discrepancy in its findings, but rather stated that R.C. had no "parent, guardian, custodian, or relative caring or willing to provide care." Since R.C.'s grandmother is apparently willing to care for R.C., the superior court erred in deciding that R.C. is a child in need of aid under AS 47.10.010(a)(2)(A). However, as explained below, we conclude that T.B. also qualified to care for R.C. under AS 47.10.010(a)(2)(A). . Aside from the isolated incident of May 18, 1993, where T.B. threatened R.C. and T.B.'s decision to withdraw R.C. from school, which for reasons discussed previously do not furnish independent grounds for adjudicating R.C. a child in need of aid, the State has not produced evidence of any other incidents which point to T.B.'s failing to properly care for R.C. That T.B. is willing to care for R.C. is undisputed. We note that our holding makes it unnecessary to address whether T.B. might also qualify as a "relative" within the terms of AS 47.10.010(a)(2)(A). .In this appeal the State has not argued that returning R.C. to the custody of T.B. would violate principles of full faith and credit given the Colorado court's judgment terminating T.B.'s parental rights. Though the superior court accorded full faith and credit to the Colorado judgment severing T.B.'s parental rights, the superior court recognized T.B. as a "party to this proceeding by order made in open court on October 14, 1993." Additionally, the superior court mentioned in its findings of fact that the "DFYS developed a case plan, the object of which was to return R.C. to family custody." Thus, it seems likely that, had T.B. completed the program to the satisfaction of the State, it would not have attempted to have R.C. adjudicated as a child in need of aid. T.B. never asked the superior court to revoke the Colorado court's severance of her parental rights, as she had perhaps the right to do. In Rita T. v. State, 623 P.2d 344, 347 (Alaska 1981), we said: We conclude that as long as a child remains the ward of the court, under AS 47.10.080(f) his or her natural parents are entitled to a review of the order terminating their parental rights.... See also AS 47.10.080(f). Since the matter of the restoration of T.B.'s parental rights was not raised below and not briefed in this appeal, we decline to address this complex issue which necessarily involves issues of full faith and credit.

10332138

Paul TIPTON, Appellant, v. ARCO ALASKA, INC. and CIGNA, Workers' Compensation Insurance Carrier, Appellees

Tipton v. ARCO Alaska, Inc.

1996-09-06

No. S-6813

910

913

922 P.2d 910

922

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:01:11.631102+00:00

CAP

Before COMPTON, C.J., and RABINOWITZ, MATTHEWS and EASTAUGH, JJ., and SHORTELL, J. Pro Term

Paul TIPTON, Appellant, v. ARCO ALASKA, INC. and CIGNA, Workers’ Compensation Insurance Carrier, Appellees.

Paul TIPTON, Appellant, v. ARCO ALASKA, INC. and CIGNA, Workers’ Compensation Insurance Carrier, Appellees. No. S-6813. Supreme Court of Alaska. Sept. 6, 1996. Douglas C. Perkins, Hartig, Rhodes, Norman, Mahoney & Edwards, Anchorage, for Appellant. Timothy. A. MeKeever and Suzanne H. Lombardi, Faulkner, Banfield, Doogan & Holmes, Anchorage, for Appellees. Before COMPTON, C.J., and RABINOWITZ, MATTHEWS and EASTAUGH, JJ., and SHORTELL, J. Pro Term Sitting by assignment made pursuant to article ry, section 16 of the Alaska Constitution.

1414

8704

COMPTON, Chief Justice. I. INTRODUCTION Paul Tipton appeals the superior court's affirmance of the decision of the Alaska Workers' Compensation Board (Board) dismissing his workers' compensation claim. The Board held that AS 23.30.110(c) barred Tipton's claim because he failed to request a hearing within two years after an earlier hearing had been cancelled. We reverse. II. FACTS AND PROCEEDINGS On April 23, 1984, Paul Tipton was severely injured while in the course of his employment with ARCO Alaska, Inc. As a result of his injury, Tipton received temporary total disability (TTD) benefits, temporary partial disability (TPD) benefits, and permanent partial disability (PPD) benefits. In the spring of 1985, ARCO offered a number of employees incentives to resign. Tipton took advantage of this "special termination plan" and resigned, effective September 28, 1985. On May 6, 1987, Tipton filed with the Board an Application for Adjustment of Claim, claiming entitlement to additional TTD and PPD benefits. Along with the application, Tipton filed a Statement of Readiness to Proceed (SRP) in which he requested a hearing on the matter. On July 16, ARCO filed a Notice of Controversion. The hearing, scheduled for October 1, 1987, was continued by stipulation of the parties. On March 23, 1988, Tipton filed a second SRP. A hearing was scheduled for Septena- ber 1, 1988. The Board cancelled the SRP on September 2, 1988, apparently because the parties had reached a tentative settlement. ARCO drafted the proposed settlement agreement and mailed it to Tipton on September 20, 1988. Tipton refused to sign the agreement because he felt it required him to release all claims against ARCO. In November 1988, Tipton filed in superior court a wrongful discharge suit against ARCO, alleging ARCO terminated him because of his work-related injuries. In August 1989, the superior court stayed all proceedings pending final determination by the Board of Tipton's workers' compensation claim. In January 1991, Tipton moved to set aside the stay, arguing that ARCO had failed to pursue the matter before the Board. The court denied the motion. In September 1991, ARCO filed a petition to dismiss Tipton's workers' compensation claim. The Board granted the petition, concluding that Tipton's claim was barred by AS 23.30.110(c), because he had not requested a hearing within two years after the cancellation of the September 1, 1988 hearing. On appeal to the superior court, see Aaska Appellate Rule 602, the court affirmed the Board's decision. Tipton appeals. III. DISCUSSION At issue is the interpretation and application of former AS 23.30.110(c) , which provided in part, If a claim is controverted by the employer and the employee does not request a hearing for a period of two years following the date of controversion, the claim is denied. Section 110(c) requires an employee to request a hearing within two years after the employer controverts the employee's claim. ARCO controverted Tipton's claim on July 16, 1987. Tipton requested a hearing on March 23, 1988, within two years of the date of controversion. Tipton's hearing request was cancelled because the parties were close to settling; however, the proposed settlement was never ratified by Tipton, and therefore his claim and hearing request were still before the Board. In this situation, there is nothing explicit or implicit in the language of section 110(c) which would require Tipton to request another hearing to avoid dismissal. ARCO argues that in order to avoid the time-bar of section 110(c), an employee must request a hearing every time a hearing is cancelled. We do not read the provision so broadly. The defense of statute of limitations is "generally disfavored," Lee Houston & Assocs. v. Racine, 806 P.2d 848, 854 (Alaska 1991), and neither '"the law [n]or the facts should be strained in aid of it.' " Safeco Ins. Co. v. Honeywell, 689 P.2d 996, 1001 (Alaska 1981) (quoting Guy F. Atkinson Co. v. State, 66 Wash.2d 570, 403 P.2d 880, 882 (1965)). ARCO's interpretation does more than strain the language of section 110(c): it adds a proviso that simply is not there. The language of section 110(c) is clear. This clarity places a "greater burden" on ARCO, "as the party seeking to dissuade us from giving the statute its apparent meaning, to demonstrate that the legislative history reveals some hidden ambiguity in the legislature's usage of terms, and resolves that ambiguity in that party's favor." State, Dep't of Nat. Resources v. City of Haines, 627 P.2d 1047, 1049 (Aaska 1981). ARCO advances certain policy arguments in support of its interpretation of section 110(e), but offers no evidence that the legislature meant something other than what it said. Absent evidence of such contrary legislative intent, we will apply the statute as written. Id. Section 110(c) requires an employee to request a hearing within two years of the date of controversion, and that is what Tipton did. Tipton therefore satisfied his obligations under section 110(c). IV. CONCLUSION The Board's decision and the superior court's judgment are REVERSED. This ease is REMANDED to the Board for further proceedings consistent with this opinion. . The "independent judgment" standard of review applies to matters of statutory construction. State, Dep't of Nat. Resources v. City of Haines, 627 P.2d 1047, 1049 (Alaska 1981). . AS 23.30.110(c) was amended in 1988. See § 48, ch. 79, SLA 1988. The version of AS 23.30.110(c) in effect prior to the 1988 amendments applies in this case. See Id. (providing that the 1988 amendments to section 110(c) apply only to injuries sustained on or after July 1, 1988). . ARCO relies on Jonathan v. Doyon Drilling, Inc., 890 P.2d 1121 (Alaska 1995), to support its position. In Doyon Drilling, the employer filed a notice of controversion before the employee filed a claim with the Board. Id. at 1121-22. After the employee filed a claim, the employer controverted the claim a second time. Id. at 1122. The employee requested a hearing within two years of the employer's second controversion, but not within two years of the employer's initial controversion. Id. The question presented in Doyon Drilling was whether the limitations period in section 110(c) was triggered by a notice of controversion filed prior to the filing of an employee's written claim. Id. at 1122-25. We held that the "the limitations period of section 110(c) is only triggered after the employee flies a claim." Id. at 1124. Doyon Drilling does not address the issue of whether section 110(c) requires an employee to request a new hearing every time a hearing is cancelled. .In Doyon Drilling, we held that the word "claim" in section 110(c) refers only to the employee's written application for benefits, not the employee's right to compensation. Doyon Drilling, 890 P.2d at 1123-24. Therefore, while the expiration of the two-year period in section 110(c) results in dismissal of the particular claim, it does • not prevent the employee from applying for different benefits, or raising other claims, based upon a given injury. In this sense the provision differs from a statute of limitations, which terminates all rights emerging from a cause of action. Nevertheless, as to the particular claim dismissed under its strictures, section 110(c) resembles a statute of limitations. See Id. at 1122 (referring to section 110(c) as a statute of limitations); Suh v. Pingo Corp., 736 P.2d 342, 346 (Alaska 1987) (same). . ARCO incorrectly argues that construing section 110(c) to require an employee to file only one hearing request would allow an employee to "delay[ ] his case indefinitely" if the requested hearing were cancelled. An employer can prevent a claim from, as ARCO puts it, "lan-guishfing] for years without being heard" by filing its own request for hearing under section 110(c). According to Board regulations, an employee qpposing such a request would have to state "specific reason[s] why a hearing is not appropriate." 8 AAC 45.070(c). A "general allegation that the case should not be heard or that a party is not ready" is insufficient grounds for postponing a hearing. Id.

10320485

WASHINGTON INSURANCE GUARANTY ASSOCIATION, Appellant, v. Michele RAMSEY, Appellee

Washington Insurance Guaranty Ass'n v. Ramsey

1996-08-16

No. S-6272

237

248

922 P.2d 237

922

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:01:11.631102+00:00

CAP

Before RABINOWITZ, MATTHEWS and COMPTON, JJ.

WASHINGTON INSURANCE GUARANTY ASSOCIATION, Appellant, v. Michele RAMSEY, Appellee.

WASHINGTON INSURANCE GUARANTY ASSOCIATION, Appellant, v. Michele RAMSEY, Appellee. No. S-6272. Supreme Court of Alaska. Aug. 16, 1996. Andrew W. Torrance, Lundberg, Kristof, Klug & Torrance, Seattle, WA, and Arnold J. Barer, Seattle, WA, for Appellant. Paul F. Cronin, Juneau, for Appellee. Before RABINOWITZ, MATTHEWS and COMPTON, JJ.

6989

43032

OPINION RABINOWITZ, Justice. I. .INTRODUCTION This appeal arises out of an action brought by Michele Ramsey against the Washington Insurance Guaranty Association (WIGA). A jury awarded Ramsey $200,000 after finding that WIGA had violated its duty to reasonably settle an underlying personal injury action. In this appeal, WIGA argues that the superior court improperly determined that it had personal jurisdiction over WIGA. WIGA also contends that it is statutorily immune from an action for refusal to settle. WIGA further contends that because it did not violate any duty it owed to its insureds, and because there was no adverse judgment, as a matter of law WIGA was not liable under the covenant settlement which Ramsey entered into with the insureds. Finally, WIGA argues that the superior court erred in denying its motions for a directed verdict and judgment n.o.v. because there was no reasonable evidentiary basis for determining that the claim was worth $200,000. We affirm the superior court on all counts. II. FACTS & PROCEEDINGS The underlying action in this case was a negligence claim filed by Michele Ramsey against Paul Ursino and his employer Frank Coluccio Construction Company (Coluccio). Ramsey was working as a flag person at a construction site in Juneau. Ursino, who was working as a foreman on an unrelated construction project, drove to the Juneau site in a pickup truck owned by Coluccio to borrow some equipment. As Ursino approached, Ramsey tried to stop him. A dispute ensued during the course of which Ur-sino slowly drove into Ramsey, bumping her several times. Ramsey alleged that as a result she sustained knee injuries and emotional distress. Ramsey's claim against Co-luccio was based on a theory of respondeat superior as well as independent negligence. Ramsey sought both compensatory and punitive damages. Coluccio was insured by Pacific Marine Insurance Co. (PACMAR), a Washington insurance company. On June 7, 1989, PAC-MAR was adjudged insolvent and WIGA stepped in to handle all claims against PAC-MAR. WIGA is a nonprofit unincorporated statutory entity established to "avoid financial loss to claimants or policyholders because of the insolvency of an insurer[.]" WIGA functions to pool the risk of an insurer's insolvency by requiring each insurer licensed in the State of Washington to contribute to a fund an amount proportionate to its share of the total insurance premiums written in Washington during the preceding calendar year. WIGA is authorized to handle any claims filed against insolvent insurers, up to the statutory limit of $300,000. In carrying out this function WIGA is given broad authority to defend any action on a claim brought against the association, as well as to "adjust, compromise, settle, and pay covered claims to the extent of the association's obligation!;.]" WIGA is governed by a Board of Directors, selected by the association members. However, its claims processing is generally handled through designated claims servicing facilities. Robert Lander, an independent contractor, was retained by WIGA as a "claims manager" and eventually oversaw the Ramsey claim. WIGA undertook defense of the action, replacing the attorneys hired by Coluccio. Lander retained Tom Findley as counsel for Ursino and Charles Drennan as counsel for Coluccio. The case proceeded to trial in the superior court in Juneau. Immediately before and throughout the course of the trial the various parties attempted to settle the action. During this period Ramsey offered to settle the case for $200,000. In the midst of the trial, on November 9, Ramsey asked Superior Court Judge Carpeneti to intercede in the settlement negotiations. The parties' attorneys conferred with Judge Carpeneti. Both Drennan and Findley advised Lander to take the offer. Judge Carpeneti's assessment was that the case could end in a wide range of results but that as an estimate he would value the case at $175,000. At the close of the conference Lander deferred making any decision on the offer. With WIGA refusing to settle, Coluccio and Ursino accepted an offer from Ramsey to enter into a consent judgment for $300,-000, the maximum claim allowed under the WIGA statute. The-settlement agreement included a covenant not to enforce the judgment against the parties personally. In exchange, Ursino and Coluccio assigned any claim they had against WIGA to Ramsey. This settlement ended the underlying litigation without a jury verdict and formed the basis for the present action. Ramsey then filed a complaint against WIGA seeking payment of the $300,000 judgment as a covered claim. WIGA first filed an answer alleging inter alia that the Alaska courts lacked personal jurisdiction over it. The superior court held a hearing on this issue and ultimately denied WIGA's motion to dismiss for lack of personal jurisdiction. WIGA next filed a motion for summary judgment arguing that it had statutory immunity from any claim arising from its refusal to settle. The superior court denied this motion as well. It held that WIGA had a statutory duty to accept a reasonable settlement offer and therefore that this action did not fall within the ambit of WIGA's statutory immunity from all tort or contract actions. The matter proceeded to trial, at the conclusion of which the jury found that WIGA had unreasonably refused to settle the case for $200,000, and therefore had violated its statutory duty. The superior court denied a motion for judgment notwithstanding the verdict and entered final judgment. WIGA now appeals. III. DISCUSSION A. Did the Superior Court Properly Determine That it Had Personal Jurisdiction Over WIGA In Alaska, personal jurisdiction over a non-resident defendant is conferred by our long-arm statute. "We have construed this statute to extend Alaska's jurisdiction to the maximum reach consistent with the guarantees of due process under the Fourteenth Amendment." Volkswagenwerk, AG. v. Klippan, GmbH, 611 P.2d 498, 500 (Alaska 1980), cert. denied, 449 U.S. 974, 101 S.Ct. 385, 66 L.Ed.2d 236 (1980). Thus, the dis-positive question is whether assertion of jurisdiction under our long-arm statute in the instant case would violate WIGA's constitutional right to due process. Ramsey makes two arguments that jurisdiction was proper in this case. First, she argues that WIGA's activities with regard to the underlying suit established sufficient "minimum contacts" in Alaska to make it reasonably foreseeable that it would be haled into court in this state. Second, she argues that WIGA stepped into the shoes of an insolvent insurance carrier which had sufficient contacts with Alaska, and that therefore jurisdiction may be conferred on WIGA as a successor in the litigation. In order to pass constitutional muster, the acts of the nonresident defendant must establish sufficient "minimum contacts" with the forum state, such that maintaining a suit there "does not offend 'traditional notions of fair play and substantial justice.' " International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). As the superior court correctly noted, In determining if minimum contacts exist, due process requires that the defendant have fair warning that particular activities may foreseeably subject them to jurisdiction in that forum. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 2181-82, 85 L.Ed.2d 528 (1985). "The foreseeability that is critical in an analysis of minimum contacts is whether 'the defendant's conduct and connection with the forum State are such that he could reasonably anticipate being haled into court there.' " Olivier v. Merritt Dredging Co., Inc., 954 F.2d 1553, 1558 (11th Cir.1992) (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980)). To reasonably anticipate being haled into court, the defendant must have purposefully conducted activities in the forum state. Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239-40, 2 L.Ed.2d 1283 (1958). Thus, the inquiry must focus on the nature of the defendant's contacts with the forum. A number of other courts have addressed the issue of whether personal jurisdiction may be established over an out-of-state guaranty association. These courts are split as to whether personal jurisdiction may properly be maintained. Those that have decided that jurisdiction was constitutional have generally focused on the foreseeability to the guarantor that a covered claim might arise in the forum jurisdiction, when the insurers which they are guaranteeing insure risks in the forum state. Alternatively, the South Carolina Supreme Court relied on the idea that the guaranty association was the "alter-ego" of the insolvent insurance company. Bell v. Senn Trucking Co., 308 S.C. 364, 418 S.E.2d 310, 312 (1992). That court focused on specific statutory language in the Georgia statutes which states that the Georgia Pool is "deemed to be the insurer for such period with respect [to] and to the extent of the claims with all the rights, duties, and obligations of the insolvent insurer...." The courts which have found that jurisdiction would violate due process, on the other hand, state that jurisdiction over the guaranty association must be determined independently of the insurer. They note that the obligations of the guaranty association generally are not coextensive with those of the insurer because of limitations on the amount and type of claims which are covered. Thus, these courts conclude that the fund cannot be said to stand in the insurer's shoes, Pennsylvania Life & Health Ins. Guar. Ass'n v. Superior Court, 22 Cal.App.4th 477, 27 Cal. Rptr.2d 507, 513 (1994), and that any obligation which arises in the forum state is solely a result of the guaranty association's statutory duty, rather than any action which it took in the forum state. Nor can the association be said to have derived an economic benefit from its connections with the forum state. Therefore there is no independent basis for establishing jurisdiction. See Pennsylvania Life, 27 Cal.Rptr.2d at 513. Finally, these courts also reason that these funds have an important social purpose which might be undermined if they are required to bear the expense of litigating in multiple jurisdictions. Id. at 515; Brewer, 602 So.2d at 1269. In ruling on this issue, the superior court determined that this case did not "require[ ] the type of close analysis other courts have had to perform." The superior court distinguished the present case because WIGA had taken numerous actions in Alaska with regard to the underlying action. The superior court explained: WIGA wrote letters and telephoned Ramsey's attorney about her claim and the pending lawsuit; WIGA hired attorneys to defend the Ramsey claim and to represent the insureds; WIGA authorized offers of judgment to settle Ramsey's claim; WIGA maintained contact with the insureds attorneys and it advised the attorneys on aspects of the settlement negotiations; WIGA took part in the settlement conference, moved to intervene and stated its objections to the proposed settlement on the record. These contacts are not "minimum". WIGA came to this jurisdiction to defend a claim and it would be unreasonable to think that it would not be called back into court concerning the Ramsey judgment. In contrast, in each of the other cases cited by the parties, the guaranty association raised the personal jurisdiction issue at the outset of their proceedings in the forum state. WIGA responds to this line of reasoning by arguing that it was required by statute to engage in these activities and thus it did not undertake "deliberate and purposeful acts by which the defendant is considered to have availed itself of the forum state's law." WIGA cites Northpark Nat'l Bank v. Bankers Trust Co., 572 F.Supp. 520 (S.D.N.Y. 1983), where a federal court held that check clearing activities performed by the Federal Reserve Bank of Chicago for New York banks could not be used to establish personal jurisdiction in New York. Despite the fact that the FRBC derived more than $1.2 million in fees from performing this activity, it was statutorily required to perform this function, and the fees which were charged were intended solely to cover the costs of this service. The court therefore concluded that it was not the type of "affirmative and voluntary act" which was necessary to establish jurisdiction. Id. at 522-23. Similarly, in the present case, although the actions taken by WIGA in Alaska may have been sufficient quantitatively, WIGA argues that they are not of the character necessary to establish minimum contacts. WIGA was merely engaging in its statutory duty to defend the underlying suit brought by Ramsey, and it derived no economic benefit from its actions in the forum. We conclude that the superior court properly exercised personal jurisdiction over WIGA. Numerous courts have held that the act of guaranteeing an obligation in the forum state alone is a sufficient contact to establish jurisdiction. Further, study of the Washington statute persuades us that this was a "covered claim," and that the premium paid by Coluccio on his insurance policy — -which covered out-of-state risks— was included in determining PACMAR's contribution to the guaranty fund. It is therefore foreseeable that these contacts could result in an actionable claim arising in another state. Although WIGA's obligations are statutorily created, where the statute commands that contacts be established with the forum state, and those contacts result in an actionable claim, personal jurisdiction is proper. Nor did the superior court err in determining that the establishment of jurisdiction comports with "fair play and substantial justice." We have stated that [i]n making this determination, we are called upon to evaluate the burden on the defendant, the forum state's interest in adjudicating the dispute, the plaintiffs interest in obtaining convenient and effective relief, the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and the shared interest of the states in furthering fundamental substantive social policies. American Nat'l Bank v. International Sea-foods, 735 P.2d 747 (Alaska 1987). WIGA argues that assertion of jurisdiction by the courts of Alaska would unnecessarily tax WIGA's resources and would therefore undermine the statutory purpose of protecting insureds and claimants in the State of Washington. We think this argument is unpersuasive. First, if there were no personal jurisdiction in Alaska, nothing would prevent Ramsey from bringing a similar claim in Washington. Thus, WIGA would bear the expense of litigation anyway. Second, WIGA presented no evidence that its potential exposure in other jurisdictions is excessively large, or that its purpose is in any way threatened by being forced to litigate in other jurisdictions. Finally, as the superior court noted, any additional costs could be effectively passed on to the insurance companies and their consumers through increased assessments. We conclude that the superior court of Alaska's exercise of personal jurisdiction over WIGA does not violate WIGA's due process rights. B. Was WIGA Immune From Suit for Failure to Settle Ramsey's Claim? The Washington Insurance Guaranty Association Act has a general immunity provision, RCW 48.32.150, which states: There shall be no liability on the part of and no cause of action of any nature shall arise against any member insurer, the association or its agents or employees, the board of directors, or the commissioner or his representatives for any action taken by them in the performance of their powers and duties under this chapter. WIGA argues that this language immunizes it from a claim for refusal to settle. RCW 48.32 is based on the Posft-Assessment Property and Liability Insurance Guaranty Association Model Act, which was drafted by the National Association of Insurance Commissioners, and adopted in the vast majority of states. Washington adopted the statute in 1971. RCW 48.32.010. The operative language of section 48.32.150 is identical to the language in the model act. In our view, the plain meanings of the immunity provision of the statute and other provisions of the statute refute WIGA's argument. The immunity provision states in relevant part: There shall be no liability on the part of and no cause of action of any nature shall arise against . the association . for any action taken . in the performance of [its] powers and duties under this chapter. This language simply states that WIGA can not be held liable for any actions it takes in accordance with its duties. The language necessarily implies that WIGA can be held liable for actions it takes which are not within its duties. It follows that if it is within WIGA's duties to reasonably settle claims, and WIGA refuses to reasonably settle a claim, such a refusal is not in accordance with WIGA's statutory duties, and therefore WIGA cannot claim immunity from liability based on that refusal. Furthermore, in our opinion, the Washington Insurance Guaranty Association Act does impose a statutory duty on WIGA to reasonably settle claims. The act states that "[t]he association shall . [b]e obligated to the extent of the covered claims.... " RCW 48.32.060(l)(a). The act defines a "covered claim" as an unpaid claim, including one for unearned premiums, which arises out of and is within the coverage of an insurance policy to which this chapter applies issued by an insurer.... RCW 48.32.030(4). It is well established in Washington that insurers do have the duty to accept reasonable settlements. Tank v. State Farm Fire & Casualty Co., 105 Wash.2d 381, 715 P.2d 1133, 1136-37 (1986); Murray v. Mossman, 56 Wash.2d 909, 355 P.2d 985, 987 (1960); Evans v. Continental Casualty Co., 40 Wash.2d 614, 245 P.2d 470, 478-80 (1952); Burnham v. Commercial Casualty Ins. Co., 10 Wash.2d 624, 117 P.2d 644, 648 (1944). It follows that such a duty "arises out of and is within the coverage of an insurance policy" within the meaning of RCW 48.32.030(4), and that WIGA has a duty to reasonably settle covered claims. WIGA claimed at oral argument that it would undeniably have an obligation to indemnify and defend covered claims, and that it could be sued, in spite of the immunity provision, if it abdicated those obligations, but that this does not apply to the duty to reasonably settle claims. We cannot discern any meaningful distinction between these two duties and the duty to reasonably settle claims. Each of the duties "arises out of and is within the coverage of an insurance policy" within the terms of RCW 48.32.030(4). Any action taken by WIGA in violation of those duties is not an action taken pursuant to statutory authority, and therefore does not warrant immunity. This conclusion is supported by the Washington Supreme Court's decision in Seattle First Nat'l Bank v. Washington Ins. Guar. Assoc., 116 Wash.2d 398, 804 P.2d 1263 (1991). There, the insured bought a novel form of insurance from an insurer that subsequently was declared insolvent. When the insured attempted to recover from WIGA, WIGA claimed that RCW 48.32 prohibited recovery for the type of insurance in question. The Washington Supreme Court disagreed, and ordered WIGA to pay for the claim, as well as some attorney fees and costs. Thus, the resolution of the Seattle First National Bank case clearly indicates that WIGA does not enjoy total immunity from suits by insureds. Interestingly, the Washington Supreme Court did not address the immunity provision in resolving that case. Thus, whatever the reach of the immunity provision of the statute, its scope did not preclude the claim asserted in Seattle First National Bank. Seattle First National Bank, at its core, involved an insured suing WIGA for recovery on an insurance policy. The same can be said for the instant case. Therefore, just as the immunity provision did not preclude the insured from recovering in Seattle First National Bank, it would seem that the immunity provision should not preclude the plaintiff in the case at bar from asserting a claim for relief against WIGA. WIGA attempts to distinguish Seattle First National Bank. It claims that, in that case, "the insureds commenced the action but no claim of immunity was raised since it was a pure statutory construction." To the extent that the sentence can be comprehended, it seems that WIGA is arguing that Seattle First National Bank is distinguishable because the issue there involved whether a certain form of insurance was, in substance, equivalent to a form of insurance for which the statute precluded coverage. It is true that the identical issue is not disputed here. However, the difference is irrelevant. Even WIGA admits that Seattle First National Bank "involve[d] particular constructions of the Act which were determinable as a matter of law." The same can be said of the case at bar: whether WIGA has a duty to reasonably settle is a question of law. Seattle First National Bank is significant for another reason. There, the Washington Supreme Court held that, for the purpose of applying a contractual attorney's fees provision, the insured's suit against WIGA was based on contract. Specifically, the Washington Supreme Court stated: [A]n action is on a contract if the action arose out of the contract and if the contract is central to the dispute. Here, the [insurance] agreements are the source of this action and central to the dispute.... We thus conclude that this is an action on the contract.... Seattle First National Bank, 804 P.2d at 1270. At the very least, this language implies that WIGA's statutory duties are derived from the contractual duties assumed by the insurer. The opinion's language concluding that "this is an action on the contract" also makes it likely that the insured can actually sue WIGA in contract. However, since the appellee in the case at bar specifically noted that her claim was to enforce WIGA's "statutory obligations", we need not address whether appellee might have also asserted a claim in contract for relief against WIGA. We also find it telling that in Pennsylvania, which has an immunity provision substantially identical to Washington's, a federal district court has held that the Pennsylvania Insurance Guaranty Association (PIGA) has a statutory duty to settle claims. T & N PLC v. Pennsylvania Ins. Guar. Assoc., 800 F.Supp. 1259 (E.D.Pa.1992). There, the court stated: [The insured] alleges that PIGA has failed to investigate, pay, or settle, an alleged covered claim, and has failed to advise [the insured] of purported claims procedures. Taken together, however, these allegations are undeniably part of PIGA's statutory powers and duties to adjust, handle, and pay covered claims while denying all oth-ers_ To the extent that we may ultimately find that [the insured's] claims are in fact covered claims, PIGA may lose its statutory immunity to the extent that it then fails to assume, at such later date, its payment obligations in a timely manner. Id. at 1265. We read this language as holding that PIGA is immune only from allegations of wrongdoing for claims which are not "covered claims," but that PIGA has a statutory obligation to settle claims. We think that the same reasoning applies to WIGA. WIGA also relies on three cases from other states for the proposition that guaranty associations have no duty to reasonably settle claims. WIGA first relies on Schreffler v. Pennsylvania Ins. Guar. Assoc., 402 Pa.Super. 309, 586 A2d 983 (1991). Interestingly, that case involved facts virtually identical to the facts in the case at hand. However, Schreffler supports our conclusion that WIGA has a statutory duty to accept reasonable settlements. The case states only that a "bad faith" claim cannot arise against PIGA. We take this to mean a common-law claim. However, Schreffler specifically states that, "settlement is a power conferred upon PIGA under the terms of the Act." Id. 586 A.2d at 985. Therefore, Schreffler merely states that an insured cannot sue the guaranty association in tort or contract. It makes no mention of whether the insured can sue the guaranty association for its statutory obligation of settlement. Next, WIGA relies on Fernandez v. Florida Ins. Guar. Assoc., 388 So.2d 974 (Fla.App. 1980). In that case, the insured sued the Florida Insurance Guaranty Association (FIGA) after FIGA refused to settle a claim within the policy limit, and a jury subsequently returned a jury verdict in excess of the policy limits. The court ruled that the immunity provision, virtually identical to Washington's, precluded the suit. It is unclear from the opinion whether the suit was brought in contract, in tort, or as a statutory action. If the suit was brought in tort or contract, it does not speak to whether WIGA can be sued for its statutory obligations. And if the suit was brought to enforce FIGA's statutory obligations, we think that the Florida court misinterpreted the immunity provision by ruling that FIGA was immune from the suit. The same criticism applies to Veillon v. Louisiana Ins. Guar. Assoc., 608 So.2d 670 (La.App.1992), the last case on which WIGA relies. We hold that WIGA had no immunity for a claim to enforce its statutory duties. C. Was the Covenant Settlement Enforceable in Light of the Fact that WIGA Did Not Breach Its Duty to Defend? WIGA's third argument is somewhat confused. We believe that WIGA is arguing as follows: WIGA concedes that where an insurer or insurance guaranty association refuses to defend an action, the insured is free to settle the action and then seek recovery from the insurer. However, where, as here, the insurer provides a defense but merely refuses to settle the action, no action may be brought against the insurer so long as the insured faces no actual risk of loss. Because Ramsey covenanted not to enforce the judgment against the insured, WIGA claims it cannot subsequently be held hable. In support of this argument, WIGA argues that the cap provision on the total amount of covered claims contemplates that the insured will be exposed to excess judgments. WIGA reasons from this that because the Act mandates that the cooperation provision in the policy is applicable, the drafters of the Act must have intended that the risk of the insured and the risk of the pool should be linked. Thus, the insureds may not retain their coverage after settling in such a way as to eliminate the risk of an excess judgment. This conclusion simply does not follow from WIGA's stated premise. WIGA's brief seems to imply that the Act, by virtue of setting a $300,000 cap on awards, contemplates that the insured will be forced to bear the risk of an excess judgment in some eases. However, to the extent that insureds will sometimes need to bear the burden of excess judgments, this burden seems to be merely the result of practical exigencies, rather than the result of an intent to couple the risk of the insured with the risk of liability by the pool. As noted by WIGA in its brief, the cap on recovery by any single claimant is aimed at assuring that funds are available at an acceptable cost to guaranty at least a minimum payment to all deserving claimants. WIGA cites no authority suggesting that there is any other purpose for this provision. We also note two other factors that militate against WIGA's argument. First, Washington law does allow assignments of claims against insurance companies. Planet Ins. Co. v. Wong, 74 Wash.App. 905, 877 P.2d 198, 201 (1994); Chaussee v. Maryland Casualty Co., 60 Wash.App. 504, 803 P.2d 1339, 1342-43 (1991), modified, 812 P.2d 487 (Wash.App.1991). This is so even when the insured has not "fronted" the judgment money, and allows a third party to proceed against the insurer. Greer, 743 P.2d at 1244 (insurer breached duty to defend); Chaussee, 803 P.2d at 1343 (insurer breached duty to settle). Second, to the extent that there might be collusion between an insured and a third party who enter a settlement such as the one which was reached here, that risk was eliminated.in the case at hand, since a jury independently ascertained that a $200,-000 settlement was reasonable. Therefore, we reject WIGA's argument that the consent settlement bars Ramsey's claim as a matter of law. D. Could a Reasonable Jury Have Determined the Claim was Worth $200,000? The final issue raised by WIGA is whether the superior court improperly denied its motion for a judgment not withstanding the verdict. WIGA makes two arguments in this regard. First, it argues that under Isaacson v. California Ins. Guar. Ass'n, 44 Cal.3d 775, 244 Cal.Rptr. 655, 750 P.2d 297 (1988), before awarding damages, the jury had to find that "a judgment against the insured in excess of [CIGA's] statutory limit of liability is likely." Isaacson, 244 Cal.Rptr. at 667, 750 P.2d at 309. Thus, in the instant ease, Ramsey would have had to show that a verdict of more than $300,000 was likely. Second, WIGA argues that no reasonable jury could have accepted Ramsey's $200,000 settlement. As to WIGA's first argument, it is correct that the California Supreme Court formulated the test in Isaacson in this manner. However, this is not the only permissible formulation of WIGA's statutory duty. Because the insureds must demonstrate that they were harmed by the guaranty association's violation of its statutory duty, the inquiry must include consideration of the potential harm to the insured which was caused by the failure of the association to settle (i.e. an excess verdict). In the present case, the jury was instructed, "[Wjhen making a decision about a settlement offer, WIGA is required to consider the personal financial interests of Coluccio and Mr. Ursino equally with its own financial interests." Additionally, when considering the reasonableness of any particular settlement offer, the jury was instructed to consider "[t]he risks and the expense of continuing the trial between Ms. Ramsey and Coluccio and Mr. Ursino" and "[t]he ability of Coluccio and Mr. Ursino to pay any adverse judgment." We think that the issue of the extent of WIGA's statutory duty was sufficiently encompassed in these jury instructions. Furthermore, Isaacson is a California case. It seems to us that the relevant standard as to whether the settlement was reasonable is found in Chaussee v. Maryland Casualty Co., 60 Wash.App. 504, 803 P.2d 1339, 1343 (1991). There, the court stated that, when evaluating the reasonableness of a settlement combined with a covenant not to execute against the insured, trial courts should adopt the test first stated in Glover v. Tacoma Gen. Hosp., 98 Wash.2d 708, 658 P.2d 1230 (1983). The Glover factors are [t]he releasing person's damages; the merits of the releasing person's liability theory; the merits of the released person's defense theory; the released person's relative faults; the risks and expenses of continued litigation; the released person's ability to pay; any evidence of bad faith, collusion, or fraud; the extent of the releasing person's investigation and prepara tion of the ease; and the interests of the parties not being released. Id. 658 P.2d at 1236. However, since WIGA nowhere asked this court to consider whether the Glover factors were satisfied, we do not address the issue. As to WIGA's second argument, there is ample evidence in the record which could form the basis of a finding that the claim should have been reasonably settled for $200,000. Even if none of the witnesses had testified that the claim was worth $200,000, the jury was given sufficient details concerning the underlying events and the proceedings in the earlier trial to make its own assessment of the value of the claim. The evidence introduced included Ramsey's initial settlement brochure which estimated damages, not including punitives, at almost $250,-000. Also, the judge in the underlying case estimated that the award could be anywhere between zero and $500,000, and should probably be valued at $175,000. Additionally, the attorneys which WIGA appointed to represent Ursino and Coluceio recommended that WIGA accept Ramsey's offer to settle for $200,000. Finally, there was a good deal of evidence regarding how the trial was progressing. Based on these details a reasonable jury could find that the claim should reasonably have been settled for $200,000. IV. CONCLUSION The decision of the superior court is AFFIRMED. . According to the complaint, Coluccio negligently entrusted its motor vehicle to Ursino, allowing him to drive when it knew or reasonably should have known he was under a great deal of stress. . Wash. Rev.Code (RCW) § 48.32.010 (1994). . RCW 48.32.060(l)(c). . RCW 48.32.060(l)(a)-(b). .RCW 48.32.060(2)(a). . RCW 48.32.060(l)(d). . RCW 48.32.050. . WIGA apparently authorized Lander to settle the case for up to $100,000. . AS 09.05.015. . The determination of whether the exercise of personal jurisdiction over a defendant violates the defendant's right to due process is a constitutional question which we review employing an independent judgment standard of review. See Arco Alaska, Inc. v. State, 824 P.2d 708, 710 (Alaska 1992). . The United States Supreme Court held in McGee v. International Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 201, 2 L.Ed.2d 223 (1957), that the assumption of insurance obligations in the forum state was sufficient to establish personal jurisdiction. . See Olivier v. Merritt Dredging Co., 979 F.2d 827, 832 (11th Cir.1992), cert. denied sub nom. South Carolina Property and Casualty Ins. Guar. Ass'n v. Olivier, 507 U.S. 983, 113 S.Ct. 1577, 123 L.Ed.2d 145 (1993) and Louisiana Ins. Guar. Ass'n v. Olivier, 508 U.S. 910, 113 S.Ct. 2342, 124 L.Ed.2d 252 (1993). . Ga.Code. Ann. § 33-36-9 (1990) (quoted in Bell, 418 S.E.2d at 312). . See Georgia Insurers Insolvency Pool v. Brewer, 602 So.2d 1264, 1267 (Fla.1992). . See National Can Corp. v. K Beverage Co., 674 F.2d 1134, 1137 (6th Cir.1982); Marathon Metallic Bldg. Co. v. Mountain Empire Constr. Co., 653 F.2d 921, 923 (5th Cir.1981); Forsythe v. Overmyer, 576 F.2d 779, 784 (9th Cir.1978), cert. denied 439 U.S. 864, 99 S.Ct. 188, 58 L.Ed.2d 174(1978). . RCW 48.32.030(4) defines a "covered claim" as "an unpaid claim . which arises out of and is within the coverage of an insurance policy to which this chapter applies by an insurer, if such insurer becomes an insolvent insurer . and . the claimant or insured is a resident of this state at the time of the insured event...." (Emphasis added.) . RCW 48.32.060(l)(c). Although WIGA did not benefit in the sense that it earned a greater profit due to its assessment on out-of-state risks, the fund nonetheless increases due to the out-of-state activities of its member insurers. . We distinguish cases such as Northpark National Bank where the statutory conduct which is relied upon to attempt to establish jurisdiction is unrelated to the conduct which causes the injury. . Resolution of this issue requires us to interpret the Washington Insurance Guaranty Association Act. Statutory interpretation is a question of law to which we apply our independent judgment. Borg-Warner Corp. v. Avco Corp., 850 P.2d 628, 631 n. 8 (Alaska 1993). Normally when considering questions of law, we are "not bound by the lower court's decision" and will "adopt the rule of law that is most persuasive in light of precedent, reason, and policy." Gain v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). However, since we are interpreting the law of another state, we look to that state's precedent before we turn to reason and policy. We also note that the Washington Supreme Court applies de novo review to questions of statutory interpretation. Stuckey v. Department of Labor and Indus., 129 Wash.2d 289, 916 P.2d 399 (1996). .Professor Keeton has articulated the insurer's duty to settle as follows: With respect to the decision whether to settle or try the case, the insurance company must in good faith view the situation as it would if there were no policy limit applicable to the claim.... The insurer is negligent in failing to settle if, but only if, such ordinarily prudent insurer would consider that choosing to try the case (rather than to settle on the terms by which the claim could be settled) would be taking an unreasonable risk — that is, trial would involve chances of unfavorable results out of reasonable proportion to the chances of favorable results. Robert E. Keeton, Basic Text on Insurance Law 511 (1971). . Paul G. Roberts, Insurance Company Insolvencies and Insurance Guaranty Funds: A Look at the Nonduplication of Recovery Clause, 74 Iowa L.Rev. 927, 934 (1989); Bernard E. Epton and Roger A. Bixby, Insurance Guaranty Funds: A Reassessment, 25 DePaul L.Rev. 227, 230 (1976). . WIGA does not assert that the claim in the case at bar is uncovered. . A similar message is apparent in Agency Budget Corp. v. Washington Ins. Guar. Assoc., 93 Wash.2d 416, 610 P.2d 361 (1980). There, the Washington Supreme Court considered whether an amendment to RCW 48.32 applied retroactively. While the court ruled that the amendment could only be applied prospectively, the language that it used is informative. It stated that, "the 1976 amendment created a new cause of action [for .insureds] and corresponding liability [for WIGA]." Id. 610 P.2d at 366 (emphasis added). In our view this language contemplates that causes of action can be maintained against WIGA. . This holding differs from California law, since the California Supreme Court held that the California Insurance Guaranty Association can be liable for failure to fulfill its statutory duties, but is immune from common law claims. Isaacson v. California Ins. Guar. Assoc., 44 Cal.3d 775, 244 Cal.Rptr. 655, 664-65, 750 P.2d 297, 306 (1988). . Given the Washington Supreme Court's holding, it would seem that the insured could have sued WIGA on the insurance contract for a bad faith handling of the insurance claim. In Safeco Ins. Co. of America v. Butler, 118 Wash.2d 383, 823 P.2d 499, 503 (1992), the court stated, "An action for bad faith handling of an insurance claim sounds in tort." However, the case does not imply that an insurer can be sued only in tort. Additionally, that case contains no discussion of the origin of the duty of good faith which an insurer owes to an insured. An earlier Washington Supreme Court decision does contain such a discussion. However, [rjegardless of whether a good faith duty in the realm of insurance is cast in the affirmative or the negative, the source of the duty is the same. That source is the fiduciary relationship existing between the insurer and insured. Such a relationship exists not only as a'result of the contract between insurer and insured . Tank, 715 P.2d at 1136 (emphasis added). Thus, while Safeco allows an insured to sue in tort, Tank recognizes that the duty of good faith arises in contract. Therefore, it seems that in Washington, an insured can sue an insurer in either tort or contract for bad faith handling of an insurance claim. A Washington appellate court held in Vaughn v. Vaughn, 23 Wash.App. 527, 597 P.2d 932, 934 (1979), that bad faith claims sound exclusively in tort. However, the two Washington Supreme Court cases on which the Vaughn court relied provide questionable support for this proposition. First, Vaughn relied on Hamilton v. State Farm Ins. Co., 83 Wash.2d 787, 523 P.2d 193 (1974). However, that case does not seem to address the issue of whether bad faith claims sound in tort or in contract. Second, Vaughn relied on Murray, 355 P.2d at 985. However, that case does not state that tort is the exclusive field of law by which an insured can recover against an insurer. Furthermore, Murray does not contain the same sort of in-depth discussion of the issue as does Tank. Finally, we note that an early Washington Supreme Court case, Evans, 245 P.2d at 480, explicitly declined to address whether a bad faith claim could sound in contract. Therefore, we see no obstacle that would prohibit an insured from suing WIGA in contract for bad faith handling of a claim. We note in passing that the appellate court in Vaughn also held that tort claims for bad faith handling of an insurance claim could not arise against WIGA. Interestingly, the court did not consider the immunity provision of the act, but instead reasoned that such a tort would not be a "covered claim" within the meaning of RCW 48.32.030(4). Vaughn, 597 P.2d at 934. In any case, Vaughn's holding concerning tort claims against WIGA does not speak to the contract claims against WIGA sanctioned by Seattle First National Bank, or to the statutory claim at issue in this case. . However, T & N, 800 F.Supp. at 1259, makes clear that an insured can sue the guaranty association on such a theory. . See Greer v. Northwestern Nat'l Ins. Co., 109 Wash.2d 191, 743 P.2d 1244, 1251 (1987). .See RCW 48.32.090(1) (requiring insureds to cooperate with WIGA). Coluccio's policy contained a standard cooperation provision which required the insured to cooperate in the investigation, settlement and defense of any claim. .In its points on appeal, WIGA also challenged the failure of the superior court to include a jury instruction stating that WIGA was immune from suit, and for including several instructions setting forth the elements of Ramsey's claim. Because we have concluded that WIGA was not in fact immune from suit, it follows that WIGA's objections to the court's instructions are without merit. The other issues which WIGA raised in its points on appeal are waived, since WIGA failed to argue them in its briefs. See Wetzler v. Wetzler, 570 P.2d 741, 742-43 (Alaska 1977). . In determining whether the superior court erred in denying a motion for directed verdict or judgment n.o.v., we must decide whether, after considering the evidence in the light most favorable to the non-movant, a reasonable jury could reach only one conclusion on the issue in controversy. Beaumaster v. Crandall, 576 P.2d 988 (Alaska 1978). . The superior court relied on Isaacson in its decision that WIGA was not immune from, suit. As our discussion of the immunity provision makes clear, we do not rely on that case for our conclusion that WIGA is not immune. . This fact is not necessarily probative as to the value of the claim, since, though the attorneys were appointed and paid by WIGA, they represented Ursino and Coluceio. The attorneys' advice to settle within the statutory limits might have been biased, since such a settlement would relieve their clients of any financial liability.

10331314

Mane AIROULOFSKI, Appellant, v. STATE of Alaska, Milburn Brantley, Ron Aubrey, Margaret Foster, its agents; Municipality of Anchorage; Anchorage Police Department; Anchorage Police Officer Kemp and Dispatcher John Doe, its agents; Yellow Cab Company; George Zimmer, its agents, Appellees; MUNICIPALITY OF ANCHORAGE, Anchorage Police Department, Anchorage Police Officer Kemp and Dispatcher John Doe, its agents, Cross-Appellants, v. Mane AIROULOFSKI, Cross-Appellee

Airoulofski v. State

1996-08-16

Nos. S-6695, S-6735

889

896

922 P.2d 889

922

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:01:11.631102+00:00

CAP

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

Mane AIROULOFSKI, Appellant, v. STATE of Alaska, Milburn Brantley, Ron Aubrey, Margaret Foster, its agents; Municipality of Anchorage; Anchorage Police Department; Anchorage Police Officer Kemp and Dispatcher John Doe, its agents; Yellow Cab Company; George Zimmer, its agents, Appellees. MUNICIPALITY OF ANCHORAGE, Anchorage Police Department, Anchorage Police Officer Kemp and Dispatcher John Doe, its agents, Cross-Appellants, v. Mane AIROULOFSKI, Cross-Appellee.

Mane AIROULOFSKI, Appellant, v. STATE of Alaska, Milburn Brantley, Ron Aubrey, Margaret Foster, its agents; Municipality of Anchorage; Anchorage Police Department; Anchorage Police Officer Kemp and Dispatcher John Doe, its agents; Yellow Cab Company; George Zimmer, its agents, Appellees. MUNICIPALITY OF ANCHORAGE, Anchorage Police Department, Anchorage Police Officer Kemp and Dispatcher John Doe, its agents, Cross-Appellants, v. Mane AIROULOFSKI, Cross-Appellee. Nos. S-6695, S-6735. Supreme Court of Alaska. Aug. 16, 1996. Robert C. Erwin, Roberta C. Erwin, Law Offices of Robert C. Erwin, Anchorage, for Appellant and Cross-Appellee. Stephanie Galbraith Moore, Assistant Municipal Attorney, Mary K. Hughes, Municipal Attorney, Anchorage, for Appellee and Cross-Appellant Municipality of Anchorage. 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.

3583

22525

OPINION MATTHEWS, Justice. I. INTRODUCTION Mane Airoulofski appeals a superior court decision granting summary judgment to the Municipality of Anchorage ("Municipality"). The superior court held that Airoulofski had waived his tort claims against the Municipality by failing to prosecute his case. The Municipality cross-appeals, contesting the superior court's earlier refusal to dismiss the case pursuant to Alaska Civil Rule 16.1. II. FACTS & PROCEEDINGS On December 20, 1986, the Anchorage Police Department arrested Mane Airoulofski twice. On both occasions, the police were mistaken. Alleging negligence, Airoulofski filed a complaint against the State, the Municipality, the Yellow Cab Company, Super 8 Motel, and assorted agents of these entities. Airoulofski filed his complaint on September 26, 1987. The case was assigned to the superior court's "fast-track" calendar under Civil Rule 16.1. When contacted by claims adjustors from the State and Municipality, Airoulofski agreed to provide both defendants an unlimited extension of time to answer pending the outcome of settlement negotiations. In a letter to Airoulofski's attorney, the Municipality's adjustor stated that "upon a request from you we will retain counsel and respond to the suit immediately." Super 8 Motel answered the complaint in November 1987. Airoulofski and Super 8 Motel proceeded with discovery. After Airoulofski failed to comply with an order compelling responses to Super 8's discovery requests, the superior court dismissed the complaint. Upon Airou-lofski's motion for reconsideration, the superior court vacated its order and allowed the case to continue. In February 1989, Super 8 moved for dismissal under Civil Rule 41(e), based upon Airoulofski's failure to take action in the case for sixteen months. Airou-lofski filed an opposition to Super 8's motion. On May 4, 1989, the superior court issued the following order dismissing Airou-lofski's ease: "Pursuant to 41(e) plaintiffs claim against Super 8 Motel is hereby dismissed for lack of prosecution. It is hereby ordered, adjudged and decreed that plaintiffs claims against Super 8 Motel are hereby dismissed." Airoulofski did not serve the State or Municipality with any of the pleadings or discovery responses arising during these proceedings with Super 8 Motel. Subsequently the case file was administratively closed by the court system. However, the case was never transferred to the inactive calendar according to the procedures of Civil Rule 16.1(g). On October 20, 1993, Airoulofski filed a Memorandum to Set Civil Case for Trial, serving the State and Municipality. The superior court declined to set the case for trial on December 10,1998, giving Airoulofski sixty days to file a valid motion to set. Airou-lofski requested answers from the remaining defendants on December 17,1993. The State and Municipality responded by filing a motion to dismiss, arguing that Air-oulofski's delay in bringing the case to trial mandated dismissal under Rule 16.1(g). The superior court denied the motion on February 11,1994, holding: Defendants were always at liberty to request issuance of a notice of intent to dismiss under Rule 16.1. Plaintiff was en titled to such notice prior to dismissal. Defendants are not precluded from filing a motion to dismiss on the basis of laches, if such motion can be supported by the facts of this case. This decision forms the basis of the Municipality's cross-appeal. The State and Municipality filed their answers on February 24,1994, and the superior court issued an order setting trial for September 26, 1994. The State moved for, and was granted, judgment in its favor on the pleadings. Default was entered against Yellow Cab and its agent on April 4, 1994. The Municipality commenced discovery in March 1994. On July 19, 1994, the Municipality moved for summary judgment "pursuant to the doctrines of laches, estoppel, waiver, and abandonment, based on plaintiffs six year delay in prosecuting the action." On September 13, 1994, the superior court granted the Municipality's motion, ruling: The dismissal is not based on laches. Ford v. Municipality of Anchorage, 813 P.2d 654 (Alaska 1991); Munn v. Bristol Bay Housing Authority, 777 P.2d 188 (Alaska 1989). The dismissal is based on implied waiver/estoppel. Milne v. Anderson, 576 P.2d 109 (Alaska 1978); Wausau Ins. Co. v. Van Biene, 847 P.2d 584 (Alaska 1993). Plaintiffs failure to notify the Municipality of his intent to litigate against it for this extended period of time all the while litigating against Super 8 Motel without notice to or service of papers on the Municipality constituted actions inconsistent with an intent by plaintiff to pursue its action against the Municipality. Plaintiff [sic] was prejudiced in not retaining an attorney and preserving evidence. (Emphasis deleted.) Airoulofski appeals. III. DISCUSSION Airoulofski argues that his delay in prosecuting his claim was not direct unequivocal conduct sufficient to evidence a waiver. The Municipality contends that the superior court's February 11, 1994 refusal to dismiss Airoulofski's claim pursuant to Rule 16.1 was erroneous. A. Superior Court's Refusal to Dismiss for Failure to Prosecute Under the Civil Rules Alaska's Civil Rules contain two provisions by which cases may be dismissed for failure to prosecute. Rule 16.1(g) allows dismissal of dormant eases governed by the fast-track procedures of Rule 16.1. Under Rule 41(e), cases operating by standard civil procedures may be dismissed for want of prosecution. The Municipality's cross-appeal involves the interpretation of these rules; accordingly, this court exercises its own independent judgment. Ford v. Municipality of Anchorage, 813 P.2d 654, 655 (Alaska 1991). 1. Rule 16.1(g) does not allow dismissal without transfer and notice. Rule 16.1(g) establishes the following procedures for dismissal of inactive cases on the court's fast-track calendar: The Municipality argues that despite the court system's failure to transfer the case to the inactive calendar and notify the parties of its intent to dismiss, the superior court should have dismissed Airoulofski's case under this rule. We disagree. Where a motion to set trial and certificate have not been filed within 270 days after the service of the summons and complaint, the ease shall be transferred to the inactive calendar by the clerk of the court. The clerk shall promptly notify counsel in writing of the transfer. All cases which remain on the inactive calendar for more than 60 days shall be dismissed, unless within that period: (1) A proper motion to set trial and certificate is filed; or (2) the court on motion for good cause orders a case continued on the inactive calendar for a specified additional period of time. Notwithstanding Civil Rule 41(b), the dismissal does not operate as an adjudication upon the merits unless a previous dismissal has been entered by the court under this rule, or by the plaintiff or parties under Civil Rule 41(a)(1). The superior court's February 11, 1994 refusal to dismiss Airoulofski's case was based upon this court's decision in Ford v. Municipality of Anchorage, 813 P.2d 654 (Alaska 1991). Ford involved a one-year period of inactivity by the plaintiff, during which the court system failed to place her case upon the inactive calendar. Id. at 655. This court held that as a result of this failure, Rule 16.1(g) could not be invoked. "A litigant should not be penalized for the court's error. Rule 16.1(g) establishes a particular procedure for dismissal of inactive fast-track cases_ [T]he court assigned [the plaintiffs] case specifically to the fast-track. Therefore, [plaintiff] was entitled to the procedures outlined in Rule 16.1(g)." Id. at 656. The plain language of Rule 16.1(g) precludes dismissal of fast-track cases without transfer to the inactive calendar and, importantly, notice to the parties. Rule 16.1(g) does not mandate dismissal of cases which are inactive for 330 days; only cases that remain inactive for sixty days following their placement upon the inactive calendar are properly dismissed. Transfer and notice to the parties are thus explicitly incorporated as prerequisites to dismissal under Rule 16.1(g). Thus, we hold that the superior court did not err in refusing to dismiss Airoulofski's claim under Rule 16.1. 2. Rule 4.1(e) does not apply to fast-track cases. In Ford, this court ruled that "the language in Rule 16.1(g) and (m) provides that the rule is the exclusive means to dismiss fast-track cases." Ford, 813 P.2d at 656. Thus, Rule 41(e) does not apply to fast-track cases. While the Municipality recognizes this, it argues that the general policies favoring the speedy resolution of disputes that underlie Rule 41(e) should be applied to this case in such a way as to allow dismissal of the claim and to make a dilatory plaintiff bear the burden of the court's oversight. However, we note that even Rule 41(e) would not allow dismissal of this claim. Rule 41(e) provides: Actions which have been pending in a court for more than one year without any proceedings having been taken may be dismissed as a matter of course, for want of prosecution, by the court on its own motion or on motion of a party to the action. The clerk shall review all pending cases semi-annually and in all cases in which no proceedings have been taken for more than one year, the court shall hold a call of the calendar or the clerks shall send notice to the parties to show cause in writing why the action should not be dismissed. If good cause to the contrary is not shown . within 30 days of distribution of the notice, the- court shall dismiss the action. First, then, even Rule 41(e) gives the plaintiff notice of the dismissal and an opportunity to show cause why the action should not be dismissed. Such notice and opportunity was not given here. Second, Rule 41(e) only allows dismissal if no proceeding has been taken in the case for a period of more than one year. This court has held that where a previously inactive party mails a request for a trial date and pre-trial conference to the court before its opponent files a motion to dismiss under Rule 41(e), the request constituted a "proceeding" so that dismissal was improper. Zeller v. Poor, 577 P.2d 695, 697 (Alaska 1978). Cf. Power Constructors, Inc. v. Acres American, 811 P.2d 1052, 1054 (Alaska 1991) ("A pretrial memorandum filed after the court issues its notice of dismissal does not constitute a 'proceeding' under Civil Rule 41(e)." (emphasis added)). Here, Airoulofski made a request for a trial date before the Municipality filed its motion to dismiss the claim. Therefore, as in Zeller, by the time the Municipality filed its motion a proceeding had occurred within the prior year and dismissal would have been improper even if the case were subject to Rule 41(e). B. Dismissal of Claims for Implied Waiver and Estoppel The superior court granted summary judgment based upon implied waiver and estoppel. In review of summary judgment, this court must determine whether there are any genuine issues of material fact, and whether the moving party was entitled to judgment as a matter of law. We draw all reasonable inferences in favor of the non-moving party and against the movant. Swenson Trucking & Excavating, Inc. v. Truckweld Equipment Co., 604 P.2d 1113, 1116 (Alaska 1980). The superior court concluded that Airou-lofski implicitly waived his claim against the Municipality by failing "to notify the Municipality of his intent to litigate against it for this extended period of time all the while litigating against Super 8 Motel without notice or service of papers on the Municipality." Airoulofski argues that his delay in prosecuting his claim was not unequivocal conduct constituting waiver. We have noted: A waiver can be accomplished either expressly or implicitly. An implied waiver arises where the course of conduct pursued evidences an intention to waive a right, or is inconsistent with any other intention than a waiver, or where neglect to insist upon the right results in prejudice to another party. To prove an implied waiver of a legal right, there must be direct, unequivocal conduct indicating a purpose to abandon or waive the legal right, or acts amounting to an estoppel by the party whose conduct is to be construed as a waiver. Milne v. Anderson, 576 P.2d 109, 112 (Alaska 1978) (citations omitted). "[N]eglect to insist upon a right only results in an estoppel, or an implied waiver, when the neglect is such that it would convey a message to a reasonable person that the neglectful party would not in the future pursue the legal right in question." Van Biene, 847 P.2d at 589. Even where neglect results in prejudice to another party, for an implied waiver to arise there must be direct, unequivocal conduct indicating a purpose to abandon the right. Milne, 576 P.2d at 112; Miscovich v. Tryck, 875 P.2d 1293, 1301 (Alaska 1994). The superior court held that Airoulofski's prolonged failure to notify the Municipality of his intent to litigate against it, while proceeding against Super 8 Motel without service of papers on the Municipality, signified a waiver according to these standards. Under the circumstances, we believe that proceeding against one defendant while allowing others to postpone their answers pending the outcome of settlement negotiations did not give rise to a waiver. The parties had agreed to "an unlimited extension of time" pending settlement negotiations, with the Municipality noting that upon Airou-lofski's request it would "retain counsel and respond to the suit immediately." A reasonable person would not necessarily conclude that Airoulofski did not intend to prosecute his claim against the Municipality. Airoulof-ski took no actions that would constitute direct, unequivocal conduct indicating a purpose to abandon his claim against the Municipality. His silence toward the Municipality while prosecuting his claim against Super 8 could be the product of any number of factors, including mistake, negligence, or incompetence, or even of a misunderstanding as to the status of the settlement negotiations. See Van Biene, 847 P.2d at 589 (no implied waiver where conduct amounts at most to neglect or internal mistake). The Municipality presented evidence that several witnesses were unavailable, or had left Alaska, that records of Airoulofski's mistaken arrest had been destroyed, and that "[m]emories have faded in the eight year interim since the incident." It argues that allowing Airoulofski to proceed would force it alone to bear the cost of the court's oversight in not transferring the case to the inactive calendar. But, as noted above, prejudice to a party alone is not sufficient to support a waiver argument. See Miscovich, 875 P.2d at 1301. And as the superior court noted when it declined to dismiss the ease under Rule 16.1(g), the Municipality was perfectly free, at any time after 270 days had passed from the service of the summons and complaint without a motion to set trial, to ask the court to transfer the case to the inactive calendar and give Airoulofski notice of intent to dismiss. It was under no obligation to match Airoulofski's silence with its own. IV. CONCLUSION We find no merit to the Municipality's argument that the superior court should have dismissed Airoulofski's claim earlier under Rule 16.1(g), since that rule does not allow dismissal without transfer and notice. We REVERSE the superior court's grant of summary judgment to the Municipality, since we find that Airoulofski did not demonstrate conduct sufficient to waive his claim. The case is REMANDED to the superior court for proceedings consistent with this opinion. . Alaska Civil Rule 16.1 establishes special procedures designed to reduce delay in civil litigation. Cases are assigned to the fast-track calendar by administrative order of the judicial district's presiding judge. . This order was entered before we decided Ford v. Municipality of Anchorage, 813 P.2d 654 (Alaska 1991). Under Ford, dismissal under Rule 41(e) is improper when the case has been placed under the fast-track provisions of Rule 16.1. Id. at 656. . The Municipality also argues that the superior court's dismissal of Airoulofski's claims against Super 8 operated to dismiss Airoulofski's claim against all defendants. This argument is without merit. The superior court's order stated: "[P]laintiff's claims against Super 8 Motel are dismissed." This was not a dismissal of Airoulof-ski's claims against the State or Municipality. Dismissal of claims against one defendant was within the court's authority. S & B Mining Co. v. Northern Commercial Co., 813 P.2d 264, 269 (Alaska 1991). . While we have on occasion treated equitable estoppel and waiver as separate defenses arising from delay in asserting a right, see Miscovich v. Tryck, 875 P.2d 1293, 1301-2 (Alaska 1994), we have also recognized that "[t]he type of implied waiver created by neglect to insist upon a right is, in reality, a type of equitable estoppel." Wausau Ins. Cos. v. Van Biene, 847 P.2d 584, 589 (Alaska 1993). In this case, the claim under either doctrine is the same: Airoulofski's delay constituted an assertion that he did not intend to prosecute the case against the Municipality, and the Municipality would be prejudiced were he allowed to contradict this assertion. . Normally, the "issue of whether a waiver occurred is a question of fact; a trial court's finding will be set aside on review only if clearly erroneous." Miscovich v. Tryck, 875 P.2d 1293, 1302 (Alaska 1994). However, because the superior court decided this matter without trial, the summary judgment standard is more appropriate.

10330783

In the Matter of J.B., a Minor Under the Age of Eighteen (18) Years. DOB: 01/07/92. M.B., Appellant, v. STATE of Alaska, Appellee

M.B. v. State

1996-08-09

No. S-6388

878

883

922 P.2d 878

922

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:01:11.631102+00:00

CAP

Before RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

In the Matter of J.B., a Minor Under the Age of Eighteen (18) Years. DOB: 01/07/92. M.B., Appellant, v. STATE of Alaska, Appellee.

In the Matter of J.B., a Minor Under the Age of Eighteen (18) Years. DOB: 01/07/92. M.B., Appellant, v. STATE of Alaska, Appellee. No. S-6388. Supreme Court of Alaska. Aug. 9, 1996. Shelley K. Chaffin, Law Office of Shelley K. Chaffin, Anchorage, for Appellant. Dianne Olsen, Assistant Attorney General, Anchorage, Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

3441

20856

OPINION MATTHEWS, Justice. Challenged in this case is an order determining that Mark Bridge, the presumptive father of Johnny Bridge, is not the biological father of Johnny. Mark and Melody Bridge were married in December of 1990. They separated a year later. Johnny was born on January 7, 1992. Melody and Mark were divorced in December of 1993. In May of 1992, the State initiated an investigation based on a number of complaints regarding the care which Johnny was receiving from Melody and Melody's boyfriend, Kyle Restin, Sr. On August 4, 1992, the State filed a non-emergency petition seeking the adjudication of Johnny as a child in need of aid. In October of 1992 the court appointed counsel for Mark, who was then living in Oregon. In January of 1993, Melody gave birth to a child fathered by Kyle Restin; Kyle, Jr. On March 4, 1993, the State filed an amended petition for adjudication of Johnny and Kyle, Jr., as children in need of aid. The amended petition states that the State took emergency custody of Johnny and Kyle, Jr., on March 3, 1993. On August 2, 1993, Melody relinquished her parental rights to Johnny and Kyle, Jr., and Kyle, Sr., relinquished his parental rights to Kyle, Jr. Mark, on the same day, signed a stipulation that Johnny was a child in need of aid "for the reason that [Mark Bridge] is unable to care for [Johnny Bridge] for the reason he is living out-of-state and the suitability of placement with him is still being investigated through the Interstate Compact for the Placement of Children." The stipulation further provided that Johnny would remain in the temporary custody of the Department of Health and Social Services "until disposition in this matter." Pursuant to this stipulation the superior court entered an order adjudicating Johnny to be a child in need of aid, set a disposition hearing and dates for reports from the State and Johnny's guardian ad litem. In September of 1993, Mark came to Anchorage to visit his son; he decided to stay in order to strengthen his relationship with Johnny. A court-ordered report authored by a state social worker raised the possibility that Mark might not be the biological parent of Johnny, and recommended that the court require paternity testing. The court, at a disposition hearing held November 1, 1993, ordered testing to determine whether Mark is Johnny's biological father. In the same order the court committed Johnny to the custody of the State "for a period of time not to exceed two years," noting that "Reasonable efforts are being made to provide remedial services to return the child to the parental home" and that "[placement in the parental home would be contrary to the welfare of the child at this tíme." The testing was performed, and on February 1, 1994, the State received a copy of a letter from a physician with the Memorial Blood Center of Minneapolis which concluded that "it is possible to establish that [Mark Bridge] cannot be the biological father of [Johnny Bridge]." Based upon this letter, the State terminated Mark's visitation with Johnny. Mark filed a motion "to review disposition and case plan" which sought the continuation of Mark's visitation with Johnny and challenged the standing of the State to deny Mark's paternity. Mark sought oral argument and "an appropriate hearing" on an expedited basis in connection with this motion. The State filed a combined pleading which was both an opposition to the motion for review of the disposition order and case plan and a motion "for finding that [Mark Bridge] is not the father of [Johnny Bridge]." This pleading was supported by an affidavit of Philip Kaufman, the state social worker on the case, to which was attached the letter from the director of the Memorial Blood Center of Minneapolis and blood test results excluding Mark as a biological parent of Johnny. The guardian ad litem filed an opposition to Mark's motion to review the disposition order. In addition, the guardian filed a pleading supporting the State's motion for a finding that Mark is not the father of Johnny: "It is in the minor's best interest for the court to enter such finding." Mark filed a timely opposition to the State's motion. In the opposition Mark again challenged the authority of the State to deny his parenthood of Johnny. He did not, however, question the test results or ask for further proceedings to determine the question of his biological paternity. The court denied Mark's motion for review of the disposition order and case plan and granted the State's motion for a finding that Mark is not the father of Johnny. The order concluded that "[Mark] is no longer entitled to party status in this matter." The court added: "The court finds proof which rebuts the presumption of paternity, i.e. blood tests. Evidence does not support [Bridge's] claim on either factual or legal grounds that he should be denominated as a 'psychological parent' or claim any other equitable rights to the child." From this order Mark appeals. On appeal he makes two claims. First, he argues that the State does not have the authority to challenge the presumption of paternity. Second, he argues that his due process rights were violated because there was no hearing and the evidence relied on was not properly admitted as evidence. In our view, neither point has merit. Johnny has been appropriately adjudicated as a child in need of aid. Mark stipulated to this adjudication. Further action in the case contemplated a range of possibilities, extending from adoption of Johnny by his foster family to relinquishment of custody of Johnny to Mark. For each of these possibilities a threshold determination of Mark's paternity of Johnny was an important consideration. The superior court, as the trial court of general jurisdiction in the state, AS 22.10.020(a), had jurisdiction to make this determination. Given the critical importance of the question of paternity, the State, as custodian of the child, has the authority to seek a determination of paternity when substantial questions concerning parentage are raised. See J.W.F. v. Schoolcraft, 763 P.2d 1217, 1221 (Utah App.1988), rev'd on other grounds, 799 P.2d 710 (Utah 1990) (guardian ad litem "had a responsibility as well as a right to raise the issue of [the presumptive father's] paternity" and a juvenile court in a "neglected child" proceeding had jurisdiction to decide the question of paternity). In In re Lisa R., 13 Cal.3d 636, 119 Cal.Rptr. 476, 479-80, 532 P.2d 123, 127-28, cert. denied, 421 U.S. 1014, 95 S.Ct. 2421, 44 L.Ed.2d 682 (1975), the Supreme Court of California stated: Notwithstanding the absence of specific authorization to make particular determinations, a juvenile court is nevertheless vested with the authority to make such determinations which are incidentally necessary to the performance of those functions demanded of it by the Legislature pursuant to the Juvenile Court Law. That law is replete with references to "parents." In some of such instances the court is merely required to respond to allegations of parentage without first having actually to find the existence of a parent-child relationship. However, in other significant respects the law cannot be judicially applied without a determination of parentage when such question is placed in issue. Thus wardship may initially depend, in the circumstances of a particular case, on a finding that a minor has no parent or "persistently or habitually refuses to obey the reasonable and proper orders or directions of his parents." It is manifest that a juvenile court cannot find that a minor has no parent or that he refuses to obey a parent without a contemporaneous determination of parentage. (Citations omitted.) On his second claim, Mark argues that he "did not have an opportunity to present any evidence" on the issue of paternity. In addition he argues that the blood test was not accompanied by sworn testimony that the test was a scientifically accepted one or that procedures to make the test valid were followed. Mark's first point is without merit, for in opposing the State's motion he did not do so on the ground that he had evidence which challenged the blood test or that he wished time to have an opportunity to develop such evidence. In the absence of a preliminary demonstration of the existence of relevant disputed facts no hearing was required. Epperson v. Epperson, 835 P.2d 451, 453 (Alaska 1992). Cf. State v. Albert, 899 P.2d 103, 105 n. 2 (Alaska 1995) ("Although the rule is silent as to the circumstances under which a hearing must be held when opposition is filed, our cases generally indicate the necessity for an evidentiary hearing in any case in which there are factual disputes on material issues."); Estate of Miner v. Commercial Fisheries Entry Comm'n, 635 P.2d 827, 834 (Alaska 1981) (quoting NLRB v. Bata Shoe Co., 377 F.2d 821, 826 (4th Cir.), cert. denied, 389 U.S. 917, 88 S.Ct. 238, 19 L.Ed.2d 265 (1967) (holding that "there is no requirement, constitutionally or otherwise, that there be a hearing in the absence of substantial and material issues crucial to [the] determination")); Alaska R. Civ. P. 56(c) (judgment for the summary judgment movant shall be rendered if the pleadings and evidentiary materials show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law). Mark's second point lacks merit because he did not object to the admissibility of the test report. Kvasnikoff v. Weaver Bros., Inc., 405 P.2d 781, 784 (Alaska 1965) (inadmissible and unauthenticated documents sub mitted in support of motion for summary judgment may be considered where "the record does not show that [they were] objected to or that the authenticity of the [documents] was disputed"). For the above reasons the judgment of the superior court is AFFIRMED. RABINOWITZ, Justice, dissenting. MOORE, C.J., not participating. . All names of parties used in this opinion are pseudonyms. . He did, however, request a hearing concerning various legal theories: A hearing is required to determine which legal standard the court should first apply to reach a just and fair result in this matter; shouldn't this court still consider Mr. [Bridge] a parent, based on the presumption of the legitimacy of children born in to a marriage? Even if not, serious questions of fact exist as to the Best Interests of [Johnny] as [Mark Bridge] retains legitimate residual parental rights, such, for example, the right to have his son retain the [Bridge] name or the right of a presumptive father to claim a child bom of a legitimate marriage as his son, as there is no other parent asserting a contrary or superior right to this child. . For example, under the child in need of aid statute, the court is authorized to find a child in need of aid based on parental conduct, and to terminate parental rights based on parental conduct. AS 47.10.010(a)(2); AS 47.10.080(c)(3). A threshold question in such cases may be whether a person claiming the rights of a parent is a parent. Under Rule 2(1) of the Child in Need of Aid Rules, "parent" means a biological or adoptive parent. . There is a presumption, rebuttable by clear and convincing evidence, that Mark is Johnny's father. Smith v. Smith, 845 P.2d 1090, 1092 (Alaska 1993). The effect of this presumption was to shift to the State the burden of going forward with the presentation of evidence. Evidence Rule 3 01 (a). This duplicates the burden that was already imposed on the State as the party moving for relief in the nature of summary judgment. As such, the presumption does not prevent such relief from being entered if, in consideration of all the evidence including the basic fact giving rise to the presumption — Mark's marriage to Melody at the time of Johnny's birth — it could not be reasonably concluded that Mark was Johnny's father. On this record a conclusion that Mark was Johnny's father would be unreasonable. The fact that the presumption is rebut-table only by clear and convincing evidence does not change this conclusion. If there were any evidence sufficient to raise a genuine issue of material fact on the question whether Mark was Johnny's father, such evidence would suffice to prevent relief in the nature of summary judgment regardless of the standard of proof to be used at trial. See Moffatt v. Brown, 751 P.2d 939, 943 (Alaska 1988) ("We decline to incorporate the applicable substantive evidentiary standard into this state's summary judgment practice."). . In Mattox v. State, 875 P.2d 763, 764 (Alaska 1994), we reversed the grant of summary judgment establishing paternity based on DNA reports which were not accompanied by authenticating affidavits, noting that the party who had moved for summary judgment had not met its burden of showing the absence of genuine issues of material fact. Id. at 765. Our decision in this case is consistent with Mattox as the DNA reports in Mattox were objected to and the test procedures challenged. The requirement that one opposing the use of proffered evidence on lack of authenticity grounds is not an arduous one. The opponent is "required to do no more than raise a timely objection based on the authentication requirement in order to preserve his evidentiary objection and compel compliance by the [movant]." Murat v. F/V Shelikof Strait, 793 P.2d 69, 75-76 (Alaska 1990).

11835327

In the Matter of the ESTATE OF Anthony M. EVANCO, Deceased. Joseph Lyle EVANCOE, By and Through his guardian, Joseph C. EVANCOE, Appellant, v. Eugene Julius EVANCOE, personal representative of the estate of Anthony M. Evanco, Appellee

Evancoe ex rel. Evancoe v. Evancoe

1998-03-06

No. S-7285

525

528

955 P.2d 525

955

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:01:59.321489+00:00

CAP

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

In the Matter of the ESTATE OF Anthony M. EVANCO, Deceased. Joseph Lyle EVANCOE, By and Through his guardian, Joseph C. EVANCOE, Appellant, v. Eugene Julius EVANCOE, personal representative of the estate of Anthony M. Evanco, Appellee.

In the Matter of the ESTATE OF Anthony M. EVANCO, Deceased. Joseph Lyle EVANCOE, By and Through his guardian, Joseph C. EVANCOE, Appellant, v. Eugene Julius EVANCOE, personal representative of the estate of Anthony M. Evanco, Appellee. No. S-7285. Supreme Court of Alaska. March 6, 1998. Joseph Charles Evancoe, pro se, Pittsburgh, PA. Kevin M. Morford, Jensen, Harris & Roth, Anchorage, for Appellee. Before COMPTON, C.J., and MATTHEWS, EASTAUGH, FABE and BRYNER, JJ.

1908

12254

OPINION MATTHEWS, Justice. Alaska Statute 13.31.070 validated provisions transferring at death property contained in certain instruments which do not qualify as wills. The question here is whether joint tenancy designations on stock certificates are covered by AS 13.31.070. We an swer in the affirmative, because the literal requirements of the statute are met, and the result is consistent with state policy as reflected in a subsequent amendment to the statute, which clearly includes stock certificates. I. FACTS AND PROCEEDINGS Anthony M. Evanco (decedent) died on March 13, 1992. His will directed that his sizable estate be divided equally among his surviving brothers and sisters. The will also nominated the decedent's brother, Eugene J. Evancoe (personal representative), as the personal representative of the estate. At the time of his death, the decedent owned and was in possession of a substantial number of stock certificates and some certificates of deposit. On their face, these certificates named both the decedent and another person as owners, designating them as "joint tenants," "joint tenants with rights of surviv-orship," or with other similar designations. The superior court found that the decedent intended to retain control and ownership of the stock certificates and the certificates of deposit during his lifetime, but to have ownership pass to the named joint tenants automatically and outside of probate upon his death. Neither party contests this finding on this appeal. Shortly after assuming his duties, the personal representative delivered each of the stock certificates and certificates of deposit to the persons designated "joint tenants" on the certificates. Joseph Charles Evancoe (guardian) is the legal guardian of his father, Joseph Lyle Evancoe, who is one of the decedent's brothers and a beneficiary under the will. The guardian filed a petition in the superior court on behalf of his father seeking to have Eugene Evancoe removed as personal representative. In support of his petition, the guardian alleged that the personal representative's distribution of the joint tenancy stocks and certificates of deposit directly to the named joint tenants (i.e., outside of probate) was improper. The guardian also alleged that the personal representative had committed fraud and various other improprieties. The superior court concluded that the personal representative's "distribution of the joint tenancy stocks directly to the named joint tenants was consistent with the provisions of AS 13.81.070 and was valid under Alaska law." It further concluded that "Eugene J. Evancoe should not be removed as the personal representative of the estate of Anthony M. Evanco, and the removal petition should be dismissed with prejudice." The guardian appeals this decision. II. DISCUSSION The question that we must decide on this appeal is whether the superior court was correct in its conclusion that Eugene J. Evaneoe's distribution of the joint tenancy stocks directly to the named joint tenants was consistent with the provisions of AS 13.31.070 and was valid under Alaska law.[ ] Generally, a decedent's directions concerning disposition of his property are invalid unless they are contained in a will. However, at the time of Anthony Evanco's death, Alaska had adopted a "validating statute," which declares certain will substitutes to be nontestamentary and thereby not subject to the formal requirements of a will. AS 13.31.070 (current version at AS 13.33.101). This statute provided in pertinent part: (a) Any of the following provisions in an insurance policy, contract of employment, bond, mortgage, promissory note, deposit agreement, pension plan, trust agreement, conveyance or any other written instrument effective as a contract, gift, conveyance, or trust is considered to be nontesta-mentary, and AS 13.06 — AS 13.36 does not invalidate the instrument or any provision that (1) money or other benefits theretofore due to, controlled or owned by a decedent shall be paid after the decedent's death to a person designated by the decedent in either the instrument or a separate writing, including a will, executed at the same time as the instrument or subsequently; -[or] (3) any property which is the subject of the instrument shall pass to a person designated by the decedent in either the instrument or a separate writing, including a will, executed at the same time as the instrument or subsequently.[ ] Initially, we must decide whether AS 13.31.070 applies to this case. The guardian argues that the statute should not apply because: (1) "[The statute] does not currently validate POD [payable on death] stocks and mutual fund shares"; and (2) the residual clause in the statute should not be interpreted to encompass stocks, because stock certificates were "widely used" at the time of the statute's drafting, and the residual clause is "logically viewed as a protective device aimed at those incipient instruments that the enumerated portion fails to cite." We find the guardian's argument unpersuasive. A share of corporate stock evidenced by a stock certificate can fairly be regarded as a "written instrument effective as a contract." See AS 13.31.070(a). Further, we can think of no policy reasons for excluding stock certificates from that category. Additionally, effective January 1, 1997, AS 13.31.070 was superseded by a substantially similar provision, AS 13.33.101, which clearly encompasses stock certificates. When an ambiguous statute that we have not construed and an unambiguous successor statute can reasonably be interpreted in a consistent manner, the policy embodied in the successor statute is a factor that is appropriately considered in interpreting the old statute. For these reasons, we conclude that AS 13.31.070 applies to stock certificates. The remaining elements of the validating statute are also satisfied. First, the joint tenancy designations on the stock certificates are "provision[s] that . property which is the subject of the instrument shall pass to a person designated by the decedent...." See AS 13.31.070(a)(3). "The primary incident of joint tenancy is survivor-ship, by which the entire tenancy on the decease of any joint tenant remains to the survivors, and at length to the last survivor." Black's Law Dictionary 1465 (6th ed.1990). In addition, the requirement that the instrument be "effective as a contract, gift, conveyance, or trust" is satisfied. See AS 13.31.070(a). As previously stated, a share of stock may properly be regarded as a contract between a shareholder and his corporation. The joint tenancy designation can appropriately be characterized as a provision naming a third-party beneficiary. See Corbin on Contracts § 783 (1951). Thus, the joint tenancy designations on the stock certificates were "effective as a contract." In conclusion, the validating statute applies and requires that an otherwise valid provision in a stock certificate be regarded as nontestamentary. Consequently, we hold that the joint tenancy designations on the stock certificates in this case are valid and effective will substitutes. AFFIRMED. . The guardian also contends that the superior court erred in concluding that the certificates of deposit could be distributed to the named joint tenants. However, at the time of Anthony's death, AS 13.31.020(a) (current version at AS 13.33.212(a)) provided in relevant part that "[sjums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intention at the time the account is created." A bank certificate of deposit designating a joint tenant is a "joint account." See AS 13.31.005(1) (current version at AS 13.33.201(1)); AS 13.31.005(4) (repealed, § 18 ch. 75 SLA 1996). In addition, AS 13.31.030 (current version at AS 13.33.214) provided that "[a]ny transfers resulting from the application of AS 13.31.020 . are not to be considered as testamentary." Therefore, we reject this contention. Although the guardian also listed several other issues in his statement of issues, he waived them by failing to discuss them in the argument section of the brief. Adamson v. University of Alaska, 819 P.2d 886, 889 n. 3 (Alaska 1991) ("[Wjhere a point is given only a cursory statement in the argument portion of a brief, the point will not be considered on appeal."). . Under common law the attempted transfer in this case of stock certificates would be invalid. The parties agree that the joint tenancy designations did not operate as a valid inter vivos trans fer or irrevocable assignment, because the decedent intended to retain control and ownership of the stock certificates during his lifetime, and because there was no delivery. See Neuschafer v. McHale, 76 Or.App. 360, 709 P.2d 734, 738-39 (1985) (holding that where the court determined that the decedent's intention was to "avoid probate," placing shares of stock in joint tenancy with rights of survivorship was not a valid inter vivos gift, and was testamentary and void); see also Uniform Probate Code § 6-201, Official Comment (1983) (stating that provisions in a promissory note to pay to another named person if the payee dies are invalidated by most states for noncompliance with the statute of wills). Consequently, the purported transfer would be treated as testamentary. Because the purported transfer does not comply with the formalities in the statute of wills, it would be invalid, and the stocks would pass according to the provisions of the will. See AS 13.11.155 (current version at AS 13.12.502) (requiring, among other things, signatures of two people who witnessed the testator sign or acknowledge the signature on the will). . We will refer to this statute as the "validating statute." . We have previously noted that "[t]he relationship between a corporation and its shareholders is primarily contractual." Hanson v. Kake Tribal Corp., 939 P.2d 1320, 1325 (Alaska 1997). .AS 13.33.101 provides: (a) A provision for a nonprobate transfer on death in an insurance policy, contract of employment, bond, mortgage, promissory note, certificated or uncertificated security, account agreement, custodial agreement, deposit agreement, compensation plan, pension plan, individual retirement plan, employee benefit plan, trust, conveyance, deed of gift, marital property agreement, or other written instrument of a similar nature is nontestamentary. This subsection includes a written provision that (1) money or other benefits- due to, controlled by, or owned by a decedent before death must be paid after the decedent's death to a person whom the decedent designates either in the instrument or in a separate writing, including a will, executed either before or at the same time as the instrument, or later; . [or] (3) property controlled by or owned by the decedent before death that is the subject of the instrument passes to a person the decedent designates either in the instrument or in a separate writing, including a will, executed either before or at the same time as the instrument, or later. (Emphasis added.) Shares of a corporation's stock evidenced by stock certificates clearly are "certificated securities," and therefore are among the specifically enumerated instruments in the current statute. . Cf. Hansen v. Stroecker, 699 P.2d 871, 874-75 (Alaska 1985) (stating that where we had never ruled on question of whether to adopt "wait-and-see" approach as common law rule, and where legislature had enacted a prospective statute embodying "wait-and-see" approach, we were influenced by the statute in determining common law rule applicable to suit filed prior to the effective date of the statute).

11843382

Kelly G. BAILEY, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee

Bailey v. Municipality of Anchorage

1998-04-03

No. A-6590

947

950

955 P.2d 947

955

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:01:59.321489+00:00

CAP

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

Kelly G. BAILEY, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.

Kelly G. BAILEY, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee. No. A-6590. Court of Appeals of Alaska. April 3, 1998. Michael B. Logue, Gorton & Associates, Anchorage, for Appellant. Pamela Dale, Assistant Municipal Prosecutor, and Mary K. Hughes, Municipal Attorney, Anchorage, for Appellee. Before COATS, C.J., and MANNHEIMER and STEWART, JJ.

1345

8069

COATS, Chief Judge. Alaska Criminal Rule 45(e)(1) currently provides that, with certain exceptions not pertinent here, the time within which a defendant must be tried begins to run from the date the "charging document" is served upon the defendant. This case raises the question of whether an "Order and Conditions of Release" form issued by a magistrate following an arrestee's initial appearance under Criminal Rule 5(a)(1) is a "charging document" for purposes of Rule 45(e)(1), triggering the time period for bringing the arrestee to trial. We hold that it is not. On July 3, 1996, Kelly G. Bailey was arrested and taken before a magistrate pursuant to Criminal Rule 5(a)(1). The magistrate ordered Bailey to be held in lieu of $2500 bail. The magistrate then signed an "Order and Conditions of Release" form that was captioned "State of Alaska vs. Kelley [sic] Bailey." This form bore the case number "96-5035 Cr," and it referred to the "charges" against Bailey as third-degree assault, driving while intoxicated, and resisting arrest. However, the State of Alaska never brought these or any other charges against Bailey. When Bailey appeared in court on July 24 (as she had been directed to do upon her release), no charges had been filed, and Bailey was discharged. When she left court on July 24, Bailey had never been served with any criminal complaint, indictment, information, or citation. Six weeks later, on September 9, 1996, the Municipality of Anchorage filed a criminal complaint against Bailey under a new case number, 3AN-M96-7101 Cr. This complaint charged Bailey with the municipal offenses of driving while intoxicated and resisting an officer. AMC § 09.28.020(A); AMC § 08.05.530(A). On December 12, 1996, Bailey moved to dismiss these charges. She argued that the time for bringing her to trial had already expired because Rule 45 began to run on July 3, the day she was arrested and appeared in front of the magistrate. Acting District Court Judge Nancy J. Nolan denied Bailey's motion. Bailey then pleaded no contest to the municipal charges, preserving her Rule 45 motion for appeal. See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974). In this appeal, Bailey argues that the bail release form she received from the magistrate at her initial appearance constituted a "charging document" for purposes of Rule 45(c)(1). Bailey contends that the bail release form was a "charging document" because the form notified her that the State of Alaska was bringing a criminal case against her and that she was charged with various offenses under state law. Criminal Rule 45(c)(1) currently provides, in pertinent part, that "the time for trial shall begin running, without demand by the defendant, from the date the charging document is served upon the defendant." This is a significant change from the pre-1993 version of the rule. Under the former version of the rule, the time for bringing a defendant to trial generally began to run "[f]rom the date the defendant [was] arrested, initially arraigned, or from the date the charge (complaint, indictment, or information) [was] served upon the defendant, whichever [was] first." In her ruling, Judge Nolan wrote that "it appears that the rule was amended [in 1993] specifically to eliminate an arrest as the trig gering event for commencement of the rule." Judge Nolan's conclusion is firmly supported by memoranda of the Supreme Court's Standing Committee on the Rules of Criminal Procedure, the body that proposed the 1993 amendment to the court. The Criminal Rules Committee proposed that Rule 45(c) be amended so that the time for bringing a defendant to trial would no longer begin running from the date of the arrest, but would instead begin to run from the date the defendant was held to answer to a charge. Bailey concedes that the 1993 amendment to Rule 45(c)(1) was intended to avoid having the time for trial begin running on the date of the defendant's arrest. She argues, however, that she was "held to answer" when she was brought before the magistrate and then released on bail. Bailey's argument is premised on an interpretation of Rule 45(c)(1) that is inconsistent with the legislative history of the 1993 amendment. Under the pre-1993 version of Rule 45(c), a formal arrest and a consequent appearance before a magistrate would have triggered the running of the time for trial, even though the arrest was not followed up with criminal charges. See Knowlton v. State, 795 P.2d 1287, 1288 (Alaska App.1990). But documents generated by the Criminal Rules Committee show that one of the Committee's purposes in proposing the 1993 amendment was to ensure that such an arrest and initial appearance should no longer trigger the running of Rule 45. In a memorandum dated April 6, 1992, Committee member Cynthia M. Hora told the Committee that Rule 45(c) should be amended to avoid having the time for trial commence when a person is "arrested and held to answer [through] the action[s] of the police and [a] magistrate," if "the prosecutor later conelude[s] that there [is] insufficient evidence to file a charge and eause[s] the outright release of the defendant." (According to Hora's memorandum, this same result — the non-triggering of Rule 45 — should apply even if the government at some later time decides to formally charge the person "with the same offense for which he or she was arrested.") (Quoting II Standards for Criminal Justice, § 12-2.2 and 20-21 (1986).) To ensure that Rule 45 would not be triggered by the "aetion[s] of the police and magistrate" when the prosecuting authority subsequently declines to file charges, Hora proposed that Rule 45(c)(1) no longer refer to a person's arrest. The Criminal Rules Committee apparently accepted Hora's suggestion. In a letter to the members of the Alaska Bar Association dated December 16, 1992, Court Rules Attorney Christine Johnson used the following language to describe the Committee's proposed amendment to Rule 45(c)(1): "The committee . agreed that the 120-day period should not begin to run until formal proceedings are commenced." The Criminal Rules Committee's proposed amendment to Rule 45(c) was ultimately adopted by the Alaska Supreme Court, and the term "arrested" was deleted from the rule. Bailey's situation is the very one described in the legislative history; Rule 45(c) was amended to avoid the very result for which Bailey argues. We hold that, under the current version of Criminal Rule 45(c)(1), a person's arrest and initial appearance before a magistrate does not trigger the running of the time for trial (unless the person is also served with a charging document at that time). For this purpose, "charging document" means a criminal complaint, indictment, information, or citation — a document that is legally sufficient to initiate a criminal lawsuit and support the ensuing issuance of process. See Criminal Rules 3(a), 4(a), 7(a), and 9(a), as well as AS 12.25.220 (declaring that a citation meeting the requirements of the statute shall be "considered . a lawful complaint for the purpose of prosecution"). See also Ahmaogak v. State, 595 P.2d 985 (Alaska 1979) (construing Rule 45(c)'s earlier phrase "complaint, indictment, or information" to include uniform citations). The bail order in this case was not a "charging document" within the meaning of Criminal Rule 45(e)(1). We therefore agree with Judge Nolan that the "Order and Conditions of Release" form given to Bailey by the magistrate at her initial appearance on July 3, 1996, did not trigger the running of the time for trial under Criminal Rule 45(c)(1). Judge Nolan properly denied Bailey's motion to dismiss the case. The judgment of the district court is AFFIRMED.

11843255

David G. BALLARD, Appellant, v. STATE of Alaska, Appellee

Ballard v. State

1998-04-03

No. A-5679

931

943

955 P.2d 931

955

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:01:59.321489+00:00

CAP

Before BRYNER, C.J, MANNHEIMER, J., and WOLVERTON, District Court Judge.

David G. BALLARD, Appellant, v. STATE of Alaska, Appellee.

David G. BALLARD, Appellant, v. STATE of Alaska, Appellee. No. A-5679. Court of Appeals of Alaska. April 3, 1998. Paul E. Malin, Assistant Public Defender, and John B. Salemi, Public Defender, Anchorage, for Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Bo-telho, Attorney General, Juneau, for Appel-lee. Before BRYNER, C.J, MANNHEIMER, J., and WOLVERTON, District Court Judge. Sitting by assignment of the chief justice made pursuant to Article IV, Section 16 of the Alaska Constitution.

6917

43061

MANNHEIMER, Judge. This appeal requires us to decide whether the horizontal gaze nystagmus test, or "HGN" test, satisfies the standard for admissibility of scientific evidence established in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), and reaffirmed as the governing standard in Alaska in Contreras v. State, 718 P.2d 129, 134-36 (Alaska 1986). In the HGN test, the subject is asked to cover one eye and then use the remaining eye to track the lateral progress of an object (usually a pen) as the officer moves the object at eye-level across the subject's field of vision. As the moving object travels toward the outside of the subject's vision, the officer watches the subject's eye for "nystagmus"— an involuntary jerking movement of the eyeball. If the person's eyeball exhibits nystag-mus, and especially if the nystagmus occurs before the moving object has traveled 46 degrees from the center of the person's vision, this is taken as an indication that the person is intoxicated. See the description of the HGN test contained in State v. Grier, 791 P.2d 627, 629 (Alaska App.1990). As we explain in more detail below, we conclude that the horizontal gaze nystagmus test is premised on generally accepted scientific theory. Although there is genuine dispute as to whether a person's precise level of intoxication or precise blood-alcohol level can be ascertained by his or her performance on the HGN test, there is no dispute that alcohol consumption causes observable nystag-mus. We conclude that, if a person demonstrates nystagmus during the HGN test, this is a reasonable indication that the person may have consumed alcohol and is potentially intoxicated. Therefore, with certain qualifications explained below, we hold that evidence of a person's performance on the HGN test is admissible under the Fry e-Contreras rule. How This Case Arose In the early morning of March 1, 1994, Alaska State Trooper Lee Robert Oly was patrolling the Glenn Highway, accompanied by his supervisor, Trooper Oscar Siegfried. Oly observed an oncoming Toyota pull off to the other side of the highway. Intending to check on the welfare of the Toyota's driver, Oly turned his patrol car around and pulled up behind the stopped Toyota. Ballard, who was driving the Toyota, got out of his vehicle. Ballard had to steady himself against the Toyota, and he staggered as he walked toward Oly. When Ballard stopped walking, he continued to have difficulty maintaining his balance; he swayed from side to side. Oly smelled the odor of alcoholic beverages on Ballard's breath, and he saw that Ballard appeared to have difficulty focusing his eyes (which were bloodshot). Based on these observations, Oly decided to administer field sobriety tests to Ballard. Ballard performed several field sobriety tests; one of these was the horizontal gaze nystagmus test. After Ballard failed all of the field sobriety tests, Oly arrested him and charged him with driving while intoxicated. Ballard's Pre-Trial Objection to the HGN Evidence and the Testimony Presented at the Frye Hearing Before trial, Ballard asked the district court to exclude all evidence of his performance on the HGN test, contending that the HGN test did not meet the Frye standard for admissibility. District Court Judge Natalie K. Finn conducted an extensive hearing into the scientific foundations of the HGN test, as well as its reliability and validity. At this hearing, the State presented an instructional videotape produced by the National Highway Transportation Safety Administration (NHTSA), demonstrating its recommended procedure for administering a three-part HGN test. The State also called Trooper Tim Schoenberg, who demonstrated the three parts of the test in the courtroom: asking the subject to track a moving object, asking him to focus on the object at the limits of his peripheral vision, and asking him to focus on the object at an angle of 45 degrees from the center of his field of vision. Schoenberg not only described how the HGN test is to be administered, but he also described how the HGN test is taught to officers. Trooper Oly, the officer who arrested Ballard, then testified concerning his own training in the three-part HGN test. Oly told the court that his training included administering the HGN test to nineteen test subjects. Like Schoenberg, Oly demonstrated the three portions of the HGN test on a volunteer in the courtroom. (One of Ballard's expert witnesses, Dr. Ronald Nowaczyk, later critiqued Oly's performance. Nowaczyk noted that Oly had performed the three portions of the HGN test on one of the subject's eyes, then had performed the three portions of the test on the subject's other eye; the NHTSA recommends performing each portion of the test on each eye before moving to the next portion of the test. However, Dr. Nowaczyk did not suggest that this variation would affect the test results.) The State's third witness was Mareelline Burns, a research psychologist who was one of the scientists who conducted two seminal studies of the HGN test under the auspices of the National Highway Traffic Safety Administration. These two studies, conducted between 1975 and 1981, were admitted as exhibits at the Frye hearing. Burns testified that, within the scientific community, it was well-accepted that alcohol intoxication causes nystagmus. Nystagmus is not, however, an unerring indicator of alcohol intoxication; it can also be caused by other drugs, by brain trauma, or by certain diseases. Moreover, approximately half of the population will exhibit an eyeball tremor when fixing their eyes on an object at the limit of their peripheral vision. For this reason, of the three parts of the HGN test conducted on Ballard, checking for nystag-mus at maximum deviation of the eyes was the least informative. Burns conceded that only "distinct nystagmus" during this portion of the test would be a meaningful indicator of intoxication. Although Burns declared that the HGN test is a "highly sensitive" measure of whether a person is intoxicated, she also stated that the HGN test was never designed to be used alone, but rather in conjunction with other field sobriety tests such as the walk- and-turn test and the one-leg-stand test. Burns added, however, that among such a battery of tests, the HGN test has distinctive value because nystagmus is an involuntary response. An alcoholic can learn to control or compensate for the effects of intoxication on balance, physical agility, and verbal acuity, but it is all but impossible to disguise nystagmus. Burns told the district court that, for purposes of assessing the reliability and validity of the HGN test, the relevant community of researchers and practitioners consisted of scientists concerned with alcohol and drug research, scientists concerned with traffic safety, and law enforcement professionals. Among this community, Burns testified, the battery of three field sobriety tests that includes walk-and-turn, one-leg-stand, and HGN is generally accepted as an accurate indicator of a person's intoxication. Ballard presented two expert witnesses at the hearing. The first was Dr. Craig Smith, a neuro-ophthalmologist. Smith conceded that the scientific community generally accepts the fact that alcohol intoxication affects people's ability to move their eyes, and that intoxication will cause nystagmus. However, Smith pointed out that nystagmus is also caused by diseases of the brain, by damage to or disease of the eye muscles, and by various medications and drugs. According to Smith, nystagmus can also appear naturally in about two to five percent of the population. Smith conceded that alcohol-produced nys-tagmus is observable by police officers in the field, but he strenuously questioned whether precise observations of nystagmus could be made outside of a controlled laboratory setting. In particular, Smith asserted that it is "impossible" for a police officer conducting a traffic stop to detect whether a driver's eyes are smoothly pursuing a moving object. Smith pointed out that the lighting at the scene of a traffic stop can be inadequate to observe the subject's eyes. He also pointed out that, if the driver is balancing unsteadily, the driver's eyes may not move smoothly when tracking an object because the driver's head is itself moving. Smith also pointed out the possibilities that the officer may not move the target object smoothly, or that the driver is myopic and therefore not able to see the object clearly. Smith told the court that he had ridden along with police officers some ten to twelve times, and he had observed that the HGN test was very difficult to perform during a roadside traffic stop. Smith also testified that, even when nys-tagmus is visible, it is quite difficult to determine whether the angle of onset is less than 45 degrees unless one is armed with a protractor. Smith, like Burns, testified that the occurrence of nystagmus at maximum deviation is not a good indicator of intoxication because some 50 to 60 percent of the normal population displays such nystagmus. However, on cross-examination by the court, Smith admitted that the nystagmus manifested by half the population at the edges of their vision was a "tiny" nystagmus, readily distinguishable from the "distinct" nystag-mus that occurs in people who have blood-alcohol levels exceeding .10 percent. Ballard's second expert witness was Dr. Ronald Nowaczyk, a psychology professor who specializes in behavioral statistics and research. Nowaczyk explained the concepts of "reliability" and "validity" as they apply to scientific testing. (See footnote 2, supra.) Nowaczyk told the court that, having analyzed the results of the NHTSA studies on horizontal gaze nystagmus, he had concluded that the reliability of the HGN test (that is, the uniformity of HGN testing results) appeared to be between 60 and 66 percent — too low a percentage for the HGN test to be acceptable as a method of "clinical diagnostic testing" for determining "whether someone meets a certain level [of intoxication]". Turning to the validity of the HGN test (that is, the likelihood that the test accurately measures intoxication or non-intoxication), Nowaczyk told the court that he could not come to a statistical conclusion based on the data available to him. However, he believed that the HGN test "tend[s] to overestimate" people's levels of blood alcohol. Nowaczyk referred the court to a field study of the HGN test which showed that significant numbers of drivers failed the HGN test even though their blood-alcohol levels were below .10 percent. According to Nowaczyk, this field study showed that 15 percent of drivers with blood-alcohol levels of .00 to .04 percent failed the HGN test. Among drivers with blood-alcohol levels of .05 to .09, 64 percent failed the HGN test. However, among drivers with blood-alcohol levels of .10 to .15, the percentage failing the HGN'test rose to 95. Under cross-examination, Nowaczyk admitted that the HGN test appeared to be quite accurate in confirming the intoxication of people whose blood-alcohol level is .10 percent or higher. After considering this testimony and reviewing the exhibits, Judge Finn ruled that the horizontal gaze nystagmus test met the Frye standard for admission of scientific evidence. The judge concluded that the scientific community accepted the connection between the appearance of nystagmus and the consumption of alcoholic beverages. While Judge Finn acknowledged that the HGN test might not be reliable enough to satisfy the standards for tests employed to make medical diagnoses, she concluded that the HGN test was a sufficiently reliable indicator of intoxication to be introduced in conjunction with the results of other field sobriety tests to establish whether a driver was under the influence. Responding to Ballard's further objections that Trooper Oly might not have administered the HGN tests in the approved manner, Judge Finn ruled that such questions were properly left to the jury. Although Judge Finn decided Ballard's Frye motion, District Judge William H. Fuld was the judge who presided over Ballard's trial. Shortly before the trial began, Judge Fuld warned the State that its evidence concerning Ballard's performance on the HGN test could not include any testimony estimating Ballard's level of blood alcohol based on the HGN results. Judge Fuld further warned the State not even to try to quantify Ballard's performance by referring to the point score used by the troopers to assess a driver's performance on the test. The judge told the prosecutor, "Keep the numbers out of it.... We won't hear numbers. You can ask [the trooper] whether [Ballard] passed [the test] or failed it." Trial Testimony Concerning Ballard's Performance on the HGN Test and the Various Other Field Sobriety Tests At trial, Trooper Oly described how he administered the three parts of the HGN test to Ballard. Holding a pen about six inches in front of Ballard's face, Oly moved the pen to the left and then to the right, watching Ballard's eyes for "smooth pursuit" of the moving pen. Oly next held the pen all the way to the left, then all the way to the right, to see whether Ballard's eyes exhibited involuntary jerking when he looked at the pen at the extremes of his vision. Finally, Oly brought the pen to approximately a 45-degree angle from the center of Ballard's face, to see if Ballard's eyes jerked while looking at the pen at that angle. Oly testified that Ballard's performance on the HGN test was among the worst of all the people Oly had tested. According to Oly, Ballard's eyes jerked during all three stages of the test. Oly told the jury that Ballard's performance on the test was "dramatically different" from what one would expect from a sober person — that Ballard's performance indicated that he was "a very impaired individual". Oly also described the balance and agility tests he had administered to Ballard. In one of these tests, Oly had Ballard stand on one leg. According to Oly, Ballard did "very poorly" on this test: to maintain his balance, Ballard was forced to spread his arms and either put the other foot down or hop onto the other foot. Again, Oly characterized Ballard's performance on this test as characteristic of a "very impaired person". Ballard also failed the walk-and-turn test: he wobbled and lost his balance while standing, walking, and turning. Following these tests, Oly administered verbal tests to Ballard. Ballard was unable to recite the alphabet completely, and he was unable to count backwards from 100 by fives without error. Again, Oly testified that Ballard's performance was consistent with someone who had been drinking and was impaired. Based on Ballard's performance on all these field sobriety tests, as well as Oly's observations of Ballard's eyes, breath, and movements when he first got out of the Toyota, Oly concluded that there was "absolutely no doubt" that Ballard was intoxicated (as opposed to simply being tired and having consumed one or two drinks). Oly then arrested Ballard for driving while intoxicated. Trooper Oscar Siegfried, who was riding as Oly's supervisor and who observed this entire encounter, confirmed that Ballard was swaying while standing and walking, that Ballard failed the walk-and-turn and one-leg-stand tests, that Ballard appeared highly intoxicated, and that there was a strong odor of alcoholic beverages on Ballard's breath, an odor that was obvious once Ballard was placed in the patrol car. Siegfried testified that it was "not a close call" as to whether Ballard was intoxicated. Siegfried did not mention the HGN test during his testimony. Ballard took the stand and testified that he had not been intoxicated. He said that he had consumed three drinks the evening before, then had gone to sleep for approximately seven hours. Ballard said that he was still drowsy from this lengthy sleep when the troopers stopped him. Ballard also testified that his balance was normally not that good and that his eyes sometimes had trouble tracking moving objects. The State introduced no Intoximeter evidence; Ballard was prosecuted under AS 28.35.030(a)(1), which prohibits driving "while under the influence of intoxicating liquor". In his summation to the jury at the close of the trial, the prosecutor mentioned the HGN test once: "You have Trooper Oly saying that he administered the HGN test and, based upon his training and experience, he saw that the result was that the defendant was impaired." However, the prosecutor immediately moved on to the details of the other field sobriety tests that Ballard had failed. The prosecutor emphasized that the troopers had decided to arrest Ballard based on the results of the entire battery of tests, and he urged the jury to determine Ballard's guilt using the same totality-of-circumstances analysis: "You've just got to look at everything." Ballard's attorney mentioned the HGN test once during his summation as well, arguing that it was inconsistent for Trooper Oly to claim that Ballard had been unsteady on his feet and yet able to hold his head steady during the HGN test. The defense attorney also made a general remark that could have been interpreted to include the HGN test along with the other field sobriety tests: "[WJhat should . be clear to you from hearing how these different tests work is [that], although they may in certain circumstances identify those people who are under the influence of alcohol or impaired by alcohol, . these tests [also] have the potential for identifying those people who don't perform well under pressure." Other than these quoted excerpts, the two attorneys did not emphasize or even mention the HGN test to the jury during summation. The jury convicted Ballard of driving while intoxicated. He now appeals, contending that the State should not have been permitted to introduce evidence of his performance on the HGN test. HGN Evidence Satisfies the Frye Test Under the Frye test (which sets the minimum standard for admissibility of scien- tifie evidence in Alaska), the proponent of scientific evidence is required to demonstrate that the evidence rests on generally accepted scientific principles or discoveries. Contreras, 718 P.2d at 134 (citing Frye, 293 F. at 1014). Ballard argues that the scientific theory underlying the HGN test is not generally accepted in the scientific community, and thus HGN evidence does not satisfy the Frye test. As can be seen from our description of the testimony presented in the district court, all of the expert witnesses agreed that alcohol consumption causes nystagmus. While there are other substances and disorders that also cause nystagmus, nystagmus is generally recognized as one effect of alcohol consumption. Further, there appears to be scientific agreement that the more alcohol in a person's blood, the more likely the person is to exhibit observable nystagmus. For example, in one study cited by Ballard's expert, Dr. Nowaczyk, the HGN test was administered to drivers with a wide range of blood-alcohol levels: 15 percent of drivers with blood-alcohol levels of .00 to .04 percent failed the HGN test; 64 percent of drivers with blood-alcohol levels of .05 to .09 percent failed the test; and 95 percent of drivers with blood-alcohol levels of .10 to .15 percent failed the HGN test. In the last decade, numerous state courts have addressed the question of whether HGN evidence meets the Frye standard. Of the courts that have resolved this issue, most have held that HGN evidence does not satisfy Frye if the HGN test results are introduced to establish that the person tested had a particular level of blood alcohol. However, these same courts hold that HGN evidence satisfies Frye if the HGN test results are admitted for the more modest purpose of indicating that the person has consumed alcohol and is potentially under the influence. See Whitson v. State, 314 Ark. 458, 863 5.W.2d 794, 797-98 (1993); State ex rel. Hamilton v. City Court of City of Mesa, 165 Ariz. 514, 799 P.2d 855, 857-58 (1990); State v. Superior Court, 149 Ariz. 269, 718 P.2d 171, 181-82 (1986); People v. Joehnk, 35 Cal.App.4th 1488, 42 Cal.Rptr.2d 6, 15-17 (1995); Hawkins v. State, 223 Ga.App. 34, 476 S.E.2d 803, 808-09 (1996); State v. Garrett, 119 Idaho 878, 811 P.2d 488, 491 (1991); People v. Buening, 229 Ill.App.3d 538, 170 Ill.Dec. 542, 547-48, 592 N.E.2d 1222, 1227-28 (1992) ; People v. Wiebler, 266 Ill.App.3d 336, 203 Ill.Dec. 597, 600, 640 N.E.2d 24, 27 (1994); State v. Armstrong, 561 So.2d 883, 887 (La.App.1990); State v. Taylor, 694 A.2d 907, 911-12 (Me.1997); Schultz v. State, 106 Md.App. 145, 664 A.2d 60, 69-70, 74, 75-77 (1995); People v. Berger, 217 Mich.App. 213, 551 N.W.2d 421, 423-24 (1996) (per curiam); City of Fargo v. McLaughlin, 512 N.W.2d 700, 707-08 (N.D.1994); State v. O'Key, 321 Or. 285, 899 P.2d 663, 689-690 (1995) ; State v. Sullivan, 310 S.C. 311, 426 S.E.2d 766, 769 (1993); Emerson v. State, 880 S.W.2d 759, 769 (Tex.Crim.App.1994); Richardson v. State, 766 S.W.2d 538, 540 (Tex.App.1989). Ballard's brief cites several cases in which the admission of HGN evidence was held to be error because the trial court failed to recognize the Frye issue or hold a hearing to decide it. However, Ballard cites no eases in which the Frye issue was actually litigated and an appellate court decided that HGN evidence did not meet the Frye standard. From our examination of the record in this case, as well as our examination of the lengthy discussions of the scientific research and literature concerning HGN that is contained in such decisions as State v. O'Key, Schultz v. State, and State v. Superior Court, supra, we conclude that the science underlying the HGN test — and, in particular, the principle that alcohol consumption causes nystagmus — is generally accepted within the relevant scientific community. Moreover, there is general agreement that a properly trained police officer (or other trained lay person) can observe nystagmus under field conditions. While there is considerable debate about the power of the HGN test to disclose or predict a person's precise level of blood alcohol, there is widespread agreement that horizontal nystagmus is a reliable and valid indicator of the presence of alcohol in a person's blood and, consequently, of the person's potential intoxication. Ballard contends that HGN testing is not a "reliable" indicator of intoxication — that is, the test does not yield sufficiently uniform results. He points to the testimony of Dr. Nowaczyk, who quoted a study indicating that HGN testing is reliable only 59 to 66 percent of the time. Other studies have shown much higher reliability for the HGN test; these studies suggest that the three-test battery recommended by the NHTSA (HGN, walk-and-turn, one-leg-stand) is the most accurate field technique for gauging whether a person is under the influence. See Schultz, 664 A.2d at 73 n. 12. In our view, the difference among the studies is not significant. Dr. Nowaczyk told the court that a reliability rate of 59 to 66 percent would be acceptable for some purposes (specifically, medical research), but would not be considered acceptable for making medical diagnoses or for "making decisions as to whether someone meets a certain level" of blood-alcohol. As we have explained above, we do not find that HGN testing is a reliable indicator of a person's precise level of blood alcohol. Our conclusion is more modest: we find HGN testing to be a reliable indicator of a person's alcohol consumption and, to that extent, HGN results are relevant circumstantial evidence to prove a person's impairment. Even assuming that the HGN test is reliable only 60 percent of the time, this is a sufficient level of reliability for the HGN test to be admitted as an indicator of potential intoxication. Ballard also argues that HGN testing is not a "valid" indicator of intoxication — that is, the test does not yield sufficiently accurate evidence of intoxication. He relies on studies showing that many people fail the HGN test even though their blood-alcohol levels are lower than .10 percent. Ballard asserts that the validity of the HGN test is undermined by these "false positives". But Ballard's argument (and most of the studies he cites to support it) are premised on the assumption that, if the HGN test is a valid indicator of intoxication, then a person whose blood-alcohol level is lower than .10 percent should pass the test. This premise is mistaken. Alaska law forbids a person from driving while he or she is under the influence of alcohol — when the person's ability to control a motor vehicle is impaired. AS 28.35.030(a)(1). While the law also forbids people from driving when their blood-alcohol level is .10 percent or higher, see AS 28.35.030(a)(2), people can be "under the influence" for purposes of 030(a)(1) even when their blood-alcohol level is less than .10 percent. Thus, when a person with a blood-alcohol level of less than .10 percent fails the HGN test, this does not necessarily mean that the HGN test has falsely identified that person as being under the influence of alcohol. Moreover, as all of the expert witnesses pointed out, nystagmus is caused by substances other than alcohol, as well as by various disorders and diseases. The fact that a sober person fails the HGN test does not mean that the tester mistakenly identified nystagmus when there was none. It could also mean that the person exhibited nystagmus, but the nystagmus occurred for reasons unrelated to alcohol consumption. In this respect, the HGN test is no different from the other field sobriety tests that measure coordination, balance, or verbal responses: people can fail these tests for reasons other than intoxication. The real question is whether there is a sound scientific basis for concluding that a person's performance on the HGN test is a relevant factor to be considered when determining whether that person is under the influence of alcohol. As we have already discussed, even the studies cited by Ballard show that performance on the HGN test is related to blood-alcohol level: people with low blood-alcohol levels (.00 to .04 percent) are quite likely to pass the HGN test, some 50 to 65 percent of people with blood-alcohol levels of .05 to .09 percent fail the test, and people with high blood-alcohol levels (.10 percent and above) are quite likely to fail the test. Despite the fact that a person's level of performance on the HGN test can not necessarily be tied to a particular blood-alcohol level, the studies show that the HGN test is a significant indicator of alcohol consumption. Thus, it is circumstantial evidence of impairment caused by alcohol consumption. For these reasons, we conclude that HGN evidence meets the Frye standard for admission of scientific evidence if the test results are admitted for the limited purpose of establishing that a person has consumed alcohol and is therefore potentially impaired. While HGN testing may not, of itself, be sufficient to establish intoxication, HGN test results are admissible as a factor to be considered by the fact-finder when determining intoxication. Testimony concerning a defendant's performance on a properly administered HGN test is admissible on the issue of impairment, provided that the prosecution claims no greater reliability or weight for the HGN evidence than it does for evidence of the defendant's performance on any of the other standard field sobriety tests, and provided further that the prosecution makes no attempt to correlate the HGN test result with any particular blood-alcohol level, range of blood-alcohol levels, or level of impairment. The Foundational Requirements for Introducing HGN Evidence Although we have ruled that HGN evidence (offered for the limited purposes described above) satisfies the Frye standard, another question of evidence law remains. Ballard questions whether Trooper Oly was qualified to testify concerning Ballard's performance on the HGN test. The fact that particular scientific evidence meets the Frye standard means only that this evidence is a proper subject for testimony. Schultz, 664 A.2d at 70-71, 75-76. The party offering such evidence must still present a witness who is qualified to testify on this subject. In particular, under Alaska Evidence Rule 702, whenever a party intends to offer evidence concerning any "scientific, technical, or other specialized knowledge", the party must establish that the witness who will offer this evidence possesses the "knowledge, skill, experience, training, or education" to offer an informed opinion on the subject. Among the courts who agree that HGN evidence satisfies the Frye test, the virtually unanimous opinion is that a police officer may testify to the results of HGN testing (that is, a scientist is not required), but the government must establish as a foundational matter that the officer has been adequately trained in the administration and assessment of the test. See Hawkins, 476 S.E.2d at 808-09; Buening, 170 Ill.Dec. at 547-48, 592 N.E.2d at 1227-28; Taylor, 694 A.2d at 911-12; Schultz, 664 A.2d at 75-76; Berger, 551 N.W.2d at 423-24; McLaughlin, 512 N.W.2d at 707-08; O'Key, 899 P.2d at 689-690; Emerson, 880 S.W.2d at 769. We adopt the same rule. Further, we find that the State met this foundational requirement in Ballard's case. At the pre-trial hearing, the State presented extensive evidence concerning the proper administration and assessment of the HGN test: the State played a videotape produced by the NHTSA that demonstrated the proper administration of the test, and the State offered the testimony of Trooper Schoenberg, an HGN test instructor, who demonstrated the test in the courtroom and explained how the test results are scored. Trooper Oly, the officer who arrested Ballard, then testified regarding how he had been trained to administer and assess the HGN test, and he too demonstrated the three portions of the test on a volunteer in the courtroom. As noted above, Ballard presented only one criticism of Oly's in-court demonstration of the test: Oly had performed all three portions of the test on one eye before moving to the other eye, while the NHTSA recommends alternating eyes. However, Ballard gave the court no reason to believe that this variation could be expected to make any difference in the test results. On this record, Judge Finn could properly conclude that Trooper Oly had received adequate training in the administration of the HGN test and that Oly was therefore qualified to testify about the results of Ballard's HGN test. We recognize that Ballard potentially had another foundational attack on the State's HGN evidence. Ballard could argue that Trooper Oly failed to substantially comply with proper testing procedures when he administered the test to Ballard. Compare Williams v. State, 884 P.2d 167, 174 (Alaska App.1994) (holding that "substantial compliance" with Intoximeter procedures is required to establish the foundation for admitting breath test evidence). Most of the courts cited above treat this issue as affecting the weight of HGN evidence rather than its admissibility. They recognize that a poorly administered HGN test may yield results that are not particularly probative, but they note that the same is true of the other field sobriety tests. On appeal, Ballard argues that proper testing procedure is a foundational matter— something that the State must prove before HGN evidence can be admitted. Quoting People v. Leahy, 8 Cal.4th 587, 34 Cal.Rptr.2d 663, 667, 882 P.2d 321, 325 (1994), he argues that the proponent of scientific evidence "must demonstrate that correct scientific procedures were used in the particular ease". Ballard then faults Judge Finn for failing to decide whether Oly properly administered the HGN test to him. Even assuming that a substantial variance from accepted testing norms could render HGN evidence inadmissible, Ballard presented no evidence of such a substantial variance at the pre-trial hearing. It must be remem bered that the primary purpose of that pretrial hearing was to determine whether HGN evidence met the Frye standard for admissibility. Even if Judge Finn ruled that HGN satisfied the Frye test, Ballard would still have another opportunity (at his trial) to attack the particular procedures that the trooper employed when administering the test to him. This is seemingly the reason why the evidence presented at the pre-trial hearing centered on the scientific basis for the HGN test and the approved methods for administering the test, and not on the particular procedures Oly employed when administering the test to Ballard. Ballard's attorney did cross-examine Oly to a limited extent about the trooper's administration of the HGN test to Ballard (the procedures he used and the observations he made), but this cross-examination occupies only 7 pages of transcript out of a total of 420 pages. As Judge Finn later noted in her written decision, "[tjhere was some discussion during the hearings . about whether the HGN test was administered accurately to [Ballard]." However, given the evidence before her, Judge Finn could justifiably conclude that Trooper Oly was generally familiar with the proper procedures for administering and scoring the HGN test, and that Oly had generally followed these procedures when he tested Ballard. Accordingly, Judge Finn correctly ruled that any remaining questions concerning the administration of the HGN test to Ballard, and how Oly's testing procedures might have affected the probative force of the test results, were matters to be brought out during cross-examination and then argued to the jury, just as questions about the proper administration of the other field sobriety tests are argued to the jury. Ballard does not contend on appeal that Trooper Oly's testimony reveals any significant non-compliance with established testing procedures. We recognize that a trial court retains the discretion to exclude HGN test results if the test procedures were so substandard as to preclude any reasonable juror from concluding that the results were meaningful. However, our review of the record in Ballard's case reveals that any such foundational objection would have been meritless: there was clearly sufficient evidence for the jury to find that the HGN test had been administered in a manner likely to yield relevant results. The Trooper's Assessment that Ballard's HGN Test Results Showed that He Was 'Very Impaired" Thus far, we have concluded that a properly qualified law enforcement officer can testify concerning the administration .of the HGN test and then give an assessment of a defendant's test results — including an explanation that the presence of nystagmus is an indication that the defendant had been consuming alcohol, thus providing circumstantial evidence that the defendant was under the influence. We have further concluded that, based on the record before her, Judge Finn could properly find that Trooper Oly was properly qualified to administer the HGN test to Ballard and to assess the test results. Because of Judge Finn's ruling, Oly could testify that Ballard had failed the HGN test and that this failure indicated that Ballard had alcohol in his blood and might currently be under the influence. However, we have also concluded that HGN evidence is not admissible to prove that a defendant has a particular level of blood alcohol. Because of this ruling, we are concerned by one aspect of Trooper Oly's testimony — his elaboration that Ballard's HGN test results showed that Ballard was "a very impaired individual". Oly's assertion concerning Ballard's degree of intoxication intrinsically rests on the premise that the worse a person's performance on the HGN test, the more impaired that person must be. In our view, this testimony is perilously close to the type of HGN testimony we have rejected: the assertion that HGN test results can be correlated to a particular blood-alcohol level. (We further note that, despite Trooper Oly's training in the administration and scoring of the HGN test, the record fails to show that he has the kind of scientific expertise that would qualify him to draw any connection between the degree of onset or obviousness of a person's nystagmus and the degree of that person's impairment.) However, even though this aspect of Trooper Oly's testimony may have amounted to an impermissible attempt to correlate Ballard's HGN test result with a particular level of impairment, we conclude that the error, if any, was harmless under the facts of this case. Both Oly and his supervisor, Trooper Siegfried, gave detailed testimony describing the numerous ways in which Ballard's intoxication was manifest: his breath, his eyes, his inability to stand or balance, his inability to recite the alphabet or to count backwards. Moreover, the prosecutor at Ballard's trial did not accentuate the HGN test. The prosecutor noted that the HGN test results indicated that Ballard was "impaired", but the prosecutor gave equal prominence to Ballard's poor performance on the other field sobriety tests, and he urged the jury to "look at everything" when determining whether Ballard was under the influence. Given this record, we conclude that the jury's verdict could not have been affected by Oly's arguably impermissible assessment of the HGN test results. Conclusion The judgement of the district court is AFFIRMED. COATS, J., not participating. . Oly was a newly-commissioned trooper who was completing his field training under the supervision of Trooper Siegfried. . As explained by Dr. Ronald Nowaczyk, one of the expert witnesses in this case, the "reliability" of a scientific test or procedure refers to the degree of uniformity in the results — the likelihood that the test or procedure will again and again yield the same results under the same testing conditions. The "validity" of a test or procedure refers to the likelihood that the results accurately reflect the presence or absence of the thing the scientists are looking for. See Charles R. Honts & Susan L. AmatoHenderson, "Horizontal Gaze Nystagmus Test: the State of the Science in 1995", 71 North Dakota Law Rev. 671, 677(1995). . Siegfried made one passing reference to Ballard's "high visual problems with motor skills". From the context of the remark, it appears that Siegfried was speaking of Ballard's "highQy] vis[ible] problems" with his motor skills, rather than Ballard's performance on the HGN test. . But see People v. Kirk, 289 Ill.App.3d 326, 224 Ill.Dec. 452, 456-57, 681 N.E.2d 1073, 1077-78 (1997), declining to follow Buening on the issue of whether HGN has been so widely accepted at the appellate level that, even in the absence of a Frye hearing, a court can take judicial notice that HGN meets the Frye test. . Oregon does not follow the Frye test. Nevertheless, the O'Key court found that the scientific principles underlying HGN testing are in fact generally accepted within the relevant scientific community. O'Key, 899 P.2d at 686. . Ballard does cite one case, Young v. City of Brookhaven, 693 So.2d 1355, 1360-61 (Miss.1997), in which a state supreme court ruled that the scientific principles underlying HGN do not meet the Frye standard. However, the Mississippi court's reasoning is simply confused. There was no Frye hearing in Young, and the defendant appealed on precisely that basis. He claimed that HGN was "scientific evidence" for purposes of the Frye rule, and that therefore the State should not have been able to introduce testimony about the HGN results without first presenting an expert witness to lay a Frye foundation. After reviewing decisions from other states, the Mississippi Supreme Court adopted the majority view that HGN is indeed scientific evidence. From this premise, however, the Mississippi court reached a surprising conclusion. Instead of ruling that the HGN evidence should not have been admitted because the trial court held no Frye hearing, the Mississippi court concluded that the scientific principles underlying HGN are not generally accepted within the scientific community: We find that the HGN test is a scientific test.... Whereas most other field sobriety tests arise out of a juror's common experi- . enees, . the HGN test relies upon a scientific[ ] . set of observations. Therefore, this Court finds that the HGN test is not generally accepted within the scientific community and cannot be used as evidence to prove intoxication or as a mere showing of impairment. Young, 693 So.2d at 1360-61. In this passage, the Mississippi court confuses two issues: (a) does HGN testing rest on scientific principles, so that a Frye hearing must be held before HGN evidence can be introduced? and (b) if a Frye hearing were held, would the scientific principles underlying the HGN test prove to be generally accepted within the scientific community? The Mississippi court decided (as we decide here) that HGN evidence is "scientific evidence" for Frye purposes. It therefore follows that HGN evidence can not be admitted unless the proponent of the evidence presents expert testimony to prove that HGN satisfies the Frye test. There was no Frye hearing in the Mississippi trial court, so the Mississippi Supreme Court could draw no conclusions about the scientific acceptance of HGN from the trial court record. Moreover, none of the case law cited by the Mississippi Supreme Court holds that HGN fails to satisfy Frye. In short, there was no factual or logical basis for the Mississippi court's conclusion that the principles underlying HGN are not generally accepted in the scientific community. . On appeal, Ballard faults the district court for indicating that one of his expert witnesses might not be within the relevant community of scientists whose views are to be considered when deciding the Frye issue. As indicated in our discussion, we have considered the views of both of Ballard's expert witnesses, and our decision is premised on the assumption that both of Ballard's witnesses are members of the relevant scientific community. . The government may present evidence explaining the scientific underpinnings of the HGN test in response to a defense attack on the meaning of the test results. However, such evidence would have to be offered through the testimony of a person qualified as an expert witness under Alaska Evidence Rule 702.

11835391

James G. NATHAN, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee

Nathan v. Municipality of Anchorage

1998-03-27

No. A-6635

528

533

955 P.2d 528

955

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:01:59.321489+00:00

CAP

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

James G. NATHAN, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.

James G. NATHAN, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee. No. A-6635. Court of Appeals of Alaska. March 27, 1998. Rehearing Denied April 21, 1998. Richard D. Kibby, Anchorage, for Appellant. Benjamin O. Walters, Jr., Assistant Municipal Prosecutor, and Mary K. Hughes, Municipal Attorney, Anchorage, for Appellee. Before COATS, C.J., and MANNHEIMER and STEWART, JJ.

2679

16991

MANNHEIMER, Judge. James G. Nathan appeals his conviction for driving while intoxicated, Anchorage Municipal Ordinance 9.28.020. After Nathan was arrested for DWI, he submitted to a breath test (which showed his blood-alcohol level to be .134 percent), and he declined the offer of an independent blood test. However, Nathan contends that the breath test result should be suppressed because, when he gave up his right to an independent blood test, he did not really understand his right to such a test. Nathan is deaf, and has been since birth. In the trial court, Nathan asserted that, because of his deafness, he was unable to communicate well with the officer who administered the breath test and who explained Nathan's right to an independent blood test. Nathan contended that, because of this difficulty in communication, he was unable to follow the officer's explanation of his right to an independent test. Even though Nathan signed the waiver-of-test form, Nathan stated that he signed the form to please the officer, without understanding what he was relinquishing. District Court Judge Stephanie Rhoades held a hearing into Nathan's allegations. At this hearing, Nathan testified that his primary language was American Sign Language; he asserted that he was unable to communicate effectively in English, whether oral or written. Nathan's description of his linguistic ability was corroborated by the testimony of his high school teacher, who declared that, at the time Nathan graduated from high school, his ability to read was perhaps at a third-grade level. Nathan's teacher testified that Nathan had a limited ability to read lips. With regard to his understanding of the right to an independent blood test, Nathan testified that he did not understand this right. Nathan declared that, even though he read the consent/waiver form and eventually signed the waiver of his right to an independent test, he did not understand the word "independent" as it was used on the form, and he did not understand what he was giving up when he signed the waiver. However, Nathan conceded on cross-examination that he understood, and could have written, phrases such as "Let me use the phone" or "I do not understand". Both the officer who arrested Nathan (Derek Hsieh) and the officer who administered the breath test to Nathan (Joe Caswell) testified that Nathan was obviously deaf, and that he remained mute throughout their contacts with him. Caswell, in particular, testified that he was fully aware that Nathan could neither speak nor hear. However, both Hsieh and Caswell also testified that Nathan seemed to understand what they said to him: he followed their directions and otherwise responded appropriately to their remarks and questions. When Caswell asked Nathan (in writing) if he could read and write English, Nathan nodded affirmatively without hesitation. Nathan in fact began to write out a statement concerning the events leading up to his arrest. The ensuing interview between Caswell and Nathan was conducted with pen and paper. Officer Caswell's testimony was corroborated by the record of Nathan's first appearance and bail hearing in front of Magistrate Roy V. Williams. At that hearing, Magistrate Williams communicated with Nathan by passing written notes back and forth. Following this exchange of written communications, the magistrate was apparently satisfied that Nathan understood the proceedings— and, in particular, his obligation to appear in court at the time stated in his bail release form — because the magistrate released Nathan on his own recognizance after Nathan signed an acknowledgement of the conditions of his release. After hearing this conflicting testimony, and after listening to the tape of Nathan's first appearance in front of Magistrate Williams, Judge Rhoades concluded that Nathan, despite his disability, had understood his right to an independent test and had knowingly waived that right. Judge Rhoades concluded, based on Nathan's apparent understanding of Officer Hsieh's communications at the scene, that Nathan "must have been reading Officer Hsieh's lips[;] . the defendant [described] what was being explained to him [by Officer Hsieh] in his own testimony." With regard to the more important issue of Nathan's communications with, and understanding of, Officer Caswell, Judge Rhoades concluded that Nathan had sufficiently understood the officer to acquire an understanding of his right to an independent test. [Regarding Nathan's] contact with Officer Caswell, . the defendant began to write a statement_ [W]hile [this statement] was not grammatically focused, nonetheless it was a coherent, cohesive, cogent statement of what was going on with this accident!.] . Officer Caswell actually stopped [Nathan's work on this statement] and directed him toward the information that they had to deal with in terms of the processing for driving while intoxicated. It appears that Officer Cas-well then wrote out notes to the defendant, and Officer Caswell testified that the defendant appeared to be nodding his head "yes" . as they were going along. [Nathan facially appeared] to understand what was going on. He was given copies of the forms to read along. Officer Caswell . did appear to be sensitive to the fact that the defendant was not capable of hearing or speaking, and did undertake to try to make sure that the defendant understood what was going on and understood the forms and understood his rights. . [T]he most compelling [evidence] here [is] that the defendant, though . he does clearly have a basic understanding of English, and does have a basic ability to write English, and was presented with a pen and paper, did not write down, at any time during the DWI processing, that he did not understand^ nor did he] request to have additional information or an interpreter or some other form of understanding the information. And I guess what's important to me about that is that, without dealing with a defendant who is unfamiliar with these resources, apparently the defén- dant did study the driver's license booklet, which all drivers have to study in order to take the written test, he did take a written test, apparently using, according to his own testimony, the assistance of an interpreter. And, so it's not like he doesn't have familiarity with the fact that in circumstances where he doesn't understand something, he needs to request an interpreter. He has done that before, when he wanted to take advantage of the privilege to drive.... The defendant knows how to get the use of resources when he wants to obtain a privilege, but in this case he didn't ask for [interpretative assistance]. And I find that significant. Because now it's a little too convenient [for Nathan] to come in after the fact and say that he didn't understand.... Judge Rhoades cited Nathan's later communications with Magistrate Williams as further corroboration of Nathan's level of understanding: [Regarding Nathan's] contact with the magistrate, . the magistrate's [duty] here was to make sure that the defendant understood his obligation to return to court. Apparently their communication was effective enough that the magistrate had no concerns about that, [because the magistrate] released him [on] his own recognizance, and the defendant testified [that] he understood when he was to return. From all of this evidence, Judge Rhoades concluded that Nathan had possessed a basic understanding of his right to an independent blood test, and that Nathan knowingly and intelligently waived his right to an independent test: So, all in all, it would appear to me that the defendant's ability to read and write— while they may be still wholly at a fourth-grade level even now, twenty-three years after school — that he nonetheless, through life experience, his workplace, the fact that he is a licensed driver, the fact that he does manage to exist and live in a world where deaf people, frankly, are not accommodated many times, tells me that he most likely understood, at least to the extent that he needed to understand, that he had a right to an independent test and the other rights that were explained to him on the documents[.] . [I] find that he was adequately advised and he knowingly, intelligently waived his right to an independent test. On appeal, Nathan attacks Judge Rhoades's finding that he understood his right to an independent test. See Ahtuangaruak v. State, 820 P.2d 310, 311-12 (Alaska App.1991) (a DWI arrestee's purported waiver of the right to an independent test is invalid "if the arrestee, because of . a language barrier, or [for] any other reason, fails to acquire a basic understanding of the right to an independent test"). On this issue of historical fact, we must affirm the trial judge's ruling unless it is shown to be clearly erroneous. Cockerham v. State, 933 P.2d 537, 539 n. 9 (Alaska 1997). A finding of fact is "clearly erroneous" if, after review of .the record, an appellate court is left "with a definite and firm conviction . that a mistake has been made, even though there may be evidence to support the [trial court's] finding." Cockerham, supra. Having reviewed the evidence presented to the district court, we conclude that Judge Rhoades's finding is not clearly erroneous. As Nathan points out in his brief, the evidence was obviously contradictory on the issue of whether Nathan understood what Officer Caswell told him about his right to an independent test. At the hearing, Nathan presented evidence that, if believed, would support a finding that he did not understand his right to an independent test. Moreover, Nathan pointed out that there were reasons to distrust the accuracy of the government witnesses' testimony. However, as Judge Rhoades explained in her decision (quoted above), there were also reasons to distrust the accuracy of Nathan's testimony. In the end, it was Judge Rhoades's task to assess the credibility of the various witnesses' testimony and to resolve the central issue of fact: did Nathan acquire a basic understanding of his right to an independent test? Anthony v. State, 521 P.2d 486, 492 (Alaska 1974); Long v. State, 772 P.2d 1099, 1101 (Alaska App.1989). The judge resolved this issue against Nathan, and the record provides substantial support for her conclusion. While reasonable people might perhaps draw differing conclusions from the evidence presented at the hearing, we can not say that Judge Rhoades's conclusion is clearly erroneous. Nathan argues in the alternative that, even if he knowingly waived his right to an independent test, his breath test result should nevertheless be suppressed because the police failed to take reasonable steps to accommodate his hearing and speech disability. Nathan asserts that the police violated the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., by failing to provide him with an American Sign Language interpreter or to utilize some alternative method to facilitate communication. Nathan's claim is based on section 12132 of the Act, which declares that "no qualified individual with a disability shall, by reason of such disability, . be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity". Elaborating on this statutory provision, one of the regulations promulgated under the Act, 28 C.F.R. § 35.160(b)(1), obligates public entities to "furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity". .The Act's definition of "auxiliary aids and services" expressly includes "qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments". See 42 U.S.C. § 12102. Nathan argues that the Anchorage Police Department's processing of arrestees qualifies as a "service[ ], program[ ], or activity] of a public entity" for purposes of section 12132 of the Act. Based on this premise, Nathan'contends that the police were obliged to furnish him with an interpreter during his DWI processing (and, in particular, during the explanation of his right to an independent blood test). However, even assuming that a police department's processing of arrestees is a "program" or "service" governed by the Americans with Disabilities Act, the Act would require the police department to furnish auxiliary aids and services only "where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of' the arrest processing. (Emphasis added) Moreover, under the statutory definition of "auxiliary aids and services", an interpreter would apparently not be required if the police department offered some "other effective method[]" of communication. Judge Rhoades found that, despite Nathan's disability, effective communication did in fact take place between Nathan and the officers, and Nathan did understand his right to an independent test. The judge's resolution of these issues of fact constitutes an implicit finding that no violation of the Americans with Disabilities Act took place. Further, even assuming that the police violated the Act, Nathan must still cross another legal hurdle: he must establish that a violation of the Americans with Disabilities Act will trigger the exclusionary rule and require suppression of his breath test result. This is not self-evident. If Nathan, because of his hearing impairment, had failed to acquire a basic understanding of his right to an independent test, then he would be entitled to suppression of his breath test result. Ahtuangaruak, 820 P.2d at 311-12. But Judge Rhoades found that Nathan did understand his right to an independent test. Thus, Nathan's argument for suppression is a novel one. Nathan argues that even though he did understand his right to an independent test — that is, even though the police department's asserted violation of the Americans with Disabilities Act did not adversely affect his understanding of his rights or the voluntariness of his decision to waive the independent blood test — he still is entitled to suppression of the breath test result. Nathan argues that suppression of evidence is the only effective way to make the police obey the mandates of the Act. In several decisions, the Alaska appellate courts have addressed the issue of whether suppression of evidence should result from the government's violation of a statute (as opposed to the government's violation of a provision of the Constitution). See, for example, Zsupnik v. State, 789 P.2d 357, 361 (Alaska 1990), Ward v. State, 758 P.2d 87, 90 (Alaska 1988), Copelin v. State, 659 P.2d 1206, 1214-15 (Alaska 1983), State v. Sundberg, 611 P.2d 44, 50-52 (Alaska 1980), and Harker v. State, 637 P.2d 716, 719-720 (Alaska App.1981), aff'd on other grounds, 663 P.2d 932 (Alaska 1983). Nathan does not discuss (or even cite) any of these cases. It is. true that, broadly speaking, the purpose of the exclusionary rule is to deter the police from engaging in future illegal conduct. Violations of the Americans with Disabilities Act clearly qualify as "illegal conduct". However, when the government has violated a statute (as opposed to the Constitution), suppression of evidence has generally been imposed only when the government's violation of the statute demonstrably prejudiced a defendant's ability to exercise related constitutional rights or to prepare or present a defense. For instance, in Sundberg, the police used excessive force to arrest a fleeing suspect, but the supreme court refused to suppress the resulting evidence. The court concluded that other effective means existed to deter future similar illegality; the court cited "the possibility of . police department [disciplinary] proceedings; civil rights actions; and common law tort suits against the offending officer". Sundberg, 611 P.2d at 51-52. Similar measures are apparently available to deter and redress violations of the Americans with Disabilities Act. Given the existence of these measures, and the absence of any indication that the police have engaged in persistent, purposeful violations of the Act, we hold that exclusion of evidence would not be the remedy even if Nathan could show that the police violated the Act in his case. The district court properly denied Nathan's motion to suppress his breath test result. Accordingly, the judgement of the district court is AFFIRMED.

6992298

Caroline KINGIK, Appellant, v. STATE of Alaska, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT AND BENEFITS, Appellee

Kingik v. State, Department of Administration, Division of Retirement & Benefits

2010-10-01

No. S-13431

1243

1252

239 P.3d 1243

239

Pacific Reporter 3d

Alaska Supreme Court

Alaska

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

CAP

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

Caroline KINGIK, Appellant, v. STATE of Alaska, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT AND BENEFITS, Appellee.

Caroline KINGIK, Appellant, v. STATE of Alaska, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT AND BENEFITS, Appellee. No. S-13431. Supreme Court of Alaska. Oct. 1, 2010. Sarah M. Curtis and Rebecca S. Copeland, Patton Boggs LLP, Anchorage, for Appellant. Anne L. Johnson, Assistant Attorney General, and Daniel S. Sullivan, Attorney General, Juneau, for Appellee. Before: CARPENETI, Chief Justice, FABE, CHRISTEN, and STOWERS, Justices.

3818

24207

OPINION CHRISTEN, Justice. I. INTRODUCTION Caroline Kingik's husband, Morris Welch, was enrolled in the Public Employees' Retirement System (PERS) from 1986 to 1999. Shortly before Welch's retirement, he selected a retirement option that did not include survivor benefits. Kingik consented to this election. Welch died in 2005, and the Division of Retirement and Benefits (the "Division") notified Kingik that she would no longer receive benefits from PERS. Kingik appealed to the superior court, arguing that the Division violated her due process rights and that her waiver of survivor benefits was void. Because the waiver form was clear and because Kingik's waiver of benefits was effective, we affirm. II. FACTS AND PROCEEDINGS Morris Welch was employed by the North Slope Borough from 1986 until his retirement in 1999. He married Caroline Kingik in 1989 and was married to her at his death in 2005. By virtue of his employment with the Borough, Welch was eligible for medical and retirement benefits from the State of Alaska through PERS. Between his retirement and death, Welch received $139,992.97 from PERS, $46,041.90 more than his lifetime contributions to the program. Welch began inquiring about early retirement in early 1998. The Division mailed him information providing estimates of the monthly income he could expect to receive depending on when he decided to retire and which retirement option he selected. The estimates were accompanied by a retirement application packet that included a newsletter entitled "Rights of Spouses and Dependents." The newsletter explained that if the member chose the "normal, early or level income" options and the member's spouse consented, PERS would "pay monthly benefits to the member during his or her lifetime, but [would] not pay monthly benefits to the spouse after the member's death." Before his retirement, Welch submitted several forms instructing the Division on how he wanted to receive his PERS benefits. The Application for Retirement Benefits form offered Welch five different options for receiving his retirement benefits. Three options included survivor benefits. The Level Income Option did not include survivor benefits. The Level Income Option pays members a higher monthly benefit until they reach age sixty-five (when many members begin receiving social security payments), a reduced monthly benefit after age sixty-five, and no survivor benefits. Welch chose the Level Income Option on the Application for Retirement Benefits form, affirmed his choice by signing the Retirement Benefits Election Level Income Option form, and ex pressly declined to request additional information concerning spousal benefits when given the opportunity to do so. Alaska Statute 89.35.450 requires PERS members to provide their spouse's written consent when they select a retirement option that does not include survivor benefits. The one-page Application for Retirement Benefits form Welch signed shows his selection of the Level Income Option and Kingik's notarized signature consenting to his selection. Welch was later reminded that he did not select a survivor option. In 1998 Welch sued the North Slope Borough over an ordinance that gave an employment preference to Native Americans. The ordinance was later declared "invalid and unenforceable." As part of the 2005 settlement of the discrimination case, the Borough paid nearly four years of retirement benefits into PERS on Welch's behalf and credited him with four more years of service. During the negotiations to settle the discrimination claim, the Division sent Welch a revised projection of his PERS retirement benefits showing the money the Borough anticipated paying into his PERS account. The Division's letter reminded Welch that he had selected the Level Income Option and that "[flailure to choose one of the three survivor options means ALL benefits, including health insurance, will stop when you die" and "Important notice: there are no survivor options with an LIO." (Emphasis in original.) Neither Welch nor his attorney ever contacted the Division to object or protest his selection of the Level Income Option. Had Welch chosen an option with survivor benefits, he would have received a significantly lower monthly benefit during his lifetime. Instead, Welch received enhanced monthly benefits for the remainder of his life, and never attempted to change his election. Welch died on October 25, 2005. Kingik contacted the Division to report Welch's death and to inquire about the status of his retirement and medical benefits. On November 17, 2005, the Division notified Kingik that her medical coverage had been terminated and that the October retirement check was the final benefit payable under the PERS program. Kingik wrote to the Administrator of the Division about her right to receive benefits, but the Administrator upheld the Division's initial denial of benefits. Kingik then appealed to the Office of Administrative Hearings, where the parties filed eross-motions for summary adjudication. The administrative law judge (ALJ) granted the Division's motion, in part. The ALJ ruled that Kingik's waiver of survivor benefits was valid and rejected her argument that the Division had a duty to notify Welch that he had an opportunity to re-designate his retirement benefit when he settled his discrimination claim in 2005-the settlement provided no such opportunity. But the ALJ ruled that issues of fact prevented him from deciding as a matter of law what Welch intended when he completed the Application for Retirement Benefits form. After holding an evidentiary hearing on the "single issue of the intent and significance of Mr,. Welch's elections," the ALJ found by a preponderance of the evidence that Welch had intended to select the Level Income Option. Kingik appealed the administrative decision to the superior court, arguing that her own due process rights had been violated, that Welch's due process rights had been violated, and that her waiver of survivor benefits was ineffective. The superior court affirmed the administrative decision, ruling that: (1) Kingik did not have third-party standing to litigate a violation of Welch's rights; (2) substantial evidence supported the administrative decision that the waiver form was objectively clear; (8) Kingik did not have a vested constitutional right to receive survivor benefits when she signed the waiver; and (4) the evidence did not support Kingik's argument that the waiver was invalid for lack of mutual consent or because of a unilateral mistake. Kingik appeals. III. STANDARD OF REVIEW This case requires us to review a superior court order affirming an agency decision. "When the superior court acts as an intermediate court of appeal in an administrative matter, we independently review and directly serutinize the merits of the [administrative] decision." "No deference is given to the superior court's decision when that court acts as an intermediate court of appeal." Two standards of review are relevant in this case. First, we review findings of fact under the substantial evidence test. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Second, we apply the substitution of judgment test when reviewing constitutional questions and questions of law not involving agency expertise. When exercising our independent judgment, we "adopt the rule of law that is most persuasive in light of precedent, reason, and policy. IV. DISCUSSION A. Kingik Waived Her Argument That She Has Third-Party Standing To Litigate A Violation Of Welch's Constitutional Rights. In her appeal to our court, Kingik argues that she has third-party standing to litigate an alleged violation of Weleh's constitutional rights. But she did not make this argument before the ALJ. Instead, Kingik argued at the administrative level that "the operative question . [is] what, if anything, did the Department do to safeguard Ms. Kingik's constitutional rights[?]" We have held that "[al party may not raise an issue for the first time on appeal. Because Kingik did not make her third-party standing argument before the ALJ, it was not properly part of her appeal to the superior court. It is not properly part of the present appeal for the same reason. Kingik waived this argument. B. Kingik's Due Process Rights Were Not Violated. Kingik argued before the ALJ that the Division's failure to safeguard her constitutional right to survivor benefits violated due process. She contends that the Division should have taken additional steps to "ensure that Ms. Kingik's purported waiver was valid and intentional." The Division countered that Kingik's constitutional rights were not violated because "spouses of retirees do not hold a constitutional right to survivor benefits." We adopted the Mathews v. Eldridge test for procedural due process claims in Hilbers v. Municipality of Anchorage. Under that test, courts identify the specific requirements of due process by considering: [Flirst, 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 fiscal and administrative burdens that the additional or substitute procedural requirements would entail.[ ] We need not decide whether Kingik had a protected property interest in Welch's PERS retirement benefits because we conclude the Division's procedures satisfied due process. Kingik claims an interest in the receipt of survivor benefits if Welch predeceased her. The Division's interest is in the efficient administration of PERS. Kingik's position is that the Division's procedures were inadequate because it could have modified its forms to "more clearly and concisely convey to its members (and their spouses) the ef-feets and consequences of their selections." But our conclusion that the waiver form is reasonably clear disposes of Kingik's argument; the likelihood of an erroneous deprivation of survivor benefits caused by the form is very low because of the waiver form's plain language. Applying the Mathews factors, we conclude that Kingik was not denied due process. C. Kingik's Waiver Of Survivor Benefits Was Effective. 1. The waiver form was clear. Kingik argues her waiver of survivor benefits is invalid because the waiver form she signed is confusing and misleading. Kin-gik testified that she thought the Application for Retirement Benefits form's waiver only affected her right to receive dental and vision coverage through PERS. She explained that her understanding of the waiver's effect was based on conversations she had with Welch where, she alleges, Welch assured her that she would receive surviving spouse benefits and medical coverage after he died. Kingik admitted that she "[mJost likely" did not read the form before signing it. The Division argues that, despite Kingik's subjective misunderstanding, the waiver is objectively clear and effectively describes the rights spouses relinquish by signing it. The clarity of the Division's waiver form is a legal question we review de novo. Both parties cite to ERISA regulations governing waiver and agree that the waiver language on the form Kingik signed was required to describe or explain the right the spouse is giving up and affirmatively state that the spouse is giving up a right rather than contain generalized and indeterminate language. The ALJ concluded that the waiver form "reasonably describes or explains the right the spouse is giving up" and "is very clear in categorizing three options as 'Survivor Options.'" Directly under the section where the member selects his or her retirement benefit option, the form cautions: "IMPORTANT . ALL BENEFITS INCLUDING MEDICAL COVERAGE WILL CEASE UPON DEATH OF THE APPLICANT if a survivor option is not selected." (Emphasis in original.) Following this warning, the form contains a section entitled "SPOUSE'S WAIVER OF SURVIVOR OPTION" with a signature line for the spouse to "acknowledge and approve the benefit selected" and to "freely waive entitlement to continuing survivor benefits . upon the death of the named applicant." (Emphasis in original.) Because the survivor options are clearly designated, because the form unambiguously warns that "all benefits including medical coverage" will cease on the applicant's death if a survivor option is not selected, and because the form contains a clearly-worded waiver clause, we agree with the ALJ that the waiver plainly and adequately describes both the rights and the effect of signing the form. Although we do not believe the Application for Retirement Benefits form's layout or language obfuscates the meaning of the waiver Kingik signed or the validity of Welch's election, we agree with the ALJ that the Division's forms could be improved. For example, some of the Application for Retirement Benefits form's language is arguably internally inconsistent. The form's waiver section states that you are married, the waiver below must be completed to select a regular income benefit." But the term "regular income benefit" is not an option; this phrase appears nowhere else on the form. The Division's forms could be improved, but we agree with the ALJ's conclusion that the Application for Retirement Benefits form describes the rights Kingik relinquished by signing the waiver. We are satisfied that the form adequately explained that Kingik's benefits would stop upon Welch's death if no survivor option was selected. 2. Kingik bore the risk of her unilateral mistake. Kingik argues that she is entitled to void the waiver because she was mistaken as to its basic assumption-that signing it would affect her right to receive survivor benefits. The Restatement (Second) of Contracts § 154 explains that a party bears the risk of the mistake when: "(a) the risk is allocated to him by agreement of the parties; or (b) he is aware, at the time the contract is made, that he has only limited knowledge with respect to the facts to which the mistake relates but treats his limited knowledge as sufficient; or (c) the risk is allocated to him by the court on the ground that it is reasonable under the cireumstances to do so. Kingik argues that she does not bear the risk of her mistake under Restatement § 154(b) and (c). Regarding subsection (b), she argues she "was not aware that she had only limited knowledge with respect to the facts to which the mistake related" because she "believed she was waiving one thing when she purportedly waived another." The Division counters that Kingik bore the risk of the mistake because she "acted with what she knew was limited knowledge but treated that knowledge as sufficient." Kingik's admission that she "[mjost likely" did not read the waiver form or other parts of Welch's retirement application undermines her ability to claim mistake as a defense. If she did not read the waiver, she must have known she was acting with limited knowledge of the contents and meaning of the contract, yet her signature indicates that she treated her knowledge of it as sufficient. Under these circumstances, the law requires that Kingik bear the risk of her mistake. Kingik also argues that the risk of error should be allocated to the Division under Restatement § 154(c) because "it was the Division's duty to appropriately inform [Welch] of his rights, and because it is the Division's forms which caused the mistake in this case." We have subscribed to the principle that the risk of mistake should be borne by the party who has the greater interest in the consequences of a contract term. The Division had no financial interest in Welch's election because its liability under each option was actuarially equal. The superior court observed that "ilt seems fair to say that the information about what rights were being waived was of great importance to [Kingik] while of lesser importance to [the Division], so under the facts of this case, the risk of mistake should be assigned to [Kin-gik]." Given the relative disparity in the parties' interests, we agree that Kingik properly bore the risk of her unilateral mistake. 3. The contract does not fail for lack of mutual assent. Kingik alleges that she did not subjectively intend to waive anything other than dental and vision coverage. Therefore, she argues, there was no "meeting of the minds on the essential terms of the offer" and she did not form a valid contract with the Division. Contract formation is a legal question not involving agency expertise, so we apply the substitution of judgment standard of review. Mutual assent is an elementary requirement of an enforceable contract. An "agreement to a contract may be imputed based on the reasonable meaning of a party's words and acts. "Because a contract is assessed under an objective standard, if a party objectively manifested an intention to be bound by the terms of a contract, that assent cannot be defeated by evidence of the party's . subjective contrary intentions." Kingik signed and notarized a waiver that contained a plainly worded clause stating that her benefits would cease unless a surviv- or option was selected. Her signature was an objective manifestation of intent sufficient to create an enforceable contract with the Division. Only Kingik's objective manifestations of intent may be considered. Her unexpressed subjective intentions are irrelevant to the mutual assent analysis as a matter of law. Therefore, the contract does not fail for lack of mutual assent. Finally, Kingik argues that she and the Division had a material misunderstanding and that this misunderstanding prevented contract formation. She points out that while the Division intended the waiver to be a waiver of survivor benefits, she only meant it to waive her vision and dental benefits. The Restatement (Second) of Contracts § 20 recognizes an exception to the normal mutual assent rules for certain misunderstandings. Under the Restatement, "(there is mo manifestation of mutual assent to an exchange if the parties attach materially different meanings to their manifestations and . neither party knows or has reason to know the meaning attached by the other." This portion of Kingik's argument fails because, as the Division points out, it had no way of knowing that Kingik subjectively intended to waive only vision and dental coverage, but Kingik did have reason to know that the Division intended the waiver to affect her survivor benefits. Indeed, the waiver Kingik signed contained no reference to dental or vision coverage, but it did include express language regarding waiver of survivor benefits. The Restatement's exception for misunderstandings does not support Kingik's claim. D. Substantial Evidence Supports The ALJ's Conclusion That Welch Intended To Select The Level Income Option. The ALJ held an evidentiary hearing to determine which option Welch intended to select when he completed the Application for Retirement Benefits form. Having reviewed the record, we conclude that substantial evidence supports the ALJ's finding that Welch intended to select the Level Income Option. The ALJ found that Welch was a "fairly sophisticated man with excellent literacy" who was capable of reading and understanding the Division's forms. While not extensive, the record includes evidence adequate to support this finding: Welch worked for the North Point School District as a supervising operator of a Point Hope utility, he started a home business selling Alaska Native art, and he authored an article that the ALJ read about the experience of building a website to sell art. Other documentary evidence supports the ALJ's finding that Welch intended to select the Level Income Option. Welch consistently chose the Level Income Option as his preferred choice for receiving his retirement benefits: he unequivocally marked the Level Income Option on the Application for Retirement Benefits form and included Kingik's waiver as required by the form; he signed and submitted the Retirement Benefits Election Level Income Option form; he expressly declined the Division's offer to provide him information concerning spousal benefits when given the opportunity to request it; he received enhanced monthly benefits for several years without objection; and he never attempted to change his election-even after the settlement of his 2005 discrimination claim when he was reminded that the Level Income Option did not include survivor benefits. We conclude substantial evidence supports the ALJ's finding that Welch intended to select the Level Income Option. v. CONCLUSION For the reasons explained above, the decision of the ALJ is AFFIRMED. WINFREE, Justice, not participating. . The Division had no stake in which option Welch chose; each choice had the same actuarial value and was therefore projected to cost the Division the same amount. See AS 39.35.450(b); AS 39.35.460 (repealed by ch. 4, FSSLA 1996). . The Retirement Benefits Election Level Income Option form provides: "I request my retirement benefits in an increased amount prior to age 65 with a reduced amount after age 65, for the remainder of my life . I understand that the benefit selected is irrevocable." . McMullen v. Bell, 128 P.3d 186, 189-90 (Alaska 2006) (quoting Alyeska Pipeline Serv. Co. v. DeShong, 77 P.3d 1227, 1231 (Alaska 2003)). . Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992) (citing Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987)). . Id. . Storrs v. State Med. Bd., 664 P.2d 547, 554 (Alaska 1983) (citing Keiner v. City of Anchorage, 378 P.2d 406, 411 (Alaska 1963)). . McMullen, 128 P.3d at 190 (citing Holding v. Municipality of Anchorage, 63 P.3d 248, 250 (Alaska 2003)). . Handley, 838 P.2d at 1233. . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). . Mullins v. Oates, 179 P.3d 930, 941 n. 31 (Alaska 2008) (quoting Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280 (Alaska 2001)). . 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). . 611 P.2d 31, 36-37 (Alaska 1980). . Id. at 36 (quoting Mathews, 424 U.S. at 334-35, 96 S.Ct. 893). . Rockstad v. Erikson, 113 P.3d 1215, 1219 (Alaska 2005). . ERISA provides that a participant "may elect at any time during the applicable election period to waive the qualified joint and survivor annuity form of benefit." 29 U.S.C.A. § 1055(c)(1)(¥)G) (West 2009). But such election shall not take effect unless "(i) the spouse of the participant consents in writing to such election, (ii) such election designates a beneficiary . which may not be changed without spousal consent . and (iii) the spouse's consent acknowledges the effect of such election and is witnessed by a plan representative or a notary public." 29 U.S.C. § 1055(c)(2)(A) (2006). PERS is not governed by ERISA because PERS falls under the governmental employee benefit plan exception. See 29 U.S.C. § 1002(32) & 1003(b)(1) (2006). We understand both parties cite to ERISA by analogy only, and accept as uncontested their joint position that the waiver on the Application for Retirement Benefits form should be measured by this standard. . Resratement (Srcomp) or Contracts § 154(a), (b), and (c). . See Wasser & Winters Co. v. Ritchie Bros. Auctioneers (Am.), Inc., 185 P.3d 73, 80 (Alaska 2008). . Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992). . Howarth v. First Nat'l Bank of Anchorage, 596 P.2d 1164, 1167 (Alaska 1979). . Id. . Dutton v. State, 970 P.2d 925, 928 (Alaska App.1999) (citing Howarth, 596 P.2d at 1167). . Id. . Id. . Restatement (SEconp) or Contracts § 20(1)(a) (1981).

6990636

Estin W. BORCHGREVINK, Appellant, v. STATE of Alaska, Appellee

Borchgrevink v. State

2010-09-17

No. A-10234

410

426

239 P.3d 410

239

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

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

CAP

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

Estin W. BORCHGREVINK, Appellant, v. STATE of Alaska, Appellee.

Estin W. BORCHGREVINK, Appellant, v. STATE of Alaska, Appellee. No. A-10234. Court of Appeals of Alaska. Sept. 17, 2010. Beth GL. Trimmer, Assistant Public Advocate, Anchorage, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee. Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.

9166

57429

OPINION MANNHEIMER, Judge. Estin W. Borchgrevink appeals his convie-tions for first-degree assault (infliction of serious physical injury) and for a merged count of first-degree sexual assault and first-degree sexual abuse of a minor (non-consensual sexual penetration of a child under the age of 13). The issue on appeal is whether the State should have been allowed to introduce evidence at Borchgrevink's trial concerning an out-of-court statement made by the 2 4-year-old victim when she was examined at the hospital by an emergency room physician and nurse. At the time of this examination, the victim, E.P., had obvious injuries to her head and to her vaginal opening and perineum. The doe-tor pointed to E.P.'s head and asked who hurt her. EP. replied, "Daddy [i.e., Bor-chgrevink] did this" or "Daddy did this to me". The doctor then pointed to E.P.'s genitals, or the area of her diaper, and again asked who hurt her. E.P. once more replied, "Daddy did this." At Borchgrevink's trial, the emergency room physician, the emergency room nurse, and E.P.'s mother (who was also present during the examination) were allowed to give hearsay testimony describing E.P.'s statements. However, as we explain in more detail later in this opinion, the trial judge granted a defense motion to declare E.P. incompetent to be a witness, and thus E.P. did not testify at Borchgrevink's trial. At trial, Borchgrevink conceded that he was the one who caused the injuries to E.P 's head. Because of this concession, the admissibility of E.P.'s statement identifying Bor-chgrevink as the one who inflicted her head injuries is a moot issue. However, Borchgre-vink denied that he was the one who inflicted the injuries to E.P.'s genitals and perineum, and he actively objected to the admission of E.P.'s statement identifying him as the one who inflicted these injuries. For the reasons explained in this opinion, we conclude that the admission of the testimony describing E.P.'s out-of-court statements was not reversible error, and we therefore affirm Borehgrevink's convictions. The litigation of this issue in the superior court Two days before Borchgrevink's trial began, the trial judge (Superior Court Judge pro tempore Peter G. Ashman) held a hearing to address the admissibility of this evidence. The prosecutor argued that this testimony was admissible under two different theories: first, that it was a "first complaint" of sexual assault for purposes of the "first complaint" doctrine recognized by the Alaska Supreme Court in Greenway v. State, 626 P.2d 1060 (Alaska 1980); and second, that it was admissible under Alaska Evidence Rule 808(4) because E.P.'s statements were made for purposes of medical diagnosis or treatment. With respect to the State's theory that EP.'s statements constituted a first complaint of sexual assault under @reenway, Borchgrevink's attorney argued that "first complaint" evidence should be limited to evi-denee that the victim reported that they had been subjected to a sexual assault (or to sexual abuse)-and that the "first complaint" rule does not allow the State to introduce evidence of the victim's identification of the perpetrator. Similarly, with respect to the State's theory that E.P.'s statements were admissible under the medical diagnosis or treatment exception codified in Evidence Rule 808(4), Borchgrevink's attorney argued that the medical diagnosis or treatment exception does not allow the State to introduce out-of-court statements concerning the identity of the person who inflicted the patient's injuries. In the alternative (i.e., under the assumption that Evidence Rule 803(4) might permit evidence of a sexual abuse victim's identification of their assailant), the defense attorney argued that E.P. was so young when she spoke to the doctor (she was two and a half years old) that she would not have understood that the doctor's inquiry concerning the identity of her assailant had anything to do with medical diagnosis or treatment. After hearing the parties' arguments, Judge Ashman took the matter under advisement. Later that afternoon, he called the parties back to court and announced his decision. With regard to whether E.P.'s out-of-court statements were admissible under the Green-way "first complaint" rule, Judge Ashman noted that this Court had issued seemingly contradictory statements on the question of whether evidence of a vietim's first complaint can include an identification of the perpetrator of the sexual assault or sexual abuse. After declaring that he could not find a unifying rationale to fully explain or reconcile our prior statements on this issue, Judge Ash-man ruled that E.P.'s out-of-court identification of Borchgrevink as her assailant was admissible under the "first complaint" rule. With regard to whether E.P.'s out-of-court statements were admissible under the medical diagnosis or treatment hearsay exception, Judge Ashman found that when the emer-geney room physician questioned E.P., it was obvious that she had suffered genital injuries, but it was not clear whether those injuries were the result of a sexual assault, and (if so) whether that assault was performed with an adult male's penis or with some other object. Judge Ashman concluded that the doctor's inquiry was pertinent to medical diagnosis or treatment because, if E.P.'s injuries resulted from sexual penetration by an adult male's penis, this information was relevant to the doctor's decisions concerning the course of treatment. (Judge Ashman's assessment of the medical relevance of this information for treat ment purposes was corroborated by the testimony of another physician at Borchgrevink's trial-ie, not the emergency room doctor, but another doctor who later supervised E.P.'s treatment. This second physician testified that, because E.P.'s injuries were reported to have been caused by sexual penetration by an adult male, E.P. was treated with antibiotics in case she had been infected with a sexually transmitted disease, and E.P. was screened for HIV, syphilis, and other sexually transmitted diseases.) Whether evidence that E.P. identified Bor-chgrevinik as her assailant was admissible under the Greenway "first complaint" evidence rule As we explained earlier, Borchgrevink was charged with both physical assault on E.P. (resulting in the injuries to her head) and sexual assault on E.P. (resulting in the injuries to her genitals and perineum). In his testimony at his trial, Borchgrevink conceded that he was the one who inflicted the injuries to E.P.'s head, and that these injuries were inflicted on March 16, 2006, while E.P.'s mother was at work. (E.P. was taken to the doctor late in the afternoon of March 16th.) However, Borchgrevink denied that he was the one who inflicted the injuries to E.P.'s genitals and perineum. Borchgrevink asserted that these injuries were inflicted one or possibly two days earlier-Lie., late on March 14th, or on March 15th-while Bor-chgrevink was at work and E.P. was in the care of others (namely, her mother and her grandparents, Kristine and Richard Squire). As we have explained, before Borchgre-vink's trial began, the State asked for permission to introduce testimony regarding the statements that E.P. made at the hospital, in which she identified Borchgrevink as the person who inflicted her injuries. The State argued that this testimony was admissible as a "first complaint" under Greenway, and the trial judge agreed. On appeal, Borchgrevink argues that the admission of this testimony was error. Bor-chgrevink notes that, traditionally, testimony admitted under the "first complaint" rule was limited to the fact that the victim had reported being sexually assaulted or abused; the testimony was not to include the victim's statements about the details of the assault or abuse-in particular, the victim's identification of the perpetrator. See Greenway, 626 P.2d at 1061 n. 4, citing John Henry Wigmore, Evidence in Trials at Common Law (Chadbourn rev. 1972), § 1136, Vol. 4, p. 306. Borchgrevink acknowledges that this Court has, at times, upheld the admission of "first complaint" testimony concerning the victim's identification of their assailant or abuser. See, e.g., Strumsky v. State, 69 P.3d 499, 502-03 (Alaska App.2003); Nusunginya v. State, 730 P.2d 172, 173-74 (Alaska App. 1986), Nitz v. State, 720 P.2d 55, 58, 63 (Alaska App.1986). (We also note that, at least once, we declared this aspect of a victim's first complaint to be inadmissible. D.G. v. State, 754 P.2d 1128, 1129 (Alaska App. 1988).) But Borchgrevink argues that even if the victim's identification of the perpetrator is potentially admissible under the "first complaint" evidence rule, such identity testimony is admissible only if the identity of the perpetrator is not disputed, and then only if the victim takes the stand at trial. (a) The debate as to whether "first complaint" evidence may include the victim's identification of the perpetrator Borchgrevink's first objection-that "first complaint" evidence should not include the victim's identification of the perpetrator-has been the subject of a long judicial debate. This was the aspect of Borchgrevink's argument that gave Judge Ashman the most trouble, and understandably so-because, as Judge Ashman pointed out, Alaska appellate decisions provide uncertain guidance on this point of law. In footnote 4 of the Greenway decision (626 P.2d at 1061), our supreme court stated that "first complaint" evidence is traditionally confined to "the fact of the complaint", and that "[tlestimony . pertaining to 'details' of the victim's complaint is generally not admissible." However, the authority that the supreme court cited for this proposition, Wig-more's Evidence in Trials at Common Law (Chadbourn rev. 1972), § 1186, states a somewhat different rule. actually Wigmore does indeed say that the "first complaint" rule authorizes admission of "the fact of [the] complaint . only" (emphasis in the original), but then Wigmore explains that, for this purpose, the "fact of the complaint" includes the victim's statements concerning "the time and place" of the assault, so that the trier of fact can "identify [that] time and place with that of the [offense] charged". Id., Vol. 4, p. 807. It is true that the traditional formulation of the "first complaint" rule precluded testimony concerning a victim's identification of the perpetrator of the assault, and several courts still follow this rule. See People v. Ware, 323 Ill.App.3d 47, 256 Ill.Dec. 28, 751 N.E.2d 81, 86 (2001); State v. Grady, 183 NW.2d 707, 715-16 (Iowa 1971); State v. Krieger, 803 A.2d 1026, 1031 (Me.2002); Sanches v. State, 351 S.C. 270, 569 S.E.2d 363, 365 (2002); State v. Fleming, 27 Wash.App. 952, 621 P.2d 779, 782-83 (1980). See also People v. Brown, 8 Cal. 4th 746, 35 Cal.Rptr.2d 407, 883 P.2d 949, 958-960 (1994) (disavowing the common-law rationale for admitting this evidence, but still limiting the evidence to (1) the fact of the victim's complaint and (2) the cireumstances surrounding the victim's making of the complaint). Nevertheless, as the facts of Greenway demonstrate, there sometimes may be little meaningful difference between testimony that relates the victim's description of the time and place of the assault (which is admissible under the traditional rule as stated by Wigmore) and testimony that relates the victim's identification of the perpetrator. The defendant in Greenway was accused of raping his teenage stepdaughter while the two of them were staying at Greenway's summer fish camp. 626 P.2d at 1060. Under these cirenmstances, testimony concerning the stepdaughter's description of the time and place of the sexual assault would be tantamount to an assertion that Greenway was the one who perpetrated the crime. Similarly, when a case involves the sexual abuse of a young child, the child's description of the time and place of the sexual abuse will often effectively amount to an assertion that a particular caretaker was the abuser. As this Court noted in Nitz v. State, 720 P.2d 55 (Alaska App.1986), there often may be "(little] utility [in] attempting to conceal the identity of the person accused in the victim's first complaint where the victim is a child who accuses a parent or step-parent of sexual assault"-because "even the least astute of jurors will readily be capable of surmising that the victim's complaint was directed at the parent who has been charged with the offense." Id. at 63. Thus, even under the "first complaint" doe-trine as traditionally applied, the trier of fact will know, or will be able to easily guess, the identity of the person whom the victim named as the perpetrator, even when this information is not explicitly presented in court. Perhaps because of this, there has been a modern trend to broaden the seope of "first complaint" evidence to include the vie-tim's identification. As this Court noted in Nite: [There has been a marked trend toward relaxation of the traditional restrictions governing admission of evidence of the victim's first complaint. More recent decisions have recognized the appropriateness, within the reasonable limits of the trial court's discretion, of allowing details of a first complaint of sexual assault to be admitted for the purpose of enabling the jury to obtain a fair understanding of the circumstances under which the complaint was made. - Even jurisdictions that continue to forbid revealing the identity of the assailant recognize that [the] admission of such evidence amounts to harmless error where identity is not contested. Nitz, 720 P.2d at 63 (citations omitted). As stated in the preceding paragraph from Nitz, several jurisdictions have expanded the "first complaint" doctrine to include the vice-tim's identification of the perpetrator. See State v. Troupe, 237 Conn. 284, 677 A.2d 917, 928-29 (1996); Nelson v. State, 137 Md.App. 402, 768 A.2d 738, 744 n. 2 (2001); Commonwealth v. Licata, 412 Mass. 654, 591 N.E.2d 672, 674 (1992), as modified in Commonwealth v. King, 445 Mass. 217, 834 N.E.2d 1175, 1197-98 (2005); State v. Blohm, 281 N.W.2d 651, 652-53 (Minn.1979); Commonwealth v. Krick, 164 Pa.Super. 516, 67 A.2d 746, 749-750 (1949); State v. Twyford, 85 S.D. 522, 186 N.W.2d 545, 548-550 (1971); State v. Sanders, 691 S.W.2d 566, 568 (Tenn.Crim.App.1984). See also State v. Cook, 280 N.C. 642, 187 S.E.2d 104, 109 (1972) (the victim did not know her assailant, but the court allowed "first complaint" evidence of the victim's description of her assailant). This Court has issued several decisions in which we upheld "first complaint" evidence that included the victim's assertion of the perpetrator's identity. Our decision in Nitz is one example: the "first complaint" evidence in Nitz included the victim's identification of the perpetrator, Nitz, 720 P.2d at 58, and this Court held that the evidence was admissible. Id. at 63. But the Nitz decision presented a problem for future cases because this Court seemingly offered differing rationales for our decision. First, the Nitz decision offers the view that descriptions of a victim's "first complaint" might as well include the victim's identification of the perpetrator, since it is so often pointless to enforce the contrary, traditional rule. As we noted in Nitz, there is "[little] utility [in] attempting to conceal the identity of the person accused" because "even the least astute of jurors will readily be capable of surmising that the victim's complaint was directed at the parent who has been charged with the offense." Id. at 68. Second, the Nitz decision states that there appears to be "little need for artificial limits on a witness' account of the circumstances under which the victim's initial report of sexual assault [was] made. The jury should generally be permitted to consider these circumstances in assessing the weight to be given to the prior statement." Id. at 62-63. But the Nitz decision also states that evidence of the victim's identification of the perpetrator poses no danger because "[ilden-tity will seldom be an issue in such cases". Id. at 68. As Judge Ashman apparently perceived when he tried to ascertain what rule the Nitz decision was actually endorsing, this aspect of Nitz is really a "harmless error" analysis-as opposed to the view that the victim's identification of the perpetrator is a proper component of "first complaint" evidence. In Nitz, all of these rationales apparently led to the same result-so the tension between them was muted. But Judge Ashman was confronted with a case where the identity of the perpetrator was disputed, so he was forced to choose between the differing rationales. He adopted the view that "first complaint" evidence can properly include the vie-tim's identification of the perpetrator. This is, indeed, the rule suggested by this Court's subsequent decisions on this issue. In Nusunginya v. State, 730 P.2d 172 (Alaska App.1986), two witnesses (the victim's ten-year-old cousin and the victim's aunt) testified about a child's complaint of sexual abuse by her father. Id. at 173. We upheld the admission of the victim's statement to her cousin under the "first complaint" rule, noting that the challenged testimony "did not provide any significant detail, apart from establishing that [the victim] had identified Nusunginya as her assailant." Ibid. (emphasis added). We added that the challenged testimony "helped provide a context in which the [victim's] complaint could be viewed"-and "[thus, applying the first complaint exception, . the trial court did not err in allowing [the cousin] to testify." Id. at 174. Similarly, in Kosbruk v. State, 820 P.2d 1082 (Alaska App.1991), another sexual abuse of a minor case, we upheld the admission of "first complaint" evidence that included the victim's identification of the perpetrator. We declared that the challenged testimony "was brief and did not provide any significant detail". Id. at 1084. See also Thompson v. State, 769 P.2d 997 (Alaska App.1989), where this Court held that evidence of the victim's first complaint was admissible even though the challenged testimony included the victim's identification of the perpetrator. Id. at 998, 1001, 1002-03. Accord: Murray v. State, 770 P.2d 1131, 1133, 1137 (Alaska App.1989); Horton v. State, 758 P.2d 628, 630-31 (Alaska App. 1988). It is true that, in both Nusunginya and Kosbruk, this Court suggested that our ruling hinged, at least in part, on the fact that the identity of the perpetrator was not at issue. Judge Ashman declared that he could not understand the relevance of this fact, and we agree that he had a reasonable basis for his perplexity. There may be cases of sexual assault or sexual abuse where the identity of the perpetrator truly is not at issue-for example, where the defendant openly admits the act of sexual contact or sexual penetration, but asserts that the sexual activity was consensual (in the case of an adult) or that the sexual contact or penetration was "performed for the purpose of administering a recognized and lawful form of treatment that is reasonably adapted to promoting the physical health of the person being treated". AS 11.81.900(b)(59)(B). But in Nits Nusunginya, and Kosbruk, the defendants did not concede that they were the ones who engaged in sexual activity with the children. Rather, the defendants denied that they had done the things the children accused them of. Identity may not have been actively litigated at the defendants' trials; nevertheless, the identity of the perpetrator was disputed (as a legal matter). If, for instance, there had been some physical evidence that arguably corroborated the vie-timsg' claims of sexual activity, the defendants in Nitz Nusunginye, and Kosbruk might well have argued-perfectly consistently-that (a) no sexual activity occurred, but if it did, (b) they were not the one who engaged in the sexual activity with the victim, and the victim was lying or was mistaken about the identity of the perpetrator. This may have been the reason why Judge Ashman ultimately concluded that a victim's identification of the perpetrator can be a proper component of "first complaint" evidence, and that the issue of whether the identity of the perpetrator was actively disputed at trial was not the determinative factor in this Court's prior decisions on this subject. (b) The limited admissibility of "first complaint" evidence-and why we conclude that the limited purpose of this evidence provides an answer to the question of whether "first complaint" evidence can include the victim's identification of the perpetrator At this point in our analysis, it may be helpful to stand back for a moment and consider whether this entire debate-i.e., the ongoing controversy about whether "first complaint" evidence should include information about the victim's identification of the perpetrator-might be viewed as "academic", in the pejorative sense of having no practical or useful significance to the litigation of erim-inal cases in the real world. The reason why the resolution of this debate may have no practical significance is that "first complaint" evidence is not admitted for the truth of the matters asserted. Rather, this evidence is admitted for the limited purpose of lending corroboration to the victim's in-court testimony, by establishing that the victim did in fact complain of the sexual assault or sexual abuse at an earlier time. This rationale, and the limited purpose for which "first complaint" evidence is admitted, are discussed in § 1135-86 of Wigmore (the same portion of Wigmore that was cited by our supreme court in Greenway ). Wigmore explains that the law's traditional proscription of the "details" of the victim's earlier complaint was intended to deter the jury from treating the victim's out-of-court statement as "a hearsay assertion". In other words, it was intended to deter the jury from viewing the out-of-court statement as substantive proof of the matters asserted in that statement-as independent evidence of the defendant's guilt. Wigmore, § 1186, Vol. 4, p. 807. "First complaint" evidence is intended solely to corroborate the victim's testimony. As this Court recognized in Nitz, "the [first complaint] doctrine is founded on the assumption that evidence of the victim's first complaint is necessary to counteract the inference that might otherwise be drawn"-in other words, the inference that the victim said nothing at the time, and (thus) that nothing happened. Nitz, 720 P.2d at 62 (citing Wigmore). For this reason, "first complaint" evidence is not technically hearsay: it is not admitted for the truth of the matters asserted by the victim in the out-of-court statement. Thus, there may be little practical significance whether "first complaint" evidence can properly include information about the vie-tim's identification of the perpetrator-because (1) "first complaint" evidence is admissible only if the victim testifies at the trial, see Wigmore, § 1136, Vol. 4, pp. 807-811; and (2) it is error for the jury to rely on the victim's out-of-court statement as substantive proof of the matters asserted. See State v. Samuels, 273 Conn. 541, 871 A.2d 1005, 1011-12 (2005); Fitzgerald v. United States 443 A.2d 1295, 1303-04 (D.C.App.1982); Commonwealth v. Licata, 412 Mass. 654, 591 N.E.2d 672, 674-75 (1992), as modified in Commonwealth v. King, 445 Mass. 217, 834 N.E.2d 1175, 1197-98 (2005); People v. Straight, 430 Mich. 418, 424 N.W.2d 257, 261 (1988). (This limitation does not apply when the victim's statement is offered as hearsay under an exception to the hearsay rule, such as the exceptions for excited utterances, Alaska Evidence Rule 808(2), prior inconsistent statements, Alaska Evidence Rule 801(d)(1)(A), or prior consistent statements, Alaska Evidence Rule 801{(d)(1)(B). If the out-of-court statement is admissible under an exception to the hearsay rule, then the jury can rely on it for the truth of the matters asserted. See People v. Brown, 8 Cal.4th 746, 35 Cal.Rptr.2d 407, 408 n. 1, 883 P.2d 949, 950 n. 1 (1994).) For these reasons, it may ultimately be more profitable to view the controversy about whether "first complaint" evidence should include the victim's identification of the perpetrator as, in essence, a debate about how Evidence Rule 403 should be applied to this situation. Evidence Rule 403 authorizes a trial judge to exclude relevant evidence if the probative value of that evidence is outweighed by the likelihood that the jury will use the evidence for an improper purpose. Here, the proper purpose of the evidence is corroboration of the victim's in-court testimony; the danger is that the jury will view the evidence as independent, substantive proof of the matters asserted in the victim's out-of-court statement. The law's traditional ban on the inclusion of "details" in first complaint evidence appears to be based on the perception that, the more detailed the witness's description of the victim's out-of-court statement, the greater the likelihood that the jury will treat the witness's "first complaint" testimony as substantive evidence, separate from (and independent of) the victim's in-court testimony. A closely analogous problem is presented when expert witnesses testify under the authority of Alaska Evidence Rule 703 about conclusions they have reached based on underlying information or data that they did not collect or observe themselves. Alaska Evidence Rule 708 allows experts to testify about this underlying information or data even though this testimony, if offered independently, could not survive a hearsay challenge or a challenge based on the witness's lack of personal knowledge. Technically, this testimony is not "hearsay"-in other words, it is not offered for the truth of the matter asserted, but rather for the limited purpose of explaining how the expert reached their conclusions. But as this Court recently noted in Vonn v. State, 229 P.3d 197, 208-09 (Alaska App. 2010), there are times when (1) there is no other admissible evidence of the underlying information or data, and (2) as a practical matter, there is a substantial danger that the jury will assume the truth of some or all of this underlying information or data. For this reason, Evidence Rule 705(c) authorizes a trial judge to prohibit the expert witness from testifying about these underlying matters "if the danger that [the expert's testimony concerning these matters] will be used for an improper purpose outweighs their value as support for the expert's opinion". The Commentary to Alaska Evidence Rule TO5(c) explains that the "improper purpose" that Rule 705(c) refers to is the possibility that the jury "might . use the facts or data as the basis for an independent judgment on issues in [the] case". In other words, the danger is that the jury will take the expert's testimony as independent proof of these underlying matters. Vann, 229 P.3d at 209; Guerre-Chaley v. State, 88 P.3d 539, 543-44 (Alaska App.2004). This is essentially the same danger presented by "first complaint" evidence if it is so detailed that it practically amounts to out-of-court "testimony"-that is, if it is so detailed that it might prompt the jury to resolve questions of fact based on the content of the victim's out-of-court statement rather than on the live testimony and physical evidence presented in court, or if it might prompt the jury to resolve issues of credibility by treating the out-of-court statement as the equivalent of a separate corroborating "witness". With particular regard to the question of whether "first complaint" evidence should include information about the victim's identification of the perpetrator, we stand by what we said in Nifz as a general rule, there appears to be "little need for artificial limits" on a witness's description of the general content of the victim's statement. It will often be obvious who the victim named or described. And, particularly in cases where a young child reports being assaulted or abused by a family member or a caretaker who is well known to the child, it is potentially misleading to delete the child's identification of the perpetrator-because the jury might assume that the child would naturally name the perpetrator if the child knew the perpetrator, and thus the jury might mistakenly conclude that the child named someone other than the defendant, or was unable to identify their assailant. On the other hand, a trial judge should have the discretion to redact this identification information from the "first complaint" witness's testimony if there is a substantial danger that the jury will view this information as independent proof of the defendant's guilt. As we discussed in Nitz, this danger can be significant if "a parade of witnesses is allowed to offer evidence of [the victim's] prior . statements", 720 P.2d at 70, or if the identification of the defendant as the perpetrator of the crime is based on "the testimony of . [al] relatively inarticulate child", bolstered by the testimony of "a series of articulate adult witnesses", id. at 71. With this analysis in mind, we return to this Court's decisions in Nitz, Nusunginya, and Kosbruk. As we have explained, all three of these decisions upheld the admission of "first complaint" evidence that included the victim's identification of the perpetrator, but all three decisions discuss the fact that the identity of the defendant as the perpetrator was not actively disputed at trial (and that the issue litigated at trial was, instead, whether any crime occurred). For the reasons we have explained in this section of our opinion, we do not construe Nitz, Nusunginya, and Kosbruk as standing for the rule that a lack of dispute about the identity of the perpetrator is an unvarying foundational requirement that must be satisfied before "first complaint" evidence can properly include information about the victim's identification of the perpetrator. Rather, we view Nits, Nusunginya, and Kosbruk as saying that if the identity of the perpetrator is not actively disputed, then there is considerably less danger that the jury will treat the vietim's out-of-court identification of the perpetrator as substantive evidence-and, conversely, that if the identity of the perpetrator is actively disputed, this is a significant factor that a trial judge should take into account when deciding, under the authority of Evidence Rule 408, whether there is good reason to redact the information concerning the victim's identification of the perpetrator from any testimony describing the victim's first complaint. (c) The significance of the fact that EP. did not testify at Borchgrevink's trial By this point in our discussion, attentive readers already will have perceived that the admission of the "first complaint" evidence at Borchgrevink's trial presents a serious legal problem-because E.P. did not testify. As we explained in the preceding seetion of this opinion, "first complaint" evidence is admissible only if the victim testifies at the trial. Moreover, it is error for the Jury to rely on the victim's out-of-court statement-here, EP's out-of-court assertion that "Daddy did this"-as substantive proof of the matter asserted. In Borehgrevink's case, this problem is compounded by the manner in which this issue was litigated in the superior court. As we explained earlier, the question of whether the emergency room doctor and nurse would be allowed to testify about E.P.'s out-of-court statement (in particular, her identification of Borchgrevink as her assailant) was litigated two days before Bor-chgrevink's trial began. When Judge Ash-man was asked to make a ruling on this issue, it appeared that E.P. was going to testify at Borchgrevink's trial. No one discussed the possibility that E.P. might not testify. More specifically, the defense attorney never argued that E.P. was incompetent to testify, and that therefore it would be improper to admit any first complaint evidence. The issue of E.P.'s unavailability as a witness did not arise until several days later, in the middle of Borehgrevink's trial, when the State called E.P. to the stand (outside the jury's presence) and attempted to establish her competency as a witness. At the time of Borchgrevink's trial, EP. was four years old. It soon became clear that she was apparently competent to be a witness under the test established in Evidence Rule 601-ig., she was capable "of communicating concerning the matter so as to be understood by the court and jury". EP. answered preliminary questions in a coherent and understandable manner (although, unsurprisingly, the tenor of her answers was characteristic of a young child). However, E.P. either would not or could not give meaningful answers to any questions about Borchgrevink when she was sitting in court in Borchgrevink's presence. Judge Ashman described E.P 's reaction: The Court: T'll put [this] on the record: . [The first person [E.P.] looked at [when she came] into the courtroom was Mr. Borchgrevink, [and] she continued to turn and look at him. She continued to - squirm into . her stepmom's side [while she} look[ed] at Mr. Borchgrevink. She peered around to look at [him], all [the] while saying [that] she didn't know who "Estin" was or who "Daddy" was, and that no one else had ever lived [at the house with her and her mother]. And it struck [me that this is] not a memory issue[.] . [It's something else going on. Borehgrevink's attorney asked Judge Ash-man to declare E.P. incompetent as a witness, arguing that E.P. "[was] not oriented to time, space, [or] self". Over the prosecutor's objection, Judge Ashman granted the defense attorney's request. In his ruling, Judge Ashman declared that "[E.P.] may be competent [to be a witness at the present time], but if she is, we don't have a real record of her competence as it relates to the time and place of the alleged assault. . . . We have her remembering going to the hospital, [but] that's it." Judge Ashman also offered a separate rationale for keeping E.P. off the stand. He declared that he was concerned about Bor-chgrevink's right of confrontation as defined in the United States Supreme Court's decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004): The Court My concern is this: If we present [E.P.] to the jury ., assuming that she behaves as she has behaved in the courtroom . this morning, all the jury will see is [E.P.] withdrawing, which in and of itself is not probative [of anything]. [But the jury might view her silence and her withdrawal as] evidence against Mr. Borchgrevink . [The most critical piece of [my] analysis is the [injability [of Borchgrevink and his attorney] to fairly cross-examine [EP.]. The right of confrontation, the Crawford issue here, is the defendant's right to confront and cross-examine the [witness]. And if [E.P.] withdraws, there is nothing the defense can do to cross-examine that reaction. There is no way for the defense to confront the inference that the State would seemingly be asking the jury to make from that withdrawal. So I won't permit [E.P. to testify]. (We express no opinion on the legal merits of Judge Ashman's ruling; rather, we simply describe the ruling because it is an important aspect of the procedural history of Borchgre-vink's case.) Once Judge Ashman granted the defense attorney's request to bar E.P. from taking the stand, it was obvious that the State could no longer meet a crucial foundational requirement for introducing evidence of EP's out-of-court statements under Greenway. However, Borchgrevink's attorney did not ask for a mistrial, nor did he ask Judge Ashman to strike the earlier testimony describing E.P.'s out-of-court statements, nor did he seek any other relief pertaining to the already-admitted "first complaint" testimony. Conceivably, one might try to exeuse the defense attorney's inaction by arguing that, since Judge Ashman also ruled that EP's out-of-court statement was admissible under the "medical diagnosis or treatment" hearsay exception, the defense attorney had nothing to gain by calling the judge's attention to the fact that the Greenway "first complaint" rationale for admitting this evidence was no longer valid. However, as we have already explained, and as we explain again in more detail in the next section of this opinion, Judge Ashman did not rule that E.P.'s specific identification of Borchgrevink as her assailant was covered by the "medical diagnosis or treatment" hearsay exception. Rather, Judge Ashman declared that the pertinent information for diagnosis and treatment purposes was the fact that E.P. told the doctor that her assailant was an adult male. Thus, when Judge Ashman made his ruling on the admissibility of E.P.'s out-of-court statement, the judge relied on only one rationale-the Greenway "First complaint" rationale-as legal authority for introducing evidence that E.P. expressly identified Borchgrevink as her assailant. Given these cireumstances, we conclude that Borchgrevink failed to preserve the objection that "first complaint" evidence is admissible only if the victim testifies at the defendant's trial. We are therefore confronted with the question of whether we should treat this matter as "plain error". Because E.P. was not a witness at Borchgrevink's trial, the admission of "first complaint" evidence describing E.P.'s out-of-court identification of Borchgrevink as her assailant is an obvious error. However, under Alaska law, when a defendant presents a claim of plain error, the defendant must negate the possibility that their attorney's failure to make a timely objection in the trial court was the product of a tactical decision. Moreover, when the record is silent or ambiguous on this point, we apply a presumption that the defense attorney's action (or, more precisely, inaction) was tactical. Here, Borcehgrevink's attorney could reasonably conclude that it would be pointless to ask Judge Ashman to give a curative instruction to the jurors-i.e., an instruction directing the jurors to disregard the evidence that E.P. identified Borehgrevink as her assailant. And Borchgrevink's attorney had a plausible reason for not seeking a mistrial. The defense attorney had been successful in his effort to keep E.P. off the stand, on the ground of her incompetency to be a witness. Judge Ashman's decision to prohibit EP. from taking the stand could be viewed as unexpectedly favorable to the defense-because the transcript of E.P.'s voir dire shows that she apparently was a competent witness when she was asked about general topics. Judge Ashman ruled that E.P. was incompetent based on the fact that she either could not, or would not, answer questions that involved Borchgrevink. If the defense attorney asked for a mistrial under these cireumstances, he would run the risk that EP. would testify at Borchgre-vink's second trial-either because she would be older and more mature, or because she might have received counseling to help her cope with what had happened to her, or because the trial judge might not adopt the same view of what constituted incompetency for purposes of Evidence Rule 601. If EP. testified at Borchgrevink's second trial, the defense attorney would have to contend with the Greenway "first complaint" evidence all over again. But there was a more serious risk to the defense case if E.P. testified at the trial. First, E.P. might directly identify Borchgrevink as her assailant. Second, E.P. might declare (cither truthfully or not) that she no longer remembered the sexual assault; in that case, E.P.'s out-of-court statement would be admitted as a prior inconsistent statement under Alaska Evidence Rule 801(d)(1)(A). See United States v. Owens, 484 U.S. 554, 559, 108 S.Ct. 838, 842, 98 L.Ed.2d 951 (1988); Natkong v. State, 925 P.2d 672, 677-78 (Alaska App.1996); Van Hatten v. State, 666 P.2d 1047, 1051 (Alaska App.1983). And, under Alaska law, a witness's prior inconsistent statements are substantive evidence; that is, the jury may consider these statements for the truth of the matters asserted. Of course, we do not know what was running through the defense attorney's mind after Judge Ashman granted the defense attorney's request to declare E.P. incompetent as a witness. But there is at least one plausible tactical reason why an attorney in that position would not ask Judge Ashman to declare a mistrial, and would instead choose to let the trial proceed. This being so, Bor-chgrevink has failed to show that the admission of the "first complaint" evidence was plain error. (d) Summary of our decision regarding the "first complaint" evidence We conclude that "first complaint" evidence may include a victim's identification of the perpetrator, but we also conclude that a trial judge has the authority, under Evidence Rule 4083, to exclude this facet of the victim's first complaint if it appears likely that the jury will use this information for an improper purpose-i.e., treat it as substantive evidence of the defendant's guilt. First complaint evidence is not admissible at all unless the victim testifies at the defendant's trial. This rule was violated in Bor-chgrevink's case, but not because of an erroneous decision by the trial judge. When Judge Ashman issued his ruling on the admissibility of the first complaint evidence, it appeared that E.P. was going to be a witness at Borchgrevink's trial The problem of E.P.'s absence as a witness did not arise until several days later-when Judge Ashman granted the defense motion to declare E.P. incompetent to be a witness. At that point, the defense attorney might have sought a mistrial (since the challenged first complaint evidence had already been admitted). But the defense attorney did not seek a mistrial, or any other related relief, and the circumstances suggest that the defense attorney may have had a plausible tactical reason for letting the trial continue. We therefore conclude that, even though EP. did not testify at Borchgrevink's trial, the admission of the first complaint evidence was not plain error. Why we need not decide whether evidence that EP. identified Borchgrevink as her assailant was admissible under the "medical diagnosis or treatment" exception to the hearsay rule As we explained earlier, during the litigation of this case in the superior court, the State relied on two separate rationales for introducing EP's out-of-court statement identifying Borchgrevink as her assailant. We have already discussed one of these rationales: the "first complaint" doctrine. However, the State also relied on the theory that E.P.'s identification of Borchgrevink was admissible as an exception to the hearsay rule under Alaska Evidence Rule 808(4)-that is, as a statement made for purposes of medical diagnosis or treatment. The availability or unavailability of the declarant is irrelevant to the admissibility of an out-of-court statement under Evidence Rule 803(4). Indeed, courts have admitted hearsay under this exception even when the person who made the out-of-court statement was incompetent to testify. See Morgan v. Foretich, 846 F.2d 941, 948-49 (4th Cir.1988); United States v. Nick, 604 F.2d 1199, 1201-02 (9th Cir.1979). However, Borchgrevink argues that the "medical diagnosis or treatment" hearsay exception was not a proper ground for admitting evidence of E.P.'s out-of-court identification of Bor-chgrevink as her assailant. Borchgrevink points out that, normally, this hearsay exception does not extend to a patient's identification of the person who hurt them, or a patient's assertion of who was at fault in causing their injury. But in recent years, there has been significant judicial and academic discussion of whether the "medical diagnosis or treatment" hearsay exception should 'cover a young child's out-of-court statement concerning the identity of the person who has physically or sexually abused them. We noted this controversy in Sluka v. State, 717 P.2d 394, 399 & n. 3 (Alaska App.1986). The courts that have construed the "medical diagnosis or treatment" exeeption to cover a young victim's identification of their assailant have relied on the concept that doctors need to treat the psychological and emotional consequences of sexual abuse and child abuse, and that doctors need to know whether it is safe to send a child home. See United States v. Balfany, 965 F.2d 575, 579 (8th Cir.1992); United States v. George, 960 F.2d 97, 99-100 (9th Cir.1992); Morgan v. Foretich, 846 F.2d 941, 948-950 (4th Cir.1988); United States v. Lingle, 27 M.J. 704, 707 (Air Foree Ct. Military Rev.1988); United States v. Deland, 22 M.J. 70, 74-15 (C.M.A.1986); United States v. Renville, 779 F.2d 430, 436-37 (8th Cir.1985). See also United States v. Joe, 8 F.3d 1488, 1494-95 (10th Cir.1998) (relying on this same rationale to uphold the admission, under Federal Evidence Rule 803(4), of an adult woman's identification of her husband as the person who had subjected her to domestic abuse). The courts that reject this expansion of the "medical diagnosis or treatment" hearsay exception have analyzed the problem differently. These courts note that the underlying premise of the "medical diagnosis or treatment" exception is not that the information contained in the out-of-court statement is pertinent to medical diagnosis or treatment, but rather that the person who makes the out-of-court statement is presumably motivated to be truthful because they are seeking medical treatment either for themselves or for someone else (their child, their spouse, their aged parent, et cetera). Thus, the fact that the identity of a child's abuser may be pertinent to the diagnosis or treatment of the child's medical or psychological problems is irrelevant unless the child understands that this information is pertinent-so that they will be motivated to be truthful when they give this information. See State v. Hinnant, 351 N.C. 277, 523 S.E.2d 663, 668-671 (2000); Cassidy v. State, 74 Md.App. 1, 536 A.2d 666, 678-680 (1988). Borehgrevink's case does not require us to resolve this issue-hbecause, under the facts of this case, the issue is moot. A careful examination of Judge Ashman's decision regarding the admissibility of E.P.'s out-of-court statement shows that the judge did not rule that E.P.'s identification of Borchgre-vink was admissible under Evidence Rule 803(4). Rather, Judge Ashman ruled that E.P.'s identification of her assailant as an adult male was admissible under Rule 808(4). To recapitulate our earlier description of Judge Ashman's ruling on this issue, Judge Ashman found that when the emergency room physician questioned E.P., it was obvious that she had suffered genital injuries, but it was not clear whether those injuries were the result of a sexual assault, and (if so) whether that assault was performed with an adult male's penis or with some other object. For this reason, Judge Ashman concluded that the doctor's inquiry "Who hurt you?" was pertinent to medical diagnosis or treatment-because, if E.P.'s injuries resulted from sexual penetration by an adult male's penis, this information was relevant to the doctor's decisions concerning the course of treatment. At the same time, Judge Ashman acknowledged that the precise identity of E.P.'s assailant might not have been pertinent to the diagnosis or treatment of E.P.'s injuries. The judge stated that "a better question [for the doctor to ask] would have been, How did this happen?". However, Judge Ashman concluded that, to the extent the doctor's question "Who hurt you?" elicited information about the mechanism by which E.P. suffered the injuries to her genitals and perineum, E.P.'s response was covered by the "medical diagnosis or treatment" hearsay exception: The Court [The question] "Who hurt you?" could [elicit the responsel, "I hurt myself", or "Another kid hurt me"-which would suggest [that the] injury [was inflicted by] an object of some kind. [E.P.'s statement] that the assailant was an adult male, "Daddy", gave the doctor information that was relevant to the diagnosis [and treatment] of the injury, because [that type of] sexual assault carries with it medical consequences which differ from . other kinds of traumatic injury [to the genitals]. Thus, Judge Ashman did not rule that E.P.'s identification of Borchgrevink was admissible under Evidence Rule 808(4). Rather, he concluded that Rule 808(4) authorized the admission of a cireumsecribed aspect of EP's out-of-court statement: her identification of her assailant as an adult male. The limited nature of Judge Ashman's ruling on the "medical diagnosis or treatment" question seems to have been "lost in the shuffle", perhaps because the judge simultaneously ruled that E.P.'s identification of Borchgrevink was admissible under the "first complaint" evidence rule. Thus, the more limited admissibility of E.P.'s out-of-court statement under Rule 808(4) may not have appeared to be significant. But, for present purposes, the limited nature of Judge Ashman's ruling is significant: it means that the legal issue which the parties ask us to resolve was never decided in the superior court. Even though Judge Ash-man allowed the State to introduce evidence that E.P. identified Borchgrevink as her assailant, the judge did not base his ruling on a "statement for medical diagnosis or treatment" theory. Judge Ashman never reached the question of whether evidence of a child's out-of-court statement, made for purposes of medical diagnosis or treatment, may properly include the child's identification of their abuser. Accordingly, Borchgrevink's appeal does not require us to resolve that question. Borchgrevink raises another, broader issue in this appeal. He argues that, because E.P. was only two and a half years old when she suffered her injuries and was taken to the hospital, E.P. was too young to be aware that the questions put to her by the doctor were being asked for purposes of medical diagnosis or treatment-and, thus, the State failed to lay the foundation for admitting any of E.P.'s statements to the doctor. In raising this issue, Borchgrevink faces the procedural problem that his trial attorney did not present this argument to Judge Ashman. We acknowledge that the defense attorney did argue that E.P.'s identification of Bor-chgrevink was not admissible under the "medical diagnosis or treatment" hearsay exception because E.P. did not understand that information concerning the identity of her assailant would help the doctor and the nurse in their evaluation and treatment of her injuries. But Judge Ashman twice asked the defense attorney if he intended to make the broader argument that E.P. was too young to understand that any of the information she gave to the doctor and the nurse was being furnished for purposes of medical diagnosis or treatment-and, both times, the defense attorney declined to make that broader argument: The Court: Well, the two-prongled] test is that the [declarant] has to know that the statements are important for medical diagnosis or treatment, and that [the statements] are reasonable for the physician to rely on. Your position is [that] the two-year-old would not know that she was making a statement for purposes of medical treatment? Defense Attorney: Well, she's making an identification that is [not] necessary for medical treatment, and . The Court Your position is that [this] exception to the hearsay rule exists because we believe that people will not fabricate statements when [the statements are] being made for medical diagnostic purposes, because they'd have such a strong interest in giving accurate information. So your position is [that] the child couldn't have known what was going on? Defense Attorney: Well, she could not know [that] the identification promoted [or] furthered her medical treatment. (Emphases added) Thus, the argument that Borchgre-vink now makes on appeal-the argument that E.P. was too young to be aware that any of the fnformation she furnished to the doe-tor was intended for medical diagnosis or treatment-is not preserved for appeal. If Borchgrevink is to prevail on this claim, he must show plain error. In his brief, Borchgrevink asserts that there was no direct evidence presented to the superior court that E.P. understood the nature or purpose of her visit to the hospital. If that is so, it is because the defense attorney did not raise this issue or ask Judge Ashman to make any findings on this issue. Moreover, even though E.P. may not have been asked directly whether she understood that she had been brought to the hospital so that she could receive treatment for her injuries, there was plenty of cireumstantial evidence to support this inference. The injuries to E.P.'s head were obvious; it was the presence of those injuries that prompted E.P.'s mother to take her to be examined by her pediatrician, Dr. Ray Carlson. Dr. Carlson was concerned that E.P. might have a skull fracture, so he told E.P.'s mother to take her directly to the hospital emergency room. The emergency room nurse, Rachel Verba, took E.P. to the bathroom to get a urine sample, but E.P. was unable to urinate: she cried and said that it hurt her to urinate. At that point, Nurse Verba observed blood in E.P.'s diaper, so she took her straight in to see the emergency room physician, Dr. Robert Ledda. Based on Nurse Verba's report, Dr. Ledda examined E.P.'s labia and vaginal opening-where he found dried, erusted blood. Prompted by this discovery and by the obvious injuries to E.P 's head, Dr. Led-da asked E.P. who had hurt her in the head, and who had hurt her in the genital area. Given these cireumstances, it is reasonable to conclude that, even though E.P. was less than three years old, she understood that she was being examined by health care professionals, and that these health care professionals were interested in finding out about, and treating, her injuries. See also Broderick v. King's Way Assembly of God Church, 808 P.2d 1211, 1220 n. 20 (Alaska 1991); "When a three[-lyear[-lold girl complains of sexual abuse almost immediately upon being asked for the first time about improper touching, such a complaint has indicia of trustworthiness." In other words, even if Borehgrevink's attorney had challenged these foundational elements of the "medical diagnosis or treat ment" hearsay exception, a reasonable judge could have rejected the challenge. Accordingly, Judge Ashman did not commit plain error when he ruled that evidence of E.P.'s answers to the doctor's questions was admissible under the "medical diagnosis or treatment" hearsay exception. Conclusion The judgement of the superior court is AFFIRMED. . AS 11.41.200(a)(2)-(4), AS 11.41.410(a)(1), and AS 11.41.434(a)(1), respectively. . See State v. Troupe, 237 Comm. 284, 677 A.2d 917, 922 n. 7 (1996) ("Because [first complaint] testimony is admissible only to assist the jury in evaluating the credibility of the alleged victim and not to prove the truth of the facts recited, the doctrine, strictly speaking, is not a hearsay exception."); State v. Grady, 183 N.W.2d 707, 713 (Iowa 1971) ('The purpose of [first complaint] evidence is not to show the truth of the matter asserted in the utterance, but only that a complaint was uttered by the [victim]. The hearsay rule is not involved."); State v. Blohm, 281 N.W.2d 651, 652 (Minn.1979) ("[First complaint evidence is] not even hearsay under Rule 801(c), Rules of Evidence, since it [is] not admitted for the purpose of proving the truth of the matter asserted."). . See Vann v. State, 229 P.3d 197, 208-09 (Alaska App.2010); Guerre-Chaley v. State, 88 P.3d 539, 542 (Alaska App.2004); Commentary to Alaska Evidence Rule 703, fifth and sixth paragraphs. . See Broderick v. King's Way Assembly of God, 808 P.2d 1211, 1216 (Alaska 1991); Vann, 229 P.3d at 208-09; Guerre-Chaley, 88 P.3d at 541-42. . Compare United States v. Owens, 484 U.S. 554, 559, 108 S.Ct. 838, 842, 98 L.Ed.2d 951 (1988) (holding that the confrontation clause was not violated by the admission of an out-of-court identification made by the victim of an assault who, when called as a witness at trial, was unable to remember the occurrence due to brain injury); and Van Hatten v. State, 666 P.2d 1047, 1051-52 (Alaska App.1983) (upholding the admission of a witness's prior statement as a "prior inconsistent statement" after the witness-the defendant's stepdaughter-took the stand and falsely asserted that she had no memory of the events in question). . Vann v. State, 229 P.3d 197, 212 (Alaska App.2010). . Ibid. . Beavers v. State, 492 P.2d 88, 94 (Alaska 1971); State v. Batts, 195 P.3d 144, 158 (Alaska App. 2008); Commentary to Alaska Evidence Rule 801(d)(1)(A), third paragraph. . See Johnson v. State, 579 P.2d 20, 22 (Alaska 1978); Clark v. State, 199 P.3d 1203, 1205-06 (Alaska App.2009).

6990656

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

Howard v. State

2010-09-24

No. A-10312

426

431

239 P.3d 426

239

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

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

CAP

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

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

Michael D. HOWARD, Appellant, v. STATE of Alaska, Appellee. No. A-10312. Court of Appeals of Alaska. Sept. 24, 2010. Serena Green and Sarah T. White, Assistant Public Defenders, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee. Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.

2252

14188

OPINION MANNHEIMER, Judge. Michael D. Howard appeals his conviction for fourth-degree assault. Howard was con-viected of this crime based on evidence that he kicked another man in the face and ribs. Howard's defense at trial was self-defense; he presented evidence that the purported victim of the assault actually initiated the violence. The issue presented in this appeal is whether the trial judge acted properly when he allowed the State to rebut Howard's claim of self-defense by presenting evidence of Howard's character for violence, through the testimony of a local police officer. Under - Alaska - Evidence - Rule 404(a)(2), when a defendant who is on trial for a crime of violence offers evidence that the purported victim of the crime was the first aggressor (thus raising the issue of self-defense), the prosecution may rebut the claim of self-defense by offering evidence of "a relevant character trait of [the] accused"-normally, the defendant's character for violence. When the prosecution offers evidence of the defendant's character for violence under Evidence Rule 404(a)(2), the prosecution is not allowed to prove the defendant's character by introducing evidence of specific acts of violence committed by the defendant. Rather, the prosecution is limited to either (1) testimony concerning the defendant's reputation within a relevant community or group in which the defendant habitually associates, or (2) testimony of witnesses who know the defendant and have an opinion concerning the defendant's character for violence. See Alaska Evidence Rule 405(a). In the present case, the State presented the testimony of Craig Police Sergeant Robert Ely. Ely testified that he had known Howard for three years, since the time he began working as a police officer in Klawock and Craig. Ely stated that, in his opinion, Howard "can be a very aggressive individual". On appeal, Howard contends that the State failed to establish a sufficient evidentia-ry foundation for Sergeant Ely's testimony-i.e., failed to present evidence that Ely knew enough about Howard to form an opinion concerning his character for violence. However, in the district court, Howard did not object to Ely's testimony on this basis, nor did Howard ever ask the trial judge for permission to voir dire Ely on this issue. This claim is therefore not preserved for appeal. Nor do we find plain error. When the parties were litigating the question of whether Ely would be allowed to testify, Howard's attorney told the district court that Ely had been the investigating officer in Howard's previous criminal cases. This fact would seemingly support an inference that Ely was sufficiently acquainted with Howard to offer an opinion on Howard's character for aggressiveness or violence. Howard additionally contends that it was unfair to allow Ely to offer an opinion of Howard's character for violence because, if Howard's attorney wished to cross-examine Ely concerning the basis for this opinion, the defense attorney would run the risk of eliciting testimony concerning Howard's past crimes of violence. This may have been true, but it does not make Howard's situation unique. Any attorney (whether a prosecutor or defense attorney) would face the same dilemma when cross-examining any witness who (on direct examination) has offered an opinion concerning another person's character for violence. If the witness is cross-examined about the basis for their opinion, the witness is likely to offer testimony about their prior dealings with the person in question-i.e¢., testimony concerning instances in which the person demonstrated aggression or violence. This would be true regardless of whether those prior acts of violence led to criminal convie-tions (or even criminal prosecutions), and it would be true regardless of whether the character witness was a police officer or a civilian. Howard next argues that even if Ely's testimony was admissible under Evidence Rule 404(a)(2), the trial judge nevertheless failed to adequately investigate whether Ely's testimony should have been excluded under Evidence Rule 408 (¢.e., on the ground that its potential for unfair prejudice outweighed its probative value). See Evidence Rule 404(a)(2)(i). But the record shows that the trial judge did engage in this analysis. When the prosecutor indicated (before trial) that Ely would be called to testify about Howard's character for violence, Howard's attorney urged the trial judge (District Court Judge David V. George) to exclude the proposed testimony-not because it was irrelevant, but because it would be unduly prejudicial. The defense attorney argued that, since Craig and Klawock comprised such a small community, it would be obvious to the jurors that Ely gained his knowledge of Howard's character for violence through prior police contacts. Judge George recognized that the question before him was whether Ely's proposed testimony would be unfairly prejudicial. He noted that his task was "to identify [the] type of evidence [that Ely was]l going to [present], and put bounds on it." In its initial offer of proof, the State proposed to have Ely testify that Howard was an "extremely violent person" when he used drugs or alcohol. But Judge George told the prosecutor that Ely would not be allowed to characterize Howard as "violent"; instead, the judge directed Ely to use the word "aggressive". Moreover, Judge George precluded Ely from testifying about Howard's use of drugs or abuse of alcohol because "that [would] inject{ ] a whole nother prejudicial [aspect] into this [trial]; . folks don't love drugs here." Judge George also precluded Ely from testifying that he knew Howard through his work as a police officer. In other words, the record thus shows that Judge George weighed Ely's proposed testimony under Evidence Rule 408: the judge considered the testimony's potential for unfair prejudice, and he took affirmative steps to limit that prejudice. Howard argues, in one conclusory sentence, that the record fails to support Judge George's conclusion that Sergeant Ely's testimony (redacted in this manner) was more probative than prejudicial. When we review a trial judge's weighing of probative value versus potential for unfair prejudice under Evidence Rule 403, we review the judge's ruling under the "abuse of discretion" standard. The "abuse of discretion" standard is employed because this is the type of ruling where there is no "right" answer, and where reasonable judges, confronted with the same facts, might come to differing conclusions. Accordingly, we are to affirm the trial judge's ruling unless it is clearly untenable or unreasonable. Gonzales v. State, 691 P.2d 285, 286 (Alaska App.1984). Here, the record shows that Judge George engaged in a reasoned assessment of the proposed evidence. Howard has not established that Judge George abused his discretion. Our conclusion that Judge George did not abuse his discretion in this case should not be read as a blanket approval of the State's calling police officers or other justice system officials to testify about the character of a defendant. Indeed, in Hammer v. State, Alaska App. Memorandum Opinion No. 4716 (June 4, 2003), 2003 WL 21279539, we reversed a conviction because the State presented the defendant's probation officer as a character witness. In Hammer, we acknowledged that, because Hammer took the stand at his trial, "the State was undoubtedly entitled to attack Hammer's character for truthfulness by introducing reputation or opinion evidence under Rule 608(2)". Id. at *2. However, we concluded that "the fact that the State's character witness was Hammer's probation officer inherently created a substantial possibility of unfair prejudice" for two reasons: first, [because] Hammer's probation status meant that he had committed prior crimes"; and second, because "any juror familiar with the criminal justice system in this state [would have realized that] the fact that Hammer had an assigned probation officer (and was not simply on unsupervised probation) meant that he had been convicted of a felony, not a misdemeanor." Ibid. We further noted that "[tlhe State made no effort to show that [Hammer's] probation officer was the only witness (or even the only reasonably available witness) who could give an opinion concerning Hammer's character for truthfulness." Ibid. Based on these factors, we held that the trial judge abused his discretion under Alaska Evidence Rule 408 when he allowed the State to call Hammer's probation officer as a character witness. Ibid. Returning to the facts of the present case, the State's decision to call a police officer as a character witness at Howard's trial obviously raised the same concerns that we addressed in Hammer. - However, Howard's case is factually distinguishable from Hammer, in that the State's chosen witness was a police officer rather than a probation officer, In Hammer, we concluded that the jurors must have inferred that Hammer had committed erimes in the past if he had a probation officer. But in Howard's case, the State's character witness was a small-town police officer-and, for that reason, it is not so obvious that jurors would draw the infer ence that Howard had committed past crimes. First, because the cities of Craig and Kla-wock are relatively small, there was a reasonable possibility that Ely would be acquainted with Howard simply because they were residents of the same community, and not because Ely had come to know Howard through police business. As we have explained, Judge George took steps to heighten this inference when he precluded Ely from testifying that his knowledge of Howard arose from his work as a police officer. Second, even if we assume that the jurors surmised that Ely's acquaintance with Howard stemmed from Ely's work as a police officer, it would not necessarily follow that Howard had a record of past eriminal convictions, or even that Howard had been charged with breaking the law on past occasions. As the Missouri Supreme Court noted in State v. Reilly, 674 S.W.2d 530, 532-33 (Mo.1984), "It is well known that most police officers have a wide acquaintance among the citizenry in general[,] and the fact that a person is known to a police officer does not necessarily convey the impression that he has a criminal record." While the Missouri court's observation might be questionable in cases arising in a large city, we believe that the observation has considerable force in cases arising in small communities, like Craig and Klawock, where police officers are summoned to deal with many situations that do not involve criminal acts, or that do not lead to criminal charges, and where officers frequently come into contact with citizens outside of their police duties. Compare this Court's decision in Cruz, Reyes v. State, 74 P.3d 219, 225 (Alaska App.20083), where we found that even if the jurors recognized a witness as an Immigration and Naturalization officer, and even if the jurors surmised that the witness's acquaintance with the defendant stemmed from official INS business, it did not follow that the jurors would necessarily conclude that the official INS business involved misconduct on the part of defendant. For these reasons, we conclude that Howard has failed to show that Judge George acted unreasonably when he concluded that, despite Ely's identity as a police officer, Ely's testimony was more probative than prejudicial under Evidence Rule 403. Howard raises an additional argument: that Judge George should not have allowed Ely to testify while in uniform. Howard's attorney did raise this objection in the trial court, but we conclude that Judge George did not abuse his discretion when he overruled this objection. Howard's attorney had already conceded (indeed, had affirmatively relied on) the fact that the jurors lived in the same small community with Ely and would therefore inevitably know that he was a police officer. Consequently, there is no reason to believe that the jurors would have evaluated Ely's testimony any differently if he had appeared in court wearing plain clothes. Moreover, even though the prosecutor gave plenty of notice of the State's intention to have Sergeant Ely testify as a character witness, Howard's attorney did not raise the objection about Ely's wearing his police uniform until Ely actually appeared in court to give his testimony. Given these cireumstances, we find that Judge George did not abuse his discretion when he overruled Howard's objection. Finally, Howard argues that Ely's testimony should have been excluded under Evidence Rule 404(b)(1), the rule that forbids evidence of a person's other crimes or bad acts if that evidence is offered to prove (1) that the person characteristically engages in such acts, and thus (2) is likely to have acted true to character during the episode currently being litigated. Howard does not claim that Ely expressly referred to any of Howard's prior acts of violence. Moreover, as we noted before, Judge George did not allow Sergeant Ely to testify that he knew Howard through his work as a police officer. However, Howard again argues that it was implicit, from Ely's testimony, that Ely's knowledge of Howard was gained through police business, and that Howard must therefore have engaged in previous eriminal acts. Howard did not raise this argument in the district court, so he must show plain error. For the reasons we have already explained, we conclude that the jurors would not necessarily have drawn the prejudicial inferences that Howard proposes. Thus, Howard has failed to show plain error. Conclusion The judgement of the district court is AF-FTIRMED. . AS 11.41.230(a)(1), (3).

6991537

TARA U., Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee

Tara U. v. State, Department of Health & Social Services, Office of Children's Services

2010-09-03

No. S-13720

701

706

239 P.3d 701

239

Pacific Reporter 3d

Alaska Supreme Court

Alaska

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

CAP

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

TARA U., Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.

TARA U., Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee. No. S-13720. Supreme Court of Alaska. Sept. 3, 2010. Before: CARPENETI, Chief Justice, and FABE, WINFREE, and STOWERS, Justices.

2924

17660

Order IT IS ORDERED: 1. Tara U. is the mother of Molly, born April 2003, and Maggie, born February 2006 The girls' father is deceased. Molly and Maggie were both born with high levels of opiates in their systems. As a result, the State of Alaska Office of Children's Services (OCS) placed each of them directly after birth in the custody of their grandmother, Dalila, who shared a home with Tara. OCS provided Dalila with a care and safety plan after Maggie's birth. The plan specified that Tara was not to reside in the home and was not to have unsupervised contact with the girls, but Dalila did not follow the plan. OCS did not come to the home to follow up. 2. In July 2008 OCS received an unsubstantiated report that individuals in Tara's home were selling Oxycontin. In February 2006 Tara admitted that she was addicted to heroin. 3. On April 23, 2008, Tara was arrested and jailed for dealing heroin out of the home she shared with her children and Dalila. The police placed Molly and Maggie in emer-geney custody. This was the first time Tara's children had been taken into the legal custody of OCS. 4. OCS filed an emergency petition for adjudication of the girls as children in need of aid and for temporary custody. In May 2008 the girls were placed with their paternal aunt, Sarah, and OCS gained temporary custody. 5. In June 2008 OCS assigned Stephanie Shields, a permanency social worker, to the case. - Shields worked with a social worker at Hiland Mountain Correctional Center (Hi-land), where Tara was being held, who looked into available substance abuse assessments offered at the jail. Tara chose not to participate in Hiland's assessment because she would have to pay a fee, and she believed she could receive an assessment for free after her release from jail. Shields did not offer for OCS to help pay for Hiland's assessment. - Shields did not look into whether a mental health clinician worked at Hiland beyond asking the Hiland social worker whether services were available. 6. Tara was released from jail on bail to a third-party custodian in September 2008. 7. In an Order of Disposition issued in October 2008, the court committed the girls to OCS custody for up to two years. In February 2009, following a permanency hearing, the superior court determined that adoption was the appropriate permanent plan for the girls. 8. The court held a placement hearing in April 2009. OCS indicated its intention to have the girls adopted by their paternal cousin, Kate. Kate had participated in the girls' upbringing since their birth and hoped to adopt them. OCS planned to transfer the girls to Kate's custody when the school year ended. The aunt with whom the girls had been living chose not to be an adoptive placement because of her advanced age. The guardian ad litem (GAL) appointed for the girls testified that they wanted to go back to Dalila's, and presumably Tara's, care but that it was not in their best interests to go back. The court found that it was in the best interests of the children to be placed with Kate. 9. In June 2009 OCS filed a petition for termination of parental rights. 10. Tara returned to jail in July 2009 after allegedly violating a bail condition. 11. A new permanency social worker, Tamara Boeckman, was appointed on August 5, 2009, after Shields went on medical leave. Boeckman spoke with Tara on August 18 at Hiland, and Tara agreed to work a case plan. Boeckman sent Tara a packet for a telephonic substance abuse assessment. She determined that Tara was not eligible for Hiland's mental health assessment and would have to get one after she left custody. 12. The court held a termination hearing on September 3, 2009. At the February 2009 permanency and the September termination hearing, Shields testified that she had not met with Tara since her release from jail the previous September. She testified that she set up two appointments but Tara cancelled both because Tara "knew that her children should come first; however, right now she just needed to concentrate on her criminal case." Shields testified that she could not contact Tara because Tara left no number or address and Dalila claimed not to know how to find her. Shields testified that she chose not to look up the address of Tara's third-party custodian in the court file because Tara was not interested in working a case plan. The only times Shields saw Tara were at court proceedings. She did not attempt to go over Tara's case plan or provide her with referral information at those proceedings. 13. Shields further testified that she wanted Tara to complete a substance abuse assessment and mental health assessment. Tara occasionally called her, at which times Shields would ask Tara if she wanted to work a case plan. Shields testified that she "really wanted to be able to provide [Tara] whatever supports that she needed to be successful to address her needs in order to be able to parent," but that Tara "clearly stated . that she was not interested in case planning or being part of the case plan." She also testified that OCS would pay for a substance abuse assessment. She further testified: I kept offering and trying to engage [Taral. But if she continued to say, I'm not interested, I can't force her to work a plan to get her kids back. But I kept making the door open and I kept offering her. And any time that she would call and say, hey, I have, you know, this is going on with the visits, I certainly didn't hold that against her. I worked with her on that. So the door was definitely open. I kept, you know, asking if she wanted to work a plan, asking her if she was interested. 14. Tara testified at the termination hearing that initially she contacted Shields frequently but was discouraged by Shields's assertion that she would not get her children back. Tara testified that Shields was not helpful and did not provide her with information about mental health assessments or parenting classes. She testified that if her criminal case was resolved, she would work her case plan. 15. In an October 2009 Memorandum of Decision and Order the superior court, relying on testimony from both the permanency and termination proceedings, found that OCS proved by clear and convincing evidence that the girls were children in need of aid, that Tara had not remedied her conduct placing the children at substantial risk of harm, and that OCS had made reasonable efforts to provide remedial services. In evaluating whether OCS made reasonable efforts, the court took into account only the efforts made after OCS removed the girls from their home in April 2008. The court concluded that it could not take into account OCS's pre-removal actions. Despite Shields's failure to make reasonable efforts, the court found that OCS's overall post-removal efforts were reasonable because of Boeckman's later efforts and Tara's unwillingness to work her case plan. 16, The court made alternate findings that if it were legally able to consider OCS's entire history with the family, pre- and post-removal, then OCS failed to show by clear and convincing evidence that it made reasonable efforts. 17. The court also found that OCS proved by a preponderance of the evidence that termination of parental rights was in the best interests of the children. It balanced the harm that would arise from completely separating the girls from their mother, with whom they had a strong bond, against the girls' need for permanency and Tara's inability to provide it. It granted the petition for termination of parental rights. 18. Tara appeals the superior court's findings regarding reasonable efforts and best interests. Both OCS and the GAL argue that the superior court properly terminated Tara's parental rights. 19. We review a superior court's factual findings regarding termination of parental rights for clear error. [A] finding is clearly erroneous when a review of the entire record leaves us with a definite and firm conviction that the superior court has made a mistake. * We review de novo whether the superior court's findings satisfy applicable CINA statutes and rules, adopting "the rule of law that is most persuasive in light of precedent, reason, and policy." 20. A superior court must make four separate findings before terminating parental rights. In cases involving a non-Indian child, the court must find by clear and convincing evidence that (1) the child is a child in need of aid, as defined in AS 47.10.011; (2) the parent has not remedied the conduct or conditions that placed the child at substantial risk of harm; and (8) OCS has made reasonable efforts, as defined in AS 47.10.086, to reunify the child with the parent. The court must find by a preponderance of the evidence that (4) termination of parental rights is in the best interests of the child. 21. Tara does not contest that the girls were children in need of aid and that she failed to remedy the conduct or conditions placing them at substantial risk of harm. 22. We hold that it was legal error for the superior court to consider only OCS's post-removal efforts in its examination of whether OCS made reasonable efforts. We have stated that "[the reasonableness of the state's efforts 'must be viewed in light of the entire history of services that the state hals] already provided'" This history includes both pre-removal and post-removal efforts. 23. Because the superior court made alternate findings based upon the record as a whole, we would normally uphold those alternate findings absent clear error. In this case, however, the findings do not permit effective appellate review. In its two alternative conclusions, the superior court gave significantly different weight to the factors used in deciding whether OCS made reasonable efforts without explaining why the factors were weighted differently. When considering only the post-removal time period, the superior court found that OCS's efforts were reasonable. The court based this decision primarily on Tara's refusal to cooperate. Tt found that notwithstanding OCS's "dismissive approach," OCS's post-removal efforts were reasonable because "a case plan was actually prepared and provided to [Taral, and . efforts were made to communicate with her," but Tara refused to cooperate. When determining that OCS's efforts over the entire history of the case were unreasonable, though, the court based its decision primarily on OCS's lack of effort; it found that Tara's unwillingness to cooperate "was a factor that the department simply was required to confront" and that OCS failed to put forth the required sustained effort and follow-through. Because of the unexplained apparent inconsistencies in the weight placed on OCS's efforts and Tara's unwillingness to cooperate, we cannot effectively review the findings regarding reasonable efforts. 24. We consequently vacate the order terminating Tara's parental rights and remand for reconsideration of whether OCS made reasonable efforts. In doing so, the superior court must consider the totality of the cireumstances. It must look at OCS's entire history with the family, as well as the parent's level of cooperation with OCS's efforts, in determining whether OCS's efforts were reasonable. It must consider whether OCS fulfilled AS 47.10.086(a)'s requirement that OCS identify and actively offer the parent family support services. OCS can fulfill this requirement "by setting out the types of services that a parent should avail . herself of in a manner that allows the parent to utilize the services. The superior court should not base its reasonable efforts findings merely upon a mathematical tallying of the efforts by OCS and the parent, but rather upon a consideration of the totality of the circumstances. 25. The superior court, in its discretion, may take additional evidence to support its factual findings regarding whether OCS made reasonable efforts. 26. The superior court did not clearly err in finding that termination of Tara's parental rights was in the best interests of the children. It was not clear error for the court to find that Tara has not demonstrated an ability to properly care for the girls and that the permanency of an adoptive placement was in the girls' best interests. 27. We VACATE the superior court's order so far as it regarded OC's reasonable efforts and REMAND for additional findings of fact based upon the totality of the cireum-stances. Entered by direction of the court. CHRISTEN, Justice, not participating. FABE, Justice, dissenting. . Entered pursuant to Alaska R.App. P. 214. . We use pseudonyms throughout this order to protect the parties' privacy. . Frank E. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 77 P.3d 715, 717 (Alaska 2003). . Id. (quoting G.C. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 67 P.3d 648, 650-51 (Alaska 2003)). . Id. (quoting Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979)). . AS 47.10.088(a)(1); CINA Rule 18(c)(1)(4). . AS 47.10.088(a)(2); CINA Rule 18{c)(1}(A@)@-(ii). . AS 47.10.088(a)(3); CINA Rule 18(c)(2)(A). . CINA Rule 18(c)(3). . Audrey H. v. State, Office of Children's Servs., 188 P.3d 668, 678 (Alaska 2008) (quoting Erica A. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 66 P.3d 1, 7-8 (Alaska 2003)) (emphasis added); see also Neal M. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 214 P.3d 284, 293 (Alaska 2009) (in evaluating active efforts required for ICWA case, "[clourts . look to the state's involvement in its entirety" (internal quotations omitted)). . See Audrey H., 188 P.3d at 678-81; Erica A., 66 P.3d at 7-8. OCS and the GAL also argue that Tara is precluded from protesting OCS's pre-removal efforts because she did not object to them during the adjudication proceedings. This argument fails because "nothing resolved at the adjudication stage foreclose[s] a parent from fully litigating all relevant issues at the termination stage." D.M. v. State, Div. of Family & Youth Servs., 995 P.2d 205, 209 (Alaska 2000). . Cf. Park v. Park, 986 P.2d 205, 210-11 (Alaska 1999) (findings in child custody case insufficient {or effective appellate review because they forced supreme court to speculate as to what the superi- or court might have considered in making the findings). . Burke P. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 162 P.3d 1239, 1245 (Alaska 2007). . Frank E. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 77 P.3d 715, 720 (Alaska 2003).

10328474

STATE of Alaska, DEPARTMENT OF REVENUE, CHILD SUPPORT DIVISION, Appellant, v. William R. CARRICK, Appellee

State, Department of Revenue, Child Support Division v. Carrick

1996-09-20

No. S-6622

803

806

923 P.2d 803

923

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T16:59:37.070555+00:00

CAP

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

STATE of Alaska, DEPARTMENT OF REVENUE, CHILD SUPPORT DIVISION, Appellant, v. William R. CARRICK, Appellee.

STATE of Alaska, DEPARTMENT OF REVENUE, CHILD SUPPORT DIVISION, Appellant, v. William R. CARRICK, Appellee. No. S-6622. Supreme Court of Alaska. Sept. 20, 1996. Terisia K. Chleborad, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellant. No appearance for Appellee. Before COMPTON, C.J., RABINOWITZ, MATTHEWS and EASTAUGH, JJ., and SHORTELL, Justice Pro Tern. Sitting by assignment made pursuant to article . IV, section 16 of the Alaska Constitution.

1831

11350

OPINION PER CURIAM. I. INTRODUCTION The single issue presented in this appeal concerns the manner in which a noncustodial parent, William Carrick, can satisfy a combination of repayment obligations to the Child Support Enforcement Division (CSED) and a continuing support obligation to his minor son. The superior court essentially authorized William to pay a portion of these obligations directly to his former wife. The State questions this authorization and asserts that all monies owed by William must be routed through CSED as a matter of law. II. FACTS AND PROCEEDINGS Renee Carrick and William Carrick were divorced in October 1989. Renee assumed sole custody of their son. Renee had been receiving public assistance for the support of their son before the divorce and continues to receive support to the present. Subsequently it came to the attention of CSED that William, pursuant to a settlement agreement incorporated into their divorce decree, was not paying child support in accordance with the provisions of Civil Rule 90.3. CSED then filed a motion to require William to reimburse the State for past public assistance and also to modify William's support obligation to bring it in conformity with Civil Rule 90.3. The superior court entered an order on August 5,1994, requiring William to repay the State $3,000 for public assistance payments made to Renee between October 1988 and September 1993. The superior court's order set William's child support obligation at $460 a month commencing on October 1,1993. Beginning on November 1,1989, it appears that William provided that $100 of his veteran's benefits be paid directly to Renee each month. This direct monthly payment is the basis of CSED's attack on the superior court's order. In his initial report, the Master wrote in part: However, there was insufficient evidence as to how either the VA or Social Security Administration would view a support order directing the federal agencies to dispense monies in a certain way. The State's power to do that is uncertain. Rather, the more prudent means of dealing with support is for the court to just order Mr. Carrick to pay the $460.00 per month support and for him to arrange payment as best he can. Thereafter, in response to CSED's motion for clarification, the Master stated in part: Clarification was sought as to the phrase . " . for him to arrange payment as best he can." It means only that however he comes up with the $460.00 per month is his responsibility, but the bottom line is that is what he would owe. CSED objects to this arrangement, claiming "that the [$100.00 Veteran's Administration] payment should be routed through the CSED." CSED asks this court to reverse the superior court and order William to redirect the Department of Veteran's Administration to pay the $100 in veteran's benefits to CSED. Alternatively, CSED requests that William redirect the $100 in veteran's benefits to himself and in turn pay the $100 directly to it each month. III. DISCUSSION CSED commences its substantive argument by noting that its entitlement to reimbursement for past and ongoing public assistance paid to Renee is established under State, Child Support Enforcement Division v. Gammons, 774 P.2d 181 (Alaska 1989). CSED also points to AS 47.25.345, which provides that a custodial parent who receives public assistance for a minor child assigns all right to support, from all sources, to the State as a condition of accepting public assistance. CSED next relies on the text of AS 25.27.080(a), which provides that [a] court order requiring payment of child support shall be modified to order payments be made to the agency [CSED] upon application. Finally CSED argues that [t]he state should be able to receive $360 a month from Mr. Carrick and $100 a month from the VA to pay towards the child support debt. When money is routed through CSED, the payments can properly be allocated to Mrs. Carrick and to offset the public assistance paid for Will Carrick. Since the trial court's decision does not require that the payments be routed through CSED, the state is effectively denied reimbursement for public assistance. CSED needs assistance from the court to reroute the payment of Mr. Carrick's veteran's disability benefits through the agency. The United States Code exempts Mr. Carrick's veteran's benefits from being attached, levied, or seized through any legal process. See 38 U.S.C. § 5301(a). Consequently, CSED cannot attach the veteran's benefits directly. Unfortunately, CSED has failed to inform this court of the procedural steps by which the custodial parent in this ease obtained the $100 monthly direct payments from the Department of Veteran's Affairs. More importantly, CSED has not apprised this court if there are existing procedures by which the veteran can redirect the monthly $100 payments to CSED or to himself for payments directly to CSED. Prior to entering an order requiring William to redirect the payments, this court must be satisfied that he has the authority to do so. Based upon the record before us, we are unable to ascertain whether or not this is the case. Therefore, we decline to resolve the specific issue of redirection of the payments at this time. With respect to the closely related issue of whether or not William should be credited for the $100 payments, we note only that in the event that William is not able to redirect the payments, we would be inclined to credit his obligation with these amounts. This result is compatible with Miller v. Miller, 890 P.2d 574, 576-77 (Alaska 1995), where we held that a noncustodial parent is entitled to credit against his support obligation for social security insurance benefits the child receives on the parent's behalf as part of the parent's retirement benefits. Until such time as an adequate showing is made by CSED regarding the feasibility of redirecting the veteran's benefits, the $100 payments shall accordingly be credited against William's $460 per month current obligation. We note, however, that AS 25.27.080(a) does entitle CSED to an order requiring that all payments made by William personally be routed through the agency. The superior court's orders must be modified on remand to reflect this requirement. IV. CONCLUSION This case is accordingly REMANDED to the superior court for modification of its support orders and for further proceedings not inconsistent with this opinion. FABE, J., not participating. . CSED formulated the issue before this court as follows: "Where a noncustodial parent is obligated to repay the state for public assistance paid for the benefit of his child, did the superior court err when it held that the [non]custodial parent's child support obligation could be partially satisfied by payments made directly to the custodial parent?" . As to child support the settlement agreement states: The mother currently receives social security payments and payments from the Veteran's Administration. The social security administration and the veteran's administration pays to the wife a dependent's share of the social security and veteran's administration payments. The husband agrees that these payments shall continue and he shall not in any way interfere with them and shall do all things necessary to make sure and certain that the dependent payments from social security and veteran's administration are paid to the wife for the benefit of the minor issue. The parties agree that these payments shall be in place of and instead of Civil Rule 90.3. However, the parties agree that should the husband become employed on a full-time basis, the wife reserves the right to ask for and request child support payments pursuant to Civil Rule 90.3. . The fact and extent of William's liability to reimburse the State were never appealed. Nor did William appeal the superior court's determination that pursuant to Civil Rule 90.3 his monthly child support obligation is $460. . A letter from the Department of Veteran's Affairs states the following: This certifies the records of the U.S. Department of Veterans Affairs (VA) indicate Mr. William R. Carrick has provided payment of $100.00 per month to Renee Carrick, custodian of Will E. Carrick. This $100.00 has been made monthly since November 1, 1989. Mr. William R. Carrick currently receives a total of [$]1,649.00 from this department, and $100.00 is deducted from the [$] 1,649.00 amount. 5. The superior court subsequently approved both the Master's report and the Master's clarification of his interim report. . See AS 25.27.120(a), which provides in part: An obligor is liable to the state in the amount of assistance granted under AS 47.07 and AS 47.25.310 — 47.25.420 to a child to whom the obligor owes a duty of support except that, if a support order has been entered, the liability of the obligor for assistance granted under AS 47.25.310 — 47.25.420 may not exceed the amount of support provided for in the support order, and, if a medical order of support has been entered, the liability of the obligor for assistance granted under AS 47.07 may not exceed the amount of support provided for in the medical order of support. . AS 47.25.345 reads as follows: An applicant for or recipient of assistance under AS 47.25.310 — 47.25.420 is considered to have assigned to the state, through the child support enforcement agency, all rights to accrued and continuing support that the applicant and other persons for whom assistance is sought may have from all sources. The assignment takes effect upon a determination that the applicant is eligible for assistance under AS 47.25.310 — 47.25.420. Except with respect to the amount of any unpaid support obligation accrued under the assignment, the assignment terminates when the applicant ceases to receive assistance. 8.CSED further argues that in conjunction with AS 25.27.080(a), the provisions of AS 25.27.020(b) contemplate that all support payments should be paid through CSED where public assistance has been or is being paid for the benefit of the obligor's children. AS 25.27.020(b) reads in full as follows: In determining the amount of money an obli-gor must pay to satisfy the obligor's immediate duty of support, the agency shall consider all payments made by obligor directly to the obli-gee or to the obligee's custodian before the time the obligor is ordered to make payments through the agency. After the obligor is ordered to make payments through the agency, the agency may not consider direct payments made to the obligee or the obligee's custodian unless the obligor provides clear and convincing evidence of the payment. . AS 25.27.020(b) provides for recognition of direct payments from the obligor to the obligee even in the face of an order to make payments through the agency, provided the obligor "provides clear and convincing evidence of the payment."

10394158

Steven K. MURPHY, Appellant, v. CITY OF WRANGELL and William Klein, Appellees

Murphy v. City of Wrangell

1988-10-21

No. S-2479

229

234

763 P.2d 229

763

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T16:59:32.179770+00:00

CAP

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

Steven K. MURPHY, Appellant, v. CITY OF WRANGELL and William Klein, Appellees.

Steven K. MURPHY, Appellant, v. CITY OF WRANGELL and William Klein, Appellees. No. S-2479. Supreme Court of Alaska. Oct. 21, 1988. Rehearing Denied Dec. 23, 1988. Michael J. Zelensky, Whittaker & Zelen-sky, Ketchikan, for appellant. Brian E. Hanson and Edward A. Stahla, Law Offices of Edward A. Stahla, Sitka, for appellees. Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.

2702

16017

OPINION RABINO WITZ, Justice. This appeal presents the question of whether a person imprisoned for refusal to pay a fine is entitled to "good time" reductions to his sentence. Facts and Proceedings. Steven K. Murphy was convicted, after a jury trial, of disposing of domestic waste-water on state lands without a permit. He was sentenced to thirty days imprisonment, all of which was suspended, and fined $1,000. After proceedings which were held in conformity with AS 12.55.051(a) the magistrate entered a finding that Murphy intentionally refused to pay the fine despite his ability to do so. As authorized by AS 12.55.051(a), the court sentenced him to imprisonment as follows: STEVEN K. MURPHY is hereby committed to the custody of the Department of Corrections to serve twenty (20) days. The twenty (20) days are to be served on weekends from 4:00 P.M. Friday to 6:00 A.M. Monday. Defendant will begin weekend service of jail time on January 18, 1985 and serve five (5) consecutive weekends. After serving his full sentence, Murphy filed the instant lawsuit against the City of Wrangell and Police Chief William Klein, alleging that he was entitled to a "good time" reduction in his sentence under AS 33.20.010. He seeks compensatory damages for lost wages as well as punitive damages. The superior court granted summary judgment in favor of the City and William Klein dismissing Murphy's complaint. The superior court further awarded the City and Klein $3,500 in attorney's fees. The court subsequently denied a motion for reconsideration. Murphy appeals both the summary judgment and the award of attorney's fees. 1. WAS MURPHY ENTITLED TO A GOOD TIME REDUCTION? The right to good time reduction is created by statute and does not derive from either the federal or state constitution. Thus, the issue in the case at bar is purely a question of statutory interpretation. "In accomplishing this task our primary guide is the language used, construed in light of the' purpose of the enactment." Commercial Fisheries Entry Comm'n v. Apokedak, 680 P.2d 486, 489-90 (Alaska 1984). "[I]f the language of a statute is unambiguous and expresses the intention of the legislature, it should not be modified or extended by judicial construction." State, Dep't of Natural Resources v. City of Haines, 627 P.2d 1047, 1049 n. 6 (Alaska 1981). Alaska Statute 33.20.010 guarantees good time reductions only to prisoners "convicted of an offense against the state and sentenced to imprisonment." Thus, the question in this case, as acknowledged by all parties, is whether the failure to pay a fine is "an offense against the state." The term "offense" is not defined for purposes of this statute. "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." State, Dep't of Revenue v. Debenham Elec. Supply Co., 612 P.2d 1001, 1002 (Alaska 1980); see AS 01.10.040. Failure to pay a fine imposed as a sentence for a criminal conviction is not within the common understanding of the word "offense." For example, Black's defines offense: "A felony or misdemeanor; a breach of the criminal laws." Black's Law Dictionary 975 (5th ed. 1979). Similarly, Webster's defines the word: "an infraction of law: crime, misdemeanor." Webster's Third New International Dictionary, Unabridged 1566 (1961). Since the failure to pay a fine is not commonly understood as a breach of any criminal law, a misdemeanor or a felony, it is not an "offense" within the meaning of AS 33.20.010. The superior court concluded that "AS 12.55.051(a) is a species of the law of contempt" and not an offense against the state. We think that this is an accurate depiction of the statute. As with contempt, the prisoner always has the option to be released immediately by complying with the court's order. Under AS 12.55.051(a), the court may imprison a recalcitrant defendant for up to one day for each fifty dollars of the fine unpaid, but the defendant may at any time pay off the fine, with credit accrued for the time served, to earn his release. As the court of appeals has noted, AS 12.55.051(a) is a "method for dealing with enforcement of court orders . " Lominac v. Municipality of Anchorage, 658 P.2d 792, 794 (Alaska App. 1983). We therefore agree with the superi- or court that refusal to pay a fine is like a contempt of the court, not an offense against the state. Accordingly, the way to shorten a sentence is to comply with the court order, and not to seek reductions for good time. Granting good time reductions would be the practical equivalent of lowering the fine, which would defeat the coercive purpose of AS 12.55.051(a). Murphy argues that the purpose of good time reductions under AS 33.20.010 is best served by granting them to defendants imprisoned for nonpayment of fines. He cites the following statement of purpose: The credits are said to be in the nature of a payment or reward by the state to the convict for his good behavior, in order to stimulate him to conform to the rules of the institution and to avoid the commission of crimes and misdemeanors during his imprisonment. Such statutes are prompted by the highest motives of humanity, and are generally looked on with favor both by state and federal legislatures. 60 Am.Jur.2d Penal and Correctional Institutions § 222 (1987) (footnotes omitted). It is true that all prisoners, including those imprisoned for nonpayment of fines, would likely be induced to behave well if offered good time reductions, serving the purposes of AS 33.20.010. However, it does not follow that all prisoners are entitled to the benefits of the statute. The statute is explicitly limited to those imprisoned for "of-fensefs] against the state." As discussed above, consistent with the common understanding of the word "offense" and the legislative purpose of AS 12.55.051(a), imprisonment for nonpayment of fines cannot be brought within the plain language of AS 33.20.010. II. WAS THE AWARD OF ATTORNEY'S FEES PROPER? Murphy argues first that fees should not be awarded against him because he is a public interest litigant. See Southeast Alaska Conservation Council v. State, 665 P.2d 544, 552-54 (Alaska 1983). The superior court implicitly rejected this argument by awarding fees against him. We affirm the superior court's award of $3,500 in attorney's fees. It is an abuse of discretion to award attorney's fees against a public interest litigant. Id. at 553. A party must satisfy four criteria to be deemed a public interest litigant: (1) Is the case designed to effectuate strong public policies? (2) If the plaintiff succeeds will numerous people receive benefits from the lawsuit? (3) Can only a private party have been expected to bring the suit? (4) Would the purported public interest litigant have sufficient economic incentive to file suit even if the action involved only narrow issues lacking general importance? Id. We will review the superior court's evaluation of the litigant's public interest status under the abuse of discretion standard. Citizens for the Preservation of the Kenai River v. Sheffield, 758 P.2d 624 (Alaska 1988). Assuming that Murphy satisfies the first three criteria, we are of the view that it was not an abuse of discretion for the superior court to find that he was not a public interest litigant because of the fourth criterion. If Murphy were entitled to good time reductions, he could potentially have been released about 77 hours earlier. Since this time would be on weekends, it would not conflict with his regular job. Thus, it is likely that his compensatory damages would have been quite small. Murphy also sought punitive damages in an unspecified amount. He now claims that these damages would have been at the most "in the low four figures." Accordingly, it might appear that Murphy lacked sufficient economic incentive to bring this lawsuit. However, in our view there are at least two reasons to conclude that the superior court's ruling was not an abuse of discretion on the ground of adequate economic incentive. First, it is reasonable to assume that a court might award large punitive damages in favor of a plaintiff who was held in prison illegally for 77 hours. Second, Murphy brought his action in the superior court. At the time he filed his complaint, actions for damages of less than $25,000 could not be filed in the superior court, but had to be filed' in the district court. Former AS 22.15.030(a)(1), .030(b), ch. 17, § 3, SLA 1985; AS 22.10.020(a). We assume that the action was properly filed, in which case Murphy must have been seeking damages greater than $25,-000. This would clearly give him adequate economic incentive to bring the action without regard to the public interest. Murphy next argues that the $3,500 fee award was unreasonable because it was out of proportion to the amount of money in controversy. We hold the award was not an abuse of discretion for the following reasons. First, as discussed above, there was potentially a significant amount of money at stake in regard to the punitive damages claim. Sec ond, the City had an important policy to uphold with ramifications beyond the instant case. Finally, the amount of damages and the importance of policies underlying the case are not determinative of the reasonableness of the fees. Civil Rule 82(a)(2) provides: In actions where the money judgment is not an accurate criteria [sic] for determining the fee to be allowed to the prevailing side, the court shall award a fee commensurate with the amount and value of legal services rendered. The City sought over $5,000 in actual fees for 58.5 hours of attorney time. The court awarded partial fees of $3,500. Murphy does not contend that the attorneys billed too many hours or charged too high an hourly rate. Under these circumstances, the fees were not unreasonable and the award was not an abuse of discretion. AFFIRMED. . Alaska Statute 12.55.051(a) provides: If the defendant defaults in the payment of a fine or any installment or of restitution or any installment, the court may order the defendant to show cause why the defendant should not be sentenced to imprisonment for nonpayment. If the court finds by a preponderance of the evidence that the default was attributable to an intentional refusal or failure to make a good faith effort to pay the fine or restitution, the court may order the defendant imprisoned until the order of the court is satisfied. A term of imprisonment imposed under this section may not exceed one day for each $50 of the unpaid portion of the fine or restitution or one year, whichever is shorter. Credit shall be given toward satisfaction of the order of the court for every day a person is incarcerated for nonpayment of a fine or restitution. . Murphy refused to pay the fine as.a matter of principle. In the superior court he wrote that "[h]e opposed connection to the Wrangell City sewer system because it failed to function to remove his wastewater and in fact, in his neighborhood, backed up in the sewer line." He therefore continued to dump his waste on state land because hooking up to the sewer system would be "a futile act." . Although the sentence purported to be for twenty days, the actual time provided for was only 310 hours, or slightly less than thirteen days. For sentences of thirty days or less, the Department of Corrections converts the number of days to hours. All parties agree that Murphy was required to serve only 310 hours, as provided for by the specific terms of the order, and not the 480 hours he would have had to serve if the twenty-day sentence had not provided for specific hours and days of incarceration. . At the time Murphy was sentenced and served his time, AS 33.20.010 provided: Notwithstanding AS 12.55.125(f)(3) and (g)(3), each prisoner convicted of an offense against the state and sentenced to imprisonment, whose record of conduct shows that he has faithfully observed the rules of the institution in which he is confined, is entitled to a deduction from his term of imprisonment of one day for every three days of good conduct served. Ch. 166, § 17, SLA 1978. The statute was amended in 1986. Ch. 11, § 1, SLA 1986. . See supra note 1. . For purposes of Title 11 of the Alaska Statutes, which contains Alaska's criminal law, " 'offense' means conduct for which a sentence of imprisonment or fine is authorized; an offense is either a crime or a violation." AS 11.81.-900(b)(33). "'[C]rime' means an offense for which a sentence of imprisonment is authorized; a crime is either a felony or a misdemeanor." AS 11.81.900(b)(9). "'[V]iolation' is a noncriminal offense punishable only by a fine, but not by imprisonment or other penalty; ." AS 11.81.900(b)(56). One could read these definitions to include nonpayment of a fine within the definition of "offense." Deliberate refusal to pay a fine is "conduct for which a sentence of imprisonment . is authorized" pursuant to AS 12.55.051(a), meeting the definition of offense in AS 11.81.-900(b)(33). The imprisonment authorized could make the conduct by definition a misdemeanor, hence a crime, hence an offense. However, these definitions by the terms of the statute apply only to Title 11 and thus not to AS 33.20.010. In interpreting the latter statute, we therefore interpret "offense against the state" according to its common usage. . Finally, Murphy argues that a 1960 New York trial court decision is persuasive. See New York ex rel. Foley v. Dros, 24 Misc.2d 44, 202 N.Y.S.2d 741 (N.Y.Sup.1960). In that case the petitioner was imprisoned for failure to comply with support orders of the domestic relations court. Id. 202 N.Y.S.2d at 742. The court ordered that since he was treated as a criminal prisoner, he was entitled to good time reductions. Id. 202 N.Y.S.2d at 743. The opinion in that case does not analyze the language of any statutes similar to AS 12.55.051(a) or AS 33.20.010, and thus it is not persuasive in this case. .Murphy, appearing pro se, did not explicitly raise this argument in the superior court. However, in opposing the fee award he asserted that he "brought this action in good faith and as a citizen to correct a governmental wrong" and that the case raised "a matter to concern the courts, the department of corrections, and all citizens." This court has held that "the pleadings of pro se litigants should be held to less stringent standards than those of lawyers." Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987), cert. denied, — U.S. -, 108 S.Ct. 1579, 99 L.Ed.2d 894 (1988). For this reason, we believe that Murphy's opposition in the superior court was adequate to assert his status as a public interest litigant. . This is one-fourth of the 310 hours of his sentence. . Murphy claims that his compensatory damages would have been only about $150, but this figure did not appear in his complaint or any other pleadings until he was opposing the attorney's fees. . The jurisdictional amount is now $35,000. AS 22.15.030(a)(1), .030(b); AS 22.10.020(a). . Murphy also argues that the attorney's fees should be reversed because the motion for fees was not filed within ten days of the judgment. Under Civil Rule 79(a), a cost bill must be filed within ten days. This court has held that attorney's fees are not covered by the literal requirements of Rule 79, and that "[i]t is within the discretion of the trial court to impose a time limit for the filing for attorney's fees." State v. University of Alaska, 624 P.2d 807, 817 (Alaska 1981). Moreover, Mtr.phy did not raise this point in the superior court.

10312531

CAPITAL INFORMATION GROUP, a sole proprietorship, and Gregg Erickson, individually, Appellants, v. STATE of Alaska, OFFICE OF the GOVERNOR, a unit of the executive branch of state government, Kris W. Lethin, individually and in his capacity as Legislative Liaison to the Governor; Shelby Stastny, individually and in his capacity as Director of the Office of Management and Budget in the Office of the Governor; and Patrick P. Ryan, individually and in his capacity as Chief of Staff to the Governor, Appellees

Capital Information Group v. State, Office of the Governor

1996-08-16

No. S-6443

29

41

923 P.2d 29

923

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T16:59:37.070555+00:00

CAP

Before RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

CAPITAL INFORMATION GROUP, a sole proprietorship, and Gregg Erickson, individually, Appellants, v. STATE of Alaska, OFFICE OF the GOVERNOR, a unit of the executive branch of state government, Kris W. Lethin, individually and in his capacity as Legislative Liaison to the Governor; Shelby Stastny, individually and in his capacity as Director of the Office of Management and Budget in the Office of the Governor; and Patrick P. Ryan, individually and in his capacity as Chief of Staff to the Governor, Appellees.

CAPITAL INFORMATION GROUP, a sole proprietorship, and Gregg Erickson, individually, Appellants, v. STATE of Alaska, OFFICE OF the GOVERNOR, a unit of the executive branch of state government, Kris W. Lethin, individually and in his capacity as Legislative Liaison to the Governor; Shelby Stastny, individually and in his capacity as Director of the Office of Management and Budget in the Office of the Governor; and Patrick P. Ryan, individually and in his capacity as Chief of Staff to the Governor, Appellees. No. S-6443. Supreme Court of Alaska. Aug. 16, 1996. Jeffrey W. Bush, Juneau, Douglas Pope, Pope & Katcher, Anchorage, for Appellants. Barbara J. Ritchie, Deputy Attorney General, Bruce M. Botelho, Attorney General, Juneau, for Appellees. Before RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

6763

43907

OPINION MATTHEWS, Justice. I. INTRODUCTION This case involves a news publisher's claim that the Governor and the executive branch are unlawfully withholding documents from the public. The superior court held that the documents were protected by the deliberative process privilege. The publisher appeals that decision, as well- as the superior court judge's refusal to disqualify himself. II. FACTS AND PROCEEDINGS The Capital Information Group (CIG) is a news organization that publishes periodicals describing the activities of the Alaska state government. It is owned by Judy Erickson, appellant Gregg Erickson's wife. Gregg Erickson is the editor of one of CIG's publications, the Alaska Budget Report (ABR). In Erickson's words, ABR covers "the action of the legislature and the administration on budget spending and revenue, and specifically . cover[s] the activities of the finance committees, OMB, and the governor's office as they relate to the formulation and adoption of the spending and collecting of state money." During the legislative session, ABR is published weekly; it is published once every two months during the rest of the year. Approximately twenty to twenty-five groups subscribe to ABR, including news and media organizations, government agencies, lobbyists, legislators, corporations, non-profit organizations, and local governments. Since its inception in 1986, CIG has received information for its newsletters directly from the government by making verbal requests. Until Erickson sought the information that is the subject of this suit, the government usually complied. At issue in this ease are two sets of documents. The first set of documents consists of the budget proposals sent from each executive department commissioner to the Office of Management and Budget (OMB). In the summer of 1998, the Governor began working on his proposed 1995 operating budget. To facilitate this work, OMB director Shelby Stastny sent to the commissioner of each state department a memorandum which stated: [E]ach department's [fiscal year 1995 ("FY 95") ] operating budget will reflect the funding level set early in the budget process. To develop this level for FY 95, the Governor will provide each commissioner with an allocation. You will then prepare a memorandum in which you will discuss the programmatic impact the allocation will have on services which the department is providing this current fiscal year. In addition, the memorandum should briefly discuss any potential legislation which could be important in meeting the department's FY 95 obligations. The second set of documents contains each department's proposals for new legislation sent to the Governor's Legislative Liaison. During the summer of 1993 the Governor was also preparing the legislation he would introduce during the 1994 legislative session. To facilitate this, his Legislative Liaison, Kris Lethin, sent each department commissioner a letter requesting proposals for legislation. Erickson, after learning of Stastny's request, wished to examine the correspondence from each department commissioner to OMB regarding the budget. He also requested from Lethin the legislation proposed by each department commissioner. When his verbal requests went unanswered, Erickson made a written request for this information. Both Stastny and Lethin, on the advice of the Department of Law, denied Erickson's requests. Stastny provided Erickson with the letter he sent each commissioner, and the spreadsheet used to provide each department with an initial budget target. He claimed all other documents regarding the budget were protected by the deliberative process privilege. Lethin also claimed that all documents pertaining to proposed legislation were protected by the deliberative process privilege. Erickson appealed the denials to the Governor's Chief of Staff, but the denials were upheld, based on the deliberative process privilege. In response, CIG filed this suit. CIG requested declaratory and injunctive relief, as well as punitive damages. CIG also filed a motion for a preliminary injunction or partial summary judgment requesting imme diate access to the documents in question. The superior court denied CIG's motion as well as a motion for reconsideration; this court denied a petition for review of those orders. Case No. S-6057. CIG then amended its complaint and added a claim for compensatory damages for lost business. Shortly after its motion for a preliminary injunction was denied, CIG filed a motion requesting Judge Pegues to disqualify himself under Alaska Code of Judicial Conduct, Canon 3C(l)(a) and (b). Judge Pegues denied this motion, as did Judge Thomas M. Jahnke upon review under AS 22.20.020(c). The court entered an order requiring that the State submit the records requested by CIG. The State submitted the documents for in camera review. The State and CIG then filed cross-motions for summary judgment, although CIG's motion was only for partial summary judgment, reserving the issue of damages. The superior court granted the State's motion for summary judgment based on the deliberative process privilege, and denied CIG's cross-motion for partial summary judgment. CIG appeals both the summary judgment order and Judge Pegues's refusal to disqualify himself. III. DISCUSSION A. Did the Superior Court Err in Finding that the Documents in Question Were Protected by the Deliberative Process Privilege? 1. The Alaska public records statute Alaska's public records statute, AS 09.25.100-220, states that, "[ujnless specifically provided otherwise, the public records of all public agencies are open to inspection by the public under reasonable rules during regular office hours." AS 09.25.110(a). The statute also states that "[ejvery person has a right to inspect a public record . except . (4) records required to be kept confidential by a federal law or regulation or by state law." AS 09.25.120(a). In the most recent amendment to the statute, the legislature added a legislative findings and intent section. The legislature stated that "public access to government information is a fundamental right that operates to check and balance the actions of elected and appointed officials and to maintain citizen control of government." Ch. 200, § 1, SLA 1990. This court has interpreted the statute several times, and has repeatedly articulated that exceptions to the disclosure requirement should be construed narrowly to further the legislature's goal of broad public access. Municipality of Anchorage v. Anchorage Daily News, 794 P.2d 584, 589 (Alaska 1990); Doe v. Alaska Superior Court, 721 P.2d 617, 622 (Alaska 1986). We have, however, recognized that an "executive privilege" may, in some cases, require that a record be kept confidential. Doe, 721 P.2d at 622-23. At issue in this case is whether the requested documents are exempted from the general public disclosure requirements under the deliberative process privilege. 2. The deliberative process privilege The deliberative process privilege "is a widely recognized confidentiality privilege asserted by executive officials. It rests on the ground that public disclosure would deter the open exchange of opinions and reeommendations between government officials _[and] is intended to protect the executive decision-making process, its consultative functions, and the quality of its decisions." Natalie A. Finkelman, Note, Evidence and Constitutional Law, 61 Temp.L.Rev. 1015, 1033 (1988). This court has never explicitly adopted the deliberative process privilege by that name. We have, however, accepted the "executive privilege" articulated in United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), which encompasses the same policy concerns. Doe, 721 P.2d at 622-23. This privilege "recognizes that a chief executive has a qualified power to keep confidential certain internal governmental communications so as to protect the deliberative and mental processes of deci-sionmakers." Id. Thus, the term "executive privilege" in Doe encompasses what other commentators have called the deliberative process privilege. We consider the terms to be synonymous for purposes of this discussion. The origin of the deliberative process privilege can be summarized as follows: The deliberative process privilege itself can be directly traced to 'two relatively recent decisions. In 1938 the Supreme Court protected the mental processes of government decisionmakers in Morgan v. United States [304 U.S. 1, 58 S.Ct. 773, 82 L.Ed. 1129 ]. Then, in 1958 Justice Reed built on Morgan when, sitting on the Court of Claims by designation, he decided Kaiser Aluminum & Chemical Corp. v. United States [141 Ct.Cl. 38, 157 F.Supp. 939 ]. Justice Reed considered in Kaiser whether internal government documents must be disclosed. He recognized the need for open, frank discussions among government officials about proposed or contemplated action. He believed disclosure of official deliberations would inhibit those discussions, invade the mental processes of government officials, and adversely affect the quality of administrative decisionmaking. Accordingly, he held that a document containing deliberative process information was privileged and need not be disclosed. Russell L. Weaver & James T.R. Jones, The Deliberative Process Privilege, 54 Mo.L.Rev. 279, 286-88 (1989) (footnotes omitted) (hereinafter Weaver & Jones). A limited deliberative process privilege, labeled the "executive privilege," was adopted by the United States Supreme Court in United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). Unlike the common law based deliberative process privilege discussed above, the executive privilege in Nixon was deemed constitutionally required by the separation of powers doctrine. The Court explained the privilege, and its constitutional underpinnings, by stating: The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution. Id. at 708, 94 S.Ct. at 3107. Notwithstanding this strong language, the Court held that the privilege was limited, and that the information would not immediately become public, but would be produced "for in camera inspection with all the protection that a district court will be obliged to provide." Id. at 706, 94 S.Ct. at 3107. In Doe v. Alaska Superior Court, 721 P.2d 617 (Alaska 1986), this court cited Nixon and held that the Alaska Constitution's separation of powers doctrine supported a governor's claim of executive privilege. Id. at 628. In Doe, Governor Hammond was considering appointing Dr. Carolyn Brown to the State Medical Board. Id. at 619. Although the Governor never sent a prepared letter appointing Brown, the press secretary announced the appointment. Id. In response, an anti-abortion group published an article in its newsletter urging readers to send protest letters to the Governor. Id. Soon after, the Governor sent Brown a letter stating that the announcement of her appointment was an error. Id. Brown and other doctors identified in the newsletter sued the anti-abortion organization for defamation. As part of discovery, the doctors requested the Governor's "appointment file" which contained letters and telegrams received by the Governor, the Governor's responsive letters, and miscellaneous internal memorandum and papers. Id. In deciding Doe, we first noted that exceptions to the public records statute's disclosure requirements are to be construed narrowly. Id. at 622. We then adopted the executive privilege as a privilege required under the Alaska Constitution's Separation of Powers Doctrine, stating: "We . conclude that the public policy rationale upon which the Supreme Court relied in United States v. Nixon is equally applicable to our state government." Id. at 623. We addressed the letters from private citizens and the internal memoranda and papers separately in light of the privilege. Regarding the citizen letters, we noted that most state courts only restrict public access to "internal communications stating the opinions and recommendations of state employees, or information directly solicited by government officials." Id. at 625 (emphasis in original). We followed this rule because "[i]n such cases the rationale underlying the executive privilege doctrine — the need to encourage candid opinions and debate among government officials during the decision-making process — is directly applicable." Id. In contrast, we held that the rationale underlying executive privilege did not apply to citizens' letters and such letters were not protected. Id. Regarding the internal memorandum and papers, we held that they were covered by the executive privilege. We noted that some of the documents at issue in Doe were internal communications that might contain advisory opinions and recommendations. Id. at 625. Because opinions and recommendations "constitute the type of internal deliberative communication the privilege is designed to protect," we remanded to the superior court to determine whether the documents were protected. Id. On remand, the government was instructed to "specifically identify and describe the documents sought to be protected and explain why they fall within the scope of the executive privilege." Id. at 626. The party seeking disclosure would then have to show that "the need for production outweighs the interest in confidentiality." Id. Authorities generally agree upon the substantive requirements of the deliberative process privilege. Initially, since we are concerned with protecting open and free discourse among governmental decisionmakers, the communication at issue must be predeci-sional to be protected. Doe, 721 P.2d at 624 n. 10 (citation omitted). See also Senate of Puerto Rico v. United States Dep't of Justice, 823 F.2d 574, 585 (D.C.Cir.1987); Weaver & Jones at 290-95. Postdecisional com munications are not protected; however, a predeeisional communication does not automatically lose the privilege after the decision has been made, for fear that even disclosure of past communications could harm future deliberations. Weaver & Jones at 290-92. Each case must be considered independently and on its own merits. Id. at 292. The second requirement for the privilege to attach is that the communication be " 'deliberative' in nature, reflecting the 'give- and-take' of the deliberative process and containing opinions, recommendations, or advice about agency policies." Doe, 721 P.2d at 624 n. 10 (quoting Paisley v. C.I.A., 712 F.2d 686, 698 (D.C.Cir.1983), vacated in part on other grounds, 724 F.2d 201 (D.C.Cir.1984)). See also Senate of Puerto Rico, 823 F.2d at 585; Weaver & Jones at 296. Concomitant with this requirement, purely factual material is not protected, and must be disclosed unless "the manner of selecting or presenting those facts would reveal the deliberative process, or if the facts are 'inextricably intertwined' with the policymaking process." Paisley, 712 F.2d at 699 (citations omitted); see also Weaver & Jones at 297. If a communication is not shown to be both predeeisional and deliberative, then the public records statute applies and the document will likely be disclosed. If the communication meets the threshold test, however, the inquiry is not yet over: Once the court determines that a document is privileged, it must still determine whether the document should be withheld. Unlike some other branches of the executive privilege, the deliberative process privilege is a qualified privilege. Once the agency demonstrates that documents fit within it, the burden shifts to the party seeking disclosure. It must demonstrate that its need for the information outweighs the regulatory interest in preventing disclosure. Weaver & Jones at 315 (citations omitted). We have previously outlined the balancing test that must be performed when a person seeks records under the public ree-ords statute in the face of executive officials' claims of secrecy. In City of Kenai v. Kenai Peninsula Newspapers, Inc., 642 P.2d 1316 (Alaska 1982), we stated: In general, questions such as these require a balance to be struck between the public interest in disclosure on the one hand and the privacy and reputation interests of the affected individuals and the government's interest in confidentiality, on the other. The process of balancing has been described as follows: In determining whether the records should be made available for inspection in any particular instance, the court must balance the interest of the citizen in knowing what the servants of government are doing and the citizen's proprietary interest in public property, against the interest of the public in having the business of government carried on efficiently and without undue interference. In balancing the interests referred to above, the scales must reflect the fundamental right of a citizen to have access to the public records as contrasted with the incidental right of the agency to be free from unreasonable interference. The citizen's predominant interest may be expressed in terms of the burden of proof which is applicable in this class of cases; the burden is cast upon the agency to explain why the records sought should not be furnished. Ultimately, of course, it is for the courts to decide whether the explanation is reasonable and to weigh the benefits accruing to the agency from non-disclosure against the harm which may result to the public if such records are not made available for inspection. Id. at 1323 (quoting MacEwan v. Holm, 226 Or. 27, 359 P.2d 413, 421-22 (1961) (en banc)). See also Municipality of Anchorage v. Daily News, 794 P.2d 584, 590-91 (Alaska 1990). This "balancing test" was articulated in the absence of any official assertion of a delibera- five process privilege. But the balancing test as described goes a long way toward accomplishing the goals of the qualified privilege. If the government does not make a justifiable claim to confidentiality, then the balance will almost certainly tip in favor of the individual seeking the information. If it does make such a claim, and meets the threshold requirements, then there is a presumptive privilege and the party seeking disclosure must make a sufficient showing that the need for production outweighs the need for secrecy. Doe, 721 P.2d at 626. The deliberative process privilege affects the balance described above primarily by identifying more specifically what interest the government may have in maintaining confidentiality, in the form of the threshold showing that the communication is predecisional and deliberative. It also outlines fairly rigid procedural requirements -that the government must meet in order to claim the privilege. See Doe, 721 P.2d at 626. Thus, the balancing test that a court should perform where a presumptive privilege attaches is that of City of Kenai, If the privilege attaches, however, instead of there being a presumption in favor of disclosure, with doubtful cases being resolved by permitting public inspection, see City of Kenai, 642 P.2d at 1323, there is a presumption in favor of nondisclosure and the party seeking access to the document must overcome that presumption. 3. The applicability of the deliberative process privilege to the documents GIG seeks CIG's points on appeal and brief ask for disclosure of two specific types of documents. First, "[r]ecords in the form of legislative proposals recommended by the various departments and agencies of the state for introduction by the Governor." Second, "memoranda prepared by the heads of various agencies and departments of state government for and generally at the request of the director of the Office of Management and Budget regarding the potential impacts of various budget proposals." a. Legislative proposals The first set of documents CIG seeks are legislative proposals sent directly to.the Governor. The legislative proposals were clearly predecisional. The Governor requested them to aid him in deciding what legislation to propose to the legislature; the decision was his. CIG's claim that they were not predecisional because they were each agency's final decision is without merit. See Bureau of Nat'l Affairs v. United States Dep't of Justice, 742 F.2d 1484, 1497 (D.C.Cir.1984) (agency proposals predecisional where final decision is President's). Second, the proposals were deliberative. CIG argues that they are not deliberative because they "do not memorialize any debate or discussion between members of the Governor's staff, or between the Governor and his chief advisors, but rather constitute reports made by the agencies to the Governor's office upon request." As such, CIG claims they are not "in the nature of internal give-and-take recommendations between decision-makers that would be potentially subject to the deliberative process privilege." While CIG is correct that the documents were a one-way communication, this does not mean they are not deliberative. As the State correctly notes, the documents were "intend ed for the governor's consideration in the development of his proposed . legislative package." This satisfies the threshold deliberative test because the privilege is meant to further candor in the giving of advice or opinions to the chief executive, and the Governor need not respond to a document for candor to be desirable. Finally, because the threshold requirements have been met (the material is prede-cisional and deliberative), we must weigh the "interest of the citizen in knowing what the servants of government are doing . against the interest of the public in having the business of government carried on efficiently and without undue interference." City of Kenai, 642 P.2d at 1323. The State argues that the need for carrying out business without undue influence is controlling. The State asserts: The governor must have the ability to obtain completely frank and candid advice from his cabinet and advisors; he must have the opportunity to evaluate ideas and fully consider their policy implications before he decides which of them will and which of them will not become part of his legislative . proposals. In this give-and-take of the deliberative process, the governor must be "uninhibited by the danger that his tentative but rejected thoughts will become subjects of public discussion." Doe, 721 P.2d at 624, (citing Cox, Executive Privilege, 122 U.Pa.L.Rev. 1383, 1410 (1974) (footnote omitted)). In response, CIG argues that [a] review of the proposed legislation, and particularly bills that were not introduced, would shed light on the needs of the agencies and might, in fact, generate valuable legislative debate or additional legislative proposals. On the other hand, the public's need to protect the candor of its officials is almost non-existent with respect to the documents sought in this ease. Would agencies be reluctant to submit the legislative proposals if they knew the proposals would be made public? Hardly. In fact, just the opposite is the case: the agencies actually hope that their proposals will become public as part of the Governor's legislative package. We believe that the proposals to the Governor, constituting advice as to what programs he should include in his legislative proposals for the year, fall squarely under the privilege and should be protected from disclosure. The Governor is not merely looking for an agency wish list to forward to the legislature. He is formulating his own political legislative package which will reflect his own priorities and agenda. In doing so, he must determine not only which of the agency proposals have merit but also which warrant the expenditure of his own political capital in their pursuit. This is one of the most sensitive and important functions that the Governor performs while in office, and the need for frank discussion of policy matters among the Governor's advisors is perhaps greater here than in any other area. We believe the need for effective decisionmaking in the Governor's office in the formulation of his legislative agenda is not overcome by CIG's desire to "shed light on the needs of the agencies." We thus hold that the legislative proposals at issue were properly withheld. b. Budget impact memoranda The second set of documents CIG seeks are the budget memoranda sent from each department head to OMB in response to OMB's request. Alaska Statute 37.07.050 requires such a report. The statute also states: All goals and objectives, plans, programs, estimates, budgets, and other documents forwarded to the office of management and budget by a state agency under this section are public information after the date they are forwarded. AS 37.07.050(g). We believe that the budget impact memoranda at issue here meet the threshold requirements for the privilege. They are predecisional because they were submitted before the Governor made his final determinations as to his proposed budget. See Bureau of Nat'l Affairs, 742 F.2d at 1497 (agency budget recommendations predecisional because President decides what requests to submit to Congress). They are deliberative because they were meant to be, and clearly were, a "direct part of the deliberative process," in allowing the Governor to hear the needs and opinions of each of the agencies which need to be accommodated in the budget. See Weaver & Jones at 296 (listing "an agency's budget request submitted to the Office of Management and Budget" as example of deliberative communication). Since the documents are predecisional and deliberative, we would normally proceed to question whether the demonstrated need for disclosure outweighs the government's interests in confidentiality. However, in this case, the legislature has already weighed those' interests, and resolved them in favor of public disclosure. AS 37.07.050(g). As we have noted above, the deliberative process privilege is commonly accepted as having both common law and constitutional roots. Weaver & Jones 288-89. We accept for purposes of this argument the constitutional underpinnings of the doctrine. The State argues that the legislature can not override a constitutionally based deliberative process privilege: The legislature cannot, by adopting a statute, negate the executive's deliberative process privilege. That the legislature serves as a representative of the public interest does not mean that it can define and limit the parameters of this constitutional privilege or the Governor's constitutional budgetary powers in any way it chooses. The superior court accepted this position. We do not wholly agree. The deliberative process privilege has never been held to be absolute. The strongest indication of its constitutional roots has come from the Nixon case, in which the United States Supreme Court recognized a qualified presumptive privilege "inextricably rooted in the separation of powers under the Constitution." 418 U.S. at 708, 94 S.Ct. at 3107. But the very holding of that ease was that the executive privilege, even though constitutionally rooted, was not absolute and may be outweighed by the legitimate needs of a coordinate branch: In designing the structure of our Government and dividing it and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence. Since we conclude that the legitimate needs of the judicial process may outweigh Presidential privilege, it is necessary to resolve those competing interests in a manner that preserves the essential functions of each branch. 418 U.S. at 707, 94 S.Ct. at 3107. Thus we believe it is not sufficient to say that because the deliberative process privilege has constitutional underpinnings the legislature may never enact a statute which has the effect of overriding the executive's request for secrecy. Ordinarily, we would look with disfavor upon the legislature's attempt to compel public disclosure of predecisional and deliberative documents. But here, certain factors exist which the judiciary, in balancing the executive's assertion of the privilege against the legislature's attempt to override it, should take into account. Primary among them is that the legislature itself created the requirement for this type of report in AS 37.07.050. Forwarding the document thus is an official action, required by statute. The legislature has not only mandated that the reports be made and submitted to OMB, it has, in declaring the reports to be public, implicitly determined that the need for public disclosure outweighs any risk of lack of candor on the agencies' part. This determination is entitled to significant weight, given the legislature's constitutional power to allocate executive department functions and duties among the offices, departments, and agencies of the state government. The failure of the statute to affirmatively mention "impact memoranda" does not alter the analysis. The legislature clearly contemplated that there would be variations in OMB's requests to the agencies when it made public "[a]ll goals and objectives, plans, programs, estimates, budgets, and other documents forwarded" to OMB. AS 37.07.050(g) (emphasis added). The executive branch cannot avoid the disclosure requirements of subsection (g) by asking for the agencies' response to a proposed budget instead of for an estimated budget for the coming year. We hold that the budget impact memoran-da should have been disclosed. B. Did Judge Pegues Err in Not Disqualifying Himself From the Case ? CIG argues that Judge Pegues should have disqualified himself from hearing this ease because, as an Assistant Attorney General, he advised then-Governor Hammond that parts of AS 37.07.050 might have been unconstitutional. CIG claims this vio lates Canon 3C(1) of the Alaska Code of Judicial Conduct, which states that judges should disqualify themselves if their "impartiality might reasonably be questioned" because they have "a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts" or "served as a lawyer in the matter in controversy." The document CIG references to support its claim is a 1978 letter to Governor Hammond from Attorney General Avrum M. Gross. The portion of the letter CIG cites apparently advises the Governor as to whether he should support the passage of AS 37.07.050. The letter states, in part: The bill provides for a number of capital budgeting and capital planning procedures which we are inclined to believe are impracticable, if not impossible. It provides in great detail how these matters will be accomplished and makes those details mandatory. In doing so, the bill appears to tread upon the executive's plenary power over the preparation of the state budget. Alaska Const., art. IX, sec. 12. For the most part, it should not have the effect of impairing that power, but to the extent that it may have that effect, it should be unconstitutional. In other words, the legislature cannot so hamstring the executive's preparation of the budget that it is no longer his but rather another's budget. The constitution places both the authority and the responsibility for the budget's preparation on one person, the chief executive. CIG also claims that Judge Pegues "likely gained personal knowledge of disputed evi-dentiary facts." Judge Pegues denied CIG's motion for disqualification. In his memorandum discussing his denial, Judge Pegues stated: My association with the Department of Law ended more than a decade ago. It is unlikely in the extreme that I possess any personal knowledge about any evidence that may be placed in dispute in this cause. My expertise does not fall in that area but rather in an overall knowledge of the process of the government of the State of Alaska and the law applicable to it. No appearance of impropriety can arise from that. Judge Jahnke affirmed Judge Pegues's denial. Regarding the claim that Judge Pe-gues served as a lawyer on this case, Judge Jahnke pointed out that Judge Pegues's connection was old and tenuous: More that fifteen (15) years before this issue was raised, Judge Pegues was an assistant attorney general and authored a six-page letter to then-Governor Hammond reviewing a bill which contained the public records language that is in dispute in this case. However, the letter contains not one ' word addressing that section of the bill. Regarding CIG's claim that Judge Pegues had personal knowledge of disputed evidence, Judge Jahnke found that CIG had not "identified what aspect of Judge Pegues' fund of knowledge is disputed by any party and relevant to the disposition of the case. As such, they have failed to identify any objective facts from which a fairminded person could conclude that an appearance of partiality on Judge Pegues' part exists." This court does not reverse a judge's decision not to disqualify himself based on the appearance of impartiality unless this court finds that he abused his discretion. Long v. Long, 816 P.2d 145, 156 (Alaska 1991). We cannot conclude that CIG, by asserting that the two superior court judges' "conclusions defy common sense and are simply wrong," meets the burden of showing an abuse of discretion. We hold that the facts found by Judge Jahnke are not clearly erroneous and that he did not abuse his discretion in denying the disqualification motion. IV. CONCLUSION The superior court's summary judgment in favor of the State is AFFIRMED with respect to the legislative proposals sent to the Governor, and REVERSED with respect to the budget impact memoranda. The denial of CIG's Motion for Disqualification is AFFIRMED. The case is REMANDED to the superior court for proceedings consistent with this opinion. MOORE, C.J., not participating. . The State's cross-appeal, which argued that the superior court erred in holding the appellant to be a public interest litigant, was dismissed on July 25, 1995, pursuant to the parties' agreement. . Both parties correctly note that whether a privilege applies is a question of law which this court reviews without deference to the trial court. Jones v. Jennings, 788 P.2d 732, 735 (Alaska 1990). . We do not address potential distinctions between the two terms in other contexts. See, e.g., 26A Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5680, at 125 (1992) (stating deliberative process privilege has been known by variety of names, including executive privilege); Stephen G. Lee, We Have Ways of Making You Talk: Challenging the Invocation of the Deliberative Process Privilege in Contract Disputes, 40 Fed.B. News & J. 90, 90 (1993) (calling deliberative process privilege a "form of executive privilege"); Margot O. Knuth, Inspection and Discovery of State Records in Alaska, 4 Alaska L.Rev. 277, 277 n. 3 (1987) (stating most courts use "executive privilege" to refer to "deliberative process privilege" although "executive privilege" may also refer to narrower privilege); Gerald Wetlaufer, lustifying Secrecy: An Objection to the General Deliberative Privilege, 65 Ind. L.J. 845, 845 n. 1 (1990) (describing "general deliberative privilege" as having different names, sometimes "an undifferentiated part of a larger cluster of privileges, usually either the 'executive privilege' or the 'official information privilege' _" (citations omitted)); Russell L. Weaver & James T.R. Jones, The Deliberative Process Privilege, 54 Mo.L.Rev. 279, 279 (1989) (calling "deliberative process privilege" a "branch of the executive privilege."). . We consider cases dealing with the Freedom of Information Act, 5 U.S.C. § 552, and its "Exemption 5" instructive as they relate to the deliberative process privilege. See Doe, 721 P.2d at 624, n. 10. Section 552(b)(5) exempts from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." Thus, the exemption incorporates common law privileges into the statute. It is through FOIA, then, that federal courts frequently address the deliberative process privilege. See, e.g., Senate of Puerto Rico, 823 F.2d at 584— 85 ("[D]ocuments covered by . the 'deliberative process' privilege are unquestionably exempt from FOIA disclosure."); Bureau of Nat'l Affairs v. United States Dep't of Justice, 742 F.2d 1484, 1496-97 (D.C.Cir.1984) ("Among the privileges covered by Exemption 5 is the executive privilege regarding the government's deliberative process . The purpose of Exemption 5 is 'to protect the deliberative process of the government, by ensuring that persons in an advisory role would be able to express their opinions freely to agency decisionmakers without fear of publicity [that might] . inhibit frank discussion -'") (citations omitted). . CIG questions, in a footnote to the "Procedural Background" section of its brief, whether the procedural requirements for the assertion of a privilege, which we outlined in Doe, 721 P.2d at 626, have been met. We hold that the requirements were met. The documents for which the privilege was asserted were submitted under seal to the court for in camera review. The court was also supplied with affidavits by Stastny, Lethin, and Raga S. Elim (the Legislative Liaison subsequent to Lethin), based upon personal examination, specifically describing the documents and their intended use in the Governor's office. These are not the type of conclusoiy affidavits which the courts should guard agahxst. While it is true that the superior court ultimately did not examine the documents submitted under seal, it did examine a memorandum from one department which had been leaked to CIG. This was not error, since an in camera examination of the documents is at the discretion of the trial court judge. See Bureau of Nat'l Affairs, 742 F.2d at 1498. Judge Pegues did not abuse his discretion in determining in camera review to be unnecessary where he had the affidavits and a representative memorandum which had already been made public. . AS 37.07.050(a) states: Each state agency, on the date and in the form and content prescribed by the office, shall prepare and forward to the office and the legislative finance division (1) the goals and objectives of the agency programs, together with proposed supplements, deletions, and revisions; (2) its proposed plans to implement the goals and objectives, including estimates of future service needs, planned methods of administration, proposed modification of existing program services and establishment of new program services, and the estimated resources needed to carry out the proposed plan; (3)the budget requested to carry out its proposed plans in the succeeding fiscal year, including information reflecting the expenditures during the last fiscal year, those authorized for the current fiscal year, those proposed for the succeeding fiscal year, an explanation of the services to be provided, the number of total positions for all persons employed or under contract by the agency for personal services including those rendered for capital improvement projects, the need for the services, the cost of the services, and any other information requested by the office; (4)a report of the receipts during the last fiscal year, an estimate of the receipts during the current fiscal year, and an estimate for the succeeding fiscal year; (5) a statement of legislation required to implement the proposed programs and financial plans; (6) an evaluation of the advantages and disadvantages of specific alternatives to existing or proposed program policies or administrative methods. . See also Archibald Cox, Executive Privilege, 122 U.Pa.L.Rev. 1383, 1407 (1974): But to demonstrate that the President should not be under an absolute duty to provide any and all information upon any and all occasions falls far short of making out the claim of President Nixon's attorneys that the President must have an absolute privilege upon any and all occasions to withhold whatever he wills. Both law and constitutional practice ought to be capable of recognizing, and making a more delicate adjustment in, the middle ground. And there are many cases in which Congress has the constitutional authority to institute measures that interfere with the "effective discharge of a President's powers"_ It is entirely possible, therefore, that the Supreme Court, if squarely confronted with the question, might explain away the assertions in United States v. Nixon or confine them to situations in which there is no applicable legislation. Id. at 1435. . We recognize that Bureau of National Affairs reached the opposite conclusion with respect to similar documents. 742 F.2d at 1496-98. There, the United States Court of Appeals for the District of Columbia Circuit held that the EPA's assessment of its funding needs for the fiscal year were within the deliberative process privilege and could be withheld under FOIA Exemption 5. Id. However, in that case there is no indication that the interagency memoranda were required by any statute which also declared them available for public inspection. .This power is expressed in article III, sections 22 and 23 of the Alaska Constitution. These sections provide: SECTION 22. All executive and administrative offices, departments, and agencies of the state government and their respective functions, powers and duties shall be allocated by law among and within not more than twenty principal departments, so as to group them as far as practicable according to major purposes. Regulatory, quasi-judicial, and temporary agencies may be established by law and need not be allocated within a principal department. SECTION 23. The governor may make changes in the organization of the executive branch or in the assignment of functions among its units which he considers necessary for efficient administration. Where these changes require the force of law, they shall be set forth in executive orders. The legislature shall have sixty days of a regular session, or a full session if of shorter duration, to disapprove these executive orders. Unless disapproved by resolution concurred in by a majority of the members in joint session, those orders become effective at a date thereafter to be designated by the governor.

10396367

Robert G. BLAKE, Appellant, v. STATE of Alaska, Appellee

Blake v. State

1988-10-21

No. A-2415

511

515

763 P.2d 511

763

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T16:59:32.179770+00:00

CAP

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

Robert G. BLAKE, Appellant, v. STATE of Alaska, Appellee.

Robert G. BLAKE, Appellant, v. STATE of Alaska, Appellee. No. A-2415. Court of Appeals of Alaska. Oct. 21, 1988. Robert G. Blake, Superior, Mont., pro se. Kenneth S. Roosa, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

2166

13219

OPINION SINGLETON, Judge. Robert G. Blake was convicted by a jury of taking a sow grizzly bear accompanied by cubs in violation of former 5 Alaska Administrative Code (AAC) 81.320(2); taking a grizzly bear in a closed season, former 5 AAC 81.320(2); taking an overlimit grizzly, former 5 AAC 81.320(2); taking game in a closed area, AS 16.05.789(a); and misconduct involving weapons in the second degree, AS 11.61.210(a)(1). For misconduct involving weapons, Blake was sentenced to thirty days with twenty days suspended, anu fined $2,000 with $1,000 suspended. For each of the other four charges, he received identical sentences of four months with all but thirty days suspended and an unsuspended $1,000 fine. These sentences were to run concurrent to each other, but consecutive to the misconduct involving weapons sentence. Blake was ordered to donate the value of his weapon, $350, to the Wildlife Safeguard Fund. Blake's hunting license was revoked for three years, and he was placed on probation for five years. Blake therefore received a composite sentence of five months with all but sixty days suspended and a fine of $3,350 with $1,000 suspended. Blake appealed his sentence. We affirmed in part but remanded the case to the trial court in order to permit a hearing on Blake's claim that certain statements were admitted against him in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Blake v. State, Memorandum Opinion and Judgment No. 1509 (Alaska App.1987). Specifically, we asked the trial court to determine: (1) whether Blake was in "custody" at the time he made incriminating statements and, if so, (2) whether he made statements in response to an "interrogation." On remand, the court did not reach the second determination because it concluded that Blake was not in custody when he made the incriminating statements. Blake appeals. We affirm. FACTS On June 4, 1985, Blake was employed by the State of Alaska, Department of Transportation, at the Chandalar Road Maintenance Station on the Dalton Highway in Alaska. Blake, in the company of several others, was drinking beer and R & R Scotch on the wooden deck of the station. As the evening wore on, members of the party began target shooting at beer cans. Blake, using a 7mm magnum rifle joined them. He saw a grizzly bear on the mountain side near a rock he had been using as a target. Blake shot the bear. The shooting took place within the five-mile quarter along the Dalton Highway above the Yukon River, where hunting with firearms is prohibited. After the shooting subsided, Blake was found on the mountainside by members of his party. Blake had passed out from intoxication as he climbed towards the bear. The shooting was reported to the Fish and Wildlife Protection (FWP) office. FWP Officer Don Wilson began investigating the incident. On June 10, 1985, FWP Officers Merrill and Schied stopped Blake at mile post 28 of the Elliott Highway. There is a dispute about the events which occurred from this point. Merrill testified in court that Blake told him that he knew he was being stopped and questioned about the bear. Merrill stated that Blake con sented to a search of his truck. Merrill said he did not place Blake under arrest or restrain him in any way. Merrill also testified that Blake voluntarily gave him a statement without coercion. During the trial, Blake elicited on cross-examination that Merrill had not advised him of his Miranda rights during the conversation. Merrill admitted that he might have told Blake during the conversation that he, Merrill, had received written statements from other people about Blake's shooting of the bear. Merrill also testified that when he stopped Blake, he might have told him that he should write out a statement giving his version of the events. At the calendar call, just prior to trial, Blake moved orally to suppress all evidence obtained as a result of this stop because he had not been given his Miranda warnings. The court denied the motion. In determining the significance of the failure to give Miranda warnings, the court initially focused on whether Blake was under arrest rather than whether he was in "custody." See Hunter v. State, 590 P.2d 888, 892-98 (Alaska 1979). On remand, the trial court entered written findings of fact and conclusions of law. Specifically, the court found: (1). Defendant was not in custody at the time he made his initial statements to Officers Merrill and Schied at 28 mile Elliott Highway. The court bases this conclusion upon the following: (a) The defendant stopped his vehicle voluntarily, simply on a wave from Officer Merrill. There was no chase and no emergency lights were activated. (b) The meeting between Officer Merrill [and Blake] lasted a short time. (c) Only two officers were present. (d) The only questions asked by the officers were whether [the] defendant knew why he had been contacted and whether he would sign a consent to search, which he did. (e) Defendant arrived at and left the place of questioning in his own vehicle. (f) Defendant was permitted to leave in his own vehicle and complete a written statement at home. DISCUSSION In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court held that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of a defendant unless it demonstrates the use of certain procedural safeguards prior to questioning. Id. at 444, 86 S.Ct. at 1612. By custodial interrogation, the Supreme Court meant "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. In a separate line of cases, the Alaska courts and the federal courts have considered the fourth amendment to the United States Constitution and the comparable provisions of our state constitution which prohibit unreasonable searches and seizures, and have applied those provisions to traffic stops and other investigatory stops. See, e.g. United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); Ebona v. State, 577 P.2d 698 (Alaska 1978); Coleman v. State, 553 P.2d 40 (Alaska 1976); State v. Moran, 667 P.2d 734 (Alaska App.1983). The Alaska courts have held that a person may not be temporarily seized in the absence of a "reasonable suspicion that imminent public danger exists or serious harm to persons or property has recently occurred." See Coleman, 553 P.2d at 46; Moran, 667 P.2d at 735. The Alaska Supreme Court has also separately analyzed the questions of when a person is in custody for purposes of Miranda warnings, and when a person is seized for purposes of the fourth amendment. See, e.g., Hunter, 590 P.2d at 895 (establishing standards governing the determination of when a person is in custody for Miranda purposes); Waring v. State, 670 P.2d 357, 364-67 (Alaska 1983) (establishing standards for determining when there has been a seizure under article I, section 14, of the Alaska Constitution); Henry v. State, 621 P.2d 1, 2-3 (Alaska 1980) (establishing standards for determin ing when a person has been seized for purposes of the fourth amendment). In Waring, the Alaska Supreme Court followed United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), and concluded that a person has been seized within the meaning of the fourth amendment if, in light of all the circumstances, a reasonable person would have believed that he or she was not free to leave. Waring, 670 P.2d at 364. Similarly, the Alaska Supreme Court has also held that a person is in custody for purposes of Miranda when there is "some actual indication of custody, such that a reasonable person would feel he was not free to leave and break off police questioning." Hunter, 590 P.2d at 895. In this case, Blake was proceeding along the highway when he was flagged down by two wildlife protection officers. The trial court found that Blake was not in custody and was not under arrest. It is possible that Judge Zimmerman did not distinguish between custody for Miranda purposes and a seizure for fourth amendment purposes in reaching that conclusion. It is also possible that a finding that Blake was not seized for fourth amendment purposes would not be clearly erroneous, if in fact, Blake felt no compulsion to respond to the officer's actions. Having reviewed the authorities, we have determined that a person who is in custody for fourth amendment purposes, i.e., a person who has been "seized," is not necessarily entitled to "Miranda warnings." We will therefore assume that under the circumstances, Blake was "seized" for purposes of the fourth amendment. Such an assumption avoids very difficult factual determinations. As the United States Supreme Court has pointed out: Certainly, few motorists would feel free either to disobey a directive to pull over or to leave the scene of a traffic stop without being told they might do so. Partly for these reasons, we have long acknowledged that "stopping an automobile and detaining its occupants constitutes a 'seizure' within the meaning of the fourth amendment, even though the purpose of the stop is limited and the resulting detention quite brief." (Citations omitted.) Berkemer v. McCarty, 468 U.S. 420, 436-37, 104 S.Ct. 3138, 3148-3149, 82 L.Ed.2d 317 (1984). If, as a comparison of Hunter and Waring would indicate, the tests for custodial interrogation and fourth amendment seizure were the same, it necessarily would follow that Blake was subjected to custodial interrogation and entitled to Miranda warnings. However, neither the United States Supreme Court nor the Alaska Supreme Court has been willing to go so far. In Berkemer, the United States Supreme Court held that a person subjected to a traffic stop, and by extension an investigatory stop, was not necessarily entitled to Miranda warnings. Berkemer, 468 U.S. at 442-43, 104 S.Ct. at 3151-52. The Court said: However, [despite the similarity between custodial interrogation and a fourth amendment seizure] we decline to accord talismanic power to the phrase in the Miranda opinion emphasized by respondent. ["A person is entitled to Miranda warnings when taken into custody or otherwise deprived of his freedom of action in any significant way."] Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated. Thus, we must decide whether a traffic stop exerts upon a detained person pressures that sufficiently impair his free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights. Id. at 437, 104 S.Ct. at 3148-3149. The Court based a negative answer to this question on two considerations. First, traffic and investigatory stops are presumably temporary and brief and thus, do not impose the same coercive pressure on a defendant to speak that interrogation at a police station would impose. Second, traffic and investigatory stops take place in public and thus, the defendant is not isolated from friends, associates, etc., as he or she would be in a "police dominated" atmo sphere. 3150. Id. at 437-39, 104 S.Ct. at 3148-3150. While recognizing the similarities between the test for "seizure" and "custodial interrogation," the Alaska Supreme Court has also refused to hold that every fourth amendment seizure triggers a right to Miranda warnings. Waring, 670 P.2d at 366 n. 19. See also Palmer v. State, 604 P.2d 1106, 1111-13 (Alaska 1979) (Rabinowitz, J., concurring) (concluding that a traffic stop falls within the on-the-scene questioning exception to Miranda). We believe that the analysis in Berkemer should apply equally under the Alaska Constitution. See LeMense v. State, 754 P.2d 268, 274 (Alaska App.1988). We therefore conclude that an investigatory stop for purposes of the fourth amendment does not necessarily trigger a right to Miranda warnings. In reaching this conclusion, however, it is important to stress a limitation suggested in Berkemer. If a motorist is detained under circumstances substantially more coercive than the typical traffic stop, and that coercion actually impairs the free exercise of the privilege against self-incrimination, Miranda warnings would be required. Berkemer, 468 U.S. at 440, 104 S.Ct. at 3150. Applying this test to Blake's situation, we conclude that he was not subjected to "custodial interrogation." In reaching this conclusion, we accept as valid the trial court's factual findings that the stop was brief, was not unduly coercive, and that Blake was free to leave after the search of his vehicle. The judgment of the district court is AFFIRMED.

10394067

In the Matter of Bruce D. ELDER, Regarding contempt citations issued in In the Matter of The Guardianship/Conservatorship Of Michael J. Elder, Superior Court No. 3AN-87-514 P/G

In re Elder

1988-10-14

No. S-2321

219

223

763 P.2d 219

763

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T16:59:32.179770+00:00

CAP

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

In the Matter of Bruce D. ELDER, Regarding contempt citations issued in In the Matter of The Guardianship/Conservatorship Of Michael J. Elder, Superior Court No. 3AN-87-514 P/G.

In the Matter of Bruce D. ELDER, Regarding contempt citations issued in In the Matter of The Guardianship/Conservatorship Of Michael J. Elder, Superior Court No. 3AN-87-514 P/G. No. S-2321. Supreme Court of Alaska. Oct. 14, 1988. Scott A. Sterling, Jensen, Harris & Roth, Anchorage, for Bruce- D. Elder. Phyllis A. Hartke, Law Office of Thomas H. Dahl, Anchorage, guardian ad litem for Michael J. Elder. Barbara L. Malchick, Office of Public Advocacy, Anchorage, for public guardian, temporary guardian/conservator of Michael J. Elder. Before MATTHEWS, C.J., and RABINOWITZ, BURKE, COMPTON and MOORE, JJ.

3033

18503

OPINION BURKE, Justice. Bruce Elder was held in contempt of court and was incarcerated for an indefinite period pending the return of certain funds which he allegedly misappropriated from his brother, Michael Elder. Bruce challenges the propriety of the incarceration order. We reverse. I On May 17, 1987, Michael Elder was rendered comatose as a result of an automobile accident. On June 5, Probate Master Kathleen Harrington appointed as Michael's temporary guardian his brother, Bruce Elder. At the initial guardianship hearing, Bruce indicated that he intended to retain an attorney for the purpose of pursuing Michael's legal remedies in connection with the accident. He later decided, however, to personally settle Michael's claim against the driver of the vehicle involved. On June 8, 1987, Bruce settled on Michael's behalf with Allstate Insurance Co., for $100,000. The same day an account was opened in Bruce's name at United Bank of Alaska (UBA). On June 9, Bruce wrote six checks against the account, disbursing a total of $97,930. The amounts and payees were as follows: (1) $15,000 to Bruce Elder; (2) $10,000 to Bruce Elder; (3) $39,930 to Clifford "Buzz" Aldeman, Bruce's father-in-law; (4) $8,500 to Larry Voelk, Bruce's stepfather-in-law; (5) $12,500 to Odis Elder, Bruce and Michael's father; (6) $12,000 to Robert Campbell, a close friend of Bruce and Michael's. Bruce contends that the foregoing disbursements were made to repay legitimate debts incurred either by Michael personally or by a failed business partnership which Michael and Bruce had formed some years before. Bruce also contends that he was advised by counsel that, as guardian, he was entitled to pay Michael's debts. On June 10, Ernest Schlereth, who had served as Michael's appointed counsel at the guardianship hearing, learned that Bruce had settled Michael's insurance claim with Allstate. Concluding that such settlement was improper, Schlereth sought, and was granted, a temporary restraining order against both Allstate and Bruce Elder. The order provided in pertinent part: It is hereby ORDERED that Allstate Insurance Company take immediate steps to stop payment on the check in the amount of $100,000 issued to Bruce D. Elder.... It is also ORDERED that Bruce D. Elder is enjoined from in any way disbursing or cashing the funds of this check and is ORDERED to hand over to the State Trooper serving this order or to bring the same to the Probate Court for registry into the court, and appear at the below hearing date. The order was to remain in effect for ten days, pending a hearing on the motion for preliminary injunction scheduled for June 16, 1987. Elder was served with the temporary restraining order on the afternoon of June 10. Having already made numerous disbursements from the UBA account, Elder did not produce the requested funds when served with the order. He told the trooper that "Mr. Schlereth had told him that it was okay to put the money into the bank and pay the bills", and thus, he did not understand why the temporary restraining order was being issued. A hearing was convened before Probate Master Harrington on June 16, 1987. It was learned at this hearing that payment on the Allstate check had not in fact been stopped and that, as a consequence, all of the disbursements made by Elder on June 9 had cleared the bank, leaving only $2,070 of the original $100,000 deposited in the UBA account. The probate master advised Schlereth to seek an immediate "show cause" hearing concerning possible contempt in connection with the June 10 temporary restraining order. On June 17, Superior Court Judge Victor D. Carlson issued an order to "show cause why [Elder] should not be held in contempt of court for failure to abide by the Temporary Restraining Order dated June 10, 1987." At the June 19 show cause hearing, Elder's counsel informed the judge of Elder's prior actions and argued that Elder had "accomplished all that [the] order prohibited well prior to receiving notification of that order." He also informed the court that opposing counsel had been provided with copies of the checks and the names of the persons to whom the funds were paid out. Several of the individuals who had received funds testified. Each stated that the money he received was in payment of a bona fide debt. One of these individuals, Clifford Aldeman, surrendered his $39,930 check to the court on the spot. Elder offered immediate return of the $2,070 remaining in the original account. He also offered to take immediate steps to liquidate the auto he had purchased with his share, and to secure the return of the $8,500 paid to Larry Voelk, who had indicated a willingness to voluntarily release those funds. Notwithstanding the above, the court concluded that it was appropriate to hold Elder in civil contempt and to imprison him until such time as the remaining funds, some $62,000, were actually returned to Michael's newly-appointed guardian. The judge, in his oral contempt ruling stated: Mr. Bruce Elder is being taken into custody under civil contempt to be held pending the posting of $62,000 in bonds satisfactory to the court or until he otherwise satisfies all of the requirements of the order which was previously entered. It appears to me that he has acted fast and loose with someone else's money, namely the estate's money. Whether he had authority to make these decisions or not, that is somewhat different than when one fails to abide by their fiduciary duty in handling someone else's money. Elder was immediately incarcerated. On June 29, 1987, a further hearing was held concerning Elder's incarceration. At this hearing, Elder offered to tender certain additional funds which he had obtained during his incarceration. He also informed the court that he was having difficulty liquidating the $18,000 vehicle he had purchased with his share of the funds, but he offered to tender immediate possession of the vehicle to the Office of Public Advocacy. The tender was refused. The court informed Elder that it was his responsibility to liquidate the assets, and that he would "get[ ] out of jail when the money's returned." The court also noted that "[t]here's no six month limitation on this type of contempt," and that Elder would "be [in jail] until he does what he's supposed to do." On August 5, 1987, Elder filed the present appeal and moved for an emergency stay of incarceration pending resolution of this matter. The motion was granted on August 7, 1987. Since his release from custody, Elder has acquired a job, and has begun making regular payments to the Office of Public Advocacy, Michael Elder's current temporary guardian. He has liquidated the automobile, and has been able to replace approximately 80% of the originally disbursed funds. While some of the third-party payees still refuse to return the funds they received, thus prohibiting immediate return of the entire $100,000, Michael's guardian ad litem and the Office of Public Advocacy now agree that Bruce's current level of cooperation warrants his release from jail. II Bruce Elder was imprisoned without a jury trial and without any of the traditional procedural protections afforded criminal defendants under the United States and Alaska Constitutions. Consequently, his incarceration is proper only if it qualifies as a sanction based upon civil coercive contempt. See Pharr v. Fairbanks North Star Borough, 638 P.2d 666, 669 (Alaska 1981); Gwynn v. Gwynn, 530 P.2d 1311, 1312 (Alaska 1975). In Alaska, the court's inherent power to impose sanctions for civil contempt is codified at AS 09.50.050 (emphasis added): When the contempt consists of the omission or refusal to perform an act which is yet in the power of the defendant to perform, the defendant may be imprisoned until the defendant has performed it. That the act ordered by the court be "yet in the power of the defendant to perform" at the time of his incarceration is perhaps the most fundamental aspect of the civil contempt sanction, and is the primary factor distinguishing this judicial remedy from its criminal counterpart, with the latter's attendant procedural safeguards. Although we have noted on a number of occasions that inability to comply with the court's order is an "affirmative defense" on which the contemnor bears the burden of proof, Johansen v. State, 491 P.2d 759, 766 (Alaska 1971); see also Diggs v. Diggs, 663 P.2d 950, 951 (Alaska 1983); State, Dep't of Revenue v. Oliver, 636 P.2d 1156, 1159 (Alaska 1981), we have also made clear that, once established by a preponderance of evidence, inability to comply is an absolute bar to imprisonment based upon civil contempt. See, e.g., Ryfeul v. Ryfeul, 650 P.2d 369, 375 (Alaska 1982); Johansen, 491 P.2d at 767; see also Hicks v. Feiock, — U.S. -, - n. 9, 108 S.Ct. 1423, 1433, n. 9, 99 L.Ed.2d 721, 735 n. 9 (1988) ("[o]ur precedents are clear . that punishment may not be imposed in a civil contempt proceeding when it is clearly established that the alleged contemnor is unable to comply with the terms of the order"). The reason for such a rule is simple: "[wjhere confinement cannot serve to accomplish the direct remedial object sought, or where there is no remedial objective left to be achieved, any incarceration — even when designated civil in nature — takes on a clearly punitive character," and thus gives rise to the need for procedural protections. Gwynn, 530 P.2d at 1312 n. 6. The record in the instant case contains no finding by the court that Elder was capable of complying with the terms of the June 10 order at the time of his incarceration, nor would such a finding have been justified based on the evidence before the court. It was undisputed at Elder's contempt hearing that the majority of the $100,000 produced by the settlement was transferred to third parties even before the June 10 temporary restraining order was issued, and well before the hearing to consider Elder's incarceration. The remainder, which Elder had distributed to himself, was no longer in the form of cash, but had for the most part been invested in an automobile purchased prior to the contempt hearing. At the hearing, Elder offered immediate tender of the automobile, as well as all of the cash remaining in his possession. Beyond these measures, it is apparent that, at the time of his incarceration, Elder was unable to "hand over to the State Trooper" the cash assets sought in the June 10 or der, as those assets were no longer in his personal possession. The court could, of course, have ordered Elder to take all reasonable steps to secure release of the disbursed funds from the third-party payees. See Johansen, 491 P.2d at 768-69 (contemnor may be ordered to make a reasonable effort to raise overdue child support). It could also have ordered Elder either to tender immediate possession of the automobile to the guardians or to take reasonable steps to liquidate that asset as soon as possible. In either case, Elder's refusal to comply would have constituted a valid ground for imposing civil contempt sanctions. However, we see no legitimate coercive purpose to be served by imprisoning an individual for failing to perform an act, the completion of which is necessarily dependent upon action by a third party. In sum, we hold that inability to comply is established, as a matter of law, where the undisputed evidence shows either that the funds or property ordered produced are in the hands of third parties over whom the alleged contemnor has no legal control, or that such funds or property have been converted into some form of asset which the court refuses to accept upon immediate tender. Elder made such a showing here, and, accordingly, the superior court erred in ordering his incarceration without the benefit of a jury trial and without any of the procedural protections available to criminal defendants. In reaching the above conclusion, we do not mean to suggest that the transference or conversion of court-sought assets is an acceptable means of avoiding lawfully issued court orders. On the contrary, such conduct may give rise to criminal charges ultimately resulting in the contemnor's incarceration for some definite period. Imprisonment for civil coercive contempt, however, must be strictly limited in its application lest it intrude upon those constitutionally guaranteed liberties which the courts are sworn to protect. The imprisonment of an individual pending the return of cash assets which, on the undisputed evidence, he no longer personally possesses, crosses the boundaries of acceptable judicial action. The order of the superior court is REVERSED, and the matter is REMANDED for further proceedings consistent with this opinion. . Bruce testified that he had "talked to several attorneys" who advised him to settle the case without "pay[ing] a percentage" to an attorney since the maximum he could ever hope to recover was $100,000, the limit under the applicable insurance policy. . Of the $25,000 which Bruce disbursed to himself, $18,345 was almost immediately reinvested in an automobile purchased from a local auto dealership. . The money paid to Robert Campbell and Odis Elder was in payment of alleged personal debts incurred by Michael. The other third party payees received their funds in repayment of loans allegedly made to "Elders Diversified Services," the now-defunct snowplowing business started by the two brothers some years ago. Of the funds which Bruce disbursed to himself, $15,000 was in repayment of loans Bruce had made to the partnership, and $10,000 was for the 10% "legal fee" which he was allegedly advised that he could pay himself for handling Michael's affairs. . Schlereth took the position that any settlement which did not involve thorough consultation with an attorney violated Elder's duties as guardian/conservator and was thus unauthorized. . The master also (1) terminated Elder's temporary guardianship, (2) made the earlier Temporary Restraining Order a preliminary injunction, and (3) expanded the scope of the order to require that Bruce take immediate steps to retrieve funds and turn into the registry of the court from said insurance proceeds, which may have been disbursed, and provide immediate information, through his attorney to the guardian ad litem, as to the specific distribution of said funds, providing names and numbers of accounts, amounts deposited, and persons to whom funds were given. Notably, Elder was not held in contempt for violating the added language directing him to take "immediate steps" to retrieve the funds. Rather, he was jailed for failing to comply with the wording of the June 10 order requiring him to "hand over to the State Trooper" the funds from the Allstate check. . On the same day, the court issued a temporary restraining order directing UBA to place holds on all accounts into which portions of the $100,-000 may have been transferred. . Elder was unemployed at the time of his incarceration. . A criminal contempt proceeding involving the threat of incarceration is a "criminal prosecution" within the meaning of the Alaska Constitution, State v. Browder, 486 P.2d 925, 937 (Alaska 1971), and thus entitles the contemnor to full criminal procedural safeguards prior to imprisonment. Johansen v. State, 491 P.2d 759, 766 n. 27 (Alaska 1971). . Contempt proceedings, like all other "actions tried upon the facts without a jury," are subject to the provisions of Civil Rule 52, requiring that specific findings of fact and conclusions of law accompany the judgment. Alaska R.Civ.P. 52(a). Under this rule, the judgment of the superior court is subject to remand where the court's findings are insufficient to provide the reviewing court with a clear understanding of the basis of the court's decision. See Uchitel Co. v. Telephone Co., 646 P.2d 229, 236 n. 16 (Alaska 1982); Wigger v. Olson, 533 P.2d 6, 7-8 (Alaska 1975); Spenard Plumbing & Heating v. Wright, 370 P.2d 519, 525 (Alaska 1962). . The record suggests that some or all of the third party checks, though written and delivered prior to issuance of the temporary restraining order, may have actually cleared the bank sometime thereafter. . The guardian ad litem contends that the funds for the purchase of the automobile were actually delivered to the dealership after the issuance of the temporary restraining order. Such action would likely conflict with the plain wording of the court's order and, if proved, might support a conviction for criminal contempt under AS 09.50.010-.020. . In Maggio v. Zeitz, 333 U.S. 56, 68 S.Ct. 401, 92 L.Ed. 476 (1947), the United States Supreme Court reached a similar conclusion on analogous facts. In that case, the president of a bankrupt corporation was ordered jailed for failing to turn over to the bankruptcy trustee certain assets which he contended were no longer in his possession. Id. at 59-60, 68 S.Ct. at 403, 92 L.Ed. at 481-82. The Court reasoned: Conduct which has put property beyond the limited reach of [a] turnover [order] may be a crime, or, if it violates an order of the referee, a criminal contempt, but no such acts, however reprehensible, warrant issuance of an order which creates a duty impossible of performance, so that punishment can follow. It should not be necessary to say that it would be a flagrant abuse of process to issue such an order to exert pressure on friends and relatives to ransom the accused party from being jailed. Id. at 64, 68 S.Ct. at 405, 92 L.Ed. at 484 (emphasis added). To the extent that Elder's incarceration may have been aimed at securing the return of those funds paid out to his own friends and relatives, it clearly ran afoul of this basic principle. . On remand, the court may issue such orders, supported by appropriate findings and consistent with the principles discussed herein, as are necessary to secure the return of those funds which remain outstanding.

10397812

CITY OF FAIRBANKS, Appellant, v. ALASKA DEPARTMENT OF LABOR, International Brotherhood of Electrical Workers, Local 1547, Appellees

City of Fairbanks v. Alaska Department of Labor

1988-11-04

No. 3396

976

977

763 P.2d 976

763

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T16:59:32.179770+00:00

CAP

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

CITY OF FAIRBANKS, Appellant, v. ALASKA DEPARTMENT OF LABOR, International Brotherhood of Electrical Workers, Local 1547, Appellees.

CITY OF FAIRBANKS, Appellant, v. ALASKA DEPARTMENT OF LABOR, International Brotherhood of Electrical Workers, Local 1547, Appellees. No. 3396. Supreme Court of Alaska. Nov. 4, 1988. James M. Mullen, Deputy City Atty., Fairbanks, for appellant. Helene M. Antel, Anchorage, for appellee Intern. Broth, of Elec. Workers, Local 1547. John B. Gaguine, for amicus curiae Alaska Public Employees Ass’n. Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.

761

4845

OPINION PER CURIAM. The question presented in this appeal is whether the state Labor Relations Agency's decision allowing the International Brotherhood of Electrical Workers (IBEW) to represent a bargaining unit composed of supervisory personnel employed by the Fairbanks Municipal Utilities System was error in light of the fact that IBEW also represents a bargaining unit which consists of rank and file employees of the Utility System. We conclude that there was no error for the reasons expressed in part III of the opinion of the superior court set forth in the appendix. AFFIRMED. APPENDIX IBEW is currently the exclusive bargaining agent for a unit of rank and file employees of [the Municipal Utilities System (MUS)]. MUS contends that the [Public Employment Relations Act (PERA)] does not permit IBEW to also represent the unit at issue in this case. The PERA does not itself address the question of dual representation. The [Labor Relations Agency (LRA) ] has long held that since the Act does not prohibit the practice and since the selection of a bargaining representative is a matter of employee choice, dual representation is permissible. LRA Order and Decision No. 8 at 1, 3 (January 17, 1974). This is the sort of question which implicates the LRA's special expertise; the Agency is in a better position than the court to evaluate the impact of dual representation on the collective bargaining process. Therefore, this court will uphold the LRA's action so long as it has a reasonable basis. See Kelly v. Zamarello, 486 P.2d 906, 916 (Alaska 1971). The legislature has defined the term "organization" for purposes of the PERA. AS 23.40.250[4] provides that "[0]rganization" means a labor or employee organization of any kind in which employees participate and which exists for the primary purpose of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment and conditions of employment. There is nothing in the language of this definition which suggests that an otherwise qualified labor organization could not represent two different bargaining units within the same public employer. Indeed, the use of the phrase "labor organization of any kind" suggests the contrary. Furthermore, LRA's policy in this matter is consistent with the purpose of the PERA and Alaska case law. When the legislature enacted the statute in 1972, it declared that It is the public policy of the state to promote harmonious and cooperative relations between government and its employees and to protect the public by assuring effective and orderly operations of government. These policies are to be effectuated by (1) recognizing the right of public employees to organize for the purpose of collective bargaining; (2) requiring public employers to negotiate with and enter into written agreements with employee organizations on matters of wages, hours, and other terms and conditions of employment. AS 23.40.070. The court has said that AS 23.40.070(1) and (2) make a strong statement in favor of public employees' right to organize and bargain collectively. Anchorage Municipal Employees' Association v. Municipality of Anchorage, 618 P.2d 575, 578 (Alaska 1980). The strength of the policy statement led the court in that case to decline to construe another provision of the act in a manner which would interfere with the employees' assertion of those rights. Id. The particular right at issue here is specifically guaranteed by the PERA. AS 23.40.080 provides that public employees may themselves choose their representative for collective bargaining purposes. The court has said that "It can no longer be disputed that the right to affiliate with the union of one's choice is the right of the public employee as well as the private employee." Kenai Peninsula Borough School District v. Kenai Peninsula Borough School District Classified Association, 590 P.2d 437, 439 (Alaska 1979). Furthermore, it has been recognized that associational rights of this character are rooted in the protections afforded by the First Amendment. Id. The appellant has not presented any arguments which would warrant interference in the exercise of MUS employees' right of self-determination. The LRA's policy permitting dual representation is reasonable, given the language of the PERA and its purpose. Therefore, LRA's decision on this issue is affirmed.

10313621

Danny J. HARRISON, Appellant, v. STATE of Alaska, Appellee

Harrison v. State

1996-08-23

No. A-5700

107

110

923 P.2d 107

923

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T16:59:37.070555+00:00

CAP

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

Danny J. HARRISON, Appellant, v. STATE of Alaska, Appellee.

Danny J. HARRISON, Appellant, v. STATE of Alaska, Appellee. No. A-5700. Court of Appeals of Alaska. Aug. 23, 1996. Patrick W. Conheady, Olmstead and Con-heady, Juneau, for Appellant. James L. Hanley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

2003

12692

BRYNER, Chief Judge. Danny J. Harrison was convicted by a jury of two counts of perjury in violation of AS 11.56.200(a). Harrison appeals, contending that Superior Court Judge Larry C. Zervos erred in denying Harrison's motion for a judgment of acquittal. We affirm. . After being convicted of misconduct involving weapons and theft by receiving, Harrison filed an application for postconviction relief, challenging his convictions. The state moved to dismiss Harrison's application. In reply to the state's motion, Harrison filed a factual statement claiming, among other things, that the police officers who arrested him "broke his arm and killed his dog." To this statement, Harrison attached a signed document that he entitled "Affidavit in Support of Reply to Opposition to Motion for Post Conviction Relief." Harrison's affidavit attested to the truth of his factual statement: I,Danny J. Harrison, being duly sworn upon my oath, depose and state the following: 1. That I am Defendant in the above-captioned cause of action. 2. That the representations and allegations made in the Reply attached hereto and referred to herein by reference are true and correct to the best of my knowledge. 3. That I have thoroughly read Cr.R. 11 and 35(a) and found nothing in either which overrides the jurisdiction of this Court in this matter. 4. That I firmly believe that once presented the facts, and the positive changes effected by the Defendant since the original sentencing, relief will be justified. FURTHER AFFIANT SAYETH NAUGHT. DATED this 12th day of November, 1993, at Eagle River, Alaska. Is/_ Danny J. Harrison Defendant, Pro se COMES NOW Danny J. Harrison, pursuant to the provisions of A.S. 09.63.020, and Title 28, United States Code, Section 1746, and declare under penalty of perjury that the foregoing is true and correct. EXECUTED on November 12,1993. Is/_ Danny J. Harrison The state eventually discovered that Harrison's factual statements were false: the police neither broke Harrison's arm nor killed his dog. As a result of these false statements, the state charged Harrison with two counts of perjury. At trial, Harrison moved for a judgment of acquittal, arguing that the affidavit upon which his perjury prosecution was based failed to qualify as a "sworn statement," as defined in Alaska's perjury statute. Judge Zervos denied Harrison's motion. On appeal, Harrison renews this argument. Alaska Statute 11.56.200(a) states that "[a] person commits the crime of perjury if the person makes a false sworn statement which the person does not believe to be true." Alaska Statute 11.56.240(2) defines two types of "sworn statement": (A) a statement knowingly given under oath or affirmation attesting to the truth of what is stated, including a notarized statement; or (B) a statement knowingly given under penalty of perjury under AS 09.63.020. Harrison contends that his "affidavit" did not qualify as a "sworn statement" under either of these definitions. Although Harrison's affidavit recited that Harrison had been "duly sworn upon [his] oath," the affidavit did not purport to have been signed before a notary or any other official empowered to administer oaths. No official actually placed Harrison under oath, and no official was present or available when Harrison signed the affidavit. For purposes of this decision, we assume that the absence of a notary or any other official empowered to administer oaths bars Harrison's affidavit from being deemed a sworn statement under subparagraph (A) of AS 11.56.240(2): "a statement knowingly given under oath or affirmation." We thus consider only whether the affidavit might qualify as a sworn statement under subpara-graph (B) of AS 11.56.240(2): "a statement knowingly given under penalty of perjury under AS 09.63.020." The definition of "sworn statement" set out in subparagraph (2)(B) incorporates the provisions of AS 09.63.020(a), entitled "[c]ertifi-cation of documents." The certification statute states: A matter required or authorized to be supported, evidenced, established, or prov en by the sworn statement, declaration, verification, certificate, oath, or affidavit, in writing of the person making it (other than a deposition, an acknowledgment, an oath of office, or an oath required to be taken before a specified official other than a notary public) may be supported, evidenced, established, or proven by the person certifying in writing "under penalty of perjury" that the matter is true. The certification shall state the date and place of execution, the fact that a notary public or other official empowered to administer oaths is unavailable, and the following: "I certify under penalty of perjury that the foregoing is true." In the present case, even though Harrison's affidavit expressly stated that Harrison "deelare[d] under penalty of perjury that the foregoing is true and correct" — language tracking the form certification required by this statute — the affidavit failed to include another required statement: "that a notary public or other official empowered to administer oaths is unavailable[.]" Harrison argues that, due to this omission, his affidavit was not a proper certification under AS 09.63.020, and so did not qualify as a "sworn statement" under the definition set out in AS 11.56.240(2)(B), which requires proof of "a statement . given under penalty of perjury under AS 09.63.020." Harrison reasons that since his affidavit could not be considered a "sworn statement," it was legally insufficient to support convictions for perjury, which under AS 11.56.200(a), require "false sworn statement[s]." Harrison's argument is overly technical and ignores the basic policy underlying Alaska's perjury statute; this policy favors substance over- form. As noted in the commentary to the Model Penal Code, upon which Alaska's perjury statute was patterned: The guiding principle [of the offense of perjury] is that when the community commands or authorizes certain statements to be made with special formality or on notice of special sanctions, the seriousness of the demand for honesty is sufficiently evident to warrant the application of criminal sanctions. Upon this principle, it makes little difference what formula is employed to set this seal of special importance on the declaration. Within the same principle, technical irregularities in the administration of an oath should not be regarded as mitigating the offense. Model Penal Code § 241.1, Commentary at 129-30 (1980). Mindful of this policy, Alaska's appellate courts have chafed at arguments favoring a narrow interpretation of the term "sworn statement." See Anchorage Sand and Gravel Co. v. Wooldridge, 619 P.2d 1014 (Alaska 1980); Knix v. State, 922 P.2d 913 (Alaska App. 1996); Gargan v. State, 805 P.2d 998 (Alaska App.1991). In Gargan, this court dealt with a perjury conviction involving an affidavit that purported on its face to be sworn before a notary. Evidence at trial established that the notary had not actually placed Gargan under oath. We nevertheless affirmed Gargan's perjury conviction, observing that, for purposes of determining whether a sworn statement had been made, the crucial issue was not whether an oath was actually given, but rather whether the statement amounted to "a verification on its face of the truthfulness of the facts contained therein." Gargan, 805 P.2d at 1005. More recently, we followed the same approach in Knix v. State, which involved a notarized statement that did not state on its face that it was sworn before the notary and that in fact was not given under oath. The statement nevertheless expressly declared that it was "made under penalty of perjury." We found that this language "readily qualified] as an affirmation," and, relying on Gar-gan, we concluded that "its presence on the face of the notarized statement renders the statement one that 'purports to be sworn.' " Knix, 922 P.2d at 917, (quoting Gargan, 805 P.2d at 1005). We thus affirmed the perjury convictions. Gargan and Knix dealt with notarized statements and thus addressed the definition of "sworn statement" set out in AS 11.56.240(2)(A). In contrast, Harrison's case involves an unnotarized statement purportedly certified under penalty of perjury; thus we address the definition of "sworn statement" set out in subparagraph (B) of the same statute. Nevertheless, the policies we invoked in deciding Gargan and Knix apply with equal force to Harrison's case. When a false statement pertaining to an important matter is sworn, affirmed, or certified, the resulting evil is the likelihood that the statement's formal assertion of truthfulness will be honored and relied upon. This is the evil the perjury statute seeks to prevent. Hence, the pertinent question in Harrison's case is not whether Harrison's omission of a formally required phrase could conceivably cause his affidavit to be rejected on technical grounds in some situations; rather, the question is whether the affidavit, despite this omission, manifests Harrison's intent to formally declare the truthfulness of the affidavit's factual assertions, so that reasonable persons would be expected to honor and act on them. Despite its failure to expressly state that no notary was available, Harrison's affidavit declared that it was made under penalty of perjury "pursuant to the provisions of AS 09.63.020." By including this language, the affidavit in effect incorporated by reference and implicitly professed compliance with the requirements of the certification statute. As we have already mentioned, no notary was actually available when Harrison signed his affidavit. Harrison's affidavit clearly amounted to "a verification on its face of the truthfulness of the facts contained therein." Gargan, 805 P.2d at 1005. Given these circumstances, Judge Zervos did not err in finding the evidence legally sufficient to establish that the affidavit was a "sworn statement" within the meaning of AS 11.56.240(2)(B). Harrison's conviction is AFFIRMED. . In Gargan v. State, 805 P.2d 998 (Alaska App. 1991), we affirmed a perjury conviction based on an affidavit that was signed before a notary, even though the notary did not actually administer an oath. We found the affidavit to be a sworn statement under subparagraph (2)(A) because it purported on its face to have been given under oath. The complete absence of a notary or other official empowered to administer oaths arguably distinguishes Harrison's case from Gargan. Our conclusion that Harrison's affidavit qualifies as a sworn statement under subsection (2)(B) makes it unnecessary to consider the state's argument that the affidavit also qualifies as a sworn statement under subsection (2)(A). . Although the affidavit in Knix incorporated wording of the certification statute by declaring that it was signed "under penalty of perjury," it had in fact been signed before a notary. Accordingly, we found it to be a notarized statement and concluded that it fell within the definition of a sworn statement set out in subparagraph (A) of AS 11.56.240(2). For this reason, we found it unnecessary to decide whether the affidavit might also have qualified as a sworn statement under the definition set out in subparagraph (B) — "a statement given under penalty of perjury under AS 09.63.020." Knix, at 915 n.2. . Cf. Martin v. State, 896 S.W.2d 336, 339 (Tex. App.1995) ("That [an affidavit's] formalities were not met does not negate the existence of the oath; it merely vitiates the use of the instrument as proof that an oath was taken."). .Harrison acknowledges AS 11.56.200(b)(2), which provides Aat "[i]n a prosecution [for perjury] under this section, it is not a defense Aat . Ae oaA or affirmation was taken or administered in an irregular manner." However, Harrison strenuously argues Aat this provision applies only to the definition of "sworn statement" set out in AS 11.56.240(2)(A) and Aat it is inapplicable when a perjury prosecution involves a false statement Aat qualifies as a sworn statement only under Ae definition set out in AS 11.56.240(2)(B). Our reliance on Gargan and Knix makes it unnecessary to determine Ae scope of AS 11.56.200A). While our prior decisions make passing reference to Ais provision, neiAer purports to give it determinative weight.

10328813

Danny HUSTON, Appellant, v. COHO ELECTRIC, and Crawford & Company/Argonaut Insurance Company, and Alaska Insurance Guaranty Association, Appellees

Huston v. Coho Electric

1996-09-27

No. S-6534

818

820

923 P.2d 818

923

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T16:59:37.070555+00:00

CAP

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

Danny HUSTON, Appellant, v. COHO ELECTRIC, and Crawford & Company/Argonaut Insurance Company, and Alaska Insurance Guaranty Association, Appellees.

Danny HUSTON, Appellant, v. COHO ELECTRIC, and Crawford & Company/Argonaut Insurance Company, and Alaska Insurance Guaranty Association, Appellees. No. S-6534. Supreme Court of Alaska. Sept. 27, 1996. Michael J. Patterson, Anchorage, for Appellant. Peter J. Crosby, Crosby & Sisson, P.C., Anchorage, for Appellees Coho Electric and the Aaska Insurance Guaranty Association. Deirdre D. Ford, DeLisio, Moran, Ger-aghty & Zobel, Anchorage, for Appellees Coho Electric and Agonaut Insurance Company. 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.

1218

7856

OPINION EASTAUGH, Justice. We must here consider whether AS 23.30.110(c) time bars Danny Huston's claim for workers' compensation benefits. The Aaska Workers' Compensation Board dismissed Huston's claims as untimely. The superior court affirmed when Huston appealed the Board's decision. We reverse and remand. I. FACTS AND PROCEEDINGS Danny Huston injured his lower back while employed by Coho Electric (Coho) in 1984. Agonaut Insurance Company (Ago-naut) then insured Coho. Coho/Agonaut accepted the claim for the 1984 injury and paid Huston temporary total disability benefits. He was released to return to work without restriction. Huston suffered a second back injury while employed by Coho in 1985. Rockwood Insurance Corporation then insured Coho. (The Aaska Insurance Guaranty Asociation succeeded Rockwood, which has been liquidated.) Coho/Rockwood paid benefits for Huston's 1985 injury, and Huston returned to work for Coho. On May 28, 1987, Huston filed an application for adjustment of claim ("first application"), requesting permanent partial disability (PPD), temporary total disability (TTD), vocational rehabilitation and medical benefits. The application was based upon both the 1984 and 1985 injuries. Coho and its insurers answered the application, denying all claims, on June 24, 1987. On November 14, 1988, Huston served and filed an affidavit of readiness for hearing. The affidavit asserted that Huston was prepared for a hearing "on the issues set forth" in the first application. In a subsequent prehearing conference, Huston indicated that he only wished to pursue a hearing regarding the payment of certain outstanding medical costs. However, the Board did not conduct a hearing; following a March 6, 1989, prehearing conference, the Board reported that "issues before the Board are resolved. Affidavit of Readiness will be rendered inoperative." The record reveals no objections from any party regarding that statement. On August 21, 1991, Huston filed another application for adjustment of claim ("second application"), requesting TTD, vocational rehabilitation and medical benefits, plus attorney's fees. That application specified the 1984 injury. Coho and Argonaut answered the application, denying all claims, on September 11, 1991. On February 10, 1992, Huston filed an affidavit of readiness for hearing asserting he was prepared for a hearing to resolve the issues raised in the August 21, 1991, application for adjustment. Huston filed this affidavit of readiness about five months after Coho denied his August 21, 1991, application, and nearly three years after the Board in March 1989 ordered that his 1988 affidavit of readiness "will be rendered inoperative." A hearing on Huston's August 21, 1991, application was held June 19, 1992. At that hearing, Huston requested and was granted a continuance so he could obtain new counsel following withdrawal of his previous attorney. Huston was subsequently examined by a physician who gave him a nine percent disability rating. Through newly-acquired counsel, Huston filed on July 29 and 30,1992, affidavits of readiness for hearing for the 1984 injury and the 1985 injury, respectively. Those affidavits specified that Huston was prepared for a hearing on the issues set forth in the first application dated May 28, 1987; the affidavits made no reference to the second application, dated August 21,1991. At a prehearing conference, Huston stated that the issues to be heard were Huston's claims for PPD, reimbursement for rehabilitation, medical benefits, and attorney's fees. These were among the benefits Huston had requested in the first application. Coho and Argonaut asked the Board to dismiss Huston's claim as time-barred under AS 23.30.110(c). The Board held that statute barred all of Huston's claims. It reasoned that the statute of limitations began running again on March 6,1989, when Huston agreed at the prehearing conference that the issues before the Board at that time had been resolved and when the Board stated the 1988 affidavit of readiness for hearing "will be rendered inoperative." It noted it had held on numerous occasions that when an affidavit of readiness for hearing is rendered inoperative, the limitations statute in subsection 110(c) starts to run again. The Board reasoned that even tolling the two-year time limit for the period between November 14, 1988 (when Huston filed the initial affidavit of readiness for hearing) and March 6, 1989 (when the Board conducted the prehearing conference), Huston's 1992 affidavits were untimely. Thus the Board concluded that the 1987 claim was time-barred. The superior court affirmed the Board's ruling on appeal. II. DISCUSSION This case turns on statutory interpretation. Accordingly, we review the decision of the Board using our independent judgment. Hood v. State, Workmen's Compensation Bd., 574 P.2d 811, 813 (Alaska 1978). Where the superior court has acted as an intermediate court of appeal, we give its determination no deference. Smith v. Sampson, 816 P.2d 902, 904 (Alaska 1991). Subsection 110(e) "requires the employee, once a claim has been filed and con troverted by the employer, to prosecute the employee's claim in a timely manner." Jonathan v. Doyon Drilling, Inc., 890 P.2d 1121, 1124 (Alaska 1995). See 2B Arthur Larson, The Law of Workmens' Compensation § 78.84, at 15-426.32(58) (1995) (describing similar statutes by which "a claim may be dismissed for failure to prosecute it or set it down for hearing in a specified or reasonable time"). Subsection 110(c) was the basis for the Board's dismissal of Huston's claim for benefits requested in his May 28, 1987, application. It held that subsection 110(c) barred Huston's 1987 claims because it concluded that the statute of limitations began running again on March 6,1989, when Huston agreed at the prehearing conference that the issues before the Board at that time had been resolved and when the Board ordered that his initial affidavit of readiness "will be rendered inoperative." Huston argues that the filing of the November 14,1988, affidavit of readiness should have permanently tolled subsection 110(c). We agree that the plain language of subsection 110(c) demands only that the employee request a hearing within two years of the date of controversion; the Board may require no more from the employee. Tipton v. ARCO Alaska, Inc, 922 P.2d 910 (Alaska 1996). The Board may not unilaterally restart subsection 110(e)'s time limit after the employee has timely requested a hearing. III. CONCLUSION We REVERSE and REMAND to the superior court with instructions that it remand to the Board for reinstatement of Huston's claims. . When Huston suffered his injuries, subsection 110(c) provided in relevant part: If a claim is controverted by the employer and the employee does not request a hearing for a period of two years following the date of contr-oversion, the claim is denied. Former AS 23.30.110(c) amended by § 20, ch. 79, SLA 1988. The 1988 amendment applies only to injuries suffered on or after July 1, 1988. Ch. 79, § 48, SLA 1988. . Our resolution of this issue makes consideration of Huston's remaining arguments unnecessary.

10328038

J. Burk VOIGT, Appellant, v. Arthur H. SNOWDEN, II, Richard D. Savell, Karrold Jackson, Ronald J. Woods, Stephanie J. Cole, Shirley Nash and State of Alaska, Appellees

Voigt v. Snowden

1996-09-13

No. S-7369

778

783

923 P.2d 778

923

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T16:59:37.070555+00:00

CAP

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

J. Burk VOIGT, Appellant, v. Arthur H. SNOWDEN, II, Richard D. Savell, Karrold Jackson, Ronald J. Woods, Stephanie J. Cole, Shirley Nash and State of Alaska, Appellees.

J. Burk VOIGT, Appellant, v. Arthur H. SNOWDEN, II, Richard D. Savell, Karrold Jackson, Ronald J. Woods, Stephanie J. Cole, Shirley Nash and State of Alaska, Appellees. No. S-7369. Supreme Court of Alaska. Sept. 13, 1996. J. Burk Voigt, Fairbanks, pro se. Robert John, Law Office of Robert John, Fairbanks, for Appellant. Frank S. Koziol, Law Office of Frank S. Koziol, Anchorage, for Appellees. Before COMPTON, C.J., and MATTHEWS, EASTAUGH and FABE, JJ.

2877

18470

OPINION FABE, Justice. I. INTRODUCTION J. Burk Voigt claimed that he was wrongfully terminated from his position with the Alaska Court System. "While he initially contested his termination and filed a formal grievance, Voigt failed to exhaust his administrative remedies. The issue raised in this appeal is whether this failure should be excused. II. FACTS AND PROCEEDINGS A. Voigt's Tenure as Clerk of Court and Eventual Termination In June 1989 J. Burk Voigt applied for and was offered the position of Fairbanks Clerk of Court and Assistant Area Court Administrator for the Fourth Judicial District of the Alaska Court System. Voigt accepted the job and moved from Colorado to Fairbanks. Voigt received his first performance evaluation in September 1990. Charles Gibson, Area Court Administrator, gave Voigt an overall evaluation of "above average." However, in the category of "getting along with other workers," Voigt received a rating of "needs improvement." Gibson noted that he wanted Voigt to consider the evaluation of his ability to relate to others "not as a reprimand, but as a guide for the future; not to punish, but to inspire." In February 1991 Voigt received a second evaluation from Gibson because of Gibson's imminent departure as Area Court Administrator. On Voigt's evaluation form, Gibson created a box between "above average" and "outstanding" to describe Voigt's overall performance. He noted that Voigt had "applied himself with enthusiasm and improved his performance considerably." The new Presiding Judge for the Fourth Judicial District, Judge Richard Saveli, signed the evaluation but noted that he lacked "a basis for comparison" and did not "endorse or disagree" with the evaluation. After Gibson's departure, Voigt assumed the position of Acting Area Court Administrator. He served in this capacity for nine months before a permanent Area Court Administrator was appointed. During that time, he received a written reprimand from Presiding Judge Saveli for "unacceptable behavior in the performance of [his] duties." Saveli characterized Voigt's behavior as "game-playing, passive-aggressive behavior, or behavior befitting a spoiled, pouting child." The reprimand related several examples of Voigt's conduct in this regard. The letter of reprimand warned Voigt that "failure to correct these deficiencies will lead to further disciplinary action up to and including your dismissal, if warranted." Five months after the reprimand, Presiding Judge Saveli gave Voigt his third performance evaluation. Saveli rated Voigt as overall "above average" and recommended him for a merit increase. However, Judge Saveli also noted that Voigt tended to circumvent his superiors if he disagreed with them and that he was "openly hostile and disrespectful in his dealings with representatives of court administration." Saveli expressed his concern that Voigt's "great accomplishments in the Clerk's Office have come at the price of dampened morale and fear on the part of subordinate employees." In February 1992 Voigt filled a vacant Court Clerk I position by offering it to a former superior court law clerk. At the time that Voigt made the offer, this former clerk was working as an attorney in Maine. R.D., an Alaska Native working for the court system in Galena, filed a grievance alleging discrimination when she was not hired for the position. R.D. had previously applied for positions with the Fairbanks court on two occasions and had not been hired for either of them. Woods reviewed the grievance and upheld Voigt's hiring decision. However, shortly thereafter, Presiding Judge Saveli overturned Woods' decision in R.D.'s case, finding that Voigt had ignored R.D.'s superi- or qualifications and experience and had imposed a "subjective personality requirement that [was] potentially discriminating in its application." Prior to the resolution of R.D.'s grievance, Arthur H. Snowden, II, Administrative Director of the Alaska Court System, requested Personnel Director Karrold Jackson to investigate the integrity of the hiring procedures being used in Fairbanks. Snowden instructed Jackson to wait for completion of any outstanding grievances before proceeding with this task. Jackson traveled to Fairbanks on March 3, 1992 in order to conduct her investigation of Voigt's patterns of hiring. According to Voigt, after meeting with him, Jackson met "mostly with employees who had a complaint to register against Voigt and were 'promised anonymity.' " On March 24, 1992, Woods and Saveli delivered a Notice of Intent to Terminate to Voigt. The reasons given for dismissal included "numerous . inappropriate statements and actions in dealing with subordinate employees;" misuse of court resources "for improper and harmful purposes;" insubordinate behavior in an "attempt[] to undermine the presiding judge's action[s] in front of subordinate employees;" and "poor personnel and supervisory practices despite . previous warnings." Voigt claims that none of the matters in this notice had ever been discussed with him before. B. The Administrative Proceedings Voigt challenged his termination by requesting a pretermination hearing. Normally Judge Saveli would have presided over the pretermination hearing as the Area Court Administrator's superior. However, because of his role in the investigation and decision to terminate Voigt, he asked then Chief Justice Jay A. Rabinowitz to designate another presiding judge for the purpose of holding a pretermination hearing. Chief Justice Rabi-nowitz appointed Judge Niesje J. Steinkruger as Acting Presiding Judge for the purpose of holding the pretermination hearing. On March 26, 1992, Judge Steinkruger held a pretermination hearing. Voigt's counsel asked Judge Steinkruger to recuse herself and attempted to exercise a peremptory disqualification. Judge Steinkruger rejected both of these requests. The hearing, which was recorded and open to the public, lasted over twelve hours. Voigt's counsel agreed that Voigt was not entitled to a full-blown evidentiary hearing at the pretermination stage and that the purpose of the hearing was to determine whether there was reasonable cause to terminate Voigt. Voigt's counsel examined Judge Sa-veli and Ronald Woods extensively regarding the basis for the allegations in the Notice of Termination. Voigt also testified. Voigt's counsel made a closing statement. The following day, Judge Steinkruger upheld the decision to terminate Voigt, finding reasonable grounds to believe that the charges were true and that they supported the proposed action of termination. That same day, Saveli sent Voigt a Final Notice of Dismissal. The notice informed Voigt that he had the right to file a formal grievance as outlined in Alaska Court System Personnel Rule (ACSPR) 9.06. A copy of the rule was attached. Under ACSPR 9.05, Voigt had five working days within which to file a formal written grievance with Personnel Director Karrold Jackson. Voigt did so by a letter dated April 2, 1992. Voigt continued to receive full pay and benefits. Stephanie Cole, the Deputy Administrative Director, forwarded the grievance to Administrative Director Snow-den and requested the appointment of an investigator. Snowden appointed Christine Johnson, Alaska Court System Rules Attorney. Voigt did not object to this appointment. After interviewing numerous witnesses, Johnson filed a report that supported the termination. Voigt's next step in the administrative process was to request a hearing under ACSPR 9.05.02. He did not. Instead, Voigt's attorney wrote to Chief Justice Rabinowitz, indicating that further administrative proceedings would be futile and that his client would pursue his case in federal court. Had Voigt requested a hearing, a hearing officer would have been appointed by Administrative Director Snowden. Voigt would have had the right to file an objection to the choice of officer and to demonstrate bias on the part of the officer. Voigt would have had the right to be represented by counsel, to call witnesses, and to cross-examine witnesses against him. The hearing would have been recorded, with all testimony given under oath. The decision of the hearing officer would have been forwarded to Snowden for review. If Snowden upheld an adverse decision, Voigt would have had the right to file an administrative appeal to the superior court under Appellate Rule 602(a)(2). C. The Judicial Proceedings Voigt filed a complaint in federal district court on April 16, 1992. Voigt's federal law claims were dismissed with prejudice on June 20, 1994, and his state law claims were dismissed without prejudice. This decision was affirmed by the Ninth Circuit. Voigt v. Saveli, 70 F.3d 1552, 1566 (9th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1826, 134 L.Ed.2d 931 (1996). On May 17, 1994, Voigt filed a complaint in superior court in which he made contract, tort, and constitutional claims. Judge Michael I. Jeffery granted the defendants' motion for summary judgment, based on Voigt's failure to exhaust his administrative remedies. Alternatively, Judge Jeffery found that Voigt's lawsuit was an untimely administrative appeal. Voigt appeals. III. DISCUSSION A. Standard of Review This court reviews the superior court's grant of summary judgment de novo. Nielson v. Benton, 903 P.2d 1049, 1052 (Alaska 1995). The judgment will be affirmed only if no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Wright v. State, 824 P.2d 718, 720 (Alaska 1992). B. Voigt's Failure to Exhaust His Administrative Remedies As we observed in Van Hyning v. University of Alaska, the exhaustion of administrative remedies doctrine "allow[s] an administrative agency to perform functions within its special competence — to make a factual record, to apply its expertise, and to correct its own errors so as to moot judicial controversies." 621 P.2d 1354, 1355-56 (Alaska 1981) (quoting Parisi v. Davidson, 405 U.S. 34, 37, 92 S.Ct. 815, 818, 31 L.Ed.2d 17 (1972)). Here, Voigt concedes that he faded to exhaust his administrative remedy by declining to proceed to a grievance hearing before a hearing officer. Furthermore, he acknowledges that the Alaska Court System's grievance procedures are adequate as written and that they comply with due process. Voigt argues that he should be excused from the exhaustion requirement since it would have been futile for him to proceed to the hearing stage, given the involvement of Snowden, Jackson, Saveli, and Woods in his investigation and termination. In a related argument, he contends that the grievance procedures were not being applied in a fair manner, due to the appointment of Judge Steinkruger to conduct the pretermination hearing and the selection of a member of Snowden's staff to conduct an "in-house" investigation. The availability of an impartial tribunal is "a basic ingredient of a fair and adequate- hearing in accordance with due process." Eidelson v. Archer, 645 P.2d 171, 181 (Alaska 1982) (citations omitted). We have stated that when one person performs the functions of investigating, prosecuting and judging a case, this requirement of an impartial tribunal may not be satisfied. Id. at 182; Storrs v. Lutheran Hosp. & Homes Soc'y of Am., Inc., 609 P.2d 24, 28 n. 12 (Alaska 1980). While Voigt claims that an adverse decision from Snowden was a certainty, Snowden's involvement in Voigt's case was minimal. In its decision on summary judgment, the superior court recognized and relied on the fact that "Snowden had never actually been called upon to make a decision about the propriety of Voigt's termination." In Eidelson, we rejected a suspended doctor's futility argument which was similar to that of Voigt, despite the fact that Dr. Ivy, the hospital official who initiated the suspension of the doctor's privileges, was also a member of the executive committee which was to review the suspension decision. We found that under the hospital bylaws, Dr. Archer was permitted to object to Dr. Ivy's participation in the executive committee's review of the hearing committee's recommendation. Eidelson, 645 P.2d at 182. We also rejected Dr. Archer's argument that the executive committee could not review the suspension fairly because of its previous involvement in the case. Id. at 183. This was in part due to the fact that Dr. Archer had a further right to appeal to the governing board, which had not played any role in the investigation or decision to terminate. Id. Dr. Archer contended, as Voigt does in this case, that the disciplinary proceedings were being deliberately used against him, and that this excused his failure to exhaust his administrative remedies. We held that Dr. Archer should have raised this complaint through the administrative appeals process. Id. at 179-80. In this case, Voigt's fears of a biased hearing could certainly have been allayed had he continued with the administrative process. The ultimate decision in Voigt's case was to be made by Snowden, whose role was not that of prosecutor or investigator. Snowden might well have appointed a hearing officer whom Voigt believed would be fair and who could have developed an accurate factual record. Had Voigt continued to harbor con-cems that the selected hearing officer would not be fair and impartial, he would have had the right to object to the choice of hearing officer. And Voigt could have continued to raise those objections in an administrative appeal to the superior court. Like the doctor in Eidelson, Voigt should have pursued his complaints through the grievance and administrative appeal process before turning to the courts for help. To hold otherwise would be to obviate the requirement that an adverse decision be a "certainty." Voigt's failure to exhaust his administrative remedies cannot be excused on the grounds of futility or that his remedy was inadequate. Voigt also claims that because he contested the form of the administrative procedure, he was not required to exhaust his administrative remedies. See Eleven v. Yukon-Eoyukuk Sch. Dist, 853 P.2d 518, 525 (Alaska 1992). Our decision in Eleven does not help Voigt. In Eleven, the terminated administrator wanted to pursue his grievance through binding arbitration, as provided under the school district labor contract. The school district wanted him to pursue his grievance before the school board. We noted that in most cases, "administrative procedures are clear, and a claimant has only to follow them in order to seek relief from an administrative body." Id. But in a case where the procedure that will be followed is unclear, the claimant may go to court to get the dispute resolved, with a remand to the appropriate administrative agency to follow the correct procedure. Id. In this case, the procedure to be followed was clear, and there is every indication that Voigt understood it. Indeed, Voigt never alleges that he misunderstood the formal grievance procedure required by the Personnel Rules. Since the grievance procedure to be used was clear, Voigt was required to make a "'good faith effort' to pursue the grievances internally." Id. at 524 (quoting Eufemio v. Kodiak Island Hosp., 837 P.2d 95, 100 (Alaska 1992)). This he failed to do. IV. CONCLUSION Voigt's failure to exhaust his administrative remedies cannot be excused as a matter of law. The judgment of the superior court is AFFIRMED. RABINOWITZ, J., not participating. . In November 1991 Ronald Woods became the Area Court Administrator. . Ms. Cole offered Thomas Wickwire, counsel for Voigt, the option of "skipping this stage" and proceeding directly to a hearing before an impartial hearing officer, since the pretermination hearing had covered many of the same areas as would an investigation. Voigt's counsel asked Cole who would be conducting the investigation. Upon learning that it would be Johnson and discussing it with his client, Wickwire stated that Voigt did not wish to waive the investigation. . Indeed, Voigt's expert, John N. Taylor, Ph.D., Associate Professor of Management at the University of Alaska Fairbanks, states that the Alaska Court System's grievance procedures are "comprehensive" and "typical of those found in any large private or government employer organizations," . While Snowden initiated an investigation of Voigt's hiring practices, he specifically instructed Karrold Jackson to refrain from starting her investigation of Fairbanks hiring practices until after all grievances were over. After Voigt's termination, Snowden appointed an investigator, Christine Johnson, to prepare a report on the termination. Voigt had no objection to the selection of Johnson as investigator. . Voigt argues the related point that once he discovered that "his fate had already been sealed," he worried that he would be collaterally estopped from relitigating the facts of his dispute. He argues that this was a major reason for his abandonment of the administrative appeals process. However, as Diedrich v. City of Ketchi-kan makes clear, issue preclusion as a result of administrative proceedings hinges on the fact that the administrative hearing was fair and presented the plaintiff with a full opportunity to present his case. See Diedrich v. City of Ketchikan, 805 P.2d 362, -366-67, 369-70 (Alaska 1991). If the process had been unfair, Voigt would not have been estopped. If it was fair, he would have had no reason to complain. . Voigt also briefly takes issue with the appointment of Judge Steinkruger as Acting Presiding Judge for the purpose of conducting his preter-mination hearing. However, as the trial court noted in its decision on summary judgment, "since [Voigt would] continu[e] to receive pay and benefits until the conclusion of [the grievance] process, the post-termination hearing would cure any deficiencies in the pretermination hearing." Voigt would also have had the opportunity to raise arguments about the propriety of his suspension dining the formal grievance and administrative appeal process.

10327886

MOUNT JUNEAU ENTERPRISES, INC., Alaska Trams, Inc., Arnt I. Antonsen, and Charles Keen and Karen Keen, Appellants, v. The CITY AND BOROUGH OF JUNEAU, a Municipal Corporation, Brace Botelho, Caren Robinson, Rosalee T. Walker, Kim S. Elton, Dennis W. Egan, Rosie Peterson, Errol Champion, George Davidson, John MacKinnon, Kevin Ritchie, Barbara Blasco, and Murray Walsh, Appellees

Mount Juneau Enterprises, Inc. v. City & Borough of Juneau

1996-09-06

No. S-6611

768

778

923 P.2d 768

923

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T16:59:37.070555+00:00

CAP

Before RABINOWITZ, MATTHEWS and COMPTON, JJ.

MOUNT JUNEAU ENTERPRISES, INC., Alaska Trams, Inc., Arnt I. Antonsen, and Charles Keen and Karen Keen, Appellants, v. The CITY AND BOROUGH OF JUNEAU, a Municipal Corporation, Brace Botelho, Caren Robinson, Rosalee T. Walker, Kim S. Elton, Dennis W. Egan, Rosie Peterson, Errol Champion, George Davidson, John MacKinnon, Kevin Ritchie, Barbara Blasco, and Murray Walsh, Appellees.

MOUNT JUNEAU ENTERPRISES, INC., Alaska Trams, Inc., Arnt I. Antonsen, and Charles Keen and Karen Keen, Appellants, v. The CITY AND BOROUGH OF JUNEAU, a Municipal Corporation, Brace Botelho, Caren Robinson, Rosalee T. Walker, Kim S. Elton, Dennis W. Egan, Rosie Peterson, Errol Champion, George Davidson, John MacKinnon, Kevin Ritchie, Barbara Blasco, and Murray Walsh, Appellees. No. S-6611. Supreme Court of Alaska. Sept. 6, 1996. Rehearing Denied Nov. 20, 1996. Phillip Paul Weidner, Weidner & Associates, Inc., Anchorage, for Appellants. Avrum M. Gross and Susan A. Burke, Gross & Burke, Juneau, for Appellees. Before RABINOWITZ, MATTHEWS and COMPTON, JJ.

5922

35339

OPINION RABINOWITZ, Justice. I. INTRODUCTION This appeal involves an interwoven property right and contractual dispute surrounding a failed attempt by Charles Keen to construct a tram to the top of Mount Juneau. II. FACTS AND PROCEEDINGS There are two separate sets of facts underlying the issues of this appeal, those relating to the tunnel claim and those relating to the tram claims. A. The Tunnel Claim In 1913, the Alaska Juneau Gold Mining Company (AJ) obtained an easement to construct and maintain a tunnel underneath the Red Jacket and White Wing mining claims. The easement granted AJ, "its successors and assigns forever, the right to drive, construct and maintain" a 9' by 14' tunnel under the Red Jacket and White Wing mining claims to enable the AJ "to construct and perpetually maintain a transit tunnel in and through which to lay water pipes, flumes and other conduits for the purpose of conveying water...." The tunnel connected the two already existing ends of what is known as "Tunnel No. 3." On January 3, 1974, AJ Industries conveyed its rights in the tunnel to the Alaska Electric Light & Power Company (AEL & P) by a statutory quitclaim deed. That June, AEL & P granted the City and Borough of Juneau (City) a permanent easement specifically authorizing the City to use the tunnel for "the transmission and storage of water." From September 1977 to April 1979, contractors for the City worked to convert the tunnel into a public water reservoir. The entire project was accepted as complete on November 1,1979; however, additional work continued until May 1982. Sometime in 1972, Charles Keen became interested in purchasing the Red Jacket and White Wing mining claims overlying the tunnel. He contacted Leonard Idso, who was paying taxes on the property at the time, and apparently obtained an option to purchase the property. The first record of Keen's interest in the property is an earnest money agreement, dated October 5, 1981, between Keen and Idso for the sale of property including the Red Jacket and White Wing mining claims. The agreement provides that the purchase price for the two mining claims, as well as a third mining claim, was $10,000. The agreement also states that the real property was to be conveyed subject to "easements of record." A statutory warranty deed from Idso to Charles and Karen Keen for the three mining claims was executed on October 16, 1981, and on October 22, 1981, the Keens quitclaimed their interest to Alaska Trams, Inc. Keen testified in his deposition that he first learned of the City's use of the tunnel either just prior to or immediately after his purchase. Keen testified that, at some time after the purchase, he and his wife saw a map at the municipal building showing the City's use of the tunnel. He advised the City that a mistake had been made and thereafter took the position that the City was trespassing on his property. B. The Tram Claims In 1976, the City became involved in Keen's plans to build a tram to the top of Mount Juneau. The first plan called for a tramway from a base terminal on South Franklin Street to the top of Mount Juneau with a mid-point tower on Gastineau Ridge. The City leased a piece of land on Gastineau Ridge to Alaska Trams for the mid-point tower and issued a conditional use permit that would allow the construction. In 1978, the City sold Keen some land on South Franklin Street to be used for the base terminal. The deed of sale contained a reversion clause providing that the City could repurchase the land if it was not used to develop the tram within four years. The deadline, however, was extended several times. In 1984, the City modified its procedures and required contractors with conditional use permits to secure building permits and begin construction within 18 months. Keen applied for a new permit, set to expire in February 1986, based on the same plan outlined in 1976. On February 25, 1985, Keen offered to waive all of his potential tunnel claims against the City if the City would deed him the property he already owned on South Franklin Street free of the reversion clause, deed him the land owned by the City on Gastineau Ridge and at that time leased to Keen for the mid-point towers, grant him certain air rights over City property, and "road deed access and parking space . over City property" to his mining claims. After an initial ordinance reflecting the terms of this settlement was debated and rejected by the Assembly, a new ordinance reflecting similar terms, Ordinance No. 85-53am, was introduced and passed. The provision required Keen to submit surveys describing the as yet unspecified location, extent and scope of the easements for the road and the parking lot "at a location and size to be approved by staff in accordance with existing planning and zoning standards." At the time Ordinance 85-53am was adopted, Keen's conditional use permit authorized the placement of mid-point towers on Gastineau Ridge. However, Keen then decided to change the plans for the tram due to a dispute over air rights. Instead of having the tram begin on South Franklin Street, the new plan located the base of the tram on one of Keen's mining claims in Gold Creek Basin. In August of 1985, the City apparently concluded that the new plan would have to be evaluated by the Planning Commission and that Keen would have to proceed through the conditional use permit procedure. Keen's representative was subsequently informed that the new plan would require a zoning change and a new conditional use permit. In late 1986, the City Manager requested Keen to provide the survey required under Ordinance 85-53am. Specifically, he noted that the granting of an easement "for a road and parking lot over city and borough property connecting Red Jacket, White Wing, and Black Diamond mining claims to the nearest existing road" was conditioned on Keen "providing the manager with a stamped survey, describing the location, scope and extent of the easement at a location and size to be approved by staff in accordance with existing planning and zoning standards." Keen eventually applied for a zoning change for the land near his mining claims. However, because of numerous problems identified with that plan, Keen and the City agreed to come up with an alternative plan. Under the alternative plan, the base terminal would be located on South Franklin Street as envisioned by the original plan, but it would be located on City land to avoid any dispute over air rights. The City issued a new conditional use permit for this plan in April of 1987. Keen's representatives and the City worked to prepare Ordinance No. 87-30 which provided for the conveyance of City land on South Franklin Street to Keen in exchange for Keen's release of his tunnel trespass claims against the City. The ordinance was hotly debated at the Assembly meeting on May 4, 1987, and it ran into heavy public opposition due in part to the lack of an appraisal value for the tunnel claim. The ordinance was defeated by a 4 to 3 vote of the Assembly. In the meantime, several events of importance were taking place. First, in mid-1986, Alaska Trams filed for Chapter 11 bankruptcy. Second, City attorneys interpreted Ordinance No. 85-53am simply as an ordinance designed to settle the tunnel claims by authorizing the City Manager to negotiate a settlement and to transfer City land as part of the deal. Keen, on the other hand, had always contended that the ordinance was a binding contract. Third, City attorneys and some City assembly members were concerned that Keen's tunnel claim was worthless and an appraisal was eventually ordered to value the claim. Keen's representatives and the City subsequently began to work on Ordinance No. 87-34 to address the problems which led to the defeat of Ordinance No. 87-30. The appraisal, received prior to the Assembly's final action on Ordinance No. 87-34, concluded that the tunnel claim was valueless. Thus, the Assembly directed City staff to remove certain reversion and repurchase provisions in Ordinance No. 87-34 and to provide for the sale of City land at fair market value subject to a discount to reflect the litigation value of Keen's claim. This version of the ordinance was passed by the Assembly. Keen did not support this ordinance and refused to negotiate a credit for settling the tunnel claim. Keen approached the City and requested that the land transfer be separated from the issues surrounding the tunnel claim. The Assembly then passed Ordinance No. 88-03 which authorized conveyance of the property to Alaska Trams for an established price without requiring him to compromise the tunnel claim. The ordinance also required Keen to undertake certain actions before obtaining title to the property, including providing necessary surveys. These conditions were to be met by December 5, 1988, but due to delays, the land transfer was not completed until July 12,1989. In the meantime, the 1987 conditional use permit was set to expire in October of 1988. Prior to the expiration, Keen applied for and was granted a "fast track authorization" permit (FTA) that would allow him to build the project in phases. The permit required the work to commence by April 28, 1989, and that "construction activity shall continue without interruption until all work of the lower and mid terminal lower tram is accomplished." No work was commenced prior to April 28, 1989 and the starting date was extended until October 9, 1989. Work commenced prior to that date and continued sporadically until the spring of 1990. On October 29, 1990, Keen and City staff agreed to the conditions under which the FTA would be continued in force even though Keen's work on the project had stopped. Specifically, Keen agreed to provide insurance to cover damages to adjoining landowners and to provide a written guarantee from a reputable contractor that if Keen did not complete the lower retaining wall by April 30, 1991, the contractor would do so. Keen failed to deliver the insurance and guarantee, and the City set a January 22, 1991 deadline for Keen's performance of the agreement. At about this time, the Alaska Trams bankruptcy was converted into an involuntary Chapter 7 proceeding, and the City began to deal with the bankruptcy trustee. The City extended the insurance coverage and building commitment deadline until February 1, 1991 at the request of the bankruptcy trustee. The insurance was then finally posted and a contractor signed an agreement to complete the work if Keen failed to complete it. However, the contractor's guarantee was conditioned on Mount Juneau Enterprises' retaining the building permits. On January 25, 1991, the City Manager, Kevin Ritchie, was interviewed by a radio reporter. Ritchie stated that he could not think of a good reason to extend the permit past its last expiration date for Keen, but that the City would cooperate with the bankruptcy trustee. The City and the bankruptcy trustee began to discuss the status of the permit. The City informed the trustee that if the project was cancelled for reasons beyond Alaska Trams' control, the City would be able to refund $27,000 of the unexpended building permit fees to the bankruptcy estate. The trustee subsequently informed the City that the project was cancelled. Mount Juneau Enterprises immediately objected to the cancellation, and filed a motion before the bankruptcy court seeking to enjoin the trustee from cancelling the project. A hearing was held on March 8, 1991. The bankruptcy judge refused to enter an order, but ruled that the trustee had not effectively cancelled the project, and that the proper procedure to follow for cancellation of the project was to move for abandonment. Immediately after the healing, the City Manager wrote to Keen and the Assembly advising them of the judge's ruling and stating that the City would determine whether all the conditions of the building permit had been satisfactorily met. He invited Keen to meet with him and discuss the matter. A meeting was held. The City agreed to confirm in writing that the permit was valid, and extended the time period within which Keen was to complete the retaining wall until May 31,1991. However, Keen did not comply with the new deadline, and on June 23, 1991, he filed this suit against the City. Counts 1 through 5 of Mount Juneau Enterprises' complaint concerned the tunnel claim and included a claim for damages for trespass. Counts 6 through 13 concerned the tram claims and included claims for damages for breach of contract and fraud. The City subsequently informed Keen that the permit had expired. After extensive discovery, both parties moved for summary judgment. Following oral argument, the superior court concluded that there were no issues of material fact concerning any of the claims and entered final judgment in favor of the City. Mount Juneau Enterprises appeals. III. STANDARD OF REVIEW This is an appeal from the superior court's grant of summary judgment in favor of the City. In reviewing a grant of summary judgment, this court applies a de novo standard of review and determines whether there are any genuine issues of material fact, and whether the moving party is entitled to judgment on the law applicable to the established facts. Farmer v. State, 788 P.2d 43, 46 n. 8 (Alaska 1990); Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985). Mount Juneau Enterprises also appeals the superior court's denial of a motion to continue discovery under Civil Rule 56(f). This court reviews a trial court's decision on whether to permit further discovery under Civil Rule 56(f) for an abuse of discretion. Munn v. Bristol Bay Housing Auth., 777 P.2d 188, 192 (Alaska 1989). IV. DISCUSSION A. The Tunnel Claim The superior court concluded that the City had acquired title to the tunnel through inverse condemnation, that the condemnation had occurred before Keen obtained any interest in the tunnel and, accordingly, denied Keen's claims for damages for trespass or condemnation for a taking of property. On appeal, Keen argues that the superior court erred in determining that the City had inversely condemned the tunnel. Keen also argues that, even if the City had inversely condemned the tunnel, he has a right to compensation by virtue of his option to purchase. 1. Trespass Damages Subsections (4) and (5) of AS 09.55.240(a) provide that municipalities may use the power of eminent domain to condemn "sites for reservoirs necessary for collecting and storing water." An inverse condemnation occurs when a governmental entity takes private property for public purposes under the good-faith but mistaken belief that the taking does not require the exercise of eminent domain. State, Department of Highways v. Crosby, 410 P.2d 724, 728-29 (Alaska 1966). The doctrine of inverse condemnation was the basis of this court's decision in Wickwire v. City & Borough of Juneau, 557 P.2d 783 (Alaska 1976). In Wickwire, the City mistakenly placed a sewer line on Wickwire's property. Although Wickwire asserted a trespass claim, as did Mount Juneau Enterprises in this case, we concluded that the landowner's only remedy in such a case "is an inverse condemnation action for just compensation for the value of the easement on the date of taking_" Id. at 784. Keen's only argument that no inverse condemnation took place in this case is that the City's belief that it owned an easement sufficient to construct the reservoir was not a good-faith belief since a title search would have revealed that AEL & P did not have the power to convey this interest. We do not agree that the City's reliance on AEL & P's easement is inconsistent with a good-faith but mistaken belief that there was no need to exercise eminent domain powers. Accordingly, we conclude that the City inversely condemned the tunnel sometime in the mid-1970s and that Mount Juneau Enterprises could not, therefore, be entitled to damages for trespass. 2. Compensation for Inverse Condemnor tion Generally, "when there is a taking of property by eminent domain in compliance with the law, it is the owner of the property at the time of the taking who is entitled to compensation." 2 Sackman, Nichols on The Law of Eminent Domain § 5.01[4], at 5-29 (Rev.3d ed.1993). This right is a personal one which does not pass to a subsequent purchaser unless the parties explicitly agree to that arrangement. Wickwire, 557 P.2d at 785 n. 7; see also Williams v. City of Valdez, 624 P.2d 820, 821 (Alaska 1981). The agreement signed by Keen and Idso in 1981 nowhere provides for such a transfer. Since Keen was not the owner of the property on the date of the taking and did not receive any right of action against the government in his deed, he is not entitled to compensation as the owner of this easement. For purposes of this appeal, however, we must assume that Keen had an option to purchase the claims at the time that the City commenced construction of the reservoir, and we must consider the significance of this option. There is a recent trend favoring "the conclusion that the owner of an unexercised option to purchase land possesses a property right which is compensable in eminent do-main_" 2 Sackman, § 5.03[1], at 6-72 and 5-73. The leading case taking this approach is County of San Diego v. Miller, 13 Cal.3d 684, 119 Cal.Rptr. 491, 532 P.2d 139 (1975), in which the California Supreme Court held that the owner of an unexercised option to purchase land possesses a property right which is a compensable interest in a condemnation action. To this effect, the Miller court stated as follows: [Compensation issues should be decided on considerations of fairness and public policy. "The constitutional requirement of just compensation derives as much content from the basic equitable principles of fairness of property law." "[T]he right to compensation is to be determined by whether the condemnation has deprived claimant of a valuable right rather than by whether his right can technically be called an 'estate' or 'interest' in the land." Miller, 119 Cal.Rptr. at 495, 532 P.2d at 143 (citations and emphasis omitted). The court held that the measure of damages to the optionee is the excess, if any, of the total award above the optioned purchase price. Id., 119 Cal.Rptr. at 496, 532 P.2d at 144. Although we agree that an option does create a compensable interest in property and that, in some cases, an option-holder may be entitled to some proceeds from an inverse condemnation action, Keen's allegations in this case are simply not sufficient to support such a claim. In his affidavit, Keen stated as follows: I can state with certainty that I purchased this option in 1971 or 1972. I do not remember the amount I paid for the option. I did not keep a copy of this option. My wife and I are not sophisticated bookkeepers and at the time I had no idea that the option agreement would become an important document. In 1981 when we exercised the option to purchase and received a warranty deed we did not believe the option agreement was necessary to keep anymore. The fact that Keen held some kind of an option to purchase the land in question is not alone sufficient to entitle him to compensation. The proper inquiry should focus on the extent to which his option diminished in value as a result of the City's actions. In order to calculate this amount, Keen would have to introduce the terms of the option itself with adequate specificity; he has failed to do so. Without any evidence of the terms of the option, it is impossible to determine whether the condemnation has deprived Keen of a valuable right, thus warranting compensation. See Miller, 119 Cal.Rptr. at 495, 532 P.2d at 143. If, for example, the option allowed Keen to purchase the property at a price of one dollar at any time before the year 2000, the option may have diminished in value as a result of the City's actions to nearly the full extent of the value of the taking. On the other hand, if the option was merely a right of first refusal, the diminution of value would probably be negligible. Because Mount Juneau Enterprises can neither produce the option agreement nor any evidence of its terms, it has failed to raise a material fact as to whether the con- damnation deprived Keen of a valuable right. See Alaska-Canadian Corp. v. Ancow) Corp., 434 P.2d 534, 537-38 (Alaska 1967). Based on the foregoing, we conclude that summary judgment was appropriate as to the tunnel claim. B. The Tram Claims 1. Ordinance No. 85-53am The superior court concluded that Ordinance No. 85-53am established certain rights and duties in the City and Alaska Trams, but that the City did not violate the terms of the ordinance. To this effect, the superior court stated: There is no legitimate issue in dispute on this claim. Alaska Trams was required, as a condition precedent to the City's performance, to provide a stamped survey showing the location and size of the easement that could be approved by City staff in accordance with planning and zoning ordinances. This was never done_ A new route was planned and eventually land transferred and work begun. There is no breach by the City, or by Alaska Trams for that matter concerning the new plan. The parties just agreed to do something else. On appeal, Mount Juneau Enterprises argues that the City breached the contract embodied-in Ordinance No. 85-53am. Ordinance No. 85-53am authorized the City Manager to transfer certain City land to Keen in exchange for Keen's abandoning the tunnel claim against the City. Part of the property to be conveyed was described in Section 3(a) of the ordinance, which stated as follows: Section 3. Land and Easement Conveyances. In exchange for a conveyance by Chuck Keen as representative of Alaska Trams of an unrestricted easement, in perpetuity, consisting of Water Tunnel No. 3 so that the City and Borough of Juneau may continue its existing use of the tunnel as a water reservoir, the manager is authorized to convey to Chuck Keen: (a) an easement for a road and parking lot over city and borough property connecting Red Jacket, White Wing and Black Diamond mining claims to the nearest existing road. The grant of the easement shall be conditioned on Chuck Keen providing the manager with a stamped survey describing the location, scope and extent of the easement at a location and size to be approved by staff in accordance with existing planning and zoning standards. Keen never provided the City with a stamped survey, and it was eventually determined that Keen was not likely to get the zoning change approved. Thus, Keen and the City agreed to come up with an alternative plan. Since Keen failed to meet the conditions for conveyance of the land in Ordinance No. 85-53am in the first place, the City's actions would not have amounted to a breach even if a contract had been formed. Mount Juneau Enterprises argues that Ordinance No. 85-53am constituted a binding agreement that the City would transfer land to Keen in exchange for Keen's agreement to abandon the tunnel claim. Such an agreement was based on the assumption that the tunnel claim was valuable. Thus, Mount Juneau Enterprises seems to argue that even though the original agreement had been mutually abandoned, the City was still obligated to treat Keen's tunnel claim as valuable in subsequent negotiations, and to transfer land to Keen in exchange for Keen's agreement to abandon the claim. Apparently, the City was supposed to treat the claim as valuable even after determining that it had no value. The City cites City of Louisville v. Fiscal Court of Jefferson County, 623 S.W.2d 219 (Ky.1981) for the proposition that a legislative body may not bind itself to future legislative action. In that case the Supreme Court of Kentucky considered a contract allegedly resolving a dispute over annexation, where the City had agreed to limit certain future tax rates and to cooperate fully with the owners of the annexed property in applications for zoning changes. The court stated as follows: The law is clear that a legislative body may not limit its power to act one way or another in the future in governmental as opposed to proprietary, functions. Id. at 224. The court then stated: Not only does the contract place an obligation on the city which may create conflicts of interest, but it also creates an obligation to legislate in the future. The area of zone changes, changes in street entrances, flood control, etc., are all legislative in nature. A contract which binds a legislative body, present or future, to a course of legislative action is void against public policy. Id. at 225 (citations omitted). The conveyance of City land can only be authorized by the Assembly. See CB J Ordinance 53.09.200. Thus, even if Ordinance No. 85-53am constituted a contract providing that the City would both treat Keen's tunnel claim as valuable in the future and transfer land to Keen in exchange for an agreement to abandon it, such a contract would likely be unenforceable because it requires future legislative action. That is, it would require the Assembly to agree in advance to authorize the exchange of unspecified parcels of land in the future. Based upon on the foregoing, we conclude that even if Ordinance No. 85-53am did create a contract of some sort between Keen and the City, the City did not violate any enforceable obligations in the course of its negotiations with Keen. 2. The Building Permits The superior court granted summary judgment in favor of the City on Mount Juneau Enterprises' claims relating to the building permits on three grounds: failure to exhaust administrative remedies, statutory immunity for discretionary acts under AS 09.65.070(d)(2), and statutory immunity for actions relating to building permits under AS 09.65.070(d)(3). On appeal, Mount Juneau Enterprises challenges the superior court's conclusions that it failed to exhaust administrative remedies and that the City had discretionary immunity under AS 09.65.070(d)(2). In Ben Lomond, Inc. v. Municipality of Anchorage, 761 P.2d 119 (Alaska 1988), rather than appealing the revocation of its building permit, Ben Lomond filed suit against the Municipality based on a claim of unconstitutional deprivation of property. We held that the failure to appeal the revocation of a building permit under applicable municipal appeal procedures barred any judicial action for damages based on the revocation. Id. at 121-22. We stated that whether a court should require exhaustion of administrative remedies "turns on an assessment of the benefits obtained through affording an agency an opportunity to review the particular action in dispute." Id. at 121. To this effect, we noted that the basic purpose of the doctrine of exhaustion of administrative remedies is "to allow an administrative agency to perform functions within its special competence — to make a factual record, to apply its expertise, and to correct its own errors so as to moot judicial controversies." Id. at 122 (citation omitted). In Eufemio v. Kodiak Island Hosp., 837 P.2d 95, 98 (Alaska 1992), we held that, in applying the doctrine of exhaustion of administrative remedies, a court must determine the following: 1) is exhaustion of remedies required; 2) did the complainant exhaust those remedies; and 3) is the failure to exhaust remedies excused? The City has an ordinance specifically providing for an independent Board of Appeals to review disputed decisions or orders of the City building ofGcial. See CBJ Ordinance 19.02.010. The ordinances relating to building permits are contained within that same title. Since an administrative appeal is clearly provided for, exhaustion of remedies is required in this ease. Mount Juneau Enterprises did not avail itself of these appeals provisions. However, Mount Juneau Enterprises argues that the failure to exhaust remedies should be excused because (1) this suit was filed before the final administrative decision was made; (2) the final decision did not provide proper notice of the right to appeal; and (3) an appeal to the Board of Appeals would have been futile. We find the first and third reasons to be without merit. And as to the second reason, Keen was given actual notice of the existence of the appeal provisions in a letter granting an extension of the FTA in 1989. Accordingly, we find that all claims regarding the building permits are barred as a result of Mount Juneau Enterprises' failure to exhaust its administrative remedies. Since the claims are barred, we need not reach the issue of whether the City is immune from suit under AS 09.65.070(d)(3) or AS 09.65.070(d)(2). C. Further Discovery Mount Juneau Enterprises filed a motion before the superior court to stay ruling on the motions for summary judgment pending further discovery under Civil Rule 56(f). The superior court denied the motion because Alaska Trams had sixteen months within which to conduct discovery, Alaska Trams did not file an affidavit as required by the rule, the superior court did not believe that a genuine issue of material fact would emerge from further discovery, and the superior court questioned the diligence of Alaska Trams. Civil Rule 56(f) specifically requires that an affidavit be filed with a motion for further discovery. See Munn, 111 P.2d at 192-93; Jennings v. State, 566 P.2d 1304, 1313-14 (Alaska 1977). For the reasons expressed by the superior court, we conclude that it was not an abuse of discretion to deny the motion requesting further discovery. V. CONCLUSION The superior court's grant of summary judgment in favor of the City is AFFIRMED in all respects. MOORE, C.J., and EASTAUGH, J., not participating. . In the late 70s, Keen learned that the City was converting a tunnel into a water reservoir. He claimed that he contacted City officials but was assured that the tunnel being converted was not the same tunnel he was interested in purchasing. . The meeting was apparently very difficult. Keen believed that Ritchie's statements to a radio reporter and newspaper had effectively ended his hopes for financing and caused great injury to the tram project. Keen apparently stated that he would not attempt to resolve the matter unless the Ci1y took out a full page newspaper ad apologizing to him. No such ad, however, was ever run by the City. . Wickwire defines the date of the taking as the date when the construction began. 557 P.2d at 784 n. 4. . This approach has been adopted by a number of states. Texaco, Inc. v. Commissioner of Transportation, 34 Conn.Supp. 194, 383 A.2d 1060 (1977); Sholom, Inc. v. State Roads Comm'n, 246 Md. 688, 229 A.2d 576 (1967); State v. Las Vegas Bldg. Materials, Inc., 104 Nev. 479, 761 P.2d 843 (1988); Fullington v. M. Penn Phillips Co., 238 Or. 321, 395 P.2d 124 (1964); In re Petitioner of Governor Mifflin Joint School Auth., 401 Pa. 387, 164 A.2d 221 (1960); Spokane School Dist. No. 81 v. Parzybok, 96 Wash.2d 95, 633 P.2d 1324 (1981). . In a supporting affidavit, Robert Slatzer described the option as "a hand-written document which was an option of first refusal to purchase the land on which the tunnel was located." (Emphasis added). Although he had a copy of the option in his possession, Slatzer is apparently unable to recall any of the specific terms. . The City accurately summarizes the state of the evidence relating to the terms of the option as follows: Keen does not remember the date of the option (Keen Dep. at 951); or the terms of the option (Keen Dep. 954, 959-960); or whether he paid anything for the option (Keen Dep. at 1009). He does not remember if the option was written or verbal (Keen Dep. at 952). He does remember that he was not legally obligated to buy the property (Keen Dep. at 954) though he cannot remember whether the owners were obligated to sell. (Keen Dep. at 959-960.) At one point, he asserted it was a "first refusal option" that would entitle him to a "first refusal" when the family got some legal matters "cleared up." Keen didn't "have a clue" what the legal matters were. (Keen Dep. at 954-55.) Keen cannot remember whether the option could be revoked or, if so, under what circumstances. (Keen Dep. at 973). . In light of this holding we need not consider the question of whether the City gained title to the easement by adverse possession. . Mount Juneau Enterprises also argues that the City should be estopped from denying that Ordinance No. 85-53am constituted a settlement of the tunnel litigation. Estoppel may apply where there is: (1) an assertion of a position by conduct or word; (2) reasonable reliance thereon; and (3) resulting prejudice. Municipality of Anchorage v. Schneider, 685 P.2d 94, 97 (Alaska 1984). It was not reasonable for Keen to rely on Ordinance No. 85-53am when it was Keen who failed to provide the City with the necessary stamped survey. Moreover, Mount Juneau Enterprises argues that Keen and Alaska Trams spent hundreds of thousands of dollars on construction of the tram and that the City "should be estopped from taking away the building permits to gain advantage in the tunnel litigation." However, Keen is the one who let the permit expire on its own terms. Keen's estoppel arguments are without merit. . Counts 7 and 8 of Mount Juneau Enterprises' complaint allege breach of contract arising out of the building permits. However, building permits are not contracts. 9A McQuillin, The Law of Municipal Corporations § 26.212, at 225 (3d ed.1996). See also Rehmann v. City of Des Moines, 204 Iowa 798, 215 N.W. 957, 960 (1927) ("a permit is merely a privilege to do what would otherwise be unlawful, and is not a contract between the authority, federal, state, or municipal, granting it and the person to whom it is granted"). . Civil Rule 56(f) provides as follows: Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. .To this effect, the superior court stated as follows: Alaska Trams had sixteen months to conduct discovery in this case. (The suit was filed in June of 1991 and Judge Schulz imposed a stay of discovery in November of 1992.) During that time thousands of pages of documents have been disclosed, numerous depositions have been conducted, alleged privileged materials have been turned over or offered for inspection in camera. The deposition of the City's attorney, Barbara Blasco, alone, was close to 1000 pages.

10312701

George LUNDQUIST, Appellant, v. Jean LUNDQUIST, Appellee

Lundquist v. Lundquist

1996-08-16

No. S-6761

42

54

923 P.2d 42

923

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T16:59:37.070555+00:00

CAP

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

George LUNDQUIST, Appellant, v. Jean LUNDQUIST, Appellee.

George LUNDQUIST, Appellant, v. Jean LUNDQUIST, Appellee. No. S-6761. Supreme Court of Alaska. Aug. 16, 1996. Allan Beiswenger, Robinson, Beiswenger & Ehrhardt, Kenai, for Appellant. Linn J. Pious, Kenai, for Appellee. Before COMPTON, C.J., and RABINOWITZ, MATTHEWS, EASTAUGH and FABE, JJ.

6078

37193

OPINION FABE, Justice. I. INTRODUCTION This appeal is from a judgment dividing property in a divorce proceeding. George Lundquist disputes the trial court's determinations as to the character, value, and proper distribution of the marital property. We affirm in part and reverse in part. II. FACTS AND PROCEEDINGS George Lundquist has worked as a commercial fisherman in Alaska since the 1960s. He has held a limited entry permit for drift net fishing in the upper Cook Inlet. In 1985 George's fishing boat sank near Kodiak Island. In March 1986, George purchased a new fishing vessel, the F/V Koosh-da-kaa. The purchase price for the F/V Koosh-da-kaa was $95,000; George paid $25,000 in cash, $20,000 of which represented the insurance proceeds from the sinking of his old vessel. George financed the balance with a promissory note in the amount of $70,000. Title was in George's name alone. According to George, he and Jean Lund-quist began living together in March 1987 when they rented an apartment and opened a joint bank account. Jean claims that they started living together in April 1986. George and Jean were married in Reno, Nevada, on February 7, 1988. It was George's second and Jean's fifth marriage. At the time, George was forty-nine years old. Jean was forty-three years old and had worked as a bartender. George and Jean purchased a residence, built a shop on the premises, and directed money into various investment and retirement accounts. They used marital funds to lengthen the F/V Koosh-da-kaa. In 1987 the Glacier Bay spilled oil in Cook Inlet, and George received a settlement payment for damages sustained as a result of that spill. In 1989, the Exxon Valdez oil spill prevented George from fishing for salmon in the Cook Inlet. He received a partial payment from Exxon for lost income as a result of that spill. George also participated in a lawsuit against Exxon, seeking damages for lost income from fishing for 1989 and 1990, as well as punitive damages. In 1990 George purchased a motor home. According to George, the purchase was paid for with the proceeds of the Glacier Bay oil spill settlement. Jean was aware that George had received funds from the Glacier Bay spill but was unsure where those funds went. Although she was uncertain about what funds were used to purchase the motor home, she contended that it was most likely purchased with the proceeds from the Exxon Valdez oil spill. Title to the motor home was held jointly, and Jean contends that joint funds were used to purchase it. When George's mother, Frieda EMund, died in 1990, George was named executor of her estate. Eklund's will left George her interest in a checking account. The remainder of the estate was to be divided between George, his daughter Laura, and his niece Suzanne Lundquist. Apparently Suzanne removed substantial funds from Eklund's checking account prior to her death. According to George, he and Jean went to California, and Jean assisted him by going through the checks to determine how much Suzanne had taken. On June 25, 1992, George received a check for $64,000 from his mother's estate. He deposited the cheek into his "separate" account, and issued his daughter a check for $22,710, representing her share of the estate. George then paid Jean $1,000 for her work on the estate. George retained approximately $40,000 that remained in his separate account. Jean tells a somewhat different version of the events surrounding the death of George's mother. She claims that George asked her to assist him in the probate proceedings and promised her that anything she got out of the estate would be hers. George and Jean separated in August 1992 when Jean moved out. Both parties sought an interim award of occupancy of the marital residence. Judge Cranston entered an order granting George the right to live in the marital home. George claimed that a number of items of his personal property had been removed from the house by Jean. At trial, Jean conceded that George's limited entry permit was his pre-marital property but claimed that the F/V Koosh-da-kaa was a marital asset. George argued that because part of the boat was paid for with the insurance proceeds and the rest with money derived from the limited entry permit, the boat was his separate property. Both parties agree that the house was a marital asset. Jean valued the house and shop building at $125,000. George valued the house and shop at $115,000. Jean claimed that the inheritance from George's mother should be treated as marital property. The parties disagreed about who was responsible for the items missing from the residence. After trial, Judge Cranston asked for annotated arguments from counsel. The court then entered its Findings of Fact, Conclusions of Law, and Order. It found the value of marital property to be $379,855. The court found that the F/V Koosh-da-kaa, the inheritance, the several bank and retirement accounts, the damage awards from the Glacier Bay and Exxon Valdez oil spills, and the motor home were marital assets. The court divided the property on a 50-50 basis, awarding George the F/V Koosh-da-kaa, his Capital Construction account, his inheritance, and other marital funds in his separate cheeking account. Jean was awarded the investment accounts, the marital residence, and the motor home. The court found that a piece of property George owned in Whittier was partially marital and partially separate. The court also found that Jean should be held responsible for the missing items of George's personal property. Based on George's motion for clarification or reconsideration of several aspects of the court's decision, the court entered an order changing the date of the parties' marriage from February 1987 to February 1988 and the initial loan amount on the F/V Koosh-da-kaa from $75,000 to $70,000. The court denied the remainder of George's motion. George appeals. On appeal George disputes the trial court's characterization of the F/V Koosh-da-kaa, motor home, inheritance, and Exxon Valdez damages as marital property. He also finds fault with the trial court's valuation of the marital residence, Whittier parcel, his separate cheeking account, and his fishing gear. Finally, he takes issue with the trial court's 50-50 distribution of the marital assets. III. DISCUSSION A. Standard of Review Property division in Alaska consists of three steps: determining what property is available for distribution, placing a value on that property, and allocating the property equitably. Moffitt v. Moffitt, 749 P.2d 343, 346 (Alaska 1988); Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska 1983). B. Did the Trial Court Err in Its Characterization of the Property ? The first step in any property division is determining what property will be divided. The trial court determines what property is marital. Moffitt, 749 P.2d at 346. The available property will include all assets acquired during marriage. Rhodes v. Rhodes, 867 P.2d 802, 804 (Alaska 1994). If the parties by their actions demonstrate an intent to treat any separate property as a marital holding, it must also be treated as marital property. Id.; Chotiner v. Chotiner, 829 P.2d 829, 832 n. 4 (Alaska 1992); Wanberg, 664 P.2d at 571. Once the trial court determines that the property was treated as a marital holding, it may not refuse to treat the property as marital and distribute it. Wanberg, 664 P.2d at 571; Compton v. Compton, 902 P.2d 805, 812 (Alaska 1995); Lowdermilk v. Lowdermilk, 825 P.2d 874, 878 (Alaska 1992). The trial court's characterization of property as marital or separate is reviewed for an abuse of discretion. See Jones v. Jones, 835 P.2d 1173, 1175 (Alaska 1992); Doyle v. Doyle, 815 P.2d 366, 368 (Alaska 1991). However, when the trial court makes a legal determination in the course of carrying out this step, that determination is reviewed de novo. Cox v. Cox, 882 P.2d 909, 913 (Alaska 1994); Moffitt, 749 P.2d at 346. 1. Characterization of the F/V Koosh-da-kaa George bought the F/V Koosh-da-kaa for $95,000, putting $25,000 down and executing a note for the balance of the purchase price. At the time of the parties' marriage, George owed $60,094 towards the purchase of the F/V Koosh-da-kaa. When the parties separated, the principal balance was $36,106. The value of the vessel at the time of the divorce was $80,000. The trial court found that the equity in the F/V Koosh-da-kaa was $43,893. The trial court then determined that the F/V Koosh-da-kaa was marital property. Jean presented evidence of the parties' intent to treat the F/V Koosh-da-kaa as marital property. Jean testified that she took an active role in the fishing venture and contributed substantial efforts towards it. She detailed her contributions as "working on the boat, working on the fishing gear, frequent grocery shopping and cooking for the crew, going out on the boat and working as a deck hand, tending to the business needs of the enterprise while George was out fishing, and helping to pay for the boat by contributing to the growing equity in the Koosh-Da-Kaa." Jean further argues that the parties always referred to the fishing business as "our business" and agreed that whatever they acquired during marriage would be marital property. Further, the improvements to the boat were paid for with marital funds. Marital funds were used to pay off a substantial portion of the loan on the F/V Koosh-da-kaa, as well as to fund a major capital improvement. Jean presented evidence that she made substantial contributions to the fishing enterprise and the operation of the F/V Koosh-da-kaa. While George disputed Jean's version of events, the trial court apparently gave more weight to her testimony than to his. Based on these facts, it was not an abuse of discretion for the trial court to characterize the F/V Koosh-da-kaa as marital property. 2. Characterization of the motor home On January 10, 1990, George executed a purchase order for a 1978 Sporteoach 33' motor home for a price of $21,200. The registration lists George and Jean as the owners. George claims that he paid for the motor home with the proceeds of the Glacier Bay oil spill settlement and that those funds were his separate property. Jean claims that the funds came from joint funds and that even if Glacier Bay proceeds were used, those funds were marital. Jean also argues that because the asset was acquired during marriage, it is marital regardless of the source under AS 25.24.160(a)(4). While holding joint title is not determinative of intent' to treat property as a marital holding, it does create "rebuttable evidence that the owner intended the property to be marital." Cox, 882 P.2d at 916, citing Chotiner, 829 P.2d at 833. Jean presented evidence that could have allowed the trial court to conclude that marital funds were used to purchase the motor home and that she and George made significant improvements to the motor home during their marriage. Based on this evidence, it was not an abuse of discretion for the court to characterize the motor home as marital property. 3. Whittier real property In 1974, George purchased a parcel of property in Whittier for $7,100. George made monthly payments of $47 on the property, and in 1986, he owed $5,289 on it. At trial, George said that he did not know the value of the property, but that the last appraisal or assessment valued it at $9,000. Jean's post-trial proposed property division accepted George's $9,000 value. The trial court found that the Whittier property was partially marital and partially separate. It found the value of the marital property to be $7,100 and the marital equity to be $4,500. The record reveals no rational basis for these conclusions. First, it was error for the trial court to characterize the property as partially marital and partially separate. As we noted recently in Compton v. Compton, 902 P.2d 805 (Alaska 1995), "the entire equity in a piece of joint property should be allocated." Id. at 812. Property that at first glance appears to be separate, because it was originally acquired outside of the period of cover-ture or because it was purchased with separate funds, will be characterized as a marital holding if the parties demonstrate an intent to treat it as such. For example, in Chotiner, we held that joint ownership, substantial efforts at joint management, maintenance, or improvement of the property, or written or oral agreements, were all factors that could lead a court to conclude that the parties intended to treat a piece of property as a marital holding. Chotiner, 829 P.2d at 833. Additionally, in Rhodes, we held that the assumption of joint and several liability for debt on a vessel and the use of marital funds to pay that debt justified finding intent to treat the vessel as marital property. Rhodes, 867 P.2d at 805. Because the trial court applied the incorrect legal standard in dividing this piece of property, a remand is necessary for the trial court to determine if the Whittier property is marital. In addition, we note that the trial court may need to take additional evidence to determine the equity in the property, should it find that the property is in fact marital. 4. Characterization of the inheritance As of August 31, 1992, George's bank account at National Bank of Alaska had a balance of $116,878. Of this, George contends that approximately $40,700 was an inheritance from his mother's estate, which should have been considered to be his separate property. The trial court found that these funds were marital property. George, when asked at trial if he had told Jean she would be entitled to a share of the inheritance, answered: No. No, I never said this. Everything we done was — she was my wife. It was supposed to be mutual. I never told her this, no. Later he elaborated by stating: I assumed this was to be mutual. I did not tell her that this would be hers. That's what I meant.... Well, whatever we gleaned during our marriage should have been [both of ours]. George also testified that the inheritance was in fact his separate property. The trial court found: On or about June 25, 1992 Husband received $64,000.00 from his mother's estate. The parties, through their efforts, discovered the named executor had fraudulently obtained the estate's money. Wife claims her efforts resulted in payments back to the estate. Husband, though claiming that he paid Wife $1,000.00 for her efforts on behalf of the estate, also testified he intended any funds received as an inheritance to be marital. The Court finds that the proceeds of the Eklund estate paid to Husband, amounting to $40,700.00 constitute marital property. George's statements that he assumed that the proceeds of the inheritance would be "mutual" are nothing more than a restatement of the general proposition that property acquired during marriage is presumptively marital property. Rhodes, 867 P.2d at 804. But a strong exception to this rule exists for inheritances. We have held that an inheritance received by one spouse during marriage is not property acquired during coverture within the meaning of AS 25.24.160(a)(4), but constitutes a non-marital asset of the inheriting spouse. As such, an inheritance will not be subject to distribution unless a balancing of the equities requires it. Julsen, 741 P.2d at 648 (footnote omitted). George received the inheritance cheek less than two months prior to the time of separation. Although he paid Jean $1,000 for her help in going through the checking records to discover that money had been removed improperly, he took no actions upon receipt of the money to treat it as marital property. While the trial court based its decision on George's subjective "intent" that he and Jean share what they received during the marriage, George's testimony that he assumed that all property received during the marriage should be shared is not sufficient to overcome the strong presumption that an inheritance is separate property. It was an abuse of discretion for the court to characterize the inheritance as marital property. 5. The Exxon Valdez damages George was one of a large number of plaintiffs who sued Exxon over the Exxon Valdez oil spill. George received a payment of $34,-766 from Exxon in 1989 in partial payment of compensatory damages. In addition, George is one of 10,000-15,000 plaintiffs who have won a portion of a $5 billion award of punitive damages from Exxon. George argues that all of these monies are his separate property; Jean argues that they are all marital. a. Compensatory damages George contends that the Exxon damages came to him solely as a result of his status as a holder of a limited entry permit, which both parties agree is George's separate pre-marital property. Additionally, George claims that part of the Exxon award was actually for the devaluation of his limited entry permit. In Alaska, a tort recovery is classified according to what it is intended to replace. Bandow, 794 P.2d at 1348. Bandow provides the rule for how to characterize awards of compensatory damages. When an award "compensates for losses to the marital estate it is marital property. To the extent the recovery compensates for losses to a spouse's separate estate, it is his or her separate property." Id. George testified at trial that he received the payment from Exxon because he was not able to fish for salmon in the Upper Cook Inlet in 1989. George also admitted that permit holders who had never fished before would not have received, the same payment. George never testified that the payment was intended to compensate him for any devaluation of the permit. Thus no evidence was presented to the trial court to demonstrate that the compensatory damages were for devaluation of the limited entry permit. The evidence presented indicates that the award replaced lost fishing income during a period when the parties were married. Because the award replaced income that would have been marital, the entire compensatory damages award is marital under Bandow. The trial court was correct in its characterization of the compensatory damages George collected from Exxon as marital property. b. Punitive damages George also expects to receive punitive damages from the Exxon Valdez oil spill. The trial court held that "[t]he Court finds no difference between the character of the award, whether punitive or otherwise" and classified the punitive damages as marital property. George argues that just as damages for noneconomic injuries result from "fortuitous circumstances," so do punitive damages. See id. at 1350. He thus concludes that punitive damages are separate property. George also claims he is entitled to the punitive damages as a result of his holding a limited entry permit since 1973. Our decision in Bandow does not directly control this case because punitive damages are not compensation for personal or pecuniary losses. Barber v. National Bank of Alaska, 815 P.2d 857, 864 (Alaska 1991). Punitive damages are awarded for the impact they have on the wrongdoer, not the wrongfully injured party. We are not aware of any relevant decisions that address the issue of characterization of punitive damages in property division cases. We decline to adopt George's proposed rule that punitive damages are always the separate property of the spouse receiving them. While punitive damages are not acquired by the joint efforts of the parties in the same sense that wages or property are, they are paid to persons who have suffered compensable injury. Because there is a link between the payment of compensatory and punitive damages, in cases where the underlying compensatory damages would be marital property, it would be improper to award all of the punitive damages as separate property. We also reject a bright-line rule that all punitive damages recovered during marriage are marital property. Such a rule would be easy to apply and in accord with the general rule that all property acquired during cover-ture is marital property. See AS 25.24.160(a)(4). One commentator has suggested that because punitive damages can be viewed as a "bounty" for bringing an action against a wrongdoer, they could properly be characterized as marital property. Kirk H. Nakamura, The Classification of Personal Injury Damages Under California Community Property Law: Proposals for Application and Reform, 14 Pac. L.J. 973, 996 (1983). However, punitive damages are not received as a result of the parties' joint efforts in the same sense that marital income is. See Portwood v. Copper Valley Elec. Ass'n, Inc., 785 P.2d 541, 543 (Alaska 1990) (stating punitive damages intended to punish defendant not compensate victim); Hennis, supra note 6, at 54 (noting punitive damages generally recognized as windfall to plaintiff); W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 2, at 9 (5th ed. 1984) (punitive damages punish defendant and are "over and above" full compensation). The fact that inheritances are not received as a result of the parties' joint efforts was one of the reasons we found that inheritances are not marital property. Julsen, 741 P.2d at 648. The commentator we cited in that case wrote that "[i]f property is acquired without the joint efforts of the parties such property arguably should not be subject to division." Id. (citing Lawrence J. Golden, Equitable Distribution of Property § 5.19, at 113 (1983)). We concluded that "our view of equitable distribution in general, . recognizes the partnership theory of marriage and considers the mutual effort and tangible contributions of the parties rather than the mere existence of the marital relationship." Jul-sen, 741 P.2d at 648. Characterizing all punitive damages as marital property could be inequitable. If one party to the marriage is wrongfully injured, and under Bandow all of the damages for that injury are classified as separate property, we see no reason why it would be proper to characterize any punitive damages awarded as marital property. We believe that adopting a rule that punitive damages are always marital suffers from the same failings as the mechanistic approach to classification of compensatory awards that we rejected in Bandow. The rule we adopt today is that punitive damages can be partially marital and partially separate, or even entirely one or the other, depending on the facts. An award of punitive damages should be apportioned in the same manner as the underlying compensatory damages award. See Hennis, supra note 6, at 55. Under Alaska law, the Ban-dow determination of what proportion of the compensatory damages are marital would also determine the proportion of the punitive damages that are marital. We believe that this method of apportioning punitive damages in property divisions is the most equitable. Because the underlying compensatory damages award in this case was properly characterized as marital property, the punitive damages award was also properly characterized as entirely marital property. The trial court's characterization of the punitive damages as marital property was not error. C. Did the Trial Court Err in Its Valuation of the Marital Property? The second step of a property division is the valuation of the marital property. Wanberg, 664 P.2d at 570. The trial court's determinations of the value of property are factual decisions that will be reversed only if clearly erroneous. Doyle, 815 P.2d at 368; Cox, 882 P.2d at 913-14. 1. House equity At trial, Jean testified that the fair market value of the marital residence was $105,000 and that the shop building's value was $20,000, for a total of $125,000. George testified that the house and shop together were worth $115,000. The trial court valued the property at $115,000. George now argues that the trial court's determination was erroneous. His basis for this argument is apparently that the trial court's findings of fact mistakenly state that Jean valued the property at $105,000 while George valued it as $125,000. Appellant speculates that the trial court reached its $115,000 valuation through the process of averaging the erroneous amounts. It is difficult to understand the basis of George's appeal of this valuation. The trial court valued the property at precisely the $115,000 estimated by George at trial. Since the trial court's valuation of the house was supported by George's testimony, it was not an abuse of discretion. 2. NBA account George's account at National Bank of Alaska was also allocated as a marital asset by the court. This is the same account into which he deposited the inheritance he received from his mother. On June 25, 1992, George deposited $64,000 in proceeds from his mother's estate into this account. On July 10,1992, he wrote a check for $22,710 to his daughter, representing her share of the estate. This left the balance of the account as of July 31,1992, at $40,687. On August 4, 1992, George deposited $25,900 into the account. On August 31, 1992, he deposited an additional $50,000 into the account. There seems to be no dispute that these additional deposits represented fishing proceeds. As of August 31, 1992, the date of the parties' separation, the account balance was $116,878. After the parties' separation, George made payments of $16,125 to his deck hand for work performed during the 1992 fishing season, $15,763 for the loan on the F/V Koosh-da-kaa, and $27,085 for back taxes to the IRS. He also paid marital debts accrued on charge cards and revolving accounts of $14,-707. The trial court found that most payments made from the account were for marital debts, marital business, or were related to George's mother's estate. The court further found that "two payments from the account directly related to husband's commercial fishing activity, the boat payment and the crew share payment." In her post-trial proposed asset distribution, Jean argued that it was unfair for George to claim deductions for all of the expenses he paid from the account. This is because George charged his fishing expenses for the entire year against the account, while only his fishing income deposited in August 1992 was included in the property division. The trial court apparently took this concern to heart and attempted to fashion a formula to account for the payments out of the account which could be attributed to post-marital fishing expenses. The trial court devised the following formula: The court will allow deductions from the account in the ratio of the balance of the account as of separation over the total fishing income for 1992, 0.83. The boat payment deduction is $13,083.00 and the crew share deduction is $13,384.00. The Court finds that the funds received as Husband's share of his mother's estate are marital property, (see Finding 28). Based on the foregoing analysis, the Court finds that $25,910.00 of the monies in the NBA account as of the date of separation represent marital funds. George argues that he should have been allowed full credit for all payments from the account, and that he was "double-charged" for his inheritance. There are several problems with the trial court's approach. First, there is no evidence in the briefs or the trial court's decision that indicates whether any fishing income was earned after the parties' separation. Second, even assuming that George earned fishing income after separation, and it was thus his separate property, the 83% ratio could bear no relationship to it, since there is no evidence of any breakdown of marital and post-marital income. If the trial court did believe that the expenses George paid from the account prior to separation were for the entire fishing season, including a portion of the season after the date of separation, it could properly have taken that into account and added back into the account that portion of crew shares that were paid for the crew's work after separation. However, the formula employed by the trial court does not achieve this result. Additionally, it appears that the trial court's formula is inconsistent with other portions of its decision. In assessing what portion of the payments on the F/V Koosh-da-kaa were made during the parties' marriage, the court took into account the full amount of the payments made in 1992. Thus, the $15,763 payment was counted as fully marital by the trial court in characterizing the F/V Koosh-da-kaa as marital property. By contrast, the court counted only $13,083 of the payment as an appropriate payment of marital debt. The trial court must reconcile this inconsistency. Finally, George claims that the 0.83 ratio results in his being credited twice for the inheritance. The court awarded George $25,910, representing its determination of the marital portion of the NBA account after the court-allowed expenses. This figure, as we noted above, included the fishing income deposited into the account, as well as the inheritance, less deductions for payments of marital debts. The court then separately assigned to George's column of assets the $40,-700 inheritance; thus, George was credited twice with the receipt of the inheritance. The trial court abused its discretion in valuing the NBA account. On remand, the court should make detañed findings about its basis for valuing the account. Furthermore, based on our decision that the inheritance was not marital property, the court shall characterize $40,700 of the NBA account as George's separate property. 3. Fishing gear The trial court's detañed listing of the personal property assigns to George's fishing gear a value of $2,500. In her posh-trial proposed distribution, Jean valued the gear at $5,000, whñe George gave it a value of zero, claiming that the gear was included within the appraised value of the F/V Koosh-da-kaa and that most of it was pre-marital. The trial court is required to state the basis for its findings of value. See Johnson v. Johnson, 836 P.2d 930, 933 (Alaska 1992) (holding trial court must make sufficiently detañed findings to añow Supreme Court to understand basis of decision). When, for example, the parties obtain divergent appraisals of a piece of property, it may be appropriate to average those valuations. However, a blanket policy of averaging divergent values encourages parties to submit the most extreme values they can imagine, knowing that the court wül simply average the two figures. In this case, an average of the two figures has no rational basis. Jean's valuation was dependent on the fact that the fishing gear was not included in the appraisal of the boat, whñe George's was based on the fact that the gear was included within the appraised value. Although the trial court need not accept either party's valuation of the gear, it must have a rational basis for the value it chooses. The trial court abused its discretion in valuing the fishing gear. D. Did the Trial Court Err in Making an Equitable Distribution of the Property? The final step in the property division process is determining if an equitable distribution of the property is possible. The trial court's decision on the equitable ahoeation of the property is reviewed under an abuse of discretion standard, and wül be reversed only if clearly unjust. Cox, 882 P.2d at 914; Doyle, 815 P.2d at 368. In this case, the trial court divided the property on a 50-50 basis. The law presumes that a 50-50 split of marital property is equitable. Carlson v. Carlson, 722 P.2d 222, 225 (Alaska 1986). George claims that the trial court should have explicitly considered the Merrill factors in determining the appropriate division of property. Jean points out that the court's findings, when read in their entirety, demonstrate that the court considered many factors, including the details of the purchase of the F/V Koosh-da-kaa, the marital residence, and the parties' ability to maintain the residence. We find no error in the trial court's 50-50 property division. IV. CONCLUSION The trial court's characterization and valuation of the Whittier property, characterization of the inheritance, and valuation of the NBA account and fishing gear are REVERSED and REMANDED for further proceedings consistent -with this opinion. The remainder of the trial court's determinations are AFFIRMED. . In 1973, Alaska initiated a program to limit commercial fishing. See AS 16.43.010. Under the system, only holders of limited entry permits may engage in commercial fishing in particular fisheries. See AS 16.43.140. Such permits are transferable, subject to certain substantive and procedural requirements. See AS 16.43.170. . George maintained a separate bank account at National Bank of Alaska for business and personal use. He deposited marital fishing income into the account as well as the inheritance. The account was used to pay marital debts, fishing expenses, and back taxes. . There are exceptions to this rule. For example, a spouse's inheritance is not usually considered to be marital property. Julsen v. Julsen, 741 P.2d 642, 648 (Alaska 1987). . There are exceptions to this rule. For instance, we have routinely affirmed trial court decisions that divided pensions, retirement accounts, and stocks or other capital, into marital and separate portions. See Wainwright v. Wainwright, 888 P.2d 762, 763 (Alaska 1995) (finding pension partially marital and partially separate); Chotiner, 829 P.2d at 832 (finding annuity both marital and separate based on how much earned during marriage); Lowdermilk, 825 P.2d at 877 (holding increase in assets of husband's premarital business during marriage marital, but otherwise business separate); Bandow v. Bandow, 794 P.2d 1346, 1348-49 (Alaska 1990) (holding annuity given as payment for tort damages could be partially marital and partially separate); Lewis v. Lewis, 785 P.2d 550, 556 (Alaska 1990) (finding portion of contingent stock interest earned during marriage was marital property); Brooks v. Brooks, 733 P.2d 1044, 1053-54 (Alaska 1987) (finding active appreciation in separate asset is marital properly). Additionally, in Bandow we established that compensatory damage awards may be divided into marital and separate portions. See Bandow, 794 P.2d at 1350. . Such property, although marital, may be divided in a manner different from the other marital property of the parties in recognition of the contribution of one of the parties. Brett R. Turner, Equitable Distribution of Property, § 8.05 at 566 (2d ed. 1994). . Jean's testimony that George promised to give her all of the money she helped to recover was not mentioned in the trial court's findings nor does it appear to be the basis of the court's decision on this issue. . Two cases have raised the issue of division of punitive damages without actually deciding the question. See Mears v. Mears, 305 S.C. 150, 406 S.E.2d 376, 380 (App.1991), aff'd, 308 S.C. 196, 417 S.E.2d 574 (1992), overruled by Marsh v. Marsh, 313 S.C. 42, 437 S.E.2d 34 (1993) and Amie v. Amie, 106 Nev. 541, 796 P.2d 233, 234 (1990). One Texas case, Rosenbaum v. Texas Bldg. & Mortgage Co., 140 Tex. 325, 167 S.W.2d 506, 508 (Com.App.1943), dealt with the question, but that case occurred before Texas recognized that at least some tort recoveries received dining marriage could be separate property. See Scott A. Hennis, Punitive Damages: Community Property, Separate Property, or Both, 14 Community Prop. J. 51 (1987). . When evaluating the appropriateness of a punitive damages award, among the factors we exam-me are "the magnitude and flagrancy of the offense, the importance of the policy violated, and the defendant's wealth." Cameron v. Beard, 864 P.2d 538, 551 (Alaska 1993) (citing Clary Ins. Agency v. Doyle, 620 P.2d 194, 205 (Alaska 1980)). Another relevant factor, is the ratio of the compensatory damages to the punitive damages. Ben Lomond, Inc. v. Campbell, 691 P.2d 1042, 1048 (Alaska 1984) (quoting Clary Ins., 620 P.2d at 205). With the exception of the question of the defendant's wealth, all of these factors relate in some manner to the harm that was visited upon the victim. This reinforces our view that it is proper to distribute a punitive damages award in the same manner as the underlying compensatory damages award. . The trial court seems to have viewed this as a "recapture" issue. When marital assets are spent for non-marital purposes subsequent to the parties' separation "the court can 'recapture' the asset by giving it an earlier valuation date and crediting all or part of it to the account of the party who controlled the asset." Foster v. Foster, 883 P.2d 397, 400 (Alaska 1994). . Further, assuming that George did earn post-separation fishing income for 1992, there is no evidence that the $16,125 payment to the deck hand was related to the production of post-separation 1992 fishing income. . It is in this final step that the trial court applies the Merrill factors. See AS 25.24.160(a)(4) and Merrill v. Merrill, 368 P.2d 546, 548 n. 4 (Alaska 1962).

10328392

Donato JASO III, a/k/a Jaso Donato III, Appellant, v. James A. McCARTHY and Estrella A. McCarthy, Appellees; James A. McCARTHY, Cross-Appellant, v. Donato JASO III, Cross-Appellee

Jaso v. McCarthy

1996-09-20

Nos. S-7115, S-7155

795

803

923 P.2d 795

923

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T16:59:37.070555+00:00

CAP

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

Donato JASO III, a/k/a Jaso Donato III, Appellant, v. James A. McCARTHY and Estrella A. McCarthy, Appellees. James A. McCARTHY, Cross-Appellant, v. Donato JASO III, Cross-Appellee.

Donato JASO III, a/k/a Jaso Donato III, Appellant, v. James A. McCARTHY and Estrella A. McCarthy, Appellees. James A. McCARTHY, Cross-Appellant, v. Donato JASO III, Cross-Appellee. Nos. S-7115, S-7155. Supreme Court of Alaska. Sept. 20, 1996. Earl M. Sutherland, Reed McClure, Seattle, WA, and Dennis Bump and John Tiem-essen, Hughes, Thorsness, Gantz, Powell & Brundin, Fairbanks, for Appellant/Cross-Ap-pellee. Thomas R. Wiekwire, Fairbanks, for Ap-pellee/Cross-Appellant. Before COMPTON, C.J., and RABINOWITZ, MATTHEWS, EASTAUGH and FABE, JJ.

4408

26857

OPINION EASTAUGH, Justice. I. INTRODUCTION A jury awarded James McCarthy damages of $4,000 against Donato Jaso III. Jaso appeals issues relating to his offer of judgment and McCarthy's attorney's fees award. McCarthy cross-appeals rulings relating to evidence of his medical insurance and Jaso's closing argument. We affirm the rulings appealed by McCarthy and reverse the fees award. II. FACTS AND PROCEEDINGS On April 2, 1991, a vehicle driven by Jaso rear-ended McCarthy's car. The only trial issue was damages, particularly whether McCarthy's damages resulted from the collision or his pre-existing condition, and whether his wife, Estrella McCarthy, could recover for loss of consortium. McCarthy has suffered from neck injuries and conditions since childhood. He was in accidents in 1958, 1965, 1984, and 1986 and underwent neck surgeries in 1968, 1970, 1980,1982, and 1988. In the 1988 operation, Dr. John Joosse attempted to fuse the C-5/C-6 and C-4/C-5 vertebrae. In October 1990 McCarthy fell and sought treatment for resulting neck and shoulder pain. In November 1990 he was diagnosed with pseudar-throsis in the area operated on in 1988. Dr. Joosse described pseudarthrosis as a false joint made up of scar tissue which moves and irritates the nerves and spinal cord, "causing a whole host of symptoms." Allstate Insurance provided medical payments coverage to McCarthy for his 1986 car accident. On February 7, 1991, Allstate wrote McCarthy informing him that his medical payments coverage for the 1986 accident would expire March 10,1991, five years from the date of loss. Following the collision on April 2, 1991, McCarthy was treated first by Dr. Ralph Marx, and then by Dr. Joosse. In October 1991 Dr. Joosse again attempted to fuse the C-5/C-6 vertebrae. In a letter to Jaso's insurance company, Dr. Joosse wrote regarding this operation: James McCarthy has had increasing symptoms with regard to his neck since a motor vehicle accident of 4r-2-91.... Our impression is that he has a symptomatic pseudoarthrosis of C5-6. He has already been seen by a second opinion orthopedic surgeon who agrees with the diagnosis and agrees with the recommendation for surgery. McCarthy's insurance company, Allstate, covered his expenses for the 1991 surgery. On November 8,1991, Allstate notified Jaso's liability insurer that, to date, it had paid $4,300.68 for injuries allegedly incurred in the Jaso/McCarthy collision, and asserted subrogation rights to any settlement payment between Jaso's insurer and McCarthy. In December 1992 Jaso informally offered to settle. McCarthy rejected .Jaso's offer; he and his wife sued Jaso in April 1993. Jaso made a Civil Rule 68 offer of judgment on July 7, 1994. McCarthy rejected this offer. Damáges were tried to a jury in December 1994. McCarthy presented evidence that his medical expenses approximated $31,000. By special verdict, the jury awarded McCarthy damages of $3,000 for medical expenses and $1,000 for past non-economic losses. It awarded nothing to Estrella McCarthy. Jaso, arguing that his $20,000 offer of judgment was more favorable to McCarthy than the jury's $4,000 verdict, sought attorney's fees under Alaska Civil Rule 68. In opposition, McCarthy claimed he was the prevailing party, moved for attorney's fees, and submitted a letter from Allstate in which it asserted it had subrogation rights to $24,-620.08 as of July 7, 1994, the date of Jaso's offer of judgment. The court held that the verdict exceeded the offer of judgment and awarded $1,108.61 in attorney's fees to McCarthy. McCarthy's final judgment, including pre-judgment interest, attorney's fees, and costs, was $11,598.35. III. DISCUSSION A. Evidence of McCarthy's Insurance Coverage for His 1986 Accident While cross-examining McCarthy, Jaso's attorney inquired about correspondence between McCarthy and Allstate in November 1990 and January and February 1991, regarding Allstate's coverage of medical expenses resulting from McCarthy's 1986 accident. Jaso attempted to show a relationship between the expiration of McCarthy's insurance coverage and McCarthy's claim that his pain and injuries were attributable to the April 1991 accident. McCarthy objected to the admission of evidence showing he had insurance. The trial court allowed the inquiry on the condition that Jaso make it clear McCarthy's coverage was for a prior injury. The court also stated that McCarthy could request a jury instruction at a later time. McCarthy argues that it was reversible error to admit this evidence. He asserts that evidence of insurance coverage for the 1986 accident, coupled with evidence that McCarthy had retained the insurance agent mentioned in conjunction with the coverage for the 1986 accident, allowed the jury to infer that McCarthy was insured for the medical expenses caused by the 1991 accident. To prevail on appeal, McCarthy bears the burden of showing that the admission was erroneous and that it had a substantial influence on the outcome of the case. See Myers v. Robertson, 891 P.2d 199, 208 (Alaska 1995) (citing Loof v. Sanders, 686 P.2d 1205, 1209 (Alaska 1984)). Alaska Civil Rule 61 dictates that an error in the admission of evidence is not grounds for reversal "unless refusal to take such action appears to the court inconsistent with substantial justice." In Love v. State, 457 P.2d 622 (Alaska 1969), we articulated the harmless error standard as follows: The test is not whether, with the erroneous matter elided from the record, there would be enough evidence to support a conviction. It is not for us to speculate on the outcome at a retrial, absent the erroneous matter. The pivotal question is what the error might have meant to the jury. Our function is to consider not how the error would have affected us if we had tried the case, but how it may have affected a jury of reasonable laymen. It is the impact on their minds which is critical in determining whether an error impaired or affected the substantial interest of the defendant in having a fair trial. Id. at 630. We do not resolve the question of whether the admission was erroneous because we hold that even if erroneous, it was harmless error. In allowing the evidence, the court required Jaso to make it clear in his questioning that the insurance coverage was for the earlier accident. McCarthy nonetheless argues that the jury inferred from this evidence that his accident with Jaso was covered by insurance and thus discounted its award. This argument is necessarily speculative and the record, with the putative erroneous admission elided, contains sufficient evidence to support the jury's verdict. Therefore, we hold that at most the admission of evidence of McCarthy's insurance for an earlier accident was harmless error. McCarthy also argues that the court committed reversible error by failing to give a curative instruction. McCarthy asserts that the court said that it would give an instruction but never did. The transcript reveals that the trial court overruled McCarthy's objection and declined to give an immediate instruction but told McCarthy's counsel that "if we need to address it in the form of a (indiscernible) instruction, we can do that. But let's argue about that (indiscernible) after 1:30 today." Alaska Civil Rule 51(a) requires a specific objection if a party is to claim error for giving or failing to give a jury instruction. See also Conam Alaska v. Bell Lavalin, Inc., 842 P.2d 148, 153 n. 8 (Alaska 1992). The court's knowledge of a party's position with respect to an instruction is not sufficient; a specific request or objection is required. State v. Dupere, 709 P.2d 493, 498 n. 5 (Alaska 1985), modified on other grounds, 721 P.2d 638 (Alaska 1986). In Dupere, we stated: The fact that the trial court was aware of the State's position on the issue does not excuse the State's failure to object to the instructions when afforded the opportunity to do so. "The purpose of this rule [Civil Rule 51(a) ] is to enable the trial judge to avoid error by affording him an opportunity to correct his charge before it goes to the jury. The dictates of the rule are satisfied only if the judge is clearly made aware of the alleged error in or omission from the instructions. Counsel's objections must be specific enough to clearly bring into focus the precise nature of the asserted error." Id. (alteration in original) (citations omitted) (quoting Saxton v. Harris, 395 P.2d 71, 73 (Alaska 1964)). The court told McCarthy's counsel that it would give an instruction if one was necessary and that it would consider arguments on the issue at a later point. McCarthy faded to re-visit the issue, as invited by the court, and did not object to the court's failure to give an instruction on the issue before the jury retired to consider the verdict. Therefore, we review this issue only for plain error. Zok v. State, 903 P.2d 574, 577 (Alaska 1995) (citing Conam Alaska, 842 P.2d at 153). A plain error is an obvious mistake creating "a high likelihood that the jury will follow an erroneous theory resulting in a miscarriage of justice." Conam Alaska, 842 P.2d at 153 (quoting Ollice v. Alyeska Pipeline Serv. Co., 659 P.2d 1182, 1185 (Alaska 1983)). There is "a heavy burden on the appellants to prove that an error was highly likely determinative. We have emphasized that we will not speculate on whether the error altered the result." Conam, 842 P.2d at 153. McCarthy argues that the evidence of his insurance prejudiced the jury, causing it to discount its verdict. McCarthy contends that, given Jaso's liability, the jury's award can only be explained by concluding that the jury discounted the damages because it inferred that McCarthy had insurance. This argument relies on a number of assumptions, particularly, (1) the jury inferred that McCarthy had insurance for the 1991 accident; and (2) the jury discounted its award because of that inference. McCarthy asserts that even if the jury believed Jaso was not responsible for all the medical costs, "a verdict in the $15,000 to 20,000 range on [the] total evidence of $31,000 seems to be a logical minimum, i.e., viewing evidence least favorably to [McCarthy]." The evidence permitted the jury to conclude that not all of McCarthy's medical expenses were attributable to the 1991 collision. McCarthy's argument relies on speculation and would require us to reweigh the evidence. McCarthy has not shown that the failure to give a curative instruction was plain error because he has not shown that the failure was highly likely determinative of the verdict. The court did not abuse its discretion in allowing the evidence. We do not consider whether it was error to fail to give a curative instruction because McCarthy did not request one as instructed by the court. The court's failure to give an instruction absent a request was not plain error. B. Jaso's Closing Argument McCarthy alleges reversible error with respect to statements made in closing argument by Jaso's counsel. McCarthy argues that Jaso made a conscious attempt to improperly influence the jury by exacerbating the prejudicial impact of the insurance evidence allowed by the court. The court refused to instruct, as McCarthy requested, that Jaso was covered by insurance and would not have to personally pay any judgment. As stated infra, McCarthy has the burden of proving both error and prejudice. Myers v. Robertson, 891 P.2d 199, 208 (Alaska 1995); Zerbinos v. Lewis, 394 P.2d 886, 889-90 (Alaska 1964). The putative prejudicial statement was stricken by the court, and Jaso's counsel rephrased his argument and made it indisputably non-prejudieial. The court, however, refused to instruct the jury that Jaso had insurance. Jaso's argument was not so blatant or inflammatory that, once stricken and rephrased, it would have influenced a reasonable juror in such a way as to deprive McCarthy of a fair trial. Further, the "curative" instruction McCarthy sought regarding Jaso's insurance was not necessary and might have needlessly prejudiced Jaso. The court did not err in refusing to give the requested curative instruction. C. Rule 68 Offer of Judgment and Award of Attorney's Fees 1. Standard of review "An offer of judgment and acceptance thereof is a contract." Davis v. Chism, 513 P.2d 475, 481 (Alaska 1973). The interpretation of a contract is a question of law to which we apply our independent judgment. Alaska Energy Auth. v. Fairmont Ins. Co., 845 P.2d 420, 421 (Alaska 1993). Additionally, interpretation of Civil Rule 68 presents a pure question of law which we review de novo. Toney v. Fairbanks N. Star Borough Sch. Dist., Bd. of Educ., 881 P.2d 1112, 1114 (Alaska 1994). Under this standard, we adopt "the rule of law which is most persuasive in light of precedent, policy and reason." Summers v. Hagen, 852 P.2d 1165, 1169 (Alaska 1993) (citing Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979)). We will reverse a prevailing party determination only for an abuse of discretion and will set aside an award of attorney's fees only if it is manifestly unreasonable. Blumenshine v. Baptiste, 869 P.2d 470, 474 (Alaska 1994) (citing Buoy v. ERA Helicopters, Inc., 771 P.2d 439, 448 (Alaska 1989); Myers v. Snow White Cleaners & Linen Supply, Inc., 770 P.2d 750, 752 (Alaska 1989)). 2. Grow v. Ruggles In awarding attorney's fees to McCarthy, the superior court relied on Grow v. Ruggles, 860 P.2d 1225 (Alaska 1993), to hold that the judgment based on the jury verdict of $4,000 was more favorable than Jaso's Civil Rule 68 offer of judgment of $20,000. The superior court interpreted Grow as mandating that an offer of judgment be "construed in light of any subrogation claim asserted against it." Because Allstate asserted that its subrogated interest was $24,620 when Jaso made the offer of judgment, the superior court concluded that Jaso's offer was completely offset by the Allstate lien and was "worthless." The court found that the judgment was more favorable to McCarthy because it awarded him $1,000 above the medical expenses award. Therefore, the court held that Jaso was not entitled to attorney's fees under Rule 68 and that McCarthy was the prevailing party. For Jaso to be entitled to fees under Rule 68 he must have made a valid offer of judgment which was more favorable than the judgment finally rendered. For an offer to be valid, it must not be conditional or joint. Grow, 860 P.2d at 1227-28. In Grow, we held that an offer is not conditional al though it acknowledges the existence of a lien and notes that a party is responsible for any hens that may exist against a settlement. Id. The offer in Grow stated that the plaintiff "would be responsible for paying any hen." Id. Jaso's offer stated that McCarthy "would be required to satisfy ah hens...." We see no material distinction between these offers and therefore hold that Jaso's offer was not conditional. Neither was Jaso's offer joint. It did not require Allstate to accept its terms. Rather, it "merely summariz[ed] standard subrogation theory" and did not attempt to "coerce collection of the subrogation hen on specific terms as a precondition to settlement of the liability case." Id. McCarthy's arguments to the contrary are unpersuasive. Consequently, we hold that Jaso made a valid Rule 68 offer of judgment. The superior court erred in interpreting Grow and comparing Jaso's offer with the final judgment. In Grow, this court held that the defendant was entitled to attorney's fees pursuant to Rule 68 when his offer of judgment was more favorable than the judgment finally rendered, even though the offer stated that the plaintiff would be responsible for paying any hens against the claims. Id. at 1227-28. The jury awarded the plaintiff $31,777.88 for medical expenses, the exact amount of medical expenses claimed, and $14,760 in lost past and future income. Id. at 1226. In finding that the offer of judgment was more favorable to the plaintiff, we stated that "[t]he bottom line is that Grow offered Ruggles $35,000 above her medical expenses. The jury awarded her only $14,760 over medical expenses." Id. at 1228. Grow contains no rule explicitly requiring trial courts to take into account subrogated interests when comparing the relative values of a settlement offer and the judgment finally entered. The superior court interpreted Grow as comparing the net values of the offer and judgment after subtraction of the lien. However, Grow did not compare net values after the Ken; rather, it compared the offer and the judgment in terms of medical and non-medical damages awards and found that once the medical expenses were deducted from both, the remaining $35,000 of the offer was more favorable than the $14,760 of the jury award. Id. at 1228. Under this approach, Jaso's all-inclusive offer of $20,000 was more favorable than the judgment based on the jury award of $4,000, as adjusted by the addition of pre-judgment interest, attorney's fees, and costs pursuant to Farnsworth v. Steiner, 601 P.2d 266, 272 & n. 14 (Alaska 1979), rev'd in part on other grounds, 638 P.2d 181 (Alaska 1981). Jaso offered McCarthy $17,000 above the $3,000 medical expense damages the jury attributed to the accident as compared to the $1,000 non-medical damages award. Therefore, we hold that the superior court erred in denying Jaso attorney's fees under Rule 68, reverse the trial court's attorney's fees award to McCarthy, and remand for an award of attorney's fees to Jaso. 3. Prevailing party determination with respect to Estrella's claims Because we hold that Jaso was the prevailing party under Rule 68, we need not address the alternative arguments presented regarding whether Jaso was the prevailing party with respect to claims brought by James McCarthy. We do address, however, Jaso's arguments that the trial court erred in failing to find that he was the prevailing party against Estrella McCarthy, to whom the jury awarded no damages. McCarthy argues that Jaso never affirmatively requested attorney's fees from Estrella or argued that he was the prevailing party vis-a-vis her claim; McCarthy asserts that Jaso merely opposed McCarthy's motion for fees on this ground. Because Jaso never requested fees from Estrella, McCarthy argues, the issue is not before this court. Jaso's attorney's fees motion and supporting memorandum were non-specific in requesting fees against the plaintiffs. The memorandum refers to the offer of judgment, which was extended only to James McCarthy. However, in opposing McCarthy's motion for fees, Jaso argued that he had completely defeated Estrella's claim and was therefore entitled to fees as the prevailing party with respect to her claim. This should have clarified whatever ambiguity may have existed for the superior court as to the scope of Jaso's motion for fees. Although the trial court awarded fees to the plaintiffs in its January 11,1995 order, the January 13 memorandum opinion does not explicitly address Estrella's claim and concludes that "Plaintiff James A. McCarthy is . 'the prevailing party in this litigation." In his statement of points on appeal, Jaso appealed the superior court's failure to find him the prevailing party with regard to Estrella. Therefore, this issue is properly before us. Having defeated Estrella's damages claim, Jaso must be considered the prevailing party with respect to her claim. On remand the superior court must consider this when it calculates Jaso's attorney's fees award. IV. CONCLUSION We AFFIRM the rulings appealed by McCarthy. We REVERSE the attorney's fees award and REMAND for an award of attorney's fees to Jaso. . McCarthy did not appeal the denial of his motion for a new trial; he did not list this issue in his statement of points on cross-appeal or in his statement of the issues in his briefs to this court. However, McCarthy articulated the standard of review for the denial of a motion for a new trial as the applicable standard in his opening brief of his cross-appeal and requested a new trial in his prayer for relief. This prayer for relief is made in context of the errors of law argued by McCarthy. Although Jaso presents arguments on the denial of the motion for a new trial, McCarthy has waived this issue by failing to list it or address it substantively. Therefore, we decline to reach it. . A letter from Jaso's attorney stated: I have been authorized to offer the all inclusive sum of $20,000 in settlement. This is inclusive of interest, costs and attorney's fees and is made with the expectation and understanding that your client would satisfy any and all medical or other liens or subrogated interests. . The formal offer of judgment stated: Defendant Donato Jaso, by and through counsel of record, and pursuant to Rule 68, hereby makes an offer of judgment to Plaintiff James McCarthy in the all-inclusive amount of $20,-000. This sum includes interest, costs and attorney's fees. If you accept this offer, the maximum amount you will receive is $20,000 and from that amount you will be required to satisfy all liens, subrogated interests, and other claims of any kind or nature arising out of the April 02, 1991, automobile accident which forms the subject matter of your lawsuit. . On November 30, 1990, after Dr. Joosse diagnosed pseudarthrosis, McCarthy wrote the Allstate representative handling his claim for the 1986 accident: Connie, I am having problems and went to [the] doctor to check up and found that the neck is opening up where it was operated on. On January 29, 1991, McCarthy wrote on a bill he was submitting to Allstate: This checkup shows that my condition is getting much worse and again I refuse to let them operate because they cannot assure me that it will help or improve my condition a great deal. As noted above, in February 1991 Allstate informed McCarthy that his medical payments coverage for the 1986 accident would expire on March 10, 1991. .Alaska Civil Rule 61 states in full: No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at evety stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties. . In Poulin v. Zartman, 542 P.2d 251 (Alaska 1975), we held that because the civil and criminal rules for harmless error are sufficiently similar, "case law in the criminal area is applicable and instructive" on the issue of civil harmless error. 542 P.2d at 261. Poulin recognized Love v. State, 457 P.2d 622 (Alaska 1969), as providing the definitive law on harmless error. Poulin, 542 P.2d at 261. . The judge later reiterated, "[i]f we need to formulate some sort of an instruction to address the insurance problem, we can do that. But we don't need to worry about that, now." . McCarthy's arguments that the jury was prejudiced are founded upon the theory that the trial court erroneously admitted evidence of his insurance. McCarthy does not raise an independent ground alleging passion or prejudice. Because we find that the admission of the insurance evidence, if erroneous, was harmless error, we reject McCarthy's prejudice arguments. . In his closing arguments, Jaso's attorney stated that no one disputed that McCarthy had definite and long-standing health problems "but, to saddle [Jaso] with that is the point of this case." This statement was cut short by McCarthy's objection, was subsequently stricken by the court and rephrased in the following manner: To say that my client — I used "to saddle" — that my client was — is the cause of all these problems, I think is not only contrary to the evidence, it's contrary to your common sense. . Alaska Civil Rule 68, in pertinent part, states: (a) At any time more than 10 days before the trial begins, either the party making a claim or the party defending against a claim may serve upon the adverse party an offer to allow judgment to be entered in complete satisfaction of the claim for the money or property or to the effect specified in the offer, with costs then accrued.... (b) If the judgment finally rendered by the court is not more favorable to the offeree than the offer, the prejudgment interest accrued up to the date judgment is entered shall be adjusted as follows: ii) if the offeree is the party making the claim, the interest rate will be reduced by the amount specified in AS 09.30.065 and the of-feree must pay the costs and attorney's fees incurred after the making of the offer (as would be calculated under Civil Rule 79 and 82 if the offeror were the prevailing party). The offeree may not be awarded costs or attorney's fees incurred after the making of the offer. (2) if the offeree is the party defending against the claim, the interest rate will be increased by the amount specified in AS 09.30.065. . Allstate Insurance, which covered both the plaintiff and defendant in Grow, asserted a sub-rogation lien against the defendant's liability policy for payments made to cover the plaintiff's medical expenses. Grow, 860 P.2d at 1226. The defendant made an offer of judgment for $66,-526.70, referencing the lien of $31,526.70 and asserting that the plaintiff would be responsible for paying any liens out of the offered amount. Id. at 1227. The offer concluded that "[ajccord-ingly, the net amount of this offer is $35,000." Id. . Under Farnsworth v. Steiner, 601 P.2d 266, 272 & n. 14 (Alaska 1979), rev'd in part on other grounds, 638 P.2d 181 (Alaska 1981), the proper calculation to determine the comparability of an offer of judgment and a verdict includes adjustment of the verdict by the addition of prejudgment interest earned from the date of the accident until the date of the offer and attorney's fees and costs incurred for that period. The total judgment of $11,598.35 awarded by the trial court included prejudgment interest, attorney's fees and costs from the date of the accident to the date of the judgment. Therefore, Jaso's offer of $20,000 necessarily exceeded the verdict as adjusted under Farnsworth.

10313514

Barbara L. SMITH, Appellant, v. John A. THOMPSON, Appellee

Smith v. Thompson

1996-09-20

No. S-5633

101

106

923 P.2d 101

923

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T16:59:37.070555+00:00

CAP

Before RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

Barbara L. SMITH, Appellant, v. John A. THOMPSON, Appellee.

Barbara L. SMITH, Appellant, v. John A. THOMPSON, Appellee. No. S-5633. Supreme Court of Alaska. Sept. 20, 1996. Thomas S. Gingras, Anchorage, for Appellant. David S. Carter, Hughes Thorsness Gantz Powell & Brundin, Anchorage, and Earl M. Sutherland, Reed McClure, Seattle, for Ap-pellee. Before RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

2843

17268

OPINION RABINOWITZ, Justice. I. FACTS AND PROCEEDINGS This appeal arises from a November 30, 1987 automobile accident involving Barbara Smith and John Thompson. Smith was heading north on Laurel Street in Anchorage when Thompson, unable to stop his truck while exiting an adjacent parking lot, skidded across the slick pavement and collided with Smith. At the scene Smith stated that she had a severe headache and that her neck hurt. She went to a medical center where she was diagnosed as having a muscle strain. On December 3,1987, three days after the accident, Smith initiated a meeting with Thompson's insurance company, State Farm Mutual Automobile Insurance Company (State Farm). According to Smith, "[t]he State Farm lady said they could not pay us anything until I signed a release." Smith further affied that "[t]he State Farm lady said that after I signed the release I would no longer be eligible for any more medical coverage. She did not disclose that the release might not be any good if my condition changed unexpectedly." Smith believed at the time that her only injury was a muscle strain and "that it would go away soon." The adjuster offered to settle Smith's claim for about $725. Smith accepted the settlement offer, though she later affied that she "only intended to release claims I had for the neck soreness. I had no intention of releasing the kind of medical problems I developed later." Also, Smith states that she "did not realize . that a release of the kind I signed may be invalid as to later medical developments." After Smith signed the release, her pain disappeared and throughout 1988 she had no medical problems. In early 1989 she broke her wrist, which resulted in surgery and the placement of a heavy cast on her left arm. Shortly thereafter, Smith began experiencing shoulder pain and severe headaches, which her doctor attributed to her change in posture because of the heavy cast. Smith's wrist healed slowly, and she required two additional surgeries and needed to wear her east for almost two years. Smith became pregnant in June 1990. Though Smith's east was removed in October 1990, she continued to experience shoulder pain. Her doctors attributed her continuing pain to her pregnancy. After she gave birth, Smith's neck and shoulder pain persisted. She received treatment from a chiropractor who advised her that her pain was caused by the 1987 auto accident. By January 1992, Smith's pain had become unbearable, and a magnetic resonance imaging (MRI) scan indicated that her neck was vertically disarranged. After physical therapy proved unsuccessful, Smith underwent surgery in February 1992 to fuse two vertebrae in her neck. The bone graft between the two vertebrae later collapsed, which necessitated a second surgery. The bone graft from the second fusion also collapsed, and the doctors drilled a halo brace into Smith's head to place her neck in extension and to stabilize it. In April 1992, approximately four and one half years after her accident, Smith filed suit against Thompson. In August 1992 she af-fied: Until I consulted with an attorney recently, I did not understand that the release which I signed was valid only as to things I intended to release. From what State Farm's adjuster told me and the way she acted, my understanding was that the release I signed would prevent me from bringing a law suit and that I could not make a claim. That's why I did not file suit sooner. In not filing a law suit earlier, I relied upon what the State Farm adjuster told me about the release and what it meant. As soon as I learned she might be wrong, I filed this lawsuit with my lawyer's help. Thompson raised several affirmative defenses, and the superior court dismissed Smith's claim, without specifying the grounds of dismissal. Smith now appeals. II. STANDARD OF REVIEW As both parties note, the superior court ruled on Thompson's motion to dismiss as if it had been presented as a motion for summary judgment. Consequently, this court reviews the superior court's order as if it were a summary judgment order. See McAdoo v. Diaz, 884 P.2d 1385, 1387 n. 2 (Alaska 1994) ("If the court considered materials outside the pleadings, the motion was automatically converted to a motion for summary judgment."). When reviewing a grant of summary judgment, this court determines whether any genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Wright v. State, 824 P.2d 718, 720 (Alaska 1992). All reasonable inferences of fact from proffered materials are drawn against the moving par ty — Thompson—and in favor of the non-moving party — Smith. Id. III. DISCUSSION In asserting that the statute of limitations should not bar her claim, Smith advances two arguments: (1) Thompson should be es-topped from asserting the statute of limitations as a defense since Smith detrimentally relied on her mistaken belief, fostered by State Farm, that the release she signed precluded her from suing Thompson; and (2) the statute of limitations should have been tolled until Smith discovered the nature and extent of her latent injury. A. Smith's Estoppel Arguments Fail. Smith asserts three related arguments based on principles of estoppel: equitable estoppel, quasi-estoppel, and equitable tolling. All fail. Equitable estoppel does not apply because Smith was not prejudiced by the release, regardless of its validity or the representations made by State Farm concerning its legal effect. Quasi-estoppel does not apply because Thompson has asserted no inconsistent positions. Finally, equitable tolling does not serve to toll the statute of limitations because Smith was not engaged in pursuing her rights in a judicial or quasi-judicial forum. In Groseth v. Ness, 421 P.2d 624 (Alaska 1966), this court adopted "the doctrine of equitable estoppel as a prohibition against an unjust reliance upon a statute of limitations." Id. at 630. We stated: To establish an equitable estoppel it is generally necessary that the party seeking to assert it show that the other party made some misrepresentation, or false statement, or acted fraudulently and that he reasonably relied on such acts or representations of the other party, and due to such reliance did not institute suit timely. Id. at 632 n. 23 (emphasis added). Similarly, in Gudenau & Co., Inc. v. Sweeney Ins., Inc., 736 P.2d 763 (Alaska 1987), we stated: A plaintiff who is aware of the elements of his cause of action but fails to file suit within the limitations period may still be protected if he has been induced, by defendant's words or conduct, to postpone filing suit until the limitations period has run. One who induces delay will be equitably estopped from asserting the delay as a bar to plaintiff's action, upon the equitable principle that no party will be permitted to profit from his or her wrongdoing. Id. at 768-769 (emphasis added). Though the parties expend considerable energy debating whether there was any wrongdoing on the part of the State Farm representative, this issue is moot and we need not consider it. As both Groseth and Gudenau indicate, a wrongdoing will preclude the assertion of the statute of limitations as a defense only if that wrongdoing actually caused Smith's failure to institute suit. Smith's accident occurred on November 30, 1987. She had no pain throughout 1988. She only began to experience pain again in early 1989. She attributed the onset of this pain to a heavy cast she wore because of her broken wrist. Smith acknowledges that it was not until the summer of 1991, at the earliest, that she first learned from her chiropractor that she might have a spinal injury resulting from the accident. Until then she and her doctors attributed all pain after the initial month of neck pain immediately following the injury, to factors other than the accident. Even when viewed in the light most favorable to Smith, the facts clearly indicate that she made no association between her pain and the accident until the summer of 1991 — three and a half years after the accident, and one and a half years after the statute of limitations had expired. Consequently, even assuming the adjuster's conduct and statements constituted a wrongdoing, it is clear that the release had nothing to do with Smith's delay in filing suit. Since she was unaware that the pain she was experiencing may have been attributable to the accident, she would not have brought suit against Thompson even absent the release. In short, regardless of whether the adjuster committed any wrongdoing or misrepresentation, Smith suffered no prejudice. Smith's quasi-estoppel argument can also be dismissed. Quasi-estoppel applies where facts and circumstances make the assertion of an inconsistent position unconscionable. Wright v. State, 824 P.2d 718, 721 (Alaska 1992). This argument would succeed only if Thompson was asserting a position inconsistent with one he had previously taken. There is no indication that any of Thompson's positions have been inconsistent. Finally, Smith's equitable tolling argument fails because the requirements of the doctrine are not satisfied. The equitable tolling doctrine applies to relieve a plaintiff from the bar of the statute of limitations when he has more than one legal remedy available to him. The statute is equitably tolled if (1) pursuit of the initial remedy gives defendant notice of plaintiffs claim, (2) defendant's ability to gather evidence is not prejudiced. by the delay, and (3) plaintiff acted reasonably and in good faith. The statute is tolled only when the initial remedy is pursued in a judicial or quasi-judicial forum. Dayhoff v. Temsco Helicopters, 772 P.2d 1085, 1087 (Alaska 1989) (citations omitted). Smith was not pursuing an alternative legal remedy in a judicial or quasi-judicial forum when she was negotiating the settlement with State Farm. Furthermore, even if equitable tolling applied in this case, it would only serve to toll the statute during the time the alternative remedy was being pursued. The tolling of the statute for the few days it took to negotiate and execute the release would have no effect on this case, since the full limitations period would have expired before this suit was filed even if the period had been extended by those days. See id. at 1088 n. 6 (Plaintiff is "entitled to the benefit of the full statutory period after the circumstances which justify equitable tolling abate."). B. The Discovery Rule is Inapplicable. ' Smith also claims that the two-year statute of limitations provided for in AS 09.10.070 should be tolled under the discovery rule. The release is not relevant to this issue. The relevant inquiry is whether Smith, after being in an accident and receiving medical attention for injuries sustained in that accident, is required to bring all claims, whether discovered or latent, within two years of the date of that accident. Smith argues that the limitations period was triggered on the date Smith discovered, or reasonably should have discovered, that a latent disease or injury was caused by Thompson's conduct. The statute of limitations ordinarily begins to run on the date on which the plaintiff incurs the injury. However, this rule has been modified so that the statute of limitations does not begin to run until the claimant discovers, or reasonably should have discovered, the existence of all elements essential to the cause of action. "Alaska, along with most other jurisdictions, has adopted the discovery rule_" Pedersen v. Zielski, 822 P.2d 903, 906 (Alaska 1991). Under the discovery rule, "the relevant inquiry is the date when [the claimant] reasonably should have known of the facts supporting her cause of action." Russell v. Municipality of Anchorage, 743 P.2d 372, 375 (Alaska 1987). "[T]he statute of limitations does not begin to run until the claimant discovers, or reasonably should have discovered, the existence of all elements essential to the cause of action." Mine Safety Appliances Co. v. Stiles, 756 P.2d 288, 291 (Alaska 1988). In this instance, the element which Smith argues was undiscovered for several years is damages. We have cautioned that "[o]rdinarily summary judgment is inappropriate on the issue of what date the statute should start running." Mine Safety, 756 P.2d at 292. We have also stated that "[a]pplication of the discovery rule . is dependent on facts that are often unclear. When a plaintiff first learned of an injury or its cause is a fact which may sometimes be in dispute. When a plaintiff first should have learned of an injury or its cause is frequently debatable." Peder-sen, 822 P.2d at 907. In this case, however, it is undisputed that Smith first knew that she had suffered injury to her neck on November 30, 1987, the date of the accident. Thus the question facing this court is purely a matter of law: Does knowledge of some compensable injury resulting from a sudden traumatic event trigger the statute of limitations even if the full extent of damages is as yet unknown? We stated in the context of a legal malpractice suit that "the guiding principle is that the statute of limitations commences to run when one is actually damaged as a result of the alleged malpractice, and that the commencement of the statute will not be put off until one learns the full extent of his damages." Wettanen v. Cowper, 749 P.2d 362, 365 (Alaska 1988). This rule was extended in Beesley v. Van Doren, 873 P.2d 1280 (Alaska 1994), where we rejected the "exhaustion of appeals rule," and stated that the "statute of limitations begins running when a client discovers or reasonably should have discovered all the elements of the cause of action, and suffers actual damages." Id. at 1282-83. It is not only in attorney malpractice actions that the statute of limitations begins to run as soon as all the elements of the cause of action are discovered, even if the extent of damages is not known. The Illinois Supreme Court has said: In this case . the plaintiff knew that she suffered injuries at the time of the accident. She does not contend that her immediate injuries were not compensa-ble.... Thus, the present case involves, not a plaintiff who failed to discover any injury, but a plaintiff who failed to discover the full extent of her injuries before the statute of limitations expired. There is no requirement that a plaintiff must discover the full extent of her injuries before the statute of limitations begins to run. Because the plaintiff knew or should have known at the time of the accident both that she was injured and that the injury may have been wrongfully caused, the limitations period commenced at that time. Golla v. General-Motors Corp., 167 Ill.2d 353, 212 Ill.Dec. 549, 556, 657 N.E.2d 894, 901 (1995). In Stephens v. Dixon, 449 Mich. 531, 536 N.W.2d 755 (1995), the plaintiff was injured in a car accident. At first, she experienced only minor contusions and abrasions, and muscle pain and stiffness throughout her body including her neck. These conditions resolved themselves within weeks. More than twenty months later, she began to feel neck pain. The condition was diagnosed as spondylolysis of the neck vertebrae, a latent condition associated with her injuries. Id. 536 N.W.2d at 756. After two surgeries, she filed suit. The Michigan supreme court held that the limitations period began immediately, stating that "the discovery rule is not available in a case of ordinary negligence where a plaintiff merely misjudges the severity of a known injury." Id. 536 N.W.2d at 758. We therefore hold that the statute of limitations on Smith's cause of action began to run on the day of the accident when she first had notice that she had been injured. Her opportunity to file suit expired two years ffpm that date, and hence her current action is time-barred. IV. CONCLUSION Accordingly, the judgment of the superior court is AFFIRMED. MOORE, C.J., not participating. . For purposes of this appeal, the superior court's dismissal of Smith's complaint is treated as a grant of summary judgment and consequently the factual allegations contained in Smith's verified complaint and affidavit are taken as true. Wettanen v. Cowper, 749 P.2d 362, 363 (Alaska 1988). . Thompson, whom State Farm has been unable to locate, is represented in absentia by counsel hired by State Farm. . A personal injury claim is barred unless it is commenced within two years after the cause of action accrues. AS 09.10.070. . This court need not decide an issue unnecessary to the resolution of the case. See, e.g., Valleys Borough Support Comm. v. Local Boundary Comm'n, 863 P.2d 232, 235 n. 4 (Alaska 1993) (supreme court need not decide authority issue where party not entitled to relief, even if agency exceeded authority). . See also, e.g., Wyatt v. A-Best Co., Inc., 910 S.W.2d 851 (Tenn.1995). Cf. Restatement (Second) of Judgments § 18 cmt. b, illus. 1 (1982).

10312254

STATE of Alaska, and the Alaska Housing Finance Corporation, Appellants/Cross-Appellees, v. ALASKA STATE EMPLOYEES ASSOCIATION/AFSCME LOCAL 52, Appellee/Cross-Appellant

State v. Alaska State Employees Ass'n/AFSCME Local 52

1996-08-02

Nos. S-6600, S-6630

18

29

923 P.2d 18

923

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T16:59:37.070555+00:00

CAP

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

STATE of Alaska, and the Alaska Housing Finance Corporation, Appellants/Cross-Appellees, v. ALASKA STATE EMPLOYEES ASSOCIATION/AFSCME LOCAL 52, Appellee/Cross-Appellant.

STATE of Alaska, and the Alaska Housing Finance Corporation, Appellants/Cross-Appellees, v. ALASKA STATE EMPLOYEES ASSOCIATION/AFSCME LOCAL 52, Appellee/Cross-Appellant. Nos. S-6600, S-6630. Supreme Court of Alaska. Aug. 2, 1996. David T. Jones, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellants/Cross-Appellees. Don Clocksin, Don Clocksin Law Office, Olympia, Washington, for Appellee/Cross-Appellant. Before COMPTON, C.J., RABINOWITZ, MATTHEWS, EASTAUGH, JJ., and CARPENETI, J. Pro Tern. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

6284

39530

OPINION EASTAUGH, Justice. I. INTRODUCTION This labor dispute arose after the Alaska legislature, in consolidating various state housing programs, transferred housing programs conducted by the Alaska Department of Community and Regional Affairs (DCRA) to the Alaska Housing Finance Corporation (AHFC). The Alaska State Employees Association (ASEA), the union which represented the former DCRA employees, filed unfair labor practice charges asserting AHFC and the State failed to bargain over the transfer and the terms and conditions of employment of the former DCRA employees. The Alaska Labor Relations Agency (Agency) found against the State and AHFC. On appeal the superior court (1) reversed the Agency's decision that the transfer law bound AHFC to honor the collective bargaining agreement covering DCRA employees when their positions where transferred to AHFC, but (2) affirmed the Agency's decision that AHFC is a successor employer that must bargain with the union. AHFC and the State appeal; the union cross-appeals. We affirm in part and reverse in part. II. FACTS AND PROCEEDINGS A. Facts In 1992 the Alaska legislature consolidated state housing programs under AHFC. In doing so, the legislature transferred housing programs administered by DCRA to AHFC, and merged the Alaska State Housing Authority (ASHA) into AHFC. Ch. 4, FSSLA 1992 (hereinafter "transfer law"). The Finance Committee of the Alaska House of Representatives introduced the transfer law on May 13, 1992, during a special legislative session. 1992 House Journal 4359-60. The House referred the bill back to the Finance Committee on the same day. On May 14, 1992, the Finance Committee recommended a substitute for the original bill; the House passed the substitute bill and transmitted it to the Senate. The House also adopted a Letter of Intent by a vote of 35-5 on May 14. The Letter of Intent stated: It is the intent of the Legislature that AHFC will abide by collective bargaining agreements in effect for Department of Community and Regional Affairs employees on the date of transfer. Said agreements shall remain in effect until their expiration on December 31, 1992, at which time AHFC shall honor its duty as successor employer to bargain with the affected employee groups. 1992 House Journal 4373. The Senate read the substitute bill on May 14 and May 15, and passed it on May 15. 1992 Senate Journal 3504, 3516, 3539-41. The Senate Rules Committee also approved the Letter of Intent on the same day. The Senate then returned the bill to the House for transmission to the Governor. 1992 Senate Journal 3541. While the legislature was considering consolidation of the housing programs, ASEA representatives approached Senator Patrick Rodey, one of the sponsors of the transfer law, with their concerns about the impact of the legislation on the collective bargaining rights of the DCRA employees. The ASEA representatives asked Senator Rodey to add language to the legislation to ensure that the ASEA labor agreement covered the transferred DCRA positions. Senator Rodey later testified at the Agency hearing that such language was not added and that he believed "that it was thought that we didn't need to put any more lightning rods in the legislation than . was needed and that as long as the problem was solved, there was no . need to memorialize it as a . matter of statute." On May 14 Senators Rodey and Jim Duncan met with Robert W. Sullivan, Intergovernmental Affairs Director at AHFC, and Eric Wohlforth, bond counsel for AHFC. Barry Hulin, Chief Executive Officer and Executive Director of AHFC, participated by telephone. As a result of this meeting, Sullivan wrote a letter to Senator Duncan, stating that AHFC agreed to honor the ASEA collective bargaining agreement until its expiration on December 31, 1992. The Sullivan letter, however, did not contain a promise to bargain with ASEA beyond the expiration of the existing agreement. AHFC's Hulin authorized the letter to Senator Duncan. AHFC contends that Hu-lin believed he was authorizing a commitment by AHFC to honor the contract until its expiration, if legally possible. After the bill was passed, but before the Governor signed it into law, the Department of Administration informed AHFC that it did not believe AHFC could honor the ASEA contract. After the legislature transmitted the bill to the Governor, the Attorney General's office reviewed the legislation and summarized its effect. The Attorney General informed the Governor that the affected DCRA employees would no longer be in the classified service, and therefore no longer [be] members of the general government (GGU) bargaining unit. Hence, while they, and other AHFC employees, are covered by the Public Employment Relations Act, these employees are no longer covered by the collective bargaining agreement between the GGU and the state. Additionally, the Attorney General informed the Governor that the Letter of Intent adopted by the House did not have the force of law and that it was "not useful as legislative history, as it is directly contradictory to what the legislature actually did, which is remove the affected employees from the classified service and from their bargaining unit." Approximately two weeks later, the Governor signed the bill. As a result of the transfer law, AHFC gained approximately 250 ASHA employees and 86 DCRA employees. The Alaska Public Employees Association (APEA) represented 56 of the 250 former ASHA employees, who were primarily maintenance and custodial workers. The other approximately 200 former ASHA employees were unrepresented. After the merger, AHFC honored the existing APEA collective bargaining agreement, and recognized APEA as the representative for this specialized sub-set of former ASHA employees. Most of the affected DCRA employees were part of the GGU while employed at DCRA, and they were represented by ASEA. The transferred DCRA positions are very similar to existing AHFC positions, and the two groups of employees now work side-by-side carrying out similar duties and functions. Nonetheless, AHFC employees are not part of the GGU, as they are in the exempt service pursuant to AS 18.56.070. As a public employer, AHFC is governed by the Public Employment Relations Act (PERA), AS 23.40.070-.260. AHFC employees are not covered by a collective bargaining agreement. AHFC did not abide by the terms of the ASEA contract for the former DCRA employees, nor did it bargain with ASEA. Consequently, the transfer to AHFC altered considerably the terms and conditions of employment for the former DCRA employees. B. Proceedings Below ASEA, as the representative for the employees formerly employed by DCRA, filed unfair labor practice charges against AHFC and the State of Alaska for their failure to bargain over the transfer and the terms and conditions of employment for the former DCRA employees. ASEA also petitioned the Agency for clarification that the former DCRA employees retained their membership in the GGU. The Agency heard ASEA's consolidated unfair labor practice charge and unit clarification petition on April 15, 1993. The Agency held that AHFC was bound by the transfer law to honor the ASEA collective bargaining agreement, and that AHFC had a duty to bargain with ASEA under the sue-cessorship doctrine. The Agency ordered AHFC to bargain with ASEA upon its request. The Agency also held that the GGU remained an appropriate bargaining unit for the employees engaged in the job duties of the DCRA programs assumed by AHFC under the transfer law, and clarified that the GGU included these employees. Alaska State Labor Relations Agency Order and Decision No. 164 at 21 (Sept. 17, 1993). AHFC and the State appealed the Agency decision to the superior court. The superior court reversed the Agency's decision that AHFC was bound by the transfer law to honor the collective bargaining agreement covering DCRA employees at the time of their transfer to AHFC. The court affirmed the Agency's decision that AHFC, as a successor employer, is obligated to bargain with ASEA. The court also affirmed the Agency's decision that the bargaining unit remained appropriate. AHFC and the State appeal the superior court's decision that AHFC is obligated as a successor employer to bargain with ASEA, and the court's clarification of the GGU to include former DCRA employees. ASEA cross-appeals the superi- or court's decision that the transfer law did not require AHFC to honor the terms of the collective bargaining agreement. III. DISCUSSION A. Did the Transfer Law Bind AHFC to Honor the Existing ASEA Collective Bargaining Agreement or Obligate AHFC to Bargain with ASEA? In holding that AHFC was bound to honor the ASEA collective bargaining agreement, the Agency relied upon what it regarded as the plain language of the statute, the legislative intent, and the fact that AHFC honored the APEA collective bargaining agreement for former ASHA employees. The superior court disagreed with this finding but held that it was not dispositive as to whether AHFC had an obligation to bargain. Because the superior court acted as an intermediate court of appeal, we give no deference to its decision. Public Safety Employees Ass'n v. State, 799 P.2d 315, 318 n. 3 (Alaska 1990); Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987). As this is a question of statutory interpretation which does not involve the special expertise of the Agency, we apply our independent judgment. Kodiak Island Borough v. State, Dep't of Labor, 853 P.2d 1111, 1113 (Alaska 1993); Union Oil Co. v. State, 804 P.2d 62, 64 (Alaska 1990). The key statutory section at issue is Ch. 4, § 142(a), FSSLA 1992. This subsection includes transitional provisions for the transfer of DCRA's housing programs to AHFC. Subsection 142(a) addresses the contracts, rights, and liabilities assumed by AHFC under the transfer. It states: All contracts, rights, liabilities, bonds, notes, or other obligations of the Department of Community and Regional Affairs under former AS 44.47.370 — 44.47.560 and 44.47.635 created by or under a law amended or repealed by this Act and in effect on the effective date of this section, remain in effect notwithstanding this Act's taking effect, with all contracts, rights, liabilities, bonds, notes, or other obligations of the Department of Community and Regional Affairs incurred under former AS 44.47.370 — 44.47.560 and 44.47.635 becoming contracts, rights, liabilities, bonds, notes, and other obligations of the Alaska Housing Finance Corporation. Ch. 4, § 142(a), FSSLA 1992. The parallel provision that addresses the ASHA merger, section 141(a), does not qualify AHFC's assumption of contracts and other obligations by referring to specific statutory provisions. ASEA argues that the transfer law bound AHFC to assume the DCRA collective bargaining agreement, despite the language differences between the DCRA and ASHA transfer provisions, and despite the fact that the collective bargaining agreement was not "created by or under" statutes specified in the transfer law or by a law amended or repealed by the act. ASEA argues that the Agency's interpretation of the statute is correct and more consistent with legislative intent. The Agency found that the specific statutory references in section 142(a) are necessary in order to delineate the statutory sources of the specific DCRA programs that were transferred to AHFC. Because ASHA totally merged into AHFC, Ch. 4, § 2(a), FSSLA 1992, no such references were necessary. ASEA argues that the clause "under former AS 44.47.370 — 44.47.560 and 44.47.635" only modifies the phrase "other obligations of [DCRA]," and that all contracts, including the ASEA collective bargaining agreement, remain in effect after the transfer. ASEA contends that legislative intent supports its interpretation of the statute. We have rejected a mechanical approach to the plain meaning rule of legislative interpretation, and have adopted a sliding scale approach instead. Marlow v. Municipality of Anchorage, 889 P.2d 599, 602 (Alaska 1995); State v. Alex, 646 P.2d 203, 208 n. 4 (Alaska 1982). "Where a statute's meaning appears clear and unambiguous . the party asserting a different meaning bears a correspondingly heavy burden of demonstrating contrary legislative intent." University of Alaska v. Geistauts, 666 P.2d 424, 428 n. 5 (Alaska 1983). The transfer law's statement of purpose supports a finding that the legislature intended to limit the transfer of DCRA responsibilities, assets, and liabilities to AHFC. Ch. 4, § 2(a) FSSLA 1992. In stating that it intended to create a successor corporation for ASHA by merging ASHA into AHFC, the legislature expressly excepted the transfer of DCRA programs from that merger. Id. Furthermore, the findings the legislature made in support of the transfer law focused on consolidating programs to serve state housing needs more efficiently, and did not include any findings concerning employee/employer relations. This rebuts ASEA's contention that the legislature intended to bind AHFC to the existing DCRA collective bargaining agreement. Rather, the legislative history indicates that, at best, the legislature settled for ambiguity with respect to this issue. The record indicates that the legislature was aware of the issue potentially presented by the collective bargaining agreement. ASEA representatives brought the issue to the attention of the legislators backing the bill. These legislators met with AHFC representatives, and the House and the Senate Rules Committee directly addressed the issue in the House's Letter of Intent. The legislature could have enacted provisions in the transfer law that would have bound AHFC to honor the terms of the collective bargaining agreement for the former DCRA employees. Nonetheless, the transfer law itself does not require AHFC to honor the ASEA agreement. Instead, it explicitly limits AHFC's assumption of obligations and liabilities held by DCRA. The House's Letter of Intent and the Senate Rules Committee's approval of that letter cannot serve as a substitute for formal enactment of these obligations. The personal intentions of Senators Rodey and Duncan concerning the legislation, or subsequent testimony about the legislature's intentions, are also irrelevant to determining legislative intent. [W]e are of the view that subsequent testimony of even the prime sponsor of a bill as to either his own understanding or the legislature's understanding of the meaning of that bill should not be considered by a court in construing legislative intent. We do not wish to transform statutory construction into a parade of legislators' affidavits containing their perceptions of the meaning of a bill. Lynden Transport, Inc. v. State, 532 P.2d 700, 716 (Alaska 1975) (alteration in original) (quoting Alaska Pub. Employees Ass'n v. State, 525 P.2d 12, 16-17 (Alaska 1974)). ASEA has not met its heavy burden of proving legislative intent contrary to the plain language of section 142(a). We affirm the superior court's holding that the transfer law did not bind AHFC to honor the existing DCRA collective bargaining agreement, or obligate AHFC to bargain with ASEA. B. Did the Agency Lack a Rational Basis for Its Holding that AHFC Is a Successor Employer, that the GGU Remains an Appropriate Bargaining Unit, and thus that AHFC Is Obligated to Bargain with ASEA? 1. Standard of review When we review agency decisions that implicate special agency expertise or determine fundamental policies within the scope of an agency's statutory function, we apply the rational basis standard. Alaska Pub. Employees Ass'n v. State, 831 P.2d 1245, 1247 (Alaska 1992) (citing Tesoro, 746 P.2d at 903). Under this standard, we defer to the agency determination as long as it is supported by the facts and has a reasonable basis in law. Tesoro 746 P.2d at 903 (citing Kelly v. Zamarello, 486 P.2d 906, 918 (Alaska 1971)). We must ensure that the agency "has taken a 'hard look' at the salient problems and has genuinely engaged in reasoned decision making." Trustees for Alaska v. State, Dep't of Natural Resources, 865 P.2d 745, 747 (Alaska 1993) (citing Alaska Survival v. State, Dep't of Natural Resources, 723 P.2d 1281, 1287 (Alaska 1986)). If the decision fails to consider an important factor, it will be regarded as arbitrary. Trustees for Alaska, 865 P.2d at 747 (citing the related case of Trustees for Alaska v. State, Dep't of Natural Resources, 795 P.2d 805, 809 (Alaska 1990)). In this ease, the Agency was required to analyze the successor employer doctrine and determine the appropriate bargaining unit under AS 23.40.090 of PERA. As both of these endeavors require agency expertise, we apply the rational basis standard of review. As an initial matter it is important to point out that "[t]he Agency gives 'great weight' to federál decisions in the area of labor relations." Public Safety Employees Ass'n, 799 P.2d at 318 n. 4 (citing 2 AAC 10.440(b)). Nonetheless, the governing Alaskan statute, PERA, differs from federal labor law in some significant aspects. PERA dictates that in determining appropriate bargaining units, the Agency shall make those units "as large as is reasonable, and [that] unnecessary fragmenting shall be avoided." AS 23.40.090. 2. Doctrine of successor employers The sueeessorship doctrine governs whether AHFC is obligated to bargain with ASEA. This doctrine states that when business operations and employees are transferred in such a way that the employing industry remains essentially the same after the transfer, successor employers are obligated to bargain with the labor representatives previously chosen by the transferred employees. Northwest Arctic Regional Educ. Attendance Area v. Alaska Pub. Serv. Emp., Local 71, 591 P.2d 1292, 1295 (Alaska 1979) (citing NLRB v. Burns Int'l Sec. Servs., Inc., 406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972)). In Northwest Arctic we stated that "[Qaetors used to determine whether the employing enterprise has remained substantially the same include continuation of the same product lines, departmental organization, job functions, and continuity of the work force." Id. (citing Burns, 406 U.S. at 280 n. 4, 92 S.Ct. at 1578 n. 4). Northwest Arctic makes clear, however, that successor obligations will not be imposed despite the existence of all of these factors if the bargaining unit is no longer appropriate after the transfer. Id. at 1296. Therefore, the question of whether AHFC is obligated to bargain with ASEA turns upon whether the Agency reasonably found that (1) there was substantial continuity of product, departmental organization, job functions, and work force after the transfer, and (2) GGU remained an appropriate bargaining unit after the transfer. The Agency made specific findings with respect to the continuity of the product line, departmental organization, job functions, and work force. The Agency heard substantial testimony from transferred DCRA employees and AHFC administrators, and the record provides a reasonable basis for the Agency's finding of the continuity required to impose successor obligations. AHFC argues that the Agency's decision is fatally flawed, however, because the Agency did not determine whether the GGU remained an appropriate bargaining unit. Specifically, AHFC argues that the Agency erroneously failed to consider employee preference and the requirements that the unit be "as large as is reasonable, and [that] unnecessary fragmentation shall be avoided." AS 23.40.090. a. Employee preference In analyzing whether the bargaining unit remained appropriate, the Agency discussed the employee preference factor, and found that "there is not any evidence in the record of the desires of the employees" and that "[a]n election would be needed to determine the desires of the employees." Even though it did not determine the desires of the employees, the Agency concluded that the GGU remained an appropriate bargaining unit for the former DCRA employees. The State argues that the Agency erred in not determining the desires of the employees. In response, ASEA argues that it benefits from a rebuttable presumption of majority employee support. The United States Supreme Court has held that a union will enjoy a rebuttable presumption of majority employee support if it was the chosen representative of a majority of the new employer's work force when they worked for their previous employer. See, e.g., Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 41, 107 S.Ct. 2225, 2234-35, 96 L.Ed.2d 22 (1987). In Fall River Dyeing, the Court explained that the presumption is triggered only when a majority of the new employer's work force was hired from the predecessor employer, and not merely when the new employer hired a majority of the old employer's work force. Id.; see also 1 Patrick Hardin, The Developing Labor Law 781-83 (3d ed. 1992 & Supp. 1995). ASEA argues that, although former DCRA employees do not constitute a majority of AHFC's work force, the presumption applies because the total number of new employees (former DCRA and ASHA employees) comprise a majority of AHFC's work force. This argument is unpersuasive in light of the purpose of the presumption rule. In Fall River Dyeing, the Court stated that a presumption was valid because "[i]f the employees find themselves in a new enterprise that substantially resembles the old, but without their chosen bargaining representative, they may well feel that their choice of a union is subject to the vagaries of an enterprise's transformation. This feeling is not conducive to industrial peace." 482 U.S. at 39-40, 107 S.Ct. at 2233. Further, the Court reasoned that an employer could easily avoid this presumption by not hiring a majority of its work force from one previous employer. Id. at 40-41,107 S.Ct. at 2234-35. If a majority of the new employer's work force was not hired from the a single previous employer, it would undercut the Court's rationale that the employees "find themselves in a new enterprise that substantially resembles the old." Rather, employees who comprise a minority of the new work force could point to their minority status as the reason for the loss of a chosen representative. More fundamentally, employers that create a work force by hiring employees from various companies could not avoid the presumption of majority support if ASEA's interpretation of this rule were adopted. Thus, ASEA's interpretation of when the rebuttable presumption applies would eradicate the safeguard articulated by the Court that "to a substantial extent the applicability of Bums rests in the hands of the successor." Id. Consequently, we find that ASEA does not benefit from a presumption of majority employee support. We therefore agree with the State's argument that the Agency erred in not determining and considering the desires of the employees as AS 23.40.090 required. On remand, the Agency should be directed to take this factor into account. b. Size and fragmentation of bargaining unit In deciding that the GGU remained an appropriate bargaining unit, the Agency did not address either the size or fragmentation of the bargaining unit. The Agency has previously recognized the importance of these factors: The differences between sec. 090 and the comparable sections of the National Labor Relations Act are significant_ [See. 090] imposed this mandate [that bargaining units shall be as large as is reasonable and unnecessary fragmenting shall be avoided] on the Labor Relations Agency, a mandate that is nowhere to be found in the National Labor Relations Act.... [I]t seems that the legislature acted in full knowledge of the fact that in a state of Alaska's geographical immensity, with but a small population, undue fragmentation of bargaining units could only frustrate collective bargaining. Alaska State Labor Relations Agency Order and Decision No. 1 at 3-4 (Feb. 2, 1973). Consideration of these factors is required by the statute. AS 23.40.090 ("Bargaining units shall be as large as is reasonable, and unnecessary fragmenting shall be avoided" (emphasis added)). We recently held that "where a decisional document shows on its face that an important factor was not considered, the court should remand the matter for further consideration." Keane v. Local Boundary Comm'n, 893 P.2d 1239, 1245 (Alaska 1995) (citing Southeast Alaska Conservation Council, Inc. v. State, 665 P.2d 544, 548-49 (Alaska 1983)). Because determining the appropriateness of bargaining units involves Agency expertise, we remand for Agency analysis of this issue, with instructions to consider whether the resulting bargaining unit is as large as is reasonable and to ensure that unnecessary fragmentation is avoided. C. Did AHFC Voluntarily Assume the ASEA Collective Bargaining Agreement? Even if it is a successor employer, AHFC is not necessarily bound by the existing collective bargaining agreement. Northwest Arctic, 591 P.2d at 1296 (stating that there are only limited situations in which it is appropriate to bind a successor employer to a preexisting collective bargaining agreement). Although neither the lower court nor the Agency addressed this issue, we consider ASEA's argument that AHFC voluntarily assumed the bargaining agreement. In Ransom v. Haner, 362 P.2d 282 (Alaska 1961), we stated: [I]t is a rule of law that an appellee may urge, and the appellate court should consider in defense of a decree or judgment any matter appearing in the record, even if rejected below and even if appellee's argument may involve an attack upon the reasoning of the lower court or an insistence upon matter overlooked or ignored by it. Id. at 285; see also Alaska State Employees Ass'n v. Alaska Pub. Employees Ass'n, 825 P.2d 451, 458 (Alaska 1991). In support of its voluntary assumption argument, ASEA relies upon statements made during the meeting between Senator Duncan and AHFC administrators and upon the resulting AHFC letter to Senator Duncan. ASEA also relies upon statements made to DCRA employees by Bob Brean, then the director of DCRA's Division of Community and Rural Development, that the bargaining agreement would be honored. ASEA does not assert that Brean's statements were made on behalf of AHFC, nor is it clear that he was speaking for AHFC when he made them. Barry Hulin, then Executive Director of AHFC, authorized the letter to Senator Duncan which committed AHFC to honoring the ASEA agreement until its expiration on December 81, 1992. AHFC argues that this letter was meant to memorialize their promise to attempt to maintain the terms and conditions of employment for the DCRA employees until the end of 1992, if legally possible. The letter, however, contained no such conditional language. Based on advice from the Department of Administration that AHFC could not abide by the terms of the ASEA agreement, AHFC did not honor the promise contained in its letter to Senator Duncan. However, AHFC did not provide ASEA with the Department of Administration's reason why AHFC could not voluntarily abide by the terms of the ASEA agreement. Nor does AHFC articulate on appeal any reasons why it could not legally abide voluntarily by the agreement's terms. Because we have not been apprised of any legal impediments to AHFC's voluntary assumption of the collective bargaining agreement, we hold that AHFC's failure to fulfill its promise was unexeused. Consequently, on remand the superior court should award the former DCRA employees compensation for AHFC's breach of its promise to abide by the terns of the collective bargaining agreement until December 31,1992. IV. CONCLUSION For the reasons discussed above in Part III.A, we AFFIRM the superior court's holding that AHFC was not bound by the transfer law to honor the existing ASEA collective bargaining agreement or obligated to bargain with ASEA over the terms and conditions of employment for the former DCRA employees. For the reasons discussed in Part III.B, we VACATE the decision of the superior court that AHFC as a successor employer is obligated to bargain with ASEA and that the GGU remains an appropriate bargaining unit for the former DCRA employees. These questions must be remanded for Agency consideration in light of the statutory factors concerning employee preference, unit size, and avoidance of unnecessary fragmentation. For the reasons discussed in Part III.C, we further hold that AHFC voluntarily assumed the obligation to honor the ASEA agreement until it expired on December 81, 1992. We REMAND to the superior court for an award to the former DCRA employees of the compensation they would have earned but for AHFC's breach of this promise. . Forty-one DCRA positions were transferred to AHFC but only 36 employees actually followed their positions to AHFC. While the DCRA positions transferred to AHFC, the employees were laid off and rehired by AHFC. The superior court stated in its decision that 41 DCRA employees and 170 ASHA employees transferred to AHFC. State, Alaska Housing Finance Corp. v. Alaska State Employees Ass'n/AFSCME Local 52, No. 3AN-93-10311 Ci. at 11 n.7 (Alaska Super., August 9, 1994). The discrepancy in the numbers is irrelevant to our analysis. . Alaska State Labor Relations Agency Order and Decision No. 1 at 12-13 (Feb. 2, 1973) certified the GGU as including all "general state government employees in the classified service," subject to a few enumerated exceptions. The classified service "consists of all positions in the state service not included in the exempt service." AS 39.25.100. . The changes included the following: loss of the right to binding arbitration of grievances; loss of a holiday; an increase in the work week from 37½ hours to 40 hours with no increase in pay, resulting in an approximate 7% decrease in hourly pay rate; a decrease in the net leave accrual rate; loss of access to the GGU Business Leave Bank and the GGU Legal Trust Fund; loss of a 3.1% cost of living wage increase; a decrease in the per diem rates; and different dress code requirements. . For sake of brevity we will refer to the persons filling these positions as former DCRA employees, even though the persons now employed in these positions may not have been employed by DCRA. . Ch. 4, § 141(a), FSSLA 1992 provides: TRANSITIONAL PROVISIONS RELATING TO MERGER OF ALASKA STATE HOUSING AUTHORITY, (a) All contracts, rights, liabilities, bonds, notes, or other obligations of the Alaska State Housing Authority created by or under a law amended or repealed by this Act and in effect on the effective date of this section, remain in effect notwithstanding this Act's taking effect, with all contracts, rights, liabilities, bonds, notes, or other obligations of the Alaska State Housing Authority becoming contracts, rights, liabilities, bonds, notes, and other obligations of the Alaska Housing Finance Corporation with the same limitations and provisions as under a contract, right, liability, bond, note, or other obligation of the former Alaska State Housing Authority. . Subsection 2(a) states: Merger is the process by which two or more corporations are united by a transfer of the responsibilities, assets, and liabilities of all into one of them, with that one entity continuing in existence as the successor corporation. Except for the provisions described in (b) [the transfer of DCRA programs] ., the purpose of this Act is to direct the merger of the Alaska State Housing Authority . into the Alaska Housing Finance Corporation.... (Emphasis added.) . We cautioned against giving undue weight to such documents when we wrote: Our constitution imposes certain requirements of formality on legislative action. Article II, § 14 provides that no bill may become law until it has passed three readings in each house on three separate days, no bill may become law without an affirmative vote of a majority of the membership of each house, and the yeas and nays on final passage shall be entered in the journal. One purpose of these requirements is to ensure that the legislature knows what it is passing. Any passed bill is subject to veto by the governor. Article II, § 15 Alaska Constitution. Only bills are approved or vetoed, not the contents of the house and senate journals, or the tape recordings of committee and floor debates. The legislature enacts laws by the passage of bills meeting the foregoing formalities. It may not enact a law or change one by committee report. Such a report may be useful in interpreting an enacted statute, but it is not itself the statute. North Slope Borough v. Sohio Petroleum Corp., 585 P.2d 534, 543 n. 11 (Alaska 1978). The Attorney General informed the Governor that the legislation would not protect the DCRA employees' collective bargaining agreement and that the House Letter of Intent did not have the force of law. This letter illustrates the proposition recognized in North Slope that gubernatorial approval or veto is limited to the actual bill and not extended to "the contents of the house and senate journals." Id. . The statute states: AS 23.40.090 Collective bargaining unit. The labor relations agency shall decide in each case, in order to assure to employees the fullest freedom in exercising the rights guaranteed by AS 23.40.070 — 23.40.260, the unit appropriate for the purposes of collective bargaining, based on such factors as community of interest, wages, hours, and other working conditions of the employees involved, the history of collective bargaining, and the desires of the employees. Bargaining units shall be as large as is reasonable, and unnecessary fragmenting shall be avoided. . AHFC contends that the Agency's finding that the DCRA employees continued to work as a unit is clearly erroneous. We presume that this is an objection to the Agency's finding of continuity of work force. However, AHFC offers no argument or evidence to support this contention. . Furthermore, even though the federal statute does not require analysis of size and fragmentation, the significance of these factors is not lost on the federal courts. The Ninth Circuit recognized that "[w]hen the unit is over-inclusive, several dangers exist_ [C]onflict might . lead to instability in employer-employee relations." Pacific Southwest Airlines v. NLRB, 587 F.2d 1032, 1045 (9th Cir.1978) (citing Allied Chem. & Alkali Workers of Am., Local Union No. 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 172-73, 92 S.Ct. 383, 393-94, 30 L.Ed.2d 341 (1971)). . ASEA also seems to offer AHFC's actions visa-vis ASHA employees either as proof of AHFC's statutory assumption of the ASEA agreement or as proof of AHFC's voluntary assumption of it. ASEA states that "AHFC essentially acknowledged [that the statute obligates it to honor the ASEA agreement] . when it agreed to honor the ASHA collective bargaining agreement." AHFC's actions with respect to ASHA employees are not probative of the legislature's intentions regarding AHFC obligations to DCRA employees. Whatever AHFC's interpretation of the statute, it is irrelevant to the meaning intended by the legislature. Furthermore, AHFC's actions with respect to one bargaining agreement and union representative do not support a claim it voluntary adopted an entirely separate agreement. AHFC's adoption of the ASHA agreement would not support a reasonable belief by DCRA employees that AHFC had adopted DCRA's bargaining agreement. . We do not have the collective bargaining agreement before us. If the agreement has a provision requiring "follow-on" bargaining at its expiration, we hold that AHFC is not bound to this provision. The letter to Senator Duncan expressly limited AHFC's obligation to honoring the agreement until December 31, 1992. AHFC did not otherwise act so as to bind itself to a greater obligation. The National Labor Relations Board has held that an employer can adopt some terms of an agreement and not be bound to the entire agreement. All State Factors, 205 N.L.R.B. 1122, 1973 WL 4421 (1973). In All State Factors, the Board held that an employer had not voluntarily adopted an existing bargaining agreement, despite its continuation of some of the agreement's benefits, because it refused to acknowledge a total adoption and only honored terms of its choosing. Id. at 1127. In arriving at this decision, the Board stated that "Bums . counsels utmost restraint in applying an adoption theory, absent clear and convincing evidence of consent, either actual or constructive." Id. The Board noted that as a result of negotiations between the employer and the union, the employees were able to secure certain benefits through the employer's agreement to apply provisions that were advantageous to it. Id. The Board concluded, however, that "[w]hile the [employer], by its conduct, gave tacit, if not explicit, recognition to the Union, and negotiated with it on a variety of problems related to the transition," the record on the whole did not support a finding of constructive adoption of the agreement. Id. The circumstances in All State Factors approximate the situation between AHFC and ASEA. ASEA sought and received a limited promise from AHFC that it would honor the agreement until its expiration. However, AHFC did not expressly promise to adopt an ongoing obligation to bargain with ASEA over the terms and conditions of employment for the former DCRA employees. ASEA has not provided clear evidence of constructive consent by AHFC to do so. Because "[t]he Agency gives 'great weight' to federal decisions in the area of labor relations," we adopt the NLRB's clear and convincing evidence rule for the adoption of labor agreements. Public Safety Employees Ass'n v. State, 799 P.2d 315, 318 (Alaska 1990) (citing 2 AAC 10.440(b)). . ASEA additionally argues that the State is bound to honor the collective bargaining agreement because the terms of the agreement provide for maintenance of benefits if employees are transferred. ASEA alleges that the former DCRA employees were to be transferred, but instead were laid off and rehired when these rights under the contract were discovered. ASEA implies a bad faith breach of contract, but on appeal it does not specifically state a claim nor does it cite any authority. Although Ransom allows this court to consider arguments rejected or ignored by the court below, review of this issue is not warranted because it is not clear that it was raised below and because ASEA has not provided sufficient factual or legal support to permit review. Ransom, 362 P.2d at 285; see also L.E. Spitzer Co. v. Barron, 581 P.2d 213, 218 (Alaska 1978) ("[If a] point is not given more than cursoly statement in the argument portion of the brief, such point will not be considered by the Supreme Court.") (alteration in original) (quoting Lewis v. State, 469 P.2d 689, 691-92 n. 2 (Alaska 1970)).

10328255

Bambi (Relkin) MULLER and Lowell Relkin, Plaintiffs, v. BP EXPLORATION (ALASKA) INC., Defendant

Muller v. BP Exploration (Alaska) Inc.

1996-09-13

No. S-7128

783

795

923 P.2d 783

923

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T16:59:37.070555+00:00

CAP

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

Bambi (Relkin) MULLER and Lowell Relkin, Plaintiffs, v. BP EXPLORATION (ALASKA) INC., Defendant.

Bambi (Relkin) MULLER and Lowell Relkin, Plaintiffs, v. BP EXPLORATION (ALASKA) INC., Defendant. No. S-7128. Supreme Court of Alaska. Sept. 13, 1996. Harry Relkin, Albuquerque, New Mexico, pro se. Ben J. Esch, Garretson & Esch, Anchorage, for Plaintiffs. Katherine C. Tank, Perkins Coie, Anchorage, for Defendant. 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.

7504

47526

OPINION EASTAUGH, Justice. I. INTRODUCTION We here consider the effect of the marital status anti-discrimination clause in AS 18.80.220(a)(1). After an unmarried couple sued their former employer, the United States District Court for the District of Alaska certified to us the following two questions: whether AS 18.80.220(a)(1) prevents an employer from discriminating against an employee "based on the identity of his spouse," and whether AS 18.80.220(a)(1) is limited to preventing employers from discriminating based on the status of being married. We answer these questions "no," and "yes," respectively. Although AS 18.80.220(a)(1) prevents employers from discriminating based on the marital status of their employees, it does not prevent discrimination based on the identity of the employee's spouse or future spouse. II. FACTS AND PROCEEDINGS Bambi (Relkin) Muller and Lowell Relkin sued BP Exploration Alaska, Inc. (BP) in 1993 in the Alaska superior court, alleging that BP had unlawfully discriminated against them in violation of AS 18.80.220(a)(1). BP removed the case to the United States District Court for the District of Alaska on the basis of diversity of citizenship, and moved for summary judgment. The district court granted summary judgment to BP on all claims, except plaintiffs' claim of "marital status" discrimination. Recognizing that there was no controlling Alaska decisional precedent, the district court certified the following questions to us pursuant to Alaska Appellate Rule 407(a): Does Alaska's marital discrimination law, [AS] 18.80.220, apply to prevent an employer from discriminating against an employee based on the identity of his spouse, or future spouse, or is the statute limited to preventing employers from discrimination based on the status of being married, or about to be married? We agreed to answer these questions. The district court found the following facts: This case arose after Plaintiffs resigned from their respective jobs with British Petroleum ("BP"). Plaintiff Lowell Relkin ("Relkin") had been working at BP since 1985 as an A Tech Production Operator. A production technician or operator controls the production of oil "from the reservoir to the gathering centers and is responsible for all associated equipment and piping between those two points." In the fall of 1989, BP implemented a program to train new production operators. The four-year program was designed to take someone with no experience in oil production and train them to become E, D, C, B, and, ultimately, an A Tech Production Operator. The training program was to commence with six months of basic training or classroom instruction, to be followed by rotations in the field on an assigned crew under production operator mentors. Relkin was selected to coordinate the new operator training program about November of 1989. This placement, which was a promotion, was meant to be temporary. Bambi (Relkin) Muller ("Muller") was working for BP in an administrative capacity in Anchorage when she applied to become a trainee. The training program was a step up for Muller. In about February, 1990, Muller and nine others were chosen for the training program, and became known as E Tech Production Operator Trainees. At the time of the selection process, Relkin and Muller did not know each other. In the spring of 1990, the classroom portion of the training program began. In November, Muller, along with four others, were assigned to the A shift during the day. Within two months of the beginning of the training program, Relkin and Muller began to develop a romantic relationship. Plaintiffs informed BP of the relationship. BP informed Plaintiffs that there was no problem with their relationship and that no policy existed forbidding such a relationship. Plaintiffs were informed, however, that if the relationship led to marriage, Relkin may have to step down as training coordinator.1 The policy given to employees (employee handbook) stated that no discrimination based on marital status would exist. However, the supervisorsf] manual contained BP's anti-nepotism poli cy which prohibited married persons from supervising one another. 1 BP's facts say that at this point Plaintiffs were informed of the BP policy which prohibits relatives from working together in a supervisor/supervisee relationship and that Relkin's supervisor informed him that the policy did not apply to Plaintiffs because they were not married. However Relkin was informed that if other trainees complained, Relkin could be forced to step down as training coordinator if investigation supported any claim of favoritism being given to Muller. Relkin denies that he was informed of the supervisor/supervisee prohibition. Plaintiffs were engaged approximately four months later. In September of 1990, Relkin was allegedly informed that he would be removed as training coordinator because of the engagement. Additionally, Relkin, immediately following his removal as training coordinator, was placed temporarily on the night shift while Muller remained in classroom training on the day shift. Under normal shift rotations, Plaintiffs would have worked the same shift approximately fifty percent of the time. Relkin inquired into why he and Muller could not work the same shift. Relkin agreed to a demotion and a distant position as long as he and Muller could have the same hours. BP's Production Manager, Barney Dotson ("Dotson"), allegedly informed Plaintiffs that he would never allow them to work the same shift and if they kept asking, Relkin would be terminated. Relkin then allegedly learned from his immediate supervisor, Mel Pye ("Pye"), that the supervisors were threatened with termination if they allowed Plaintiffs to work the same twelve hour shift. Then, during meetings with the Human Resources Department management, Plaintiffs were allegedly told that BP management was "out to get" Plaintiffs. On November 6, 1990, Plaintiffs entered BP's grievance process and grieved Rel-kin's demotion, management's decision not to allow them to work the same twelve hour shift, and discriminatory practices based on Plaintiffs['] personal relationship. At the first level, the grievance was decided against the Plaintiffs. Plaintiffs then continued the grievance to level II of V. Level II led to a grievance settlement. The settlement provided that: (1) Relkin would step down as training coordinator; (2) a new rotation schedule would be created for the trainees which would allow, in three months, Relkin and Muller to be on the same twelve hour shift (the new schedule, like the old one, provided that changes could be made for operational reasons) and thereafter be treated as any other employee; (3) the grievance would be considered settled; and (4) upon a regular rotation, Relkin would be Muller's mentor. Thereafter, the agreed rotation schedule went into effect. About two and a half months later, on February 24, 1991, BP informed the trainees and mentors that implementation of the second rotation, which was to begin four days later, would be delayed. BP says the reason for the delay was a shortage of mentors and a request by the trainees that the rotation be delayed until after they took an April exam. Plaintiffs hold that BP informed them personally that the settlement agreement would not be honored. On the evening of February 23, 1991, Relkin reported to the medic with a stress related illness and was ordered to bed rest by BP medical staff. Relkin, on February 25, 1991, attended a letter of reprimand meeting in which he was presented with a letter of reprimand outlining deficiencies in Relkin's work, aptitude, and ability to get along with others. Relkin admitted to some of the facts in the letter but denied any wrongdoing. Relkin did not grieve the letter of reprimand. Relkin and Muller did not grieve the delay in implementing the rotation schedule. At the end of the February 25, 1991, meeting, Relkin submitted his resignation. On the same day, Muller submitted her resignation. Shortly after the April exam, the agreed upon rotation schedule went into effect. At oral argument before us, their counsel asserted that Muller and Relkin were co-employees, and that although initially Relkin was Muller's supervisor, ultimately neither was in a supervisory position over the other. BP did not dispute that characterization of the facts. III. DISCUSSION The meaning of the term "marital status" in AS 18.80.220(a)(1) presents an issue of first impression in Alaska. Muller and Rel-Mn ask us to interpret the term "expansively," to prohibit employment discrimination based on the identity of one's spouse, not just on the condition of being married or unmarried. They argue that an expansive interpretation of "marital status" is suited to preventing the discriminatory practices contemplated by the Alaska legislature in enacting the Alaska Human Rights Act (AHRA). BP responds that elementary principles of statutory interpretation and considerations of public policy require that "marital status" be interpreted in accordance with the plain meaning of that term. Alaska Statute 18.80.220 provides in relevant part: (a) It is unlawful for (1) an employer to refuse employment to a person, or to bar a person from employment, or to discriminate against a person in compensation or in a term, condition, or privilege of employment because of the person's race, religion, color or national origin, or because of the person's age, physical or mental disability, sex, marital status, changes in marital status, pregnancy or parenthood when the reasonable demands of the position do not require distinction on the basis of age, physical or mental disability, sex, marital status, changes in marital status, pregnancy or parenthood. However, AS 18.80.220 does not define the term "marital status." We use our independent judgment to determine what the legislature intended by this term. Alaska State Comm'n for Human Rights v. State, 796 P.2d 458, 460 (Alaska 1990) (holding that Commission's interpretation of AS 18.80 is reviewed de novo). Other jurisdictions that have considered whether prohibiting employment discrimination based on "marital status" precludes discrimination based on the identity of a person's spouse are split. Some courts considering this issue have construed "marital status" to mean the condition of being married based on the plain meaning of the term. Maryland Comm'n on Human Relations v. Greenbelt Homes, Inc., 300 Md. 75, 475 A.2d 1192 (1984); Whirlpool Corp. v. Michigan Civil Rights Comm'n, 425 Mich. 527, 390 N.W.2d 625 (1986); Manhattan Pizza Hut, Inc. v. New York State Human Rights Appeal Bd., 51 N.Y.2d 506, 434 N.Y.S.2d 961, 415 N.E.2d 950 (1980). Others have construed "marital status" as having a more expansive meaning, in furtherance of perceived legislative intent. Ross v. Stouffer Hotel Co., 72 Haw. 350, 816 P.2d 302 (1991); River Bend Community Unit Sch. Dist. No. 2 v. Human Rights Comm'n, 232 Ill.App.3d 838, 173 Ill.Dec. 868, 597 N.E.2d 842 (1992); Kraft, Inc. v. State, 284 N.W.2d 386 (Minn.1979); Thompson v. Board of Trustees, 192 Mont. 266, 627 P.2d 1229 (1981); Washington Water Power Co. v. Washington State Human Rights Comm'n, 91 Wash.2d 62, 586 P.2d 1149 (1978). Many of these decisions are the products of closely divided courts. A. Statutory Interpretation In construing the meaning of a statute, we look to the meaning of the language, the legislative history, and the purpose of the statute in question. "The goal of statutory construction is to give effect to the legislature's intent, with due regard for the meaning the statutory language conveys to others." Tesoro Alaska Petroleum Co. v. State, 746 P.2d 896, 905 (Alaska 1987). "Because this is a case of first impression in this state, '[o]ur duty is to adopt the rule of law that is most persuasive in light of precedent, reason, and policy.' " Foreman v. Anchorage Equal Rights Comm'n, 779 P.2d at 1201 (alteration in original) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979)). B. Plain Meaning We have rejected a mechanical application of the plain meaning rule in matters of statutory interpretation, and have adopted a sliding scale approach instead. State v. Alex, 646 P.2d 203, 208-09 n. 4 (Alaska 1982) (citing State, Dep't of Natural Resources v. City of Haines, 627 P.2d 1047, 1049 n. 6 (Alaska 1981)); see also North Slope Borough v. Sohio Petroleum Corp., 585 P.2d 534, 540 n. 7 (Alaska 1978) ("We reject the so-called 'plain meaning' rule as a strict exclusionary rule."). The plainer the statutory language is, the more convincing the evidence of contrary legislative purpose or intent must be. Anchorage Sch. Dist. v. Hale, 857 P.2d 1186, 1189 (Alaska 1993); Alex, 646 P.2d at 208-09 n. 4. In assessing statutory language, "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." Tesoro Alaska, 746 P.2d at 905; Wilson v. Municipality of Anchorage, 669 P.2d 569, 571-72 (Alaska 1983). The most common meaning of "marital status" is the actual condition of being married or unmarried. The term refers only to the state of being married, and does not extend to include the identity of the person to whom one is married. "The relevant inquiry is if one is married rather than to whom one is married." Miller v. C.A. Muer Corp., 420 Mich. 355, 362 N.W.2d 650, 653 (1984). Muller and RelMn contend that if the meaning of "marital status" were "plain," the district court would not have asked us to interpret the term. In one sense this is true. If the term were so plain that it could not reasonably permit the broad construction they urge, that court would have had no reason to refer the issue to us. We do not suggest that the broad construction is altogether unreasonable, only that it stretches the meaning of the term "marital status" beyond the limits of normal usage, which is the sense in which we use the phrase "plain meaning." We find that, in accordance with common usage, the plain meaning of the term "marital status" is the condition of being married or unmarried. We will apply this meaning absent convincing evidence of a contrary legislative purpose. Anchorage Sch. Dist., 857 P.2d at 1189. C. Legislative History The AHRA was first enacted in 1965. It was amended in 1975 to include a prohibition against discrimination in employment on the basis of marital status or changes in marital status. However, the legislative history of this 1975 amendment contains no discussion of the meaning of "marital status," or of any effect the amendment might have on anti-nepotism laws. The legislature's failure to discuss the specific meaning and effect of the term "marital status" indicates that it did not intend the term to include the identity of one's spouse. "It is assumed that whenever the legislature enacts a provision, it has in mind previous statutes relating to the same subject matter, and all should be construed together." Hafling v. Inlandboatmen's Union of the Pacific, 585 P.2d 870, 877 (Alaska 1978). If the legislature had intended some meaning other than the plain meaning, the 1975 amendment would have merited a discussion of the exact meaning of the term to be applied. Discussion also would have been merited concerning the effect of the amendment on existing statutes, including anti-nepotism laws. In Manhattan Pizza Hut, Inc., 434 N.Y.S.2d 961, 415 N.E.2d at 958, the Court of Appeals of New York held that because of the dramatic effect the more expansive definition of "marital Status" would have on anti-nepotism policies, the absence of legislative history containing any discussion of what "marital status" includes indicates that the legislature intended that the plain meaning of the term apply. The court found that "[t]he importance of the business and labor management concerns it seeks to serve belies the likelihood that the Legislature would have struck a blow at antinepotism policies with nary a word, in or out of the statute, to express or explain its intention...." Id. Justice Wakatsuki of the Supreme Court of Hawaii agreed with this analysis in his dissent in Ross v. Stouffer Hotel Co., 72 Haw. 350, 816 P.2d 302, 304-05 (1991). In finding that the plain meaning of "marital status" should have been applied, he stated: It is also significant that the legislative history of HRS 378-2 omits any mention of the issue before us. A prohibition of discrimination on the basis of identification of one's spouse covers a wide array of personnel policies, including antinepotism policies, policies against hiring the spouse of a major business competitor, and policies against having spouses in supervisor-su-pervisee capacities. Such policies are widespread and backed by valid reasons. Id., 816 P.2d at 305 (citing Manhattan Pizza Hut, Inc., 434 N.Y.S.2d 961, 415 N.E.2d at 953). Anti-nepotism and no-spouse policies have been adopted by many businesses in Alaska. In addition, anti-nepotism statutes prevent certain people from having supervisory positions over each other in the Alaska state government. See, e.g., AS 24.60.090 (relative of legislator may not be employed by house of which legislator is a member while it is in session, or by either house in the interim, and relative of legislative employee may not be employed in a position over which such person has supervisory authority); AS 39.90.020 (unlawful for relative of "executive head of a principal state department or agency to be employed in that department or agency"); AS 14.14.140 (restricting employment by schools of immediate family members of school board members and chief school administrators). We have stated that " '[w]here a reasonable construction of a statute can be adopted which realizes the legislative intent and avoids conflict or inconsistency with another statute this should be done.' " State v. Patterson, 740 P.2d 944, 948 (Alaska 1987) (quoting Gordon v. Burgess Constr. Co., 425 P.2d 602, 604 (Alaska 1967)) (alteration in original). Consequently, we find that the lack of discussion in the legislative history supports a conclusion that the legislature intended that "marital status" be interpreted according to its plain meaning. Muller and RelMn argue that these anti-nepotism laws would not necessarily be invalidated under the more expansive interpretation of the term "marital status," because they would come within the "reasonable demands" exception to AS 18.80.220(a)(1). .This statutory exception provides that employment discrimination on the basis of otherwise forbidden criteria is permissible if "the reasonable demands of the position require" such a distinction to be made. However, this exception is extremely limited. In McLean v. State, 583 P.2d 867, 869 (Alaska 1978), we held: The only exception to the statutory requirement prohibiting discrimination is that discrimination . is permitted only "when the reasonable demands of the position" require distinctions [be made]. But this is not an easy escape valve from the anti-discrimination policy of the statute- The connotation we place on "demands" is that of requirements or necessities that are of an urgent nature.... Without such a connotation, all but the most blatant discriminatory plans would be excused even if they perpetuated the effects of past discrimination. The state anti-nepotism laws cited above require that an employee not be related to a person with influence over their employment in certain government institutions. Assuming that the legislature did intend the more expansive interpretation of "marital status," the anti-nepotism laws cited would require discrimination based on the identity of one's spouse. Assuming also that the desire to preserve the appearance and reality of integrity in government institutions constitutes a "reasonable demand" requiring that such a distinction be made, the statutes would fall within the exception to AS 18.80.220(a)(1). See Washington Water Power Co. v. Washington State Human Rights Comm'n, 91 Wash.2d 62, 586 P.2d 1149, 1154 (1978) (stating of the Washington state legislature's anti-nepotism statute that "[t]he need for the 'appearance of fairness' in this situation may well outweigh the spouses' interest in obtaining employment unburdened by marital status discrimination"). We consequently assume for the sake of discussion that the statutory exception would avoid the resulting conflict between the anti-nepotism laws and the prohibition against discrimination that would result if "marital status" were given the interpretation Muller and Relkin propose. However, this would not alter our view of the legislative history. We assume that if the legislature had intended the more expansive meaning of "marital status," it would have recognized and discussed the potential conflict between the 1975 amendment and the anti-nepotism laws and employment practices. Assuming also that the legislature concluded that the statutory "reasonable demands" exception applied, avoiding both the statutory conflict and the invalidation of private employment practices, we nonetheless think it most likely that the legislature would have discussed the conflict and its resolution. Because the legislature engaged in no such discussion, we interpret its silence as an indication that it intended the plain meaning of the term to apply. D. Purpose of the AHRA In interpreting a statute, we also look to the language of the statute in light of the purposes for which it was enacted. Tesoro Alaska, 746 P.2d at 904. In stating the purpose of AS 18.80, the legislature found that discrimination against an inhabitant of the state because of race, religion, color, national origin, age, sex, physical or mental disability, marital status, changes in marital status, pregnancy or parenthood is a matter of public concern and that this discrimination not only threatens the rights and privileges of the inhabitants of the state but also menaces the institutions of the state and threatens peace, order, health, safety, and general welfare of the state and its inhabitants. AS 18.80.200(a). Alaska Statute 18.80 was enacted in order to eliminate and prevent discrimination in employment, in credit and financing practices, in places of public accommodation, in the sale, lease, or rental of real property because of race, religion, color, national origin, sex, age, physical or mental disability, marital status, changes in marital status, pregnancy or parenthood. AS 18.80.200(b). Muller and Relkin argue that an expansive interpretation of "marital status" is more in keeping with the purposes of the AHRA. They contend that interpreting "marital status" narrowly may lead to results that do not protect married couples from employment discrimination. BP counters that the plain meaning of "marital status" better comports with the purposes of the AHRA. We agree. The purpose of the AHRA is to prevent prejudices and biases borne against persons who are members of certain protected classes; it seeks to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases against the members of those classes. The more expansive interpretation of the term "marital status" does not protect the members of the class, but instead effectively enlarges it to include all persons wishing to work with their spouses, thus invalidating any relevant anti-nepotism policies. Anti-nepotism policies exist to prevent "potential emotional interference with job performance, collusion in grievance disputes, favoritism, morale problems resulting from the appearance of favoritism, and conflicts of interests that arise if an employee is required to supervise the employee's spouse." Miller, 362 N.W.2d at 654. "Whether these reasons are valid in all circumstances or not, they do not appear to reflect offensive or demeaning stereotypes, prejudices, or biases." Id. Therefore, interpreting "marital status" as plaintiffs propose would not advance the AHRA's purpose of protecting class members from prejudices or biases borne against them. See Whirlpool Corp., 390 N.W.2d at 626-27 (holding that the legislative intent behind the Michigan Civil Rights Act was to prevent prejudice against persons based on their membership in a particular class, and to eliminate "the effects of offensive or demeaning stereotypes, prejudices, and biases"; consequently, the no-spouse rule was not discrimination on the basis of marital status, but instead was permissible "different treatment based on the fact that one's spouse works in the same place"). Similarly, we find that the purpose of AS 18.80.220 is to prohibit discrimination against a person based on his or her condition of being married or unmarried, not on the identity of one's spouse. To whom one is married is not a class-defining factor, unlike all the other factors listed in AS 18.80.220(a)(1). Extending the reach of the anti-discrimination law to employment decisions based on to whom a person is married would change the focus of the law from discrimination based on broad categories, which can give rise to demeaning stereotypes and biases, to a highly individual factor. Thus, adopting Muller's and Relkin's interpretation of "marital status" would be inconsistent with the structure and purpose of the statute, because it would prohibit discrimination based on individual rather than class factors. We have held that "Alaska's civil rights statute should be broadly construed 'to further the goal of eradication of discrimination.'" Alaska USA Fed. Credit Union v. Fridriksson, 642 P.2d 804, 806 (1982) (holding that a nonprofit credit union was an employer for purposes of AS 18.80, and thus subject to the prohibition on sex discrimination) (quoting Wondzell v. Alaska Wood Products, Inc., 601 P.2d 584, 585 (Alaska 1979)). We have also held that "Alaska's anti-discrimination statute gives the [Alaska Human Rights] Commission a more aggressive mandate than that held [under federal law]." State v. Meyer, 906 P.2d 1365, 1372 (Alaska 1995). We have long recognized the strong statement of purpose of AS 18.80, and "its avowed determination to protect the civil rights of all Alaska citizens." Loomis Elec. Protection, Inc. v. Schaefer, 549 P.2d 1341, 1343 (Alaska 1976) (holding that compensatory and punitive damages are available as relief under AS 18.80). Accordingly, we conclude that the plain meaning of the term "marital status" achieves the goal of AS 18.80.220 of eradicating discrimination against a person based on the condition of being married or unmarried, and thus best serves the purposes of the AHRA. E. Public Policy Muller and Relkin argue that the protection afforded by the expansive interpretation of "marital status" "comports with Alaska's policy of encouraging marriage and family." They also argue that a narrow interpretation will impinge upon an individual's right to choose his or her own marital status unimpaired by improper influences. This right is a matter of personal autonomy or freedom, which society has an interest in protecting. Muller and Relkin contend that the risk of having the choice of marital status impaired by improper influences is particularly strong in Alaska, where the job market is limited and, in some places, dominated by one or a few employers. Muller and Relkin characterize the relevant job market in the narrowest way possible, saying: "plaintiffs had little choice but to be employed by defendant BP on the North Slope of Alaska." If BP strictly enforces its anti-nepotism policy, Muller and Relkin are "left . with a Hobson's choice of [either] one of them giving up his or her employment, or their [not getting married], and continuing [their romantic relationship] and being employed in their chosen occupation." Ross, 816 P.2d at 304; see also Kraft, Inc., 284 N.W.2d at 388; Manhattan Pizza Hut, Inc., 434 N.Y.S.2d 961, 415 N.E.2d at 955 (Cooke, C.J., dissenting). The state has an interest in protecting a person's right to choose the form that his or her relationships will take. It is for precisely this reason that the AHRA prohibits discrimination on the basis of whether one is married or unmarried. See Foreman, 779 P.2d at 1202-03 (holding AHRA prohibits discrimination against unmarried cohabiting individuals). However, the state also has an interest in protecting the interests of its businesses and companies by allowing them to adopt reasonable employment, policies. Therefore, although a person's employment may be affected by the identity of his or her spouse, that effect does not violate the public policy that initially mandated Alaska's anti-discrimination legislation. F. Agency Interpretation The dissent asserts that the promulgation of 6 Alaska Administrative Code (AAC) 30.990(a)(8) (1995) establishes that the Human Rights Commission interprets the statutory marital status protection to encompass the identity of one's spouse. Dissent at 792-795. The language of the regulation does not clearly support such an interpretation. Given the absence of any legislative history suggesting that the legislature intended the reading Muller proposes, one would expect the agency to more clearly and explicitly define the prohibition to prevent discrimination based on the identity of one's spouse rather than simply refer to "marriage to another person," if that were the reasoning the agency intended. However, even assuming that the language of the regulation does support such an interpretation, the regulation could not justify a statutory interpretation not warranted by the statute's own language and legislative history. Consequently, such an interpretation by the Commission would not be entitled to judicial deference. IV. CONCLUSION In answer to the certified questions, we hold that AS 18.80.220(a)(1) is limited to preventing employers from diseriminatmg against an employee based on the status of being married, and does not prohibit an employer from diseriminatmg against an employee based on the identity of his or her spouse or future spouse. Thus, we answer "no" to the question whether AS 18.80.220 prevents an employer from discriminating against an employee "based on the identity of his spouse," and "yes" to the question whether AS 18.80.220 is limited to preventing employers from discriminating based on the status of being married. . Muller and Relkin were formally engaged at the time the cause of action arose. It is not clear whether they have since married. However, the issue of their subsequent marriage is not relevant to this discussion. We have held that the prohibition against discrimination on the basis of marital status protects the rights of unmarried couples. Foreman v. Anchorage Equal Rights Comm'n, 779 P.2d 1199, 1203 (Alaska 1989). Furthermore, the parties do not dispute that Muller and Relkin became engaged while they were employees at BP, nor do they dispute that BP's anti-nepotism policy applied equally to married and engaged personnel. . Appellate Rule 407(a) provides: The supreme court may answer questions of law certified to it by the Supreme Court of the United States, a court of appeals of the United States, a United States district court, a United States bankruptcy court or United States bankruptcy appellate panel, when requested by the certifying court if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court of this state. . "Status" is defined as "the condition (as arising out of age, sex, mental incapacity, crime, alienage, or public station) of a person that determines the nature of his legal personality, his legal capacities, and the nature of the legal relations to the state or to other persons into which he may enter." Webster's Third New International Dictionary (Unabridged) 2230 (1968). Marital status is thus the condition of being married or unmarried, but in the case of married persons, is independent of to whom one is married. . Jurisdictions discussing the term agree that it refers only to the state of being married. They define the term in various ways: as "whether one is married or not married," Maryland Comm'n on Human Relations v. Greenbelt Homes, Inc., 300 Md. 75, 475 A.2d 1192, 1196 (1984); as "the social condition enjoyed by an individual by reason of his or her having participated or failed to participate in a marriage," Manhattan Pizza Hut, Inc. v. New York State Human Rights Appeal Bd., 51 N.Y.2d 506, 434 N.Y.S.2d 961, 964, 415 N.E.2d 950, 953 (1980); and as "that phase of his or her personal lifestyle which is classifiable, for instance, as single, married, separated, divorced or widowed." Id., 434 N.Y.S.2d at 963, 415 N.E.2d at 952. . In interpreting a civil rights statute substantially similar to the AHRA, the Michigan Supreme Court stated: Civil rights acts seek to prevent discrimination against a person because of stereotyped impressions about the characteristics of a class to which the person belongs. The Michigan civil rights act is aimed at "the prejudices and biases" borne against persons because of their membership in a certain class, and seeks to eliminate the effects of offensive or demeaning stereotypes, prejudices and biases. Miller, 362 N.W.2d at 653-54 (footnote and citations omitted) (interpreting Mich. Comp. Laws. Ann. § 37.3303 (West 1996)). We agree that this is the fundamental purpose of anti-discrimination statutes. . BP argues that anti-nepotism policies like BP's do not "unreasonably or substantially interfere with the right to marry." To support this argument BP cites several federal cases holding that laws prohibiting spouses from working together do not unconstitutionally interfere with the right to marry guaranteed by the First and Fourteenth Amendments because they do not "directly and substantially" interfere with the right. Although none of the cases cited by BP appears to have considered the possible impact of an anti-nepotism policy on marital decisions in a relatively limited job market, such as that found in Alaska, we assume that the Alaska legislature could have expressly and clearly protected the right to marry had it felt the need to do so. . Although the parties have understandably focused on anti-nepotism policies, there may be other reasons why an employer might reasonably make employment decisions based on the identity of a person's spouse. A proprietor, for example, might reasonably decline to employ the spouse of a competitor, and a law firm might reasonably decline to hire a lawyer whose spouse works for an institution against which the firm often litigates, or vice versa. . 6 AAC 30.990(a)(8) (1995) provides, that as used in AS 18.80, "discrimination because of marital status or changes in marital status" includes unjustified adverse action taken against a person because that person is single, married, widowed or divorced, or because of that person's marriage or termination of marriage to another person. .Although an agency's statutory interpretation is usually entitled to " 'some weight,' " Peninsula Marketing Ass'n v. State, Dep't of Fish & Game, 817 P.2d 917, 922 (Alaska 1991) (quoting State, Dep't of Revenue v. Alaska Pulp America, Inc., 674 P.2d 268, 274 (Alaska 1983)), we "will not defer to an agency interpretation that conflicts with the plain meaning of the statute." Fairbanks N. Star Borough Sch. Dist. v. NEA-Alaska, Inc., 817 P.2d 923, 926 n. 4 (Alaska 1991). To the extent the agency were promulgating a regulation which differs substantively from the clear language of the statute, it would be invalid. Powers v. State, Pub. Employees' Retirement Bd., 757 P.2d 65, 67 (Alaska 1988) ("regulations made by an agency which exceed its statutory authority are invalid").

11583358

James W. WHITE, Appellant, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES, Appellee

White v. State, Department of Natural Resources

1999-08-13

No. S-8089

1122

1128

984 P.2d 1122

984

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T16:59:12.804513+00:00

CAP

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

James W. WHITE, Appellant, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES, Appellee.

James W. WHITE, Appellant, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES, Appellee. No. S-8089. Supreme Court of Alaska. Aug. 13, 1999. Robert C. Ely, Ely & Havelock, Jody P. Brion, Brion, Edgren & Goff, LLC, Anchorage, for Appellant. Lawrence Z. Ostrovsky, Assistant Attorney General, Anchorage, Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before MATTHEWS, Chief Justice, EASTAUGH, FABE, and BRYNER, Justices.

3039

18063

OPINION MATTHEWS, Chief Justice. I. INTRODUCTION The Tucson Group leased land from the State of Alaska for possible oil and gas exploration. The Tucson Group later assigned the lease to James White. The Department of Natural Resources (DNR) did not approve the assignment because it concluded that the lease between the Tucson Group and the State had expired. The Commissioner of DNR affirmed this decision. The lease contained numerous provisions that would automatically extend its term provided that certain conditions were met. White argues that he was entitled to a hearing concerning whether he met the conditions of one of these automatic extension provisions. We agree and remand for a hearing on that particular issue. We affirm the Commissioner's decision on all other grounds. II. FACTS AND PROCEEDINGS In 1962 Unocal drilled a 14,940 foot oil well on an onshore, privately owned tract of 117 acres of land (the "McCoy property"). The well did not go straight down; rather, it was a directionally drilled well that deviated into adjacently located state land offshore. The well was not developed, and Unocal plugged and abandoned it in 1962. It was plugged at the following depths: 3,718 feet; 7,400 feet; 10,350 feet; and 12,600 feet. On December 1, 1983, DNR issued oil and gas lease 359242, an offshore tract adjacent to the McCoy property; it contained approximately 2,433 acres. The lessees were Si-masko Production Co., Paul Gavora, James Thurman, and Tucson Ltd. (collectively the "Tucson Group"). This lease had a seven-year term, which expired at midnight on November 30, 1990. Paragraph 4 of the lease contained provisions for automatic extensions that were contingent upon certain conditions. In 1985 White's company, Far North Oil and Gas ("Far North"), received the rights to develop the previously abandoned onshore well located on the McCoy property. The Alaska Oil and Gas Conservation Commission (AOGCC) granted White permission to "reenter the [McCoy] well to explore for hydrocarbon production." Far North applied for and was granted a permit to reenter the well to a depth of 3,850 feet. On November 30, 1990, the last day of the lease between the State and the Tucson Group, a company associated with White, Conquest Petroleum, submitted the next year's rental payment on the Tucson Group's lease. The lease expired at midnight on November 30, 1990. On December 17 DNR sent a notice to the Tucson Group that the lease had expired. None of the members of the Tucson Group appealed this determination. Nevertheless, between December 12, 1990 and January 4, 1991, the members of the Tucson Group attempted to assign their rights to the lease to White. White applied for DNR approval of these assignments on March 7, 1991, but DNR denied his application because the "oil and gas lease [between the State and the Tucson Group] expired on November 30, 1990." In a June 20, 1991 letter, the Director of DNR's Division of Oil and Gas confirmed the denial of the assignment of lease rights to White because the lease expired on November 30, 1990, and because White was "neither the designated operator nor an owner at the time of expiration." The rent that had been submitted on November 30, 1990, to cover the following year's rental payment was then returned to White's attorney by DNR. In 1987 and 1992 the AOGCC requested completion reports from Far North concerning its work on the McCoy well as required by AAC 25.070, but White did not submit these reports until January 4,1993. White appealed the Director's decision to the DNR Commissioner. White argued that the lease between the State and the Tucson Group had not expired because the conditions of at least one of the automatic extension provisions in paragraph 4 of the lease had been met. Therefore, White claimed, the Tucson Group had the authority to assign its lease to him. White also requested a hearing so that the Commissioner could determine the factual issues relating to his case. In particular he sought a hearing to determine the bottom hole location of the McCoy well. Without granting a hearing, the Commissioner affirmed the Director's denial of White's application for assignment of the Tucson Group's lease to him. After analyzing each of the automatic extension provisions claimed by White, the Commissioner concluded: "The lease, ADL 359242, expired at the end of the primary term, on November 30, 1990. None of the provisions of Paragraph 4 of the lease would apply to automatically extend the term of the lease." The Commissioner then articulated each of the lease extension provisions he had rejected: The lessees of record did not apply for unitization of the lease nor did the state prescribe unitization. The lessees had not commenced drilling a well prior to the expiration date of the lease[, and] there was no well capable of producing in paying quantities on the lease. The assignment applications were submitted after the lease expired. White appealed this decision to the superi- or court, which affirmed the Commissioner's decision. He now appeals the superior court's decision. III. DISCUSSION A. Standard of Review In an appeal from a judgment of a superior court acting as an intermediate court of appeal, we independently and directly review the agency decision. We review an administrative agency's findings of fact for substantial evidence, which is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." "[W]here the questions at issue implicate special agency expertise or the determination of fundamental policies within the scope of the agency's statutory function," we use the rational basis standard of review. "The rational basis approach merely determines whether the agency's determination is supported by the facts and is reasonably based in law." B. Was the Lease Automatically Extended by a "Unit Agreement Approved or Prescribed by the State"? Paragraph 4(b) of the lease states that "[t]his lease will be extended automatically if it is committed to a unit agreement[ ] approved or prescribed by the state, and will remain in effect for so long as it remains committed to that unit agreement." The Commissioner found that it "was simply not the case" that the lease was committed to a unit agreement because no such agreement was "approved or prescribed" by the State. We agree. "Unit agreements" are "executed by the State of Alaska, working-interest owners, and royalty owners creating the unit." Paragraph 4(b) of the lease expressly requires a unit agreement to be "approved or prescribed by the state." Contrary to White's assertions, unit agreements do not arise "automatically" without the State's involvement. In this case, the State never approved or prescribed a unit agreement. Therefore, White's argument that the McCoy property and the State's lease were committed to a unit agreement is without merit. We also reject White's related claim that the lease extension provision of paragraph 4(d) applies because there was a well "on the leased area." This argument is premised on the assumption, rejected above, that there was a unit agreement existing between the leased property and the McCoy well property, creating "a single unit" property. In fact, the McCoy well is located on property that is separate and distinct from the leased property. Accordingly, we agree with the Commissioner that the lease extension provision of paragraph 4(d) does not apply because there was not a well "on the leased area." C. Was White Entitled to a Hearing on the Issue of whether the McCoy Well's Bottom Hole Was Located in "the Leased Area"? Paragraph 4(c)(1), of the lease allows for the automatic extension of the lease "[i]f the drilling of a well whose bottom hole[ ] location is in the leased area has commenced as of the date on which the lease otherwise would expire and is continued with reasonable diligence." White argued to the Commissioner that the bottom hole of the McCoy well did extend under the State lease. He specifically requested a hearing before the Commissioner so that he could determine "[t]he location of the bottom hole drilled on McCoy Prospect No. 1 with reference to [the State's leased property]." Without explanation, the Commissioner did not grant White a hearing. The Commissioner also rejected White's argument that the McCoy well's bottom hole was located under the leased property: [P]aragraph 4(c)(1) requires that the "bottom hole" of the well be in the leased area. Again, such was simply not the case. It is irrelevant that there was a well [the McCoy well] originally drilled nearby whose bottom hole [in 1962] did underlie the Lease. In fact, the reentry upon which Mr. White lays his foundation for extension of the primary term of the lease did not penetrate and remove the plugs which had long since sealed off that original bottom hole. White argues that DNR's failure to grant him a hearing violated his right to due process guaranteed by the Alaska Constitution. We agree. To prevail in an action for the violation of due process rights, a plaintiff must prove two things: "state action" and "the deprivation of an individual interest of sufficient importance to warrant constitutional protection." Both of these prerequisites are met in this case. The Commissioner's denial of the assignment of the Tucson Group's lease to White constitutes state action, and the rights to the lease of which White was the assignee are "of sufficient importance to warrant constitutional protection" in this case. Nevertheless, we have held that although a hearing is normally one of the basic components of due process, it is subject, at least in the area of administrative law, to the exception that one need not hold a hearing if there is nothing to hold a hearing about; or, more precisely, "there is no requirement, constitutional or otherwise, that there be a hearing in the absence of substantial and material issues crucial to (the) determination."[ ] Citing 11 AAC 02.050(a), which provides that "[DNR] will, in its discretion, hold a hearing when questions of fact must be resolved," the State argues that the Commissioner "did not abuse his discretion by not holding a hearing since there were no outstanding issues of material fact" in the case. We disagree. With regal'd to the automatic extension provision of paragraph 4(c)(1) of the lease there was an important factual dispute — the depth to which White had reentered the McCoy well and whether this was deep enough to put the bottom hole of the well under the leased property. The Commissioner, apparently relying upon an internal memorandum to the DNR Director who made the initial ruling in White's case, concluded that the McCoy well's bottom hole did not underlie the lease. The internal DNR memorandum stated: We pulled a mineral estate status plat in an effort to determine if the bottom hole location [of the McCoy well] reached in 1985 went anywhere near ADL 359242. It did not. The surface location we plotted was 143.7 feet from the S line and 1429 feet from the E line of T. IS, R. 13W, S.M. White's bottom hole location in 1985 remained on the [McCoy] fee lease very near the surface location because of the relatively shallow 3500 foot depth that he re-drilled — it is only about 175 feet west from the surface location. It appears that the interval that White tested on the fee lease was about 500 feet from the edge of ADL 359242. White claims that the bottom hole location is much closer to the state lease— in the range of 50 feet. We have not tried to survey or measure the exact bottom hole location relative to the state lease. At best it could be very close to the lease line but not over it. At 3,500 feet, White would not have drilled through the first plug in the well which was at 3,718 feet. White argues, however, that he reentered the McCoy well to 3,840 feet, beyond the first plug in the well. He therefore claims that the "well bore was, at that point opened to the second cement plug at a depth of 7,400" feet, which extended under the lease. Thus, according to White, an "open well bore thereafter ran from [the McCoy well] out into the State offshore lease," resulting in the bottom hole of the McCoy well being "in" the State's leased property. These differing accounts of the extent to which White reentered the McCoy well represent a factual dispute that is material to the issue of whether the automatic extension provision of paragraph 4(c)(1) applies to this ease. As such, this issue warranted a hearing. The State argues, however, that White raises the theory of breaching the first plug in the well for the first time on appeal, and therefore we should decline to consider it. We do not read White's previous arguments before the Commissioner so narrowly. In his filings before the Commissioner, White stated that he would "present testimony that a 3,500 foot hole drilled in the [McCoy] well could just as well be 43 feet under the State lease as 43 feet short of it." Thus, it is true that White, on one hand, seems to be arguing that he drilled only to 3,500 feet. But he also argued that "the 'bottom hole' of the re-entered well was not where drilling stopped at 3,500 feet but rather at the next Union plug hundreds of feet further down." This argument before the Commissioner is consistent with White's contention on this appeal — mainly, that his drilling breached the first plug and therefore he should be deemed to have reached the depth of the second plug. The Commissioner's alternative ground for affirming the Director's decision does not alter our conclusion that White was entitled to a hearing in this case. The Commissioner appears to have concluded that even if White had reentered the McCoy well to a depth below the State lease, the reentry would have been unauthorized: In addition, the permits granted to perform the reentry work prohibited work in the deeper portions of the well bore. Further, in spite of the failure of the operator who performed the first re-entry in 1985 to complete the paperwork necessary to close out the work, any new re-entry to accomplish that breech [sic] of the plugs sealing the lower extremities of the well would be a new re-entry, and not an extension of the first. On appeal, the State similarly argues that "even if White had removed the first well plug, he had no authority to enter the Lease." We do not question the legal premise underlying this conclusion. However, the record indicates that there is a factual dispute as to whether White was granted the authority to drill under the State lease. One could read White's drilling permit, which authorizes him to "re-enter [the] well to 3,850 feet," as a limitation on the depth of his drilling activities. However, this depth is beyond the first plug, so by allowing White to drill to 3,850 feet, White may have been effectively granted permission to open the well to the second plug, which is at 7,400 feet. Moreover, the Commissioner's factual conclusion that White's permits "prohibited work in the deeper portions of the well bore" is not supported by the record. None of the permits granted to White contains such an express prohibition. Indeed, DNR itself, in its internal memorandum to the Director, stated, "[t]here is no reason why White could not deepen the well he has re-entered — but he hasn't tried to do this to date." Thus, assuming that White actually reentered the McCoy well to such a depth that its bottom hole was under the State lease, there is a factual dispute about whether White was actually authorized to do so. IV. CONCLUSION White is entitled to a hearing on the issue of whether he meets the requirements of the automatic extension provision of paragraph 4(c)(1) of the lease. We REMAND to the Commissioner on this issue only. In all other respects, we AFFIRM the decisions of the Commissioner and the superior court. CARPENETI, Justice, not participating. . See Cook Inlet Pipe Line Co. v. Alaska Pub. Utils. Comm'n, 836 P.2d 343, 348 (Alaska 1992). . Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992) (quoting Keiner v. City of Anchorage, 378 P.2d 406, 411 (Alaska 1963)). . Hammer v. City of Fairbanks, 953 P.2d 500, 504 (Alaska 1998) (quotations omitted). . Id. . A "unit agreement" is "[a]n agreement or plan of development and operation for the recovery of oil and gas made subject thereto as a single consolidated unit without regard to separate ownerships and for the allocation of costs and benefits on a basis as defined in the agreement or plan." Howard R. Williams & Charles V. Meyers, 8 Oil and Gas Law 1315 (1992). . 11 AAC 83.395(8). .A "bottom hole" is "the lowest or deepest part of a well." Petroleum Extension Service, A Dictionary of Petroleum Terms 497 (Jodie Leecraft ed., 3d ed.1983). . Estate of Miner v. Commercial Fisheries Entry Comm'n, 635 P.2d 827, 829 (Alaska 1981) (citations omitted). . Id. at 834 (quoting NLRB v. Bata Shoe Co., 377 F.2d 821, 826 (4th Cir.1967)). . Obviously, when regulation 11 AAC 02.050(a), which grants DNR the discretion to hold a hearing, conflicts with the requirements of the state due process clauses, the former must give way to the latter. . See, e.g., 20 AAC 25.005(i) ("A drilling permit is not valid at a location where the applicant does not have a right to drill for, produce, and remove oil and gas."). . Although we agree with the State's argument that White's well completion report was filed too late for the Commissioner to have initially considered it, we see no reason why White may not utilize the report as evidence to support his case before the Commissioner on remand.

11583147

Tom IRVINE, Appellant, v. GLACIER GENERAL CONSTRUCTION, and Industrial Indemnity Company of Alaska, Appellees

Irvine v. Glacier General Construction

1999-08-06

No. S-8347

1103

1108

984 P.2d 1103

984

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T16:59:12.804513+00:00

CAP

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

Tom IRVINE, Appellant, v. GLACIER GENERAL CONSTRUCTION, and Industrial Indemnity Company of Alaska, Appellees.

Tom IRVINE, Appellant, v. GLACIER GENERAL CONSTRUCTION, and Industrial Indemnity Company of Alaska, Appellees. No. S-8347. Supreme Court of Alaska. Aug. 6, 1999. Rehearing Denied Sept. 1, 1999. William J. Soule, Law Office of William J. Soule, Anchorage, for Appellant. Mark L. Figura, Rose & Figura, Anchorage, for Appellees. Before MATTHEWS, Chief Justice, COMPTON, EASTAUGH, FABE, and BRYNER, Justices.

3275

20882

OPINION BRYNER, Justice. I. INTRODUCTION Thomas Irvine appeals the denial of his claim for reemployment benefits by the Alaska Workers' Compensation Board (Board), arguing that the Board erred in failing to credit the hearing testimony of his physician, Dr. Shirley Fraser, and in deferring instead to the findings of its Rehabilitation Benefits Administrator (RBA), who did not consider Dr. Fraser's opinion. We agree that under AS 23.30.041(e) the RBA had a duty to consider the views of Irvine's designated physician and that, absent such consideration, the Board erred in deferring to the RBA's findings. We nevertheless conclude that this error is harmless, because the record conclusively establishes that Irvine would not have prevailed even if the RBA had considered Dr. Fraser's opinions. II. FACTS AND PROCEEDINGS Thomas Irvine started to work for Glacier General Construction (Glacier Construction) in January 1994 as a construction estimator and superintendent. In the fall of that year, several accidents at Irvine's work site caused injuries to his lower back and aggravated preexisting injuries in his back and neck. Initially, Irvine saw Drs. Michael James and Ed Voke regarding his lower back and Dr. Fraser only for his neck. Later, in January 1996, Irvine decided to seek treatment with Dr. Fraser for his lower back injuries as well, because he felt that Drs. James and Voke did not have as good an understanding of his problems. Irvine applied to the Board for vocational rehabilitation benefits under AS 23.30.041(c). The RBA selected Elisa Conley of Northern Rehabilitation Services to perform an evaluation and to submit a recommendation concerning Irvine's eligibility to receive reemployment benefits. Conley consulted with Drs. Voke and James; she also considered an independent medical evaluation prepared by Dr. Eric Carlsen. These doctors concurred that Irvine was ineligible for benefits because he could perform a number of jobs that were classified under the United States Department of Labor's "Selected Characteristics of Occupations Defined in the Dictionary of Occupational Titles" (SCODDOT) as equivalent to those jobs that he had held during the ten years preceding his 1994 injuries. Though Irvine designated Dr. Fraser as a treating physician and specifically requested Conley to contact Dr. Fraser, Conley declined to do so, evidently because she considered Dr. Voke to be primarily in charge of treating Irvine's 1994 injuries. Based on Irvine's work history and on the opinions of Drs. Voke, James, and Carlsen, Conley reported to the RBA that she had determined that Irvine was not eligible for vocational rehabilitation benefits. RBA des-ignee Mickey Andrew accepted Conley's report and issued a formal decision denying Irvine's application for reemployment benefits. Irvine appealed to the Board, contending that Conley should have based her evaluation exclusively on the opinion of the doctor he had designated as his treating physician— Dr. Fraser. At a hearing on Irvine's appeal, the Board considered testimony from both Conley and Dr. Fraser. Conley testified consistently with her report and indicated that she did not believe it necessary for her to consult with Dr. Fraser. Dr. Fraser testified that as a result of his 1994 injuries, Irvine was totally disabled and was incapable of holding any gainful employment. The Board concluded that Irvine had no right to dictate which physicians Conley was to rely upon to evaluate his benefits claim and that Conley had acted within her discretion in relying on the opinions of Drs. James, Voke, and Carlsen without seeking, much less considering, any evaluation by Dr. Fraser. Correspondingly, the Board found no abuse of discretion in the RBA's approval of Conley's recommendation to deny benefits. The Board also noted that Dr. Fraser's testimony at the hearing would not suffice to support Irvine's claim in any event, since Dr. Fraser did not rely on the SCODDOT standards. Irvine appealed the Board's ruling to the superior court, which affirmed, concluding, as had the Board, that in preparing her evaluation, Conley was not required to consult with Dr. Fraser: "The RBA and the Board have the authority to determine which physicians to rely upon in assessing Irvine's eligibility for reemployment benefits." After noting that the Board properly rejected Dr. Fraser's hearing testimony because the doctor did not use the SCODDOT listings, the court concluded that substantial evidence supported the Board's decision. Irvine appeals. III. DISCUSSION Alaska law provides that an employee who suffers a compensable injury that may permanently preclude return to the employee's occupation at the time of injury may apply to the RBA for reemployment benefits to obtain retraining in a new occupation. When an employee applies for benefits, the RBA selects a rehabilitation specialist to perform an eligibility evaluation and prepare a report. Under AS 23.30.041(d), the RBA then makes a determination as to eligibility based solely on the evaluator's report and informs the employee and employer of the decision. Either party may seek review of the RBA's decision by requesting a hearing before the Board under AS 23.30.110. The Board reviews the RBA's decision for abuse of discretion. Both the employer and the employee are entitled to "present evidence in respect to the claim" at the hearing. Under AS 23.30.041(e), the injured employee becomes eligible for benefits upon the employee's written request and by having a physician predict that the employee will have permanent physical capacities that are less than the physical demands of the employee's job. For purposes of determining "the physical demands of the employee's job," subsection (e) adopts the job descriptions set out in SCODDOT and considers not just the employee's job at the time of injury, but also "other jobs that exist in the labor market that the employee has held or received training for within 10 years before the injury or that the employee has held following the injury for a period long enough to obtain the skills to compete in the labor market . On appeal, Irvine faults the evaluator, Conley, for failing to honor his request to consider the opinion of Dr. Fraser before making her initial eligibility evaluation. Irvine maintains that AS 23.30.041(e) gives applicants the right to choose the physician whom the RBA evaluator must consult for purposes of determining eligibility; Irvine further maintains that the evaluator is bound by the designated physician's prediction. In advancing this argument, Irvine relies on the language in subsection (e) providing that an injured employee who applies for reemployment, benefits "shall be eligible" to receive benefits "by having a physician predict" the employee's inability to continue in the occupation the employee was performing at the time of injury. Irvine similarly faults the Board for deferring to the RBA's decision to deny him benefits and for ignoring Dr. Fraser's testimony at the evidentiary hearing. Because Dr. Fraser testified that Irvine "could do no work at all," Irvine reasons that under AS 23.30.041(e) the Board was required to find him eligible for benefits, just as Conley would have been required to find him eligible had she consulted with Dr. Fraser in performing the initial eligibility evaluation. Glacier Construction responds that the Board properly determined that the RBA did not commit an abuse of discretion in denying Irvine benefits. Glacier contends that because the RBA's decision is governed by the "abuse of discretion" standard, the RBA and the RBA's designated evaluator necessarily have discretion to determine how to perform an eligibility evaluation. Hence, in Glacier's view, Conley was free to choose which potential sources of medical information to consider in evaluating Irvine's eligibility for benefits. Glacier's position comports with the Board's view of the applicable law. In affirming the RBA's decision, the Board stated: [W]e find we would exceed our statutory authority if we interpreted AS 23.30.041(e) as requiring the RBA Designee to get and rely only upon Dr. Fraser's prediction. We find the RBA is free to choose which physician's opinion she will rely upon. We believe a corollary of this principle is that the RBA Designee may also decide from which physician she will seek opinions. We do not believe it is necessary for the RBA Designee to seek opinions from all physicians that have seen or treated Employee. (Citations omitted.) But in our view, neither Irvine nor Glacier correctly interprets the statutory requirements governing the evaluation of an applicant's eligibility for benefits. Though we believe that AS 23.30.041(d) vests the RBA's designated evaluator with considerable discretion in performing an eligibility evaluation and does not confer eligibility automatically to an applicant who offers a favorable medical opinion, we also believe that AS 23.30.041(e) allows the applicant to designate a treating physician who must be consulted, and whose views must be considered, in the evaluation process. In providing that "[a]n employee shall be eligible for benefits . by having a physician predict that the employee will have permanent physical capacities that are less than the physical demands of the employee's job," AS 23.30.041(e) strongly suggests that the employee who applies for benefits is entitled to designate a physician to support the application. The clause "by having a physician predict" refers back to the "employee"; the employee is the agent in this evidentiary process. Accordingly, the language puts the prerogative with the employee in the first instance. In this case, Conley considered an evaluation performed by a doctor chosen by Glacier Construction but disregarded Irvine's selection of Dr. Fraser as his primary physician and instead consulted with two other doctors who had treated Irvine's injuries— Drs. Voke and James. To permit Conley to disregard Irvine's choice of medical opinion would deprive Irvine of a choice that AS 23.30.041(e) apparently meant to give him. This court has recognized that failing to consider statutorily mandated factors amounts to an abuse of discretion. Because AS 23.30.041(e) required Conley to consult Dr. Fraser in preparing Irvine's eligibility evaluation, Conley had no discretion to ignore the doctor completely. In relying on Conley's flawed report, the RBA abused its discretion; and in upholding the RBA's decision as a sound exercise of discretion, the Board committed legal error. Irvine urges us to go further and make eligibility for benefits turn exclusively on the favorable recommendation of an applicant's designated physician. Under Irvine's proposed reading, subsection (e) would leave neither the RBA nor the Board any discretion to consider or weigh conflicting medical evidence. The designated physician's opinion would be binding and the entitlement to benefits would be virtually automatic. Irvine recognizes that his proposed interpretation is at odds with Yahara v. Construction & Rigging, Inc., where we held that when the Board hears two conflicting medical opinions concerning eligibility for reemployment benefits, both of which qualify as substantial evidence, the Board has discretion to favor either opinion over the other. But, relying on the plain language of AS 23.30.041(e), Irvine argues that we should overrule Yahara as incorrectly decided, contending that the Board only has discretion to deterniine whether someone is a "physician." We decline Irvine's invitation to overrule Yahara. This court held in Kirby v. Alaska Treatment Center that the presumption of compensability established in AS 23.30.120 extends to claims for vocational rehabilitation. But this statutory presumption is not irrebuttable. Rather, only where the employer fails to produce substantial evidence does the presumption compel a decision favoring the employee. Moreover, as we have already noted, the provisions of AS 23.30.041 governing reemployment benefits expressly grant the RBA discretion in determining applicants' eligibility for reemployment benefits; and they also vest employers and employees alike with the right to present evidence to and have their arguments considered by the Board. Our review of these provisions convinces us that AS 23.30.041(e) cannot properly be read to hinge the right to reemployment benefits entirely on the prediction of the applicant's designated physician. We therefore conclude that the Board erred in deferring to the RBA's decision and in failing to recognize Irvine's right to have Dr. Fraser's views considered during the eligibility evaluation. But, in doing so, we decline to hold that AS 23.30.041(e) entitled Irvine to benefits based solely on Dr. Fra ser's favorable recommendation. Indeed, our review of the record convinces us that the RBA's failure to consider Dr. Fraser's views amounted to harmless error. Under AS 23.30.041(e), an injured employee is entitled to reemployment benefits by having a physician predict that the employee will permanently lack the physical capacity to meet "the physical demands of the employee's job as described in the [SCODDOT] ." This court has consistently enforced subsection (e)'s requirement that medical opinions concerning eligibility for reemployment benefits be specifically referenced to the SCODDOT standards. For instance, in Konecky v. Cameo Wireline, Inc. an injured employee, Konecky, argued that the SCODDOT's job descriptions were antiquated and unrelated to his job's actual physical demands, which were much greater than those listed in the SCODDOT. Because Konecky was unable to perform the work for which he was trained, he argued that the Board should be able to "depart from the [SCODDOT] description when the facts require such action." We rejected Konecky's argument. While acknowledging that unfairness would result in certain circumstances, we maintained that the plain language of AS 23.30.041(e) leaves no room for the suggested departure: "[The statutory language] is plain and demands that reemployment benefit eligibility be determined by the [SCODDOT] job descriptions. The legislature neither expressed nor implied any exceptions." In the present case, although Dr. Fraser testified at the hearing before the Board that Irvine "could do no work at all," the doctor did not couch her opinion in terms of the SCODDOT standards. In fact, the record establishes beyond question that Dr. Fraser felt uncomfortable with the SCODDOT standards and would not rely on them as a basis for evaluating Irvine's physical capacity to perform work comparable to the job he held when injured. We note, in particular, Dr. Fraser's response to the Board's questions at the hearing: Q So I guess I'm trying to — can you or can you not express an opinion about his [Irvine's] ability to work just based on his low back X-ray? A Based on his low back? If I had to — I think on his low back I would probably — -if he had a normal neck and head, his low back — I don't — it's really hard to get a job where you can't sit comfortably or can't stand. I think he's pretty disabled. You know, I don't do these evals. I'm not very clever at it. Q Does that mean you're not very comfortable making that kind of an evaluation? A I'm not comfortable because I don't do [them]. Q Okay. I guess I can understand that. Thank you, Dr. Fraser. Irvine argues that Dr. Fraser's testimony fulfilled the statute's requirements as a matter of law because her more global assessment would encompass any job description in the SCODDOT. But Dr. Fraser's opinion does not satisfy the demands of AS 23.30.041(e). Moreover, her categorical statement, "I don't do these [SCODDOT] evals," makes it clear that it would be futile to remand this case for a new RBA eligibility evaluation based on consultation with Dr. Fraser. IV. CONCLUSION Because we conclude that the Board's error was harmless, we AFFIRM the superior court's judgment. . This case presents questions of statutory interpretation, to which this court accords de novo review, adopting the rule of law that is most persuasive in light of precedent, reason, and policy. See Boone v. Gipson, 920 P.2d 746, 748 (Alaska 1996). . See AS 23.30.041(c). The section provides in full: If an employee suffers a compensable injury that may permanently preclude an employee's return to the employee's occupation at the time of injury, the employee or employer may request an eligibility evaluation for reemployment benefits. The employee shall request an eligibility evaluation within 90 days after the employee gives the employer notice of injury unless the administrator determines the employee has an unusual and extenuating circumstance that prevents the employee from making a timely request. The administrator shall, on a rotating and geographic basis, select a rehabilitation specialist from the list maintained under (b)(6) of this section to perform the eligibility evaluation. . See AS 23.30.041(c) & (d). . AS 23.30.041(d) provides: Within 30 days after the referral by the administrator, the rehabilitation specialist shall perform the eligibility evaluation and issue a report of findings. The administrator may grant up to an additional 30 days for performance of the eligibility evaluation upon notification of unusual and extenuating circumstances and the rehabilitation specialist's request. Within 14 days after receipt of the report from the rehabilitation specialist, the administrator shall notify the parties of the employee's eligibility for reemployment preparation benefits. Within 10 days after the decision, either party may seek review of the decision by requesting a hearing under AS 23.30.110. The hearing shall be held within 30 days after it is requested. The board shall uphold the decision of the administrator except for abuse of discretion on the administrator's part. . See id. . See id. . AS 23.30.110(d). . See AS 23.30.041(e). The section reads in full: An employee shall be eligible for benefits under this section upon the employee's written request and by having a physician predict that the employee will have permanent physical capacities that are less than the physical demands of the employee's job as described in the United States Department of Labor's "Selected Characteristics of Occupations Defined in the Dictionary of Occupational Titles" for (1) the employee's job at the time of injury; or (2) other jobs that exist in the labor market that the employee has held or received training for within 10 years before the injury or that the employee has held following the injury for a period long enough to obtain the skills to compete in the labor market, according to specific vocational preparation codes as described in the United States Department of Labor's "Se lected Characteristics of Occupations Defined in the Dictionary of Occupational Titles." . Id. . Id. . AS 23.30.041(d). . See McDanold v. McDanold, 718 P.2d 467, 469 (Alaska 1986). . We note that, for similar reasons, the "abuse of discretion" standard prescribed by AS 23.30.041(d) must yield to the Board's authority to make de novo determinations under AS 23.30.110 when, on appeal from an RBA decision granting or denying reemployment benefits, the parties present relevant evidence to the Board that the RBA failed to consider. Because the RBA's decision in such cases would not have been based on all of the relevant evidence properly before the Board, the Board's deference to the RBA under the "abuse of discretion" standard would be inappropriate. . Yahara v. Construction & Rigging, Inc., 851 P.2d 69, 72 (Alaska 1993). . See Kirby v. Alaska Treatment Ctr., 821 P.2d 127, 129 (Alaska 1991). . See id. . See id. . See AS 2330.041(d). . See id. (providing for a hearing under AS 23.30.110 upon either party's request in reemployment-benefit cases); AS 23.30.110(d) (providing that either party may present evidence in a hearing under AS 23.30.110). . AS 23.30.041(e) (emphasis added). . See, e.g., Konecky v. Camco Wireline, Inc., 920 P.2d 277, 280 (Alaska 1996); Yahara v. Construction & Rigging, Inc., 851 P.2d 69, 73 (Alaska 1993); see also Rydwell v. Anchorage Sch. Dist., 864 P.2d 526, 529 (Alaska 1993) (interpreting "permanent impairment" language of the statute and noting that we require strict compliance with the express statutory language). . Konecky, 920 P.2d at 280. . Id. . See id. at 283. . Id. at 282.

10398677

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

Gudmundson v. State

1988-11-04

Nos. A-2309, A-2331

1360

1363

763 P.2d 1360

763

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T16:59:32.179770+00:00

CAP

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

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

Ronald E. GUDMUNDSON, Appellant, v. STATE of Alaska, Appellee. Steven KNUTSON, Appellant, v. STATE of Alaska, Appellee. Nos. A-2309, A-2331. Court of Appeals of Alaska. Nov. 4, 1988. Paul E. Malin, Asst. Public Defender, and Dana Fabe, Public Defender, Anchorage, for appellants. Brent Cole, Asst. Dist. Atty., Dwayne W. McConnell, Dist. Atty., Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

1853

11465

OPINION SINGLETON, Judge. Ronald E. Gudmundson and Steven Knutson were convicted by a jury of wanton waste of a big game animal. AS 16.30.-010(a). The court sentenced each defendant to fifteen days' imprisonment with all but three and one-half days suspended and imposed fines of $1,250 each. We affirmed the convictions, but remanded for the imposition of a legal sentence. Knutson v. State, 736 P.2d 775 (Alaska App.1987). On remand, Gudmundson and Knutson moved to vacate their conviction on jurisdictional grounds, i.e., that the statute under which they were convicted was void because it violated due process. Such a claim may be brought at any time because it involves a claim that the complaint "does not charge a crime." Alaska R.Crim.P. 12(b)(2); Gray v. State, 525 P.2d 524, 527 n. 8, 9 (Alaska 1974). We affirm. On August 21, 1985, Gudmundson and Knutson shot a Dali sheep ram on Sheep Mountain, an area closed for hunting. Gudmundson and Knutson assert that, at the time of the shooting, they both had valid hunting licenses and were unaware that the Sheep Mountain area was closed. After gutting the ram, the hunters decided to leave the carcass on the mountain and return for it the next day because it was getting dark. Later, the two hunters observed signs which indicated that the area in which they had shot the ram was a closed hunting area. Knutson, 736 P.2d at 776-77. According to Knutson, the hunters became "scared," id. at 777, and rather than retrieve the carcass, they decided to return to Anchorage to "figure out what to do." Id. In their motions to vacate their convictions, Knutson and Gudmundson argue that their due process rights were violated because they were placed in a "cruel dilemma" at the scene of the shooting since they would have committed a crime whether they acted or failed to act. According to the hunters, on the day of the kill, they had two choices, both illegal, available to them: they could salvage the sheep and become criminally liable for illegal transportation of game, 5 AAC 92.140, or they could decline to salvage and become liable for wanton waste, AS 16.30.010(a). In Knutson's and Gudmundson's view, they were entitled to post-conviction relief on this basis. District Court Judge John D. Mason rejected Knutson's and Gudmundson's arguments and denied the motion. Judge Mason concluded that the hunters should have informed the authorities of the kill so that the meat could have been salvaged. In the court's view, had Gudmundson and Knut-son contacted the authorities and removed the game from the field, in all likelihood, the state would not have prosecuted them for illegal transportation. Gudmundson and Knutson appeal contending that (1) Judge Mason erred in finding no due process violation, (2) that Judge Mason's finding that the hunters should have informed the police about the kill overlooks their right against self-incrimination, and (3) that Judge Mason's reliance on the expectation that the state would not prosecute was improper and violated separation of powers. Gudmundson and Knutson have framed significant issues, but have inadequately briefed them. Consequently, we consider the issues abandoned. See Kristich v. State, 550 P.2d 796, 804 (Alaska 1976). Missing from Knutson's and Gudmund-son's brief is the citation of any authority having facts remotely similar to those in their cases. In support of their primary due process argument, Gudmundson and Knutson rely on dicta in a dissenting opinion in Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944). In support of their claim that surrendering the illegally killed sheep to fish and game authorities would somehow violate their rights against compelled self-incrimination, they rely on Surina v. Buckalew, 629 P.2d 969, 976 (Alaska 1981), a case involving attempts to compel a witness to testify at trial. In support of their challenge to Judge Mason's offhand observation that had the hunters salvaged the meat and turned the remains over to government authorities, there probably would not have been any prosecution, they rely on the discussion of separation of powers in Public Defender Agency v. Superior Court, 534 P,2d 947, 950-51 (Alaska 1975), a case in which the superior court sought to compel the attorney general to prosecute individuals for nonpayment of child support. Vague references to general principles of law hardly constitute adequately briefing complicated legal issues. We stress that this is an application for post-conviction relief in which our jurisdiction is invoked to consider a claim that "the regulatory scheme," i.e., a Fish and Game Code that contains both the statute and the regulation, is by virtue of that fact alone unconstitutional. We recognize that if the hunters' right to relief were clear and the unconstitutionality of the regulatory system involved self-evident, deficiencies in briefing should be ignored in order to prevent a miscarriage of justice. The invalidity of AS 16.30.010(a) is not self-evident. See Paul H. Robinson, Criminal Law Defenses § 87(c) (1984). First, Gudmundson and Knutson base their challenge to the statute on an alleged conflict with a regulation. In so doing, they have overlooked the general rule that when a regulation conflicts with a statute, it is the regulation that must yield. Cf. Beran v. State, 705 P.2d 1280, 1287-90 (Alaska App.1985) (discussing the requirement that a regulation, in order to be valid, must be consistent with statutes addressing the same subject matter). Second, since it is the regulation that must be reconciled with the statute and not the statute that must be reconciled with the regulation, we are not convinced that Judge Mason erred in assuming that a "necessity" defense to a charge of illegally transporting game based upon the need to avoid waste solves any conflict. See, e.g., AS 11.81.320. We are not persuaded by Gudmundson's and Knutson's argument that the necessity defense only applies to situations created by "acts of nature" as opposed to human acts, a proposition on which the hunters rely. See Cleveland v. Anchorage, 631 P.2d 1073, 1078-79 n. 10 (Alaska 1981) (interpreting former law). There is no such limitation in AS 11.81.320, the statute which sets forth the necessity defense, and the case law suggests that the legislature intended that the specifics of the necessity defense would be developed through case law. See, e.g., Wells v. State, 687 P.2d 346, 348-49 (Alaska App.1984). See Jordan v. State, 681 P.2d 346, 348-50 (Alaska App.1984) (seeming to restrict the availability of a "necessity" defense in fish and game prosecutions). Finally, AS 16.30.010 provides in pertinent part: Wanton waste of big game animals and wild fowl. (a) It is a class A misdemeanor for a person who kills a big game animal or species of wild fowl to fail intentionally, knowingly, recklessly, or with criminal negligence to salvage for human consumption the edible meat of the animal or fowl. If the hunters had salvaged the edible meat of the sheep and turned it over to fish and game authorities, it is at least arguable that they would have complied with both the statute and the regulation. There is no requirement in the statute that hunters "salvaging meat" make full disclosure to public authorities as to the circumstances under which they obtained the meat. Consequently, it is not self-evident that surrendering the meat to public officials would have infringed upon the hunters' right to be free from compulsory self-incrimination. The judgment of the district court is AFFIRMED. BRYNER, C.J., dissents. . Appellant Knutson's motion to adopt co-appellant Gudmundson's brief was granted by this court on March 11, 1988. . Robinson implies that the "cruel dilemma" allegedly faced by the hunters in this case does not invalidate the statute on due process grounds, but rather gives rise to a factual defense akin to "impossibility" in those cases in which a justification defense (such as necessity) would be unavailable. Id. at 452-53. Judge Mason applied similar reasoning to conclude that the hunters should have salvaged the meat, thereby avoiding the greater evil, and then interposed a "necessity defense" if charged under the regulation. See AS 11.81.320. If a "necessity" defense was unavailable because an illegal act created the necessity, see Cleveland v. Anchorage, 631 P.2d 1073, 1078 n. 10 (Alaska 1981), then two other defenses may be available. First, the defense of performing a public duty as a justification for transporting the meat might be applicable. See AS 11.81.420(a) (otherwise illegal act justified, if required or authorized by law). Second, as Robinson suggests, an "impossibility" defense might be available. See AS 11.81.600(a) (the minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which the person is capable of performing). It is not clear that the hunters sought instructions on these defenses at trial. See Marrone v. State, 653 P.2d 672, 675 (Alaska App.1982) (defendant's failure to object to an instruction during his trial forfeits his right to challenge it in a post-conviction proceeding). Even if timely requests or interposed timely objections were made, controversies over jury instructions do not normally justify post-conviction relief unless they render the trial fundamentally unfair. Price v. State, 647 P.2d 611, 614 n. 8 (Alaska App.1982). Here, the hunters were not prosecuted for a violation of the regulation to which the defenses might apply, but for a violation of the statute to which they would not apply. Therefore, even if the defendants are correct in complaining of the "cruel dilemma they faced," it would not seem that their trial was fundamentally unfair. It is unnecessary for us to decide this point because the hunters did not raise such issues or discuss these defenses in their applications for post-conviction relief. . To the extent that Gudmundson and Knutson argue that they in fact relied on the regulation in electing to violate the statute, their claim would not be that the statute was invalid on its face, but that the statute would be invalid as applied to them under the peculiar circumstances of their case. It is not clear that such a claim may be raised for the first time in an application for post-conviction relief.

11579284

UNIVERSAL MOTORS, INC., Petitioner, v. Daniel C. NEARY, Bobbie L. McDonald, Sr., Bobbie L. McDonald, Jr., and Claudette M. McDonald, Respondents

Universal Motors, Inc. v. Neary

1999-08-20

No. S-8349

515

519

984 P.2d 515

984

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T16:59:12.804513+00:00

CAP

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

UNIVERSAL MOTORS, INC., Petitioner, v. Daniel C. NEARY, Bobbie L. McDonald, Sr., Bobbie L. McDonald, Jr., and Claudette M. McDonald, Respondents.

UNIVERSAL MOTORS, INC., Petitioner, v. Daniel C. NEARY, Bobbie L. McDonald, Sr., Bobbie L. McDonald, Jr., and Claudette M. McDonald, Respondents. No. S-8349. Supreme Court of Alaska. Aug. 20, 1999. Scott J. Nordstrand, Owens & Turner, P.C., Anchorage, for Petitioner. Roger E. Holl, Anchorage, for Respondent Daniel C. Neary. Before MATTHEWS, Chief Justice, COMPTON, EASTAUGH, FABE, and BRYNER, Justices.

2204

13364

OPINION MATTHEWS, Chief Justice. On July 30, 1994, Daniel Neary was injured when he was struck by a vehicle driven by eighteen-year-old Bobbie McDonald, Jr., who lacked both a driver's license and insurance. Neary sued McDonald for negligence and McDonald's parents for negligent en-trustment. After the suit against McDonald's parents was dismissed by summary judgment, Neary filed a separate suit against Universal Motors alleging that it had negligently sold the vehicle involved in the accident to an unlicensed driver. The actions were subsequently consolidated. Universal moved for summary judgment, contending that the superior court should adopt the "one-action rule." From the denial of this motion we granted Universal's petition for review. We now affirm. Universal describes the one-action rule as follows: "[I]f a plaintiff brings a tort action against one potential tortfeasor and the merits of that claim are adjudicated by a court or jury, he may not subsequently bring a separate tort action against another potential tortfeasor for the same accident and injuries." Universal argues that the 1989 version of our comparative fault statute requires the one-action rule by implication. The 1989 statute provided: Apportionment of Damages. (a)In all actions involving fault of more than one party to the action, including third-party defendants and persons who have been released under AS 09.16.040, the court, unless otherwise agreed by all parties, shall instruct the jury to answer special interrogatories or, if there is no jury, shall make findings, indicating (1) the amount of damages each claimant would be entitled to recover if contributory fault is disregarded; and (2) the percentage of the total fault of all of the parties to each claim that is allocated to each claimant, defendant, third-party defendant, and person who has been released from liability under AS 09.16.040. (b) In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault, and the extent of the causal relation between the conduct and the damages claimed. The trier of fact may determine that two or more persons are to be treated as a single party if their conduct was a cause of the damages claimed and the separate act or omission of each person cannot be distinguished. (c) The court shall determine the award of damages to each claimant in accordance with the findings, subject to a reduction under AS 09.16.040, and enter judgment against each party liable. The court also shall determine and state in the judgment each party's equitable share of the obligation to each claimant in accordance with the respective percentages of fault. (d) The court shall enter judgment against each party liable on the basis of several liability in accordance with that party's percentage of fault. Specifically, Universal contends that "[t]he only reasonable method of litigating in a pure comparative fault jurisdiction . is to require the parties to bring all potential tort-feasors into a single action." It argues that the one-action rule promotes judicial economy, avoids inconsistent judgments, and precludes double recoveries. In our view AS 09.17.080 does not mandate a single action for each injury or accident. Subsection (a) of the statute derives from Section 2(a) of the Uniform Com parative Fault Act of 1977. The comment pertaining to the latter indicates that the drafters of the Uniform Act contemplated the possibility of subsequent suits against other potential tortfeasors: The limitation to parties to the action means ignoring other persons who may have been at fault with regard to the particular injury but who have not been joined as parties. This is a deliberate decision. It cannot be told with certainty whether that person was actually at fault or what amount of fault should be attributed to him, or whether he will ever be sued, or whether the statute of limitations will run on him, etc. An attempt to settle these matters in a suit to which he is not a party would not be binding on him.[ ] In construing statutes taken from model acts we generally regard the commentary to the model act as a reliable guide to the statute's meaning. We so regard the commentary quoted above and conclude that our statute was not intended to preclude separate actions against different tortfeasors. Our conclusion is supported by Selchert v. State. Iowa's comparative fault act is also modeled on the Uniform Act. The Selchert court declined to interpret the act as encompassing a one-action rule, observing that to do so would be "to rewrite our comparative fault act." We also do not accept Universal's argument that the one-action rule represents the only reasonable method of conducting litigation in a comparative negligence jurisdiction. From a judicial economy standpoint, it is generally true that one trial is preferable to multiple trials. But existing parties already possess a strong incentive to name all potential tortfeasors. As we observed in Benner: Both plaintiff and defendants will have significant incentive for joining available defendants who may be hable. The more parties joined whose fault contributed to the injury, the smaller the percentage of fault allocated to each of the other parties, whether plaintiff or defendant.[ ] Further, one drawback of the one-action rule is that it may result in the needless joinder of parties whose fault is remote. Whether the benefit from the additional incentive for joining all potentially liable actors supplied by the one-action rule is outweighed by the detriment resulting from the complications of multi-party litigation is a policy question best left to the legislature. We remain unconvinced that the one-action rule represents a necessary guard against inconsistent results or double recoveries. Universal hypothesizes that a creative plaintiff (P) could sue one defendant (Dl), obtain an award holding that he and Dl are both fifty percent at fault, subsequently sue a second defendant (D2), obtain another fifty-fifty allocation and thus recover one hundred percent of his total damages. Applying customary rules of offset and collateral estoppel, however, would prevent this result. Starting with Universal's hypothetical, assume $1,000,000 in damages in the first trial. This would have resulted in a $500,000 award against Dl who is fifty percent at fault. In the second trial D2 is entitled to a ruling based on collateral estoppel that P's damages are not greater than $1,000,00o. In the second trial there should be a determination of the comparative fault not only of P and D2, but also of Dl. Even though Dl is not a party to the second case he functionally occupies the position of a "person! ] who has been released" under AS 19.17.080(a). D2 would also be entitled to a ruling based on collateral estoppel that P and Dl are negligent. But the percentage of their total fault when that of D2 is also considered cannot be specified, for that issue has not been litigated. Now assume the jury in the second trial finds total damages to be $1,000,000, P to be fifty percent at fault, Dl to be ten percent at fault and D2 to be forty percent at fault. Except for the first trial, D2 would have to pay P $400,000. But P has already received $500,000 and D2 is entitled to offset this amount against the award. Thus, under this example P obtains no double recovery and the result is not inconsistent with the first trial. Now change the findings in the second trial so that P is found twenty percent at fault, Dl is ten percent, and D2 is seventy percent. Except for the first trial, D2 would have to pay P $700,000. But since P has already received $500,000 from the first trial, D2 is entitled to an offset of this amount and will only be liable for $200,000. Thus P's total recovery is $700,000. P's recovery is in no sense double, and the second judgment is not inconsistent with the first, for the fault of D2 was not considered in the first trial. In summary, AS 09.17.080 does not contain or require an implied one-action rule. To the contrary, the drafters of the model act upon which it is based anticipated the possibility of more than one action. Further, whether the overall interests of judicial economy are advanced by the one-action rule remains unclear, and the rule is unnecessary to prevent inconsistent results and double recoveries. For these reasons we conclude that the trial court did not err in refusing to grant summary judgment to Universal. AFFIRMED. . See Neary v. McDonald, 956 P.2d 1205 (Alaska 1998). . The 1989 statute was enacted by initiative and was codifled as AS 09.17.080. It has been superseded by a statute, also codified as AS 09.17.080, that was enacted in 1997. The 1997 statute differs substantially from the 1989 version. . 12 U.L.A. 126 (1977). . Benner v. Wichman, 874 P.2d 949, 958 n. 19 (Alaska 1994) (quoting Unif. Comp. Fault Act § 2 cmt., 12 U.L.A. 50 (Supp.1993) (emphasis added)). . See Matter of D.D.S., 869 P.2d 160, 164 n. 5 (Alaska 1994); Johnson v. Schaub, 867 P.2d 812, 817 n. 11 (Alaska 1994); Crews v. Crews, 769 P.2d 433, 435 (Alaska 1989); Armour v. Alaska Power Auth., 765 P.2d 1372, 1374 (Alaska 1988). See also Slager v. HWA Corp., 435 N.W.2d 349, 352 (Iowa 1989) (citing 2A N.J. Singer, Sutherland Statutory Construction § 52.05, at 546 (revised ed.1984)). . 420 N.W.2d 816 (Iowa 1988). . Id. at 820. . Benner, 874 P.2d at 958 n. 19 (quoting Univ. Comp. Fault Act § 2 cmt., 12 U.L.A. 50 (Supp. 1993)). . One commentator who advocates the use of three doctrinal devices to mandate what is essentially a one-action rule in a broad variety of contexts in order to avoid multiple suits nonetheless cautions: What I have said here goes to the relative merits of the devices considered. Beyond that, I must acknowledge the real possibility that all of them may cany evils worse than the problem to which they are addressed. Use of any of them may foment assertion of claims that otherwise would never be litigated and thereby increase the adjudication burden of the courts.... Even if the devices do not generate additional claims, they may deter settlement of existing ones. Moreover, they may increase the expenses of the parties, for example, by increasing recovery. I do not know how to assess these risks, but their presence argues for caution in developing a response to the multiplicity problem. Further experimentation in all three directions therefore seems desirable to me. It is as well, perhaps, that the responses thus far have been ad hoc and tentative. The remedy is sometimes worse than the disease. John C. McCoid, A Single Package for Multiparty Disputes, 28 Stan. L.Rev. 707, 728 (1976). . In the first action D2's fault was not assessed because he was a non-party. See Benner, 874 P.2d at 958. . The elements of collateral estoppel, or "issue preclusion," are: (1) the party against whom the preclusion is employed was a party to or in privity with a party to the first action; (2) the issue precluded from relitigation is identical to the issue decided in the first action; (3) the issue was resolved in the first action by a final judgment on the merits; and (4) the determination of the issue was essential to the final judgment. Renwick v. State, Bd. of Marine Pilots, 971 P.2d 631, 634 (Alaska 1999) (citing Jackinsky v., Jackinsky, 894 P.2d 650, 654 (Alaska 1995)). . We cannot precisely duplicate Universal's hypothetical here because the jury has to find Dl at least slightly at fault because of the collateral estoppel effect of the first judgment. . See Norcon, Inc. v. Kotowski, 971 P.2d 158, 171 (Alaska 1999) (citing Navistar Int'l Transp. Co. v. Pleasant, 887 P.2d 951, 957-58 (Alaska 1994) (offsetting plaintiff's recovery against second defendant by amount of recovery against first defendant)). . The theoretical problems with the second trial are that Dl paid too much and D2 too little. But those problems exist even if there is no second action and thus are not cured by the bar imposed under the one-action rule. Common law contribution in favor of a defendant who has paid more than his comparative share of damages would help to address these problems. See Restatement (Third) Torts: Apportionment of Liability § 33, cmt. f. (Proposed Final Draft (March 22, 1999)) ("[A] severally liable defendant might be sued with less than all of the relevant persons and be liable for more than its own percentages of responsibility and therefore be entitled to contribution."). But whether this remedy is available is not a question presented in this case and we express no view on it. . The trial court was mistaken in one respect in its discussion of Universal's one-action contention. The court suggested Universal would be bound by the earlier ruling that exonerated McDonald's parents from fault. But because Universal was not a party to the earlier action, it is not bound by,the determinations made there.

10394123

Charles DAHLBY and George Bailey d/b/a Far North Traders, Inc., Appellants, v. Vincent GUZZARDI, Appellee

Dahlby v. Guzzardi

1988-10-21

No. S-1997

223

229

763 P.2d 223

763

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T16:59:32.179770+00:00

CAP

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

Charles DAHLBY and George Bailey d/b/a Far North Traders, Inc., Appellants, v. Vincent GUZZARDI, Appellee.

Charles DAHLBY and George Bailey d/b/a Far North Traders, Inc., Appellants, v. Vincent GUZZARDI, Appellee. No. S-1997. Supreme Court of Alaska. Oct. 21, 1988. As Amended Nov. 9, 1988. Thomas R. Wickwire, Fairbanks, for appellants. Paul D. Stockier and Dan Cadra, Larry L. Caudle & Associates, Anchorage, for appellee. Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.

2694

16177

OPINION MATTHEWS, Chief Justice. FACTS AND PROCEDURE Appellee, Vincent Guzzardi, obtained a judgment against appellants, Charles Dahl-by and George Bailey (hereinafter Dahlby). A writ of execution was issued by the trial court for $20,391, the amount of the judgment plus accrued interest. Guzzardi hired a process server, David Chausse, who, after unsuccessfully attempting to satisfy the judgment by levying against some of the appellants' bank accounts, levied and seized the entire inventory of Dahlby's antique furniture business, Far North Traders, Inc. The inventory, however, was subject to a prior lien by the First National Bank of Fairbanks. After Guzzardi seized the inventory, the bank declared its note in default. The bank's commercial loan officer wrote to Guzzardi advising him that the bank was in a first priority secured position with respect to the inventory that had been seized. The bank demanded either full payment of the loan or surrender of the collateral. Guzzardi tendered full payment with a personal check for $9,633. After the seizure of the inventory, Guz-zardi and Dahlby entered into a stipulation. The parties agreed that the sale of the inventory was to be conducted by a private auctioneer rather than Chausse. The parties also agreed that the auctioneer would be paid ten percent of the gross proceeds of the sale rather than the normal amount a process server would receive. Dahlby also agreed to pay Chausse's fees connected with the execution to the extent they were reasonable as well as the storage fees of Pacific Movers. All of these fees were to be paid from the gross proceeds of the sale. Finally, Dahlby waived any objections he might have to this arrangement on the grounds that the arrangement did not comply with the law or procedure for execution sales. Dahlby reserved, however, any other objections he might have to defects under the writ of execution. The sale was conducted, and over $45,000 was received. Following the sale, Guzzardi made a motion before the trial court to distribute the proceeds of the sale as follows: Amount Explanation Payable To Initial writ of execution Guzzardi to © CO CO h-* Interest from issuance of writ to satisfaction of judgment Guzzardi CO O CO 9,633 Payoff to National Bank of its perfected and prioritized security interest in the inventory seized from Far North Traders, Inc. Guzzardi 4,075 Packing, moving, storage, security, cleaning of warehouse Pacific Movers 10% gross sales per stipulation Van Bowman Co. r*H ^ '⅜ Advertising tH OO t-T David Chausse "'⅜' H TOTAL $42,547 The excess proceeds were to be distributed to Dahlby. Dahlby filed an opposition to Guzzardi's motion for distribution. A hearing was held, and the trial court ordered distribution in accord with Guzzardi's motion. Dahlby appeals the trial court's ruling. DISCUSSION 1. DID THE TRIAL COURT ERR IN ALLOWING GUZZARDI TO BE REIMBURSED FOR PAYING OFF THE PRIOR SECURITY INTEREST OF FIRST NATIONAL BANK IN THE LEVIED GOODS? The trial court allowed Guzzardi to be reimbursed for the $9,633 he paid to First National Bank of Fairbanks in payment of Dahlby's loan. Dahlby argues that it is improper to pay off a lien from the proceeds of an execution sale where the lien was not discharged by the sale. Since the bank lien was not discharged by the execution sale, Dahlby contends the proceeds should not have been used to reimburse Guzzardi for paying off the debt. Dahlby next argues that when Guzzardi paid off the bank loan Guzzardi received no assignment from the bank of its lien. Instead, Dahlby claims the evidence shows the bank merely released its security interest in the goods. Thus, Guzzardi had no lien against the proceeds of the execution sale and was not entitled to the $9,633. Finally, Dahlby argues that even if the bank had assigned its lien to Guzzardi, Guzzardi would have been required to follow the procedures delineated in Article 9 of the U.C.C. for seizing and selling the goods, which Dahlby contends was not done. The trial court held that because Dahlby was benefited by Guzzardi's payment to the bank, Dahlby should reimburse Guzzar-di. We agree. Many courts have held that when one party pays another's debt in order to protect his own interest, that party takes the rights of the original creditor despite the absence of a formal assignment of rights. The absence of a formal assignment is a gap that can be filled by restitution remedies in one form or another for the alternative is an unjust enrichment of the obligor that is both evident and determinate, being measured by the amount of the debt discharged.... The most common and familiar instance is that of a junior mortgagee or other lienor who pays off and discharges a senior lien in order to protect his own security interest. The remedy awarded will usually be described as subrogation and will operate as an assignment substituting the intervenor for the paid-off creditor. Often courts prefer to describe the remedy as an equitable lien but the effect is the same since the lien will have the same rank as the paid-off lien. Dawson, The Self Serving Intermeddler, 87 Harv.L.Rev. 1409, 1437-38 (1974). American Jurisprudence 2d states the proposition as follows: The holder of a junior mortgage or encumbrance who pays or advances money to pay the debt secured by the prior mortgage or encumbrance is generally entitled to be subrogated to the rights of the senior encumbrancer, and express provision to this effect is sometimes made by statute. It must appear, of course, that the junior mortgagee claiming subrogation paid, or advanced money to pay, the prior encumbrance not as a mere volunteer, but for the protection of his own interest or the preservation of his security. 73 Am.Jur.2d Subrogation § 100 (1974) (footnotes omitted). In the instant case, Guzzardi did not pay off the bank loan as a mere volunteer, but rather because of a demand from the bank for payment or surrender of the collateral. We hold that Guzzardi succeeded to the rights of the bank. Dahlby contends that even if Guz-zardi were an assignee of the bank, Guz-zardi failed to follow the requirements of Article 9 of the U.C.C. in seizing and selling the property pursuant to the bank lien. We find this argument unpersuasive. The inventory was seized and sold pursuant to the writ of execution, not the bank lien. Thus, the U.C.C. requirements, with respect to seizure and sale do not apply. When the inventory was sold, pursuant to the writ of execution, the bank lien continued against the proceeds of the sale. AS 45.09.306(a), (b). Since Guzzardi held the bank lien, the trial court properly distributed the $9,633 to him. II. DID THE COURT ERR IN ORDERING DISTRIBUTION OF $2,514 IN COSTS TO THE PROCESS SERVER, CHAUSSE? The court ordered distribution of $2,514 to the process server, Chausse. The amount broke down as follows: Posting of Levy $ 26.00 Inventory of Assets 435.00 Service of Exemption Notices 26.00 Posting Notice of Sale 26.00 Commission on Sale 1,300.00 Return of Service of Process 26.00 Security Service 675.00 TOTAL $2,514.00 The $675 security service charge was to reimburse Chausse for amounts he paid to others. The remaining $1,839 was to pay for services Chausse provided. A. Commission to Chausse Dahlby cites Administrative Rule 11 which establishes the maximum fee which may be recovered as costs under Civil Rule 79 for service of process. Rule 11(a)(2) states: Sales of Property Pursuant to Final Process: For advertising and disposing of property by sale, set-off, or otherwise, according to law, pursuant to a writ of possession, partition, execution, or any final process and for receiving and paying over money on account of property sold . [schedule of percentage fees follows] Dahlby argues that since the parties stipulated that a private auctioneer would conduct the sale, Chausse did not perform those steps for which Rule 11(a)(2) provides a commission. Rule 11, however, is not relevant to the dispute in this case. In the stipulation the parties entered into, Dahlby agreed to pay Chausse's fees to the extent reasonable. Dahlby specifically waived any objection that the procedure agreed to might not comply with the law or procedure for execution sales. Thus, Rule 11 is inapplicable. The only question before the trial court was whether the costs charged by Chausse were reasonable. Rather than look at the breakdown of costs charged for Chausse's services, the trial court looked at the total charge of $1,839 to determine if it was reasonable. Chausse testified that he worked at least fifty-eight hours on the Dahlby matter. The work performed included posting the levies, taking and inventorying the goods seized, and cashing the checks received at the sale. Chausse also testified that his normal hourly rate was $35. The trial court noted that the $1,839 charged by Chausse worked out to be approximately $31 per hour. Based on this testimony, the court concluded that the amount charged by Dahlby for his services was reasonable. We find that this ruling is not clearly erroneous and should thus be affirmed. B. The Charge for Inventorying Dahlby argues that the $435 charge for inventorying the goods was unnecessary, and even if it was necessary the amount charged was excessive. This $435 charge was included in the total fee of the $1,839 discussed above. Dahlby claims this charge is excessive in light of Administrative Rule 11(a)(5) which provides payment of $10.00 per hour for the taking of an inventory of unclaimed property. Further, Dahlby argues that the inventorying was not necessary because the goods were immediately turned over to the moving and storage company who took care of the goods until the sale was complete. We find Dahlby's argument to be merit-less. Administrative Rule 11(a)(5) deals with inventories of unclaimed property. The inventory seized here was not unclaimed property. Furthermore, the parties agreed, as discussed above, to pay Chausse's reasonable costs. Thus, Administrative Rule 11(a)(5) is not relevant to this case. When the trial court determined that Chausse's fees were reasonable, it had already considered the inventory fee. Dahlby's argument, that the inventory was unnecessary, is meritless. As Guzzardi notes in his brief, "[t]he goods seized in this ease were hundreds of items of antique nature and the process server, David Chausse, took it upon himself to inventory the goods using the help of others so that there were adequate records of everything that was seized from the defendants. This inventory process was for the protection of all involved." We agree. C. The $675 Charge for Security Services Dahlby objects to the payment of $675 to Chausse to reimburse him for payments he made to others for security services. Dahl-by argues that this cost was unnecessary and unreasonable. Again, since the parties agreed to pay the reasonable costs of Chausse, we need only decide whether the trial court's ruling that these costs were reasonable was clearly erroneous. Chausse, in unsworn testimony, told the court that the security services provided during the auction were to insure that goods were not removed without payment. In addition, security was provided at the time of the seizure, and at all times the warehouse was open to the debtors, the Dahlbys, and to the auction company's employees. The trial court found this to be reasonable. This ruling is not clearly erroneous. III. SHOULD GUZZARDI OR THE PROCESS SERVER BE REQUIRED TO PAY FOR THE DAMAGE CAUSED TO DAHLBY'S INVENTORY? Apparently after the goods were seized, several items of the inventory were damaged. According to Dahlby's wife, one of Chausse's employees told her that the moving company was responsible for the damage, and that the amount of the damage would be subtracted from the moving company's bill. The amount, however, was never deducted from the bill. In his opposition to the motion for distribution, Dahlby objected to the damage not being subtracted from the costs. No mention, however, was made of the damage by any of the parties at the hearing on the matter and apparently the court did not address the issue. Guzzardi argues that Dahlby waived this issue because he failed to raise it in his statement of points on appeal. Alaska Appellate Rule 210(e) provides: "[A]t the time of filing his notice of appeal, the appellant shall serve and file with this designation a concise statement of the points on which he intends to rely on the appeal. The appellate court will consider nothing but the points so stated." In Mullen v. Christiansen, 642 P.2d 1345, 1350 (Alaska 1982), we noted that we may still consider an issue even if not included in the statement of points on appeal if the issue was raised at trial and was adequately briefed. In this case we find it appropriate to address this issue. Dahlby raised the objection in the opposition to the distribution and adequately briefed the issue before this court. Because the trial court failed to rule on this issue, however, it will be remanded to the trial court. IV. DID THE TRIAL COURT ERR IN CALLING DAVID CHAUSSE AS ITS OWN WITNESS? Dahlby argues that it was improper for the trial court to have called Chausse as a witness. Dahlby argues that to the extent the court's findings have any evidentiary basis in the Chausse testimony, they should be rejected. Further, Dahlby argues that no other evidence as to the nature of the costs was submitted. Evidence Rule 614 provides: (a) Calling by Court. The court may call witnesses on its own motion or at the suggestion of a party, and all parties are entitled to cross-examine witnesses thus called. (b) Examination by Court. The court may examine any witness. (c) Objections. Objections to the calling or examination of witnesses by the court may be made at the time or at the next available opportunity when the jury is not present. In this case, when the trial court called Chausse to testify, Dahlby raised no objection. Further, Dahlby was given an opportunity to cross-examine Chausse. Thus we find that the trial court committed no error with respect to Chausse's testimony. . AFFIRMED IN PART, REMANDED IN PART. . Because these figures have been rounded, this total is not the exact sum of the amounts listed. . Throughout his brief, Dahlby makes reference to the fact that he believes the process server seized excess inventory in violation of the writ of execution. Dahlby, however, appeals only from the trial court's order with respect to the distribution of the proceeds. Therefore we only address the distribution issue. . Findings of fact made by the trial court may not be set aside unless they are clearly erroneous. A finding is clearly erroneous if we have a "definite and firm conviction that a mistake has been made." Williams v. Alyeska Pipeline Serv. Co., 650 P.2d 343, 347 (Alaska 1982). . Any objection Dahlby may have had to Chausse's testimony not being under oath was waived as Dahlby failed to make an objection at that time. M. v. Superior Court of Shasta County, 4 Cal.3d 370, 93 Cal.Rptr. 752, 482 P.2d 664, 669 (1971).

11579244

Carolyn RUGGLES, by the ESTATE OF Carolyn MAYER, Appellant, v. Monte GROW, Appellee

Ruggles ex rel. Estate of Mayer v. Grow

1999-08-20

No. S-7986

509

515

984 P.2d 509

984

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T16:59:12.804513+00:00

CAP

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

Carolyn RUGGLES, by the ESTATE OF Carolyn MAYER, Appellant, v. Monte GROW, Appellee.

Carolyn RUGGLES, by the ESTATE OF Carolyn MAYER, Appellant, v. Monte GROW, Appellee. No. S-7986. Supreme Court of Alaska. Aug. 20, 1999. Patricia R. Hefferan, Kopperud and Hef-feran, Wasilla, for Appellant. Paul W. Waggoner, Anchorage, for Appel-lee. Before MATTHEWS, Chief Justice, COMPTON, EASTAUGH, FABE, and BRYNER, Justices.

2549

16017

OPINION MATTHEWS, Chief Justice. I. INTRODUCTION This case is here for the second time. The historical and most of the procedural facts are set forth in our prior opinion, Grow v. Ruggles, We recite only the facts necessary to understand the issues in this appeal. II. FACTS AND PROCEEDINGS Carolyn Ruggles was injured in an automobile accident involving Monte Grow. Allstate Insurance Company insured both parties. Ruggles sued Grow, who was defended by Allstate. Allstate paid Ruggles's medical expenses from the medical payments coverage of her policy. Allstate requested Rug-gles not to include its subrogated claim for medical expenses in her suit against Grow. Ruggles refused to honor this request. Eventually the superior court ruled that the medical expenses must be deducted from any recovery Ruggles received, but evidence of the expenses could be presented to the jury as evidence bearing on the severity of her injury. Grow made an offer of judgment under Civil Rule 68 for $35,000 above her medical expenses. The jury awarded Ruggles the medical expenses which Allstate had already paid ($31,777.88) and $14,760 for lost income. It made no award for pain and suffering. The trial court awarded attorney's fees to Ruggles as the prevailing party. Despite the court's earlier order that medical expenses would be deducted from the verdict, no deduction was made before an appeal was taken. Whether this occurred deliberately or inadvertently remains unclear on the record before us. Ruggles appealed unsuccessfully on inconsistent verdict grounds. Grow appealed on the ground that he should have been awarded attorney's fees since the verdict was less than the offer of judgment. We agreed and remanded for a new fee determination. On remand the superior court, at the request of Allstate and Grow, substituted Allstate for Grow as the real party in interest. In response to Ruggles's subsequent motions to reconsider this ruling or to allow the prosecution of counterclaims against Allstate, the court concluded that it had erred by permitting the substitution and it rescinded its previous order. Grow thus remained as the sole defendant. After considering numerous motions, the court deducted from the verdict the medical expenses which Allstate had paid, and awarded Ruggles reduced interest on the judgment pursuant to the version of Civil Rule 68(b)(1) then effective. Ruggles's award, before offsets for costs and fees in favor of Grow, was $17.978.29. The court awarded Grow fees of $15,328.95 and costs of $8,609.66. Ultimately, this ruling resulted in a net judgment favoring Grow of $5,960.32. On appeal Ruggles presents three arguments. Quoting from the argument headings in her brief, they are: (1) the trial court should not have credited Grow with Ruggles's collateral source benefits; (2) the trial court judgment award of costs and attorney's fees and interest in Grow's favor is contrary to the remand and manifestly unreasonable; (3) if the trial court adjudicates the rights between Allstate and Ruggles, then there must be due process safeguards. We address these arguments in turn. III. DISCUSSION A. Deduction of the Medical Payments Ruggles argues that the question of whether she must pay part of her recovery to Allstate represents a question between her and Allstate and was thus improperly decided by the court on remand. Ruggles also argues that the collateral source rule prevents the deduction made by the trial court. She further contends that permitting the de duction would essentially allow an insurance company a right of subrogation against its own insured. Each of these contentions is effectively answered by the consequences flowing from the fact that Allstate requested Ruggles's attorneys not to present its claim for medical expenses. Once this request was made Rug-gles lost the right to present the claim. The trial court's pre-verdict order requiring the deduction of medical expenses, and the court's post-remand deduction of such expenses, corrected the wrongful inclusion of Allstate's claim with Ruggles's claim. We explain this conclusion in the following paragraphs. When an insurer pays expenses on behalf of an insured it is subrogated to the insured's claim. The insurer effectively receives an assignment of its expenditure by operation of law and contract. If the insurer does not object, the insured may include the subrogat-ed claim in its claim against a third-party tortfeasor. Any proceeds recovered must be paid to the insurer, less pro rata costs and fees incurred by the insured in prosecuting and collecting the claim. But the subrogated claim belongs to the insurer. The insurer may pursue a direct action against the tort-feasor, discount and settle its claim, or determine that the claim should not be pursued. These rights are inherent in our discussion of the subject in Brinkerhoff v. Swearingen Aviation Corp.: Although [the insured] could have sued to recover for the full amount of damage and held the appropriate portion of that recovery . in trust for his insurer whose subrogation rights arose upon payment under the policy, the insurance company's decision to settle its claim foreclosed this option. We also attach no relevance to [the insured's] allegation that the settlement agreement reached [with the tortfea-sor] was collusive. An insurance company is free to settle its subrogation claims for any amount.[ ] When Allstate instructed Ruggles not to pursue its subrogation claim, Ruggles lacked authority to pursue it. Grow was entitled to raise this lack of authority, for it represented a legitimate partial defense to Ruggles's claim. Deducting the subrogated claim did not violate the collateral source rule. Quoting Tolan v. ERA Helicopters, Inc., Ruggles notes that the collateral source rule provides that "a tort-feasor is not entitled to have his liability reduced merely because [the] plaintiff was fortunate to have received compensation for his injuries or expenses from a collateral source." But this rule speaks to the relationship between insureds and tortfeasors, not to that between insureds and their insurers. Given that the insurer is the owner of the subrogated claim, the rule cannot be read to permit an insured to pursue subrogated collateral source benefits against the insurer's wishes. And the rule should not prevent a tortfeasor from raising lack of authority to present a claim as a partial defense. Nor did the deduction violate the rule preventing insurers from prosecuting subro-gation claims against parties whom they insure. Allstate was not prosecuting a claim against its insured. Its efforts were directed instead toward achieving the opposite result: Allstate sought control of its claim to prevent Ruggles from bringing the claim against Grow. This represented a logical step for Allstate, since it would have been both the payor and the payee of the claim. It could accomplish the same result as prosecuting the claim with a simple bookkeeping entry, without incurring attorney's fees and costs. B. Award of Costs and Fees Ruggles's argument that the award to Grow of attorney's fees is contrary to the remand is frivolous. The penultimate sentence of our opinion stated: "Thus, pursuant to Civil Rule 68, Grow should be awarded attorney's fees from the date of the offer." In awarding fees to Grow the superior court followed the directions given by our prior opinion, Ruggles's argument that the amount of fees awarded Grow, $15,328.95, is manifestly unreasonable is merely conclusory. She notes that Allstate's total defense costs exceeded $70,000, but she does not attempt to demonstrate that the court misapplied either Civil Rule 68 or Civil Rule 82 in making the award. This argument therefore fails for lack of support. The only comprehensible argument Ruggles offers concerns costs, as distinct from fees, and the trial court's reduction of interest. She notes that Crow's motion for rehearing had requested that we explicitly direct the trial court to award costs as well as attorney's fees and that reduced interest be applied. We denied the motion for rehearing without explanation in an order dated December 6,1993. She contends that our denial of rehearing precluded the trial court from awarding costs and making the interest adjustment on remand. This argument lacks merit, for the denial of a motion for rehearing has no precedential effect and establishes no law binding on the trial court after remand. Indeed, a common reason for denying a motion for rehearing is that the subject of the motion should be addressed by the trial court after remand. We reversed the judgment because Grow's offer under Rule 68 was more favorable to Ruggles than the final judgment. We remanded to enable the trial court to correct this error. One consequence of our ruling was that Grow should have been awarded attorney's fees from the date of the offer. Although this is the only consequence we explicitly mentioned, two other consequences arose as well: Grow was entitled both to costs incurred after the offer and to a reduction in prejudgment interest. The trial court correctly recognized these consequences and made the adjustments required by the rule. C. Due Process Ruggles complains that the trial court should have allowed her to file and pursue counterclaims against Allstate. She moved for permission to file such counterclaims on the same day that she sought reconsideration of the court's ruling substituting Allstate for Grow as a party defendant. In her reconsideration motion she asked the court to "remove Allstate and finalize this case as between Ruggles and Grow." The court granted that relief. This mooted her motion for permission to file counterclaims against Allstate, and thus the trial court did not err in failing to grant the motion regarding counterclaims. IV. CONCLUSION For the above reasons the judgment is AFFIRMED. . 860 P.2d 1225 (Alaska 1993). . Id. at 1226. . Id. . Id. at 1227. . Id. at 1226. . Id. . Id. at 1227. . Id. at 1226-27. . Id. at 1227. . Id. at 1228. . See Rice v. Denley, 944 P.2d 497, 500 (Alaska 1997). . 663 P.2d 937, 942 (Alaska 1983) (citation omitted). . A defendant may defend on the ground that the plaintiff has assigned the claim to another person or entity. See Alaska R. Civ. P. 17(a). See also Rodriguez v. Compass Shipping Co., 617 F.2d 955, 958 (2d Cir.1980), aff'd, 451 U.S. 596, 101 S.ct. 1945, 68 L.Ed.2d 472 (1981); 6 Am. Jur.2d Assignments § 105 (1963) (noting that "one who has made a valid assignment of a claim has no right thereafter, unless authorized by the assignee, to receive payment from the debtor."). . 699 P.2d 1265, 1267 (Alaska 1985). . See Maynard v. State Fann Mut. Auto. Ins. Co., 902 P.2d 1328, 1334 (Alaska 1995). . See id. at 1333. . Grow, 860 P.2d at 1228. . Id. at 1228. . Id. . Id. . See Alaska R. Civ. P. 68(b)(1). The version of Rule 68(b)(1) applicable to the present case provided for both costs and a reduction in prejudgment interest.

11575823

John P. HARRINGTON, Appellant, v. Cheryl A. JORDAN, Appellee

Harrington v. Jordan

1999-07-30

No. S-8899

1

5

984 P.2d 1

984

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T16:59:12.804513+00:00

CAP

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

John P. HARRINGTON, Appellant, v. Cheryl A. JORDAN, Appellee.

John P. HARRINGTON, Appellant, v. Cheryl A. JORDAN, Appellee. No. S-8899. Supreme Court of Alaska. July 30, 1999. John P. Harrington, pro se, Anchorage. No appearance by Appellee. Before: MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.

1837

11670

OPINION PER CURIAM I. INTRODUCTION When John Harrington and Cheryl Jordan divorced in 1996, Cheryl retained sole physical and legal custody of them two daughters. Nine months later, John moved for custody modification; the superior court denied his request without a hearing. John moved again in August 1998 for modification of both custody and child support; the superior court denied the second motion without a hearing. John appeals, arguing that he has demonstrated a sufficient change of circumstances for modification of both custody and child support. We affirm. II. FACTS AND PROCEEDINGS John Harrington and Cheryl Jordan were married on October 17,1981. They have two daughters: Jessica, born in 1982, and Tara, born in 1986. John and Cheryl separated in May 1996 and, after a "lengthy and bitterly disputed divorce trial," finalized their divorce on November 12,1996. Superior Court Judge Beverly W. Cutler determined that awarding Cheryl "sole legal and physical care, custody, and control of the minor children of the marriage" would best serve the children's interests. Judge Cutler granted John "liberal and frequent visitation" with both daughters. Specifically, John received "two weekends out of every three, for a 48 hour period," as well as the month of July each summer and alternating major holiday vacations. Judge Cutler also ordered John to pay $802.14 per month in child support for the two children. Judge Cutler based her decision in part on the recommendations of the Custody Investigator's Office; the children's therapist, Cheryl Mitchell; and the parent's psychological evaluator, Dr. Bruce Smith. The trial court also considered the "huge schism" in communication that existed between John and Jessica; the fact that Cheryl was "somewhat more likely than [John] to eventually bring herself to being able to 'give the children permission' to have a stable, healthy relationship with [the other parent]"; and John's unwillingness to disclose the identity of his female partner. John appealed the divorce decree; we affirmed the superior court's decision in all respects on March 18,1998. In June 1997 John requested a hearing on custody modification, alleging that Cheryl made visitation difficult; that his relationship with Jessica had improved; that Cheryl had moved frequently and planned to move again; that he could better meet the children's spiritual and educational needs; and that his job situation had changed to allow him to stay in town for a longer period. Judge Cutler denied John's request, commenting that' "the parties and children barely have had time to digest the final custody order, . much less time to manifest the kind of changed circumstances that justify a custody modification." Judge Cutler found that the visitation problems did not constitute a substantial change in circumstances and that, contrary to John's claims, many of the visitation problems stemmed from genuine planning difficulties. Judge Cutler also found that Cheryl's multiple moves had been a justified and necessary part of readjustment after the divorce and that Tara and Jessica should live together if possible. Judge Cutler relied on the original Custody Investigator's recommendation that was "overwhelmingly in favor of awarding custody to [Cheryl]" as well as on a social worker's letter describing "the level of anxiety experienced by Jessica when faced with merely visiting [her father]." Since August 1997 John has filed numerous motions requesting relief from rulings, clarification of rulings, expedited consideration of motions, recusal of Judge Cutler, and changes in visitation schedule. On August 17, 1998, John again requested a hearing on modification of the eustody/support order. John claimed that changed circumstances since the court's original decree two years earlier warranted a shared custody arrangement and a corresponding change in his child support obligation. Specifically, he cited an increase in his overnight visits with Tara, his willingness to name his partner, the girls' declining need for sibling support, and Tara's good relations with John's partner as changes in circumstances warranting modification. Judge Cutler denied John's request for a hearing on September 29, 1998. In justifying her decision, Judge Cutler wrote: Particularly, not more than 110 overnights per calendar year have been demonstrated. The 1998 "extra" summer visitation is not likely to repeat in 1999. With regard to not holding a hearing on custody modification, the court further finds that a hearing likely would be detrimental to either or both children based on the present continuing dynamic between the parties and children. John appeals. III. STANDARD OF REVIEW Whether a moving party has made a prima facie showing sufficient to justify a custody or child support modification hearing is a matter of law that we review de novo. We will affirm a denial of a modification motion without a hearing "if, in our independent judgment, the facts alleged, even if proved, cannot warrant modification, or if the allegations are so general or conelusory, and so convincingly refuted by competent evidence, as to create no genuine issue of material fact requiring a hearing." IV. DISCUSSION A. The Superior Court Did Not Err in Denying Harrington's Request for a Modification Hearing. 1. Custody To be entitled to a custody modification hearing, a moving party must make a prima facie showing of a substantial change in circumstances affecting the children's welfare: When a parent moves to modify custody, the court must "consider" the motion, but need not hold a hearing "if it is plain that the facts alleged in the moving papers, even if established, would not warrant a change." The moving parent must show changes that affect the child's welfare; reflect more than mere passage of time; and overcome our deep reluctance to shuttle children back and forth between parents.[ ] Here, John did not make an adequate showing. With respect to the alleged increase in John's overnight visits with Tara, John claims that Tara had 131 overnight visits between August 1997 and August 1998 and that her overnight visits for the 1998 calendar year already totaled 94 as of the end of August and would likely exceed 110 by the year's end. But John only accrued the unusual number of overnights because of a special summer 1998 visitation schedule that the court and the parties created to accommodate a family trip. And the court noted in its order denying a hearing that "[t]he 1998 'extra' summer visitation is not likely to repeat in 1999." Because the superior court found that the extra visitation would not likely be repeated, it was justified in finding that the 1998 visitation schedule did not qualify as a substantial change of circumstances entitling John to a hearing. John's allegation that Cheryl has made visitation difficult is also insufficient to warrant modification. In June 1998, at John's request, the court ordered both Cheryl and John to allow and encourage telephone visitation with the other parent, primarily directing its admonition toward Cheryl. John only points to one incident occurring after this order in which Cheryl allegedly made visitation difficult. Enforcement of the current visitation order is the most effective and appropriate solution to John and Cheryl's visitation difficulties, especially in light of our "deep reluctance to shuttle children back and forth between parents." The other changes in circumstances that John alleges — the fact that "Jessica and Tara's sibling need to be together is not as strong as it was," the fact that Tara "loves [John's] fiancee," and the fact that John is "now willing to reveal [his] partner" — are also insufficient to justify a modification hearing. Although such changes may demonstrate that certain problems with joint custody are no longer present, they do not address the issues upon which the court based its original custody decree, such as John's poor relationship with Jessica, the custody investigator's recommendation that Cheryl have custody based on an interview with the children's therapist, and a finding that John exhibited "pressuring" behavior. John also argues that the trial court should not have considered the potential detrimental effect of a modification hearing on the children. But commentators have noted the counterproductive effect of unnecessary litigation on all parties, including children. Although such a consideration should not be a reason for denying a hearing if the moving parent has otherwise met the prima facie burden, that is not the case here. 2. Child Support John also claims that the superior court should have granted him a hearing on modification of the child support order. Specifically, he argues that because the number of Tara's overnight visits with him exceeded 110 during the period from August 1997 to August 1998, the court must modify the support award pursuant to Alaska Civil Rule 90.3(f)(1). Rule 90.3(h)(1) provides that a support award "may be modified upon a showing of a material change of circumstances." Even if the moving parent alleges facts that "might demonstrate a material change of circumstances if they were established, the superior court need not conduct a hearing where the moving party advances only 'generalized allegations of factual issues' that other record evidence convincingly refutes." Here, the extra overnight visits in 1998 do not constitute a material change of circumstances. As explained above, the additional four-week visit with John during August 1998 was an "aberration." John presents no evidence that the special summer visitation would be repeated in subsequent years; the court did not provide for such future increases in its order allowing the extra visitation during the summer of 1998. V. CONCLUSION Because John's allegations, even if true, embody neither a substantial change of circumstances sufficient to warrant custody modification nor a material change of circumstances sufficient to warrant modification of John's child support obligation, we AFFIRM. the superior court's denial of John's request for a modification hearing. . Harrington v. Jordan, Mem. Op. & J. No. 0877 at 1 (Alaska, March 18, 1998). . See id. at 21. . See Morino v. Swayman, 970 P.2d 426, 428 (Alaska 1999) (citing C.R.B. v. C.C., 959 P.2d 375, 378 (Alaska 1998)). . Id. (quoting C.R.B., 959 P.2d at 378); see also C.R.B., 959 P.2d at 378, 378 n. 5 (drawing upon principles of summary judgment to describe the standard of review for both child support and custody modification determinations without a hearing). . See C.R.B., 959 P.2d at 381. . Id. (footnote and citations omitted). . Id. . See, Harrington v. Jordan, Mem. Op. & J. No. 0877 at 8, 9, 11 (Alaska, March 18, 1998). . See, e.g., Janet Weinstein, And Never the Twain Shall Meet: The Best Interests of the Children and the Adversarial System, 52 U. Miami L.Rev. 79, 133 (1997) ("Rather than teaching parents to communicate and collaborate effectively after divorce for the benefit of their children, [the adversarial system] builds higher walls."). . Alaska Civil Rule 90.3(f)(1) considers a parent to have "shared physical custody" if "the children reside with that parent for a period specified in writing of at least 30 percent of the year, regardless of the status of legal custody." . Acevedo v. Burley, 944 P.2d 473, 475 (Alaska 1997).

11583438

Kathy FANCYBOY, Personal Representative of Willie Fancyboy, Deceased, and Guardian of Todd Fancyboy, a minor, and Raymond Fancyboy, Appellants and Cross-Appellees, v. ALASKA VILLAGE ELECTRIC COOPERATIVE, INC., Appellee and Cross-Appellant

Fancyboy v. Alaska Village Electric Cooperative, Inc.

1999-08-13

Nos. S-8491, S-8552

1128

1137

984 P.2d 1128

984

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T16:59:12.804513+00:00

CAP

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

Kathy FANCYBOY, Personal Representative of Willie Fancyboy, Deceased, and Guardian of Todd Fancyboy, a minor, and Raymond Fancyboy, Appellants and Cross-Appellees, v. ALASKA VILLAGE ELECTRIC COOPERATIVE, INC., Appellee and Cross-Appellant.

Kathy FANCYBOY, Personal Representative of Willie Fancyboy, Deceased, and Guardian of Todd Fancyboy, a minor, and Raymond Fancyboy, Appellants and Cross-Appellees, v. ALASKA VILLAGE ELECTRIC COOPERATIVE, INC., Appellee and Cross-Appellant. Nos. S-8491, S-8552. Supreme Court of Alaska. Aug. 13, 1999. Susan Orlansky and Jeffrey M. Feldman, Feldman & Orlansky, Anchorage, for Appellants and Cross-Appellees. Donald C. Ellis, Kemppel, Huffman & Ellis, P.C., Anchorage, and Christopher R. Cooke, Hedland, Brennan, Heideman & Cooke, P.C., Bethel, for Appellee and Cross-Appellant. Before: MATTHEWS, Chief Justice, EASTAUGH, FABE, and BRYNER, Justices.

5042

30800

OPINION FABE, Justice. I. INTRODUCTION This appeal involves a fire that destroyed the Fancyboy family home in Pilot Station. One of the Fancyboy children was killed in the fire and two other family members were injured. The Fancyboys sued Alaska Village Electric Cooperative, Inc. (AVEC) for negligence. Although a jury found AVEC partially liable, allocating forty percent of fault to AVEC and sixty percent of fault to the father, Raymond Fancyboy, it only awarded the Fancyboys pi'operty damages. The trial court found that the jury's failure to award at least stipulated medical expenses was inconsistent with its finding that AVEC was partially liable. After the jury deliberated further, it rendered a second verdict that included the stipulated medical expenses. The Fancyboys appeal, claiming that AS 09.17.080 does not permit the trial court to reduce the verdict by the percentage of fault allocated to Raymond. They further argue that the second jury verdict was inconsistent in its failure to make any award for non-economic damages. AVEC cross-appeals, arguing that the trial court erred in failing to reinstate the original verdict. Because we conclude that both the original and amended jury verdicts were inconsistent, we reverse and remand for a new trial. II. FACTS AND PROCEEDINGS Raymond and Kathy Fancyboy and their children moved to Pilot Station in the spring of 1992. Soon after their arrival, they bought a small home next to Kathy's mother's house. When the family moved into the house, it did not have electrical service because AVEC, which provides electricity to Pilot Station, had not connected the Fancy-boy home to its distribution system. Raymond claims that in early 1992 he contacted the local AVEC representative, Tom Heckman, about obtaining service for his new home. Heckman allegedly told Raymond that no one from AVEC could come to Pilot Station to install an overhead line for several months. Raymond maintains that Heckman recommended that the Fancyboys run a jump line from another meter box to their house and that Raymond contact Wayne Francis, a former AVEC employee, for assistance with this project. Heckman denies having this conversation. Kathy's mother agreed to let the Fancy-boys run a jump line from her meter box to their house until AVEC could install an overhead power line. Raymond then spliced two pieces of wire together and ran the line from his mother-in-law's house to his home, a distance of approximately seventy-five feet. In doing so, Raymond used white Romex cable, a common interior house wire that can handle only limited voltage. Wayne Francis, who had installed jump lines before, helped Raymond by connecting the wires from the meter box at Raymond's mother-in-law's house to the Fancyboy home. Francis warned Raymond not to run too many appliances off the Romex wire. Francis also connected each end of the cable to a circuit breaker and told Raymond that the breaker would trip if the wire were overloaded. Heckman, the AVEC representative, admitted knowing that a jump line ran from Kathy's mother's house to the Fancy-boy home and that the type of wire used was potentially dangerous. After Francis completed the connection, the Fancyboy home appeared to receive enough electricity. At first, the Fancyboys needed electricity only for basic lighting, a stereo, and a television. Later in the summer, the Fancyboys bought a small refrigerator, a washing machine, and a freezer. When they used several appliances at once, the circuit breaker would occasionally trip, and Raymond would reset the breaker at his mother-in-law's house. Pregnant with the Fancyboys' fourth child, Kathy left Pilot Station in early August to stay at the Bethel Prematernal Home. During her absence, Raymond cared for the other three children: Janan, age five; Willie, age three; and Todd, age two. On September 24, 1992, Raymond took Janan to school. On the way home with his two sons, Raymond stopped at his brother-in-law's house, where he drank "about six, eight-ounce cups" of beer. After Raymond and the boys returned home, all three settled on the couch to watch cartoons. Raymond fell asleep and awoke to smoke, pounding on the wall, and the boys' cries. Raymond located Todd and passed him out of a window to one of the villagers. Because of the smoke and heat, he could not find Willie and had to leave the house through a window. As Willie cried from inside the house, Raymond tried to reenter the house, but his neighbors held him back. The house burned to the ground in less than forty-five minutes. Willie died in the fire. Todd experienced third-degree burns on his scalp, forehead, chin, neck, hands, and lower back. Raymond suffered pneumonia from smoke inhalation and burns on his right hand and lower back. Because the Fancyboys' house burned to the ground, little physical evidence existed from which investigators could determine the cause of the fire. The deputy state fire marshal concluded that the most likely cause of the fire was electrical, due to a voltage drop that occurred when the electricity flowed through the undersized cable over a long distance. He also concluded that the fire most likely started on the porch near the freezer. The Fancyboys' expert witness confirmed the fire marshal's conclusions. The expert testified that the freezer likely malfunctioned due to the reduced current delivered through the Romex wire, causing the freezer compressor to overheat and ignite nearby plastics and combustibles. The Fancyboys filed suit against AVEC, alleging, among other things, negligent failure to inspect or discover the dangerous condition and negligent failure to warn the Fancyboys of the condition. AVEC defended by contending that the fire was not electrical in origin and that the children had started it. Alternatively, AVEC argued that Raymond failed to supervise his sons adequately. The jury found that both AVEC and Raymond were negligent and that the negligence of each was a legal cause of injury to the Fancyboys. The jury then allocated forty percent of fault to AVEC and sixty percent of fault to Raymond. The jury awarded $100,000 to Raymond and Kathy for damages to their home and personal property. Kathy, as personal representative of Willie's estate and legal guardian of Todd, did not receive any recovery. Neither Kathy nor Raymond received any damages for loss of consortium. Raymond received no compensation for his painful injuries. The trial judge and counsel for both parties agreed that the jury's failure to award stipulated medical expenses was inconsistent with its finding that AVEC was partially liable. The Fancyboys also argued that the jury's failure to award any non-economic damages was inconsistent with its determination that AVEC's negligence was a legal cause of the fire. The court attempted to cure the inconsistency with a supplemental jury instruction on the stipulated medical expenses, deferring "for a different day" the issue of whether the evidence supported the jury's decision not to award non-economic damages. The court informed the jury of the inconsistency between its finding that AVEC's negligence was a legal cause of the plaintiffs' harm and its decision not to award the stipulated medical damages and asked the jury to redeliberate, allowing it to reconsider any of its findings. The jury returned a second verdict, awarding stipulated medical damages for Raymond and Todd's injuries, as well as an amount for Todd's future medical expenses. The jury made no other changes to the verdict. A jury poll revealed that the verdict was unanimous. AVEC later moved to reinstate the original verdict, arguing that the verdict was consistent after all. AVEC reasoned that the jury could have believed both that AVEC was a legal cause of the property damage and that Raymond was a superseding cause of Willie's death and the personal injuries suffered by the family. The trial court agreed with AVEC's position that the original verdict was consistent but concluded that AVEC had waived that argument when it agreed to the supplemental jury instruction. Thus, the court denied AVEC's motion to reinstate the original verdict. The Fancyboys moved for a new trial on non-economic damages, arguing that they had established these damages by the clear weight of the evidence. Based on its determination that the first verdict was actually consistent, the court denied the Fancyboys' motion for a new trial. When the superior court entered final judgment, it reduced the damage awards to each plaintiff by sixty percent, the percentage of fault allocated to Raymond. But it also determined that the Fancyboys were the prevailing party and awarded them attorney's fees. The Fancyboys appeal the trial court's reduction of the awards and its refusal to grant a new trial on damages. AVEC cross-appeals the trial court's refusal to reinstate the original verdict and the court's designation of the Fancyboys as the prevailing-party for the purpose of awarding attorney's fees. III. DISCUSSION A. The Trial Court Did Not Err by Reducing the Fancyboys' Recovery by the Proportion of Fault Allocated to Raymond. The Fancyboys argue that the trial court erred by reducing the jury's damage awards to Kathy, Todd, and the estate of Willie by the percentage of fault allocated to Raymond. They assert that AS 09.17.080, the statute governing fault allocation in tort cases, does not permit courts to allocate fault to a co-plaintiff who has not been named as a third-party defendant pursuant to Alaska Civil Rule 14(c). To support their interpretation, the Fancyboys assert that a co-plaintiff is not a "party to the claim" for purposes of AS 09.17.080(a)(2). The question whether AS 09.17.080 permits reduction of one plaintiffs verdict by the percentage of a co-plaintiffs fault is an issue of first impression in Alaska. When we construe the meaning of a statute, we apply our independent judgment. We look to "the meaning of the language, the legislative history, and the purpose of the statute in question." We then adopt the rule of law that is most persuasive in light of precedent, reason, and policy. Alaska Statute 09.17.080 expressly instructs a court or jury to apportion fault to each party liable on the basis of several liability. In particular, AS 09.17.080(a)(2) requires the trial court to instruct the jury to decide "the percentage of the total fault of all the parties to each claim, that is allocated to each claimant, defendant, third-party defendant, and person who has been released from liability." (Emphasis added.) The Fancy-boys interpret this language to mean that unless the defendant names the negligent co-plaintiff as a third-party defendant, the negligent co-plaintiff is not a party to the non-negligent plaintiffs claim against the defendant, and, thus, a court cannot reduce a non-negligent plaintiffs recovery by the negligent co-plaintiffs fault. Because the members of the Fancyboy family assert distinguishable claims, they maintain that a court cannot reduce any awards to the innocent claimants based on Raymond's fault. We assume as a rule of statutory interpretation that the same words used twice in the same statute have the same meaning. In Benner v. Wiclvman, we construed the meaning of the term "party" in the context of AS 09.17.080(d), which requires that the court enter judgment "against each party liable . in accordance with that party's percentage of fault." We determined that the use of the term "party" in AS 09.17.080(a) — "party to the action, including third-party defendants and persons who have been released" — should be applied to subsection (d) as well. In doing so, we recognized the importance, "[wjhenever possible, [to] construe each part or section of a statute with every other part or section, to produce a harmonious whole." Applying this rule of construction, we conclude that AS 09.17.080(a)(2) allows the jury to allocate fault to Raymond as a party to the action. Here, the jury allocated sixty percent of the fault to Raymond and forty percent of the fault to AVEC. According to AS 09.17.080(d), the court could only enter judgment against AVEC for its equitable share of the obligation. Thus, while the other Fan-cyboys may bear no fault, Raymond's fault as their co-plaintiff reduces their recovery from AVEC. The Fancyboys also object to AVEC's failure to name Raymond as a third-party defendant under Civil Rule 14(c). They first argue that allocating fault to a co-plaintiff who has never been named as a third-party defendant could result in an injustice to the innocent co-plaintiff who may not receive full compensation for losses suffered: "[I]f a defendant contends one plaintiff is negligent but does not name that plaintiff as a third-party defendant, the defendant may reduce its own liability to all the plaintiffs and deny the innocent, non-negligent plaintiffs the opportunity to recover fully for their damages." But here, because of the familial relationship, the Fancyboys have not asserted any interest in collecting from Raymond the remaining sixty percent share of the judgment; the concern that they express is purely hypothetical. Thus, the Fancyboys' point that an innocent plaintiff may be unable to recover from a liable co-plaintiff who has not been joined as a third-party defendant need not be addressed in this case. The Fancyboys next argue that because AVEC failed to file a third-party claim for allocation of fault as provided by Civil Rule 14(c), they were not properly notified of AVEC's plan to allocate fault to Raymond. But as the trial court recognized, AVEC's answer to the Fancyboys' complaint contained the affirmative defense that "[a]ny damages . were caused, in whole or in part, by the negligence of one or more of the plaintiffs." We thus agree with the trial court's conclusion that the Fancyboys had adequate notice that AVEC planned to make a claim for apportionment. Because AS 09.17.080 allows allocation of fault to a co-plaintiff as a party to the action without requiring the defendant to implead the co-plaintiff as a third-party defendant and because AVEC provided adequate notice of its intent to allocate fault to Raymond, we conclude that the trial court did not err in reducing the Fancyboys' recovery by Raymond's allocation of fault. B. The Trial Court Did Not Err by Denying the Motion to Reinstate the Original Verdict. AVEC contends in its cross-appeal that the trial court should have granted its motion to reinstate the original verdict on the ground that it was consistent. In its first verdict, the jury found that AVEC's negligence was a legal cause of the fire but only awarded the Fancyboys damages for destruction of their home and other family property. This verdict puzzled the court and counsel for both parties because the parties had stipulated to certain medical costs as damages. The superior court provided clarifying instructions to the jury on this matter, directing it to redeli-berate and allowing it to reconsider "any finding which you have made." After the superior court entered final judgment based on an amended verdict that included the stipulated medical expenses, AVEC attempted to justify the first verdict's perceived inconsistencies by arguing that the jury could have concluded that AVEC was a legal cause of property damage to the house but that Raymond's conduct was a superseding cause of all personal injuries suffered by the Fancyboys. The superior court agreed that this theory reconciled any perceived inconsistencies in the original verdict: I realized how this verdict could be consistent and it's in fact how defendants have argued it.... [Ajlthough Mr. Fancyboy was not a superseding cause as to the fire, [it could be] that he was a superseding cause as to the physical harm to the parties or that the jury could have rationally viewed it as such. Yet the judge found that AVEC had waived reinstitution of the first verdict by agreeing at trial to resubmit the issue to the jury. We need not address the waiver issue here because we conclude that the original verdict was inconsistent as a matter of law. AVEC's proposed justification for the first verdict assumes that a jury could properly find that Raymond's conduct was a superseding cause of liability for non-economic damages. AVEC contends that if Raymond had not been drinking, he would have supervised the children properly and possibly prevented the fire. Under our case law on superseding cause, however, any negligence in Raymond's supervision does not release AVEC from its liability for the resulting damages. An event can have a superseding cause when "after the event and looking back from the harm to the actor's negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm." But "[a]n intervening cause that lies within the scope of the foreseeable risk, or has a reasonable connection to it, is not a superseding cause." Thus, a third party's conduct is not a superseding cause as a matter of law if the conduct was within the scope of foreseeable risk created by the defendant's negligence. For example, in Osborne v. Russell, Osborne was fatally electrocuted when he reached into a floor safe and brushed bare wires sticking out of an open electrical box at the store where he worked. The representative of Osborne's estate sued the store's electrician for negligence. We held that "the fact that someone flipped over the circuit breaker and pulled out the wires does not, as a matter of law, amount to a superseding cause." Similarly, in Gordon v. Alaska Pacific Bancorporation, the plaintiff was attacked and injured after intervening in a fight at a company party. The plaintiff sued the host company for negligent performance of its duty to provide security for his safety. We concluded as a matter of law that neither the plaintiffs intervention in the fight nor the subsequent attack on the plaintiff by one of the participants in the fight was a superseding cause of the plaintiffs injuries. Finally, in Loeb v. Rasmussen., a minor committed suicide following an alcohol-related car accident. The representative of the minor's estate sued the owner of the store that had sold liquor to the minor prior to the accident. We held that the minor's willful misconduct in unlawfully buying and consuming alcohol and then driving while intoxicated was not a superseding cause of her injuries because "[i]t is well within the scope of foreseeable risk that a minor who purchases alcohol may drive an automobile, and that an alcohol-related accident may result." At trial in this case, AVEC argued in both its opening statement and closing argument that the fire was not electrical in origin; rather, AVEC maintained that the children had started the fire due to Raymond's failure to supervise. But the jury's determination that AVEC's negligence was a legal cause of the fire indicates that it found that the fire was electrical in origin. Raymond's conduct in falling asleep while the children were home and failing to awaken during an electrical fire, even if due to drinking, was entirely within the scope of foreseeable risk from AVEC's negligence. Thus, even if Raymond's negligence was an intervening, contributory cause, it was not a superseding cause. In turn, AVEC should have been held liable for.its proportionate share of all resulting damages. Accordingly, the jury's first verdict, which failed to make any award for the Fancyboys' medical expenses or their non-economic damages was necessarily inconsistent. Thus, we affirm the trial court's denial of AVEC's motion to reinstate the original verdict. C. The Trial Court Erred by Denying the Fancyboys' Motion for a Neiv Tnal. After the court instructed the jury to rede-liberate, the jury continued to award only property damages and the stipulated medical expenses even though AVEC never disputed the Fancyboys' showing of non-economic harm. Upon return of this verdict, the trial court commented that the verdict was "not particularly a logical verdict." But based on its retrospective conclusion that the first verdict was consistent, the trial court refused to grant a new trial. The Fancyboys argue that the trial court should have granted a new trial because the second verdict was inconsistent in its exclusion of non-economic damages. AVEC first contends that the Fan-cyboys waived their right to challenge the consistency of the second verdict because the Fancyboys did not make an additional objection to inconsistency upon return of the second verdict. To preserve an inconsistency objection, the party must have asked for resubmission of the issue prior to the discharge of the jury. As the Fancyboys point out, they made two separate objections after the first verdict: They objected to both the jury's failure to include the stipulated medical expenses and its failure to include any non-economic damages. The court instructed the jury that it must consider stipulated medical damages but declined to address the issue of the jury's failure to award non-economic damages: "I think there are two problems. One of which is a problem for a different day." This remark suggests that the court viewed the jury's failure to award non-economic damages as a problem with the adequacy of the verdict, rather than an inconsistency that required an immediate cure. By phrasing the issues in this way, the court effectively represented to the Fancyboys that they had preserved their objection to the failure to award non-economic damages. Because the Fancyboys could have reasonably relied on that representation, we conclude that they did not need to make the same objection to inconsistency after the second verdict. We now turn to the consistency of the second verdict. As we discussed with respect to the first verdict, in light of the jury's determination that the fire was electrical in origin, Raymond's failure to wake up during the fire to supervise the children was a foreseeable result of AVEC's negligence. Thus, although Raymond's negligence may have been an intervening cause of the Fancy-boys' injuries, it could not have been a superseding cause. Accordingly, AVEC is liable for its proportionate share of all resulting damages, whether economic or non-economic. We see no principled way for the jury to have awarded damages for property loss and medical expenses but not non-economic damages to compensate the Fancyboys for their painful burns and their loss of consortium due to Willie's' death. Because the second verdict was inconsistent, a new trial is indeed "required in the interest of justice" pursuant to Alaska Civil Rule 59(a). The Fancyboys also ask us to direct the trial court on remand to limit the new trial to the issue of damages. At the end of the trial, the trial court suggested that any new trial would require resubmission of all issues to the jury. The question of "[w]hat issues are to be relitigated upon remand, in the absence of a directive from this court, is within the discretion of the trial court." "Whether the issues [of liability and damages] are sufficiently separable to warrant a partial new trial depends on the facts and circumstances of each case." In comparative negligence cases, we have upheld trial court decisions granting a partial new trial on the issue of liability alone, the issue of damages alone, and a full trial on both the liability and damages issues. Given the broad discretion that we afford trial courts on this matter, we leave it to the superior court to determine whether a new trial on all issues will be necessary. IV. CONCLUSION We conclude that the first and second verdicts in this case were inconsistent as a mat ter of law. Accordingly, we REVERSE and REMAND for a new trial. CARPENETI, Justice, not participating. . In 1991 AVEC had converted its system at Pilot Station from covered utilidors to overhead lines. Because the Fancyboys' house was empty at the time of the conversion, AVEC did not install an overhead line. . Individuals often use jump lines in bush Alaska to provide power to steambaths and other outbuildings. If the jump line is attached properly, the meter box registers the electricity being used, so AVEC can bill the customer for the extra use. .The version of AS 09.17.080 that governs this case took effect in 1989. It provides: (a) In all actions involving fault of more than one party to the action, including third-party defendants and persons who have been released under AS 09.16.040, the court, unless otherwise agreed by all parties, shall instruct the jury to answer special interrogatories or, if there is no jury, shall make findings, indicating (1) the amount of damages each claimant would be entitled to recover if contributory fault is disregarded; and (2) the percentage of the total fault of all of the parties to each claim that is allocated to each claimant, defendant, third-party defendant, and person who has been released from liability under AS 09.16.040. (b) In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault, and the extent of the causal relation between the conduct and the damages claimed. The trier of fact may determine that two or more persons are to be treated as a single party if their conduct was a cause of the damages claimed and the separate act or omission of each person cannot be distinguished. (c) The courl shall determine the award of damages to each claimant in accordance with the findings, subject to a reduction under AS 09.16.040, and enter judgment against each party liable. The court also shall determine and state in the judgment each party's equitable share of the obligation to each claimant in accordance with the respective percentages of fault. (d)The court shall enter judgment against each party liable on the basis of several liability in accordance with that party's percentage of fault. The statute changed following trial in this case. See ch. 26, § 11-13 SLA 1997 (effective Aug. 7, 1997). . Civil Rule 14(c) provides: For purposes of apportioning damages under AS 09.17.080, a defendant, as a third-party plaintiff, may follow the procedure of paragraph (a) to add as a third-party defendant any person whose fault may have been a cause of the damages claimed by the plaintiff. Judgment may be entered against a third-party defendant in favor of the plaintiff in accordance with the third-party defendant's respective percentage of fault, regardless of whether the plaintiff has asserted a direct claim against tire third-party defendant. . See Muller v. BP Exploration (Alaska), Inc., 923 P.2d 783, 787 (Alaska 1996). . Id. . See Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). . See AS 09.17.080(d). By popular initiative, Alaska has abolished the system of joint and several liability, in which each tortfeasor could be fully liable for the injured party's damages and seek contribution or indemnity from any other joint tortfeasor. See Robinson v. Alaska Properties and Inv., Inc., 878 F.Supp. 1318, 1321 (D.Alaska 1995); Benner v. Wichman, 874 P.2d 949, 955 (Alaska 1994). Thus, a plaintiff "[can] only recover from each tortfeasor in the proportion that his fault played to the total fault of all the persons and entities at fault including the plaintiff herself." Robinson, 878 F.Supp. at 1321. . See 2A Norman J. Singer, Sutherland's Statutes and Statutory Construction § 46.06 (5th ed.1992); Benner, 874 P.2d at 957. . 874 P.2d 949 (Alaska 1994). . Id. at 957-58. . Id. at 957 (citations omitted). . See AS 09.17.080(d). . Dura Corp. v. Harned, 703 P.2d 396, 402 (Alaska 1985) (citation omitted). . Id. . 669 P.2d 550 (Alaska 1983). . See id. at 552. . See id. . Id. at 556. . 753 P.2d 721 (Alaska 1988). . See id. at 722. . See id. . See id. at 725. . 822 P.2d 914 (Alaska 1991). . See id. at 916. . See id. . Id. at 920. . A trial court has broad discretion to grant or refuse a motion for a new trial. See Buoy v. ERA Helicopters, Inc., 771 P.2d 439, 442 (Alaska 1989) (affirming grant of new trial based on an inadequate verdict). A trial court may grant a new trial "if required in the interest of justice." Alaska R. Civ. P. 59(a). A new trial may be appropriate if the verdict is inadequate or inconsistent. See Buoy, 771 P.2d at 442; McCubbins v. State, Dep't of Natural Resources, 973 P.2d 588, 593-94 (Alaska 1999) (reversing denial of new trial based on an inconsistent verdict). We will not disturb a trial court's ruling on such a motion "except in the most exceptional circumstances and to prevent a miscarriage of justice." Sebring v. Colver, 649 P.2d 932, 934 (Alaska 1982) (citation omitted). Upon review of the record, we must be left with a definite and firm conviction that the trial court erred. See id. . See Blumenshine v. Baptiste, 869 P.2d 470, 473 (Alaska 1994); Buoy, 771 P.2d at 446 n. 7. . Caterpillar Tractor Co. v. Beck, 624 P.2d 790, 795 (Alaska 1981); see also Alaska R. Civ. P. 59(a) (holding that a trial court can grant a new trial on "all or part of the issues in an action where there has been a trial by jury"); State v. Municipality of Anchorage, 805 P.2d 971, 974 (Alaska 1991) ("On a motion for a new trial . the trial court has discretion . to order that the new trial be had on all or part of the issues .") (quoting 6A J. Moore, J. Lucas & G. Grotheer, Moore's Federal Practice ¶ 59.06 (2d ed.1989)) (first two alterations in original). . Beck, 624 P.2d at 795; see also Municipality of Anchorage, 805 P.2d at 973; Sturm, Ruger & Co. v. Day, 615 P.2d 621, 623 (Alaska 1980). . See Day, 615 P.2d at 624. . See Sebring v. Colver, 649 P.2d 932, 934 (Alaska 1982). . See Municipality of Anchorage, 805 P.2d at 975 (concluding that the jury's small damage award, in light of its finding that the state was thirty percent at fault, suggested compromise or prejudice on its face and justified a new trial). . AVEC also argues on cross-appeal that it should have been designated as the prevailing party for the purpose of attorney's fees. Because we are remanding for a new need not address that issue, trial, however, we

11579200

Ray McCUBBINS and Rona McCubbins, Appellants and Cross-Appellees, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES, DIVISION OF PARKS AND RECREATION, Appellee and Cross-Appellant

McCubbins v. State, Department of Natural Resources, Division of Parks & Recreation

1999-03-05

Nos. S-7930, S-7990

501

509

984 P.2d 501

984

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T16:59:12.804513+00:00

CAP

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

Ray McCUBBINS and Rona McCubbins, Appellants and Cross-Appellees, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES, DIVISION OF PARKS AND RECREATION, Appellee and Cross-Appellant.

Ray McCUBBINS and Rona McCubbins, Appellants and Cross-Appellees, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES, DIVISION OF PARKS AND RECREATION, Appellee and Cross-Appellant. Nos. S-7930, S-7990. Supreme Court of Alaska. March 5, 1999. Rehearing Denied Sept. 8, 1999. George M. Kapolchok, Elizabeth D. Friedman, Anchorage, for Appellants and Cross-Appellees. Michael C. Geraghty, Tracey L. Knutson, and Sarah Diemer Moyer, DeLisio, Moran, Geraghty & Zobel, Anchorage, for Appellee and Cross-Appellant. Before MATTHEWS, Chief Justice, and COMPTON, EASTAUGH, FABE, and BRYNER, Justices.

5074

31617

OPINION MATTHEWS, Chief Justice. I. INTRODUCTION Ray Woodrow McCubbins and his wife, Rona McCubbins, appeal from a jury verdict awarding McCubbins $26,914.10 against the State of Alaska for injuries sustained in a diving accident at Big Lake. They appeal the trial court's failure to grant them a new trial on the issue of damages; its determination that the State was the prevailing party for purposes of Civil Rule 82 attorney's fees; and its award of decreased prejudgment interest pursuant to Civil Rule 68. We hold that the jury's damage award was inconsistent and order a new trial on the issue of damages. II. FACTS AND PROCEEDINGS A. Facts On May 31, 1993, Ray "Woody" McCub-bins, his wife, Rona, and several friends went jet skiing at the Big Lake North Recreation Site (Big Lake site) near Wasilla. The Big Lake site is owned by the State of Alaska and managed by the Department of Natural Resources, Division of Parks and Outdoor Recreation. A floating orange boomline separates a swimming area from boat traffic on the rest of the lake. During a break from jet skiing, McCubbins ran into the lake at the swimming area and performed a belly-flop. At this point in the lake, the water was approximately two to three feet deep. McCubbins struck his head on what was likely a large submerged rock. McCubbins's friends drove him to the AIC Medical Clinic in Wasilla where he was treated by Ed Manning, a physician's assistant. Manning stitched together McCubbins's head laceration and took X-rays of McCubbins's neck, which indicated a "teardrop fracture." Manning referred McCubbins to Valley Hospital in Palmer. That same day, Valley Hospital reviewed McCubbins's X-rays, ordered a CT scan and notified McCubbins's Anchorage family physician, Dr. Robert Hall. McCubbins returned to his job as a truck driver with Weaver Brothers in Anchorage. Three days later McCubbins saw Dr. Hall, who sent him to the Providence Hospital Emergency Room for new X-rays of his neck. Approximately two weeks later, McCubbins referred himself to Dr. Lynn Taylor, a neurologist at the Virginia Mason Medical Center in Seattle. Dr. Taylor concluded that McCubbins had a small compression fracture in a neck bone, but was not a surgical candidate. On Dr. Taylor's advice, McCubbins sought physical therapy at Chu-gach Physical Therapy in Anchorage. McCubbins testified that the physical therapy increased his pain due to exercises designed to eventually expand the range of motion in his neck. Dr. Hall reexamined McCubbins in August and released him for work. McCubbins resumed truck driving that month. However, McCubbins began to experience a numbing and tingling sensation in his limbs. He returned to Dr. Hall, who conducted another MRI at Providence Hospital. McCubbins then sought treatment from Dr. Lee Dorey in Tacoma in September 1993. Dr. Dorey recommended that McCubbins undergo a two-level anterior cervical fusion to fuse his fractured neck vertebrae. McCubbins did not obtain a second opinion. McCubbins underwent the fusion surgery and returned to Anchorage in October 1993 for physical therapy but did not return to work. The surgery alleviated the numbness and tingling, but McCubbins's neck pain increased. In November McCubbins returned to Weaver Brothers as a full-time office employee. In the spring of 1994, McCubbins again saw Dr. Dorey because he began suffering from neck pain in a different area. Dr. Dorey conducted a discogram, injecting fluid into McCub-bins's spine and taking an X-ray. Dr. Dorey did not recommend additional surgery; instead he referred McCubbins to a pain clinic in Anchorage employing Dr. Robert Swift. Dr. Swift prescribed narcotic medication for McCubbins's pain. B. Proceedings McCubbins and Rona filed a complaint against the State of Alaska on October 26, 1993, alleging that the State was negligent in failing to inspect the Big Lake site for dangerous conditions; warn of subsurface rocks or other dangerous conditions; and remove the submerged rock that McCubbins struck. McCubbins and Rona requested damages for medical expenses, pain and suffering, physical impairment, emotional distress, lost income and loss of consortium. The State answered on December 16, 1993, asserting, inter alia, that McCubbins's .injuries were caused by his own negligence and that he had failed to mitigate his damages. Trial was held from January 23 to February 3, 1995. On the issue of damages, McCubbins presented his own testimony, Rona's testimony and the testimony of Dr. Dorey, Dr. Swift, eoworker Patrick Smith, employer James Doyle, vocational rehabilitation counselor Jill Friedman, and economist Francis Gállela. The State presented the testimony of physician's assistant Ed Manning, Dr. Taylor, orthopedic surgeon Dr. Douglas Smith, psychologist Dr. Michael Rose, and vocational rehabilitation counselor Richard Stone. On February 3 the jury found the State negligent for failing to maintain the Big Lake site in a reasonably safe condition. The jury also found McCubbins comparatively negligent and attributed 50% fault to him and 50% to the State. By special verdict, it awarded McCubbins $28,-800 for future medical expenses, $3,200 for past pain and suffering, and $18,000 for future pain and suffering. The jury awarded no damages for past medical expenses, past earnings, future earning capacity, past physical impairment, future physical impairment, and loss of consortium. Before the jury was discharged, McCub-bins objected to the special verdict, arguing that it was inconsistent and should be resubmitted. The trial court discharged the jury, ruling that the issue could be addressed in post-trial motions. McCubbins then moved for a new trial on the issue of damages. The court denied McCubbins's motion, noting that the verdict was consistent with the evidence adduced at trial, except for the jury's failure to award damages for immediate post-accident expenses, for which the court later ordered additur. McCubbins moved for entry of final judgment and a new trial, this time alleging improper argument by the State. The trial court held oral argument on the motion for a new trial, but did not issue a second ruling. The trial court issued a final judgment for McCubbins in the amount of $26,914.10, assessed prejudgment interest against the State at 5.5% pursuant to Civil Rule 68 and determined that the State was the prevailing party. The trial court ordered additur of $3,828.20 for "emergency medical care, physical therapy and evaluation" immediately following McCubbins's accident. McCubbins filed a motion for reconsideration on August 1. 1996, claiming that the State's offer of judgment was invalid and that the trial court should have found McCubbins to be the prevailing party. The trial court denied this motion and awarded the State attorney's fees of $17,348.70. III. DISCUSSION A. Standard of Review "The grant or refusal of a motion for a new trial rests in the sound discretion of the trial court, and we will not disturb a trial court's decision on such a motion except in exceptional circumstances to prevent a miscarriage of justice." Buoy v. ERA Helicopters, Inc., 771 P.2d 439, 442 (Alaska 1989). The evidence must be "so slight and unconvincing as to make the verdict unreasonable and unjust." Hutchins v. Schwartz, 724 P.2d 1194, 1199 (Alaska 1986) (citing City of Whittier v. Whittier Fuel & Marine Corp., 577 P.2d 216, 222 (Alaska 1978)). This court will uphold a refusal "if there is an evidentiary basis for the jury's decision." State v. Will, 807 P.2d 467, 469 (Alaska 1991) (citing Mullen v. Christiansen, 642 P.2d 1345, 1348 (Alaska 1982)). B. Did the Trial Court Abuse Its Discretion by Failing to Grant a New Trial on Damages ? 1. Did the State violate the collateral source rule? In November 1994 McCubbins filed a motion in limine, seeking to preclude the State from introducing evidence of his health insurance "in any way." The trial court granted the motion "to the extent outlined at AS 09.17.070." McCubbins argues that the trial court abused its discretion in failing to grant him a new trial because the State improperly elicited testimony that his medical expenses were covered by insurance in violation of the collateral source rule. The exchange that McCubbins complains of took place during the State's cross-examination of Dr. Dorey. McCubbins asserts that the jury "evidently believed that [his] past medical expenses had been paid for by his Teamsters' insurance, but that he would need money for future expenses." McCubbins notes that the trial court recognized that an improper reference was made to a collateral source. Relying on Williams v. Utility Equipment, Inc., 837 P.2d 1112 (Alaska 1992), the State argues that McCubbins has waived this argument because he "did not make specific objections" when Dr. Dorey mentioned McCubbins's medical coverage during his cross-examination by the State. We agree. In Williams, the plaintiff, Williams, filed a motion asking the trial court to prohibit the defendant from using evidence of Williams's prior drug use. Id. at 1114. This motion was apparently granted. However, at trial the defense did introduce such evidence and Williams failed to object to it. On appeal, Williams argued that the trial court erred in violating its own protective order. We disagreed, holding that "Williams waived his objections, despite the protective order, when he did not make specific objections as the testimony [about his drug use] was presented." Id. at 1116-17. Similarly, in the present case, although McCubbins's motion in limine preventing the State from introducing evidence of his health insurance was granted, McCub-bins never objected to the portion of the State's cross-examination of Dr. Dorey which had effectively elicited information about McCubbins's health insurance. Accordingly, because he did not make specific objections to the introduction of this evidence, McCub-bins has waived the issue on appeal. 2. Did the State improperly argue that it was not responsible for subsequent medical negligence ? McCubbins asserts that the State improperly argued that subsequent medical negligence by Drs. Dorey and Swift caused or exacerbated McCubbins's injuries, thus relieving the State of responsibility for these damages. Specifically, McCubbins points to the State's closing argument and its cross-examination of Dr. Dorey, which both suggested that Dr. Dorey negligently recommended McCubbins undergo the fusion surgery. However, McCubbins never objected to any of the State's allegedly improper arguments or questions of which he now complains. As such, he failed to preserve this alleged error on appeal. In Clary Insurance Agency v. Doyle, 620 P.2d 194 (Alaska 1980), we held that appellants waived their claim about improper closing argument because they "failed to raise their objection in the trial court until the hearing on their motion for a new trial, long after the jury had reached its verdict." Id. at 204. We explained that "[ojbjections to statements made during closing argument must be given prior to the time the jury is instructed so that the court has an opportunity to instruct the jury to ignore the statement or to submit a corrective instruction." Id.; see also 58 Am. Jur.2d New THal § 164 (1989) ("Generally, in order that a party may seek a new trial on the ground that counsel for the opposing party has made improper remarks or comments, the complaining party must have made a proper and timely objection to the statements, and sought to have the harmful effect thereof removed by an instruction to the jury"). Because he did not timely object to these statements, McCubbins has waived his arguments regarding subsequent medical negligence. 3. Was the jury's verdict logically inconsistent? McCubbins argues that the verdict is logically inconsistent because the jury awarded damages in some categories but failed to award them in "corresponding" categories. We agree that the jury's verdict awarding damages for future medical expenses but not for diminished earning capacity was inconsistent. "We will not disturb a jury verdict if there is a theory which reconciles the apparent inconsistencies." Yang v. Yoo, 812 P.2d 210, 215 (Alaska 1991). No logical theory exists for the jury's award of $28,800 for future medical expenses, but its failure to award anything for diminished future earning capacity. The jury's award of $28,800 for future medical expenses closely approximated the $28,600 cost for McCubbins's treatment at a pain management clinic, as estimated by his expert. Thus, it is very likely that the jury's award for future medical expenses was intended to cover the costs of McCubbins attending a pain management clinic, especially since one of the State's main arguments at trial was that McCubbins suffered from chronic pain syndrome. The State acknowledges this but argues that the jury could have reasonably concluded that attendance and participation in a pain management clinic would enable McCubbins to resolve his chronic pain problems without impairing his future earning capacity. This argument fails to address the inconsistencies in the jury's verdict. The State's own witness, Dr. Smith, testified that pain clinic programs generally are "at least five days a week, eight hours a day," lasting for "four to eight weeks." Thus, by traveling to and attending such a clinic, McCubbins will necessarily miss at least four to eight weeks of work. His future earning capacity is diminished by at least the amount of money he would have made in the time necessary to complete a pain management clinic. The jury's failure to award any amount for loss of future earning capacity is therefore internally inconsistent with its award of $28,800 for future medical expenses. Thus, the superior court abused its discretion by not ordering a new trial on the issue of damages. Cf. State v. Lewis, 785 P.2d 24, 26-27 (Alaska 1990) (superior court abused its discretion in refusing to order a new trial given that the jury's verdict about the amount of just compensation owed to plaintiff was internally inconsistent). We have held that "when an issue requiring reversal is fairly separable from the other issues involved in the case, we may grant a partial new trial, setting aside only so much of the judgment as is affected by error." Poulin v. Zartman, 542 P.2d 251, 275 (Alaska 1975). "The most typically separable issues are those of liability and damages." Caterpillar Tractor Co. v. Beck, 624 P.2d 790, 795 (Alaska 1981) (citations omitted). Those issues are separable in the present case and therefore we order a new trial on the issue of damages only. Cf. Sturm, Ruger & Co., Inc. v. Day, 615 P.2d 621, 624 (Alaska 1980) ("in this case the evidence on liability is almost entirely separate from the evidence on damages . (therefore,] [i]n order to limit the time and expenditure required by a new trial, we direct that there shall be a partial new trial" on the issue of liability). C. The State's Conditional Cross-Appeal The State seeks a new trial on the issue of liability only in the event that we grant McCubbins's request for a new trial on damages. We reject the State's argument that it is entitled to a new trial. 1. Did the trial court abuse its discretion by excluding testimony relating to inspections of the swimming area? According to the State, Doug Soner-holm was a state-employed ranger who had the "primary day-to-day responsibility for the maintenance and operation of the Big Lake North Recreation Site" at the time of McCubbins's accident. Sonerholm resigned in June 1993 and began working for the Wasilla Police Department. The State's July 19,1994 witness list included Sonerholm as a potential fact witness. The State also notes that it identified Sonerholm in a response to an interrogatory. However, the State had difficulty contacting Sonerholm and did not speak with him until midway through the trial. The State notified McCubbins of the substance of this contact on January 25, 1995, two days after the beginning of trial, through a supplemental interrogatory response. On January 30,1995, McCubbins moved to exclude any testimony regarding "inspection of the subsurface or bottom of the Big Lake North Swimming Area," because the State had failed to disclose this information in response to "very specific" interrogatories. After hearing oral argument, the trial court concluded that the State's supplemental disclosure was untimely, although it noted that the State had not engaged in "intentional misrepresentation." The trial court concluded that McCubbins would be prejudiced by the late disclosure, because at this point in the trial, McCubbins had just completed his entire liability case-in-chief. The trial court allowed the State to introduce Sonerholm's testimony that he had conducted inspections on shore and in a boat to discover litter and hazards such as broken glass, because it was consistent with the State's answers to McCubbins's interrogatories. Thus, the court only precluded Soner-holm from testifying that he inspected the lake for hazardous objects in hip waders. The State asserts that it repeatedly attempted to contact Sonerholm in good faith and did not willfully violate the discovery process. Relying on Wasserman v. Bartholomew, 923 P.2d 806, 811-12 (Alaska 1996), it argues that any sanction was improper. McCubbins responds that allowing Soner-holm to testify that he inspected the lake in hip waders would have severely prejudiced his case because the State failed to disclose any evidence of such inspections until after McCubbins had completed his liability presentation to the jury. The trial court did not abuse its discretion in limiting Sonerholm's testimony. The State's reliance on Wasserman is not persuasive. In Wasserman, we held that the trial court improperly excluded the testimony of a non-party witness as a sanction because, under the circumstances, the witness's uncooperative behavior was not properly attributable to the sanctioned defendant. Wasserman, 923 P.2d at 812-13. However, Wasserman also held that "[t]rial courts have the power to regulate the manner in which evidence is discovered and disclosed at trial. In extreme circumstances, a trial court may properly conclude that only exclusion of a non-party witness's testimony can redress the unfairness of the situation." Id. at 812. Also, in State v. Guinn, 555 P.2d 530 (Alaska 1976), we upheld the trial court's exclusion of a State Trooper's testimony because the State, the defendant on whose behalf the Trooper was going to testify, failed to produce the Trooper's notebook on which his testimony was to be based. Id. at 542-43. The trial court's exclusion of the Trooper's testimony was upheld even though the State's failure to produce the notebook was not in "bad faith" or a "purposeful deception." Id. at 543. Indeed, we explicitly rejected the State's argument that the trial court abused its discretion because "there was no showing of wilful recalcitrance" on the part of the State. Id. Thus, the fact that the State in the present case allegedly made good faith efforts to locate Sonerholm is not necessarily dispositive of the issue of whether the court abused its discretion in limiting his testimony. Accord Fairbanks N. Star Borough v. Lakeview Enterprises, Inc., 897 P.2d 47, 58 (Alaska 1995) (citing Guinn for the proposition that "a showing of 'wilful' disobedience was not required in order to preclude a witness' testimony."). Finally, the trial court's sanction was narrowly crafted in that it merely excluded testimony inconsistent with the State's interrogatory responses. The trial court considered other lesser sanctions, concluding that an 'award of costs would not remedy the disadvantage to McCubbins if the State were allowed to introduce the testimony. Further, the sanction was carefully limited to the nature of the State's violation. The trial court only excluded testimony inconsistent with the State's interrogatory responses. It permitted the State to argue and elicit testimony that inspections for litter and hazards were routinely conducted from the shore and that litter was removed by canoe. Sonerholm did in fact testify at trial, and in closing argument the State emphasized that Sonerholm "paid special attention" to his routine inspections of the swimming area for "stuff in the water." Such narrowly tailored, "less drastic" measures have been previously upheld by this court. See, e.g., Lakeview Enterprises, Inc., 897 P.2d at 58; Guinn, 555 P.2d at 543. Our holding that the superior court did not abuse its discretion in limiting the scope of Sonerholm's testimony is also supported by other authority. See, e.g., Yukon Equip., Inc. v. Gordon, 660 P.2d 428, 432 (Alaska 1983) (upholding exclusion of specific testimony for failure to disclose in response to interrogatory); cf. Grimes v. Haslett, 641 P.2d 813, 822-23 (Alaska 1982) (holding that trial court has considerable discretion in excluding or limiting testimony); Drickersen v. Drickersen, 604 P.2d 1082, 1087 (Alaska 1979) (upholding trial court's exclusion of expert's new opinions offered for first time at trial). 2. Was Jury Instruction Number 23 erroneous? The State argues that the trial court improperly included the last sentence in Jury Instruction Number 23. The instruction read: Plaintiffs cause of action against the State is based upon and must meet the requirements of the law relating to the liability of a landowner for a dangerous condition of property. Before the plaintiff may be entitled to your verdict against the State under this law, you must find from a preponderance of the evidence: First: That the Big Lake North Recreation Site, and specifically the swimming area at the recreation site, was in a dangerous condition on May 31,1993; Second: That the injury of which plaintiff complains was proximately caused by the dangerous condition; Third: That the injury occurred in a way which was reasonably foreseeable as a consequence of the dangerous condition of the property; and Fourth: That the dangerous condition had existed for a sufficient period of time or was so obvious, or both, that the State should have discovered and eliminated it. The State had a duty to make reasonable inspections. (Emphasis added.) The State argues that the trial court misstated the law because the instruction implied that the State had the duty to inspect "each and every piece of remote land it owns." Implicit in the duty to discover and eliminate hidden dangers of a sufficient duration, which is set out in the "Fourth" part of Instruction 23, is the duty to make reasonable inspections. Thus the last sentence of the instruction did not impose a new duty on the State. As the propriety of the earlier part of the instruction is not challenged, the final sentence cannot be considered error. Nor do we believe that the final sentence was error in the context of this case. We do not have here undifferentiated public land which people may utilize for recreational pursuits only at their own risk. In Kooly v. State, 958 P.2d 1106 (Alaska 1998), we held that the State did not owe a duty of care to sledders who used state rights-of-way as sledding hills. We noted that although the hill where the accident occurred was commonly used for sledding, the State had not "formally dedicated the sledding hill as a recreational area." Id. at 1109. We also observed that it was "not possible to make the thousands of miles of state rights-of-way adjacent to highways safe for sledding." Id. Here, by contrast, the area in question was roped off for swimming and was part of a state recreation area. In Moloso v. State, 644 P.2d 205, 219 (Alaska 1982), a case involving a state construction area, we observed that landowners have a duty to warn entering persons of hidden dangers of which the entering persons are unaware. Implicit in this duty is a duty to inspect for hidden dangers. Such a duty should properly apply to designated use areas like the swimming area involved in this case. IV. CONCLUSION The jury's verdict awarding damages for future medical expenses and not for diminished future earning capacity was inconsistent. Accordingly, McCubbins's motion for a new trial on the issue of damages should have been granted. No error was committed which requires a new trial on liability, including apportionment of fault. Therefore, we REMAND for a new trial on damages and VACATE the rulings regarding the prevailing party determination and decreased prejudgment interest. . Because Rona sued only for loss of consortium, only Woody McCubbins is referred to as "McCubbins" throughout this opinion, unless otherwise indicated. . AS 09.17.070(a) provides: (a) After the fact finder has rendered an award to a claimant, and after the court has awarded costs and attorney fees, a defendant may introduce evidence of amounts received or to be received by the claimant as compensation for the same injury from collateral sources that do not have a right of subrogation by law or contract. . The dialogue occurred as follows: Q Now I have one other record from your office from September 30th that indicates after your one-and-a-half hour appointment with Mr. McCubbins that you had obtained authorization from the Teamsters to proceed to surgery and that you had also obtained authorization from the Teamsters to waive a second opinion. Do you have that record? A Yes. Q What I'm asking you is during the course of your one-and-a-half hour appointment with Mr. McCubbins on the 30th of September you had accomplished a telephone call to the Teamsters authorizing surgery and advising Mr. McCubbins to waive obtaining a second opinion before surgery. Is that a correct reading of that note? A No. Q What's incorrect about it? A Well, I didn't write it out here. My handwriting is at the top and this is one of my office persons. Q This is somebody on your staff? A Correct. And it said: "Called Teamsters, Susan, any hospital $100 deductible, 90 percent; called Beach Street." I think it is. ", . review, talked with Sharon at that number, second opinion waived." That does not mean that I waived a second opinion, that means that . the insurance company didn't require a second opinion, they felt that they didn't need another opinion, that my opinion was enough to authorize it. . Despite the waiver, we may still review the alleged error by the trial court under the plain error standard. However, that standard, which requires a "high likelihood" that the alleged error will result in a "miscarriage of justice," see Jaso v. McCarthy, 923 P.2d 795, 800 (Alaska 1996) (citations omitted), is not met here. Even if the trial court did err, the error was harmless because prior to the State eliciting information about McCubbins's medical coverage, McCub-bins's own attorney elicited information from McCubbins and his employer that revealed to the jury that McCubbins had medical coverage. . McCubbins also argues that the State should be barred from propounding a "mitigation of damages" theory for the first time on appeal since it neither raised this issue before the trial court nor requested a jury instruction on this theory. This argument has no merit. The State raised the affirmative defense that McCubbins had failed to mitigate his damages in its answer, the issue was arguably the State's primary defense on the damage issue, and a mitigation instruction was given to the jury. Jury Instruction Number 31 provided: Plaintiff is not entitled to be paid for any loss or for part of any loss he could have avoided with reasonable efforts and without undue risk, hardship or embarrassment, even though the loss originally resulted from an act or omission for which the defendant is legally responsible. If you decide that it is more likely true than not true that plaintiff could have avoided any loss or part of any loss with reasonable efforts and without undue risk, hardship or embarrassment, you may not require the defendant to pay the amount plaintiff could have reasonably avoided. In these instructions I have asked you to decide in two separate contexts whether the plaintiff's actions were reasonable and I want to make sure you understand the difference. Earlier I told you how to decide whether the plaintiff's failure to use reasonable care caused plaintiff's loss. If you decide it did, you were asked to compare the plaintiff's negligence with the negligence, if any, of the defendant. Now I am asking you to decide whether after the loss occurred, the plaintiff failed to use reasonable efforts to minimize or avoid the loss. If you decide (he/she) did, then you may not compensate for the loss which could have been reasonably avoided. . The superior court's additur order did not redress the inconsistency of the jury's verdict because the additur focused on past medical expenses, not future earning capacity. Because we order a new trial on damages based on McCubbins's argument that the jury's award for loss of future earning capacity was inconsistent with its award for future medical expenses, we find it unnecessary to address his other arguments about the inconsistency of the verdict. Nor do we address his claims that the damages award was inadequate, that the trial court erred in holding that the State was the prevailing party, or that the trial court erred in awarding decreased prejudgment interest pursuant to Civil Rule 68. . McCubbins argues that the State cannot raise this issue because it "failed to request a new trial on the issue of liability in its points on appeal." This argument is without merit. The State, in its points on appeal, did "specifically reserve[]" for review the issues it now argues on appeal "in the event a new trial is granted for the McCubbins." . The substance of the response is as follows: Request: Please list which rangers or other state employees were responsible for patrolling the Big Lake North, East Wayside area in 1993. Response: Prior to Mr. McCubbins' injury on Memorial Day, the following park staff worked at Big Lake North State Recreation Site: District Ranger Dennis Heilces Area Ranger Doug Sonerholm Volunteer Hosts Ned and Fay Johnson .The State also argues that the trial court improperly relied on Civil Rule 11 in imposing this sanction. McCubbins responds that the trial court did not rely on Rule 11 to impose the sanction. Although the trial court mentioned that Rule 11 "makes it clear that counsel are responsible for the facts that they're promoting in litigation," the court went on to explain that the State's response to McCubbins's interrogatory "was incorrect and incomplete compared to what Mr. Sonerholm presently is expected to say." It seems clear to us that the sanction was imposed pursuant to Civil Rule 37. See Wasserman, 923 P.2d at 811 (noting that "[although the court did not explicitly cite Civil Rule 37 in its ruling, the principal source of sanctions for inadequate discovery responses is Civil Rule 37.").

11575871

Steven A. McNEILL, Appellant, v. STATE of Alaska, Appellee

McNeill v. State

1999-07-30

Nos. A-7001

5

9

984 P.2d 5

984

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T16:59:12.804513+00:00

CAP

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

Steven A. McNEILL, Appellant, v. STATE of Alaska, Appellee.

Steven A. McNEILL, Appellant, v. STATE of Alaska, Appellee. Nos. A-7001. Court of Appeals of Alaska. July 30, 1999. Richard W. Wright, Fairbanks, for Appellant. Leslie N. Dickson, Assistant District Attorney, Harry L. Davis, District Attorney, Fairbanks, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

2311

14081

OPINION MANNHEIMER, Judge. Two state troopers came to McNeill's house to investigate an on-going domestic disturbance between McNeill and his wife. Just as the troopers were about to begin questioning McNeill, he ordered them to "get the hell out" of his house. The troopers refused to leave until McNeill explained what was going on. The primary issue presented in this appeal is whether, under these circumstances, the troopers were obliged to administer Miranda warnings to McNeill before they questioned him. As explained below, we conclude that McNeill was not in custody for Miranda purposes at this time, and therefore the troopers did not need to advise McNeill of his rights. The Miranda issue Late in the evening of December 8, 1997, Steven A. McNeill got into a fight with his wife, and his wife called 911. Two state troopers were dispatched to the McNeill residence in response to this call. When they arrived, McNeill's wife was still on the phone to the 911 dispatcher. Ms. McNeill met the troopers outside the residence and told them that her head hurt; she said that McNeill had thrown his coat at her and that something hard in the coat pocket had struck her in the head. One of the troopers examined Ms. McNeill's head and observed swelling and bruising. Ms. McNeill also told the troopers that, because of her fear of her husband, she had armed herself with a handgun. However, Ms. McNeill then declared that her head injury was the result of an accident and that it was "no big deal". The troopers decided to speak with McNeill (who was still inside the house). McNeill at first invited the troopers into the house, and he does not claim that their entry constituted a trespass. But McNeill soon reconsidered his decision; he told the troopers to "get the hell out of [his] house and leave [him] alone." Given the circumstances, the troopers refused to leave until they could determine what was going on between McNeill and his wife. The troopers told McNeill, "[We] will [leave] as soon as you tell [us] what's going on." In the ensuing conversation, McNeill told the troopers that he had "tossed" his coat at his wife, and that a hard object in the pocket (which McNeill identified as "a couple of CD-ROMs") struck his wife in the head. The troopers believed that McNeill might have assaulted his wife, but they nevertheless gave him the option of leaving the house rather than being arrested. McNeill would have none of this; he refused to leave and instead demanded to be arrested. He also insisted that the troopers arrest his wife because she had pointed a gun at him. After the troopers concluded to their satisfaction that McNeill had been the initial aggressor, they arrested him for fourth-degree assault. McNeill was tried in the district court. In the middle of his trial, McNeill asked District Court Judge Herschel E. Crutchfield to suppress the statements he made to the troopers on the evening of his arrest — in particular, his statement that he had tossed his coat at his wife. McNeill claimed that he had been in custody during his conversation with the troopers, and he argued that his statements should be suppressed because the troopers had not given him Miranda warnings. Because McNeill waited until trial to make this motion, and because he failed to offer any reason for waiting so long to make the motion, McNeill apparently forfeited his right to raise this suppression issue. See Alaska Criminal Rule 12(b)(3) and (e). Nevertheless, Judge Crutchfield allowed McNeill to litigate his motion. Following a hearing, the judge concluded that McNeill had not been in custody when he conversed with the troopers; the judge therefore refused to suppress McNeill's statements. On appeal, McNeill argues that he was obviously in custody, since the troopers suspected him of assaulting his wife and because they refused to leave him alone and get out of his house. But the fact that McNeill may have been the focus of police suspicion does not mean that he was in custody for Miranda purposes. McNeill points to the fact that the troopers refused to leave his house until he talked to them. Generally, in determining whether a person is in custody for Miranda purposes, a court must ask whether, "under the circumstances of the police interaction with the suspect, . a reasonable person [would] have felt free to break off the interrogation and, depending on the location, either leave or ask the police to leave ". McNeill relies on this last phrase of the custody test; he contends that he was obviously in custody because the troopers openly refused to leave his house when he asked them to. But this formulation of the Miranda custody test is somewhat inexact. This wording suggests that Miranda warnings will be required whenever a person is "seized" for Fourth Amendment purposes, but that is not the law. The cases applying Miranda recognize that there are some Fourth Amendment seizures of temporary duration — most notably, routine traffic stops and other investigative stops — in which Miranda warnings are not required, even though the person is temporarily in custody and the police can properly ignore a request that the officers depart and leave the person alone. To the extent that there was a Fourth Amendment seizure in McNeill's case, that seizure was of temporary duration for investigative purposes, and it fell short of Miranda custody. The troopers had plenty of reason to intervene at the McNeill household and investigate what was going on. They had come to the McNeills' home in response to Ms. McNeill's 911 call. A domestic disturbance was either ongoing or had just ended. McNeill's wife had suffered a head injury, and she told the troopers that she had armed herself with a handgun. To confuse matters, Ms. McNeill claimed that her husband had injured her accidentally, and that the occurrence was "no big deal". Thus, when the troopers went into the house to speak to McNeill, it was still unclear what had happened. Moreover, the officers could reasonably suspect that the domestic disturbance might continue or escalate if they left without investigating. We hold that, under these circumstances, the troopers were entitled to remain in the house temporarily and question McNeill without giving him Miranda warnings. In reaching this decision, we are mindful of two previous cases in which we held that defendants who were subjected to investiga-five questioning inside their houses were, in fact, held in custody for Miranda purposes. In Moss v. State and Higgins v. State , police officers'with guns drawn forcibly entered a residence and maintained control over the people inside the home while the officers conducted a search. Even though the police announced that the defendants were not under arrest, the officers subjected the defendants to lengthy questioning. In both eases, although we conceded that the issue was close, we held that the defendants had been in Miranda custody when they were questioned. McNeill's case is different. The troopers' approach to McNeill was peaceable; they made no show of force, and they gave no other indication that they wished to arrest McNeill or detain him for a lengthy period. Quite the opposite. Although the troopers insisted on finding out "what [was] going on", they actively told McNeill that they did not wish to arrest him. The troopers in fact suggested that, although McNeill might be guilty of assault, they were willing to forego an arrest if McNeill would promise to leave the residence for the rest of the night. In assessing whether an investigative stop has ripened into Miranda custody, we must ask whether, from the point of view of a reasonable person in the defendant's position, "[the] stop' exerts . pressures that sufficiently impair [the defendant's] free exercise of the privilege against self-inerimination to require that [the defendant] be warned of his constitutional rights". McNeill was not subjected to such pressures. The troopers therefore could question McNeill without giving him Miranda warnings. As an alternative basis for our decision, we also note that the troopers had been called to the scene of an ongoing domestic disturbance. McNeill's wife was injured, and she told the troopers that she had armed herself with a handgun because of hér fear of her husband. It was still unclear what had happened, or what might happen if the troopers left. Under the "on-the-scene questioning" exception recognized by this court in McCracken v. State , the troopers' initial request for McNeill to "tell [them] what [was] going on" did not qualify as "interrogation" for purposes of the Miranda rule. Accordingly, we conclude that the district court properly denied McNeill's suppression motion. Ms. McNeill's 'prior consistent statement McNeill raises one other issue in this appeal: he claims that he was improperly prevented from introducing hearsay evidence of statements his wife made at his arraignment. McNeill was arraigned approximately thirteen hours after his arrest. At the arraignment, Ms. McNeill asked that the assault charge against her husband be dropped. She declared that McNeill had not hurt her. She also declared that her head injury had been caused by accident when she was struck by a set of keys in McNeill's coat pocket. According to Ms. McNeill, her husband had not intentionally struck her; rather, she "just happened to be in the way of the coat". (As explained in the first section of this opinion, Ms. McNeill told this same basic story to the troopers who arrived in response to her 911 call. Specifically, she told the troopers that her head injury was the result of an accident and that it was "no big deal".) Ms. McNeill was called as a witness at McNeill's trial, and she testified that her husband had not assaulted her. Ms. McNeill explained that she and her husband had been arguing and that her husband, with coat in hand, had gestured with his arm. In making this gesture, Mr. McNeill had "turned loose of the coat", and the coat then collided with Ms. McNeill's head. To counteract this exculpatory testimony, the prosecutor asked Ms. McNeill a series of questions suggesting that she had altered her account of the incident in order to help her husband's defense. Then, responding to this attack on Ms. McNeill's credibility, McNeill's attorney asked permission to introduce Ms. McNeill's statements at her husband's arraignment as prior consistent statements under Evidence Rule 801(d)(1)(B). Judge Crutchfield refused to allow the defense to introduce Ms. McNeill's statements at the arraignment. However, the judge did allow defense counsel to elicit testimony (a) that Ms. McNeill had made prior statements about the occurrence, (b) that she made these statements before her husband hired a lawyer to defend him, and (c) that these statements were consistent with her trial testimony. On appeal, McNeill contends that he should have been allowed to introduce his wife's specific statements from the arraignment. But even if this were true, we conclude that McNeill was not prejudiced by the claimed error. During Ms. McNeill's trial testimony, the jury heard her explain that she had been injured by accident when she was struck by an object in her husband's coat. In addition, one of the two troopers who responded to the 911 call testified that Ms. McNeill had said basically the same thing on the night of the occurrence — that her injury was caused accidentally when her husband tossed his coat at her and she was hit by a hard object in the coat pocket. Thus, the jury was provided with particularized evidentiary support for Ms. McNeill's assertions that she had made prior statements about the incident and that these statements were consistent with her trial testimony. On this record, we are convinced that even if Judge Crutchfield's ruling was error, that error did not appreciably affect the jury's decision of this case. Conclusion We have concluded that the troopers did not need to give Miranda warnings to McNeill. We have further concluded that the jury's verdict was not appreciably affected by any error in the trial court's ruling concerning Ms. McNeill's prior consistent statements. Accordingly, the judgement of the district court is AFFIRMED. . AS 11.41.230(a). . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . The State does not challenge this procedural irregularity. . See Beckwith v. United States, 425 U.S. 341, 346-47, 96 S.Ct. 1612, 1616-17, 48 L.Ed.2d 1, 5 (1976); Hunter v. State, 590 P.2d 888, 892-93 (Alaska 1979). . Long v. State, 837 P.2d 737, 740 (Alaska App.1992). .See Berkemer v. McCarty, 468 U.S. 420, 439-440, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984) (holding that Miranda does not apply when a motorist is subjected to roadside questioning during a routine traffic stop, and indicating that Miranda does not apply to investigative questioning during a Terry stop); Blake v. State, 763 P.2d 511, 514-15 (Alaska App.1988) (holding that police officers are not required to give Miranda warnings during an investigative stop unless and until the initial stop ripens into "custody"). . 823 P.2d 671 (Alaska App.1991). . 887 P.2d 966 (Alaska App.1994). . See Moss, 823 P.2d at 675; Higgins, 887 P.2d at 971. . Berkemer v. McCarty, 468 U.S. at 437, 104 S.Ct. at 3149. . 914 P.2d 893, 896 (Alaska App.1996). See also State v. Salit, 613 P.2d 245, 257 (Alaska 1980); Beagel v. State, 813 P.2d 699, 705 (Alaska App.1991). . See Love v. State, 457 P.2d 622, 631-32 (Alaska 1969) (holding that non-constitutional error will not require reversal of a conviction unless the error "substantially" or "appreciably" affected the verdict).

10587549

C. E. STITES, Appellant, v. LOCAL 367, Mel Evans, J. B. Foley and Mrs. M. A. Learned, Appellees

Stites v. Local 367

1967-07-17

No. 736

153

158

430 P.2d 153

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.

C. E. STITES, Appellant, v. LOCAL 367, Mel Evans, J. B. Foley and Mrs. M. A. Learned, Appellees.

C. E. STITES, Appellant, v. LOCAL 367, Mel Evans, J. B. Foley and Mrs. M. A. Learned, Appellees. No. 736. Supreme Court of Alaska. July 17, 1967. Helen L. Simpson, Anchorage, for appellant. Harold J. Butcher and Harland W. Davis of Butcher, Biss & Davis, Anchorage, for appellees. Before NESBETT, C. J„ and DIMOND and RABINOWITZ, JJ.

2773

16811

DIMOND, Justice. Appellant was a member of the plumbers union, Local 367. On the union's employment priority listings appellant was assigned to List A, which afforded him the right to prior employment over members assigned to Lists B and C. In this action appellant alleged that in violation of his right to priority in employment he was not referred to employment to which he was entitled, whereas members on Lists B and C were so referred. As a result, appellant contends, he suffered a loss of $45,000 in wages during the years 1961, 1962 and 1963. He sought that amount in this action as compensatory damages, together with $50,000 in punitive damages. Appellant's complaint was dismissed for lack of jurisdiction, and he brought this appeal. The question presented is whether state jurisdiction over this dispute between appellant and appellees has been pre-empted by federal law which vests in the National Labor Relations Board exclusive jurisdiction over labor relation matters affecting interstate commerce. In speaking of its decision in San Diego Bldg. Trades Council, etc. v. Garmon, the United States Supreme Court, in Local 100, of United Ass'n of Journeymen, etc. v. Borden, said: This Court held in San Diego Building Trades Council, etc. v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, that in the absence of an overriding state interest such as that involved in the maintenance of domestic peace, state courts must defer to the exclusive competence of the National Labor Relations Board in cases in which the activity that is the subject matter of the litigation is arguably subject to the protections of § 7 or the prohibitions of § 8 of the National Labor Relations Act. This relinquishment of state jurisdiction, the Court stated, is essential 'if the danger of state interference with national policy is to be averted,' 359 U.S., at 245, 79 S.Ct. at 780, and is as necessary in a suit for damages as in a suit seeking equitable relief. Thus the first inquiry, in any case in which a claim of federal preemption is raised, must be whether the conduct called into question may reasonably be asserted to be subject to Labor Board cognizance. [Footnote omitted.] Here appellant contends that no such assertion can be made. We disagree. Section 7 of the National Labor Relations Act grants to employees the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and "to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection _» jt js arguable that the union's alleged conduct in failing or refusing to adhere to the employment priority listings so far as appellant was concerned was in violation of Section 8(b) (1) (A) of the Act by restraining appellant in the exercise of a right guaranteed in Section 7, that is, the right to participate in a hiring hall arrangement which could have resulted from a concerted activity engaged in by union employees for their mutual aid and protection. As the United States Supreme Court said in the Borden case "[t]he problems inherent in the operation of union hiring halls are difficult and complex and point up the importance of limiting initial competence to adjudicate such matters to a single expert federal agency." In holding as we do that the alleged union actions concerning appellant's employment opportunities or relations may reasonably be subject to the National Labor Relations Board cognizance, we do not consider whether appellant's rights under the hiring hall arrangements in this case were federally protected on the theory we have suggested, or on some other basis. All that we hold is that it is reasonably arguable that the matter comes within the jurisdiction of the Board, and therefore that the state courts must yield jurisdiction and leave the alleged conduct of the union to be judged by the only federal agency vested with exclusive primary jurisdiction to apply federal standards. Relying on the United States Supreme Court's decision in International Ass'n of Machinists v. Gonzales, appellant argues that the facts here relate to purely internal union matters, and therefore that the state's jurisdiction is not preempted by federal law. Gonzales involved a suit against a labor union by an individual who claimed that he had been expelled from the union in violation of his contractual rights. He sought restoration of membership and also consequential damages flowing from the expulsion, including loss of wages resulting from loss of employment. It was recognized that a restoration of union membership was a remedy that the National Labor Relations Board could not afford and that the internal affairs of unions were not in themselves a matter within the Board's competence. The Court stated: But the protection of union members in their rights as members from arbitrary-conduct by unions and union officers has not been undertaken by federal law, and indeed the assertion of any such power has been expressly denied. The proviso to § 8(b) (1) of the Act states that 'this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein _> In speaking of the Górnales decision in Borden, the Court said: The Gonzales decision, it is evident, turned on the Court's conclusion that the lawsuit was focused on purely internal union matters, i. e., on relations between the individual plaintiff and the union not having to do directly with matters of employment, and that the principal relief sought was restoration of union membership rights. In this posture, collateral relief in the form of consequential damages for loss of employment was not to be denied. We believe that the facts of this case do not come within the Gonzales rationale. This suit is not focused on purely internal union matters not having to do with matters of employment as in Gonzales, but on the contrary it is focused principally if not entirely on the union's actions with respect to appellant's efforts to obtain employment. As in Borden, the crux of this action concerns appellant's employment relations and, as we have held, involves conduct arguably subject to the Board's jurisdiction. Gonzales is distinguishable and is not controlling. Appellant's complaint stated that the ap-pellees Foley and Learned were joined as defendants both personally and as representatives of the union. Appellant argues that by suing those appellees personally, they are not being charged with an unfair labor practice proscribed by Section 8 of the National Labor Relations Act, but instead with a common law tort over which the Board has no jurisdiction but over which the court below did have jurisdiction. Board jurisdiction is not precluded by the mere fact that the complaint alleges that the union agents are also being sued individually. Such an allegation does not change the fact that appellees were agents of the union at the times referred to in the complaint. Their alleged conduct in not referring appellant for employment according to hiring hall rules and practice, whether done as individuals or as union agents, was the kind of conduct that was arguably subject to Sections 7 and 8 of the Act — the kind of conduct that "must be free from state regulation if national policy is to be left unhampered." It is conduct "whose lawfulness could initially be judged only by the federal agency vested with exclusive primary jurisdiction to apply federal standards." The exclusive jurisdiction of the National Labor Relations Board may not be circumvented by an al legation in a complaint in a state court that activities of union agents of the kind arguably subject to Board jurisdiction were engaged in by such agents in their capacities as individuals, rather than as agents of the union. The judgment is affirmed. . See Hill v. Hoe, 367 P.2d 739, 740 (Alaska 1961). . 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.Zd 775 (1959). .373 U.S. 690, 693-694, 83 S.Ct. 1423, 1425, 10 Li.Ed.2d 638, 641 (1963). . Appellant does not challenge the existence of the requisite effect on commerce to bring the matter within the scope of the Board's jurisdiction. Bee Hill v. Moe, supra note 1. . 49 Stat 452 (1935), as amended, 29 U.S.C. § 157 (1965). . Id. . Section 8(b) of the National Labor Relations Act, 49 Stat. 452 (1935), 29 U. S.C. § 158(b) (1965) provides that it shall be an unfair labor practice for a labor organization or its agents "(1) to restrain or coerce (A) employees in the exercise of their rights guaranteed in section 157 [section 7 of the NLRA] ." . Local 100 of United Ass'n of Journeymen, etc. v. Borden, supra note 3, 373 U.S. at 695-696, 83 S.Ct. at 1426, 10 L. Ed.2d at 642. . Id. at 696, 83 S.Ct. at 1427, 10 L.Ed.2d at 642-643. . 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018 (1958). . Id. at 620, 78 S.Ct. at 925, 2 L.Ed.2d at 1021. . Local 100 of United Ass'n of Journeymen, etc. v. Borden, 373 U.S. 690, 697, 83 S.Ct. 1423, 1427, 10 L.Ed.2d 638, 643 (1963). . See also Local No. 207, Intern. Ass'n of Bridge, Structural and Ornamental Iron Workers Union v. Perko, 373 U.S. 701, 705, 83 S.Ct. 1429, 1431, 10 L.Ed. 2d 646, 649 (1963). . It was alleged in the complaint that during the period to which the complaint referred Foley was business agent of the union and Learned was secretary to the business agent. . San Diego Bldg. Trades Council, etc. v. Garmon, 359 U.S. 236, 246-247, 79 S.Ct. 773, 780, 3 L.Ed.2d 775, 784 (1959). . Local 100 of United Ass'n of Journeymen, etc. v. Borden, supra note 12, 373 U.S. at 698, 83 S.Ct. at 1428, 10 L.Ed. 2d at 644.

10589647

Application of Keifer L. GRAY for Admission to the Alaska Bar Association

In re Gray

1967-07-27

No. 845

571

573

430 P.2d 571

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.

Application of Keifer L. GRAY for Admission to the Alaska Bar Association.

Application of Keifer L. GRAY for Admission to the Alaska Bar Association. No. 845. Supreme Court of Alaska. July 27, 1967. Robert C. Erwin, of Hughes, Thorsness & Lowe, Anchorage, for petitioner. John E. Havelock, Anchorage, for Alaska Bar Ass’n. Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.

1389

8552

OPINION RABINOWITZ, Justice. In this case we are faced with the question of whether petitioner's showing before the Board of Governors of the Alaska Bar Association established his eligibility for admission by reciprocity to practice law in Alaska. Resolution of the merits of this proceeding turns upon whether the Board of Governors of the Alaska Bar Association correctly decided that petitioner had not "been engaged in the active practice of law for at least five out of the previous six years". The Board of Governors concluded that "[t]he work performed by applicant for the United States Immigration and Naturalization Service does not constitute 'rendering legal services' within the meaning of AS 08.08.245(3)." We affirm the Board's decision and hold that petitioner is not entitled to admission to the Bar of Alaska under the reciprocity provisions of AS 08.08.140. Petitioner was born in 1904 at Hailey, Idaho, and graduated from Albion High School, Albion, Idaho, in May of 1924. In February 1927, petitioner graduated from Albion State Normal Teachers College, Albion, Idaho, and received a "Life Diploma." Thereafter, petitioner undertook and completed his study of law by correspondence courses from LaSalle Extension University, receiving a Bachelor of Laws degree in 1938. After successfully completing a written bar examination, petitioner was, on December 2, 1938, admitted to the practice of law in the State of Montana. From the time of his admittance to the Bar of Montana in 1938, until December of 1964, petitioner's employment was exclusively with the U. S. Immigration and Naturalization Service. Following his retirement from this agency, petitioner served as a judge for the District Court of the State of Alaska at Sitka from August 1965 until February 1967. The question of whether the nature of the services which petitioner rendered to the Immigration and Naturalization Service were, in fact, "legal services" within the purview of AS 08.08.245(3) is controlled by our recent decision in Application of Payne. There, as in the case at bar, we were required to determine if the services rendered by petitioner to the governmental agency were "legal services" under AS 08.08.245(3), and thus constituted the requisite "active practice of the law" for five out of the previous six years under AS 08.08.140. In Payne, we held that the term "rendering legal services," as used in AS 08.08.245(3), requires that a petitioner seeking admission by reciprocity must have "devoted a substantial portion of his time and energies to the rendering of legal services," extensive in scope, in his employed capacity with the government agency. Our review of the entire record in this case convinces us the Board correctly concluded that the nature of the work performed by the petitioner for the Immigration and Naturalization Service did not constitute "rendering legal services" within the meaning of AS 08.08.245 (3). We are of the opinion that petitioner's showing before the Board did not meet either of the criteria which we articulated in the Payne case. More particularly, petitioner's proof adduced to the Board did not demonstrate that he was required to, and in fact did, devote a substantial portion of his work time to the rendering of legal services to the U. S. Immigration and Naturalization Service. On the basis of petitioner's showing, we are of the further view that petitioner's proof failed to disclose that the legal services which he did render were sufficiently broad in scope to qualify as "legal services" under AS 08.08.245(3). In short, the legal services which petitioner did perform were limited to the highly specialized areas of naturalization and citizenship matters. In light of the narrow range of petitioner's actual legal experience while in the employ of the U. S. Immigration and Naturalization Service, we hold that the Board of Governors was warranted in reaching the conclusions of law which were entered in this matter. On this record we cannot say that the Board of Governors of the Alaska Bar Association acted arbitrarily, unjustly, or erroneously in denying petitioner admission by reciprocity. Petitioner's application for admission to the Alaska Bar Association without examination is denied. . Reciprocity, as a method of obtaining eligibility for admission to the Bar of Alaska, is established by AS 08.08.140 of the Alaska Integrated Bar Act. This section of the Act provides: An attorney in good standing in the bar of another state or territory or the District of Columbia which admits members of the Alaska Bar to the practice of law shall be admitted without examination and otherwise upon substantially the same terms and conditions as are fixed in the jurisdiction from which he has come for the admission of attorneys from this state. As a prerequisite to admission to the Alaska Bar the board shall require an attorney to take and pass an ex-examination, unless the applicant (1) has passed a state bar examination, (2) had engaged in the active practice of law for at least five out of the previous six years before filing the application, excluding time spent in the military service of the United States, (3) is a graduate of a law school accredited by the American Bar Association, or is a graduate of any law school if he received his degree before 1950 and began his legal studies before 1940, or has been engaged in the active practice of the law for at least 10 years, and (4) meets the character requirements established by the board. . AS 08.08.245(3) defines, in part, the term "active practice of law," as used in AS 08.08.140, as rendering legal services to an agency, branch, or department of a civil government in the United States or a state or territory of the United States, in an elective, appointive or employed capacity * ⅜ . The Board of Governors found that petitioner's services with the U. S. Immigration and Naturalization Service consisted of the following: a. Prom December, 1938, to March, 1941, as Naturalization Examiner in Federal and State District Courts in Montana. b. Prom December, 1945, to February, 1948, as Chief of Nationality and Status in Spokane, Washington. c. Prom February, 1948, until June, 1952, as Naturalization Examiner, in Helena, Montana. d. Prom June, 1952, to August, 1957, as Chief of Nationality and Status, in Seattle, Washington. e. Prom August, 1957, to October, 1959, as Deputy District Director, in Anchorage, Alaska. f. Prom October, 1959, to July, 1960, as Deputy District Director, in Omaha, Nebraska. g. Prom August, 1960, to August, 1962, General Attorney, in Helena, Montana. h. Prom August, 1962, to December, 1964, when he retired, as District Director at Anchorage, Alaska. . Petitioner presently holds the position of probate master for the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Alaska. . Application of Payne, 430 P.2d 566 (Supreme Ct., Alaska, July 27, 1967). . In the ease at bar, petitioner filed his application for admission to the Alaska Bar Association by reciprocity on October 20, 1964. Due to subsequent events, his application was not considered until the May 5, 1966, meeting of the Board of Governors. . We, therefore, find that the record supports the Board's related conclusion of law to the effect that petitioner had failed to sustain his burden of proof in regard to the required number of years of active practice of law. . In Application of Payne, 430 P.2d 556 (Supreme Ct., Alaska, July 27, 1067), we said: We are of the further view that petitioner's proof discloses that the scope of the legal services which he performed were not so 'narrow' as to be disqualified from constituting 'legal srevices' under AS 08.08.245(3) or 'active practice of law' under the reciprocity provisions of AS 08.08.140. In this court petitioner argues that on the basis of his testimony before the Board of Governors, six exhibits attached to his brief, and the provisions of 8 U.S.O. § 1103, 1154, 1225, 1429, 1446, and 1447 (1964) it was "conclusively established that [he] was engaged in rendering legal services ." .Petitioner is eligible to be admitted to the Alaska Bar Association if he successfully completes a written bar examination.

10361922

Robert R. ROSS, Appellant, v. STATE of Alaska, Appellee

Ross v. State

1992-06-26

No. A-2476

378

385

836 P.2d 378

836

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Robert R. ROSS, Appellant, v. STATE of Alaska, Appellee.

Robert R. ROSS, Appellant, v. STATE of Alaska, Appellee. No. A-2476. Court of Appeals of Alaska. June 26, 1992. Linda K. Wilson, Asst. Public Defender, and John B. Salemi, Public Defender, Anchorage, for appellant. Shelley K. Chaffin, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and 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.

3990

25689

OPINION BRYNER, Chief Judge. Robert J. Ross was convicted by a jury of one count of kidnapping and five counts of first-degree sexual assault. He later entered a plea of no contest to a separate charge of second-degree sexual assault. Superior Court Judge Peter A. Michalski sentenced Ross to consecutive sentences totalling eighty-four years' imprisonment. Ross appeals his kidnapping and first-degree sexual assault convictions, contending that the trial court erred in denying a continuance to allow Ross to find a missing defense witness. Ross also challenges his composite sentence as excessive. We affirm Ross' convictions but remand for further findings on his sentence. Ross' convictions stem from two incidents that occurred approximately a week apart. On January 30,1987, Ross met V.B. in a downtown Anchorage bar; at Ross' invitation, V.B. and several friends accompanied Ross to his nearby house for some beer. There, after V.B.'s friends left, Ross physically and sexually assaulted V.B. On February 6, 1987, Ross approached S.A. in a downtown Anchorage bar, grabbed her arm, and commanded her to do as she was told. He forced S.A. to walk to his house. There, Ross held S.A. hostage for approximately eight hours, repeatedly subjecting her to physical and sexual assaults. In the early morning hours of February 7, S.A. managed to escape Ross' house and ran to the house of an acquaintance, William Jones. She woke Jones up, told him she had been raped, and asked for help. Jones went back to sleep, telling S.A. he would help her later. Afraid to go outside alone, S.A. remained at Jones' house. Later that afternoon, Jones awoke and took S.A. to the home of her fiancé; S.A. immediately told her fiancé that Ross had raped her. Her fiancé took her to the hospital, where she was examined and reported the crime. S.A.'s examination revealed that one of her front teeth had been broken out and that S.A. had suffered other physical injuries consistent with her claim of rape. The examining physician found semen in the area between S.A.'s vagina and rectum. Serology tests later established that the semen was consistent with Ross' semen. S.A. provided the police with an accurate description of Ross, showed them where he lived, and later identified him from a photographic lineup. A search of Ross' house yielded S.A.'s missing tooth. For his January 30 assault on V.B., Ross was initially charged with three counts of first-degree sexual abuse. For his February 6-7 abduction and assaults on S.A., Ross was charged with kidnapping and five counts of first-degree sexual assault (three counts alleging acts of vaginal penetration and two of anal penetration). The charges involving S.A. came on for trial before those involving V.B. Boss' basic theory of defense was alibi. On October 27, 1987, as part of its case, the prosecution called William Jones as a witness. Jones confirmed that S.A. had awakened him early one morning. He testified that S.A. appeared to have two missing front teeth, a black eye, and bruises on her arms and legs. She was extremely upset and scared. S.A. asked for help, saying she had been raped. Jones stated that, after going back to sleep for awhile, he took S.A. to her fiancé's house. After subjecting Jones to a perfunctory cross-examination, Ross' trial counsel indicated that he had no further questions at that time but wanted Jones held under subpoena for possible testimony during the defense case. The trial court told Jones that he was still under subpoena and that he should remain available to testify. On November 4, 1987, six days after Jones testified as a prosecution witness, the state rested its case-in-chief. Ross' counsel then requested an overnight continuance, indicating that the delay was necessary because he had been unable to locate Jones, whom he now wanted to call as a defense witness. The trial court granted the continuance and adjourned court until the next day. On the morning of November 5, Ross' counsel notified the court that Jones was still missing. An Alaska State Trooper who was in the courtroom described the efforts that the troopers had made to locate Jones since the court recessed the previous day. Those efforts included checking Jones' last known residence and all of the downtown Anchorage locations that he frequented, as well as contacting various Anchorage police officers who were acquainted with Jones and other individuals who knew him. All efforts had been unavailing. The troopers also followed up on a lead that Jones might have gone to Bethel; they transmitted a facsimile of Jones' subpoena to the Bethel Police Department and spoke by telephone to the Bethel Chief of Police, requesting assistance. The Bethel Police had been unable to locate Jones. Ross' counsel then requested an additional continuance until November 9. He revealed that he expected Jones to impeach S.A.'s version of events. According to Ross' counsel, Jones would testify that, when S.A. came to his house, she appeared to have been drinking and did not say who had raped her. Ross' counsel also expected Jones to testify that, at some point before Jones took S.A. to her fiancé's house, Jones and she had sexual intercourse together. Although the prosecution expressed skepticism concerning the materiality of Jones' proposed testimony, the trial court granted Ross a further continuance until November 9. On that day, however, Jones was still missing. Troopers and police had been unable to locate him or develop any significant leads as to his whereabouts, despite exhaustive efforts. Ross' counsel acknowledged that the defense had no idea where Jones might be or when he might be found. Ross requested an additional continuance of several days. Alternatively, Ross moved for a mistrial due to Jones' unavailability. In support of these motions, counsel elaborated on the offer of proof that he had originally made, indicating that the offer was based on statements Jones had made to a defense investigator. Ross' counsel asserted that the proposed testimony would be relevant to discredit S.A.'s testimony that she was not intoxicated when she came to Jones' house and that she told Jones who had raped her. Ross' counsel also asserted the relevance of Jones' claim that he had sexual intercourse with S.A. at his house. According to counsel, this evidence might explain the presence of semen on S.A.'s person; counsel also asserted that S.A.'s claim of abduction and rape might seem less plausible to the jury if S.A. were shown to have engaged in consensual sex a short time after the alleged incident. Judge Michalski denied Ross' motion for an additional continuance and his alternative motion for a mistrial. In so doing, the judge noted the exhaustive efforts that had been made to locate Jones, the lack of any information concerning Jones' current whereabouts, and the inability to predict when Jones might be located. Judge Mi-chalski found that further delay might result in the need to declare a mistrial. Additionally, the judge noted that Jones' proposed testimony was, at best, impeachment evidence. Based on his observation of Jones' demeanor as a prosecution witness, Judge Michalski commented that his testimony was unlikely to carry much weight with the jury, in any event. Judge Michal-ski concluded that, under the circumstances, additional delay was unwarranted; the judge further found a mistrial inappropriate, since the uncertainty about Jones' whereabouts made it impossible to predict that Jones would be available to testify for the defense, even in the event of a retrial. On appeal, Ross contends that the trial court erred in refusing to grant a further continuance or a mistrial. The trial court is vested with broad discretion to determine whether a mid-trial continuance should be granted in order to allow a party to secure the testimony of an absent witness. See, e.g., Williams v. State, 614 P.2d 1384, 1386 (Alaska 1980). In Salazar v. State, 559 P.2d 66 (Alaska 1976), the Alaska Supreme Court articulated seven criteria to guide the court in the exercise of that discretion: (1) whether the testimony is material to the case; (2) whether the testimony can be elicited from another source; (3) whether the testimony is cumulative; (4) probability of securing the absent witness in a reasonable time; (5) whether the requesting party was diligent and acted in good faith; (6) the inconvenience to the court and/or others; ' (7) the likelihood that the testimony would have affected the jury's verdict. Id. at 72. Under the Salazar criteria, the threshold question in this case is the materiality of Jones' proposed testimony. Jones would purportedly have testified that S.A. appeared to have been drinking and did not identify her assailant. Although this testimony would have tended to contradict S.A.'s trial testimony, thereby impeaching her credibility, the subject matter of the impeachment was essentially collateral to the principal issues raised in the case: whether S.A. had been abducted and raped and whether Ross was the person who had committed these offenses. As extrinsic evidence offered to impeach a witness on a collateral matter, the proffered testimony would have been of minimal materiality. Jones would also purportedly have testified that S.A. had consensual sex with him after coming to his house. Assuming that Alaska's rape shield statute would not have barred the admission of this testimony for the purpose of establishing an alternative source for the semen discovered on S.A. during her medical examination, the materiality of this aspect of Jones' testimony would have been greatly diminished by medical evidence indicating that the semen found on S.A. was compatible with Ross' semen. Ross failed to offer any comparable medical evidence establishing Jones as a possible source of the semen. Moreover, the state presented strong physical evidence (including S.A.'s broken tooth) corroborating S.A.'s version of the incident, and established that S.A. had identified Ross from a photographic lineup. Under the circumstances, the trial court could properly regard the materiality of Jones' proposed testimony as being limited, at best. The second and third Salazar criteria have no significant bearing here, since both assume the materiality of the unavailable evidence: the fact that Jones' proposed testimony was not cumulative and was unavailable from alternative sources is inconsequential in light of its low materiality. In contrast, the fourth Salazar criterion is of critical importance. Even if Jones' testimony had only slight probative value, a brief delay might have been warranted had there been some assurance of Jones' availability. Here, however, Jones' whereabouts remained completely unknown despite concerted efforts to locate him, and no significant leads had been developed. Under the circumstances, the trial court, having already granted two continuances for a total of five days' delay, had no reason to expect that any further delay— no matter how long or short — would have resolved the problem. All other things being equal, the fifth Salazar criterion — the diligence and good faith of the moving party — would tend to favor Ross in this case, since Judge Michal-ski expressly ordered Jones to remain available as a possible defense witness, and since Jones apparently violated the court's order. Even so, it is worth mentioning that Ross had the opportunity to elicit the proffered evidence during his cross-examination of Jones, but apparently elected not to do so for tactical reasons. Salazar's sixth criterion focuses on inconvenience to the court and others. In the present case, Judge Michalski expressed the well-grounded fear that additional delay would create a substantial risk of problems that might necessitate a mistrial. When balanced against the speculative prospects for locating Jones, this risk was certainly not insubstantial. Finally Salazar requires consideration of the likelihood that Jones' testimony would have affected Ross' verdict. In large measure, the significance of this factor is governed by our conclusion concerning the materiality of the disputed testimony. The relatively low probative value of the proffered evidence, coupled with the strength of the physical evidence corroborating S.A.'s testimony, renders it highly unlikely that Jones' absence affected the outcome of Ross' trial, particularly in light of Judge Michalski's impression — based on his observation of Jones as a prosecution witness— that the jury was unlikely to give his testimony much credence. In summary, our application of the Salazar criteria to this case convinces us that Judge Michalski did not abuse his discretion in denying Ross' third motion for a continuance. Ross next challenges his sentence as excessive. At the time of his current offenses, Ross was 35 years of age. Ross had one prior felony: a 1982 conviction for first-degree sexual assault that involved circumstances similar to the assaults Ross committed against V.B. and S.A. For the earlier crime, Ross received an eight-year term; he was on parole for that offense when he committed the current offenses. For the incident involving S.A., Ross was convicted of kidnapping and five counts of first-degree sexual assault. Kidnapping, an unclassified felony, is punishable by a maximum term of 99 years and a minimum of five; the crime is not subject to presumptive sentencing. AS 11.41.300(c); AS 12.55.125(b). First-degree sexual assault, also an unclassified felony, is punishable by a maximum of thirty years; as a second felony offender, Ross was subject to presumptive terms of fifteen years for each of his first-degree sexual assault convictions. AS 11.41.410(b); AS 12.55.125(i)(3). For the incident involving V.B., Ross was convicted of one count of second-degree sexual assault, a class B felony. He was subject to a four-year presumptive term for that offense. AS 11.41.420(b); AS 12.55.-125(d). Before imposing sentence, Judge Michal-ski found one aggravating factor applicable to all of the charges as to which Ross was subject to presumptive sentencing: that Ross was on parole when he committed the offenses. AS 12.55.155(c)(20). As to two of the first-degree sexual assault convictions, Judge Michalski found an additional aggravating factor: that Ross' conduct involved deliberate cruelty. AS 12.55.-155(c)(2). Additionally, although presumptive sentencing did not formally apply to the charge, Judge Michalski found Ross' kidnapping to involve conduct among the most serious included in the definition of the offense. AS 12.55.155(c)(10). In imposing sentence, Judge Michalski concluded that Ross was an extremely dangerous offender who had little chance for rehabilitation. The judge thus stressed the need to isolate Ross for the protection of the community. Judge Michalski sentenced Ross to fifty years for kidnapping. The judge imposed fifteen years for each count of first-degree sexual assault, making the two counts involving anal penetration concurrent to each other and the three counts involving vaginal penetration concurrent to each other, but ordering each group of concurrent sentences to be consecutive to the other group, as well as to the kidnapping. This yielded a total of eighty years' imprisonment for the offenses involving S.A. For the second-degree sexual assault conviction involving Y.B., Judge Michalski imposed an additional consecutive term of four years. Relying on Ross' dangerousness and the need to isolate him for the maximum possible time, Judge Michalski ordered that Ross' eligibility for discretionary parole be restricted on the kidnapping charge. Ross thus received a composite term of eighty-four years without possibility of parole. On appeal, Ross does not challenge the aggravating factors Judge Michalski found applicable to his case. He argues, instead, that a composite term of 84 years is excessive for a second felony offender convicted of kidnapping and sexual assault. In response, the state argues that Ross' sentence is justified in light of his background and the seriousness of his current crimes. In our view, however, the sentencing court's findings are inadequate to allow resolution of this issue on appeal. This court recently had occasion to conduct an extensive review of past sentencing decisions involving offenders simultaneously convicted of rape — or first-degree sexual assault — and kidnapping. See Williams v. State, 800 P.2d 955 (Alaska App.1990), modified on reconsideration, 809 P.2d 931 (Alaska App.1991). Our review indicated "a fair degree of uniformity" in sentencing in such cases. Williams, 800 P.2d at 958. We noted that the cases fell into three benchmark categories. The initial category consisted of first felony offenders. For offenders in this category, we observed that sentences exceeding twenty years of unsuspended time had rarely been approved. Id. at 959. The second benchmark category included kidnap/rape cases involving offenders who had one or more prior felony convictions but whose criminal history was not sufficiently extensive to place them in the dangerous offender category. As to this category, we found that "precedents firmly establish thirty years as the maximum composite sentence that should ordinarily be imposed...." Id. In the third benchmark category, we found "a handful of decisions" approving composite sentences of more than thirty years of un-suspended time; we observed that "[without exception, those cases have involved kidnappings of prolonged duration or offenders whose prior criminal histories established them as persistent, violent criminals." Id. at 960. In a later opinion on reconsideration in Williams, we emphasized that these three benchmarks do not represent immutable sentencing limits: "Our benchmarks in Williams and other cases are not intended to be inflexible rules confining the permissible range of a sentence in a given case; rather, they are meant to act as historically-based starting points for individualized analysis_" Williams v. State, 809 P.2d 931, 933 (Alaska App.1991). Indeed, shortly after our initial decision in Williams, we found departure from the benchmarks justified, approving a forty-year composite sentence for a second felony offender in a particularly serious kidnap/rape case that involved three separate incidents and three different victims. See Yearty v. State, 805 P.2d 987, 996-97 (Alaska App.1991). Our opinion on reconsideration in Williams nevertheless reaffirmed the fundamental need for consideration of historical sentencing practices — as reflected in benchmark sentences — in the sentencing process; we noted that this need springs from the legislature's concern with promoting sentencing uniformity and eliminating unjustified disparity — a concern the legislature expressed with "unmistakable clarity" in AS 12.55.005(1), which requires the sentencing court to consider "the seriousness of the defendant's present offense in relation to other offenses." Williams, 809 P.2d at 934. We concluded: At a minimum, . the principle of reasonable sentencing uniformity requires a sentencing judge who decides that an offender deserves a sentence which is significantly different from sentences previously given to similarly situated offenders to expressly find some legitimate basis for the difference — some basis related to 'legally relevant sentencing criteria.' That basis should be spelled out on the sentencing record, so that the defendant and a reviewing court can understand the reasons for the disparity. Id. at 935 (citation omitted). In the present case, Ross' composite sentence of eighty-four years without eligibility for parole vastly exceeds the second felony offender benchmark and, indeed, substantially exceeds even the sentences imposed in some of the cases falling within Williams' third benchmark category. Unlike other offenders in Williams' third benchmark category, Ross' criminal history — consisting of a misdemeanor conviction for driving while intoxicated and a single prior felony, albeit for a similar crime — is not so extensive as to qualify him as an habitual offender, see, e.g., Contreras v. State, 767 P.2d 1169, 1175 (Alaska App.1989), and does not appear to "establish an ingrained, compulsive criminal pattern" of violent misconduct. Schuenemann v. State, 781 P.2d 1005, 1009 (Alaska App.1989). And unlike other cases in the third benchmark category, Ross' kidnapping did not entail an extraordinarily lengthy abduction. See, e.g., Morrell v. State, 575 P.2d 1200, 1202-03 (Alaska 1978) (virtual enslavement of victim with repeated sexual assaults over eight days). Despite the seemingly unprecedented length of the composite term he imposed in this case, Judge Michalski failed to discuss the seriousness of Ross' conduct in relation to other similarly situated offenders. Although the judge gave general consideration to the sentencing criteria specified in State v. Chaney, 477 P.2d 441, 444 (Alaska 1970), he made no findings to explain the apparent disparity between Ross' composite sentence and sentences previously given to similarly situated offenders. It seems to us that the aggravated nature of Ross' conduct and the disturbing similarity of his prior sexual assault make his case at least comparable to, and perhaps more serious than, Yearty v. State. We are thus inclined to think that a sentence exceeding Williams' second category benchmark of thirty years would be justified here, as was the case in Yearty. On the other hand, given Ross' limited criminal history, we are skeptical that a sentence placing Ross in the third benchmark category could be justified, particularly in light of the sketchy psychiatric information contained in the sentencing record. At this juncture, however, it would be premature for us to determine whether the sentence imposed below was excessive. DeGross v. State, 768 P.2d 134, 138 (Alaska App.1989). "A reviewing court cannot determine the appropriateness of a sentence where the sentencing court has failed to make adequate findings.... " State v. Bumpus, 820 P.2d 298, 305 (Alaska 1991). Here, the sentencing court's failure to make express findings concerning the seriousness of Ross' offenses in relation to other similar cases and the court's consequent failure to explain the apparent disparity of the sentence it elected to impose preclude meaningful appellate review. We must therefore remand this case for resen-tencing in light of Williams. On remand, the sentencing court should make express findings in conformity herewith. The convictions are AFFIRMED. The sentences are VACATED, and this case is REMANDED for resentencing. MANNHEIMER, J., not participating. . After being found guilty by a jury of the charges relating to S.A., Ross entered a plea of no contest to a reduced charge of second-degree sexual assault for the incident involving V.B.; in exchange for the plea, the state dismissed the original charges. . See AS 12.45.045. . Compare, e.g., People v. Martinez, 634 P.2d 26 (Colo.1981), with State v. Williams, 773 P.2d 1368 (Utah 1989). . Indeed, the record contains nothing to suggest that Jones' whereabouts were in fact discovered at any time prior to Ross' sentencing, while jurisdiction of his case remained in the superior court and that court retained the power to grant a new trial. Similarly, there is nothing in the record to indicate that Jones has been located during the pendency of Ross' appeal or that he would be available to testify in the event of a retrial. . Nor does Ross' conduct appear to have exposed his victims to the type of imminent, life-threatening danger that justified an exceptionally severe first-offense sentence of thirty years in Wilson v. State, 670 P.2d 1149, 1154 (Alaska App.1983). See also Williams v. State, 800 P.2d at 958. . The record contains a 1981 psychiatric evaluation prepared in connection with Ross' prior sexual assault case. The evaluation appears to have been based on an interview by a social worker to determine Ross' personal history, coupled with a single psychiatric interview. There is no indication that Ross was subjected to any psychological testing. Under the heading "diagnosis," the psychiatric evaluation lists alcohol abuse and antisocial personality disorder. Although the report discusses Ross' alcohol abuse problem extensively and makes specific recommendations for treatment thereof, it is virtually silent concerning the basis for diagnosing an antisocial personality disorder, the nature of the disorder, or its significance in terms of Ross' overall conduct. In his sentencing remarks, Judge Michalski did not make any specific reference to the psychiatric evaluation. On appeal, however, the state notes that Ross has been diagnosed as having an antisocial personality disorder and, apparently on this basis, argues that he has psychological problems justifying skepticism concerning his prospects for rehabilitation. In our view, however, it is questionable whether any significance should properly be ascribed to the psychiatric report's single, cryptic reference to a diagnosis of antisocial personality disorder.

10373686

Wayne E. GEORGE, Appellant, v. STATE of Alaska, Appellee

George v. State

1992-08-28

No. A-3886

960

964

836 P.2d 960

836

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Wayne E. GEORGE, Appellant, v. STATE of Alaska, Appellee.

Wayne E. GEORGE, Appellant, v. STATE of Alaska, Appellee. No. A-3886. Court of Appeals of Alaska. Aug. 28, 1992. Gordon G. Goodman, Asst. Public Advocate and Brant G. McGee, Public Advocate, 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.

2106

13317

OPINION MANNHEIMER, Judge. Wayne E. George was convicted of first-degree murder, AS 11.41.100(a)(1), first-degree robbery, AS 11.41.500(a)(3), and second-degree theft, AS 11.46.130(a)(3), following a jury trial in the Ketchikan superior court. For these crimes, George received a composite sentence of 106 years' imprisonment. George appeals both his convictions and his sentence. We affirm. During the evening and early morning of June 29-30, 1989, George and three friends were out drinking in Ketchikan. They wandered throughout the town and ended up behind Talbot's Building Supply. There, a fisherman named Michael Tarbet joined them. George and his friends shared some of their tequila with Tarbet, and Tarbet shared some marijuana with George and the others. Then George began to kick and punch Tarbet, not stopping until Tarbet was semi-conscious. George took $11.00 from Tarbet's wallet and left Tarbet lying on the dock. A short time later, one of George's companions urged him to go back to "do the job right and finish him off." George returned to the dock where Tarbet lay, then he rolled Tarbet into the water and watched him sink. One month later, on July 21, the Alaska State Trooper Tactical Diving Unit discovered Tarbet's body. That same day, George was arrested in nearby Metlakatla for a liquor law violation. Metlakatla Police Officer Larry Lower brought George to the Metlakatla Police Department, where he read George his Miranda rights and placed him in a cell. George paced back and forth in his cell, repeatedly saying that he needed to talk to someone. Officer Lower called George's pastor at the Metlakatla church, Reverend Blewett, asking him to come to the police department. After placing this call, Lower left to return to his patrol duties. George spoke with his pastor for ten to fifteen minutes. After Reverend Blewett left, George asked the jailer, Officer Little-field, whether Littlefield had heard about the recovery of a body in Ketchikan. Lit-tlefield replied that he had not heard about it. George then told Littlefield that he was the one who had pushed that person over the dock, and that he wanted to speak to Officer Lower. Littlefield summoned Lower back to the police department. Lower immediately contacted the Alaska State Troopers to verify that a body had been found in Ketchikan. The troopers confirmed that they had found a body; they gave Lower a description of Tarbet and the place where he had been found. Lower then returned to George, re-read him the Miranda rights, and obtained George's written waiver of those rights. George confessed to Lower that he had killed the person recently found in Ketchi- kan; George described Tarbet and the details of how he had met his death. Lower did not record this interview because his tape recorder was broken. Lower contacted the Ketchikan Police Department and informed them of George's confession. Ketchikan Police Sergeant Lee Meyer flew to Metlakatla the next day to interview George. Sergeant Meyer again read George his Miranda rights, and George again signed a written waiver of his rights. George then repeated much of what he had told Littlefield and Lower. However, George deviated from his prior statements in one crucial respect: he told Meyer that he had not pushed Tar-bet into the water, but rather had hidden him on the dock behind some pallets. Following his indictment by a Ketchikan grand jury, George moved to suppress his statements to Littlefield, Lower, and Meyer. George argued that his initial statement to Littlefield should be suppressed because he had not been advised of his Miranda rights. He argued that his follow-up statement to Officer Lower should be suppressed because Lower had violated the rule announced in Stephan v. State, 711 P.2d 1156 (Alaska 1985), by failing to tape record his interview with George. Superior Court Judge Thomas E. Schulz found that George had been advised of his Miranda rights shortly after his arrest. Moreover, Judge Schulz ruled that George's statements to Littlefield were volunteered, not the product of custodial interrogation; thus, even if George had received no Miranda warning, his statements to Littlefield would still be admissible. George has not appealed this ruling. With regard to George's statement to Lower, Judge Schulz ruled that the taping requirement announced in Stephan did not apply to the Metlakatla police, since Metla-katla is an Indian reservation outside the normal jurisdiction of the Alaska police. Judge Schulz also ruled that, if the taping requirement applied to the Metlakatla police, the taping requirement was excused because the testimony at the suppression hearing showed that the Metlakatla police's tape recorder was broken when Lower interviewed George. Finally, Judge Schulz ruled that the Stephan rule did not apply to George's case because George had failed to assert that any impropriety occurred during his interview with Lower, apart from Lower's failure to tape the interview. On appeal, George renews his argument that his statements to Littlefield and Lower should have been suppressed for violation of the Stephan taping rule. Both George and the State have devoted considerable energy to arguing whether Alaska law governing police procedures (and, specifically, the Stephan rule) applies to the Metlakatla police. We find it unnecessary to resolve this issue. The Stephan rule applies only to custodial interrogations. Stephan, 711 P.2d at 1162. Judge Schulz found, and George does not dispute, that George's statements to Littlefield were not the product of custodial interrogation. See Rhode Island v. Innis, 446 U.S. 291, 300-02, 100 S.Ct. 1682, 1689-1690, 64 L.Ed.2d 297 (1980). Thus, the admission of George's statements to Littlefield does not violate Stephan. With regard to George's statements to Lower, Judge Schulz found that the Met-lakatla police did not have a functioning tape recorder. This fact excuses non-compliance with the Stephan rule. Stephan, 711 P.2d at 1164. More importantly, Stephan does not prohibit admission of a defendant's custodial statement "if no testimony is presented that the statement is inaccurate or was obtained improperly, apart from violation of the [taping] rule." Id. at 1165. On appeal, George does not contend that, apart from Lower's failure to tape the interview, there was any impropriety in his interview with Lower. Thus, George's statements to Lower are admissible under Stephan. We turn now to George's sentencing arguments. Judge Schulz sentenced George to a term of 99 years' imprisonment for his first-degree murder conviction and a consecutive term of 7 years' imprisonment for his first-degree robbery conviction. (Judge Schulz imposed an additional 2-year sen tence for the second-degree theft, but he made this sentence concurrent with the robbery sentence.) Thus, George's total sentence is 106 years' imprisonment. George argues that his 99-year sentence for first-degree murder is excessive. In Riley v. State, this court rejected a proposed benchmark sentence of 60 years' imprisonment for first-degree murder, noting that Alaska decisions "have consistently approved the imposition of maximum sentences" for this offense. 720 P.2d 951, 952 (Alaska App.1986). Judge Schulz found that George's act of killing Tarbet was premeditated and deliberate. The homicide thus would have qualified as first-degree murder even under the more stringent, common-law definition found in Alaska's former criminal code. Riley, 720 P.2d at 952 n. 1. George's conduct therefore presents a particularly serious form of first-degree murder. Moreover, Judge Schulz found that, when George returned to kill Tarbet, George knew that Tarbet was particularly vulnerable due to his intoxication and the effects of George's previous attack. If first-degree murder were governed by presumptive sentencing, this would be an aggravating factor under AS 12.55.155(c)(5). (Judge Schulz found that the first-degree robbery was aggravated by this factor.) In addition, George's psychological evaluations indicated that he suffered from an antisocial personality disorder with aggressive and paranoid features, a type of disorder that is difficult to treat. Judge Schulz's remarks at sentencing show that he analyzed George's offense under the criteria established in State v. Chaney, 477 P.2d 441 (Alaska 1970), and concluded that a maximum sentence was justified because of the seriousness of George's crime, the need to reaffirm social values, George's poor potential for rehabilitation, and the need to isolate George to protect the public from further acts of violence. We do not find George's 99-year sentence to be clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). George also argues that, even if his murder sentence is justified, Judge Schulz should not have imposed an additional 7 years' imprisonment for the robbery. Judge Schulz decided to impose consecutive sentences for the robbery and the murder because these crimes involved distinct societal interests and because, under the facts of this case, the robbery and the murder were distinct events. After committing the robbery and leaving Tarbet incapacitated, George walked away from the dock; he returned later for the specific purpose of killing the helpless Tarbet. Judge Schulz justifiably viewed the robbery and the murder as two separate crimes deserving separate punishments. See Cooper v. State, 595 P.2d 648 (Alaska 1979) (one assault on three victims; sentence greater than the maximum term for one count of assault); Preston v. State, 583 P.2d 787 (Alaska 1978) (unrelated crimes; sentence greater than the maximum term for the more serious crime); Farmer v. State, 746 P.2d 1300 (Alaska App.1987) (one assault on three victims plus unrelated crimes; sentence greater than the most severe presumptive term); Jones v. State, 744 P.2d 410 (Alaska App.1987) (one assault on three people; sentence greater than the most severe presumptive term). Judge Schulz recognized, however, that Alaska law restricts a sentencing judge's authority to impose consecutive sentences that exceed the maximum sentence permitted for the defendant's most serious crime: THE COURT: [The fact that the robbery and the murder were distinct crimes] does not necessarily mean that the sentences should exceed . 99 years, because the court has said in a number of cases that ., in cases that involve multiple felony convictions, . you start off with the presumption that you sentence on the most serious felony and then only exceed that [maximum sentence] when you can make the finding that the defendant needs to be incarcerated — isolated to protect the public. Here, Judge Schulz is referring to Mutschler v. State, 560 P.2d 377, 381 (Alaska 1977), and its progeny. See, for example, Ross v. State, 808 P.2d 290, 292-93 (Alaska App.1991). Having recognized the applicability of this case law, Judge Schulz premised his decision to sentence George to a total of 106 years on specific findings that George was a dangerous offender who had committed a particularly serious type of first-degree murder, that George did not have a favorable outlook for rehabilitation, and that therefore George needed to be isolated for more than 99 years to protect the pub-lie. This decision was not clearly mistaken. McClain, 519 P.2d at 813-14. The judgement of the superior court is AFFIRMED. . George relies on language from Thompson v. State, 768 P.2d 127 (Alaska App.1989), where this court indicated in dictum that a sentence exceeding 99 years' imprisonment should not be affirmed unless the trial court has found that, in order to protect the public, "the defendant must spend the rest of his life in prison without any possibility of parole". 768 P.2d at 133-34. George interprets this language to mean that sentencing judges must make a finding over and above the requirements of Mutschler v. State, 560 P.2d 377, 381 (Alaska 1977). To the extent that such an interpretation is possible, it was unintended. Thompson cited two cases to support the "life without parole" language: Nukapigak v. State, 663 P.2d 943 (Alaska 1983), and Hastings v. State, 736 P.2d 1157 (Alaska App.1987). Both cases involved defendants who were sentenced to several consecutive 99-year terms and who, therefore, were clearly going to spend the rest of their lives in prison without ever becoming eligible to apply for parole. AS 33.16.100(d). However, George (like the defendant in Thompson) received a total sentence of slightly more than 100 years, with normal eligibility for parole. George was 21 years old at the time of his sentencing, and thus he will be eligible for parole well before he turns 60. AS 33.16.090(c) and AS 33.16.100(c)-(d). Judge Schulz was not required to find that a sentence of life without parole was necessary to protect the public since George did not receive such a sentence.

10372512

Walter A. JOHNSON, Sammy Johnson, Harold Gray, Russell Bogren, Myron Johnson, Eli Hanlon, Jr., Vernon Hanson, Jerry Milton, Clarence Milton, Jr., Daryl James, Alex James, Sheldon James, Cameron James, Billy Williams, and Bill Milton, Appellants/Cross-Appellees, v. ALASKA STATE DEPARTMENT OF FISH & GAME, Alaska Board of Fisheries, State of Alaska, Appellees/Cross-Appellants

Johnson v. Alaska State Department of Fish & Game

1991-11-29

Nos. S-3000, S-3001

896

916

836 P.2d 896

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.

Walter A. JOHNSON, Sammy Johnson, Harold Gray, Russell Bogren, Myron Johnson, Eli Hanlon, Jr., Vernon Hanson, Jerry Milton, Clarence Milton, Jr., Daryl James, Alex James, Sheldon James, Cameron James, Billy Williams, and Bill Milton, Appellants/Cross-Appellees, v. ALASKA STATE DEPARTMENT OF FISH & GAME, Alaska Board of Fisheries, State of Alaska, Appellees/Cross-Appellants.

Walter A. JOHNSON, Sammy Johnson, Harold Gray, Russell Bogren, Myron Johnson, Eli Hanlon, Jr., Vernon Hanson, Jerry Milton, Clarence Milton, Jr., Daryl James, Alex James, Sheldon James, Cameron James, Billy Williams, and Bill Milton, Appellants/Cross-Appellees, v. ALASKA STATE DEPARTMENT OF FISH & GAME, Alaska Board of Fisheries, State of Alaska, Appellees/Cross-Appellants. Nos. S-3000, S-3001. Supreme Court of Alaska. Nov. 29, 1991. Arthur S. Robinson, Robinson, Beiswen-ger & Ehrhardt, Soldotna, for appellants/cross-appellees. Tricia Collins, Juneau, for appel-lees/ cross-appellants. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

11841

74266

OPINION BURKE, Justice. The appellants, all Alaska Native fishermen, began their action in superior court alleging that emergency orders issued by the Alaska Department of Fish and Game (Department) and regulations promulgated by the Alaska Board of Fisheries (Board) discriminated against them because of their race. After a bench trial, the superior court entered judgment against the state, finding that the Department and Board had violated AS 18.80, the Alaska Human Rights Act. The superior court, however, awarded the plaintiffs only declaratory relief. The plaintiffs have appealed three aspects of the superior court's decision: (1) the court's finding that they did not prove compensatory damages with reasonable certainty; (2) the court's ruling that punitive damages are not available against the state for violations of AS 18.80, the Alaska Human Rights Act; and (3) the superior court's refusal to accord issue preclusive effect to the findings and conclusions in an order of the Alaska Human Rights Commission. We reverse the superior court's decision on compensatory damages and remand for a redetermination of damages on the present record. We affirm the court's ruling on punitive damages. We reverse the court's decision on issue preclusion and modify the judgment accordingly. Finally, the superior court decided that sovereign immunity does not bar actions for compensatory damages against the state under AS 18.80. The state appeals that decision. We affirm. I A Alaska Native fishermen from the Tlingit community of Yakutat, in southeast Alaska, fish for salmon in the rivers of their region and in the ocean surf. At the mouths of the Alsek and East Alsek rivers, fifty miles south of Yakutat, surf fishing is especially hazardous. As a result, the inriver sites on the Alsek and East Alsek are distinctly preferable. The Yakutat fishermen, however, rarely venture far upstream on either of these rivers. On the Alsek and East Alsek, the better inriver sites are the territory of white fishermen. Several factors contribute to the racial division at the Alsek and East Alsek, but the most important of these is the territorial hostility shown by some white fishermen. Evidence indicates that the white fishermen began driving the Native fishermen downstream early in this century. By 1931, the Native fishermen rarely fished further upstream than the rivers' mouths. There is no doubt that over the years the inriver fishermen have resorted to violence, including use of firearms, to maintain control of the inriver sites. Two agencies share the main responsibility for managing the Alsek and East Alsek salmon fisheries: the Department of Fish and Game and the Board of Fisheries. The primary concern of both agencies is insuring that sufficient numbers of migrating salmon escape the gear of fishermen and continue on to spawn each year. Measuring escapement on the Alsek River presents especially difficult problems. To begin with, the Alsek is well over one hundred miles long, but only the last twenty miles flows within Alaska. The remainder of the river and its headwaters are in Canada. Additionally, the Alsek water in Alaska is heavy with silt, and early estimates of escaping salmon are often inaccurate. By contrast, escapement in the East Alsek River is much easier to measure, because the river is only three and one-half miles long, clear and entirely within Alaska. Not surprisingly, the state employs different management techniques at each of the rivers: Regulators may respond quickly to local indications of poor escapement on the East Alsek, but they generally must wait until definitive data on total escapement arrives from Canada at the end of the fishing seasons before they can adjust limits on the Alsek. The Board is a policy-making agency; it promulgates regulations that, among other things, designate areas and times for fishing, size and type of gear, and minimum distances between units of gear. The Department is more of a policy-implementing agency, providing specific, on-site management of salmon stocks during the fishing season. For example, the Department conducts ongoing studies of salmon escapement during fishing season, and, to protect the salmon stocks, may issue emergency orders that restrict the area and the time within which fishing may occur at any given fishery. Several Department officials share the power to issue such orders in any particular fishing area. The hierarchy of Department officials with this power in the Yakutat area includes a Regional Supervisor, a Finfish Management Coordinator for Southeastern Alaska, and an Area Management Biologist for the Juneau Management Area. These officials are based in Juneau. The area management biologist occasionally visits the Yakutat area during fishing season. Otherwise, for on-site information and recommendations regarding regulation of the Yakutat fisheries, the Department officials in Juneau are mainly dependent upon a fourth official: the person who has been fishery technician in the Yakutat area since 1961, Alex Brogle. Throughout his tenure in Yakutat, Alex Brogle openly despised the Yakutat surf fishermen. The superior court concluded after trying this case: Brogle displayed a reservation mentality that led him to the view that the Yakutat natives should stay in fisheries close to town and not venture to the Alsek and East rivers where they would interfere with the commercial harvesting activities of people for whom Brogle had higher regard. Unquestionably Brogle was not disposed to manage the Alsek and East river fisheries in such a way as to preserve, to the extent possible, equality of opportunity to catch fish. The "people for whom Brogle had higher regard," of course, were the white, inriver fishermen. Brogle's supervisors at the Department clearly knew of Brogle's racist and discriminatory bent; Brogle's weekly and seasonal reports to Juneau typically contained racist slurs, especially slurs attacking the Yaku-tat natives. Nonetheless, by all accounts, Brogle exercised significant influence over the Department's management of the Al-sek and East Alsek rivers. Brogle's influence was especially apparent in the Department's response to the crisis in the Alsek fishery that followed the 1978 and 1979 salmon runs. In 1978 and 1979, the number of persons fishing in the surf and at inriver sites on the Alsek and East Alsek increased dramatically. For example, eighteen people fished the Alsek in 1977, twenty-nine in 1978, and thirty-eight in 1979. Not surprisingly, 1979 saw a record catch of red salmon in the area. Five years earlier, in the 1974 season, the number of fishermen in the area had reached a previous all-time high. This suggested that there might be a repercussive effect in 1979, among salmon returning to their spawning waters five years after hatching there. Nonetheless, initial Department measurements showed that an acceptably large number of fish were escaping in 1979. Later, however, data from Canada proved that the Department had been wrong in respect to the Alsek River; final figures showed that the 1979 escapement on the Alsek was "disastrously low." By the time the Department learned of its error, of course, the regulatory agencies could only respond by regulating the 1980 season on the Alsek. Alex Brogle recommended to his supervisors that the best response to the emergency would be to close the surf fishery at the Alsek, to limit fishing inriver to two days per week, and to make adjustments as necessary during the season. He justified his solution by arguing that the recent increase in surf fishing was a primary cause of the problem. Brogle's recommendations became public on May 7, 1980, when two members of the Board of Fisheries held an open meeting in Yakutat. Four Department officials attended the meeting, including Paul Larson, the Finfish Management Coordinator for Southeast Alaska, and Bro-gle. Some fifteen to twenty local fishermen and some members of the Yakutat Advisory Board also attended the meeting. Brogle explained his proposal to the assembly. The Yakutat residents countered with a proposal that included reduced gear size and limited open surf fishing to within one-half mile of the river mouths. The Department officials admitted that either their solution or a solution similar to the local residents' counter-proposal probably would work. Evidence shows, however, that Department officials disfavored the gear reduction proposal in part because it would protect the native surf fishermen at the expense of the inriver white fishermen. As the Area Management Biologist Don Ingledue wrote, one week later, in a memorandum to another Department official: The [Department] staffs position is that either management approach would be acceptable from a resource conservation standpoint. A regulatory emergency does not exist that would je[o]p[a]rdize the resource since we do have emergency order powers limiting time and area. However, any adjustments in gear size would have to be instituted under the Emergency Regulatory Authority of the Commissioner and the Board of Fisheries. The gear reduction approach would benefit the local residents more than the management plan originally proposed by the staff. Again it should be pointed out that only local Yakutat fishermen were present at the meeting and many Alsek River fisherman had no knowledge of the meeting since they reside out of state and community. Ingledue sent copies of this memorandum to Larson and Brogle. Exactly two weeks after Ingledue sent his memo, on May 27, 1980, Larson issued Emergency Order No. l-Y-1-80, which banned surf fishing in the area that encompassed the Alsek and East Alsek river mouths and which limited inriver fishing to two days per week. The order took effect on June 2, 1980, and ran through June 22, 1980, when Ingledue issued Emergency Order No. l-Y-2-80, which lifted the ban on surf fishing. The new order explained: "The early portion of sockeye [red salmon] run is now past and effort in the Alsek- East River area has declined.... Shifting of the river mouth sand bar has reduced the past efficiency of the net gear in [the surf] area and the closure is no longer necessary." In late 1980, the Board of Fisheries adopted the surf closure at the Alsek and East Alsek rivers as part of a permanent regulation affecting "all rivers south of the Dangerous River." The new regulation also limited gear length and reduced the maximum number of allowable nets per fisherman for part of the season. Importantly, the regulation also directed the Department to open, by emergency order, the surf fishery at the East Alsek River during the peak week of the red salmon run. The partial opening of the surf was necessary, in the Board's opinion, to avoid violence between the inriver fishermen and the Ya-kutat native fishermen. According to Larson, the Board's sense of the likelihood of violence was in part due to testimony that the board had heard from surf fishermen who said that, with the surf fishery closed, "they were afraid to go fish in [the Alsek and East Alsek] rivers." Unfortunately, the emergency opening of the East Alsek surf fishery from July 20 to August 9,1981, was interrupted by a fierce storm, which forced surf fishermen to abandon some nineteen nets. Alex Brogle subsequently claimed that the abandoned nets killed and wasted a "tremendous" number of fish. Ultimately, two separate tribunals — the Human Rights Commission and the superior court — both concluded that the storm-tangled, abandoned surf nets had not, in fact, caused much waste of fish. At the time, however, Brogle's claims of waste in 1981 were instrumental in convincing the Department to keep the East Alsek surf fishery closed during the peak period in 1982. On May 27, 1983, the Alaska Human Rights Commission enjoined the Department and the Board of Fisheries "from issuing and/or enforcing any regulation, order, or other official measure closing the surf at the Alsek or East Rivers at times when fishing within these rivers is allowed." On June 19, 1983, the state opened the Alsek and East Alsek surf fisheries. The record indicates that no surf fishermen worked in the Alsek surf in 1983, but that a few did fish in the East Alsek surf that year. B Walter Johnson, one of the surf fishermen, filed a complaint with the Commission on July 7, 1980, alleging that the Department's first emergency order closing the surf fishery discriminated against him and other native surf fishermen on the basis of their race. The state filed an answer in November 1981; substantial discovery followed; and the Commission conducted a hearing in Yakutat on April 19, 1982. The Commission hearing officer, (now Judge) Joan M. Katz, issued a decision on January 21, 1983, in which she concluded that the state "has discriminated against plaintiff in violation of AS 18.80.255(1) [of the Alaska Human Rights Act] and . injunctive relief should issue." The hearing officer specifically found that Alex Brogle's "recommendations formed the basis for official actions," and his racial prejudice against the natives "infected the entire process" of fishery regulation. On May 27, 1983, the three Human Rights Commission members unanimously adopted the hearing officer's proposed decision as a final order. The state did not appeal the Commission's order, as it was entitled to do under AS 18.80.135. Meanwhile, on March 13, 1981, the surf fishermen had filed a complaint in the superior court seeking "an injunction, damages, and other appropriate relief," pursuant to AS 18.80.255, 42 U.S.C. § 1983, and the fourteenth amendment to the federal constitution. In April 1984, after the Commission's order issued in the parallel case, the state filed an amended answer in which it asserted nine affirmative defenses. The most important of these defenses invoked various theories of sovereign immunity, including state immunity from punitive dam ages. The surf fishermen filed an amended complaint on January 2, 1986, adding a reference to the Commission findings, an allegation that surf fishing was "part of the heritage of Yakutat Alaska natives," and a new count based on article I, section 3 of the Alaska Constitution. The surf fishermen next moved for partial summary judgment, arguing that the Commission's final order precluded relit-igation of the state's liability under AS 18.80.255. The state, in turn, moved for summary judgment, arguing that sovereign immunity, state immunity from punitive damages, and state immunity from suit under 42 U.S.C. § 1983 barred the surf fishermen's claims. The superior court denied, without comment, the surf fishermen's motion for partial summary judgment. The superior court also denied part of the state's motion for summary judgment, finding that the state was not immune from suit under the Alaska Civil Rights Act. The superior court, however, granted part of the state's summary judgment motion, holding that the state was immune from liability for punitive damages and that, as a "nonperson," the state was not subject to liability under 42 U.S.C. § 1983. Accordingly, in November 1987, the parties proceeded to a five-week bench trial, before Judge Thomas M. Jahnke, on the remaining issues in the case. On May 3, 1988, Judge Jahnke issued a memorandum of decision in the case. In sum, the superi- or court found that the state's closures of the surf fishery constituted a facially neutral practice that had no disparate impact on the native fishermen because they were still "free to fish all the remaining open waters." On the other hand, the superior court found that a "facially neutral practice that did have a substantial discriminatory impact . was the promulgation of the surf closures and restrictions without creating any mechanisms to resolve the conflicts between inriver and surf fishermen that were certain to occur." The superior court refused to find liability based on implied causes of action under the federal and state constitutions, but did find that the state had violated AS 18.80.255 of the Human Rights Act. The superior court further found that the surf fishermen had failed to show either the existence or extent of lost profit damages. Accordingly, the superior court awarded the surf fishermen only declaratory relief. The surf fishermen have appealed nearly all of the rulings and findings and awards adverse to them in this case except the dismissal of their federal law claims. The state has cross-appealed on several points, most importantly on the superior court's ruling on sovereign immunity. II The superior court determined two questions of law before trial when it ruled on the parties' motions for summary judgment. Both determinations involved pure questions of law, and we review the superior court's decisions on those questions de novo. A Article II, section 21 of the Alaska Constitution provides that "[t]he legisla ture shall establish procedures for suits against the state." In 1966, the legislature amended the Alaska Human Rights Act to include AS 18.80.255, which provides, in relevant part: It is unlawful for the state or any of its political subdivisions (1) to refuse, withhold from or deny to a person any local, state or federal funds, services, goods, facilities, advantages or privileges because of race, religion, sex, color or national origin; . Ch. 79, § 1, SLA 1966. In 1970, the legislature added a new subsection to AS 22.10.-020, the statute that establishes the original jurisdiction of the superior court, to permit actions under AS 18.80 in the superior court: The superior court is the court of original jurisdiction over all causes of action arising under the provisions of AS 18.80_ In an action brought under this subsection, the court may grant relief as to any act, practice or policy of the defendant which is prohibited by AS 18.80_ The court may enjoin any act, practice or policy which is illegal under AS 18.80 . and may order any other relief, including the payment of money, that is appropriate. AS 22.10.020(c), enacted by Ch. 240, § 1, SLA 1970 (currently AS 22.10.020(i)). As the superior court noted when it denied summary judgment on this point, and as the surf fishermen argue on appeal, AS 18.80.255(1) and AS 22.10.020, taken together, appear to constitute express legislative consent for persons to bring particular civil rights actions against the state. We agree. The state argues that, notwithstanding the consent to suit effect of the statutes quoted above, the extent to which the state may be liable under AS 18.80 ultimately depends upon application of yet another statute, AS 09.50.250. This third statute establishes the general rule that "[a] person or corporation having a contract, quasi-contract, or tort claim against the state may bring an action against the state in the superior court." AS 09.50.250. The statute also, however, establishes state immunity from a variety of particular claims, among which are claims "for tort . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a state agency or an employee of the state, whether or not the discretion involved is abused." AS 09.50.250(1). According to the state, the Department and the Board of Fisheries exercised their discretionary powers when they chose to close the surf fisheries from 1980 to 1983. Thus, goes the argument, AS 09.50.250(1) bars the surf fishermen's claim against the state. We reject this argument. As we repeatedly have explained, "[sjtate liability is the rule; immunity is the exception." Freeman v. State, 705 P.2d 918, 920 (Alaska 1985). The legislature specifically provided for actions against the state in AS 18.80.255. The legislature also provided for recovery of damages, when appropriate, for state violations of AS 18.80. See AS 22.10.020. The general exceptions to state tort liability that the legislature established in AS 09.-50.250(1) have no control over the specific consent to state liability under the Human Rights Act. Accord Marsh v. Department of Civil Serv., 142 Mich.App. 557, 370 N.W.2d 613, 619 n. 10 (1985) ("Suits against the state for employment discrimination pose no immunity from suit or liability problems since the state . is subject to the provisions [of the state civil rights acts] which . allow actions to be brought in the circuit courts for such discrimination."); State, Dep't of Correctional Serv. v. State Div. of Human Rights, 88 A.D.2d 1061, 452 N.Y.S.2d 746, 748 (1982) ("The Legislature, in enacting the Human Rights Law, has waived sovereign immunity to the extent of subjecting the State to the regulations of the law."). The superior court correctly denied the state's motion for summary judgment on this point. B The superior court found that although the state enjoyed no immunity from claims brought under AS 18.80 and AS 22.10.020(i), the state nevertheless was immune from liability for punitive damages. The surf fishermen argue that the superior court erred. We disagree with the surf fishermen on this aspect of sovereign immunity. In Loomis Elec. Protection Inc. v. Schaefer, 549 P.2d 1341, 1343 (Alaska 1976), we held that "the broad language of AS 22.10.020(c) includes a legislative intent to authorize an award of compensatory and punitive damages for violations of AS 18.-80." We expressed no opinion in Loomis, however, on the specific question of the availability of punitive damages when the state has violated AS 18.80. We believe that the general authorization for damages awards in AS 22.10.020(c) is not sufficient to support an award of punitive damages against the state. On the contrary, government entities may be liable for punitive damages only pursuant to express and specific statutory authority. See Richardson v. Fairbanks North Star Borough, 705 P.2d 454, 456 n. 1 (Alaska 1985) (no punitive damages against municipality without statutory authorization). The superior court correctly determined that the state may not be found liable for punitive damages for violations of AS 18.80. Ill The superior court determined prior to trial that the Human Rights Commission decision and order should receive no issue preclusive (collateral estoppel) effect. The surf fishermen argue that the superior court erred as a matter of law on this point. According to the surf fishermen, the Commission's decision and order became "binding" upon the state when the state failed to appeal that decision and order to the superior court. Thus, the surf fishermen argue, the superior court wrongly permitted the state to relitigate the underlying factual and legal issues actually litigated before the Commission hearing officer. We essentially agree with the surf fishermen's argument. There are four basic requirements for the application of issue preclusion: the party against whom preclusion would work must have been a party, or in privity with a party, to the first action, Rapoport v. Tesoro Alaska Petroleum Co., 794 P.2d 949, 951 (Alaska 1990); the issue to be precluded from relitigation must be identical to the issue decided in the first action, id.; the first action must have resolved the issue by final judgment on the merits, id.; and the determination of the issue must have been essential to the final judgment, Restatement (Second) of Judgments § 27 (1982). In Alaska, as in most jurisdictions, issue preclusion may apply to administrative adjudications. Holmberg v. State, Div. of Risk Management, 796 P.2d 823, 825 (Alaska 1990); CFEC v. Byayuk, 684 P.2d 114, 122 (Alaska 1984); Jeffries v. Glacier State Tel. Co., 604 P.2d 4, 8-9 (Alaska 1979). But as we explained in Holmberg, Byayuk and Jeffries, a determination of the appropriate preclusive effect of administrative decisions is possible only on a case by case analysis. Holmberg, 796 P.2d at 825; Byayuk, 684 P.2d at 122; Jeffries, 604 P.2d at 8-9. The question of issue preclusion in this case is somewhat complicated by the statutory scheme of the Human Rights Act. The legislature created concurrent original jurisdiction for actions involving violations of AS 18.80 in both the Commission and in the superior court. Compare AS 18.80.-060(a)(4) & (b)(3); 18.80.100; 18.80.120; 18.-80.130 (Commission jurisdiction, hearing procedure, etc.) with AS 22.10.020(i) (superior court jurisdiction). In an effort to coordinate this double jurisdiction, the legislature also specifically provided for the preclusive effect of the Commission's decisions in a few, critical circumstances. The most important preclusion statute for present purposes is AS 18.80.145. Section 145 requires a plaintiff who brings a superior court action under AS 18.80 to serve a complaint on the Commission. Section 145(a). The statute further provides authority for the Commission to intervene in the superior court action or to request the superior court to defer its proceedings for up to forty-five days or such extended period as the court may allow. Id. The statute then states: If within the [deferral] period allowed the commission conducts a hearing and reaches a decision under AS 18.80.120 and 18.80.130, the decision of the commission is binding on the parties to the court action as to all issues resolved in the hearing but not as to any issues not resolved in the hearing. Id. at (b). In essence, AS 18.80.145 provides a mechanism by which the Commission and the superior court may avoid jurisdictional conflict over actions brought under AS 18.80. In the present case, because of the procedural pace of the two parallel actions, the Commission spent some two years processing, investigating, hearing, and deciding its action. In that time, the superior court action did not proceed beyond the initial pleading stage, and the Commission had no need to intervene or to request deferral under AS 18.80.145. As a result, the language in § 145 that establishes the "binding" effect "of all issues resolved" in a Commission hearing does not apply directly to this case. No language in § 145, however, suggests that issue preclu sion can obtain only when the Commission has requested deferral. On the contrary, section 145 simply makes clear that Commission decisions and orders rendered within the deferral period must receive issue preclusive effect. Such a deferential scheme clearly suggests that the Commission's decisions should carry issue preclu-sive effect in an appropriate case. See Holmberg, 796 P.2d at 825. Of course, our general conclusion that the Commission's findings should carry preclusive effect when appropriate does not decide the concrete question of whether the superior court properly should have accorded preclusive effect to the particular Commission findings relevant here. The preclusive use of prior administrative findings must always be fair. Byayuk, 684 P.2d at 122. Fairness, at a minimum, requires that the administrative procedure entailed "the essential elements of adjudication." Id.; see also Holmberg, 796 P.2d at 825 (citing 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4475, at 764-65 (1981)). Additionally, the doctrine of issue preclusion "is at its best as it applies to an adjudication of past facts, where the second proceeding involves the same claim or the same transaction." Jeffries, 604 P.2d at 9 (quoting 2 K. Davis, Administrative Law Treatise § 18.-03, at 559 (1958)). However, most courts accord the same preclusive effect to administrative adjudications of legal issues as they do to judicial adjudications of those issues. E.g., Guild Wineries & Distilleries v. Whitehall Co., 853 F.2d 755, 758-59 (9th Cir.1988); Eilrich v. Remas, 839 F.2d 630, 634 & n. 2 (9th Cir.1988); see also 4 K. Davis, Administrative Law Treatise § 21:2, at 49 (2d ed. 1983); Restatement (Second) of Judgments § 27 & 83 (1982). In this case, the Commission adjudicated and resolved numerous issues of law and fact that, if given preclusive effect, would have altered the superior court's entire approach to the case. The Commission's most notable factual finding was that Alex Brogle's "recommendations formed the basis for official actions, and his prejudice infected the entire process." This was, in essence, a finding that intentional discrimination against the surf fishermen on the basis of race played a significant part in the state agencies' decisions to regulate the surf fishery. The Commission's most significant legal conclusion, of course, was that the state had discriminated against the surf fishermen because of race, and thus had violated AS 18.80.255. We conclude that a determination on each of these issues was essential to the Commission's decision. We also conclude that it would have been fair to accord those determinations preclusive effect. Regulations that govern the Commission's hearing and prehearing procedures clearly provide for the essential elements of adjudication. Indeed, the state does not suggest that the proceedings before the Commission failed to provide a full and fair adjudication of the issues important here. Moreover, examination of the hearing officer's remarka bly thorough decision indicates that adjudication of all important issues was exhaustive. The state could have appealed the Commission decision, but chose not to. Thus, following the reasoning of our prior cases in this area, we hold that the superior court erred by not according preclusive effect to the Commission's findings and conclusions. The superior court should not have addressed the question of the state's violation of AS 18.80.255. The superior court should have focused solely on the damages issues in the ease that were not determined by the Commission, or that, if determined by the Commission, were not essential to the Commission's judgment. See Byayuk, 684 P.2d at 122; Jeffries, 604 P.2d at 8-9; 4 K. Davis, supra, § 21:2 at 49; Restatement (Second) of Judgments § 27 & 83 (1982). IV The parties in this case focused on the issue of special, economic damages for lost profits. It is not particularly clear whether the parties also tried issues of general, compensatory damages. The superior court concluded that the surf fishermen had failed to prove, with reasonable certainty, that they had suffered lost profits. The superior court's decision contains findings of fact related to the surf fishermen's claims for general damages. The superior court decision, however, does not contain any express conclusion as to the availability of general compensatory damages nor does it expressly deny them to the surf fishermen. "[A] determination of damages by the trial court is a finding of fact which will not be disturbed on appeal unless clearly erroneous." State v. Guinn, 555 P.2d 530, 544-45 (Alaska 1976). We have reviewed the record in this case and, we do not find clear error in any of the superior court's factual findings. However, we do not limit our review of the superior court's damages decision to simply an evidentiary review. "[T]his court will also intervene when the trial court's calculations are in disregard of a rule of law pertaining to damage measures." Id. at 545. In the present case, we find that the superior court improperly applied the law governing lost profits damages and general compensatory damages. We review each error in turn. A Obviously, the superior court's authority to order any relief for violations of AS 18.80, "including the payment of money" encompasses the authority to award special damages for lost profits. AS 22.10.020; see also Loomis, 549 P.2d at 1343. We previously have held that damages for lost fishing profits, although impossible to prove with mathematical precision, are recoverable if proved with "reasonable certainty." Williams v. Eckert, 643 P.2d 991, 996 (Alaska 1982) (quoting Reefer Queen Co. v. Marine Construction & Design Co., 73 Wash.2d 774, 440 P.2d 448, 452-53 (1968)). Reasonable certainty requires a showing of actual loss of profits and a reasonable basis upon which to compute an award. Id.; see also Alaska Children's Serv., Inc. v. Smart, 677 P.2d 899, 902 (Alaska 1984) ("Generally, once the existence of lost profits is established, the actual amount need not be proven exactly."). The superior court explicitly found that the surf fishermen had failed to show either that the state's acts or omissions caused them any lost profits or the extent of any lost profits. We disagree. The state concedes that it restricted access to the surf fisheries in order to prevent fishermen, including the plaintiffs, from catching as many salmon as they otherwise would have caught. This case is controlled by the Commission's determination that the state's restrictions illegally discriminated against the surf fishermen. Thus, any fishing profits that the surf fishermen would have earned if the state had not illegally discriminated against them are, if proved, recoverable. Accordingly, any surf fishermen who can show that he would have fished in the restricted areas during the illegally restricted periods has proved the bare fact of actual lost fishing opportunity. The only remaining question is whether there is a reasonable basis upon which to calculate the extent to which lost opportunity caused lost profits. As we explained in Williams, we will not deny recovery unless the best available evidence on damages provides "no possibility of a reasonably proximate estimation" of lost fishing profits. Williams, 643 P.2d at 996 (quoting Pacific Steam Whaling Co. v. Alaska Packers Ass'n, 138 Cal. 632, 72 P. 161, 163 (1903)). In the present case, the surf fishermen's expert witness offered alternative methods for gauging the amount of fish that the surf fishermen would have caught if the surf fishery had not been closed. The superior court rejected both of the expert's methods as unreliable. We agree with this aspect of the court's decision. Using his first method of gauging lost profit, the surf fishermen's expert calculated the percentage of the total fishery catch in 1979 that the surf fishermen took and then attributed the remaining percentage to the inriver fishermen. The expert then assumed that the inriver fishermen caught similar percentages of the available catch in the years 1980 to 1983. From those projections, the expert estimated the catch that the surf fishermen would have taken during the period from 1980 to 1983. The product of that calculation was an aggregate loss of $1,070,091. The expert's second method of estimating damages began with the assumption that the inriver fishermen took all of the available harvest in 1980-83. The expert then multiplied the inriver totals from 1980-83 by the percentage of total harvest that the surf fishermen took in 1979. The product of that calculation was $688,814. The superior court had a variety of reasons for rejecting both of the expert's projections. We find the following rationale dispositive: The salmon runs, the size of permissible gear, the length of season openings, and the total number of fishermen at the surf and inriver fisheries all fluctuated from 1979 to 1983. Consequently, the percentage of total harvest that the surf fishermen took in 1979 has no rational correlation to the percentages of the total that they would have taken in the surf from 1980 to 1983. We thus find no error in the superior court's decision to reject the surf fishermen's calculations of aggregate lost profits. The superior court's decision to reject the surf fishermen's individual showings of lost profits, however, is not as convincing. It is in this aspect of the decision that the superior court improperly ignored "a rule pertaining to damage measures." Guinn, 555 P.2d at 545. When the crux of a case is that the defendant's acts prevented the plaintiff from fishing during a definite period in certain waters, the harvest that other fishermen took during that period in those waters may provide a reasonable basis upon which to determine an individual plaintiff's loss. See Williams, 643 P.2d at 996; West v. Whitney-Fidalgo Seafoods, Inc., 628 P.2d 10, 17 (Alaska 1981). Similarly, the plaintiff's own harvests in the period proximate to the lost time period may provide a reasonable basis to establish lost profits. See Williams, 643 P.2d at 995-96. Naturally enough, both types of evidence may work together to provide a reasonable calculus. See id.; Reefer Queen, 440 P.2d at 451-53. Evidence of prevailing conditions (i.e., the numbers of fish available for harvest, the probable effect of intervening weather, the impact of increased competition, the competence of the plaintiff or crew seeking damages etc.) also may play a part in such a calculation. E.g., Williams, 643 P.2d at 995-96; Berg v. General Motors Corp., 87 Wash.2d 584, 555 P.2d 818, 824-25 (1976); Reefer Queen, 440 P.2d at 451. And finally, while most of the cases on this point involve lost fishing time as a result of harm to, or detention of, a vessel, the same principles apply when the plaintiff loses fishing time because of wrongful exclusion from fishing grounds. Williams, 643 P.2d at 996 (citing Pacific Steam Whaling Co. v. Alaska Packers' Ass'n, 138 Cal. 632, 72 P. 161 (1903)). As the superior court's findings of fact show, most of the surf fishermen presented precisely the sort of evidence that courts generally find sufficient to support an award for lost fishing profits. The superi- or court's findings of fact in regard to the surf fishermen's activity in the East Alsek surf fishery during the restricted years is particularly thorough. The court found that every surf fisherman fished at least one year between 1980 and 1983 during the restricted opening at the East Alsek river. At least three surf fishermen fished there during every season between 1980 and 1983. Because the Alsek's surf fishery was more stringently restricted than the East Alsek's, few surf fishermen worked at the Alsek between 1980 and 1983 and the superior court's findings are less definite. The superior court did find that ten of the thirteen surf fishermen actually fished in the Alsek surf in 1980, during the limited time that the fishery was open. After 1980, however, it appears that very few surf fishermen attempted to exploit the restricted open area and time at the Alsek surf. Taking the easiest problem of calculation first, along with other factors, the superior court could have calculated an individual's lost catches on days of discriminatory closure in a given year according to that individual's actual catches on days when the particular fishery was open in that year. Cf. Williams, 643 P.2d at 995-96. Upon remand, then, the superior court shall reexamine the present record and employ each surf fisherman's individual proof of surf harvest during any given year as a basis for calculating lost profits for that year. A closer question is whether the superior court also should use the harvests of fishermen who worked in the surf from 1980 to 1983 as the basis to calculate lost profits in any given year for those plaintiffs who did not fish in the surf in that year. As noted, the harvest that other fishermen take during a definite period in particular waters may provide a reasonable basis upon which to determine lost fishing profits for the same period and waters. See Williams, 643 P.2d at 996. Additionally, we note that some of the surf fishermen testified that they did not bother to fish the surf at the Alsek river mouth during the years of closure because they did not know the area was open to fishing. The superior court's analysis of this theory of damages is both incomplete and incorrect. We conclude that, upon remand, the superior court must scrutinize the record for evidence relevant to the lost profit claims of surf fishermen who chose not to fish in either of the two discriminatorily closed fisheries because of the discriminatory closures. If the superior court finds that the state's discriminatory restrictions constituted a cause of the choice not to fish at all in a given season or opening, then the court shall calculate, as appropriate, lost profits damages for those fishermen based upon the actual catches of fishermen who worked during the same periods in the same fishery. Cf. Williams, 643 P.2d at 996; see also West, 628 P.2d at 17 (approving calculation of lost fishing profits based on nearby catches in same period). The court, if necessary, may calculate an average actual catch and assign it to those who did not fish. The court also may consider evidence tending to show the skill and capability of each individual in relation to others when making these calculations. Finally, we must consider whether the superior court has any basis on which to calculate lost profits due to the Alsek surf restrictions during 1983, when no surf fisherman exploited the area. Initially, we are loath to deny recovery for that season simply because the state's discriminatory closures were so effectively daunting to the surf fishermen. To do so would ignore settled principles of damage measure. See C. McCormick, Handbook on the Law of Damages § 27(b), at 101 (1935) ("Where the defendant's wrong has caused the difficulty of proof of damage, he cannot complain of the resulting uncertainty."). More important, however, to do so would countermand the legislative intent to provide complete relief for violations of AS 18.80. Loomis, 549 P.2d at 1343 (citing AS 22.10.-020). As noted, the best proof available on the Alsek surf fishery comes from 1980, when ten surf fishermen worked there. We have held that the unlawfully restricted catches of that year may provide the basis for determining what lawfully restricted catches would have been that year. We also hold that the catches of that year may provide the basis for determining what the catches would have been in 1983. B Under most state antidiscrim-ination or civil rights statutes, compensatory damages awards may include actual damages for mental anguish. Such mental anguish damages, as creatures of statute, are entirely distinct from damages for emotional distress available under common law tort theories, which normally require a showing of extreme mental injury. E.g., Dean v. Municipality of Metropolitan, 104 Wash.2d 627, 708 P.2d 393, 400-01 (1985); Chomicki v. Wittekind, 128 Wis.2d 188, 381 N.W.2d 561, 566-67 (App.1985) (noting that plaintiff had not satisfied common-law tort requirement of "extreme disabling emotional response" but affirming award of mental anguish damages because plaintiff brought action under state antidis-crimination statute, not under common-law theory). Examination of the Human Rights Act and of our cases interpreting the Act make it clear that damages for mental anguish are available in Alaska as a form of compensatory damages under AS 22.10.020. Under the Act, the Commission's powers to remedy violations of AS 18.80 are quite specific. In all cases, the Commission may "order the person to refrain from engaging in the discriminatory conduct." AS 18.80.130(a). In employment discrimination cases, the Commission may order "any appropriate relief, including but not limited to" reinstatement and backpay. AS 18.80.130(a)(1). And in housing discrimination cases, the Commission may order the sale, lease or rental of housing to the complainant and, also, "may award actual damages." AS 18.80.-130(a)(2). In all cases, however, the Commission's power to award money is limited to special damages or to money payments incident to equitable relief, that is, to damages for "direct, calculable pecuniary loss, such as back pay or housing expenses." McDaniel v. Cory, 631 P.2d 82, 88 (Alaska 1981). In contrast, AS 22.10.020(i) (formerly subdivision (c)), provides that the superior court "may enjoin any act, practice or policy which is illegal under AS 18.80 . and may order any other relief, including the payment of money, that is appropriate." (Emphasis added.) Plainly, the remedial powers that this statute grants to the superior court are broader than the specific powers that AS 18.80.130 grants to the Commission. Indeed, the extraordinary difference between remedies available before the Commission and remedies available before the court provides the only rational reason for affording complainants' new action in superior court after they have prevailed before the Commission. See, e.g., AS 18.80.145. We held in McDaniel that the Commission could not award damages for pain and suffering. McDaniel, 631 P.2d at 86-88. We then added, "should the complainant wish to recover damages from the respondent, recourse to the courts is always available." Id. at 88. In Loomis, we explained that when complainants took recourse in the courts for violations of AS 18.80, among the full range of remedies available to them would be awards of general compensatory damages. Loomis, 549 P.2d at 1343. We wrote: The language of [AS 22.10.020(c)] is clearly intended to provide a litigant complete relief in an appropriate case. In view of the strong statement of purpose in enacting AS 18.80, and its avowed determination to protect the civil rights of all Alaska citizens, we believe that the legislature intended to put as many "teeth" into this law as possible. We fail to see how, consistent with that purpose and intent, the legislature could have contemplated a statutory scheme that would not have included the right to recover damages. Otherwise, there would be many cases in which no meaningful relief would be available to the injured party, the one whose civil rights have been violated and whom the law seeks to protect. We believe that the broad language of AS 22.10.020(c) indicates a legislative intent to authorize an award of compensatory and punitive damages for violations of AS 18.80, in addition to the equitable remedies such as enjoining illegal employment activities and ordering back pay as a form of restitution. Id. (footnotes omitted). In Loomis, we also indicated in dicta that among the compensatory damages available for violations of AS 18.80 are damages "to redress mental suffering and other intangible injuries." Id. at 1344 n. 12 (quoting Comment, Implying Punitive Damages in Employment Discrimination Cases, 9 Harv.C.R.-C.L.L.Rev. 325, 336 (1974)). We apply that rule today. We also clarify it. As we noted in McDaniel, some states permit the administrative commissions charged with enforcing civil rights statutes to award compensatory damages. McDaniel, 631 P.2d at 87-88. Other states permit only the courts to award such damages. See id. at 88 (citing Iron Workers Local No. 67 v. Hart, 191 N.W.2d 758, 767-68 (Iowa 1971)). Generally, however, all of these states limit recovery of compensatory damages for mental anguish to "actual damages" — that is, to "all those damages directly and naturally resulting, in the ordinary course of events, from the injury in question." Mitchell v. Seaboard Sys. R.R., 883 F.2d 451, 453 (6th Cir.1989); accord Brewster v. Martin Marietta Aluminum Sales, Inc., 145 Mich.App. 641, 378 N.W.2d 558, 569 (1985). We agree that compensatory damages for mental anguish caused by discrimination must be limited to actual damages. We also stress that such damages are not to be presumed. See State v. Haley, 687 P.2d 305, 320-21 (Alaska 1984), (presumptive damages are not available for violations of civil rights); Cullen v. Nassau County Civil Serv. Comm'n, 53 N.Y.2d 492, 442 N.Y.S.2d 470, 473, 425 N.E.2d 858 (1981) (no mental anguish damages "solely upon finding that a discriminatory act occurred"). A complainant's own testimony may establish the fact and the quantum of damages. Cullen, 442 N.Y.S.2d at 473, 425 N.E.2d 858. But the amount of mental anguish damages assessed must specifically compensate only the injury proved. Id. The surf fishermen's complaint in this case requested general compensatory damages, and the surf fishermen's proof at trial included evidence that the state's violation of AS 18.80.255(1) had caused at least some of the surf fishermen mental anguish. Walter Johnson formally presented evidence that he suffered emotional injury as a result of the state's actions. Other surf fishermen less formally offered evidence that they suffered emotional injury. For example, Sheldon James testified that the closure of the Alsek surf fishery in 1980 surprised, angered, and upset him. He also testified that circum stances surrounding the surf closure — for example, the more lenient restrictions on inriver fishermen and the insulting manner in which Alex Brogle explained the state's action to the surf fishermen — convinced him of the racial animus behind the restrictions. Our examination of the record reveals similar testimony from several of the surf fishermen. Yet, the superior court failed to address the question of actual mental anguish damages. We are mindful that the surf fishermen have not extensively, perhaps even competently, briefed the question of mental anguish damages. Nonetheless, we consider their general point on appeal challenging the superior court's damage award, in combination with the argument in their brief, sufficient to warrant our ruling on the issue. See Ratcliff v. Security Nat'l Bank, 670 P.2d 1139, 1141 n. 4 (Alaska 1983). On the other hand, the surf fishermen do not argue that the superior court denied them an opportunity to introduce evidence of mental anguish injury. And, as noted, we find that the surf fishermen did adduce substantial evidence of such injury at the bench trial. Hence, we do not remand for a new trial on this question. Rather, upon remand, the superior court shall determine from the present record whether or not any of the plaintiffs tried the issue of mental anguish damages and, if so, whether such damages were proven. The judgment of the superior court is AFFIRMED in part, REVERSED in part and MODIFIED in part, and this case is REMANDED for a redetermination of damages based on the present record. . White fishermen who work in the region do not fish in the surf. The sole white fisherman identified as ever having fished in the surf in the Yakutat region was Dolph Hensley, whose wife was a Yakutat native. TIingit fishermen testified that Hensley had been accepted as a member of the Native community. . Nominally, the Department of Public Safety, Division of Fish and Wildlife Protection, is in charge of law enforcement, including enforcement of fishing regulations, in the Alsek and East Alsek area. Unavailability of personnel, however, has constrained the department to forgo some enforcement responsibilities and to delegate others to the Department of Fish & Game officials who work on-site at the fisheries during salmon season. . See generally Kenai Peninsula Fisherman's Coop. Ass'n v. State, 628 P.2d 897, 902-03 (Alaska 1981). . AS 16.05.251. . See AS 16.05.050; AS 16.05.060; see also AS 44.17.-005; 44.17.030. . A decline in harvests at other fisheries in the region was one reason Yakutat fishermen turned to the Alsek and East Alsek area in the 1970s. Another reason for the increase in surf fishermen was an improvement in equipment. There is no road from Yakutat to the fishery, so the Tlingit surf fishermen must make the fifty-mile open ocean trip south in their skiffs. Most surf fishermen only somewhat recently obtained the sort of boats and powerful motors that make the journey with ease. The improved equipment also enhanced the surf fishermen's effectiveness in the difficult Alsek and East Al-sek surf. As in prior years, the inriver fishermen employed threats of violence, including gunshots, to insure that none of the new surf fishermen moved upstream. The inriver fishermen also apparently hoped that their belligerence would reverse the general increase of competition in the area by chasing some of the new surf fishermen away from the area entirely. . A surge in activity in 1973 and 1974 was probably due to anticipation of the limited entry program. The Department responded to the 1974 increase by limiting open fishing time from four to two days per week. Coincidentally, the device Canadian regulators used to measure escapement on the Alsek — a fish "weir"— was not in operation until 1976. Thus, the Department did not have detailed escapement data available for a predictive analysis of the 1979 salmon run on the Alsek. Instead, the Department's historical data mainly consisted of records showing the number of fishermen on the Alsek in 1974 and the size of the catch that year. . The Board did not widely advertise the meeting, nor did the Board intend the meeting to be a public hearing on the immediate problem of regulating the Alsek fishery. Nonetheless, the question of regulating fishing on the Alsek for the 1980 season dominated the public meeting. . Neither the record nor the briefs explain why the superior court action remained suspended while the Commission proceedings ran their course. . The state also has appealed the superior court's use of a disparate impact model of discrimination in the case, and the superior court's refusal to enter directed verdict for the state. Because of our disposition of other issues in the appeal, we do not reach either of these points in the cross appeal. As we note below, however, we in no way intend to endorse either the Commission's or the superior court's use of the disparate impact model of discrimination in this case. See infra note 22. . A grant of partial summary judgment is always reviewable on appeal when final judgment in a case comes after trial. E.g., Currington v. Johnson, 685 P.2d 73, 76-78 (Alaska 1984). Denials of summary judgment also may be reviewable on appeal when final judgment in a case comes after trial, but only if the facts applicable to the summary judgment ruling were not in dispute and the basis of the ruling is a matter of law. Kentucky, Trans. Cabinet, Bureau of Highways v. Leneave, 751 S.W.2d 36, 37 (Ky.App.1988); Shisler v. Fireman's Fund Ins. Co., 87 Or.App. 109, 741 P.2d 529, 532 (1987); see also City of Fairbanks v. Schaible, 375 P.2d 201, 206 (Alaska 1962); City of Fairbanks v. Schaible, 352 P.2d 129, 130-31 (Alaska 1960); see generally Annotation, Reviewability of Order Denying Motion for Summary Judgment, 15 A.L.R.3d 899, 902, 922-24 (1967). . The state also argues that a fourth statute, AS 44.62.300, preempts any other action against the state's use of its regulatory powers. We find no merit in this argument. AS 44.62.300 establishes standing for any "interested person" to "get a judicial declaration on the validity of a regulation by bringing an action for declaratory relief in the superior court." AS 44.62.300. First, the Department's emergency order in 1980 "is not subject to the Administrative Procedure Act (AS 44.62)." AS 16.05.060(c). Second, the Board's regulations in subsequent years presumably are subject to challenge under AS 44.62.300. Such a challenge, however, might have alleged that the Board's regulations were invalid because they violated AS 18.80.255. See AS 44.62.020 ("To be effective, each regulation adopted must be within the scope of authority conferred and in accordance with standards prescribed by other provisions of law") (emphasis added). The surf fishermen did not make such a challenge, preferring instead to seek the remedies for violation of AS 18.80.255 that the legislature explicitly has made available under AS 22.10.020(i). The state does not argue that the legislature impermissibly provided concurrent bases for challenging illegal state discrimination. Thus, the state's invocation of AS 44.62.300 is irrelevant to this case. . In other words, an action brought under AS 18.80 is not subject to the same rules as one brought under AS 09.50.250. . The superior court determined this legal issue by denying the surf fishermen's motion for summary judgment. We review the superior court's decision on this point de novo. See supra note 11. . Another statute addressing the question of preclusion provides that "[t]he acquittal of a person by the commission or a court of competent jurisdiction of any alleged violation of this chapter is a bar to any other action, civil or criminal, based on the same act or omission." AS 18.80.280. This statute establishes a type of claim preclusive effect for particular decisions under AS 18.80 adverse to the claimants or plaintiffs. We note that no statute specifically creates claim preclusive effects when the complainants or plaintiffs prevail. Indeed, when (as in this case) claimants before the Commission prevail, their claim does not merge into the favorable judgment. Rather, they are still free to bring subsequent action under AS 22.10.-020(i) (formerly (c)) in superior court, because the remedies available in court are different than those available before the Commission. See Restatement (Second) of Judgments § 83(3) (1982). . The state directs our attention to subdivision (d) of AS 18.80.145, which provides that "[i]f the commission does not intervene or file a certificate [i.e., request court deferral] and conduct a hearing as provided in this section, the court has complete jurisdiction of the case, notwithstanding the provisions of AS 18.80.280." The state argues that this language limits the preclu-sive effect of an agency decision to cases in which the Commission intervenes or requests superior court deferral. What AS 18.80.145(d), taken together with AS 18.80.280, means is that where the Commission does not intervene but acquits an alleged violator, that acquittal should not be given preclusive effect in court. This provision is favorable to victims of discrimination, as they are given a second chance in court. However, it would be reading too much into the term "complete jurisdiction" to infer the converse proposition that those found guilty by the Commission are also to be given a second chance in court. Issue preclusion, or more broadly, res judicata, is applicable only where there is dual jurisdiction, that is where two separate forums have complete jurisdiction. Where only one forum has the power to act the term "exclusive jurisdiction" is used. We therefore conclude that § 145(d) does not mean that issue preclusion is inapplicable to cases where the Commission does not intervene under § 145(a) but determines that discrimination has taken place. . The essential elements of adjudication include adequate notice to persons to be bound by the adjudication, the parties' rights to present and rebut evidence and argument, a formulation of issues of law and fact in terms of specific parties and specific transactions, a rule of finality specifying the point in the proceeding when presentations end and a final decision is rendered, and any other procedural elements necessary for a conclusive determination of the matter in question. Restatement (Second) of Judgments § 83(2) (1982). . We also note that the statute in the Human Rights Act that addresses the issue preclusive effect of some Commission decisions states that parties shall be bound "as to all issues resolved in the hearing." AS 18.80.145(b) (emphasis added). The statute makes no distinction between issues of law and issues of fact. . The superior court, in contrast, found that Alex Brogle's racism did not significantly contribute to the state agencies' official actions. . See, e.g., 6 AAC 30.415 (subpoena power); 6 AAC 30.430 (requirement of notice to parties); 6 AAC 30.440 (hearing procedures); 6 AAC 30.460 (rules of evidence); 6 AAC 30.470 (requirement of findings of fact and conclusions of law); 6 AAC 30.480 (provisions for final Commission order); see also 6 AAC 30.510-590 (discovery procedures). . The state does perfunctorily note that the Board of Fisheries was not originally named as a respondent in the proceedings before the Commission. The Board of Fisheries, however, was joined in the action before the hearing officer rendered her decision. Moreover, the record indicates that the state acquiesced to joinder of the Board of Fisheries because the joinder posed no threat of prejudice. And finally, the hearing officer's decision specifically bound the Board of Fisheries. The Board of Fisheries thus appears to have been a party to the Commission proceedings for purposes of application of issue preclusion. The state makes no express argument to the contrary. . Our decision on this point renders unnecessary a review of the state's argument that the superior court erred by analyzing this case under the disparate impact model. Our decision that the Commission's legal determinations should have received preclusive effect, however, in no way endorses either the Commission's conclusion or the superior court's .conclusion that the disparate impact model of discrimination correctly applied in this case. First, we have never approved the use of the disparate impact model outside the context of employment discrimination. See Thomas v. Anchorage Tel. Util., 741 P.2d 618, 628-29 (Alaska 1987) (adopting disparate impact model for cases arising under AS 18.80.220). We recognize that courts and legislatures carefully have extended the use of the disparate impact model beyond the employment discrimination context. See generally Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 666 & n. 9, 109 S.Ct. 2115, 2129 & n. 9, 104 L.Ed.2d 733 (1989) (Stevens, J., dissenting) (listing examples of congressional extension of disparate impact model); Maltz, The Expansion of the Role of the Effects Test in Antidiscrimination Law: A Critical Analysis, 59 Neb.L.Rev. 345, 357-62 (1980). But courts and legislatures also have limited use of the model. E.g., General Building Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 389-91, 102 S.Ct. 3141, 3149-50, 73 L.Ed.2d 835 (1982); Larry v. White, 929 F.2d 206, 209 & n. 8 (5th Cir.1991); Minn.Stat.Ann. § 363.03(11) (West 1991) (state human rights act adopting use of disparate impact model for employment discrimination only). The issue, then, is problematic, and one that deserves much more consideration than either the Commission or the superior court afforded it in this case. Second, on the specific facts of this case, the disparate impact model appears to have been invoked inappropriately. This was the rarest of all discrimination cases: a case in which the complainants offered strong direct evidence of discriminatory intent. See Wise v. Mead Corp., 614 F.Supp. 1131, 1134 (M.D.Ga.1985) ("It is difficult — if not impossible — for a plaintiff to produce direct evidence of discriminatory intent."). Cases in which the plaintiff adduces direct evidence of motive invoke an entirely different analysis than other cases. A defendant in such a case can only successfully defend by showing by a preponderance of the evidence that the same decision would have been reached even without the discrimination factor. EEOC v. Beverage Canners, Inc., 897 F.2d 1067, 1071 (11th Cir.1990); Fields v. Clark Univ., 817 F.2d 931, 936 (1st Cir.1987). This analysis — or model — for cases in which direct evidence of discrimination is present finds its greatest development in employment discrimination cases. E.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). However, courts actually imported the model from outside the employment discrimination context. See, e.g., Fields, 817 F.2d at 936; see also Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265-66, 97 S.Ct. 555, 563-64, 50 L.Ed.2d 450 (1977) (under constitutional version of the model, direct proof of discriminatory motive invokes strict scrutiny). Clearly, then, use of the direct evidence model is not limited in the same way that use of the disparate impact model may be limited. . In addition to their cause of action under the Human Rights Act, the surf fishermen attempted to assert in the superior court causes of action for damages under the state and federal constitutions. The superior court held that under the circumstances of this case, no implied constitutional cause of action was available. The surf fishermen have appealed only the superior court's ruling on their state constitutional claim. We agree with the superior court that the surf fishermen have not shown why an implied constitutional cause of action for damages against the state is either necessary or appropriate in this case. Vest v. Schafer, 757 P.2d 588, 598 & n. 38 (Alaska 1988); see also King v. Alaska State Hous. Auth., 633 P.2d 256, 260-61 & n. 5 (Alaska 1981). . See Williams, 643 P.2d at 995 (detention of plaintiffs boat for part of the fishing season left only question of reasonable basis for calculation of damages); West v. Whitney-Fidalgo Seafoods, Inc., 628 P.2d 10, 17 (Alaska 1981). . The Department of Fish and Game's records first separated surf and inriver harvests in 1979. . One of the superior court's objections to the surf fishermen's second estimate of total damage was that the expert included no account of the plaintiffs mitigation of damages in 1980-83. The court's application of the law was clearly wrong on this point. It is true that "a wronged party must use reasonable efforts to avoid the consequences of injury done by another." University of Alaska v. Chauvin, 521 P.2d 1234, 1239 (Alaska 1974); see also Alaska Children's Services, 677 P.2d at 902; West, 628 P.2d at 18. However, the question of mitigation is entirely independent of the damages question. See Alaska Children's Services, 677 P.2d at 902. In this case, analysis of the surf fishermen's proof of damages — both in fact and in extent — is the first step. Only after determining damages does the court reduce the damages amount according to the state's proof of mitigation or failure to mitigate. See id. at 901-02. . One important condition in this case is the need for fishing restrictions. No one disputes that the state had good reason to restrict fishing in general on the Alsek and East Alsek after 1979, so long as the restrictions were not illegally discriminatory. For the purposes of a reasonable calculation, then, the superior court may assume that a nondiscriminatory surf restriction would have paralleled the inriver restriction. In other words, the superior court feasibly may calculate lost profits according to what the surf fishermen would have made if the surf had been open for them to fish during the same periods that the inriver sites were open. . The three are Sheldon James, Daryl James, and Myron Johnson. . The superior court found that Russell Bogren and Eli Hanlon did not fish in the surf at the Alsek in 1980. While evidence as to Bogren's presence at the Alsek in 1980 was conflicting, we cannot say that the court clearly erred in deciding as it did. . The court found that Sheldon James fished the Alsek surf in 1980-82, and that his brother Daryl "fished essentially the same openings." . As an example of an incorrect inquiry, when addressing plaintiff Daryl James' claim of lost profits the superior court wrote: "In 1982 and 1983, Daryl James did not fish the Alsek and the preponderance of the evidence does not show that he would have made more than the expenses he did not incur by staying away." The correct inquiry should have been whether James would have made more than his expenses if the surf fisheries had not been discriminato-rily restricted. The superior court also generally overlooked the significance of a plaintiffs choice not to waste his time trying to fish the restricted waters. For example, when addressing Clarence and Bill Milton's claim of lost profits, the superior court simply wrote: "They did not sell any Alsek fish after 1980, concentrating instead on the Situk and East [Alsek] rivers in 1981 and 1982. From this record of catches, the court cannot find with reasonable certainty that the Miltons were damaged as a result of the surf closure at the Alsek River." The superior court here obviously ignores the possible methods of calculation available. . Any such calculation, of course, is also subject to all qualifying principles that we have mentioned in connection with the measure of damages at the East Alsek surf fishery or at the Alsek surf fishery in 1980-82. . E.g., Mitchell v. Seaboard Sys. R.R., 883 F.2d 451, 453 (6th Cir.1989) (statutory provision for "actual damages" authorized compensatory damages for mental anguish) (Kentucky law); Ridenour v. Montgomery Ward & Co., 786 F.2d 867, 869 (8th Cir.1986) (same) (Iowa law); Cripps v. United Biscuit of Great Britain, 732 F.Supp. 844, 846-47 (E.D.Tenn.1989) (same) (Tennessee law); Brewster v. Martin Marietta Aluminum Sales, Inc., 145 Mich.App. 641, 378 N.W.2d 558, 568-69 (1985) (mental anguish damages available in court action); State ex rel. Cooper v. Mower County Social Serv., 434 N.W.2d 494, 499-500 (Minn.App.1989) (administrative agency empowered by statute to award actual damages and mental anguish damages); Andersen v. Exxon Co., 89 N.J. 483, 446 A.2d 486, 496 (1982) (affirming administrative civil rights agency award of mental anguish damages); State, Div. of Human Rights v. County of Onondaga Sheriff's Dep't, 127 A.D.2d 986, 513 N.Y.S.2d 68 (1987) (affirming administrative human rights agency award of mental anguish damages but reducing award by 50%), aff'd 71 N.Y.2d 623, 528 N.Y.S.2d 802, 524 N.E.2d 123 (1988); Dean v. Municipality of Metropolitan, 708 P.2d 393, 400-01 (1985) (affirming jury instruction that included mental anguish as aspect of "actual damages" available under state anti-discrimination statute); Chomicki v. Wittekind, 128 Wis.2d 188, 381 N.W.2d 561, 566-67 (App.1985) (affirming jury award of mental anguish damages under state antidiscrimination law and relying, in part, on availability of mental anguish damages in federal actions under the Fair Housing Act and the Civil Rights Act of 1866). . See Loomis, 549 P.2d at 1343 & n. 9 (noting that federal courts "have characterized back pay as an integral part of an equitable remedy, a form of restitution"). . The damage awards for mental anguish, stripped of all punitive component, generally are quite moderate in amount. E.g., Mitchell, 883 F.2d at 453-54 (affirming award of $7,500 mental anguish damages under state law where plaintiff drove 20,000 extra miles per year to work at remote locations in an attempt to avoid a racially-biased supervisor); State ex rel. Cooper v. Mower County Social Serv., 434 N.W.2d 494, 499 (Minn.App.1989) (affirming "administrative law judge's $2,000 award for mental anguish and suffering . based on findings 'showing the turmoil experienced by [complainant] after her [discriminatory] rejection for employment' "); Department of Human Rights v. Spiten, 424 N.W.2d 815, 819 (Minn.App.1988) (affirming award of $3000 mental anguish damages to woman and her two children for the pain they suffered when refused an apartment because of their race); Andersen, 446 A.2d at 496 (affirming "moderate $500 award for emotional distress" plaintiff suffered when refused a job because of his disability); Gray v. Serruto Builders, Inc., 110 N.J.Super. 297, 265 A.2d 404, 407, 415-16 (1970) (noting that the plaintiff, a man denied an apartment because of his race, was a person of substantial accomplishment and personal strength, and awarding only $500 mental anguish damages); In re Anchor Motor Freight, Inc., 119 A.D.2d 672, 500 N.Y.S.2d 800, 801 (1986) (affirming administrative agency award of $5,000 mental anguish damages where employer ignored Jewish employee's request to have days off for Sabbath and Holy Days and ordered him to work); Board of Education v. McCall, 108 A.D.2d 855, 485 N.Y.S.2d 357, 358 (1985) (affirming administrative agency award of $5,000 mental anguish award where employer discriminatorily denied complainant promotion because of gender); Weiss v. State, Human Rights Appeal Bd., 102 A.D.2d 471, 477 N.Y.S.2d 342, 345 (1984) (holding that administrative agency abused discretion by not awarding mental anguish damages where employer discriminatorily denied complainant promotion because of gender and awarding $1,000); Chomicki v. Wittekind, 381 N.W.2d 561, 565-67 (Wis.App.1985) (affirming awards of $1,500 economic damages, $7,500 emotional distress damages, and $10,000 punitive damages where landlord treated tenant "as a sexual chattel . and forced [plaintiff] to relocate in middle of winter along with her young children"). In fact, the only relatively large award for mental anguish damages under a state antidis-crimination law that we have found was reduced by 50% on appeal because the appellate court found it "grossly excessive." County of Onondaga Sheriff's Dep't, 513 N.Y.S.2d at 68 (reducing award of $30,000 mental anguish damages to $15,000 where record did not reveal how long complainant suffered depression or other effects after her discriminatory discharge from employment). . The surf fishermen argue that the trial court should have awarded them damages for "lost heritage." The surf fishermen, however, articulate what amounts to a presumptive basis for measuring such an award. The surf fishermen are Native Alaskans denied access to the Alsek and East Alsek surf, and surf fishing, according to the Commission decision in the case, is part of the native heritage. Those facts alone, however, do not establish that the surf fishermen suffered "lost heritage" injury. Insofar as any individual plaintiff has shown that part of the mental anguish he suffered was related to his sense of "lost heritage," such loss might enter into the trial court's consideration of actual mental anguish damages. The superior court, however, properly will ignore the surf fishermen's aggregate claim for lost heritage damages. See Haley, 687 P.2d at 320-21.

11760906

Lisa ORR-HICKEY, Appellant, v. STATE of Alaska, Appellee

Orr-Hickey v. State

1999-02-05

No. A-6572

612

615

973 P.2d 612

973

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Lisa ORR-HICKEY, Appellant, v. STATE of Alaska, Appellee.

Lisa ORR-HICKEY, Appellant, v. STATE of Alaska, Appellee. No. A-6572. Court of Appeals of Alaska. Feb. 5, 1999. Randall W. Patterson, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant. Eric A. Johnson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before COATS, Chief Judge, MANNHEIMER and STEWART, Judges.

1490

9231

OPINION COATS, Chief Judge. Lisa Orr-Hickey was convicted of hunting sheep in a closed area and possessing illegally-taken game (the sheep). She asserts that her jury received flawed instructions concerning the culpable mental state required for these crimes. In State v. Rice, , the Alaska Supreme Court held that civil negligence is the culpable mental state that governs hunting offenses. That is, the government must prove that the hunter either "kn[e]w or reasonably should [have] know[n]" the circumstances that made the hunter's conduct illegal. Orr-Hickey's jury was instructed in conformity with Rice. With respect to the charge of hunting in a closed area, District Court Judge John R. Lohff instructed the jury that the state was obliged to prove that Orr-Hickey either "knew or reasonably should have known" that the area was closed to hunting. Likewise, with respect to the charge of possessing an illegally-taken sheep, Judge Lohff instructed the jury that the state was obliged to prove that Orr-Hickey "knew or reasonably should have known" that the sheep was taken in violation of Alaska's hunting laws. Orr-Hickey argues that, even though the supreme court adopted negligence as the applicable culpable mental state for hunting offenses, the holding in Rice has been superseded by AS 11.81.610(b)(2). This statute declares that, with a few specified exceptions, the government must prove that a defendant acted "recklessly" with respect to the circumstances that made the defendant's conduct criminal. As defined in AS 11.81.900(a)(3)-(4), recklessness is distinguished from negligence in that recklessness requires proof that the defendant was subjectively aware of a substantial and unjustifiable risk that the circumstance existed. Thus, Orr-Hickey concludes, it was not sufficient for the state to prove that she "should have known" she was hunting in a closed area. Rather, she asserts, the state was obliged to prove that she was subjectively aware of a substantial and unjustifiable risk that the area was closed to hunting. Orr-Hickey's argument is at odds with this court's decision in Reynolds v. State. In Reynolds, this court held that AS 11.81.610(b) applies only to the interpretation of offenses defined in Title ll. Orr-Hickey was convicted of violating administrative regulations promulgated under Title 16. Orr-Hickey urges us to disavow Reynolds and to now hold that the rules of statutory interpretation contained in AS 11.81.610(b) govern all criminal offenses defined in any title of the Alaska Statutes. She points out that in Knutson v. State, this court held that the definition of accomplice liability contained in AS 11.16.100-110 applies to Title 16 offenses. Orr-Hickey asks us to hold that AS 11.81.610(b) likewise applies to Title 16 offenses. We decline to do so for two reasons. First, as the supreme court noted in Rice, there is historical support for the doctrine that fish and game offenses should be considered "general police regulations" — and that, therefore, less stringent culpable mental states should apply to these offenses. Second, and more important, if we were to hold that AS 11.81.610(b) governed the interpretation of offenses defined in Title 16, this would yield a result inconsistent with Rice. As explained above, AS 11.81.610(b) declares that recklessness is the default culpable mental state that applies to circumstances — the culpable mental state that must be proved if the particular statute or regulation does not specify some other culpable mental state. But the supreme court in Rice held that negligence is the default culpable mental state for fish and game offenses. We can not "overrule" Rice by adopting Orr-Hickey's statutory interpretation argument unless there is some reason to believe that the legislature intended AS 11.81.610(b) to supersede the decision in Rice. There is no support for such an argument. Rice was decided in April of 1981 — three years after AS 11.81.610(b) was enacted, and a year and a half after it went into effect. We therefore conclude that, for fish and game offenses defined in Title 16 and in the regulations promulgated under that title, the holding in Rice remains the controlling law. Civil negligence is the culpable mental state applicable to Orr-Hickey's offenses, and Judge Lohff correctly instructed the jurors on that culpable mental state. Orr-Hickey raises one additional issue, this one relating to her sentencing. At the sentencing hearing, Orr-Hickey's attorney argued that she should receive a suspended imposition of sentence (SIS). As the defense attorney acknowledged, the legal hurdle to such a disposition is AS 12.55.085(f)(2), which provides that a sentencing court may not suspend the imposition of sentence of a person who . uses a firearm in the commission of the offense[.] The defense attorney nevertheless argued that AS 12.55.085(f)(2) should be construed as applying only to criminal offenses defined within AS 11.41, the portion of Title 11 entitled "Offenses Against the Person." Judge Lohff rejected this argument and ruled that the statute precluded him from giving On-Hickey an SIS. On appeal, Orr-Hickey renews her argument that AS 12.55.085(f)(2) should be interpreted as applying only to crimes against people, not all crimes. However, the language of the statute suggests no such limitation. Orr-Hickey concedes the "apparent clarity" of the statute, but she nevertheless argues that the legislature must have intended to limit application of the statute to crimes against people. "[When] a statute's meaning appears clear and unambiguous^] the party asserting a different meaning has a correspondingly heavy burden of demonstrating contrary legislative intent." The plainer the language of the statute, the more convincing the evidence of contrary legislative intent must be in order to justify adopting that different meaning. Orr-Hickey acknowledges that AS 12.55.085(f)(2) was passed with little or no debate and that there is no pertinent legislative history to aid in interpreting the statute. But she argues that the legislature's intention can be gleaned from the other two subsections of AS 12.55.085(f) — subsections (1) and (3). Orr-Hickey argues that both of these other subsections are limited to crimes defined in AS 11.41 (the chapter entitled "crimes against the person") — and so, by implication, subsection (2) must be similarly limited. Orr-Hickey is wrong. The other two subsections of AS 12.55.085(f) are not limited to the offenses contained in AS 11.41. Subsection (1) declares that a sentencing court may not give an SIS to a defendant convicted of various crimes. Among the listed criminal statutes is AS 11.46.400 — first-degree arson. Subsection (3) declares that a sentencing court may not give an SIS to a defendant convicted of any felony if the defendant has a prior conviction for any felony (or for misdemeanor assault). In short, AS 12.55.085(f)(2) declares that a suspended imposition of sentence may not be given to a defendant who used a firearm in the commission of the offense. Because there is no ambiguity in the statutory wording, this court's duty is to enforce the statute as it is written unless there is some very good reason to believe that the legislature intended something different. Orr-Hickey has failed to demonstrate that AS 12.55.085(f)(2) was intended to mean anything other than what it says. One might conceive of policy reasons why the legislature would not want the general rule codified AS 12.55.085(f)(2) to apply to hunting offenses, but that is for the legislature to decide. The judgment of the district court is AFFIRMED. . AS 16.05.920(a); 5 AAC 92.530(4)(B) and 5 AAC 92.140(a). . 626 P.2d 104, 110 (Alaska 1981). . id. . 655 P.2d 1313 (Alaska App.1982). . See at 1316 n. 4. . 736 P.2d 775, 779-80 (Alaska App.1987). . 626 P.2d at 108. . See ch. 166, § 10 & 25, SLA 1978. . Lagos v. Sitka, 823 P.2d 641, 643 (Alaska 1991). . See State v. Alex, 646 P.2d 203, 208 n. 4 (Alaska 1982); State, Dep't of Natural Resources v. City of Haines, 627 P.2d 1047, 1049 (Alaska 1981). . AS 12.55.085(f) provides that (f) The court may not suspend the imposition of sentence of a person who (1) is convicted of a ' violation of AS 11.41.100 — 11.41.220, 11.41.260 — 11.41.320, 11.41.410 — 11.41.530, or AS 11.46.400; (2) uses a firearm in the commission of the offense for which the person is convicted; or (3) is convicted of a violation of AS 11.41.230 — 11.41.250 or a felonyf] and the person has one or more prior convictions for a misdemeanor violation of AS 11.41 or for a felony or for a violation of a law in this or another jurisdiction having substantially similar elements to an offense defined as a misdemeanor in AS 11.41 or as a felony in this stale....

10366297

Lamar PATTERSON, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee

Patterson v. Municipality of Anchorage

1991-08-02

No. A-3660

390

394

815 P.2d 390

815

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Lamar PATTERSON, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.

Lamar PATTERSON, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee. No. A-3660. Court of Appeals of Alaska. Aug. 2, 1991. Stuart G. Ross, Gorton & Oberly, Anchorage, for appellant. Michael R. Stahl, Asst. Mun. Prosecutor, and Richard L. McVeigh, Mun. Atty., Anchorage, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

2057

12324

OPINION BRYNER, Chief Judge. Lamar Patterson was originally charged with driving while intoxicated (DWI), driving while license revoked (DWLR), and refusal to submit to a chemical test of his breath (refusal). Prior to trial, the prosecution dismissed the DWI and DWLR charges; Patterson was tried and convicted on the refusal charge. On appeal, Patterson contends that the district court erred in refusing to instruct the jury that the prosecution was required to prove that Patterson was driving when he was arrested for DWI. We reverse. The relevant facts are undisputed. A van containing Patterson and several other people backed out of an icy driveway in Anchorage and hit a passing car. The occupants of the van, including Patterson, got out. Patterson appeared to be intoxicated. The police were summoned. When Officer Dennis Gum arrived at the scene, he learned from a bystander that Patterson had gotten out of the driver's side of the van. Gum spoke with Patterson, who claimed that his wife had been driving. After speaking with other witnesses and conducting a brief inspection of the accident scene, however, Gum decided that Patterson had been driving and arrested him for DWI and DWLR. Following his arrest, Patterson refused to submit to a breath test; the refusal charge was then added to the charges of DWI and DWLR. Immediately before Patterson's trial, the prosecution dismissed the DWI and DWLR charges because it believed that it would be unable to prove beyond a reasonable doubt that Patterson was driving on the night of his arrest. Patterson proceeded to trial on the refusal charge. At trial, he proposed an instruction informing the jury that, to establish the crime of refusal, the prosecution was required to prove, among other things, that Patterson had been driving. District Court Judge William H. Fuld declined to give the proposed instruction and precluded Patterson from defending against the refusal charge on the ground that he had not been driving. Patterson challenges the trial court's ruling, arguing that he was under no legal duty to submit to a breath test unless he had actually operated a motor vehicle. Patterson was convicted of violating Anchorage Municipal Code (AMC) 09.28.022C, which provides: Refusal to submit to the chemical test of breath authorized by AMC 09.28.021A is a misdemeanor. This provision hinges criminal liability for refusing to submit to a test on the provisions of the municipality's implied consent ordinance, AMC 09.28.021A. The implied consent provision, in turn, extends the duty to submit to a breath test only to "[a] person who operates, drives or is in actual physical control of a motor vehicle....": A person who operates, drives or is in actual physical control of a motor vehicle within the municipality or who operates an aircraft as defined by AMC 09.28.-020E.1 or who operates a watercraft as defined by AMC 09.28.020E.2 shall be considered to have given consent to a chemical test or tests of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath if lawfully arrested for an offense arising out of acts alleged to have been committed while the person was operating, driving or in actual physical control of a motor vehicle or operating an aircraft or a watercraft while intoxicated. The test or tests shall be administered at the direction of a law enforcement officer who has reasonable ground to believe that the person was operating, driving, or in actual physical control of a motor vehicle or operating an aircraft or a watercraft in the municipality while intoxicated. Despite the express wording of the implied consent ordinance, the trial court in this case ruled that the question of whether Patterson had been driving was relevant only to the issue of the lawfulness of his arrest for DWI and that, on this score, the municipality was obligated only to show probable cause to support the conclusion that Patterson had been driving. In reaching this conclusion, the court apparently relied on the latter part of the ordinance, which empowers a breath test to be administered by an officer "who has reasonable ground to believe that the person was operating, driving, or in actual physical control of a motor vehicle...." The trial court correctly recognized that a lawful arrest for DWI — that is, one based on probable cause — was a prerequisite to the admission of evidence of Patterson's refusal to submit to a chemical test. If Gum had lacked probable cause to arrest Patterson, he would not have been entitled to administer a breath test under AMC 09.28.021A. In the absence of probable cause, Patterson would have been entitled to have evidence of his refusal suppressed, regardless of whether he had actually been driving or intoxicated. See Skuse v. State, 714 P.2d 368, 372 (Alaska App.1986). The issue of probable cause for arrest was properly a question of law for the trial court to decide and was not an element of the offense to be submitted to the jury. See Brown v. State, 739 P.2d 182, 187 (Alaska App.1987); Skuse, 714 P.2d at 372. Although Judge Fuld properly recognized the need for the court to resolve the issue of probable cause as a question of law, his ruling went further; the judge went on to rule that the question of whether Patterson was driving could be considered only in connection with the issue of probable cause. To this extent, the district court's ruling confused an officer's authority to request a DWI arrestee to take a test with the arrestee's duty to submit. In contrast to the legal question of whether Gum acted properly in requesting Patterson to submit to a breath test, the issue of whether Patterson had a duty to take the test once requested (and whether he breached this duty by refusing) is a question of fact amounting to a basic element of the crime charged. Under AMC 09.28.-022C, Patterson could be held criminally liable only for refusing to take a test as required under AMC 09.28.021A. Under the plain language of AMC 09.28.021A, implied consent triggers the obligation to submit to a test; and implied consent arises only from the conduct of operating, driving, or being in actual physical control of a motor vehicle. Patterson's duty to submit to a breath test thus hinged on whether he operated, drove, or was in actual physical control of his van. The municipality nevertheless contends that this court's opinion in Brown v. State, 739 P.2d 182 (Alaska App.1987), holds that driving is not an element of the offense of refusal to submit to a chemical test. We disagree. Brown was convicted of refusal under a state statute, AS 28.35.032(f), which is essentially identical to AMC 09.28.-022C. Brown conceded that he had been driving but denied being intoxicated. He appealed the denial of his motion for a judgment of acquittal, which was based on the assertion that the state did not prove that he drove while intoxicated. In deciding Brown, we described the issue as follows: Brown asks us to hold that a person cannot be found guilty of refusing to submit to a breathalyzer examination unless a jury first finds beyond a reasonable doubt that he operated a motor vehicle under the influence of intoxicating liquor. In other words, Brown argues that it is improper to have a jury acquit on the driving while intoxicated charge and nevertheless return a guilty verdict on a refusal charge. Id. at 183 (citation and footnote omitted). We rejected Brown's argument. We held: [I]n order to convict a person of refusing to submit to a chemical test of his or her breath, the state must prove that the individual in question knew or perhaps should have known that the breath test was sought as evidence in connection with an investigation of his or her driving while intoxicated, and, second, that with that culpable mental state, he or she declined the test. Consequently, the trial court did not err in refusing to instruct the jury that it must find that Brown operated a motor vehicle while under the influence of intoxicating liquor as a condition prerequisite to convicting him of refusal to provide a chemical test of his breath. Id. at 186. The municipality reads the foregoing passage from Brown as setting forth an exhaustive list of the elements of the crime of refusal. This reading, however, is mistaken. In Brown, we recited the elements of refusal in the context of a defendant who acknowledged that he operated a motor vehicle. In deciding Brown, this court did not purport to consider whether driving, operation, or physical control of a motor vehicle should be an element of the offense of refusal. Unlike the situation in Brown, proof that a person who has been requested to submit to a breath test was actually driving, thereby impliedly consenting to a test, is a direct element of the offense of refusal, not merely an element of the related offense of DWI. As we have indicated, the gravamen of the offense is the refusal to submit to a breath test that one has impliedly consented to take; implied consent is given by the act of driving, operating, or being in actual physical control of a motor vehicle. Given the plain language of AMC 09.28.-021A, which bases implied consent on actual control of a motor vehicle, there seems to be little basis for extending implied consent beyond situations involving actual control. Implied consent has often been regarded as a legal fiction. The concept is fictitious in the sense that one who drives does not actually consent to submit to a breath test, and the act of driving is not one from which such consent could logically be inferred. To our knowledge, however, this legal fiction has always been predicated on the act of driving, operation, or control; it has never been triggered by the mere appearance — that is, objectively-based probable cause — that the defendant was driving. Moreover, requiring the prosecution to prove driving or actual control would in no way conflict with the concerns that led us to decide in Brown that the prosecution need not prove intoxication as an element of refusal. The primary purpose of the implied consent doctrine and the related mandatory breath test requirement is to enable the government to preserve valuable evidence of a driver's intoxication. By attaching the same penalties to refusal that apply to DWI, the legislature sought to eliminate any incentive for an arrestee to decline a breath test in order to evade conviction for DWI. This legislative purpose would obviously be frustrated if the prosecution were required to prove not only the elements of refusal, but also that the arrestee was intoxicated: faced with the choice of submitting to a breath test and being convicted of DWI, or refusing and being convicted of refusal, an arrestee would have a strong incentive to choose refusal, since the refusal would hamper not only the prosecution's efforts to prove DWI but also its ability to convict for the refusal. In contrast, requiring the prosecution to prove that a person charged with refusal was actually driving does not frustrate the basic purpose of the refusal statute. Refusing to submit to a breath test does nothing to weaken the prosecution's case on the issue of whether an arrestee was driving. Nor does a refusal facilitate an arrestee's ability to establish that he was not driving. Requiring the prosecution to prove driving as an element of refusal gives DWI arrestees no added incentive to refuse breath tests. We thus conclude that proof of a defendant's driving, operation, or actual physical control of a motor vehicle is a necessary element of the offense of refusal to submit to a breath test under AMC 09.28.022C. The trial court in this case erred in reaching a contrary conclusion and in precluding Patterson from arguing, in defense to the charge of refusal, that he had not actually driven. The conviction is REVERSED. . Our reversal of Patterson's conviction makes it unnecessary for us to consider Patterson's remaining claims.

10346091

Jennifer ABBOTT, John Shank, and Virginia Shank, Appellants, v. KODIAK ISLAND BOROUGH ASSEMBLY AS THE ASSEMBLY and in its capacity as a Board of Adjustment on Appeal from the Kodiak Island Borough Planning Commission, Appellees

Abbott v. Kodiak Island Borough Assembly as the Assembly

1995-07-28

No. S-6073

922

926

899 P.2d 922

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.

Jennifer ABBOTT, John Shank, and Virginia Shank, Appellants, v. KODIAK ISLAND BOROUGH ASSEMBLY AS THE ASSEMBLY and in its capacity as a Board of Adjustment on Appeal from the Kodiak Island Borough Planning Commission, Appellees.

Jennifer ABBOTT, John Shank, and Virginia Shank, Appellants, v. KODIAK ISLAND BOROUGH ASSEMBLY AS THE ASSEMBLY and in its capacity as a Board of Adjustment on Appeal from the Kodiak Island Borough Planning Commission, Appellees. No. S-6073. Supreme Court of Alaska. July 28, 1995. John W. Abbott, Anchorage, for appellants. Joel H. Bolger, Karen E. Bendler, Jamin, Ebell, Bolger & Gentry, Kodiak, for-appel-lees. Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

2078

13417

OPINION MATTHEWS, Justice. Jennifer Abbott, John Shank, and Virginia Shank ("Owners") appeal a superior court award of attorney's fees to the Kodiak Island Borough Assembly ("Assembly") arising out of a zoning controversy. Owners argue that the superior court erroneously decided that they are not public interest litigants. Owners also argue that the attorney's fees were excessive, unnecessary, and based on duplicated services. I. FACTS AND PROCEEDINGS In 1991, intending to build a housing development, the Natives of Kodiak applied for the rezoning of a piece of property and for preliminary approval of the property's subdivision plat. The rezoning was opposed by many local residents who own property in the vicinity of the planned development. The residents argued that the rezoning would harm the environment, damage the general character of their neighborhood, create drainage problems, decrease property values, and cause them to pay for road improvements. The dominant concern of the residents appeared to be that the proposed development would result in greatly increased traffic on Woodland Drive, a street on which many of the complainants lived leading to the proposed development. The rezoning and subdivision plat were approved by the Kodiak Island Borough Planning and Zoning Commission and the Kodiak Assembly. Owners, who own property located on Woodland Drive, appealed the Assembly's decision to the superior court. On appeal, among other claims, Owners argued that the rezoning amounted to an unconstitutional taking of property without just compensation. The superior court affirmed the Assembly's decision. The superior court awarded $5,580 in attorney's fees to the Assembly. Owners appeal only the award of attorney's fees. II. DISCUSSION A. Are Owners Public Interest Litigants? Owners argue that the superior court erred by denying them public interest litigant status. "A trial court's determination of whether a party is a public interest litigant is reviewed for an abuse of discretion." Municipality of Anchorage v. Citizens for Representative Governance, 880 P.2d 1058, 1061 (Aaska 1994). To qualify as a public interest litigant, a party must meet a four-part test: (1) Is the case designed to effectuate strong public policies? (2) If the plaintiff succeeds will numerous people receive benefits from the lawsuit? (3) Can only a private party have been expected to bring the suit? (4) Would the purported public interest litigant have [lacked] sufficient economic incentive to file suit . if the action involved only narrow issues [without] general importance? Id. at 1061-62. The superior court denied Owners public interest litigant status because "[t]he bases for several of their issues on appeal show that they had sufficient economic incentives to proceed with the litigation without the issues that were also shared by others." The superior court was also uncertain as to whether numerous people would receive benefits from the lawsuit. In two previous decisions, Oceanview Homeowners Ass'n, Inc. v. Quadrant Construction & Engineering, 680 P.2d 793, 799 (Aaska 1984), and Brookwood Area Homeowners Ass'n, Inc. v. Municipality of Anchorage, 702 P.2d 1317, 1326-27 (Aaska 1985), we granted public interest litigant status to homeowners associations which had challenged zoning decisions. In Oceanview, a zoning board revoked zoning orders which restricted improvements to and the use of a private airstrip located near dwellings of members of a homeowners association. 680 P.2d at 795. The homeowners association appealed the zoning board's action to the superior court. Id. at 797. We decided that the superior court erred by denying the homeowners association public interest litigant status. Id. at 799. We ruled that the first three requirements of the public interest litigant status test had been met because the homeowners' "appeal was designed to vindicate a strong public policy in effectuating zoning ordinances, [because] numerous people in the area would have benefitted had it succeeded, and [because] only a private party could have been expected to bring the appeal." Id. at 799. With regard to the fourth requirement, we stated, "Oceanview's [the homeowners'] consistent emphasis on health and safety to the virtual exclusion of economic concerns indicates that it would not have had 'sufficient economic incentive to bring the lawsuit even if it involved only narrow issues lacking general importance.' " Id. (emphasis added). We followed Oceanview in Brookwood, where a homeowners association appealed a zoning decision which had allowed a development to go forward. 702 P.2d at 1320. The basis for the appeal was an alleged violation of the Open Meetings Act. Id. We affirmed the superior court's decision that the homeowners association was a public interest litigant. Id., at 1326-27. Accepting a statement by the homeowners association that the proposed development would not result in economic injury to its members, we ruled that the homeowners would have lacked sufficient economic incentive to bring suit if the action had not involved issues of general importance. Id. at 1327. Under our decisions in Oceanview and Brookwood, Owners satisfy the first three requirements for public interest litigants. Owners' litigation was partially designed to effectuate strong public policies concerning protection of the environment and ensuring that procedural standards for zoning decisions are properly followed. Numerous property owners in the vicinity of the proposed development would have benefitted from success in the lawsuit. Only a private party could have been expected to bring the suit. The determinative factor is whether Owners would have lacked sufficient economic incentive to file suit if the action involved only narrow issues without general importance. Throughout the administrative and judicial process, Owners argued that the rezoning would amount to a taking without just compensation, would significantly reduce the value of their land, and would require them to pay for improvements to Woodland Drive. For instance, in their statement of points on appeal to the superior court, Owners claimed that the Kodiak Zoning Commission erred "[i]n granting conditional plan approval for a plat that will result in the lowering of adjacent land value without providing for compensation to those adjacent land owners, in contravention of both the State and U.S. Constitutions." Earlier, in a letter to the Assembly sent during the administrative process, Owners' attorney stated that the rezoning "will substantially reduce the market fair value of [Jennifer Abbott's] property" and threatened to file a taking without just compensation lawsuit against Kodiak Island Borough. Thus, this case is distinguishable from Oceanview, where the landowners emphasized health and safety issues "to the virtual exclusion of economic concerns." See 680 P.2d at 799. The homeowners in Oceanview probably did suffer some economic injury as a result of the zoning action they challenged. See supra note 2. However, in this case, Owners believed the economic harm facing them was so substantial that they felt they had a viable taking without just compensation claim. As a result, this case is unlike Oceanview and Brookwood and is more analogous to Stein v. Kelso, 846 P.2d 123 (Alaska 1993). In Stein, a group of miners contested the Department of Environmental Conservation's (DEC) certification of two pollution discharge permits. Id. at 124. The permits lowered the pollutant amounts permitted in wastewa-ter emitted by the miners' mining operations. Id. at 125. The miners appealed the certification to the superior court, arguing that they were deprived of a property interest without just compensation or due process of law, and the superior court affirmed. Id. at 124. We upheld the superior court's determination that the miners were not public interest litigants. Id. at 127. We stated: The miners' own pleadings show that they sought a ruling that they had "lost their property rights and must be justly compensated." Although the miners now maintain that they would not receive any direct economic benefit from a favorable decision concerning DEC certification procedures, this assertion is in direct contradiction to their requested relief. Id. Likewise, in this case, Owners first made a taking without just compensation claim and now "maintain that they would not receive any direct economic benefit from a favorable decision . in direct contradiction to their requested relief." See id. Therefore, the superior court's finding that Owners "had sufficient economic incentives to proceed with the litigation without the issues that were also shared by others" is not clearly erroneous. We affirm the superior court's decision that Owners were not public interest litigants. B. Was the Attorney's Fees Award Improper Because of Duplicated, Unnecessary, or Excessive Services? 'Where a trial court sits as an intermediate appellate tribunal, it has broad discretion to award a party reasonable attorney's fees." Cook Inlet Pipe Line Co. v. Alaska Pub. Util. Comm'n, 836 P.2d 343, 354 (Alaska 1992). "A trial court's award will be affirmed unless there has been a clear abuse of discretion." Lyman v. State, 824 P.2d 703, 706 (Alaska 1992). "We will overturn an award of attorney's fees and costs only if such an award was 'manifestly unreasonable.' " Id. (citing Blackford v. Taggart, 672 P.2d 888, 891 (Alaska 1983)). Owners argue that the trial court abused its discretion in basing its award of attorney's fees on duplicated attorney services, pointing out that the Assembly's attorneys worked on the case in two different offices. However, Owners fail to "give any examples of duplicative and unnecessary services, by record citation or otherwise," and have consequently "failed to meet [their] burden of showing a clear abuse of discretion by the superior court." See State v. Fairbanks N. Star Borough Sch. Dist., 621 P.2d 1329, 1335 (Alaska 1981). Owners also argue that the superior court abused its discretion by basing its award on actual attorney's fees which were unnecessary and excessive. Owners have not demonstrated that the fees were unnecessary or excessive. The Assembly submitted a de tailed itemization of attorney services, and the superior court found that the fees "were necessarily incurred, and the hourly rates and the hours spent were reasonable." The superior court did not abuse its discretion. III. CONCLUSION The superior court did not err in concluding that Owners were not public interest litigants. Their taking without just compensation claim and other repeated assertions that they would suffer a significant economic detriment from the proposed rezoning could reasonably be regarded as evidencing sufficient economic incentive to file suit. Owners did not demonstrate that the attorney's fees were unnecessary, excessive, or based on duplicated services. The attorney's fees award is AFFIRMED. . In another case, Anchorage v. McCabe, 568 P.2d 986 (Alaska 1977), a group of homeowners appealed a zoning decision which permitted the construction of two eleven-story buildings in their neighborhood. The superior court, the City of Anchorage, and the homeowners all agreed that the homeowners were public interest litigants. Id. at 989. We thus did not have occasion to discuss whether it was proper to treat the homeowners as public interest litigants. . We rejected an argument that the homeowners did not deserve public interest litigant status because they had claimed for purposes of gaining standing that "the immediate effect of the [zoning] decision is to deny or dimmish the value of real property owned or leased by" them. Id. at 799 n. 3. We stated, "This is the only reference to economic concerns to be found in the record." Id. This reference to possible economic losses did not demonstrate that the homeowners would have had sufficient economic incentive to bring suit if the action had not involved issues of general importance, as it was an isolated statement made only for standing purposes. See id. . The only specific time expenditures of the Assembly's attorneys which Owners point to as unnecessary or excessive are the following: [O]n 06/03/92 JHB spent 12 minutes reviewing a motion for extension of time; on 06/05/92 WWM spent 12 minutes reviewing extension documents; numerous entries for review of what are apparently one-page written matters each taking 6 minutes; on 09/01/92 18 minutes was required to prepare a form request for oral argument; on 09.10.92 18 minutes was consumed in reviewing a motion for extension of time and preparing a non-opposition; a total of 7.6 hours was spent in "file review" while a total of 74.6 hours was expended in "research and writing" of the briefs. Owners did not give reasons as to why these time entries represented an unreasonable expenditure of time.

10361745

STATE of Alaska and Don Wilson, Appellants and Cross-Appellees, v. Riley T. MORRY and Kwethluk Ira Council, Appellees and Cross-Appellants

State v. Morry

1992-07-10

Nos. S-4632, S-4660

358

371

836 P.2d 358

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.

STATE of Alaska and Don Wilson, Appellants and Cross-Appellees, v. Riley T. MORRY and Kwethluk Ira Council, Appellees and Cross-Appellants.

STATE of Alaska and Don Wilson, Appellants and Cross-Appellees, v. Riley T. MORRY and Kwethluk Ira Council, Appellees and Cross-Appellants. Nos. S-4632, S-4660. Supreme Court of Alaska. July 10, 1992. Rehearing Denied Aug. 13, 1992. Stephen M. White, Asst. Atty. Gen., Charles E. Cole, Atty. Gen., Juneau, for appellants/cross-appellees. William E. Caldwell, Fairbanks, Carol A. Daniel, Anchorage, Alaska Legal Services Corp., for appellee/cross-appellant, Morry. John Sky Starkey, Bethel, for appel-lee/cross-appellant, Kwethluk IRA Council. Eric Smith, Anchorage, for Arctic Regional Council and Ninilchik Traditional Council, amici curiae. Robert T. Anderson, Native Americans Rights Fund, Anchorage, for Kluti Kaah Native Village of Copper Center, amicus curiae. Michael A.D. Stanley, Juneau, for United Cook Inlet Drift Ass’n, amicus curiae.

7520

48000

OPINION Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON, and MOORE, JJ. RABINOWITZ, Chief Justice. INTRODUCTION Alaska's big game tag regulation requires a brown bear hunter to purchase a numbered, nontransferable tag before hunting and then, after taking a bear, affix and keep the tag on the animal until it is stored, consumed, or exported from the state. 5 AAC 92.012(c). Brown bear sealing regulations require that a hunter keep the skin and skull of a bear if taken in certain game management units, and within thirty days, have a state official stamp a seal on these parts. At sealing, the official obtains a tooth from the skull, and the hunter signs a sealing certificate. 5 AAC 92.165. At issue in this appeal is the validity of these regulations under Alaska's subsistence preference law. In July 1985, appellee/cross-appellant, Riley T. Morry, an Inupiat subsistence hunter, was charged with shooting a brown bear without complying with the above regulations. As a result of a criminal prosecution brought against him for failure to comply with the regulations (later dismissed), Morry filed for declaratory relief and damages against the State of Alaska and Trooper Don Wilson, challenging the validity of 5 AAC 92.012 and 5 AAC 92.165 under both federal and state subsistence laws. Kwethluk IRA Council is the governing body for the Yup'ik Eskimos of the Native Village of Kwethluk which is located in the Lower Kuskokwim area of Southwest Alaska. Kwethluk intervened in this case following unsuccessful rule-making proposals it had made to the Board of Game seeking changes in various regulations which were being applied to the subsistence hunting of brown bears by the people of Kwethluk. FACTS & PROCEEDINGS: On June 30, 1984, Morry obtained a $25 Alaska brown/grizzly bear tag and a "Gates of the Arctic National Park Grizzly Bear Hunting Permit No. 6 from Alaska Division of Fish and Game's (ADF & G) designated agent in Anaktuvuk Pass," The $25 bear tag expired on December 31, 1984; however, it did not state that it expired less than 12 months after purchase. The Gates of the Arctic permit stated that it was valid from July 1, 1984 through June 30, 1985. In May 1985, Morry killed a grizzly bear and distributed the meat to various households. Morry also notified the ADF & G agent that he had taken the bear. Subsequently, the agent went to Morry's house and "sealed" the bear hide with a metal tag, and filled out an ADF & G "sealing certificate" form. The agent did not "seal" the bear skull with a metal tag because it needed cleaning. Upon learning of this bear harvest, Trooper Don Wilson initiated an investigation and proceeded to file a criminal complaint against Morry charging him with four misdemeanors — failure to obtain a "locking tag," failure to affix such a tag, failure to obtain a permit, and failure to seal the skull — and recommending punishment of 30 days in jail and a $800 fine. The State voluntarily dismissed the criminal charges against Morry on October 16, 1985. Morry continued to challenge the two regulations under federal and state subsistence laws. Subsequent to the original briefing in the superior court, this court struck down the "rural preference" of the 1986 subsistence law in McDowell v. State, 785 P.2d 1 (Alas ka 1989). After further briefing, the superior court preliminarily invalidated the challenged regulations and granted the board 90 days within which to review the application of the regulations to subsistence uses under Alaska's subsistence laws as construed in its decision. Judge Jeffery based his decision on a finding that the Board of Game had failed to analyze the applicability of these regulations to subsistence uses under the 1986 subsistence preference law, AS 16.05.258(c), and hence had violated both the subsistence preference law and the Administrative Procedures Act. Of particular significance is the superior court's conclusion that the board had been applying trophy or general big game hunting regulations to subsistence uses without conducting any analysis of the effect these regulations were having on subsistence uses. As guidance for the board when reviewing the regulations, the superior court addressed and rejected Morry's contention that it was impermissible for the board, at the first-tier level, when the resource is sufficiently abundant to satisfy all subsistence uses, to impose any regulatory restrictions upon customary and traditional patterns and practices of resource harvesting. The court rejected this argument on the basis that the 1986 statute specifically states that: "[tjakings authorized under this section are subject to reasonable regulation of seasons, catch or bag limits, and methods and means." AS 16.05.258(f). However, the superior court found that the manner of such regulating is still subject to special protection for subsistence uses. If the state is allowed to issue complex regulations for subsistence uses — violation of which can result in substantial fines or jail time — the protection given to subsistence uses can be eroded just as surely as if the numbers of game available for subsistence uses were sharply reduced or eliminated. When the state undertakes such regulation, it must show that the requirements fulfill the goals of 'conservation, development, and utilization' of the game resource and that the regulations are the least intrusive means available to accomplish these goals. Thereafter, the state moved for an extension of time of the 90-day deadline for action by the Board of Game and also asked for a stay pending appeal. Morry opposed the state's motion, and in addition, moved for further relief (as to the board's adoption and implementation of its "all Alaskans" policy), and for the entry of judgment pursuant to Civil Rule 54(b). On May 18, 1991, the court granted Kwethluk's motion for leave to intervene nunc pro tunc to May 24, 1990. On May 23, 1991, the court entered judgment and filed a decision denying the state's motion for any further extension of time, and granted in part the motions of Kwethluk and Morry for further relief. In its decision, the superior court permanently invalidated the regulations (subject to the right of the board to conduct the review required by the October 1990 decision) and enjoined application of the regulations to subsistence brown bear hunting in the game management units (GMU) at issue. The court stated: This court has expected Board of Game compliance so that the court and the public would have had the benefit of the board's expertise in evaluating the continuing validity of these regulations as applied to subsistence uses of brown/grizzly bear in the particular game management units at issue in this case. October 16th Decision at 24-25. Since the Board of Game apparently finds it impossible to undertake this review until its March, 1992, meeting, the court has no alternative but to craft an interim order regulating subsistence hunting of brown/grizzly bear in Game Management Units 17A, 17B, 18, 19A, 19B, 24, and 26, pending board action and court review, as discussed later in this memorandum. The interim regulations and the interim finding of invalidity of the existing regulations are necessary to protect subsistence hunters from prosecution under an invalid regulatory scheme as applied to subsistence use of brown/grizzly bear in these game management units. The superior court then directed the State to implement a system allowing subsistence users hunting in these GMUs to each take one bear per year, but with the requirement that a harvest report be submitted to ADF & G within fifteen days of a taking, as set forth for moose taken for funeral potlatches in 5 AAC 92.019. The court reasoned that "[t]his manner of interim regulation is likely to yield greater information for the Department concerning brown/grizzly bear usage in North and Northwest Alaska than the current regulations." The court further noted that "[t]he existence of the interim regulatory scheme will eliminate the problem of unregulated subsistence hunting discussed in [State v.] Eluska," 724 P.2d 514, 516 (Alaska 1986). Additionally, the superior court declared invalid the Joint Boards' policy statement declaring that "all Alaskans are now eligible subsistence users," and its corollary that all subsistence regulations must have state-wide uniformity, unless interpreted to mean that 'all Alaskans are eligible to be considered subsistence users' if, prior to subsistence hunting, their individual use of fish and game meets criteria for 'noncommercial, customary and traditional' subsistence uses of the particular fish and game population being harvested, under criteria established by regulation such as 5 AAC 99.010(b). (Emphasis in original.) The court also rejected plaintiff's challenge to the Joint Boards' action in repealing and modifying certain provisions of the "eight criteria regulation," 5 AAC 99.010(b), concluding that "[a] fair reading of the McDowell decision . supports these actions taken by the Joint Boards." The state now appeals from the superior court's invalidation of the regulations, the form of remedy granted by the court, and its ruling on the "all Alaskans" policy. Morry and Kwethluk cross-appeal the superior court's holdings that the changes to the eight-criteria regulation are valid, and also the implication in the superior court's ruling that under McDowell only individual, not community-based, patterns of use may be protected. I. DID THE SUPERIOR COURT ERR IN INVALIDATING THE CHALLENGED REGULATIONS? Morry and Kwethluk assert that the challenged brown bear regulations were adopted by the Board of Game without consideration of, or compliance with the applicable laws relating to subsistence. The central point of their argument is that AS 16.05.258(c) commands that the Board of Game "shall adopt . subsistence hunting regulations for each . population for which a harvestable portion is determined to exist." (Emphasis added.) Morry and Kwethluk submit that the "noncommercial, customary, and traditional uses" standard contained in the definition of "subsistence uses" in AS 16.05.940(30) is plainly related to non-trophy uses that are "for direct personal or family consumption as food, shelter, fuel, clothing, tools or transportation," for the "making and selling" of handicrafts, and for "customary trade, barter, or sharing." Morry and Kwethluk argue that in order for a reviewing court to insure both that the agency has in fact taken a "hard look" and that the courts are able to perform their judicial-review obligations, non-adjudicative decisions of an agency must be supported by an adequate decisional document. Citing Peninsula Marketing Ass'n v. State, 817 P.2d 917, 923 (Alaska 1991), quoting Messerli v. Department of Natural Resources, 768 P.2d 1112, 1118 (Alaska 1989). Here they point out that this court is completely disabled from reviewing the subject regulations for consistency with the subsistence laws, because the APA rule-making hearing, which would have provided a record demonstrating careful consideration of the applicable subsistence laws, was never held. Accordingly, Morry and Kwethluk contend that the superior court did not err in finding that the application of the regulations to subsistence uses is wholly arbitrary and thus invalid. The State and Wilson do not directly address the issue of whether the regulations violate the APA or the subsistence preference laws. Instead, they assert that the superior court employed an incorrect analysis in its review of the questioned big game fee and bear sealing regulations. They argue that the superior court erred in substituting its judgment for the board's judgment in an area "where highly specialized agency expertise is involved," Citing Meier v. State, 739 P.2d 172, 174 (Alaska 1987). The State and Wilson assert that the superior court invalidated the regulations because they do not generate enough information. In this regard they argue that the superior court acknowledged that there was some compliance with the regulations and that as a consequence, some information was collected. Given this function, they argue that the regulations were reasonable, not arbitrary. "How well they served this purpose was not a proper inquiry of the superior court." As noted above, AS 16.05.258(c) mandates that the Board of Game "shall adopt subsistence . hunting regulations for each . population for which a harvesta-ble portion is determined to exist". (Emphasis added.) Given this command, we conclude that Morry and Kwethluk's argument, that these trophy hunting regulations do not constitute compliance with the requirement of AS 16.05.258(c) that the Board of Game adopt subsistence hunting regulations for the game in question, is persuasive. In particular, we find compelling the following arguments which were advanced by Morry and Kwethluk: [wjhatever the 'noncommercial, customary and traditional uses' standard of the definition of 'subsistence uses' in AS 16.-05.940(30) may mean, it is plainly related to non-trophy uses that are 'for direct personal or family consumption as food, shelter, fuel, clothing, tools or transportation,' for the 'making and selling' of handicrafts, and for 'customary trade, barter or sharing.' There is no hint that hunting for trophies is a subsistence use_ Many people, both residents of the state and non-residents, hunt grizzly bears for trophies and leave the meat at the kill site . But it is not a subsistence use, and plaintiffs have contended throughout that it is manifestly unreasonable to apply the regulatory regime designed to govern such trophy-hunting practices to the uses in those places, such as Kwethluk and Anaktuvuk Pass, where brown bears are hunted for the meat and raw materials. (Footnote omitted.) Alternatively, we uphold the superi- or court's invalidation of the questioned regulations on the ground that these regulations were adopted by the board in violation of the Administrative Procedure Act (APA). Alaska Statute 16.05.255(a) grants the board authority to "adopt regulations it considers advisable in accordance with the APA." Thus, it is undisputed that it is within the board's rule making powers to consider the applicability and adoption of these questioned regulations to subsistence uses, provided appropriate public notice has been given. AS 44.62.190(a), 16.05.255, 16.-05.258(b). Here Morry and Kwethluk correctly note that no hearing was ever held regarding the challenged regulations for consistency with the subsistence law prior to their adoption as subsistence regulations. Given this absence of any hearing, we conclude that the superior court's holding invalidating these tag/fee and sealing regulations, as subsistence regulations applicable to the taking and use of brown/grizzly bears in the affected game management units, should be sustained. II. DID THE SUPERIOR COURT ERR IN USING THE "LEAST INTRUSIVE" STANDARD? The superior court noted that the "least intrusive" standard must be implied as a rule of construction for the "reasonable opportunity" language of the 1986 state subsistence law. The State and Wilson argue that the written words of the subsistence law only mention "reasonable opportunity" in two places, and in neither location does the text mention "least intrusive." The State also points to the relevant legislative history, and submits that, as the subsistence law was being developed, "reasonable opportunity" was explained twice. (See Memorandum from Senate Resources Committee Staff to Senate Resources Committee Members (March 12, 1986); Address by Senator Vic Fischer to the Alaska State Senate (May 9, 1986)). However, on neither occasion was the "least intrusive" standard mentioned. The State further argues that the "least intrusive" standard is absent in the three logical places in the statute where the fish and game laws deal with the regulations of subsistence hunting and fishing. The State contends that the superior court's reliance on ANILCA is flawed. It bases this contention on the proposition that although the subsistence law was enacted in part to comply with ANILCA, "each law is a separate piece of legislation with its own legislative history and distinct provisions." The State argues "[t]he term that the superior court says is modified by the 'least intrusive standard' — the 'term reasonable opportunity' — does not even appear in the federal law." See 16 U.S.C.A. § 3111-3126 (1985). The State next argues that since state law is now out of compliance with ANIL-CA, the state is no longer implementing federal policy on federal "public lands." Hence, the purpose statement of ANILCA (from which the superior court derived the "least intrusive" standard) should not af- feet the state's implementation of its own law on its own lands. The State further argues that the "least intrusive" standard applies to the use of land, and the use of land is addressed in a section of ANILCA (§ 3120) that is entirely separate from the sections of ANILCA that deal with the use of subsistence fish and game — 16 U.S.C.A. § 3113-3117 (1985). The State's final argument is that the "least intrusive" standard would require a significant change in the method the boards use to adopt regulations. In this regard the State submits that since the boards are not required to provide for a certain style of hunting and fishing, there is nothing that can be intruded upon. Morry and Kwethluk argue that the "least intrusive" standard is the appropriate one for insuring board compliance with the law. They support this position by stressing that the subsistence law does more than merely direct the boards to take subsistence into account in the course of making regulations. The law mandates that those uses be given preference over all others. Morry and Kwethluk also assert that the State errs in looking to the statute for the words "least intrusive", because the key word in the statute is "preference". They submit that the question before the superi- or court, and the one presented here, is what standard the courts insist upon to insure that the mandatory preference is in fact being accorded. Morry and Kwethluk contend that the superior court drew the least intrusive standard from the overall structure and intent of the statute, from the judicial construction of the comparable provisions of ANILCA, and from analogous areas of law in which hunting and fishing rights are accorded a priority in law. They emphasize that the "reasonable opportunity" that the legislature requires is not merely some abstract opportunity; it is, rather, a priority opportunity. We find the State's arguments persuasive. The least intrusive standard is not explicitly mentioned in the text of our subsistence preference laws nor can such a standard be reasonably implied from the fact that the subsistence law accords a "preference" to subsistence users. As the State notes: The subsistence law, however, provides a preference only by giving subsistence users 'reasonable opportunity' to harvest the resource. If this 'reasonable opportunity' defined according to customary and traditional harvest levels, reasonable expectations, and access — cannot be furnished because of the demands of other user groups, then these other groups must be cut out. This is how the priority arises, not through Morry's elusive standard of judicial review. III. DID THE SUPERIOR COURT ERR IN INVALIDATING THE STATE'S INTERPRETATION, FOLLOWING McDowell, that as 16.05.258 PROVIDES NO STATUTORY GROUNDS FOR DISTINGUISHING BETWEEN BENEFICIAL USERS AT THE FIRST TIER LEVEL? The State and Wilson contend that the state subsistence law does not authorize or give guidance to the boards of fish and game on how to determine which individuals may engage in "first tier" subsistence hunting and fishing. The State first advances an historical argument based on the legislative evolution of the subsistence statute. The State asserts that under the original 1978 subsistence law, when there was enough fish and game for all subsistence uses, i.e., at the "first tier" of abundance, there was no authority for the boards of fish and game to decide that some Alaskans could be subsistence harvesters, but others could not. Only at the second tier level, when resources declined below a level where all subsistence uses could be satisfied, did the board have authority to establish criteria for differentiating between users. The State notes that the board's attempt to differentiate between first tier users through the imposition of a rural/nonrural distinction failed upon review by this court. Citing Madison v. Alaska Dept. of Fish and Game, 696 P.2d 168, 174 (Alaska 1985). The board had argued that it had statutory authority under the "customary and traditional" phrase of AS 16.05.940(31) (formerly AS 16.05.940(23)) to define first tier subsistence users by their area of residence. Id. In Madison we rejected the board's contention and held: First, the argument ignores the two-tier structure of AS 16.05.251(b) that defines only the second-tier subsistence users in terms of residency. If the legislature had intended to define the class of first-tier general subsistence users by area of residence, it would not have expressed that factor with respect to only the second tier of preferred subsistence users. Moreover, the phrase 'customary and traditional' modifies the word 'uses' in AS 16.05.940(23). It does not refer to users. The 1978 subsistence law refers to 'customary users' at only one point, when it defines the preferred subsistence users of the second tier with the three statutory criteria in AS 16.05.251(b). The legislative history indicates that the legislature intended to protect subsistence use, not limit it. The words "customary and traditional" serve as a guideline to recognize historical subsistence use by individuals, both [NJative and non-[N]ative Alaskans. In addition, subsistence use is not strictly limited to rural communities. For these reasons, the board's interpretation of 'customary and traditional' as a restrictive term conflicts squarely with the legislative intent. When the legislature thereafter attempted to amend the 1978 subsistence law to add statutory authorization for distinctions between individuals at the first tier this court invalidated the rural/urban distinction as violative of sections 3, 15 and 17 of article VIII of the Alaska Constitution. On remand in McDowell the superior court severed the rural criteria from the law, but left the subsistence mandate and priority in place. McDowell v. Collinsworth, No. 3AN-83-1592 Civil (Alaska Super., July 12, 1990). The State observes that following McDowell, the four superior courts that have attempted to distinguish between first tier eligibility users, have all fallen into the trap of applying "customary and traditional" to users not uses, inconsistent with this court's mandate in Madison. The State contends that this interpretation doesn't work, for If only residents who have customarily and traditionally used subsistence resources can continue to harvest them in the future, existing Alaskans who had not used subsistence resources, as well as all future Alaskans, would not be eligible to participate in subsistence harvests. Surely, this could not satisfy the common use mandate of article 8, section 3, of the Alaska Constitution. See Owsichek v. State, 763 P.2d 488 (Alaska 1988). The State next argues that the present subsistence law does not contain statutory authorization allowing the boards to adopt criteria that will eliminate some Alaskans as eligible first tier subsistence users. The State notes that in McDowell, this court spoke of "individual characteristics" as a system that may be enacted, not as a system that already exists for first tier eligibility. 785 P.2d at 9. Moreover, the State contends that if individual criteria were used to distinguish first tier users, this would violate the rule known as expressio unius est exclusio alterius. -The State explains that "[t]his rule says that to enumerate specific terms specifically excludes those which are not enumerated." The State points out that this court followed the reasoning of this rule in Madison when it stated: "If the legislature had intended to define the class of first tier general subsistence users by area of residence, it would not have expressed that factor with respect to only the second tier of preferred subsistence users." 696 P.2d at 174. The State argues that "[l]ikewise, had the 1986 legislature intended to define the class of first tier general subsistence users by both area of residence and by individual characteristics, it would not have expressed individual i.e., dependency, local residence and availability of other resources, with respect to only the second tier of preferred subsistence users." Based on these arguments, the State concludes that the superior court erred in invalidating the State's policy that all Alaskans are now eligible, since McDowell, to become first tier subsistence users. Morry and Kwethluk argue that the superior court correctly invalidated the "all Alaskans policy." They do not dispute that following McDowell, all Alaska residents, be they rural, urban or suburban, are eligible to participate in subsistence uses on lands and waters over which the state continues to have jurisdiction. Morry and Kwethluk submit that the issue to be resolved is whether the law (with its rural preference provisions severed) not only makes all residents eligible to participate in subsistence uses, but also makes them automatically eligible to go anywhere in the state and participate in any previously recognized local subsistence use. Morry and Kwethluk submit that the fallacy of the State's position is best illustrated by comparing it with the "acknowledged meaning of the law prior to McDowell." Under the 1986 law, "all rural Alaskans" were eligible to be first tier subsistence users. They contend that even under the 1986 law, villagers from Kwethluk could not travel to the area of Anaktuvuk Pass to hunt grizzly bears as subsistence hunters, or vice versa. Morry and Kwethluk further argue that the reason why residents of one region could not travel to another region and engage in subsistence uses was not based on the character ("rural" or "urban") of their respective places. Instead, it was based upon the statutory definition of subsistence uses as "customary and traditional uses" (AS 16.05.940(31)), and upon the application of the eight criteria (5 AAC 99.010(b)) the board adopted in 1982 for identifying such uses. Morry and Kwethluk assert that following McDowell, the State modified its subsistence policy without making new findings with respect to subsistence patterns of the previously excluded class of urban users. They contend that because the boards have embarked on the "all Alaskan policy," having arbitrarily modified the "customary and traditional use" findings of 5 AAC 99.025 so as to make all residents automatically eligible to participate in any recognized subsistence hunt, there are no longer enough bears to satisfy all users. Morry and Kwethluk next argue that the essence of Judge Cutler's clarification orders and final judgment was that the subsistence statute still had legal effect, even after the unconstitutional portions had been severed. See McDowell v. Collinsworth, No. 3AN-83-1592 Civil (Alaska Super., June 20, 1990). The board's response, however, was to express the "contention that' the courts have required action to identify subsistence users which is impossible to comply with at this time under these legal constraints." Policy Statement # 90-18-JB (October 28, 1990). "The boards therefore asserted that they 'have no other option than to apply the standard that all Alaskans are now eligible subsistence users under Tier I during the upcoming regulatory cycle.' " Id. Contrary to the State's position, Morry and Kwethluk contend that the "customary and traditional use" standard of the subsistence law was intended to, and does, provide grounds for distinguishing among different patterns of subsistence resource harvest and disposition on the basis of local area customs and traditions, and for differentiating between differently situated subsistence user groups on the grounds of their respective traditional use patterns (as distinguished from their places of residency). Morry and Kwethluk assert that this methodology is not unconstitutional, nor does it run afoul of McDowell, "and is in fact the system contemplated by the law— as the superior court has held." On the basis of the parties' arguments, our relevant decisions, and upon consideration of the applicable statutory provisions, we conclude that the superior court erred in its determination as to who is eligible to participate in subsistence hunting and fishing at the first tier. Simply stated, after McDowell there are no statutory standards for determining those individuals who are ineligible to participate in subsistence hunting and fishing. Prior to our decision in McDowell only rural Alaskans were eligible to participate in subsistence hunting and fishing. Post McDowell, and under the current subsistence statute as impacted by McDowell, all Alaskans are eligible to participate in subsistence hunting and fishing. Under the holding of Madison, the board lacks the authority to adopt eligibility criteria for first tier subsistence users absent specific statutory authorization. As the subsistence statute presently stands (post McDowell) there are no legislatively enacted standards of eligibility for first tier subsistence users. Given this absence of specific authorization, we hold that the board lacks the authority to adopt eligibility criteria for first tier subsistence users. In reaching the above conclusions we have in essence adopted the State's analysis of this issue. More particularly, in part we adopt the following reasoning advanced by the State: By virtue of the legislature's enactment of chapter 151 SLA 1978 (the predecessor to the current subsistence statute) two tiers of subsistence users were created. At the first stage, if sufficient wild resources exist, then all Alaskans were eligible to engage in the subsistence harvests of fish and game. In the event of a species or resource insufficiency, the board was empowered to establish eligibility criteria based on customary dependence, local residency and unavailability of alternative resources. In 1980 the board adopted ten criteria in an attempt to eliminate some Alaskans from the first tier of subsistence users. In 1985 in Madison (as noted above) this court rejected the board's contention that it possessed the statutory authority under the "customary and traditional" phrase of AS 16.05.940(31) (formerly AS 16.05.940(23)) to define first tier subsistence users by area of residence. 696 P.2d at 174. In so doing it was stated that "the phrase 'customary and traditional' modifies the word 'uses' in AS 16.05.940(23). It does not refer to users." Id. After Madison all Alaskans were eligible to participate in subsistence harvests and uses of fish and game. In response to Madison the legislature amended the 1978 subsistence law to restrict subsistence harvests and uses at the first tier to rural residents. Given McDowell's holding that this rural criterion was unconstitutional, all Alaskans are once again eligible to participate in first tier subsistence harvests and uses. In brief, Madison contradicts any implication that the board has statutory authority to adopt eligibility standards for first tier subsistence users. IV. DOES THE STATE SUBSISTENCE LAW REQUIRE THE BOARDS OF FISHERIES AND GAME TO PROTECT THE CUSTOMARY AND TRADITIONAL CHARACTER OF SUBSISTENCE HUNTING AND FISHING, INSOFAR AS THESE CUSTOMS AND TRADITIONS ARE SUBJECT TO THE REGULATORY JURISDICTION OF THE BOARDS? The State takes the position that the subsistence preference law does not re quire the boards of fish and game to protect the customary and traditional character of subsistence hunting and fishing. The State contends, however, that the boards have discretionary authority to do so under their general authority to regulate the methods and means of pursuing, capturing, and transporting fish and game. AS 16.05.251(a)(4), AS 16.05.255(a)(6). The State argues that the superior court's interpretation, that the boards are required to protect the customary and traditional character of subsistence hunting, is not supported by the literal language of the subsistence preference law. In AS 16.05.258(a), 'customary and traditional' is used to define the fish stocks and game populations that are subject to subsistence uses. Elsewhere, these words are used to define how subsistence fish and game are used, that is, how these resources are consumed after they are harvested. AS 16.05.940(31). (Emphasis in original.) The State further contends that the superior court failed to distinguish the taking of subsistence resources — which is not limited to "customary and traditional" methods and means— from the use of these resources after they have been taken. The State also contends that the superior court was incorrect when it concluded that the subsistence law does not just preserve an amount of fish and game for subsistence users. It insists that AS 16.05.258 requires the boards to first identify stocks and populations, then determine what portions can be harvested consistent with sustained yield. The boards next must determine how much is needed to provide a reasonable opportunity to satisfy subsistence uses. When the law describes the subsistence priority, it consistently refers to harvestable portions. AS 16.05.258(c). The State concludes that in essence, the subsistence law describes a process for determining a quantitative amount of fish and game that will provide subsistence users with a "reasonable opportunity" to satisfy their customary and traditional consumptive uses. It does not require that the boards preserve a qualitative way of harvesting these resources. Morry and Kwethluk counter that the subsistence law broadly protects the customs and traditions, as well as the needs, of subsistence users insofar as these customs and traditions are subject to the regulatory jurisdiction of the boards. Morry and Kwethluk submit that it has been recognized from the beginning that the "customary and traditional" concept of subsistence involves more than merely what is done with the resource after it is harvested. They support their contention by quoting from a decision rendered by this court, contemporaneously with the passage of the initial subsistence law: For hundreds of years, many of the Native people of Alaska depended on hunting to obtain the necessities of life.... A few non-Natives have adopted similar means of livelihood.... Not only is the game of prime importance in furnishing the bare necessities of life, but subsistence hunting is at the core of the cultural tradition of many of these people. It has been claimed that their very lifestyle is threatened if they are deprived of this traditional method of obtaining the wherewithal for existence. State v. Tanana Valley Sportsmen's Ass'n, 583 P.2d 854, 859 n. 18 (Alaska 1978); see also McDowell, 785 P.2d at 19 n. 13 (Rabinowitz, J., dissenting). Morry and Kwethluk assert that these patterns, customs, and traditions have been identified through application of the eight criteria, which the legislature approved when it amended the law. In their view these criteria describe more than mere consumption of the resource. "[T]hey appear to attempt, at least, to incorporate most aspects of use, including those that take place before, during and after harvest, such as handing down hunting skills and values, cultural and social importance, seasonal patterns, and the like." Morry and Kwethluk further contend that this court previously struck down a similar argument by the State, designed to manipulate the term "customary and traditional": The legislative history indicates that the legislature intended to protect subsistence use, not limit it. The words "customary and traditional" serve as guidelines to recognize historical subsistence use by individuals, both [Njative and non-[Njative_ [Tjhe board's interpretation of 'customary and traditional' as a restrictive term conflicts squarely with the legislative intent. Madison, 696 P.2d at 176 (footnote omitted). Based on the above arguments, Morry and Kwethluk submit that the superior court's remand instructions directing the board of game to afford reasonable regulatory recognition and protection for the customs and traditions of the people of Kweth-luk and Anaktuvuk Pass, in connection with their harvest and utilization of brown/grizzly bears should be affirmed. We agree with the State's analysis of this issue and with its position that "[cjlearly the boards may adopt regulations that recognize the needs, customs, and traditions of Alaska residents." (Emphasis in original.) Our holding is not to be taken as a direction to the boards that they should not consider traditional patterns and methods of taking fish and game for subsistence purposes in their formulation of appropriate subsistence regulations. Analysis of the applicable statutory provisions leads us to the conclusion that the boards have the discretion, but are not mandated, to take into consideration the traditional and customary methods of subsistence takings in their formulation of subsistence regulations. Of controlling significance here is the fact that under AS 16.06.940(30) the terms "customary and traditional" define how fish and game are used, not how they are harvested, for subsistence purposes. CONCLUSION In light of the above we AFFIRM the superior court's invalidation of 5 AAC 92.-012(c) (brown bear tag fee requirement) and 5 AAC 92.165 (bear sealing require ment) as subsistence regulations. We REVERSE the superior court's holding that the boards' All Alaskans policy for first tier eligibility is invalid. We REVERSE the superior court's adoption of a "least intrusive standard", and REVERSE the superior court's holding that the boards must take into consideration customary and traditional patterns and methods of harvesting game and fish for subsistence purposes in formulating subsistence regulations. Given these holdings it follows that the superior court's orders establishing bag limits and new reporting requirements for brown bear hunts in the affected areas are VACATED. The matter is REMANDED to the superior court with directions to REMAND to the board for the purpose of promulgating appropriate subsistence regulations in accordance with the procedural requirements of the Administrative Procedures Act. AFFIRMED in part, REVERSED in part, and REMANDED to the superior court with directions to REMAND the matter to the board for further proceedings consistent with this opinion. . The penalty for violation of these state regulations is a misdemeanor conviction punishable by a "fine of not more than $1,000, or by imprisonment for not more than six months, or both." AS 16.05.430(a). The regulations provide that these penalties can be imposed on a strict liability theory — "regardless of [the] person's intent." 5 AAC 92.002. . The superior court drew that standard from comparable provisions of ANILCA, and from the "customary and traditional use" standard of the state-law definition of subsistence uses, AS 16.05.940(31). . Both parties agree that issues concerning the interpretation of Alaska's subsistence laws are reviewable de novo. The "arbitrary, unreasonable, and abuse of discretion" standard is applied to cases where the validity of a regulation is challenged, i.e., to cases in which the issue concerns the agency's exercise of its quasi-legislative authority. Kelly v. Zamarello, 486 P.2d 906 (Alaska 1971). As originally set forth in Kelly, 486 P.2d at 911, and later applied in Kenai Peninsula Fisherman's Coop. Ass'n, v. State, 628 P.2d 897, 906 (Alaska 1981), this Court applies a test which involves a four-fold inquiry: was the regulation adopted in accordance with APA procedures; is the regulation within the discretion vested in the agency by the legislature; is the regulation consistent with the statute and reasonably necessary to its purpose; is the regulation reasonable and not arbitrary. Kenai, 628 P.2d at 906. The superior court's grant of remedial relief is reviewed under the abuse of discretion standard. Peter Pan Seafoods, Inc. v. Stepanoff, 650 P.2d 375 (Alaska 1982). "Absent a definite and firm conviction that the judge made a mistake, we will not overturn a decision left to the discretion of the trial court." City of Kenai v. Ferguson, 732 P.2d 184, 190 (Alaska 1987). . Additionally, Morry and Kwethluk insist that if the mandate of § 16.05.258(c), that the board's "regulations shall provide a reasonable opportunity to satisfy the subsistence uses," is anything more than meaningless, then a regulation limiting subsistence uses to "one bear every four years" must fall. . In support of this contention they quote Johns v. Commercial Fisheries Entry Comm'n, 758 P.2d 1256, 1261 (Alaska 1988) which explained: [W]hen an agency promulgates a regulation, the record should at least explain the reasons for the agency's action. This is necessary so that we can meaningfully fulfill our statutory and constitutional review functions. Where the Administrative Procedure Act is followed, such a record is likely to exist — especially if the agency position is expressed at the hearing required under AS 44.62.210(a). . To be valid a regulation must be consistent with the authorizing statute and reasonably necessary to carry out the statute's purpose. Trustees for Alaska v. State, DNR, 795 P.2d 805, 812 (Alaska 1990). Compare Justice Compton's dissent in State v. Eluska, 724 P.2d 514, 518 (Alaska 1986) where he states: As indicated, § 255(b) grants the right to subsistence hunt and requires the board to adopt separate regulations. The general hunting regulations are vague when read in light of § 255(b) since they do not cover subsistence uses.... (Footnote omitted.) . We have held that the board "is required to follow APA procedures where adopting regulations pursuant to its statutorily delegated authority." Kenai Peninsula Fisherman's Co-op. Ass'n, Inc. v. State, 628 P.2d 897, 904 (Alaska 1981). . See also, AS 16.05.094(6) which requires the Division of Subsistence, Department of Fish and Game to "make recommendations to the Board of Game and the Board of Fisheries regarding adoption, amendment and repeal of regulations affecting subsistence hunting and fishing." . Madison, 696 P.2d at 174, 176. . McDowell v. State, 785 P.2d 1, 9 (Alaska 1989). In so holding we noted: The conclusion we have reached does not mean that everyone can engage in subsistence hunting or fishing. We do not imply that the constitution bars all methods of exclusion where exclusion is required for species protection reasons. We hold only that the residency criterion used in the 1986 act which conclusively excludes all urban residents from subsistence hunting and fishing regardless of their individual characteristics is unconstitutional. We are not called upon in this case to rule on what selection criterion might be constitutional. It seems appropriate, however, to note that any system which closes participation to some, but not all, applicants will necessarily create a tension with article VIII. In such cases, assuming that the exclusionary criterion is not per se impermissible, our decisions suggest that demanding scrutiny is appropriate. . Morry and Kwethluk stress that application of the eight criteria resulted in the determination, for example, that the residents of Kweth-luk (located in GMU 18) were eligible to hunt brown bears for subsistence purposes only in nearby GMUs 17(A), 17(B), 18, 19(A) and 19(B). See 5 AAC 99.025(2), July 1991 Cumulative Supp. at 243-44. Similarly, Anaktuvuk Pass residents (located just within the northern boundary of GMU 24) were eligible to subsistence hunt brown bears only in nearby GMUs 24 and 26. Id. at 244. . The State claims it has used this discretionary authority to allow traditional harvesting practices. For example, 5 AAC 92.080(4) and 5 AAC 92.080(5) allow hunters in GMU 23 to use a motor-driven boat and rimfire weapons to take swimming caribou. 5 AAC 01.320(i) allows herring roe on kelp in Bristol Bay to be taken by hand picking and hand operated rakes. . Morry and Kwethluk also submit that their position is supported by a Subsistence Position Paper, the product of discussions between ADF & G and the Department of Law, which considered definitions of "custom" and "tradition" in the context of the statute, and concluded as follows: It is suggested that it is the historic use pattern that is to be accorded a priority in regulation. The use pattern for Tier I is made up of a number of elements needing consideration (e.g., areas, times, methods and means, species, stocks, productivity, efficiency, and so on). Evidence on these elements should be considered by the boards. ADF & G Tech. Paper No. 66 (November 1980) (emphasis in original). They also rely on certain studies that have been done documenting that "customary and traditional" uses of fish and game encompass broad patterns of activities. See e.g. Wolfe & Ellanna, Resource Use and Socioeconomic Systems: Case Studies of Fishing and Hunting in Alaskan Communities, ADF & G Tech. Paper No. 61 (March 1983), cited and quoted in McDowell, 785 P.2d at 5. . In its opening brief the State elaborated in somewhat greater detail as follows: Although the subsistence law does not require the Boards of Fisheries and Game to protect the character of subsistence hunting and fishing, this does not mean they are prohibited from doing so. The boards have general authority to regulate the methods and means of pursuing, capturing, and transporting fish and game. AS 16.05.251(a)(4), AS 16.05.255(a)(6). They have used this authority, where it is appropriate, to allow traditional harvesting practices. For example, 5 AAC 92.080(4) and 5 AAC 92.080(5) allow hunters in Game Management Unit 23 to use a motor-driven boat and rimfire weapons to take swimming caribou. 5 AAC 01.320(i) allows herring roe on kelp in Bristol Bay to be taken by hand picking and hand operated rakes. While the boards have authority to provide for certain harvest methods, they are not compelled to do so. . The author of this opinion and Justice Compton disagree with the court's resolution of this issue for the reasons expressed in the dissent in State v. Kluti Kaah Native Village of Copper Center, 831 P.2d 1270 (Alaska, 1992). There we concluded that the provisions of AS 16.05.-940(29) and (30) should be construed to require the boards to consider traditional and customary means and patterns of hunting and fishing in fashioning subsistence regulations. . We consider it unnecessary to address any of the remaining issues raised in the appeal and cross-appeal,

11760839

Daretha TOLBERT, Appellant, v. ALASCOM, INC., Appellee

Tolbert v. Alascom, Inc.

1999-03-19

No. S-8038

603

612

973 P.2d 603

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.

Daretha TOLBERT, Appellant, v. ALASCOM, INC., Appellee.

Daretha TOLBERT, Appellant, v. ALASCOM, INC., Appellee. No. S-8038. Supreme Court of Alaska. March 19, 1999. Charles W. Coe, Anchorage, for Appellant. Shelby L. Nuenke-Davison, Davison & Da-vison, Inc., Anchorage, for Appellee. Before MATTHEWS, Chief Justice, COMPTON, EASTAUGH, FABE, and BRYNER, Justices.

4106

26477

OPINION BRYNER, Justice. Daretha Tolbert filed four workers' compensation claims against her employer, Alas-com, Inc., alleging work-related injuries to her hands. The Alaska Workers' Compensation Board denied these claims, finding that Tolbert either had shown no compensable injury or had failed to prove that her injuries were work related. The superior court affirmed. As to three of the claims, we conclude that Tolbert presented sufficient evidence to raise a presumption of work-related injuries and that Alascom failed to rebut this presumption. I. FACTS AND PROCEEDINGS A. Tolbert's Original Claim Daretha Tolbert began working for Alas-com in 1982 as a telephone operator. Her job required at least some repetitious use of a keyboard, although the parties dispute how much keyboarding was involved. Between 1982 and 1989, she developed bilateral carpal tunnel syndrome, requiring her to undergo multiple carpal tunnel release surgeries. Tolbert sought to recover workers' compensation for what she maintained was a job-related impairment. The Board found that her claims were barred by AS 23.30.100(a) and (d) as a result of her delay in notifying Alascom that her injuries were job related. The superior court affirmed the Board's decision in July 1991; we affirmed the superior court's holding in March 1992. B. Tolbert's Subsequent Claims in 1992-1991 Although our March 1992 decision affirming the denial of Tolbert's original claim barred her from any potential recovery based on her existing carpal tunnel syndrome, it did not bar her from claiming benefits for subsequent work-related incidents that aggravated her condition or caused new injuries to her hand. Between 1992 and 1994, Tolbert filed four claims with the Board, alleging that her continued work with Alas-com aggravated her existing hand condition or otherwise hurt her hands. In one claim, Tolbert reported a mishap at work in June 1992 in which an opening door slammed against her right hand. In three other claims, she asserted that repetitive hand movements required by her keyboarding job caused her to experience pain, numbness, and swelling in her hands in February of 1993 and on June 1 and 14,1994. In these latter claims, Tolbert alleged permanent impairment in the form of tendinitis or aggravation of her carpal tunnel syndrome; she sought reimbursement for medical care related to these problems and benefits for temporary total and permanent partial disability. Following a hearing, the Board denied all of her claims. The superior court affirmed. Tolbert appeals. II. DISCUSSION A. Standards of Review When the superior court has acted as an intermediate court of appeal, we review the merits of the administrative agency's decision without deference to the superior court's decision. We review questions of law involving agency expertise under the "reasonable basis" test and those not involving any particular • expertise under the substitution of judgment standard. And we review determinations of fact by an administrative agency under the "substantial evidence" standard, but consider "[t]he question of whether the quantum of evidence is substantial [to be] a legal question." B. The Board Did Not Err in Denying TolheH's Claim for the 1992 Injury. Tolbert alleged that her right hand was injured in June 1992 by an opening door. She sought compensation for medical payments and an award of benefits for permanent partial disability. The Board held that Tolbert had raised a presumption of com-pensability as to this claim by showing that she had suffered either a contusion or a possible aggravation of tendinitis; the Board further found that Alascom had failed to overcome this presumption. The Board nevertheless declined to award Tolbert any benefits, concluding that she had failed to produce sufficient evidence to support an award. 1. The Board did not err in denying medical benefits to Tolbert. The only evidence Tolbert presented to prove medical expenses stemming from her June 1992 injury consisted of her own testimony; she offered little more than a recounting of the money she owed to certain medical providers. But Alaseom's claims adjuster denied having ever received any of Tolbert's medical bills. While the Board viewed the adjuster's testimony as credible, it found Tolbert's testimony both vague and lacking in documentary support. The Board further determined that, because Tolbert failed to submit the bills to Alascom at all, much less in the form required by 8 Alaska Administrative Code (AAC) 45.082(d), and, independently, because she failed to submit such bills to the Board, it lacked sufficient evidence upon which to base an award of medical benefits. Tolbert argues that she did not fail to comply with 8 AAC 45.082(d), because that subsection only governs the form and not the time of submission of medical bills to the employer. According to Tolbert, the Board should have left the hearing record open to allow Tolbert to submit her medical bills in proper form. Alascom replies that Tolbert has waived the right to submit these bills by failing to request either a continuance of the hearing or that the record remain open so that medical bills could be submitted. We conclude that the record supports the Board's ruling that Tolbert failed to present sufficient evidence on this issue. A presumption of compensability applies to all workers' compensation claims; if the presumption remains unrebutted, the Board must find that the claim is compensa-ble. The worker is thus freed from having to prove (1) that "but for" the employment the disability would not have occurred, and (2) that reasonable persons would regard the employment as a cause of the injury and attach responsibility to it. But the presumption of compensability does not free an injured worker from the burden of introducing evidence as to the extent of the injury and the amount of medical expenses. Allocation of this burden to the claimant makes sense because the extent of injury and amount of medical expenses are unique in each case, and the worker often has greatest access to such information. Because medical expenses are not presumed, a claimant has the burden of proving them by a preponderance of the evidence. Tolbert failed to meet this burden. Although she testified that she owed certain medical professionals money, she failed to link these debts to treatment of the 1992 injury. From the time of injury in June 1992 to her hearing in June 1995, she had ample time to gather this evidence. Despite this three-year interval, she obtained no documentation of her medical expenses. At the time of the heating, Tolbert's counsel expressed belief that the bills either had already been placed in the record or were in Alascom's possession. But even after discovering otherwise, Tolbert's counsel failed to submit the bills or even to request that the record remain open to accommodate later submission. Instead, counsel opted to proceed with Tolbert's testimony as the only evidence on expenses. We conclude that, given these circumstances, the Board did not abuse its discretion by failing to order sua sponte that the record remain open for Tolbert to submit her medical bills. 2. The Board did not err in denying Tolbert's claim, of permanent partial impairment. Tolbert argues that the Board's refusal to award permanent partial impairment (PPI) benefits for the June 1992 incident is not supported by the record. But the experts who testified about the incident agreed that its effects were only temporary and did not aggravate Tolbert's carpal tunnel syndrome. Tolbert's own physician, Dr. Lipke, testified that the 1992 injury caused a contusion. He also testified that the contusion could lead to tendinitis, but he never attributed Tolbert's tendinitis to this incident, and he described her tendinitis as intermittent and recurring, rather than permanent. In fact, Dr. Lipke expressly testified that tendinitis translates into no PPI rating under the American Medical Association Guides to the Evaluation of Permanent Improvement. Yet such a rating is a prerequisite to an award of PPI benefits. Given Dr. Lipke's testimony, we conclude that the Board's refusal to award Tolbert PPI benefits is supported by substantial evidence. C. The Board Erred in Denying Tolbert's 199S and 199U Claims. 1. The testimony concerning Tolbert's carpal tunnel syndrome and tendinitis Tolbert filed one claim in February 1993 and two claims in June 1994, asserting that the repetitious keyboarding she performed for Alaseom was causing swelling, numbness, and pain in her hands and arms. Tolbert initially asserted that these symptoms were caused by aggravation of her pre-existing carpal tunnel syndrome. Ultimately, however, she was able to present little evidence to support this theory. But she did present considerable evidence indicating that the problems she experienced stemmed from work-related episodes of tendinitis. At the hearing on her claims, Tolbert described suffering from work-related problems with her hands on February 22, 1993, June 1, 1994, and June 14, 1994. She presented extensive expert testimony suggesting that the problems she experienced were work related. Dr. Lipke, Tolbert's treating physician and primary witness, testified about carpal tunnel syndrome and tendinitis, describing the differences between the two conditions. According to Dr. Lipke, carpal tunnel is the narrow passageway in the wrist between the wrist bones and the transverse carpal ligament. The flexor tendons and the median nerve must pass through this tunnel to reach the fingers. Although the causes of carpal tunnel syndrome vary, one cause is repetitious trauma. Repetitious motion, coupled with the normal aging process, can cause pain in, and swelling of, the tendons — • resulting in tendinitis. Tendinitis can, by putting pressure on the median nerve, in turn, lead to carpal tunnel syndrome. Tendinitis is a temporary condition and generally will resolve without causing carpal tunnel syndrome. But if the pressure is persistent enough, nerve dysfunction, pain, numbness, and tingling in the fingers — collectively called carpal tunnel syndrome — will result. Scar tissue may eventually form on the nerve, which can, when combined with external pressure, continue to irritate the nerve even after the tendinitis resolves. Once the carpal tunnel syndrome becomes sufficiently severe, surgery is necessary to release it. Carpal tunnel release surgery consists of cutting the ligament that forms part of the carpal tunnel, thereby releasing the pressure on the median nerve. Dr. Lipke also addressed the issue of Tol-bert's diagnosis. He commented that, in Tolbert's case, nerve conduction studies revealed no aggravation of her carpal tunnel syndrome. In Dr. Lipke's view, Tolbert's problems were more likely attributable to tendinitis. Specifically, Dr. Lipke testified that repetitive motions like keyboarding can cause and aggravate tendinitis, that Tolbert's symptoms were consistent with tendinitis, and that tendinitis could be objectively confirmed if volumetric tests showed abnormal swelling. Volumetric testing of Tolbert's hands did in fact reveal abnormal swelling. Dr. Ferris conducted two volumetric tests on Tolbert. The first simulated Tolbert's job as she had described it, but Dr. Ferris later deemed this test unreliable because he learned that Tol-bert had exaggerated the amount of keyboarding she usually performed. Dr. Ferris personally designed the second test after speaking with Alascom about the kinds of work Tolbert actually did and after observing Tolbert's work being performed by other Alascom workers. Dr. Ferris testified that this second test accurately simulated Tol-bert's job conditions. In both tests, Tolbert's hands swelled abnormally. Dr. Ferris, like Dr. Lipke, found the results of the volumetric testing significant because the tests had been designed to mimic Tolbert's actual work conditions and they produced abnormal swelling. In Dr. Ferris's view, the objective signs of swelling substantiated Tolbert's subjective complaints of hand pain. Moreover, swelling to the degree he observed would cause pain and "decrease the amount of function that [Tolbert] would feel comfortable with carrying out." He indicated that he believed that Tolbert's hands would continue to swell as long as she persisted in the sorts of activities required by her job. Although Dr. Ferris said that Tolbert's hand swelling was not necessarily tendinitis and might be a sort of passive edema related to carpal tunnel syndrome, he recognized that his opinion on this issue was speculative, and he deferred to Dr. Lipke's diagnosis of tendinitis, because, in Dr. Ferris's view, Dr. Lipke had more expertise in diagnosing the condition. Two other experts presented evidence at Tolbert's hearing: Drs. Sack and Fu. Their testimony aimed primarily at negating the possibility that Tolbert's problems had been caused by an aggravation of her carpal tunnel syndrome. Both agreed that her work had not caused any substantial permanent aggravation in her carpal tunnel syndrome. Dr. Fu testified that Tolbert was left with mild residual nerve entrapment after her carpal tunnel release surgeries and, as a result, her "symptoms" might increase with activity. But he did not explain what symptoms he expected her to have. He acknowledged the presence of some form of "temporary aggravation and reaggravation of pain and discomfort" when Tolbert engages in "repetitive hand activities." But beyond disputing Tolbert's claim of aggravated carpal tunnel syndrome and mentioning the possibility of some residual "symptoms" that might occur in the absence of aggravation, Dr. Fu did not specify what Tolbert's problem might or might not be. While he did testify that she still objectively showed some "decrease of sensations involving both hands" and increased sensitivity along her wrist, he drew no inferences from these symptoms. As for the swelling in Tolbert's wrists, he failed to account for it at all. Like Dr. Fu, Dr. Sack also unequivocally testified that he did not believe that Tolbert's carpal tunnel syndrome had been aggravated. But he, too, was silent with respect to tendinitis and did not account for Tolbert's swelling. He testified that Tolbert's carpal tunnel syndrome, even after surgery, would cause a "bit of symptomatology." But he did not describe what symptoms he had in mind; nor did he deny that Tolbert might also be suffering from tendinitis. 2. Tolbert established the preliminary link necessary to raise the presumption that her employment substantially aggravated her tendinitis. The Board found that there was "no medical testimony indicating [that Tolbert] suffered a work-related injury on February 22, 1993, June 1, 1994 or June 14, 1994." Accordingly, it concluded that Tolbert failed to establish the preliminary link necessary to trigger the presumption of compensability. Tolbert challenges this finding. Alaska Statute 23.30.120 presumes that workers' compensation claims are compensable. But this presumption does not apply automatically; we have held that the worker must show a preliminary link between the injury and the job. To establish such link, "the claimant need not present substantial evidence that his or her employment was a substantial cause of . disability." Rather, an offer of "some evidence" that the claim arose out of the worker's employment is sufficient. For purposes of determining whether the claimant has established the ' preliminary link, only evidence that tends to establish the link is considered — competing evidence is disregarded. Likewise, credibility plays no part in the process: "In making its preliminary link determination, the board need not concern itself with the witnesses' credibility." At her hearing, Tolbert reported work-related problems with her hands occurring on February 22, 1993; June 1, 1994; and June 14,1994. She presented a great deal of expert testimony suggesting that the problems she experienced were work related. Dr. Lipke testified that keyboarding can cause and aggravate tendinitis, that Tolbert's symptoms were consistent with tendinitis, and that tendinitis could be objectively confirmed if volumetric tests showed abnormal swelling — which, in Tolbert's case, they did. Considering the overwhelming medical evidence supporting a work-related injury, and given the minimal showing required to establish the preliminary link and the irrelevance of credibility at this phase of the inquiry, we hold that there was sufficient evidence to establish the preliminary link and give rise to the presumption of compensability. Thus, the Board erred in finding that Tolbert did not produce "some evidence" linking her injuries to her job. 3. Alascom did not present substantial evidence to overcome the presumption that Tolbert's tendinitis was work related. Once the preliminary link has been established, "it is the employer's burden to overcome the presumption [of compensa-bility] by coming forward with substantial evidence that the injury was not work related." Substantial evidence is evidence that a reasonable mind, viewing the record as a whole, might accept as adequate to support the Board's decision. We have explained this standard as follows: To overcome the AS 23.30.120(a) presumption of compensability, an employer must present 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."[ ] If the employer successfully rebuts the presumption of compensability, the presumption drops out, and the employee must prove all of the elements of the ease by a preponderance of the evidence. Here, the Board found that, even if Tolbert had established the preliminary link, Alas-com would have overcome "the presumption of compensability with the testimony of Dr. Sack and Dr. Fu." But, again, the thrust of both doctors' testimony was that Tolbert had experienced no permanent aggravation of her carpal tunnel syndrome — they scarcely referred to the issue of tendinitis. And while the doctors mentioned the possibility that Tolbert's prior carpal tunnel syndrome might continue to manifest itself in a "bit of symp-tomatology," neither specified what symptoms might occur or characterized such symptomatology as a likely cause of Tolbert's recent problems. In short, although Dr. Sack and Dr. Fu did point to a possible alternative cause for Tolbert's pain, they did not describe this alternative as its probable cause or otherwise attempt to rule out Dr. Lipke's diagnosis of work-related tendinitis. We have previously recognized that, for purposes of overcoming the presumption of compensability, "medical testimony cannot constitute substantial evidence if it simply points to other possible causes of an employee's injury or disability, without ruling out work-related causes." Because Dr. Sack's and Dr. Fu's testimony does nothing more than point to other possible causes, it fails to rebut the presumption of compensability. 4. The Board erred in alternatively concluding that Tolbert had not proved that her claims were work related because she failed to show "but for" causation. The Board alternatively concluded that Tolbert failed to prove her claims by a preponderance of the evidence because she failed to prove that her wrist injuries would not have occurred "but for" the work. Though the Board accepted Dr. Lipke's testimony that the swelling in Tolbert's hands indicated a problem with tendinitis and that Tolbert's work at Alascom aggravated this condition, it nevertheless found that her activities at home also might have aggravated the condition. Therefore, the Board reasoned, Tolbert had failed to establish that, "but for" her work, she would not have been disabled. But this reasoning conflicts with our prior holdings on substantial-factor causation. We have said that, "when two or more forces operate to bring about an injury and each of them, operating alone, would be sufficient to cause the harm, the 'but for' test is inapplicable because it would tend to absolve all forces from liability." In such cases, it is necessary to ask whether the work-related injury was a substantial factor in causing the disability: "If one or more possible causes of a disability are [work related], benefits will be awarded where the record establishes that the [work-related] injury is a substantial factor in the employee's disability regardless of whether a [non-work-related] injury could independently have caused disability." The "but for" standard applied by the Board required Tolbert to prove that her work-related injury was the sole cause of— and not merely a substantial factor in causing — her disability. Because the standard applied by the Board conflicts with the substantial-factor test, which we have held applicable in cases like Tolbert's, we reject the Board's alternative ground for concluding that Tolbert failed to prove her claims. 5. The Board erred in alternatively concluding that Tolbert's claims are barred by res judicata. As yet another independent ground for denying Tolbert relief, the Board concluded that her 1993 and 1994 claims were not compensable because they were legally precluded. Finding that Tolbert's tendinitis was as longstanding as the underlying carpal tunnel syndrome, the Board reasoned that any claims relating to her tendinitis were barred by res judicata following our 1992 decision affirming the denial of Tolbert's original claims for carpal tunnel syndrome. But this holding conflicts with the Board's finding that tendinitis is a temporary (albeit recurring) condition. Under these circumstances, claim preclusion does not apply. III. CONCLUSION We AFFIRM the superior court's judgment as to Tolbert's June 1992 injury. But as to her 1993 and 1994 claims, given that Tolbert raised the presumption of compensa-bility and that Alascom failed to rebut it, we must REVERSE the Board's decision and REMAND this case for a determination of the extent and compensability of Tolbert's injuries. . See Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987). . Municipality of Anchorage, Police & Fire Retirement Bd. v. Coffey, 893 P.2d 722, 726 (Alaska 1995). . See Tesoro, 746 P.2d at 903. . Id. . Fireman's Fund Am. Ins. Cos. v. Gomes, 544 P.2d 1013, 1015 & n. 6 (Alaska 1976). . AS 23.30.120; see Olson v. AIC/Martin J.7., 818 P.2d 669, 672 (Alaska 1991). . See AS 23.30.120. . See Fairbanks N. Star Borough v. Rogers & Babler, 747 P.2d 528, 532 (Alaska 1987). . See AS 23.30.120. . See Brunke v. Rogers & Babler, 714 P.2d 795, 801 (Alaska 1986) (using this "access to information" argument to support allocating to the employee the.burden of showing evidence of loss of earnings). . See Veco, Inc. v. Wolfer, 693 P.2d 865, 869-70 (Alaska 1985) (where presumption rebutted, claimant must prove each element by a preponderance of the evidence); see also Brunke, 714 P.2d at 801 (placing burden upon the employee to prove loss of earning capacity); 8 Arthur Larson, Larson's Worker's Compensation Law § 80.33(a), 15-910 to 929 (1998) (noting that the employee usually has the burden of proving the extent of his injury or disability). . Cf. Zimin v. Zimin, 837 P.2d 118, 122 (Alaska 1992) ("It is the duty of the parties, not the court, to ensure that all necessaiy evidence is presented at trial."); Hartland v. Hartland, 777 P.2d 636, 640 (Alaska 1989) (holding that a party who fails to provide sufficient evidence at trial cannot object to the resulting determination on the basis of inadequate evidence). . (3d ed.) (1988). . See AS 23.30.190(b). . See Thornton v. Alaska Workmen's Compensation Bd., 411 P.2d 209, 210 (Alaska 1966) (work-related aggravation of a pre-existing condition is compensable where the aggravation is a substantial factor in a disability). . See Grainger v. Alaska Workers' Compensation Bd., 805 P.2d 976, 977 (Alaska 1991); Burgess Constr. Co. v. Smallwood, 623 P.2d 312, 316 (Alaska 1981). . Fox v. Alascom, Inc., 718 P.2d 977, 984 (Alaska 1986). . See Gillispie v. B & B Foodland, 881 P.2d 1106, 1109 (Alaska 1994). . Cf. Veco, Inc., v. Wolfer, 693 P.2d 865, 869-70 (Alaska 1985) (courts must not weigh the employer's rebuttal evidence against conflicting evidence). . Resler v. Universal Servs., Inc., 778 P.2d 1146, 1148-49 (Alaska 1989). . Louisiana Pacific Corp. v. Koons, 816 P.2d 1379, 1381 (Alaska 1991) (quoting Burgess Constr. Co. v. Smallwood, 698 P.2d 1206-11 (Alaska 1985) (citations omitted)). . See Wolfer, 693 P.2d at 869. . Williams v. State, Dep't of Revenue, 938 P.2d 1065, 1072 (Alaska 1997) (quoting Gillispie v. B & B Foodland, 881 P.2d 1106, 1109 (Alaska 1994)) (emphases added). . See Koons, 816 P.2d at 1381. . Childs v. Copper Valley Elec. Ass'n, 860 P.2d 1184, 1189 (Alaska 1993). . See Williams, 938 P.2d at 1075. . Fairbanks N. Star Borough v. Rogers & Babler, 747 P.2d 528, 532 (Alaska 1987). . State, Pub. Employees Retirement Bd. v. Cacioppo, 813 P.2d 679, 683 (Alaska 1991) (applying workers' compensation law analogously to PERS disability claim) (emphasis added). See generally State v. Abbott, 498 P.2d 712, 727 (Alaska 1972) (quoting William L. Prosser, Handbook of the Law of Torts § 41, at 239-40 (4th ed. 1971) ("If two causes concur to bring about one event, and either one of them, operating alone, would have been sufficient to cause the identical result then [liability should be imposed].")). .Tolbert further argues that the Board erred in failing to award attorney's fees. We need not decide the issue. Because we have now determined that Tolbert is entitled tó compensation, the Board, on remand, will be required to reconsider the issue of attorney's fees. Tolbert separately argues that the Board erred in failing to inform her of her right to a second independent medical evaluation. Our conclusion that Tolbert is entitled to compensation for her claims also makes it unnecessary for us to address this argument.

11754020

Therese U. DONNELLY, Timothy Donnelly, Deborah Donnelly, William Donnelly, and Kevin Donnelly, Appellants, v. EKLUTNA, INC., Appellee

Donnelly v. Eklutna, Inc.

1999-02-05

No. S-7808

87

93

973 P.2d 87

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.

Therese U. DONNELLY, Timothy Donnelly, Deborah Donnelly, William Donnelly, and Kevin Donnelly, Appellants, v. EKLUTNA, INC., Appellee.

Therese U. DONNELLY, Timothy Donnelly, Deborah Donnelly, William Donnelly, and Kevin Donnelly, Appellants, v. EKLUTNA, INC., Appellee. No. S-7808. Supreme Court of Alaska. Feb. 5, 1999. Lawrence A. Pederson, Paul J. Nangle & Associates, Anchorage, for Appellants. James S. Crane & Robert H. Hume, Jr., Copeland, Landye, Bennett and Wolf, LLP, Anchorage, for Appellee. Before MATTHEWS, Chief Justice, COMPTON, EASTAUGH, FABE, and BRYNER, Justices.

3276

20263

OPINION BRYNER, Justice. Eklutna, Inc., and the Donnellys both claim to own the same 92.5 acres near Eagle River. Eklutna sued the Donnellys, seeking ejectment, quiet title, and declaratory relief. The superior court entered summary judgment against the Donnellys, who now appeal. Because we conclude that the claims of the Donnelly family are barred by res judicata, we affirm. I. FACTS AND PROCEEDINGS In 1957 Joseph Donnelly, his wife Therese, and their children attempted to homestead 160 acres near Eagle River. Sometime in 1957 or 1958, the Bureau of Land Management (BLM) notified Mr. Donnelly that the land was closed to entry and rejected his homestead application. For a while, Mr. Donnelly pursued his application through the administrative process, but by 1959 he abandoned these efforts. Eventually, through a compromise proposed by BLM, Mr. Donnelly was able to secure a patent for 67.5 acres of his claim that lay outside the area closed to entry. In 1970 the United States served Mr. Don-nelly with a notice of trespass with respect to the remaining 92.5 acres in dispute. Mr. Donnelly apparently chose to ignore the notice, and he built a house on the disputed land. The Donnelly family has not lived in the house since the mid-1980s. Sometime in the early 1990s the house was torn down. A. Federal Litigation Meanwhile, Congress had passed the Alaska Native Claims Settlement Act (ANCSA); in 1974 Eklutna, an Alaska native corporation, selected the disputed land under ANC-SA. In 1975 the United States commenced a trespass action against Mr. Donnelly in federal district court. Mr. Donnelly counterclaimed, arguing that the federal government's wrongful withdrawal of the lands from entry precluded him from successfully homesteading and that he in fact possessed equitable title to the homestead. In 1979 the United States patented title to the surface estate in the land in Eklutna. The district court thereafter dismissed the United States as a party, and Eklutna intervened to replace it. Mr. Donnelly then asserted a number of counterclaims against Eklutna rooted in ANCSA and common law. Midway through the litigation, Mr. Donnelly died, and Therese Donnelly, as a personal representative of his estate, was substituted for him. After a bench trial, the district court dismissed Mr. Donnelly's counterclaims against the United States and Eklutna and entered summary judgment for Eklutna. On appeal, the United States Court of Appeals for the Ninth Circuit affirmed. The Ninth Circuit noted that the federal Quiet Title Act provided the exclusive remedy for resolving title disputes with the United States. The court concluded that the Act's twelve-year statute of limitations, which governed Mr. Donnelly's quiet title claims, had expired by 1973, two years before he raised them as counterclaims. Because the statute of limitations had run, the court concluded that it "lack[ed] jurisdiction" to consider Mr. Donnelly's quiet title claims against the United States. And because Mr. Don-nelly could no longer join the United States — an indispensable party — in the quiet title claims that he had asserted against Ek-lutna, the court went on to dismiss these claims as well. It explained: In order to challenge the validity of Eklut-na's patents, [Mr. Donnelly] must establish [his] own entitlement to the lands . [He] can only properly [do so] in direct proceedings against the United States.... It follows from the fact that the United States is an indispensable party to this action that the district court's lack of jurisdiction as to the claims against the United States requires the dismissal of the claims against the Native corporations.[ ] Apart from his homestead claim, Mr. Don-nelly had asserted in the district court action that as an occupant on the disputed land, he had a right to title under ANCSA section 14(c)(1). The district court had found that Mr. Donnelly was a trespasser, and as such, he could not be an occupant within the meaning of that section. On appeal, Mr. Donnelly argued that he could not be a trespasser, since he possessed equitable title to the land as a homesteader. The Ninth Circuit rejected Mr. Donnelly's claim under section 14(c)(1) without addressing his equitable title argument, concluding that a homesteader's equitable title could not be decided in any action in which the United States could not be added as a party. The appellate court further rejected Mr. Donnelly's remaining common law claims, which he had based on constructive trust notions, holding that ANC-SA preempted such common law remedies. The Ninth Circuit decided these issues in 1988. Its opinion left unresolved Eklutna's state law claims against Mr. Donnelly for trespass and ejectment. The district court had retained ancillary jurisdiction over these claims. It eventually granted Eklutna summary judgment and ordered Mr. Donnelly evicted, finding that he was a trespasser and had no basis to challenge Eklutna's patent. In an unpublished opinion issued in 1991, the Ninth Circuit affirmed the district court's rejection of Mr. Donnelly's state law claims, thereby ending Mr. Donnelly's federal litigation: Essentially, [Donnelly] argues that the district court abused its discretion in retaining jurisdiction over the ancillary claims because the absence of an indispensable party precluded [him] from presenting a defense and inevitably led to a judgment against [him]. However, we find no unfairness in that result. The reason the indispensable party (the United States) was absent was that [Donnelly] had permitted the statute of limitations to run as to [his] quiet title claim against that party. Accordingly, [Donnelly] is in no position to argue that [his] own failure to act in a timely manner somehow prevents the district court from adjudicating Eklutna's counterclaim on the merits.[ ] B. State Litigation While the federal case was still in progress, parallel litigation over the same land arose in state court. In 1986 Eklutna sued Mrs. Donnelly and several of the Donnelly children ("the Donnellys") for ejectment, quiet title, and declaratory relief. The case was stayed pending the conclusion of the federal litigation. The superior court lifted the stay after the Ninth Circuit's 1991 decision affirming the federal district court's summary denial of Mr. Donnelly's state law claims. Eklutna then moved for summary judgment in the state case, asserting that the federal rulings were binding on the Donnel-lys under the doctrine of res judicata. The superior court granted this motion and entered summary judgment for Eklutna. The Donnellys appeal. II. DISCUSSION The Donnellys raise only two arguments on appeal: first, they contend that their ANCSA section 14(c)(1) claims are not barred by res judicata; second, they maintain that these claims have merit. We need address only the res judicata argument, which we find dispositive. A. The Previous Federal Litigation Resolved Mr. Donnelly's ANCSA Section llp(e)(l) Claim on the Merits. The Donnellys argue that res judicata does not bar their claims under section 14(e)(1), because the district court did not reject Mr. Donnelly's section 14(e)(1) claim on its merits. We conclude that it did. The res judicata doctrine recognizes that litigation must eventually come to an end; when a court issues a judgment on the merits of a claim, the doctrine bars the parties and persons in privity with them from relitigating the same claim in a subsequent action. Thus, under the doctrine, a party who presents a claim and has the opportunity to contest it in court may not renew the claim in another court. But "[j]udicial actions must achieve a basic minimum quality to become eligible for res judicata effects. The traditional words used to describe this quality require that there be a judgment that is valid, final, and on the merits." We have explained that [t]he claims extinguished by the first judgment include "all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction . out of which the action arose," a mere change in the legal theory asserted as a ground for recovery will not avoid the pre-clusive effect of the judgment.[ ] In arguing that the federal case did not resolve Mr. Donnelly's section 14(c)(1) claim on the merits, the Donnellys point to the district court and Ninth Circuit opinions, which dismissed Mr. Donnelly's claims against the United States for want of jurisdiction, and dismissed his 14(c)(1) claims against Eklutna for failing to join the United States as an indispensable party. The Don-nellys contend that these dismissals were procedural, rather than on the merits. They are only partly correct. Although the federal courts did rely on a procedural flaw as a starting point for their legal analyses, they ultimately concluded that this flaw required them to dismiss Mr. Donnelly's section 14(c)(1) claim on the merits. As we have already mentioned, the district court dismissed Mr. Donnelly's federal quiet title claim because the statute of limitations barred him from naming the United States (whose participation was indispensable) as a party. Based on this procedural violation, the court proceeded to reject Mr. Donnelly's section 14(c)(1) claim. The court found that, as a trespasser on federal land, Mr. Donnelly could not qualify as an occupant for purposes of a section 14(c)(1) conveyance. Then, on the state law claims for ejectment and trespass that Eklutna advanced against Mr. Donnelly, the court granted Eklutna summary judgment, concluding that, as between Eklutna and Mr. Donnelly, Eklutna had the superior claim to title because Mr. Donnelly was a mere trespasser on Eklutna's land. Having reached this conclusion, the court entered a judgment that unequivocally ordered Mr. Donnelly off the disputed land and unconditionally barred his reentry, thereby resolving — fully, finally, and on the merits— all claims of right to occupancy that Mr. Donnelly had asserted. The Ninth Circuit later dispelled any lingering doubt that the district court had ruled on the merits. While recognizing that Mr. Donnelly's statute of limitations violation had prevented Mr. Donnelly from litigating his equitable title theory in defending Eklutna's quiet title action, the Ninth Circuit held expressly that because Mr. Donnelly had caused the problem and could no longer remedy it, his claim had properly been rejected on the merits: [Donnelly] is in no position to argue that [his] own failure to act in a timely manner somehow prevents the district court from adjudicating Eklutna's counterclaim on the merits.[ ] The Ninth Circuit thus unequivocally ruled that the district court had resolved the title dispute between Eklutna and Mr. Donnelly "on the merits." B. For Purposes of Applying Res Judi-cata, the Donnellys Were in Privity unth Mr. Donnelly During the Federal Litigation. Generally speaking, a judgment that determines an interest in real property will be binding on successors in interest, even if they were not parties to the litigation from which the judgment issued. Mrs. Donnelly acknowledges that she is in privity to the federal judgment insofar as she acquired an interest in Mr. Donnelly's homestead claim as his devisee. But Mrs. Donnelly and other members of the Donnelly family argue that even if the federal judgment adjudicating Mr. Donnelly's section 14(c)(1) claim was a judgment on the merits, it could not bar them from independently asserting their own section 14(c)(1) claims to the same land, since they were not parties to the federal case. Citing Pennington v. Snow, Eklutna insists that Mrs. Donnelly was in privity with Mr. Donnelly in the federal litigation. The Donnellys reply that Pennington can be distinguished on its facts. We find the arguments of both parties irrelevant, for state law does not govern the res judicata issue in this case; instead, we must look to federal law to determine the preclusive effect of the federal litigation. Otherwise, federal judgments would be subject to the uncertainties of state law wherever a litigant chose to bring a subsequent suit. Under federal law, res judicata "treats a judgment, once rendered, as the full measure of relief to be accorded between the same parties on the same 'claim' or 'cause of action.'" While the general rule is that litigants are not bound by judgments resulting from prior litigation to which they were not parties, the most common exception is that nonparties who are in privity with parties may be bound. Courts will conclude that parties are in privity with one another where the parties are so closely related that it is fair to legally bind both. The relationship between the party and nonparty may be based on succession, nonparty control of the prior litigation, adequate representation in prior litigation, or a unity of interests. But parties are not in privity for res judicata purposes merely because another party makes identical claims against them. Applying these principles, we find ample basis to conclude that the Donnellys were in privity with Mr. Donnelly in the federal litigation. The Donnelly family occupied the disputed land jointly as homesteaders. Though each now asserts an individual claim, the claims all derive from the family's common occupancy and are essentially identical to the section 14(c)(1) claim that Mr. Donnelly advanced in the federal case. The Donnellys knew of Mr. Donnelly's federal litigation, and Mrs. Donnelly actually participated in the case, first as a witness and later as a personal representative of Mr. Donnelly's estate. Nevertheless, the unity of interests between Mr. Donnelly and the remaining members of his family might, at first blush, seem questionable. Theoretically, at least, the homestead claim that Mr. Donnelly asserted in the federal litigation is adverse to the individual section 14(c)(1) claims that the other members of his family are now asserting, since the two categories of claim are mutually exclusive. Establishing Mr. Donnelly's right to occupy the disputed land as a homesteader would have mooted his own claim of occupancy under section 14(c)(1); by the same token, it would have defeated the section 14(e)(1) claims of remaining family members. But upon closer scrutiny, the potential conflict between Mr. Donnelly and his family proves insubstantial. As we have indicated above, all of the Donnelly family members acquired their interests through Mr. Donnelly's original homestead entry; by all accounts, the Donnellys occupied the land as a family unit. As Mr. Donnelly's devisee, Mrs. Donnelly acknowledges privity to his homestead interests. Moreover, Mr. Donnelly himself did not hesitate to assert his own mutually exclusive homestead and section 14(c)(1) claims simultaneously, as alternative grounds for relief in the federal action. And even though a ruling in Mr. Donnelly's favor on either ground presumably would have foreclosed all other family members from asserting their own section 14(c)(1) claims, no other member of the family attempted to intervene in the federal action or objected to the district court's ejectment order, which on its face plainly extended to the entire family. In sum, absent record evidence of actual disharmony or conflict, all members of the Donnelly family appear to have had a primary and overarching family interest in the homestead claim that Mr. Donnelly asserted to the disputed land. This unity of interest suffices to establish privity among all family members for purposes of res judicata. Thus, all family members became bound when the federal court rejected Mr. Donnelly's section 14(c)(1) claim on the merits. III. CONCLUSION Res judicata bars the section 14(c)(1) claims of all members of the Donnelly family in this case because the federal court finally and validly decided Mr. Donnelly's identical claim on its merits, and the members of his family are privy to that decision. We therefore AFFIRM the superior court's order granting summary judgment to Eklutna. . See Donnelly v. United States, 850 F.2d 1313, 1319 (9th Cir.1988). . 43 U.S.C.A. § 1601 — 1629f (1986 & Supp. 1998). . See Donnelly, 850 F.2d at 1316. . See id. at 1316, 1321. . See id. at 1315 n. 1. . See id. at 1317. . See id. at 1318-20. . Id. . Id. at 1320 (citation omitted). . See id. at 1320-21. 43 U.S.C.A. § 1613(c)(1) (1986 & Supp.1998) provides: Upon receipt of a patent or patents: (1) the Village Corporation shall first convey to any Native or non-Native occupant, without consideration, title to the surface estate in the tract occupied as of December 18, 1971 . as a primary place of residencef.] . See Donnelly, 850 F.2d at 1320. . See id. at 1321. . See id. . See id. . See id. at 1313. . United States v. Donnelly, No. A75-027-Civ-JMF, 1991 WL 180080, at *2 (9th Cir. Sept.16, 1991). . See Drickersen v. Drickersen, 546 P.2d 162, 169 (Alaska 1976); Restatement (Second) of Judgments § 19, 21(1) (1982). . See DeNardo v. State, 740 P.2d 453, 455 (Alaska 1987). . 18 Charles Alan Wright et al., Federal Practice and Procedure § 4427, at 269 (1981 & Supp. 1998). See Hooker v. Klein, 573 F.2d 1360, 1367-68 (9th Cir.1978) (discussing doctrine of res judicata). . DeNardo, 740 P.2d at 455-56 (quoting State v. Smith, 720 P.2d 40, 41 (Alaska 1986)). . The judgment provided, in relevant part: That Joseph F. Donnelly and his estate are ordered to remove all personal property placed on the Land by either of them, to remove all improvements constructed by either of them from the Land and to restore the Land to a safe, neat and clean condition; . and That any persons possessing, holding, using, occupying, or otherwise claiming any interest in or right to possess, use, hold or occupy the Land or any portion thereof, which right or interest derives from Joseph F. Donnelly or his estate, are ordered to vacate the premises, to remove all personal property placed on the Land by them, to remove all improvements constructed by them, and to restore the Land to a safe, neat and clean condition; and . The estate of Joseph F. Donnelly and those claiming any right or interest in the Land deriving from him or his estate, are prohibited from re-entering the Land except for purposes of its restoration. United States v. Donnelly, J. No. A 75-27 Cl (Alaska Dist.Ct., Jan. 2, 1991). . United States v. Donnelly, No. A75-027-Civ-JMF, 1991 WL 180080, at *2 (9th Cir. Sept 16, 1991) (emphasis added). . Id. . See, e.g., Restatement (Second) of Judgments § 43 (1982): Effect of Judgment Determining Interests in Property on Successors to the Property A judgment in an action that determines interest in real or personal property: (1) Wilh respect to the property involved in the action: (a) Conclusively determines the claims of the parties to the action regarding their interests; and (b) Has preclusive effects upon a person who succeeds to the interest of a party to the same extent as upon the party himself. See also In re Lindsay, 59 F.3d 942, 952 (9th Cir.1995) (adopting these standards). . 471 P.2d 370, 375-76 (Alaska 1970). . See Shoup v. Bell & Howell Co., 872 F.2d 1178, 1179 (4th Cir.1989); 18 Charles Alan Wright et al., Federal Practice and Procedure § 4466, at 618 (1981 & Supp.1998); Restatement (Second) of Judgments § 87 (1982). . See Shoup, 872 F.2d at 1180 . McClain v. Apodaca, 793 F.2d 1031, 1033 (9th Cir.1986). . See Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1277 (9th Cir.1992). . See id. . See Hart v. Yamaha-Parts Distributors, Inc., 787 F.2d 1468, 1472 (11th Cir.1986). . See id. at 1473; accord Fabricius v. Freeman, 466 F.2d 689, 693 (7th Cir.1972) ("Privity is not established by showing that the prior decision involves the same issues of law or fact and will affect the subsequent litigant's rights as judicial precedent.").

12041624

ALYESKA SKI CORPORATION, Appellant, v. Phil R. HOLDSWORTH, as Commissioner of the Department of Natural Resources of the State of Alaska, and Roscoe E. Bell, as Director of the Division of Lands of the State of Alaska, and Inlet Company, Inc., Appellees

Alyeska Ski Corp. v. Holdsworth

1967-04-27

No. 620

1006

1017

426 P.2d 1006

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.

ALYESKA SKI CORPORATION, Appellant, v. Phil R. HOLDSWORTH, as Commissioner of the Department of Natural Resources of the State of Alaska, and Roscoe E. Bell, as Director of the Division of Lands of the State of Alaska, and Inlet Company, Inc., Appellees.

ALYESKA SKI CORPORATION, Appellant, v. Phil R. HOLDSWORTH, as Commissioner of the Department of Natural Resources of the State of Alaska, and Roscoe E. Bell, as Director of the Division of Lands of the State of Alaska, and Inlet Company, Inc., Appellees. No. 620. Supreme Court of Alaska. April 27, 1967. Kenneth R. Atkinson, of Atkinson, Wade & Conway, Anchorage, for appellant. Warren C. Colver, Atty. Gen., Juneau, Dorothy Awes Haaland, Asst. Atty. Gen., Anchorage, for appellees Holdsworth & Bell. Nissel A. Rose, Anchorage, for appellee Inlet Co.

6615

40825

OPINION Before NESBETT, C. J., and DIMOND and RABINO WITZ, JJ. RABINOWITZ, Justice. This appeal involves questions of first impression pertaining to the reviewability of decisions made by the Director of the Division of Lands and the Commissioner of Natural Resources under the leasing of lands provisions of the Alaska Land Act and the standing of an unsuccessful bidder to obtain review of such decisions. In its complaint appellant alleged that appellee Bell, the Director of the Division of Lands, offered to lease certain lands of the State of Alaska for 55 years at public auction to the highest qualified bidder pursuant to the Alaska Land Act. Appellant further alleged that it was a qualified bidder at the auction and that it offered several bids culminating in a bid of $10,200 annual rental. According to appellant's allegations, the only other bidder at the auction was Wayne J. Cherrier (who purportedly acted on behalf of appellee Inlet). In regard to Cherrier's bid, appellant asserted Cherrier had failed to file a development plan with appellee Bell as required by the notice of auction; that Cherrier omitted to file any evidence of his authority to act for appellee Inlet; that Cherrier's check, which was tendered at the close of the bidding, was neither cash, certified check, money order, nor cashier's check; and that Cherrier's bid of $10,400 annual rental was declared by appellee Bell to be the highest bid. Appellant further alleged that it had protested the foregoing and had appealed the director's determination of the highest bidder to Phil R. Holdsworth, the Commissioner of Natural Resources. The commissioner thereafter rendered a decision in which the director's determination was affirmed. Appellant alleged that if appellees Bell and Holdsworth were not restrained from entering into a lease with appellee Inlet, appellant would, to its irreparable injury, be illegally deprived of its right to obtain a lease to the land in question. After contending that it had exhausted its administrative remedies, appellant requested the superior court to issue a temporary restraining order and preliminary injunction against appellees Bell and Holdsworth enj oining and restraining them from executing and entering into said or any lease with Wayne J. Cherrier, Inlet Co., Inc., or any person other than plaintiff, as a result of the lease auction of December 1, 1964, and that upon final hearing said injunction be made permanent . The superior court then granted appellant's ex parte application for a temporary restraining order. Thereafter, appellees Bell and Holdsworth moved, pursuant to Civil Rule 12(b) (6), to dismiss appellant's complaint on the grounds that it failed to state a cause of action. In support of their motion, appellees- relied on the fact that the published notice of land lease auction had stated that the Division of Lands of the Department of Natural Resources "reserves the right to reject any and all bids." Ap-pellees' legal position in support of their motion to dismiss was that the "universal" rule which is followed in the United States "is that a bidder or potential bidder on a public contract is without standing to bring suit to enjoin the award of a contract to a third party or to have the contract set aside and awarded to him." Appellees argued that highest-responsible-bidder statutes, and administrative rules and regulations promulgated thereunder, are exclusively for the benefit of the general public and not for unsuccessful bidders, and do not create a right of action in favor of an unsuccessful bidder. In opposition to appellees' motion to dismiss, appellant argued that the highest-responsible-bidder line of authorities, typified by Perkins v. Lukens Steel Co. relied upon by appellees, is inapplicable. Appellant contended that the case at bar is distinguishable from Perkins in that it involved "the disposal by the State of some of its natural resources; not the purchase by the State of supplies or public improvements under its housekeeping powers or under responsible bidder statutes." Appellant also argued that by virtue of certain constitutional, statutory, and regulatory provisions it had the right "as an aggrieved bidder, to insist that no lease be issued except under the conditions and limitations prescribed" by Alaska's laws. As to its standing to bring the action, appellant's position was that "it has standing to sue on general legal principles, and as an aggrieved bidder to whom Section 17 of Article VIII of the Alaska Constitution applies, and as an interested person aggrieved by the neglect of the defendants to comply with the law of Alaska regarding disposal of State land." Additionally, appellant claimed that it was the only qualified bidder at the auction within the meaning of the invitation to bid and pertinent Alaska law, and that in order for appellees to bring the case within the Perkins rule they must prove another qualified bidder actually bid at the lease auction. Appellant then filed a motion for leave to file an amended complaint. The amended complaint proposed an additional cause of action seeking declaratory relief in addition to the injunctive relief which had been previously requested. Appellant's motion to amend was opposed by appellees Bell and Holdsworth on the basis that neither they nor the State of Alaska were obligated to issue a lease to any one, and that since the State of Alaska had not been made a party and could not be sued without its consent, declaratory relief was improper. The superior court granted appellees' motion to dismiss the complaint and allowed further briefs on the question of whether an amended complaint should be permitted. After hearing additional oral argument, the superior court entered an order which dismissed appellant's complaint, denied appellant's motion to amend its complaint, dissolved the temporary restraining order (which had been extended by stipulation of the parties), and exonerated the bond appellant had filed in conjunction with its application for temporary restraining order. In entering this order it appears the trial judge was of the opinion that appellant lacked the requisite standing to maintain either cause of action. As to the amendment requesting declaratory relief, the trial judge was of the view that the State of Alaska was an indispensable party since it owned the land in question, and because the state was not a party to the litigation, effective relief could not be granted to appellant. As to both causes of action the court noted appellant had not alleged that appellees Bell or Holdsworth were guilty of fraud, collusion, or deceit in the manner in which the auction was conducted, or in their determinations that appellee Inlet was the highest bidder. Appellant then appealed to this court from the foregoing order of the superior court. As we indicated earlier, resolution of the issues in this appeal concerns determination of questions pertaining to availability of judicial review and standing. Although these concepts have a tendency to merge and at times have not received independent treatment in the decisions, we are of the belief that it will assist in analysis of these questions if separate treatment is accorded them. As to the question of the reviewability of a decision of the Director of the Division of Lands, or that of the Commissioner of Natural Resources, made under the leasing provisions of the Alaska Land Act, we are of the opinion that section 10, article VIII of the Alaska constitution is of paramount significance. In this section of the natural resources article of Alaska's constitution, it is provided that: No disposals or leases of state lands, or interests therein, shall be made without prior public notice and other safeguards of the public interests as may be prescribed by law. In accordance with this constitutional provision, the legislature enacted the Alaska Land Act. AS 38.05.075 of this act in part provides, in regard to leasing procedures, that: The leasing shall he made at public auction to the highest qualified bidder as determined by the director. An aggrieved bidder may appeal to the commissioner within five days for a review of the director's determination. The Alaska Land Act also authorized the Commissioner of Natural Resources to "establish reasonable procedures and adopt reasonable rules and regulations necessary to carry out" the purposes of the act. Under this statutory authorization, the commissioner promulgated the following regulation regarding leasing procedures and appeals thereunder: An aggrieved bidder may appeal the Director's determination of the apparent high bidder to the Commissioner, through the Director, within a period of five working days following such determination, for a review of the Director's decision. The Commissioner's ruling shall be final, but without prejudice to any other right or rights the aggrieved bidder may have Appellant concedes that our statutes do not contain any "express provision for judicial review of an administrative decision of the Division of Lands or of the Department of Natural Resources, as to functions under the Alaska Land Act in the leasing of state lands." More particularly, appellant admits that the judicial review portions of the Administrative Procedure Act were not made specifically applicable to leasing procedures conducted by the Division of Lands under the Alaska Land Act On this point appellant fur ther argues that it is not clear whether AS 44.62.560(a) and (e) of the Administrative Procedure Act, which pertain to judicial review, apply to the case at bar. Appellant reasons from the foregoing that since judicial review is not explicitly prohibited, and since all disposals of state lands must be made in accordance with law "this court is free to choose whether or not to allow judicial review Appellees contend that the question is not whether the Administrative Procedure Act applies to the Alaska Land Act generally, but whether it applies to leasing procedures under AS 38.05.075. Appellees' position is that it does not, since AS 38.05.075 provides for a different type of review, namely, an appeal directly to the commissioner to obtain review of the director's determination. In regard to section 302.18, title 11 of the Alaska Administrative Code, appel-lees state: This clearly anticipates that in most cases the commissioner's decision shall be final, but does leave the door open for the unusual case where the aggrieved bidder may for some reason have other rights appellate or otherwise. But to say that all aggrieved bidders have the right to appeal would make meaningless the statement that the commissioner's ruling shall be final. We hold that determinations of the Director of the Division of Lands and the Commissioner of Natural Resources made under AS 38.05.075 of the Alaska Land Act, and regulations promulgated thereunder, are subject to judicial review. We reach this conclusion in light of the text of section 10, article VIII of the Alaska constitution which prohibits leasing of state owned lands unless made pursuant to public notice and other limitations imposed b^ law. This article of our constitution reflects the framers' recognition of the importance of our land resources and of the concomitant necessity for observance of legal safeguards, in the disposal or leasing of state lands. Neither the minutes of our constitutional convention nor the legislature history of the Alaska Land Act demonstrate that it was intended to make unreviewable leasing decisions of the director and the commissioner. We interpret the provisions of AS 38.05.075, which accord an aggrieved bidder the right of an administrative apppeal, as evidence of the legislature's awareness of the necessity that adherence to legal procedures concerning the leasing of state lands must be insured. AS 38.05.075's provisions pertaining to an aggrieved bidder's right of appeal do not manifest a clear intent that this administrative appeal was intended to be the full extent of review available to an aggrieved bidder. This view has received partial recognition in the concluding sentence of the regulation which provides that although the commissioner's ruling on appeal shall be final, it is "without prejudice to any other right or rights the aggrieved bidder may have." Admittedly, this is a penumbral area of law, yet it is one in which our courts are not precluded from carrying out their historic role in development of the common law. In light of the constitutional, statutory, and regulatory provisions alluded to, we conclude that it was not intended that Alaska's courts be divested of their constitutionally vested duty to insure compliance with the laws of Alaska. Wc therefore hold that the administrative determinations in question are judicially reviewable, and that the provisions of the Administrative Procedure Act relating to judicial review and scope of review should govern this proceeding. Our holding makes unnecessary resolution of the' question of whether the decisions involved herein are judicially reviewable under the provisions of Rule 21(a) and (b) of the District Court Civil Rules. This leads us to the question of whether appellant possessed the requisite standing to seek review in the superior court. We previously mentioned that appellees rely on the rule enunciated in Perkins v. Lukens Steel Co. in support of their position that appellant lacked standing. In the Perkins case the Supreme Court of the United States said: Section 3709 of the Revised Statutes requires for the Government's benefit that its contracts be made after public advertising. It was not enacted for the protection of sellers and confers no enforceable rights upon prospective bidders. 'The United States needs the protection of publicity, form, regularity of returns and affidavit in order to prevent possible frauds upon it by officers. A private person needs no such protection against a written undertaking signed by himself. The duty is imposed upon the officers of the government, not upon him.' That duty is owing to the Government and to no one else. Like private individuals and businesses, the Government enjoys the unrestricted power to produce its own supplies, to determine those with whom it will deal, and to fix the terms and conditions upon which it will make needed purchases. Acting through its agents as it 'must of necessity, the Government may for the purpose of keeping its own house in order lay down guideposts by which its agents are to proceed in the procurement of supplies, and which create duties to the Government alone. It has done so in the Public Contracts Act. That Act does not depart from but instead embodies the traditional principle of leaving purchases necessary to the operation of our Government to administration by the executive branch of Government, with adequate range of discretion free from vexatious and dilatory restraints at the suits of prospective or potential sellers. It was not intended to be a bestowal of litigable rights upon those desirous of selling to the Government; it is a self-imposed restraint for violation of which the Government — but not private litigants — can complain. Perkins has been consistently adhered to by the federal courts. See United States v. Gray Line Water Tours, 311 F.2d 779, 781-782 (4th Cir. 1962) ; St. Louis Amusement Co. v. FCC, 104 U.S.App.D.C. 45, 259 F.2d 202, 203-204 (D.C.Cir.), cert. denied, 358 U.S. 894, 79 S.Ct. 154, 3 L.Ed.2d 121 (1958); Friend v. Lee, 95 U.S.App.D.C. 224, 221 F.2d 96, 100 (1955); United States ex rel. Brookfield Construction Co. Inc. v. Stewart, 234 F.Supp. 94, 100-101 (D.D.C.1964); Joseph Rugo, Inc. v. Henson, 190 F.Supp. 281 (D.Conn.1960) ; Robert Hawthorne, Inc. v. United States Dep't of Int., 160 F.Supp. 417, 421 (E.D.Pa.1958); Heyer Prods. Co. v. United States, 140 F. Supp. 409, 412 (Ct.Cl.1956). Results similar to Perkins have been reached by state courts. See Townsend v. McCall, 262 Ala. 554, 80 So.2d 262, 265 (1955); Fetters v. Mayor & Council of Wilmington, 31 Del.Ch. 338, 73 A.2d 644, 647 (1950); Waszen v. Atlantic City, 1 N.J. 272, 63 A.2d 255, 256 (1949) We hold that appellant, as an aggrieved bidder under AS 38.05.075 and under the allegations of its first cause of action seeking injunctive relief, has standing to obtain review of determinations of the Director of the Division of Lands and the Commissioner of Natural Resources. On a motion to dismiss a complaint it is established that the well-pleaded allegations are taken as admitted. Appellant's complaint alleged that appellees Bell and Holdsworth violated certain established leasing procedures in that appellee Inlet's purported agent, Wayne Cherrier, had failed to file with the director proof of his agency; had failed to pre-file a development plan; and further alleged that Cher-rier's check, which was tendered at the close of the auction, was not in conformity with the requirements of the applicable regulations. Appellant further alleged that if appellees Bell and Holdsworth were not restrained they would enter into a formal lease with Inlet. In consideration of these admitted allegations, we are of the opinion that appellant has the status of an aggrieved bidder and one who was in fact adversely affected by the director's and commissioner's determinations. In such circumstances, and in consideration of the provisions of section 10, article VIII of the Alaska constitution and AS 38.0S.07S of the Alaska Land Act, we are of the opinion that the Perkins rule is inapplicable to the case at bar. In reaching this conclusion, we again emphasize that here we are concerned with an unequivocal constitutional mandate requiring that all leases of state lands are to be entered into in accordance with safeguards imposed by law. This constitutional mandate, together with AS 38.05.07S, furnishes a significant basis for distinguishing the Perkins line of cases. We construe AS 38.05.075 as a manifestation of the legislature's intent to authorize an aggrieved bidder to maintain an action seeking judicial review so that the public interest, in adherence to law in the disposal and leasing of state owned lands, may be vindicated. We do not intend, nor do we now hold, that an aggrieved bidder is the sole or exclusive party through whom these important public interests are to be secured. Nor do we express any opinion as to the applicability of the Perkins rationale to other aspects of state and local government functions. Our holding is limited to the facts of this case as disclosed in appellant's complaint. We therefore decline to follow the Perkins doctrine where leasing of state owned lands is in question, and where the party seeking judicial review is both an aggrieved bidder, under AS 38.05.075, and one who, in fact, was adversely affected by the administrative determinations in question. In the context in which this appeal is presented, we believe it consonant with the intent of our constitution and with legislative intent that an aggrieved bidder, under AS 38.05.075, have standing to obtain judicial review of alleged violations of his protected interest, as well as to vindicate the public interest in the lawful leasing of Alaska's lands. One other point remains in this appeal. Appellant urges as an additional ground for reversal the lower court's refusal to allow an amendment to the complaint which would have added a second cause of action for declaratory relief. This motion was denied by the trial court on the basis that appellant lacked standing to sue, that it could not grant effective relief to appellant, and on the further ground that the State of Alaska was an indispensable party to the declaratory judgment cause of action. Appellant argues that its proposed second cause of action was based on our declaratory judgment statute, and Civil Rule 57 (a). Appellant further contends that under Malasarte v. Colemen leave to amend pleadings should be freely granted. Ap-pellees Bell and Holdsworth defend the trial court's denial of amendment on three grounds. First, it is argued that amendment can properly he denied if it is subject to a motion to dismiss. Secondly, it is argued that since neither the state nor ap-pellees Bell and Holdsworth are obligated to issue a lease to anyone, the declaratory relief sought was inappropriate. Thirdly, appellees contend that the State of Alaska was an indispensable party to the proposed declaratory judgment action and had not been made a party or given its consent to be sued. In light of our holdings in regard to the judicial review and standing issues and our determination that appellant's injunction cause of action should not have been dismissed, we consider it unnecessary to pass upon this remaining question at this posture of the litigation. Upon remand it is possible that appellant will desire to seek additional amendments to its complaint if, in fact, a lease has been issued to Inlet. There is also a strong possibility that the State of Alaska will desire to intervene upon remand due to our disposition of the primary questions in this appeal and the significance to the state of this litigation. Although we choose not to pass upon the question at this time, we take this occasion to reiterate what was stated in State, Dept, of Highways v. Crosby as to indispensable parties under Civil Rule 19. In that case we said: An indispensable party is one whose interest in the controversy before the court is such that the court cannot render an equitable judgment without having jurisdiction over such party. The determination of indispensability or lack of it involves a discretionary balancing of interests. On the one hand, consideration must be given to the possibility of rendering a judgment that will have an adverse factual effect on the interests of persons not before the court, and to the danger of inconsistent decisions, the desire to avoid a multiplicity of actions, and a reluctance to enter a judgment that will not end the litigation. On the other hand, considerá tion must be given to the desirability of having some adjudication if at all possible rather than none, leaving the parties before the court without a remedy because of an 'ideal desire to have all interested persons before the court.' Courts exist for the determination of disputes, and they have an obligation in particular litigation to make meaningful determinations 'if at all possible. For the foregoing reasons the superior court's dismissal of appellant's first cause of action is set aside and the case remanded for further proceedings not inconsistent with this Opinion. . AS 38.05.005-38.05.370 and in particular AS 38.05.070-38.05.105. . After the temporary restraining order was issued, appellee Inlet moved to intervene as a party defendant. This motion was granted. . Appellees also argued that a bid on a public contract is merely an offer which, if not accepted by the government, results in no contractual rights to the unsuccessful bidder. While the motion was pending, appellee Inlet filed an answer which contained the defense that appellant's complaint failed to state a claim upon which relief could be granted. Appellee Inlet joined in the motion to dismiss and its memorandum in support of the motion to dismiss paralleled that of appellees Bell and Holdsworth. . 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108 (1940). . In support of this contention appellant cited sections 2, 6, 8, 10, and 17, article VIII of the Alaska constitution; sections 38.05.035(a) (G) & (14) ; 38.05.070(a) ; 38.05.075; 38.05.020 of the Alaska statutes ; and title 11, sections 302.02, 302.15, 302.16, 302.17, 302.18 of the Alaska Administrative Code of 1965. . Section 17, article VIII of the Alaska constitution provides: Uniform Application. Laws and regulations governing the use or disposal of natural resources shall apply equally to all persons similarly situated with reference to the subject matter and purpose to be served by the law or regulation. . In its prayer for relief pertaining to the declaratory judgment cause of action, appellant requested: That the Court declare that plaintiff was the only qualified bidder at the lease auction referred to in the complaint, and that any lease issued as a result of said auction must be issued to plaintiff, or that no lease may be issued by the defendants to the defendant in intervention. . At the time appellees' motion to dismiss was granted the trial judge stated: The Court is of the opinion that there is not sufficient allegations in the complaint of which the Court can take jurisdiction in this matter, and that no fraud or collusion is raised and the mere fact that the plaintiff in this case was a bidder and unsuccessful, and [has] alleged some technical defects in the handling of [the bidding] , in the Court's opinion, is not sufficient, therefore, the Motion to Dismiss is granted as to the original complaint. . On this point the court stated : Now, I think it's conceded by the parties that the only way the Court can give some relief to these parties, which would be any final relief to them would be if the Court bad held that their bid was the bid that had to be accepted by the State. On the pleadings I don't see how the Court could arrive at any other. If we granted the first request [and] ⅜ declare none of the bids be accepted, then, of course, I assume, under the laws and regulations, that they would have to put it up for bid again. That would not insure anyone any rights in this case as I see the matter ⅜. .Appellant did not avail itself of the provisions of Supreme Court Rule 7(d) (1) which permits the issuance of a stay upon the filing of an appropriate supersedeas bond. .AS 38.05.075 further provides : The leasing shall he conducted by the director, or his representative, and the successful bidder shall deposit the first year's rental, or that portion of it which the commissioner requires, in accordance with his bid. The director or his representative shall immediately issue a receipt containing a description of the land or interest leased, the price bid, and terms of the lease. The receipt shall be acknowledged in writing by the bidder. A lease, on a form approved by the attorney general, shall be signed by the lessee and, upon approval by the commissioner, shall be signed by the director. Further safeguards established by the Alaska Land Act arc as follows: AS 38.-05.070(c) provides in part that "A lease may be issued for a period up to 55 years, if it appears to be in the best interests of the state and if the commissioner approves." AS 38.05.085 provides in part that "The lease shall require advance payment of the annual rent or portion of it as the director, with the approval of the commissioner, requires. ⅜ ⅞ * The director may, with the approval of the commissioner, impose conditions, limitations and terms which he considers necessary and proper to protect the interests of the state." AS 38.05.105 provides that "the annual rental payment is subject to adjustment at five-year intervals ⅜." . AS 38.05.020(b) (1). This section further provides that "Ail rules and regulations adopted by the commissioner shall be adopted under the Administrative Procedure Act (AS 44.62)." AS 38.05.035(a) (6) provides: The director shall under the conditions and limitations imposed by law and the commissioner, issue leases s disposing of available lands ⅜ or any interests in them * ⅜ ⅜. . 11 Alaska Adm.Oode § 302.18 (1965). . In regal'd to administrative adjudications, AS 44.62.330(a) of the Administrative Procedure Act provides in part: The procedure of the state boards, commissions, and officers listed in this subsection ⅜ shall be conducted under the provisions of § 330-630 of this chapter. This procedure, including, but not limited to ⅜ * ⅜ judicial review and scope of judicial review ⅜ shall be governed by this chapter, notwithstanding similar provisions in the statutes dealing with the state boards, commissions, and officers listed. Where indicated, the procedure that shall be conducted under § 330-630 of this chapter is limited to named functions of the agency. Division of Lands under Alaska Land Act where applicable . AS 44.62.560(a) of the Administrative procedure Act reads in part: Judicial review by the superior court of a final administrative order may be had by filing a notice of appeal in accordance with the applicable rules of court governing appeals in civil matters. We note that AS 44.62.560(e) of the Administrative Procedure Act states: The superior court may enjoin agency action in excess of constitutional or statutory authority at any stage of an agency proceeding. If agency action is unlawfully withheld or unreasonably withheld, the superior court may compel the agency to initiate action. . In arguing that this court should hold the administrative determinations in question reviewable, appellant cites 4 Davis, Administrative Daw § 28.21 (Supp.1965), where the author says: The most important proposition about the law of unreviewability remains: The presumption of reviewability controls unless it is rebutted by affirmative indication of legislative intent in favor of un-reviewabililty, or by some special reason for unreviewability growing out of the subject matter or the circumstances. .As to the purpose of the review provisions of AS 38.05.075, appellees state that it was desired to give the aggrieved bidder "some opportunity for review, rather than having the director's decision absolute." . As is perhaps usual, the legislative history of AS 38.05.075 is uninformative. . Regulation cited note 13 supra and accompanying text. . As to the common law of reviewability, see 4 Davis, Administrative Law § 28.03-07 (1958); Jaffe, Standing To Secure Judicial Review: Private Actions, 75 Harv.L.Rev. 255 (1961). . Section 1, article IV of the Alaska constitution provides in part that: The judicial power of the State is vested in a supreme court, a superior court, and the courts established by the legislature. The jurisdiction of courts shall be prescribed by law. AS 22.10.020(a) provides in part that: The superior court has jurisdiction in all matters appealed to it for a subordinate court, or administrative agency when appeal is provided by law. . See AS 44.62.560 and AS 44.62.570. . Dist.Oiv.R. 21(a) provides: When Filed. An aggrieved party may petition the superior court for review of any order or decision of ⅜ ⅜ * an administrative agency where there is no appeal or other plain, speedy or adequate remedy, and where the administrative agency appears to have exercised his or its functions erroneously or to have exceeded liis or its jurisdiction, to the injury of some substantial right of such party. Relief heretofore available by writs of review, certiorari, mandamus, prohibition, and other writs may be obtained by petition for review under the practice prescribed in these rules. Dist.Oiv.R. 21(b) (3) provides: Where the administrative agency has so far departed from the accepted and usual course of ⅜ administrative proceedings, as to call for the superior court's power of supervision and review. Appellees take the position that appellant does not come within this rule because it is not an aggrieved party (due to its lack of standing to sue), and further because no substantial rights of appellant were shown to be injured. .310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108 (1940). . Id. at 126-127, 60 S.Ct. at 876, 84 L.Ed. at 1114-1115 (footnotes omitted). . In the Friend case the court said: Plaintiff contends that the contract between the defendants and Avis is illegal on the ground that it was entered into without previous advertising for proposals, as 41 U.S.C.A. § 5 requires. But assuming arguendo that the statute is applicable and may have been violated, plaintiff, nevertheless, has no standing to sue to invalidate the contract. Statutes regulating the contracting procedures of officers of the Federal Government are enacted solely for the benefit of the Government and confer no enforceable rights upon persons dealing with it. Perkins v. Lukens Steel Co., 1940, 310 U.S. 113, 126, 60 S.Ct. 869, 84 L.Ed. 1108. In consequence, plaintiff cannot contest the award of the contract to Avis, either as a bidder or in his capacity as a citizen generally. See also the Gray Line Water Tours case. We note that both of these decisions applied Perhins to situations where the government was neither purchasing supplies nor public improvements under its housekeeping powers. Both cases involved awards of exclusive transportation franchises. . Note in the Fetters and Waszen cases the courts distinguished between the status of the litigant taxpayer and that of unsuccessful bidders in resolving issues as to standing. In both decisions taxpayer-litigants were held to have standing while mere unsuccessful bidders were held to lack standing. Although this same distinction was apparent to the trial judge at the time the motion to dismiss was first argued, he did not base his decision on appellant's status as a taxpayer nor has this question been properly argued in the briefs before this court. We therefore decline to pass upon the question of whether appellant as a taxpayer possesses the requisite standing to obtain judicial review of the administrative determinations involved in this appeal. . Section 16, article III of the Alaska constitution provides: Governor's Authority. The governor shall be responsible for the faithful execution of the laws. He may, by appropriate court action or proceeding brought in the name of the State, enforce compliance with any constitutional or legislative mandate, or restrain violation of any constitutional or legislative power, duty, or right by any officer, department, or agency of the State or any of its political subdivisions. This authority shall not be construed to authorize any action or proceeding against the legislature. None of the briefs before us make any reference to this provision of our constitution and to its possible impact on the standing issue in the case at bar. In such circumstances we will await a more appropriate occasion to interpret this portion of Alaska's constitution. . 2 Moore, Federal Practice § 12.08 (2d ed. 1965). At the outset we indicated that the case at bar arose in this context, namely, upon appellees' motion to dismiss the complaint for failure to state a claim. . 11 Alaska Adm.Oode § 203.02 (1962) provided in part: An applicant or bidder for a lease is qualified if the applicant or bidder: (d) is acting as an agent for another and has qualified by filing with the Director, prior to the time set for the auction, a proper power of attorney or a letter of authorization creating such agency. The agent shaE represent only one principal, to the exclusion of himself. . 11 Alaska Adm.Oode § 302.15 (1963) provided in part: The apparent high bidder ⅜ shaE concurrently deposit with the Division, such portion of the minimum annual rental as the Director has indicated, plus a deposit to cover the costs of advertising, appraisal and survey in cash and/or certified check and/or cashier's check and/or money order. The requirement of "cash and/or certified check and/or cashier's check and/or money order" was deleted when § 302.15 was amended in 1965. The notice of land auction in the case at bar requires in part that "The successful bidder shaE deposit at the time of the award, first year's rental plus $100.00 to cover the costs of advertising." . AS 38.05.080 of the Alaska Land Act provides: Before the director signs the lease, the commissioner may reject all bids for leases when the best interests of the state justifies this action. There is no indication in the record at the time superior court made its ruling that the commissioner intended to reject aE bids under his AS 38.05.080 authority. If this were the ease, it might woE indicate a different result than the one we have reached here as to appeEant's standing. Compare section 302.17, title 11, Alaska Administrative Code (1965) which reads: Prior to the signing of the formal lease by the Director, the Commissioner may reject any and all bids for leases when the best interest of Alaska clearly justifies such action. In the Notice of Land Auction pertaining to the auction in question, it was stated in part that "The right is reserved to waive technical defects in this publication and to reject any and aE bids." . Case cited note 24 supra and quoted in text accompanying note 25 supra. . Compare Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 8, 14-15, 62 S.Ct. 875, 86 L.Ed. 1229, 1233, 1236-1237 (1942) ; FCC v. Sanders Bros., 309 U.S. 470, 476-477, 60 S.Ct. 693, 84 L.Ed. 869, 875 (1940). As to the question of standing in general, see 3 Davis, Administrative Law § 22.01-20 (1958). . In reaching this conclusion we do not pass upon the merits, or substantiality of, appellant's allegations that unlawful procedures were followed in regard to the lease auction in dispute. . AS 22.10.020(b) provides: In case of an actual controversy within the state, the superior court, upon the filing of an appropriate pleading, may declare the rights and legal relations of an interested party seeking the declaration, whether or not further relief is or could be sought. The declaration has the force and effect of a final judgment or decree and is roviowable as such. Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against an adverse party whose rights have been determined by the judgment. . Civ.R. 57(a) reads as follows: Declaratory Judgments. The procedure for obtaining a declaratory judgment pursuant to statute shall be in accordance with those rules, and the right to trial by jury may be demanded under the circumstances and in the manner provided in Rules 38 and 39. The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The court may order a speedy hearing of an action for a declaratory judgment and may advance it on the calendar. . 393 P.2d 902, 903 (Alaska 1964). . In Malasarte we said in part: The policy of the courts of Alaska is concisely stated in Civil Rule 15(a) which provides among other things that leave to amend pleadings shall be freely given when justice so requires. . Appellees cite Gilbertson v. City of Fairbanks, 262 F.2d 734, 740 (9th Cir. 1959); Ledbetter v. Farmers Bank & Trust Co., 142 F.2d 147, 149 (4th Cir.), cert. denied, 323 U.S. 719, 65 S.Ct. 48, 89 L.Ed. 578 (1944); 3 Moore, Federal Practice § 15.-10 (1966). . Compare with the scope of declaratory relief requested by appellant in its proposed amended complaint. See note 7 supra. . Appellees cite Texas Oyster Growers Ass'n v. Odom, 385 S.W.2d 899 (Tex.1965); Courtney v. Byram, 54 Cal.App.2d 769, 129 P.2d 721 (1942); and Lucas v. Banfield, 180 Or. 437, 177 P.2d 244 (1947), in support of their position. Appellee Inlet advances a similar argument in its brief and additionally argues that since the subject matter of the law suit is no longer in dispute (i. e., the lease has purportedly been issued to appellee Inlet) the matter is moot and the amendment was therefore properly denied. We note that appellee Inlet's assertion that a lease has been issued does not appear of record and is not conceded by appellant. . Additionally, we have concluded that it would be inappropriate to decide this issue at this time because of the inadequate treatment accorded it in the briefs of the parties (particularly deficient is appellant's coverage of the question). . After the superior court had dismissed appellant's first cause of action and had denied leave to amend, the State of Alaska moved to be made a party to the law suit. This motion was made in connection with costs and attorney's fee issues and was subsequently withdrawn by the state. . 410 P.2d 724, 725-726 (Alaska 1966) (footnotes omitted). Accord, City of Fairbanks v. Electric Distribution Sys., Opinion No. 339, 413 P.2d 165, 166-167 (Alaska 1966); 80 Harv.L.Rev. 678 (1967).

10336977

USIBELLI COAL MINE, INC., Appellant, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES, Appellee

Usibelli Coal Mine, Inc. v. State, Department of Natural Resources

1996-08-16

No. S-6650

1134

1150

921 P.2d 1134

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.

USIBELLI COAL MINE, INC., Appellant, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES, Appellee.

USIBELLI COAL MINE, INC., Appellant, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES, Appellee. No. S-6650. Supreme Court of Alaska. Aug. 16, 1996. Richard M. Johannsen and James N. Leik, Perkins Coie, Anchorage, for Appellant. Lawrence Z. Ostrovsky, Assistant Attorney General, Anchorage, and 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.

8224

51243

OPINION EASTAUGH, Justice. I. INTRODUCTION We consider here whether Usibelli Coal Mine, Inc. (UCM) owes back royalties to the State of Alaska under three state coal leases for coal mined between 1989 and March 1993. The Alaska Department of Natural Resources (DNR) ruled administratively that it does. On appeal by UCM, the superior court affirmed. We affirm the superior court's decision. II. FACTS AND PROCEEDINGS DNR claims back royalties, plus interest, of $346,550.35 due on three noncompetitive coal leases held by UCM. DNR entered into the three leases in accordance with the provisions for coal land in the Alaska Land Act (AS 38.05.005-.990). Each of these three leases has an indeterminate term, and requires the payment of both annual rentals and production royalties. DNR issued the first lease, ADL 20633, on May 1, 1967, with an initial royalty of $0.10/ton. DNR issued the second lease, ADL 21545, on November 1, 1967, with an initial royalty of $0.05/ton. DNR originally issued these two leases to James A. Carroll, who assigned his interest in both leases to UCM in 1971. The leases are located on land patented to the State pursuant to the Alaska Mental Health Enabling Act of 1956. DNR issued the third lease, ADL 56505, on April 13, 1972, with an initial royalty of $0.15/ton. The leases do not contain an expiration date for the initial royalties. However, in accordance with AS 38.05.150(d), the royalty terms cannot exceed a term of twenty years. Thus, the initial royalties on these leases expired on the twentieth anniversary of the date each lease was issued: May 1, 1987, November 1, 1987, and April 13, 1992, respectively. In 1982, before the initial royalty term on any of these leases expired, DNR promulgated regulations setting a standard royalty rate of five percent of adjusted gross value (AGV) for noncompetitive state coal leases. 11 Alaska Administrative Code (AAC) 85.220 (1996). This rate was to be applied to existing leases at the time of royalty adjustment. Id. Royalty adjustment for ADLs 20633 and 21545 was to occur in 1987. In March 1987, facing the prospect of royalties of five percent of AGV on these leases, UCM asked DNR to grant it royalty relief pursuant to AS 38.05.140(d). UCM requested that royalties for the two leases be set at the equivalent of two percent of AGV. While this request was pending, UCM began paying royalties at the rate of five percent of AGV on each lease when its initial royalty term expired. In April 1988 DNR denied the reduction requested by UCM, but agreed to phase in the full five percent royalty rate pursuant to AS 38.05.140(d), so that the full rate would not be applied to UCM's leases until May 1, 1990. UCM requested reconsideration, arguing among other things that the coal royalty and royalty relief regulations were invalid. On reconsideration, DNR granted UCM further royalty relief, to facilitate UCM's negotiations on its existing export contract with Suneel Alaska Corporation (Suneel). In its October 11, 1988 decision, DNR decided that the April decision would continue to control UCM's royalty payment obligations until December 31, 1988. Effective January 1, 1989, UCM was to pay a royalty of five percent of AGV on any production up to 800,000 tons of coal from the two leases collectively per year. All production in excess of 800,000 tons would carry a reduced royalty rate of $0.29/ton. At the beginning of each year, UCM was to submit a calculation of its estimated weighted average five percent AGV for the calendar year, and was to submit an adjusted royalty return after the end of the year to reflect actual volumes and proceeds. The royalty reduction was to be effective "for the same term as any contract extension negotiated with Suneel before January 1, 1989," but "in no event shall this decision be effective past December 31, 1990." Beginning January 1, 1991, the royalty rate on all production from the two leases was to be five percent of AGV. In January 1989 UCM submitted its estimate of royalty for calendar year 1989. In its supporting calculations, UCM applied the five percent royalty to the adjusted gross value of UCM's coal at the mine face. UCM based its calculation of AGV on the estimated average sales price "Net of State Royalty," less statutory deductions for transportation and benefieiation costs, and deductions for the federal reclamation royalty (AML reclamation fee) and the federal black lung excise tax. UCM also used this method for calculating AGV in its estimate of royalties for calendar years 1990 and 1991. DNR first informed UCM that its royalty payments calculated under this method were incorrect in a March 1991 letter in which DNR rejected UCM's royalty calculation for calendar year 1990. DNR informed UCM that the calculation submitted was in error, as "[t]he regulations only grant a deduction for transportation and benefieiation costs and rental," and do not allow deductions such as those taken by UCM for the federal reclamation royalty and federal black lung excise tax. UCM did not respond. In May 1991 DNR again contacted UCM concerning the deficiency in UCM's royalty calculation for calendar year 1990. DNR also informed UCM that its royalty calculation for calendar year 1989 and its subsequent payment were deficient for the same reasons. DNR notified UCM that it owed back royalty payments- for calendar years 1989 and 1990, and for the first quarter of 1991. DNR requested that payment be made with UCM's next royalty payment; if not, the state's legal rate of interest would be imposed on the back payments owed. Again, UCM did not respond. In March 1992 UCM submitted its adjusted royalty return to reflect actual volumes and proceeds for calendar year 1991. UCM used the same method of calculating AGV that it had used for the previous two years, with the addition of a deduction for the severance tax imposed by the new Denali Borough. Two weeks later, DNR notified UCM that the royalty calculations were again in error, and demanded payment for back royalties due for calendar years 1989, 1990, and 1991. Once again UCM did not respond. DNR scheduled several meetings with UCM representatives to discuss the royalties and the issue of back payments. At a meeting in November 1992, then-Commissioner Olds suggested that it might be possible to settle the dispute by forgiving the 1989 back royalty, if all other amounts due were paid in full. However, DNR was later advised by the Attorney General that such a settlement was not acceptable, and that UCM would have to pay the full amount of any back royalty owed. The Attorney General advised DNR that pursuant to the state's fiduciary responsibility under the Mental Health Settlement, all back royalties owed must be paid. On December 9, 1992, the Director of the Division of Mining issued a decision requiring that UCM pay all back royalties owed. The Commissioner concurred in the decision. The Director expressly stated that forgiveness of the 1989 royalties was denied, and ordered UCM to "[pjlease recalculate the royalties owed from 1989 to present without the deductions for the Black Lung Tax, AML Fee, State Royalty, and Denali Borough Severance Tax." UCM requested reconsideration of the December 9 decision. In a final decision of May 14, 1993, the Commissioner affirmed the Director's determination that UCM owed all back royalties from 1989 to "the present." UCM appealed DNR's decision to the superi- or court. The superior court affirmed the decision, and remanded to DNR with instructions to correct the amount due to reflect an error made in calculating the interest. UCM appeals. III. DISCUSSION A Standard of Review When the superior court acts as an intermediate court of appeal, we give no deference to the lower court's decision. Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987). Instead, we independently review the merits of the underlying administrative decision. Id. We have articulated four principal standards of review for administrative decisions. The "substantial evidence" test is used for questions of fact. The "reasonable basis" test is used for questions of law involving agency expertise. The "substitution of judgment" test is used for questions of law where no expertise is involved. The "reasonable and not arbitrary" test is used for review of administrative regulations. Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992) (citing Jager v. State, 537 P.2d 1100, 1107 n. 23 (Alaska 1975)). B. Administrative Res Judicata The threshold question is whether administrative res judicata bars UCM's challenge. The State argues that UCM is barred from challenging DNR's royalty regulations, because it questioned the validity of those regulations in its Application for Reconsideration of DNR's April 1988 decision denying UCM's request for full royalty relief. The State argues that UCM "expressly accepted" application of the royalty regulations by failing to appeal DNR's October 11, 1988 decision that granted it partial royalty relief. The State argues further that UCM "accepted and acknowledged the [royalty regulations] long ago" by submitting royally calculation statements and paying royalties based on the 1988 decision. UCM responds that res judicata is not appropriate in this case. It contends that it had no reason to appeal the April 1988 decision, which granted UCM a royalty rate reduction. Although UCM's legal counsel did argue at the time that the royalty regulations might be invalid, DNR never addressed the argument or decided the issue. UCM argues that "[b]ecause this purely legal issue has never been addressed, resolved, or actually determined or decided within the meaning of DNR's own regulation, there is no bar to raising it now." We have held that "[t]he rule of res judieata applies to administrative agencies as well as courts." Colville Envtl. Servs., Inc. v. North Slope Borough, 831 P.2d 341, 345 n. 4 (Alaska 1992). "Thus if a claim could have been raised before an agency in a prior administrative hearing, res judicata precludes subsequent litigation of the same claim." Calhoun v. State, Dep't of Transp. and Pub. Facilities, 857 P.2d 1191, 1195 (Alaska 1993). However, "[r]es judicata cannot apply in the absence of 'a judgment to which res judicata could attach.'" Municipality of Anchorage v. Frank Coluccio Constr. Co., 826 P.2d 316, 324 n. 7 (Alaska 1992) (quoting C.J.M. Constr., Inc. v. Chandler Plumbing & Heating, Inc., 708 P.2d 60, 61 n. 1 (Alaska 1985)). For purposes of res judicata, a final judgment "includes 'any prior adjudication of an issue in another action that is determined to be sufficiently firm to be accorded conclusive effect.' " Briggs v. State, Dep't of Pub. Safety, 732 P.2d 1078, 1082 (Alaska 1987) (quoting Restatement (Second) of Judgments § 13 (1982)). Factors considered in determining finality are "'that the parties were fully heard, that the court supported its decision with a reasoned opinion, that the decision was subject to appeal or was in fact reviewed on appeal.' " Id. (quoting Restatement (Second) of Judgments § 13 cmt. g (1982)). In this ease, UCM raised an objection to the validity of the regulations in 1988, when it requested reconsideration of DNR's denial of its request for royalty relief pursuant to AS 38.05.140(d). However, the Commissioner did not address this argument in his final decision, and appears to have given it no consideration. Therefore, there was no prior adjudication of this issue by DNR. Consequently, it is not appropriate to apply res judicata in this case. C. Validity of the Regulations 1. Was there a valid delegation of rule-making authority to DNR to adjust royalty rates for coal leases? In 1982, DNR promulgated regulations setting a standard royalty rate on noncompetitive coal leases. 11 AAC 85.220 (1996); 11 AAC 85.225 (1996). UCM argues that the legislature neither expressly nor impliedly granted DNR authority to adjust royalty rates on existing leases, but rather reserved that power to itself. The State counters that the regulations were validly promulgated by DNR within its rule-making authority. This question is one of statutory interpretation. In addressing questions of statutory interpretation, the court substitutes its independent judgment for that of the agency. Fairbanks N. Star Borough Sch. Dist. v. NEA-Alaska, Inc., 817 P.2d 923, 925 (Alaska 1991). "Even under the independent judgment standard, however, the court gives some weight to what the agency has done, especially where the agency interpretation is longstanding." Id. (citation omitted). The Alaska Land Act (AS 38.05.005-.990) was enacted in 1959. The Act contains no express delegation of authority to DNR to fix or adjust coal lease royalty rates. However, a grant of rulemaking authority can be either express or implied. AS 44.62.030. Therefore, we must determine whether a delegation of authority is implied in this ease. See Chevron U.S.A. Inc. v. LeResche, 663 P.2d 923, 928 (Alaska 1983) (holding that a section of a statute implied agency authority to adopt regulations); Boehl v. Sabre Jet Room, Inc., 349 P.2d 585, 587-88 (Alaska 1960) (holding that a grant of generalized power to "effectuate and carry out the purpose" of an act was an implied delegation of authority to adopt the regulations in question). In Chevron, we considered a challenge to the validity of DNR regulations which required that a miscellaneous land use permit be obtained from DNR for all oil and gas exploration on state lands. 663 P.2d at 924. In exchange for the permit, explorers had to agree to submit to the Department certain geological and geophysical data and information derived from exploration. Id. In determining whether the legislature delegated rule-making authority to the Department, we considered two sections of the Alaska Land Act. Id. at 928. Alaska Statute 38.05.020(b)(1) authorizes DNR to "establish reasonable procedures and adopt reasonable rules and regulations necessary to carry out" the Alaska Land Act. Id. Alaska Statute 38.05.180(a), (b), (c), (e), and (f) imposes on DNR "the responsibility to maximize State return from State owned oil and gas resources through careful planning, including presale analysis of tracts proposed for lease." Id. We held that these two statutes, considered together, implied the authority to adopt the challenged regulations. Id. We explained that the planning and pre-sale analysis with which DNR was charged required that it "have access to the most reliable geological and geophysical data available." Id. Thus, the regulations were "reasonably necessary to insure that the planning process is carried out responsibly." Id. In this ease, we consider AS 38.05.020(b)(1), AS 38.05.145(a), and AS 38.05.150(d) in determining whether the challenged regulations are impliedly authorized. Alaska Statute 38.05.020(b)(1) gives DNR the power to adopt regulations necessary to carry out the Alaska Land Act. It provides that the commissioner may establish reasonable procedures and adopt reasonable regulations necessary to carry out this chapter and, whenever necessary, issue directives or orders to the director to carry out specific functions and duties; regulations adopted by the commissioner shall be adopted under the Administrative Procedure Act (AS 44.62)_ This is a broad grant of rulemaking authority. See Warner v. State, 819 P.2d 28, 32 n. 3 (Alaska 1991) (noting cases in which the court evaluated the scope of an agency's implied authority under statutes conferring broad grant of rulemaking authority). Alaska Statute 38.05.145(a) gives DNR the authority to promulgate regulations for the disposition of coal deposits under the leasing procedure. It provides in relevant part: Deposits of coal, phosphates, oil shale, sodium, potassium, oil, gas, geothermal resources and state land containing these deposits are subject to disposition under regulations, recommended by the director and adopted by the commissioner, and the provisions of AS 38.05.145-38.05.181. The disposition of these deposits is limited by the application of AS 38.05.150(d), which specifies maximum terms and minimum rents and royalties for coal leases. When considered together, these statutes impliedly authorize DNR to promulgate regulations regarding coal royalty rates and adjustments to those rates. The authority to adjust royalty rates is "reasonably necessary" to DNR's discharge of its statutory mandate to lease coal deposits on state lands. Fixing and adjusting royalties is an integral part of this disposition, and is essential to effective administration of coal leasing on state lands. Consequently, we find that the regulations promulgated to effectuate the purpose of these statutes are valid. 2. Are the regulations unconstitutional and void as applied because of a lack of sufficient standards and procedures? UCM argues that even if the delegation of authority can be implied, it is not attended by the statutory standards and procedural safeguards necessary for the valid exercise of agency authority. DNR responds that statutory standards and procedural safeguards do not need to be explicitly listed in the authorizing statute, and that sufficient standards and procedures are present. We have adopted a sliding-scale approach in analyzing the validity of a delegation of authority to an administrative agency. State v. Fairbanks N. Star Borough, 736 P.2d 1140, 1143 (Alaska 1987) (per curiam opinion expressly adopting superior court's opinion and sliding scale approach). "[T]he constitutionality of a delegation is determined on the basis of the scope of the power delegated and the specificity of the standards to govern its exercise. "When the scope increases to immense proportions . the standards must be correspondingly more precise.' " Id. (quoting Synar v. United States, 626 F.Supp. 1374, 1387 (D.D.C.), aff'd on other grounds, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986)). These standards may be either explicit, or implicit. Municipality of Anchorage v. Anchorage Police Dep't Employees Ass'n, 839 P.2d 1080, 1086 (Alaska 1992). In Fairbanks North Star Borough, a delegation doctrine challenge was brought against a statute endowing the Governor with the power to reduce appropriations when anticipated revenues appeared inadequate to meet appropriation levels. 736 P.2d at 1142. This court upheld the superior court's finding that the "legislature ha[d] articulated no principles, intelligible or otherwise, to guide the executive." Id. at 1143. Because "it authorize^] the exercise of sweeping power over the entire budget with no guidance or limitation," we held that the statute was an unconstitutional delegation of legislative power. Id. at 1142-43. In Municipality of Anchorage, we applied a sliding-scale analysis to the Anchorage Municipal Assembly's delegation of power to a private arbitrator to make final and binding determinations in certain labor contract disputes. 839 P.2d at 1080. This is "a fairly narrow area, albeit an important one," and because a panoply of implied standards created "an elaborate and detailed structure which guides the arbitrator's decisions and guards against arbitrary action," we upheld the delegation as a valid delegation of authority. Id. at 1086-89. In this case, the legislature has delegated authority to DNR to regulate in the field of coal leases on state land. Because coal leasing on state lands is a narrow area or field, this is a delegation of "broad authority to an agency with expertise to regulate a narrowly defined field." Fairbanks N. Star Borough, 736 P.2d at 1143 (citing Boehl, 349 P.2d at 588). Consequently, there is less need for explicit, detailed standards to guide agency action. See Walker v. Alaska State Mortgage Ass'n, 416 P.2d 245, 254 (Alaska 1966) (holding that a statute which stated its purposes and specified its powers and limitations permissibly delegated power to a public corporation); DeArmond v. Alaska State Dev. Corp., 376 P.2d 717, 723 (Alaska 1962) (holding that the statement of purpose and the general limitations on loans provided sufficient standards to guide the corporation in adopting regulations and procedures for loan policy); Boehl, 349 P.2d at 590 (holding that it is "not essential . that the legislature circumscribe administrative discretion by express standards of action" in order to sustain a delegation of broad, generalized power when "[t]he exercise of [administrative] powers is hedged about by substantial safeguards"). There are also a number of standards and safeguards pertaining to DNR's adjustment of royalty rates, both express and implied. Alaska Statute 38.05.150(d) requires that royalty terms not exceed twenty years, thus setting an outer time limit in which royalties must be adjusted. It also requires a five cent per ton minimum royalty. This requirement sets a floor for regulations adjusting royalties. Further standards include the constitutional mandate to encourage development consistent with the public interest and to provide for the utilization, conservation, and development of the state's natural resources for the maximum benefit of the people. These broad constitutional mandates guide DNR's promulgation of regulations pursuant to AS 38.05.020, .145(a), and .150(d). See Kenai Peninsula Fisherman's Coop. Ass'n v. State, 628 P.2d 897, 907 (Alaska 1981) ("The extent of the Commissioner's power . should . be interpreted in light of the overall purpose of the constitutional and legislative scheme of management of state resources prescribed by other provisions of the law."). These standards "sufficiently mark[] the field within which the administrator is to act so that it may be known whether he has kept within it in compliance with the legislative will." Fairbanks N. Star Borough, 736 P.2d at 1143 (quoting Synar, 626 F.Supp. at 1387). Consequently, we hold that there are sufficient standards and procedural safeguards to ensure the valid exercise of agency authority in this case. 3. Are the regulations consistent with AS 38.05.150(d)? UCM argues that 11 AAC 85.220 and 11 AAC 85.225 are invalid because they are inconsistent with the plain meaning of AS 38.05.150(d), and are beyond the scope of DNR's authority to issue regulations. UCM argues that AS 38.05.150(d) must be construed together with the other mineral leasing sections of the Alaska Land Act because they are in pari materia — enacted at the same time and dealing with the same subject matter. UCM reasons that because sections of the Alaska Land Act relating to minerals expressly provide for percentage-based roy- aides, and AS 38.05.150(d) does not contain any such provision, the legislature did not intend percentage-based royalties to be applied to coal leases. DNR counters that a percentage-based royalty is consistent with AS 38.05.150(d); it also asserts that the mineral leasing sections of the Alaska Land Act are not in pari materia with AS 38.05.150(d), because they "do not conflict; they do not affect one another; they simply do not interact." Therefore, 11 AAC 85.220 and 11 AAC 85.225 are not inconsistent with the plain meaning of AS 38.05.150(d). We construe statutes that are in pari materia together. Underwater Constr., Inc. v. Shirley, 884 P.2d 150, 155 (Alaska 1994). "Statutes are deemed to be in pari materia when they relate to the same purpose or thing or have the same purpose or object." State v. Eluska, 724 P.2d 514, 517 (Alaska 1986) (Compton, J., dissenting). While coal leasing and other mineral leasing sections share the same general purpose of providing for the disposition of minerals on state lands, this is not sufficient to render them in pari materia, as they do not deal sufficiently with the same subject matter. Consequently, we find that the percentage-based royalty contained in 11 AAC 85.220 does not conflict with the plain terms of AS 38.05.150(d). As the superior court noted, the statute does no more than set a minimum royalty, so that "the establishment of a royalty of 5% of adjusted gross value is consistent with the statute as long as it exceeds 5 [cents] a ton." Finally, as the superior court also observed, if the legislature had desired to restrict the royalties to either a flat fee or a percentage rate, we assume that it would have incorporated that requirement into the statute. Consequently, we hold that 11 AAC 85.225 and 11 AAC 85.220 do not conflict with the plain meaning of AS 38.05.150(d). D. Contract UCM argues that if the royalty can be changed to a percentage rate, the royalty amounts are "open terms" of the contract, and that the implied covenant of good faith and fair dealing requires that DNR negotiate appropriate adjustments rather than impose them unilaterally. The State responds that the leases expressly recognize that they are subject to the laws and regulations of the State, and that royalty adjustments need not be negotiated. This is a question of law that involves the expertise and specialized knowledge of DNR. Consequently, the reasonable basis standard of review applies. State, Dep't of Revenue v. Atlantic Richfield Co., 858 P.2d 307, 308 (Alaska 1993). Given AS 38.05.150(d), UCM was aware that the initial royalty term could not exceed a period of twenty years. UCM is presumed to know the applicable law. Messerli v. Dep't of Natural Resources, 768 P.2d 1112, 1121 (Alaska 1989). The leases are silent about the issue of royalty adjustment, but do expressly recognize that they are entered into "subject to the terms and provisions of the Alaska Land Act . [and] to all reasonable regulations of the Commissioner of Natural Resources promulgated under the [Alaska Land] Act." Lease Nos. ADL 20633, 21545. The absence of a lease provision for the negotiation of royalty adjustments cannot be reasonably interpreted as requiring that royalty adjustments be negotiated. Consequently, we hold that DNR's determination that its regulation providing for the adjustment of royalties when initial royalty terms expire applies to UCM's leases without negotiation is reasonable. E. Back Royalties 1. Is DNR equitably estopped from collecting back royalties from January 1, 1989 to March U, 1991? UCM argues that DNR is equitably estopped from collecting the royalties DNR claims to be due on coal mined from January 1,1989 to March 14, 1991 because (1) by not objecting to the royalties paid by UCM during this period, DNR thereby represented that the royalty calculation being used by UCM was correct; (2) UCM reasonably relied on this representation; and (3) UCM was prejudiced by this reliance because it cannot pass on the costs of the claimed royalties to its customers. The State responds that DNR did not take the "positive act" necessary to assert a position; that any reliance by UCM was unreasonable because delay is not itself sufficient to justify reliance; and that UCM did not suffer prejudice because DNR's October 1988 decision told UCM that any reimbursement UCM might receive from its customers was purely a matter between UCM and its customers. Whether the elements of equitable estoppel are satisfied is a question of law calling for the application of the court's independent judgment. "The general elements of equitable estoppel are (1) assertion of a position by conduct or word, (2) reasonable reliance thereon, and (3) resulting prejudice." Mortvedt v. State, 858 P.2d 1140, 1142 (Alaska 1993) (quoting Municipality of Anchorage v. Schneider, 685 P.2d 94, 97 (Alaska 1984)). A fourth element required by this court is that "the estoppel will be enforced only to the extent that justice so requires." Id. at 1142. In State, Department of Revenue v. Northern TV, Inc., 670 P.2d 367, 369 (Alaska 1983), the court held that the Department of Revenue was not estopped from assessing taxes based on a 1978 audit of 1971-1977 tax returns. Northern TV claimed that the agency was estopped because in a 1967 decision it had held that, due to uncertainties in the state of the law, it would for the time being forego collecting taxes on the receipts in question. Id. In holding that the agency was not estopped, the court concluded that the provisional nature of the agency's 1967 decision made Northern TV's reliance on the decision unreasonable. Id. In the present case, UCM's royalty payments under the leases were subject to audit not only by virtue of regulation, but also by the express terms of the leases themselves. 11 AAC 85.225(d); Lease Nos. ADL 20633, 21545. The State correctly points out that "UCM was on notice that its royalty calculations were subject to review and audit under 11 AAC 85.225(d)." The lease expressly required UCM "to make copies of and extracts from such records pertaining to operations as may be required to verify compliance with the terms and conditions of this lease." Lease Nos. ADL 20633, 21545, Section 2(h)(2). We find that it is not reasonable to conclude that payments had been audited and deemed correct by DNR in the approximately two years (1989 and 1990) in which DNR received incorrectly calculated royalty payments from UCM before notifying UCM of its error. Therefore, DNR is not equitably estopped from collecting the back royalties due for coal mined from January 1989 to March 1991. Because we conclude that UCM's reliance on DNR's failure to object to its method of calculation of royalties was not reasonable, we do not consider whether the other elements necessary for the application of equitable estoppel are present. F. UCM's Interpretation of "Adjusted Gross Value" UCM argues that DNR erred in deciding that payments received by UCM from its customers for federal black lung taxes, federal AML reclamation fees, state royalties, and Denali Borough severance taxes are part of the adjusted gross value of UCM's coal within the meaning of 11 AAC 85.220. The State counters that DNR's interpretation of "adjusted gross value" as used in 11 AAC 85.220 is reasonable and should be upheld. DNR's interpretation of 11 AAC 82.225 is reviewed under the reasonable basis standard. Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992). "[W]here an agency interprets its own regulation . a deferential standard of review properly recognizes that the agency is best able to discern its intent in promulgating the regulation at issue." Id. (quoting Rose v. Commercial Fisheries Entry Comm'n, 647 P.2d 154, 161 (Alaska 1982)). The regulation provides: (a) If the coal is sold in a bona fide arm's-length transaction between independent parties, adjusted gross value is the full consideration received by the lessee minus the following costs if those costs were borne by the lessee: (1) reasonable beneficiation costs as defined in (e)(1) of this section; and (2) reasonable transportation costs from the mine mouth to the point of sale, as defined in (e)(2) of this section. 11 AAC 85.225 (1996). DNR interprets "full consideration received" as the total payment and benefit received by UCM for the sale of the coal. This amount does not allow deductions for initial royalty, tax, and fee obligations which are later reimbursed by UCM's customers. The only deductions allowed are those for reasonable beneficiation costs and reasonable transportation costs specifically provided in the regulation. 11 AAC 85.225(a)(l)-(2) (1996). This is a reasonable interpretation of "adjusted gross value." As the State correctly points out, "UCM is not required to collect the royalty, taxes or fees from its purchasers." If UCM was not reimbursed for these expenses, they would presumably be reflected in the sale price of the coal. Because DNR's interpretation of its regulation defining "gross value" is reasonable, it did not err in denying UCM's deductions for federal black lung taxes, federal AML reclamation fees, state royalties, and Denali Borough severance taxes, in calculating "adjusted gross value." G. The Decisional Document 1. Was DNR's decision a "regulation"? UCM asserts that DNR's decision was a "regulation," as defined by AS 44.62.640(a)(3), and consequently had to be issued in compliance with the rulemaking provisions of the Alaska Administrative Procedure Act (APA) to be valid. AS 38.05.020(b)(1). Because it was not issued in compliance with the APA, UCM argues that DNR's decision is invalid. The State counters that DNR's decision was not a regulation, but was a decision involving the implementation of its own regulations. In State v. Northern Bus Co., 693 P.2d 319, 320 (Alaska 1984), the Department of Education issued a directive that a school bus contract be awarded to the lowest responsive bidder. We held that this directive reflected the agency's interpretation of its applicable regulation. Id. at 323. We concluded that "DOE's interpretation of its own regulation does not fall within the APA's definition of 'regulation,' and therefore DOE was not required to follow APA-mandated procedures in issuing its directive to the Board." Id. In this ease, DNR issued a decision that UCM had erroneously calculated its "adjusted gross value," based on the definition of that term contained in 11 AAC 85.225 (1996). This decision reflects the agency's interpretation of its own validly promulgated regulation. Based on our holding in Northern Bus, we find that DNR's decision regarding UCM's calculation of "adjusted gross value" was not a regulation within the meaning of the APA, and that DNR was not required to follow the procedures of the APA in issuing its decision. 2. Did DNR adequately document its decision? UCM asserts that DNR's decision was invalid because it was not supported by a decisional document. The State counters that a formal decisional document is not required as DNR's decision is adequately documented in the record. We have long held that " 'agency decisions, in exercise of their adjudicative powers, must be accompanied by written findings and a decisional document.' " Messerli, 768 P.2d at 1118 (quoting Johns v. Commercial Fisheries Entry Comm'n, 758 P.2d 1256, 1260 (Alaska 1988)). We have also strongly suggested that "non-adjudicative decisions of an agency must also be supported by an adequate decisional document." Id. (citing Southeast Alaska Conservation Council v. State, 665 P.2d 544, 549 (Alaska 1983)). However, this documentation need not occur in a formal, unified deci-sional document, as long as the record clearly reflects the reasoning underlying the agen-Gy's decisions. Id. In this case, DNR did not issue a formal decisional document in determining that UCM had miscalculated its "adjusted gross value." However, the communications between DNR and UCM "clearly reflect" the reasoning underlying DNR's decision. UCM was repeatedly informed that its calculations of adjusted gross value were erroneous, as they contained deductions not authorized under 11 AAC 85.225 (1996). We also find that the record reveals a "careful and reasoned administrative deliberation" by DNR in determining the meaning of "gross value" as provided in 11 AAC 82.225. Messerli, 768 P.2d at 1118. Consequently, we hold that DNR's decision was adequately documented, and that UCM's argument regarding the lack of a decisional document is meritless. H. DNR's Decision Not to Forgive Back Royalties for 1989 Finally, UCM argues that the Commissioner should have granted it the settle ment initially proposed, and that DNR failed to give UCM an unbiased determination of whether it was equitable to require UCM to pay all of the claimed back royalties. The State counters that the Commissioner's decision whether to settle a dispute is discretionary, and is not reviewable. All final administrative actions are presumptively reviewable. Johns v. Commercial Fisheries Entry Comm'n, 699 P.2d 334, 339 (Alaska 1985). However, "[w]hen a matter falls within an area traditionally recognized as within an agency's discretionary power, courts are less inclined to intrude than when the agency has acted in a novel or questionable fashion." Vick v. Board of Elec. Examiners, 626 P.2d 90, 93 (Alaska 1981). Alaska Statute 38.05.140(d) provides that the Commissioner "may [grant royalty relief] . whenever the commissioner determines that it is necessary to do so in order to promote development, or that the lease cannot be successfully operated under its terms." We hold that DNR's decision not to grant royalty relief by forgiving the royalties due for 1989 is wholly within the Commissioner's discretion, and consequently we decline to review this decision. IV. CONCLUSION We find that DNR's royalty regulations at issue are valid, and that DNR's interpretation of those regulations is reasonable. We also find that UCM does not have a contractual right to have the adjusted royalty rates on its leases established by negotiation, and that DNR is not equitably estopped from collecting back royalties owed by UCM. Finally, we decline to review DNR's decision not to forgive royalties owed by UCM. Accordingly, we AFFIRM the decision of the superior court. . DNR originally calculated the amount of back royalties owed at $455,615.16, including interest. After receiving further information and an objection from UCM, DNR recalculated this amount as $352,560.95. DNR again corrected this amount in its superior court brief, after conceding that the prior interest calculation was in error. The final amount claimed by DNR is $346,550.35. . AS 38.05.150(d) dictates the maximum term, minimum rental, and minimum royalties for coal leases of state land. This section provides: For the privilege of mining or extracting the coal in the land covered by the lease, the lessee shall pay to the state the royalties specified in the lease. The royalties shall be fixed before offering the lease, and shall be effective for a period of not more than 20 years. The royalties shall be not less than five cents a ton of 2,000 pounds. The lessee shall also pay an annual rental, payable at the date of the lease and annually thereafter, on the land or coal deposits covered by the lease, at a rate fixed by the commissioner before offering the lease. The annual rental shall be effective for a period of not more than 20 years. The annual rental shall be not less than 25 cents an acre for the first year of the lease, not less than 50 cents an acre for the second year, third year, fourth year and fifth year, and not less than $1 an acre for each year thereafter during the continuance of the lease. The rental for each year shall be credited against the royalties as they accrue for that year. Each lease shall provide that the annual rental payment is subject to adjustment at intervals of no more than 20 years and adjustments shall be based on the current rates for properties similarly situated. AS 38.05.150(d) (amended 1995). . Virtually all of the disputed royalty is attributable to two of the leases, ADL 21545 and ADL 20633. The appellate record does not contain a copy of ADL 56505. . 11 AAC 85.220 provides in relevant part: (a) The royalty rate must be set as follows, based on the adjusted gross value of coal from the leased area that is sold, disposed of, or consumed by the lessee: (1) five percent for noncompetitive leases; (b) For leases in existence on June 18, 1982, the royalty rate will be changed, at the next time of royalty adjustment, to five percent of the adjusted gross value. (d) For leases issued after June 18, 1982, the royalty rate is subject to adjustment by the commissioner not more frequently than every 10 years. The royalty adjustment must take into account the current royalty rates and other consideration being paid for coal of similar quality in the same general area or other relevant areas and all other relevant factors including changes in market conditions, transportation costs, the composition and special characteristics of the deposit, and the Btu content of the coal. A lease in existence on June 18, 1982, will be adjusted in accordance with the terms of the lease. (e) In this section and in 11 AAC 85.255, "adjusted gross value" means gross value less any deductions authorized under 11 AAC 85.225. 11 AAC 85.220 (1996). .AS 38.05.140(d) provides in relevant part: The commissioner, for the purpose of encouraging the greatest ultimate recovery of coal . and in the interest of conservation of natural resources, after public hearing, . may waive, suspend, refund, or reduce the rental, or minimum royalty, or reduce the royalty on an entire leasehold, or on any tract or portion of a leasehold segregated for royalty purposes, whenever the commissioner determines that it is necessary to do so in order to promote development, or that the lease cannot be successfully operated under its terms. . The Commissioner also granted UCM partial royally credit for those payments it had made based on the five percent of AGV rate, in order to be consistent with the phased payment schedule. . The five percent rate was applied to the first 800,000 tons of coal pursuant to the royalty negotiations. . UCM's contracts provide that its customers will reimburse them for these taxes, fees, and royalties. . We find unpersuasive UCM's argument that res judicata is not appropriate here because the validity of DNR's regulations is a purely legal, not factual, issue. We have held that administrative adjudications are given the same preclusive effect as judicial adjudications. Johnson v. Alaska State Dep't of Fish & Game, 836 P.2d 896, 908-09 (Alaska 1991). . UCM cites DNR's regulation that a "decision" requires a "written determination by the department specifying the details of the action taken." 11 AAC 02.080(3) (1996). .UCM argues that the legislature intended to retain the authority to adjust royalty rates in part because "the twenty-year period extends so far into the future." This argument is unpersuasive. There is nothing in the Alaska Land Act which suggests that the legislature intended to retain this revisory capacity; nor has it ever expressed disapproval of DNR's royalty regulations. See Boehl v. Sabre Jet Room, Inc., 349 P.2d 585, 590 (Alaska 1960) (noting in upholding agency action that the "legislature, which meets annually, may revise the statute and thus restrict the bounds of administrative action"). . The legislative history is silent as to whether the legislature intended to delegate this authority to DNR. . In assessing the validity of an administrative regulation, we determine "whether the legislature delegated rule-making authority to the Department, whether the Department followed the Administrative Procedure Act in promulgating the regulation, and whether the regulation is consistent with and reasonably necessary to implement the statutes authorizing its implementation." Chevron U.S.A. Inc. v. LeResche, 663 P.2d 923, 927 (Alaska 1983) (citing Kelly v. Zamarello, 486 P.2d 906, 911 (Alaska 1971)). UCM does not contend that DNR failed to follow the Administrative Procedure Act (APA) in promulgating these regulations. Consequently, we only review the delegation of rule-making authority to DNR and the consistency with and reasonable need for the regulations in order to implement the statute authorizing them. .UCM argues that AS 38.05.145(a) is not implicated here, because the "disposition" of the coal that is the' subject of UCM's existing leases has already occurred. We find this argument unpersuasive. . In Municipality of Anchorage, we suggested that the delegation doctrine should be animated more by due process concerns than by separation of powers principles. 839 P.2d at 1086 n. 12. "The key should no longer be statutory words; it should be the protections the administrators in fact provide, irrespective of what the statutes say or fail to say." Id. (quoting 1 Kenneth C. Davis, Administrative Law Treatise § 3:15, at 206-07 (2d ed. 1978)). . The legislature subsequently enacted curative legislation ratifying and approving the governor's restrictions. Ch. 9, SLA 1987. We subsequently upheld these restrictions in Fairbanks N. Star Borough v. State, 753 P.2d 1158 (Alaska 1988). . Article VIII, section 1 of the Alaska Constitution provides: Statement of Policy. It is the policy of the State to encourage the settlement of its lands and the development of its resources by making them available for maximum use consistent with the public interest. . Article VIII, section 2 of the Alaska Constitution provides: General Authority. The legislature shall provide for the utilization, development, and conservation of all natural resources belonging to the State, including land and waters, for the maximum benefit of its people. . DNR's responsibilities in adopting regulations for the state's coal leasing program are confirmed by the authority conferred on DNR by AS 38.05.140(d) to reduce royalties "in order to promote development" and to order or agree to the suspension of production under a lease "in the interest of conservation." . The State also notes that royalty regulations were promulgated according to procedures specified by the Alaska APA (AS 44.62.010-.320). These procedures provided "substantial safeguards" for those who are subject to the regulations. Boehl, 349 P.2d at 590. . When a regulation promulgated after a lease has been issued conflicts with that lease, the provisions of the lease control. 11 AAC 82.100 (1996). . "Reasonable beneficiation costs" are "the reasonable costs of any processing performed before the sale that adds value to the coal as compared to its run-of-mine value," including activities such as washing and drying coal. 11 AAC 85.225(e)(1) (1996). "Reasonable transportation costs" are "the actual costs of transportation occurring after the coal leaves the mine mouth," including the use of tankers, trucks, and rail transportation. 11 AAC 85.225(e)(2) (1996). . AS 44.62.640(a)(3) defines "regulation" as every rule, regulation, order, or standard of general application or the amendment, supplement, or revision of a rule, regulation, order, or standard adopted by a state agency to implement, interpret, or make specific the law enforced or administered by it, or to govern its procedure, except one that relates only to the internal management of a state agency; "regulation" does not include a form prescribed by a state agency or instructions relating to the use of the form, but this provision is not a limitation upon a requirement that a regulation be adopted under this chapter when one is needed to implement the law under which the form is issued; "regulation" includes "manuals," "policies," "instructions," "guides to enforcement," "interpretative bulletins," "interpretations," and the like, that have the effect of rules, orders, regulations, or standards of general application, and this and similar phraseology may not be used to avoid or circumvent this chapter; whether a regulation, regardless of name, is covered by this chapter depends in part on whether it affects the public or is used by the agency in dealing with the public. . UCM asserts that DNR's decision was an order or standard of general application and supplements existing regulations, and is therefore a regulation as defined by AS 44.62.640(a)(3). UCM cites Kenai Peninsula Fisherman's Cooperative Ass'n, Inc. v. State, 628 P.2d 897 (Alaska 1981), in support of this argument. In that case, we held that a comprehensive management policy for the Upper Cook Inlet and a related specific policy option, adopted by the Board of Fisheries, were regulations that had to be adopted in compliance with the requirements of the APA. Id. at 906. We found that because both "[t]he policy and the option ma[de] specific the management policies of the Board," and "served as a basis for decisions affecting commercial and recreational fishermen and were used by the Board in dealing with those groups," the policy and the option "have the effect of regulations or standards of general application.... As such, they are regulations, and should have been adopted according to APA procedures." Id. at 905-06. However, as we have discussed above, this case does not involve the making of policy decisions, but the implementation of policy decisions. Consequently, we find that Kenai Peninsula Fisherman's Ass'n is distinguishable from the case at hand. Furthermore, DNR's decision is not, as UCM argues, a "supplement" to 11 AAC 85.225. UCM cites State v. Panana Valley Sportsmen's Ass'n, Inc., 583 P.2d 854 (Alaska 1978), in support of its argument. In that case, we held that the Alaska Board of Game's verbal instructions to agents modifying the criteria for issuing hunting permits were "additions to regulations involving requirements of substance," and were, therefore, regulations that had to be issued in compliance with the requirements of the APA. Id. at 858-59. In this case, DNR's decision was not an addition to a regulation involving requirements of substance. Instead, it was the interpretation of the regulation according to its own terms. As the State correctly points out, this decision would have been transformed into a regulation only if DNR had adopted UCM's interpretation of 11 AAC 85.225, and permitted deductions other than those for beneficiation and transportation, thus revising the definition of adjusted gross value provided by the regulation. . The record shows that DNR's decision was given serious consideration. DNR contacted the Minerals Management Service of the Department of the Interior to inform itself of that agency's rationale for not allowing federal coal lessees to deduct or exclude the costs of the federal black lung tax, AML fees, and state land local severance taxes, from the value of coal for royalty calculation purposes. The record also shows that DNR consulted with the Department of Law to determine whether there was any legal authority for the deductions UCM took. That Department advised DNR that those deductions were not authorized by 11 AAC 85.225. Finally, DNR also considered UCM's own sales contracts in its analysis of whether the deductions were permissible. . Specifically, UCM argues that DNR's decision was based on the advice of the Department of Law that UCM was required to pay all of the royalties owed as a result of the State's fiduciary responsibility under the Mental Health Settlement. UCM asserts "DNR should have made its decision on the forgiveness issue based on the facts and the tests for equitable estoppel. When an agency gives the wrong reason for a decision, the reviewing court: must send the case back for a new determination, even if the agency could have used correct reasoning to reach the same result." (Citing 1 Kenneth C. Davis & Richard J. Pierce, Jr., Administrative Law Treatise § 8.5, at 392-94 (3d ed. 1994).)

10336845

Tim O. COOK, Appellant, v. Bruce M. BOTELHO, Attorney General of the State of Alaska, Appellee; The ALASKA STATE LEGISLATURE, Appellant, v. Bruce M. BOTELHO, Attorney General of the State of Alaska, Appellee

Cook v. Botelho

1996-08-02

Nos. S-7253, S-7263

1126

1134

921 P.2d 1126

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.

Tim O. COOK, Appellant, v. Bruce M. BOTELHO, Attorney General of the State of Alaska, Appellee. The ALASKA STATE LEGISLATURE, Appellant, v. Bruce M. BOTELHO, Attorney General of the State of Alaska, Appellee.

Tim O. COOK, Appellant, v. Bruce M. BOTELHO, Attorney General of the State of Alaska, Appellee. The ALASKA STATE LEGISLATURE, Appellant, v. Bruce M. BOTELHO, Attorney General of the State of Alaska, Appellee. Nos. S-7253, S-7263. Supreme Court of Alaska. Aug. 2, 1996. Wevley William Shea, Anchorage, for Tim 0. Cook. Pamela Finley, Legislative Counsel, Legislative Affairs Agency, Juneau, for Alaska State Legislature. David T. Jones, Assistant Attorney General, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before COMPTON, C.J., and RABINOWITZ, MATTHEWS, EASTAUGH and FABE, JJ.

5144

32652

OPINION EASTAUGH, Justice. I. INTRODUCTION We are here required to construe the constitutional allocation of the power to appoint and remove members of regulatory commissions, and the constitutional and statutory provisions governing appointments during a recess of the legislature. The superior court entered summary judgment in favor of Attorney General Bruce Botelho, holding that Tim 0. Cook does not lawfully hold the office of Alaska Public Utilities Commissioner. We reverse. II. FACTS AND PROCEEDINGS In October 1994 Governor Walter Hickel named Cook to a vacant position on the Alaska Public Utilities Commission (APUC). The Alaska State Legislature was then in recess. By letter, the governor's office informed Cook that he was appointed "effective October 31, 1994, for a term ending October 31, 2000." Cook took the oath of office on October 31, 1994, received a Certificate of Commission, and began performing his duties as a member of the APUC. On December 5, 1994, Tony Knowles took office as Governor of Alaska, succeeding Walter Hickel in that position. The Nineteenth Legislature convened on January 16, 1995. On February 13, 1995, Governor Knowles informed Cook by letter that he would not be presenting Cook's name to the legislature for confirmation, and requested Cook's "immediate resignation" by February 27,1995. Governor Knowles simultaneously notified the legislature that he understood it had referred all of former Governor Hiekel's recess appointments to various committees for confirmation hearings. Governor Knowles further advised the legislature that he had not presented to the legislature for confirmation the names of any of those persons, and that he viewed the Senate's consideration of those appointments "to be of no legal effect." Cook did not resign. On February 15 the legislature in joint session voted to confirm Cook's appointment, among other appointments made by Governor Hickel before the legislative session began. In early June, Governor Knowles's Chief of Staff asked Cook to vacate his seat on the APUC, stating that [bjecause Governor Knowles withdrew your interim appointment and did not present your name to the legislature for confirmation, the legislature could not validly confirm your interim appointment as commissioner. Therefore, your interim appointment terminated no later than May 16, 1995, when the legislature adjourned without having validly confirmed that appointment. Cook remained in office. Several days later the attorney general filed an action against Cook for usurpation of office under AS 09.50.310(1), and for a declaratory judgment that the legislature's attempt to confirm Cook was invalid. Cook counter-claimed, asserting that he was legally in office and that Governor Knowles and the attorney general had committed tortious conduct in attempting to remove him. The attorney general moved for summary judgment. The legislature intervened as a defendant, and moved for a partial summary judgment dismissing the attorney general's claims. The superior court granted the attorney general's motion, holding that under AS 39.05.080 "[a] recess appointment terminates thirty days after the legislature convenes.... [An] appointee could only hold office for a limited period of time before either facing the confirmation process (if the governor decided to present the appointee's name to the legislature) or ouster by law under AS 39.05.080." Therefore, the superi- or court determined that "Mr. Cook's term ended when his name was not presented to the legislature for confirmation within 30 days of the convening of the legislature." The eourt also held that "the last act in the appointment of an APUC commission member is presentment to the legislature by the governor. Until the governor has presented an appointee's name to the legislature, the governor has the right to change his mind and select someone else." (Citations and footnotes omitted.) The court accordingly entered a final judgment in favor of the attorney general under Alaska Rule of Civil Procedure 54(b). Cook and the legislature appeal. III. DISCUSSION Under article III, section 26 of the Alaska Constitution, members of commissions such as the APUC "shall be appointed by the governor, subject to confirmation by a majority of the members of the legislature in joint session." See Bradner v. Hammond, 553 P.2d 1, 3 (Alaska 1976) (Section 26 "vests the power of appointment in the governor and the power to confirm in the legislature in joint session."). Section 26 further gives the legislature the power to restrict by law the removal of such members. Alaska Const, art. Ill, § 26; see also AS 42.05.035 ("The governor may remove a commissioner from office by and with the consent of a majority of the legislature."). Article III, section 27 of the Alaska Constitution governs recess appointments. "The governor may make appointments to fill vacancies occurring during a recess of the legislature, in offices requiring confirmation by the legislature. The duration of such appointments shall be prescribed by law." Alaska Const, art. Ill, § 27. This case presents three major issues regarding the constitutional and statutory provisions governing appointments. First, this eourt must determine at what point the governor may no longer withdraw an appointee without complying with the statutes governing removal. Second, we must decide whether the legislature may confirm an appointee absent the incumbent governor's presentment of the appointee's name under AS 39.05.080. The final issue concerns the duration of appointments made while the legislature is in recess; the attorney general argues that such appointments automatically terminate thirty days after the legislature reconvenes, while Cook and the legislature contend that recess appointments are no different from appointments made while the legislature is in session. The resolution of these questions demands constitutional and statutory interpretation. This eourt applies its independent judgment to constitutional issues, adopting "a reasonable and practical interpretation in accordance with common sense" based upon "the plain meaning and purpose of the provi sion and the intent of the framers." Arco Alaska, Inc. v. State, 824 P.2d 708, 710 (Alaska 1992) (citing Kochutin v. State, 739 P.2d 170, 171 (Alaska 1987)). We also interpret statutes according to our independent judgment, giving "effect to the intent of the lawmaking body "with due regard for the meaning that the language in the provision conveys to others.' " Marlow v. Municipality of Anchorage, 889 P.2d 599, 602 & n. 1 (Alaska 1995) (quoting Foreman v. Anchorage Equal Rights Comm'n, 779 P.2d 1199, 1201 (Alaska 1989)). A. Removal of Appointees The governor's power to reconsider Cook's appointment ended when the governor committed the last act required to complete the executive function of appointment. The superior court held that presentment of the appointee's name to the legislature is the last act completing appointment. We hold that the appointment was complete no later than when Cook assumed the powers of office. The United States Supreme Court has stated: The appointment being the sole act of the President, must be completely evidenced, when it is shown that he has done every thing to be performed by him. Some point of time must be taken when the power of the executive over an officer, not removable at his will, must cease. That point of time must be when the constitutional power of appointment has been exercised. And this power has been exercised when the last act, required from the person possessing the power, has been performed. Marburg v. Madison, 5 U.S. (1 Cranch) 137, 157, 2 L.Ed. 60 (1803) (holding that under federal law, the president may not withhold the commission of an appointed and confirmed officer). See also Division of Elections v. Johnstone, 669 P.2d 537, 540 (Alaska 1983), cert. denied sub nom. Denardo v. Johnstone, 465 U.S. 1092, 104 S.Ct. 1580, 80 L.Ed.2d 114 (1984) (applying last act analysis to determine when appointment occurs). Courts have uniformly held that an executive's power to reconsider an appointment ends when the executive takes the last act required to complete the appointment process. Marburg, 5 U.S. at 162; In re Comm'n on Governorship of Cal., 26 Cal.3d 110, 160 Cal.Rptr. 760, 767, 603 P.2d 1357, 1365 (1979); McChesney v. Sampson, 232 Ky. 395, 23 S.W.2d 584, 587 (1930); State v. Essling, 268 Minn. 151, 128 N.W.2d 307, 312-13 (1964); Burke v. Schmidt, 86 S.D. 71, 191 N.W.2d 281, 284 (1971). The rule established by cases considering the issue is that the last act of the executive is the act which places the appointee in office. If appointment by the governor had had the effect of placing [the appointee in office] and authorizing him to perform its functions, there could be no question but that the proposition that the governor had exhausted his power in making the appointment and could not withdraw it would apply. McBride v. Osborn, 59 Ariz. 321, 127 P.2d 134, 136 (1942). See also In re Comm'n on Governorship of Cal., 160 Cal.Rptr. 760, 603 P.2d at 1365 (holding that governor may withdraw appointee where appointment "does not complete the appointive process or confer even an interim right to assume office"); McChesney, 23 S.W.2d at 587 ("[U]nder our system the appointee of the Governor takes the office, enters upon the performance of its duties, and is charged with responsibility. He holds then subject alone to the action of the Senate."); Essling, 128 N.W.2d at 313 (holding that last act of executive is act that "vest[s the appointee] with the powers and duties of the office"); Burke, 191 N.W.2d at 284 (holding that gubernatorial power to withdraw depends upon "whether the action of the executive is complete and places the appointee in office without further action"). An appointee to the APUC may perform the duties of office once the governor designates the individual for office, and the appointee takes the oath of office and receives a commission. Alaska Statute 39.05.080(4) provides that "[p]ending confirmation or rejection of appointment by the legislature, persons appointed shall exercise the functions, and have the powers and be charged with the duties prescribed by law for the appointive positions or membership." Cook began to exercise the powers of a member of the APUC when he took the oath of office and received his commission. At that point the executive had no power to reconsider the appointment. The attorney general argues that an appointment is not complete until the governor presents the appointee's name to the legislature under AS 39.05.080(1). However, Alaska Statute 39.05.080 sets the procedural steps to be followed during the legislative function of confirmation; it does not establish the substantive elements of the executive act of appointment. Presentment requires the governor to notify the legislature of his appointments; AS 39.05.080(1) states that the governor "shall" present the names of "persons appointed . who have not previously been confirmed_" Presentment thus constitutes a procedure following appointment and facilitating legislative confirmation. Presentment is not part of the appointment. Having made the appointment, AS 39.05.080(1) obliges the executive to apprise the legislature of that fact. See Alaska Const. art. III, § 16 ("The governor shall be responsible for the faithful execution of the laws."). The statute does not give the governor the option of refusing to present the name of an appointee. The governor's appointment was complete no later than when Cook took office. See Division of Elections v. Johnstone, 669 P.2d at 539 (plain meaning of "appoint" is to designate for office). This being so, Governor Knowles could not remove Cook from office without complying with the statutes governing removal from the APUC. AS 42.05.035 (removal of APUC members requires consent of legislature). Compare McChesney, 23 S.W.2d at 587 ("In all jurisdictions where appointment to office is regarded as an executive function, as here, an appointment to office once made is incapable of revocation or cancellation by the appointing executive in the absence of a statutory or constitutional power of removal.") with Bradner, 553 P.2d at 6 ("[W]e conclude that the appointment of executive officers is an executive function_"). B. Confirmation The attorney general also argues that the legislature lacked the power to confirm Cook, because Governor Knowles never presented Cook's name to the legislature as required by AS 39.05.080. We hold that the legislature may confirm an appointee, once the governor's appointment is complete, without awaiting communication of the appointment from the executive. McChesney, 23 S.W.2d at 586; People v. Shawver, 30 Wyo. 366, 222 P. 11, 25 (1924). As discussed above, AS 39.05.080 does not define the substantive elements of executive appointments, but rather establishes the procedures by which appointees are confirmed. The presentment process simply furnishes a means by which the legislature may be apprised of the governor's actions. Section .080(1) imposes a duty on the governor to present names; it does not give the governor power to remove an appointee from office by simply failing to carry out the presentment duty imposed by section .080(1). While the statute provides that "the legislature shall, before the end of the session in which the appointments are presented, in joint session assembled, act on the appointments," AS 39.05.080(2)(B), it does not prevent the legislature from exercising its constitutionally granted confirmation authority just because the governor declines to present a name. The constitution delegates a part of the appointment power to the legislature. Bradner, 553 P.2d at 7. This delegation implies both a power, and a duty, to investigate the status of appointed offices. As stated by the Kansas Supreme Court: Under all the circumstances, the Senate cannot shut its eyes to the facts as to whether the respective offices are filled; whether they are functioning under the law, or whether there is a vacancy therein. The Governor's communication sending the appointment to the Senate raises the question: What is the status to which the appointment refers? That question the Senate is obliged to determine for itself, and to make its own investigation in order to discharge its duty. If the investigation reveals the fact that the Governor has already made an appointment of an officer who has qualified, is in possession, is discharging the duties, and is receiving the emoluments of the office, the Senate must determine the course it will pursue in the light of that fact. The Senate, which has official knowledge of all of the acts of another state department, may not close its eyes to an existing fact merely because the executive has failed to transmit a communication giving it the advice. The fact that the Senate is called upon to consent to or confirm appointments presupposes an investigation upon which to base its judgment as to whether or not it should confirm or reject the named appointee. It is a matter of common knowledge that the Senate of Kansas, likewise the Senate of the United States, may, and frequently does, investigate the character, fitness, and ability of the appointee submitted for its consideration. The Senate must be permitted to investigate on its own initiative, and without communication from the Governor, the status of offices; otherwise the Governor could fill and refill them at his pleasure by simply failing to advise the Senate. No other branch of the government exercises the power of investigation to the same degree as does the legislative branch.... We conclude that the Senate did not go beyond its powers in making the investigation concerning the offices held by the defendants, and, having satisfied itself, that it could properly exercise its judgment thereon. While it is the usual and customary courtesy of the executive to transmit such facts to the Senate, we believe it the better view to hold that the Senate may, on its own initiative, if it so desires, ascertain the facts upon which to base its deliberate and final judgment in confirming or rejecting appointees of the Governor. Barrett v. Duff, 114 Kan. 220, 217 P. 918, 925-26 (1923). See also Shawver, 222 P. at 25. We find the reasoning of the Kansas court convincing. The legislature holds broad powers of investigation necessary to its lawmaking activities. The constitutional grant of the confirmation power implies a coincident power and duty to investigate the status of the appointed offices as well as the qualifications of the individuals appointed to those offices. Governor Hickel appointed Cook to the APUC, "for a term ending October 31, 2000." Once the governor completed Cook's appointment by placing him in office, the legislature was entitled to take notice of that fact and confirm or reject the appointee. The presentment provision in AS 39.05.080(1) simply provides one means by which the legislature has assured itself that it will be informed of gubernatorial appointments. It does not deprive the legislature of other means of investigation into the status of those appointments. Nothing in the constitution or AS 39.05.080 suggests that the legislature is without power to inform itself of gubernatorial appointments and confirm completed appointments without communication from the executive. We hold that once an appointment is completed, the legislature may confirm the appointee without awaiting presentment by the governor. Therefore the governor's failure to present Cook's name to the legislature did not prevent the legislature from validly confirming Cook. C. Duration of Recess Appointments The superior court held that Cook's appointment ended thirty days after the legislature convened, based upon its conclusion that AS 39.05.080(1) establishes this term for interim appointments. We disagree. The Alaska Constitution and the appointment statutes do not prevent the executive from appointing an APUC member to a full term while the legislature is in recess, nor do they prevent the legislature from confirming such an appointee. Consequently, we hold that Cook was validly appointed and confirmed to a full term as an APUC member. 1. The constitutional framework Article III, section 27 of the Alaska Constitution allows the governor to make recess appointments and states that "[t]he duration of such appointments shall be prescribed by law." This provision gives the legislature authority to set the duration of interim appointments. The attorney general argues that "section 27 plainly contemplates interim appointments of limited duration." This argument implies that the constitution draws a significant substantive distinction between in-session appointees and recess appointees. Based upon this distinction, the attorney general contends that all recess appointments are subject to durational limitations different from those for appointments made during a session. The attorney general urges us to adopt this reasoning and conclude that Governor Hickel could not nominate Cook to a full term on the APUC while the legislature was in recess, and consequently that the legislature was without power to confirm Cook to a full term on the APUC. We do not' read section 27 to create a fundamental distinction between recess appointments and in-session appointments, or to deprive the legislature of its confirmation power with respect to recess appointees. On the contrary, the text of section 27 refers to recess appointments as appointments "requiring confirmation by the legislature." Alaska Const, art. Ill, § 27 (emphasis added). Confirmation of recess appointees is thus explicitly envisioned by the plain language of the constitution. Governor Hickel appointed Cook to a full term as an APUC commissioner; the fact that the appointment occurred while the legislature was in recess does not alter the nature of the appointment. The history of section 27 does not suggest that the drafters intended some substantive distinction between recess appointments and other appointments. The first draft of the recess appointment provision clearly prevented the legislature from confirming an interim appointee to a full term. An amendment was made specifically "to make it possible for the legislature to confirm the person who has been given an interim appointment." 3 Proceedings of the Alaska Constitutional Convention (PACC) 2260-61 (January 13, 1956). The entire provision was subsequently stricken because the delegates felt it would have duplicated existing statutes. 3 PACC 226R-65 (January 13, 1956). Nonetheless, because some delegates were concerned that in the absence of constitutional protection a future legislature might, by amending the statute, prevent the executive from filling vacancies arising during recess, the predecessor to section 27 was adopted. 3 PACC 2265-69 (January 13, 1956). The original version of this predecessor stated: "The Governor may fill any vacancy occurring in any office during a recess of the Legislature, as may be prescribed by law." 3 PACC 2268-69 (January 13, 1956). To avoid "the possibility that the legislature could by law actually prohibit the governor from even making a recess appointment," the legislative power granted in this version was limited to prescribing the duration of recess appointments. 3 PACC 2284-85 (January 13,1956). The text and history of section 27 thus suggest that recess appointments are a subset of, rather than distinct from, the regular appointments described by article III, section 26 of the Alaska Constitution. The constitution does not prevent the legislature from confirming recess appointments. The duty imposed on the legislature to prescribe the duration of recess appointments was not intended to deprive the legislature of its confirmation power over such appointments. Certainly that duty did not implicitly give the governor power to prevent the legislature from considering whether to confirm a recess appointment. 2. Appointment statutes The statutes enacted by the legislature similarly treat recess appointments no differently than other appointments. Alaska Statute 39.05.080(1) states: The appointing authority shall, within 30 days of the convening of the legislature in regular session, present to the legislature for confirmation the names of the following persons: (A) persons appointed to a position or membership who have not previously been confirmed by the legislature or either house of it; (B) persons appointed subject to confirmation to fill an existing position or membership vacancy.... Because the governor presents the names of appointees within thirty days of the legislature's convening, the attorney general reasons that recess appointments must terminate at that point. The plain language of the statute, however, reveals no such limitation. The governor "shall" present within thirty days the names of the appointees. AS 39.05.080(1). The statute's mandatory language provides the governor no discretion to reconsider an appointment or refuse to present the name of an appointed individual. The plain language of the statute simply does not suggest that appointments made during recess must end thirty days after the recess. Cf. In re Advisory Opinion to Governor, 247 So.2d 428, 430-31 (Fla.1971) (discussing statutory provision explicitly limiting term of recess appointments). Rather, the statute suggests that recess appointments may be confirmed in the same manner as in-session appointments. The statutes governing appointments to the APUC do not distinguish between recess and in-session appointments. Alaska Statute 42.05.030(a) sets the term of office for APUC members at six years. "An appointee selected to fill a vacancy shall hold office for the balance of the full term for which the appointee's predecessor on the commission was appointed." AS 42.05.030(b). Until the appointment has been made, the prior occupant is entitled to continue to hold office. AS 42.05.030(a). An appointee is entitled to hold office "[pjending confirmation or rejection" by the legislature. AS 39.05.080(4). The duration of a recess APUC appointment, therefore, is exactly that of an appointment made while the legislature is in session: until rejected by the legislature or, if confirmed, for six years. See Bell v. Sampson, 232 Ky. 376, 23 S.W.2d 575, 580 (1930) (allowing legislature to confirm recess appointees despite opposition of governor, where appointments governed by statute requiring legislature to take action upon appointments at "its first session held thereafter."). We hold that recess appointments are of the same duration as all other appointments, and subject to legislative confirmation. Cook's appointment, having been confirmed by the legislature, is accordingly for the full six-year term of an APUC member. IV. CONCLUSION Because Cook had already been placed in office, Governor Knowles could not remove him without complying with the removal statutes, and the legislature could validly confirm him. Furthermore, AS 39.05.080 does not terminate recess appointments when the legislature convenes. Cook was appointed to a full term as an APUC member, and confirmed as such. We consequently REVERSE the decision of the superior court, and REMAND with directions that the legislature's partial summary judgment motion be GRANTED, and for further proceedings in both cases consistent with our discussion above. . In late June 1995 Governor Knowles appointed G. Nanette Thompson to the position claimed by Cook. . Article III, section 26 is the general appointment provision for boards and commissions. Boards and Commissions. When a board or commission is at the head of a principal department or a regulatory or quasi-judicial agency, its members shall be appointed by the governor, subject to confirmation by a majority of the members of the legislature in joint session, and may be removed as provided by law. They shall be citizens of the United States. The board or commission may appoint a principal executive officer when authorized by law, but the appointment shall be subject to the approval of the governor. Article III, section 27 of the Alaska Constitution states in full: Recess Appointments. The governor may make appointments to fill vacancies occurring during a recess of the legislature, in offices requiring confirmation by the legislature. The duration of such appointments shall be prescribed by law. . Cook states that "certain factual disputes precluded summary judgment for the Attorney General." However, Cook makes no further reference to such factual disputes in his brief. Such cursory treatment is inadequate to raise an issue on appeal. See Katmailand, Inc. v. Lake & Peninsula Borough, 904 P.2d 397, 402 n. 7 (Alaska 1995). .The fact that the appointee's right to the office is contingent upon confirmation by the legislature does not change this result. Confirmation occurs after appointment. ITihe governor's part of the appointive process is to appoint a person to the board.... The senate has the right and power to confirm the appointment in order to fully complete the appointive process but, under the appointment procedures followed, this power to confirm actually is more in the nature of a power to veto the appointment after the fact. Neither confirmation by the senate nor further action by the governor was necessary to vest respondent with the powers and duties of the office. He actually performed those duties for several months and was empowered to do so until the senate directly, or indirectly, rejected his appointment or he was removed for cause. State v. Essling, 268 Minn. 151, 128 N.W.2d 307, 313 (1964). Cf. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 161, 2 L.Ed. 60 (1803) ("The appointment is the sole act of the President; the acceptance is the sole act of the officer, and is, in plain common sense, posterior to the appointment. As he may resign, so may he refuse to accept: but neither the one, nor the other, is capable of rendering the appointment a nonentity."). . AS 39.05.080(1) states in full: The appointing authority shall, within 30 days of the convening of the legislature in regular session, present to the legislature for confirmation the names of the following persons: (A) persons appointed to a position or membership who have not previously been confirmed by the legislature or either house of it; (B) persons appointed subject to confirmation to fill an existing position or membership vacancy; (C) persons appointed subject to confirmation to fill a position or membership the term of which shall expire before July 2, following the session of the legislature. If an appointment is made after the deadline but while the legislature is in session, the appointing authority shall, within five calendar days after the appointment is made, present to the legislature for confirmation the name of the person appointed. The deadline may be extended by the legislature by the approval of a concurrent resolution. . We need not and do not decide whether the outcome would be different if Governor Hickel had limited the term of Cook's appointment when he designated Cook for office. Here Governor Hickel clearly appointed Cook to a full term as APUC commissioner. . See note 5, supra. . That draft read: "[A recess appointment] shall expire at the end of the next regular session of the Legislature, unless a successor shall be sooner appointed and qualified." 6 Proceedings of the Alaska Constitutional Convention (PACC) App. V at 121 (December 15, 1955). . Delegate Buckalew stated, "I doubt seriously if the governor would have authority to make a recess appointment." 3 PACC 2267 (January 13, 1956). In line with Delegate Buckalew's concerns, Delegate Sundborg offered an amendment which eventually became section 27. Id. at 2268. Delegate Victor Rivers objected to the Sundborg amendment on grounds that were a defense of the earlier stricken draft provision insofar as that draft prevented persons nominated for an office and rejected for confirmation by the Senate from serving as subsequent recess appointees. Delegate Rivers stated, speaking of the Sundborg amendment: That amendment does nothing more than give [the governor] an implied power that is already here. It doesn't take care of an appointment he may make. Suppose the governor makes an appointment of "Joe Doaks" to be a secre-taiy of some department, or head of some department, the legislature does not confirm him. The governor submits no new name; the legislature goes out of session; the governor then turns around and reappoints "Joe Doaks" interim head until the next session of the legislature meets. By our wording we have taken care of that. By this wording it takes care of nothing that is not already an implied power. The legislature already has the power to provide by law. Id. at 2268-69. To this argument Delegate Sundborg replied: My amendment would give the legislature the power to take care of that by whatever language or provision it desires. It does give the governor the right to make an interim appointment and then it says that the rules governing such interim appointments shall be laid down by the legislature. Id. at 2269. Subsequently, Sundborg clarified the initial amendment with a new one which is in substance existing section 27. He stated that the intent of the old amendment and the new amendment were the same: [A] little while ago I submitted another amendment which I thought accomplished what this says, but I was advised by some of the technical staff it did not actually accomplish what I had intended, in that it left the possibility present that the legislature could by law actually prohibit the governor from even making a recess appointment under the existing language. This new section says that the governor may make a recess appointment but that the duration of the appointment shall be determined by the legislature. Id. at 2284-85.

10328589

Brenda J. SINGLETON, Appellant, v. STATE of Alaska, Appellee

Singleton v. State

1996-07-05

No. A-5578

636

640

921 P.2d 636

921

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Brenda J. SINGLETON, Appellant, v. STATE of Alaska, Appellee.

Brenda J. SINGLETON, Appellant, v. STATE of Alaska, Appellee. No. A-5578. Court of Appeals of Alaska. July 5, 1996. Ethan A. Berkowitz, Anchorage, for Appellant. Cynthia L. Herren, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

2015

12830

OPINION BRYNER, Chief Judge. Brenda J. Singleton was convicted by a jury of robbery in the second degree, AS 11.41.510(a)(1). On appeal, she argues that the trial court erred in allowing an unqualified person to serve as a juror and that the state failed to preserve exculpatory evidence. We affirm. Singleton and two codefendants, Dudley Fuqua, Jr., and Tyree McCray, were jointly indicted and tried for robbing Elaine G. Copeland. The robbery occurred outside Copeland's Anchorage apartment building. Singleton, Fuqua, and McCray — possibly accompanied by two other people — had driven to the building in a white van, ostensibly to enable Singleton to get money that she claimed Copeland owed her. An altercation between Singleton and Copeland ensued, culminating in Singleton forcibly taking a jacket, which had $201 cash in its pocket, from Copeland's person. After Singleton took the jacket, she, Fuqua and McCray left the area in the van. The incident was immediately reported to the police by the manager of Copeland's apartment building. A short time later, the police found the van stopped on a nearby street, with Singleton, Fuqua, McCray, and two or three other people present. Copeland and a friend of her's who had witnessed the robbery were brought to the scene and identified Singleton, Fuqua, and McCray. They were arrested. Copeland and her friend evidently told the police that the other individuals' present at the arrest scene had not been involved in the incident. The state brought Singleton, Fuqua and McCray to trial on robbery charges. During the jury selection process, prospective juror Richard Porter disclosed that he had been convicted ten years previously of "felony retail theft" for stealing 52 cartons of cigarettes from a store in Chicago. Porter stated that he had served seventeen days in jail for the offense and had received three years' probation, which he had successfully completed. Because he never received any formal notice that his civil rights had been restored, Porter had not hunted or voted since his conviction. Porter did not believe the conviction would affect his ability to be fair and impartial. All parties had the opportunity to question Porter about his prior conviction and his fitness for jury service. All passed him for cause, and none exercised a peremptory challenge. For the first time on appeal, Singleton questions Porter's qualifications to serve as a juror. Singleton cites AS 09.20.020(2), which provides that "[a] person is disqualified from serving as a juror if the person . (2) has been convicted of a felony for which the person has not been unconditionally dis-eharged[.]" Singleton argues that, since Porter's civil rights had apparently never been restored, he had not been "unconditionally discharged" and therefore did not qualify for jury duty. Singleton insists that, for this reason, the trial court was obligated to strike Porter from the panel sua sponte. Singleton maintains that Porter's inclusion on the panel violated her right to an impartial jury; she further maintains that she was deprived of due process because she was never personally informed of her right to challenge Porter for cause and did not knowingly waive that right. Strong authority supports the conclusion that Singleton waived her argument on appeal by failing to exercise a challenge — either for cause or peremptory — after learning of Porter's potential disability. See United States v. Boney, 977 F.2d 624, 632-34 (D.C.Cir.1992); Sirotiak v. H.C. Price Co., 758 P.2d 1271, 1275 n. 2 (Alaska 1988); Sharp v. State, 837 P.2d 718, 723 (Alaska App.1992). However, we need not decide the issue of waiver, for here the record fails to substantiate Singleton's claim that Porter was disqualified. Singleton builds her argument for Porter's disqualification on the premise that formal restoration of Porter's civil rights — such as the right to vote or to carry a firearm — was a prerequisite to Porter's being "unconditionally discharged" from his prior felony conviction, as required under AS 09.20.020(2). However, the juror disqualification statute itself specifies that the term "unconditional discharge has the meaning given in AS 12.55.185." AS 09.20.020(2). Alaska Statutes 12.55.185 defines the term "unconditional discharge" to mean "that a defendant is released from all disability arising under a sentence, including probation and parole[.]" This definition conditions renewed eligibility for jury service upon release from all restrictions directly imposed "under a sentence," but not from collateral disabilities — such as loss of firearms or voting privileges — that flow from sources outside the judgment of conviction or sentencing order. Singleton cites no authority to support a departure from the apparent plain meaning of the statutory definition. Moreover, adopting Singleton's argument would yield anomalous results. Alaska's voting laws illustrate the point. Under AS 15.05.030(a), any person convicted of a felony involving moral turpitude loses the right to vote "from the date of the conviction through the date of the unconditional discharge of the person." For purposes of this provision, the term "unconditional discharge" is defined in AS 15.60.010(33) to mean "that a person is released from all disability arising under a conviction and sentence, including probation and parole[.]" This definition is functionally identical to the definition of the same term set out in AS 12.55.185(12), which AS 09.20.020(2) adopts for purposes of determining juror qualification. When viewed through the prism of the voting statutes, the flaw in Singleton's argument becomes apparent. For if, as Singleton argues, the right to vote must be restored as a prerequisite of unconditional discharge, then a person's right to vote could never be restored: under AS 15.05.030(a) a person who lost the right to vote upon conviction of a felony would be entitled to have that right restored only upon unconditional discharge, but unconditional discharge could occur only upon restoration of the right to vote. Singleton's definition of unconditional discharge would thus be wholly circular and entirely self-defeating. We conclude that the definition of "unconditional discharge" set forth in AS 12.55.185 must be interpreted in accordance with the statute's plain meaning. So interpreted, unconditional discharge requires completion of any sentence of imprisonment, discharge from parole or probation, and release from any other restriction directly imposed as part of the judgment of conviction. Restoration of collaterally affected rights or privileges is not required. Applying this interpretation to Singleton's case, we conclude that the record fails to support Singleton's claim that juror Porter was disqualified from jury service under AS 09.20.020(2). Porter's testimony on voir dire indicated a prior conviction for a felony involving moral turpitude. But according to Porter, he had long ago been discharged after serving his sentence and successfully completing his probation. The record provides no reason to suspect that Porter had not been "released from all disability arising under [the] sentence" in his case, and so, no reason to conclude that he had not been "unconditionally discharged." AS 09.20.020(2). Under these circumstances, the status of Porter's voting or hunting rights was irrelevant to his qualification as a juror in Singleton's case. Singleton next claims that the state violated her right to due process and her discovery rights under Criminal Rule 16 by failing to preserve the names of the witnesses who were at the scene when Singleton, Fuqua, and McCray were arrested. The argument is meritless. At a pretrial discovery hearing on June 16, 1994, Singleton's counsel mentioned that Singleton had not yet received copies of notes made by the officers who arrested her. Counsel went on to say: "The officers interviewed some people or at least spoke to some people at the scene of the — at the incident scene, and we don't have the names of those people. We're hoping they would appear in the officer notes." Superior Court Judge Elaine M. Andrews ordered the notes produced by June 28. Following this deadline, on July 1, 1994, Fuqua's attorney moved to compel discovery of the names and addresses of the interviewed witnesses. In an affidavit accompanying the motion, Fuqua's attorney indicated that police notes disclosed by the District Attorney's Office did not name the witnesses; the affidavit also indicated that all existing police notes had apparently already been transmitted by the police to the District Attorney's office. Fuqua thus requested a hearing to determine "the reason for the disappearance of the names and the appropriate sanction." The record provides no indication that Singleton joined in Fuqua's motion to compel. Several days after Fuqua filed his motion to compel, Judge Andrews denied it, concluding that all police notes had been disclosed and that a failure to memorialize the names of bystanders at the scene of the arrest would not amount to a discovery violation or an impermissible failure to preserve evidence. In reaching this conclusion, the judge emphasized that, in the absence of notes, defense counsel's remedy was to interview the arresting officers: Defense counsel is free to call the officers and ask them to name the witnesses that they claim to have been able to identi-fy_ There is no basis to claim a "disappearance" of real evidence on the defense version of the facts. At trial, one of Singleton's arresting officers mentioned that he had not taken notes of the names of bystanders at the arrest scene but that he "knew one of the individuals." The other arresting officer testified that he did not know of any previously undisclosed witnesses to the alleged robbery; when asked about an unidentified person at the arrest scene; the officer responded that the police did not know if that person had been an eyewitness. No further mention of the discovery issue was made by Fuqua or Singleton. The record is silent as to whether Singleton made any attempt to conduct pretrial interviews with the arresting officers. Neither Singleton nor Fuqua claimed any prejudice at trial. Singleton fails to demonstrate any error by the trial court. As we have recently held: While officers have a duty to preserve potentially exculpatory evidence actually gathered during a criminal investigation, the due process clause has never required officers to undertake a state-of-the-art investigation of all reported crimes. Officers investigating a crime need not "track down every conceivable investigative lead and seize every scintilla of evidence regardless of its apparent importance or lack of importance at the time, or run the risk of denying a defendant due process or his discovery rights." Nicholson v. State, 570 P.2d 1058, 1064 (Alaska 1977). March v. State, 859 P.2d 714, 716 (Alaska App.1993). Here, officers at the scene of Singleton's arrest were evidently informed that no one other than Singleton, Fuqua, and McCray had been involved in the alleged robbery. The officers had no obvious basis to believe that other individuals at the arrest scene had "potentially exculpatory evidence." Id. If the other individuals were merely bystanders at the scene of the arrest, there is little reason to suppose that they had any material information to offer — exculpatory or inculpatory. If, on the other hand, the individuals at the arrest scene had been companions of Singleton in the van and had indeed witnessed the alleged robbery, their identities would presumably have been known by, or readily available to, Singleton without police assistance. Moreover, Singleton has failed to establish any effort on her part to determine the identities of potential witnesses through direct interview of her arresting officers, as suggested by Judge Andrews. And finally, it appears that Singleton failed even to join in Fuqua's motion to compel disclosure of the bystanders' names. Under the circumstances, we find no discovery or due process violation. The conviction is AFFIRMED. . In this connection, it is worth noting that the Attorney General has interpreted "unconditional discharge" in the context of the voting rights statutes to require completion of probation or parole, but not formal restoration of collaterally affected civil rights. See 1985 Op. Att'y Gen. No. 103 (Alaska, Jan. 29, 1985).

10327721

In the Matter of J.W., DOB: 1/2/85, W.W., DOB: 12/21/88, Minors under the Age of Eighteen (18) Years. J.P.W., Appellant, v. STATE of Alaska, Appellee

J.P.W. v. State

1996-07-19

No. S-7116

604

610

921 P.2d 604

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.

In the Matter of J.W., DOB: 1/2/85, W.W., DOB: 12/21/88, Minors under the Age of Eighteen (18) Years. J.P.W., Appellant, v. STATE of Alaska, Appellee.

In the Matter of J.W., DOB: 1/2/85, W.W., DOB: 12/21/88, Minors under the Age of Eighteen (18) Years. J.P.W., Appellant, v. STATE of Alaska, Appellee. No. S-7116. Supreme Court of Alaska. July 19, 1996. Philip M. Pallenberg, Assistant Public Defender, Juneau, and John B. Salemi, Public Defender, Anchorage, for Appellant. Jan A. Rutherdale, Assistant Attorney General, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before COMPTON, C.J., and RABINOWITZ, MATTHEWS, EASTAUGH and FABE, JJ.

3544

21576

OPINION COMPTON, Chief Justice. I. INTRODUCTION The superior court determined that J.W. and W.W. were children in need of aid as a result of their having suffered substantial neglect because of conditions created by their parents. It terminated the rights of both parents to the children. J.P.W., the children's natural father, appeals, contending that the superior court erred in finding that (1) the children were children in need of aid on the basis of their father's conduct, (2) this parental conduct was likely to continue, and (3) the State had made active remedial efforts. We affirm. II. FACTS AND PROCEEDINGS J.P.W. is the father and V.F. the mother of two minor sons, J.W. and W.W. Both parents and children are Alaska Natives. After the family moved from Hoonah to Juneau in 1989, both J.P.W. and V.F. began having serious problems with alcohol. By September 1990, J.P.W. was living in the streets, while V.F. and the children were living at a shelter. The State of Alaska, Department of Health and Social Services, Division of Family and Youth Services (State or DFYS) took the children into emergency custody in September 1990, after the Juneau Police Department (JPD) notified DFYS that the children had been abandoned at the shelter while both parents were "intoxicated walking the streets." In January 1991 the children were adjudicated children in need of aid under AS 47.10.010(a)(2)(A). They have been in continuous State custody since then. DFYS initially contemplated the eventual reunification of the family. After efforts to rehabilitate the parents failed, however, the case plan was changed from reunification to termination of parental rights. In April 1995 the superior court again determined that the children were children in need of aid, this time on the basis of parental neglect under AS 47.10.010(a)(2)(F) , and ordered that the parental rights of J.P.W. and V.F. be terminated as to both children. J.P.W. appeals. III. DISCUSSION A. Standard of Review. On appeal J.P.W. argues that the superior court erred in three of its findings. We review the findings of the superior court under the "clearly erroneous" standard; we will overturn such findings only if, after reviewing the entire record, we are left with a definite and firm conviction that a mistake has been made. E.J.S. v. State, 754 P.2d 749, 750 n. 2 (Alaska 1988). However, if a question of statutory interpretation is raised, we will apply our independent judgment and adopt the rule of law that is most persuasive in light of precedent, reason, and policy. In re J.L.F., 828 P.2d 166, 168 n. 5 (Alaska 1992), overruled on other grounds by In re S.A., 912 P.2d 1235, 1241 (Alaska 1996). B. The Trial Court Did Not Err in Finding that the Children Were Children in Need of Aid on the Basis of Neglect as a Result of Their Father's Conduct. A child may be adjudicated in need of aid on the basis of "the child having suffered substantial physical abuse or neglect as a result of conditions created by the child's parent, guardian, or custodian." AS 47.10.010(a)(2)(F). The superior court determined that the children were in need of aid "as a result of having suffered substantial neglect because of conditions created by the parents, i.e., their failure to provide the necessary food, care, clothing and shelter." This determination is supported by clear and convincing evidence in the record, as summarized in two of the findings of the court: 2.1. On September 9, 1990, the evening that DFYS first took custody of [J.W. and WW.],[ ] [J.P.W. and V.F.] were with their children in downtown Juneau in a very intoxicated state and were determined by the police to be in no condition to care for those children. 2.4. On July 1, 1991, at 12:45 a.m., [J.P.W. and V.F.] were found with their children under the parking garage in downtown Juneau when the children were supposed to have been returned to the care of the foster parents. It was hazardous to reach this area because of the large boulders and debris at the entrance. The area itself was a health hazard due to the unsanitary conditions and communicable disease of the people known to frequent the area. When the children were found, they were awake and out of bed while their parents were in bed, asleep and intoxicated. The children were inadequately clothed and fed and were potentially at risk of harm from other individuals in the area. Clear and convincing evidence in the record supports the superior court's determination that J.P.W. created conditions on these two occasions that resulted in the substantial neglect of the children. J.W. and W.W. were "two small children" at the time of the first incident, one five years old and the other less than two; J.P.W. exposed these children to the dangers of a downtown area at a time when he was "very intoxicated" and unable to care for them. J.P.W.'s inability to provide adequate parental care and supervision for the children at the time can be inferred from the fact that the responding police officer determined that it was necessary to leave the children in their grandmother's custody for the night. In the second incident, J.P.W. exposed the children to the hazards of an unfit area littered with broken bottles and feces and inhabited by people with tuberculosis and scabies. When a JPD officer found the family, both children were inadequately dressed and complained of being extremely hungry; they were taken to the police station to be dressed, fed, and warmed. The superior court's finding that the children were in need of aid on the basis of substantial neglect is supported by clear and convincing evidence; it is not clearly erroneous. C. The Trial Court Did Not Err in Finding by Clear and Convincing Evidence that the Parental Conduct Was Likely to Continue. A termination of parental status is clearly erroneous if "[s]ufficient evidence does not exist to support the conclusion that the parental conduct which resulted in the determination that the children were in need of aid was likely to continue." In re R.K., 851 P.2d 62, 66 (Alaska 1993). The superior court determined that the conduct of J.P.W. that led to the neglect of the children was likely to continue, and supported this determination with the following finding: 4. The main parental conduct that causes the conditions leading up to the neglect of the children is severe and chronic substance abuse of [V.F. and J.P.W.]. This conduct is likely to continue because after four and a half years of state involvement, the parents have been unable to maintain sobriety for any demonstrated length of time. The facts leading up to this conclusion include: 4.2. [J.P.W.] has a history of doing well when institutionalized and then returning to his previous behavior when released. After [J.P.W.'s] alcohol relapse within days of his return from [a halfway house] in January 1992, it was one and a half years before he entered an in-patient treatment program. Even then, he was unable to complete the program or maintain an alcohol or drug-free lifestyle. A psychological report prepared at [J.P.W.'s] request states that [J.P.W.] continues to choose relationships that doom his ability to succeed, and that his present fiance [sic] suffers from alcohol abuse problems and has difficulty maintaining sobriety. The evaluation recommends that [J.P.W.] attend a long term residential chemical abuse treatment program such as Akeela House in order to change his faulty reasoning patterns. The report concludes that "the progress for such a change is guarded to poor based on history and his present psychological stance." Evidence in the record supports this finding and provides clear and convincing support for the superior court's determination that the conduct of J.P.W. that caused the substantial neglect of the children will likely continue. "[M]ental illness alone is not conduct and may not form the basis of a termination order." K.N. v. State, 856 P.2d 468, 475 (Alaska 1993); see Nada A. v. State, 660 P.2d 436, 440 (Alaska 1983) ("impulsive personality disorder" not conduct). J.P.W. argues that alcoholism is an illness, that KN. and Nada A require that a "termination of parental rights must be based on conduct, not on a diagnosis," and that "alcohol abuse in and of itself does not . constitute parental conduct by [J.P.W.]." The State responds by correctly observing that, while mental illness alone cannot form the basis of a termination order, when "the record links the [parent's] continuing mental illness with his past instances of extreme neglect" there may be a basis for finding that "improper parental conduct [is] likely to continue." K.N., 856 P.2d at 475. The State argues there is such a link in this case. The State's reliance on KN. is not necessary, however, because the superior court did not base its termination decision on "continuing mental illness." The superior court did not base its decision on J.P.W.'s alcoholism itself, but on his "severe and chronic substance abuse." Substance abuse is conduct, even if the alcoholism that may underlie it is an illness. Because the superi- or court based its termination order on willful parental conduct, we need not consider the issue of "continuing mental illness." J.P.W. also argues that the two episodes of neglect that led the court to determine that the children were in need of aid were isolated episodes so limited in extent and duration as to defeat any predictive finding regarding continuing parental conduct. In R.K, where "the state's case [was] based on one episode of neglect," we held that "the evidence of . neglect [was] too limited both as to its extent and duration to sustain a prediction by clear and convincing evidence that [the parent was] likely to continue to be unable to provide appropriate parental care for the children." 851 P.2d at 66. While the episodes of neglect that led to the child in need of aid determination in this case were also limited in extent and duration, R.K is distinguishable. The key difference is that the predictive finding in R.K was based solely on the single episode of neglect itself; the trial court did not support its predictive finding with any further evidence, but merely relied on its own assessment of the parent's level of "insight" into his problems. Id. at 65-66. In contrast, there is considerable evidence supporting the superi- or court's predictive finding that JJP.W.'s conduct would likely continue. The court did not base its predictive finding solely on the two isolated incidents of neglect that formed the basis for the determination that the children were in need of aid. Clear and convincing evidence supports the superior court's prediction that J.P.W.'s substance abuse is likely to continue. In R.K, the father claimed that he no longer used the illegal drugs and alcohol that led to the isolated incident of neglect; this claim was not contradicted by the state, and its truthfulness-was left to possible future monitoring to determine. Id. at 66-67. In contrast, J.P.W. makes no such claim on appeal; instead, it is his continued inability "to maintain sobriety for any demonstrated length of time" that is uncontradicted on the record. While the father in R.K had "never been given a chance to demonstrate his conduct after the night in question," id. at 66, J.P.W.'s ongoing conduct is well-documented in the record. As the superior court observed, J.P.W. "has a history of doing well when institutionalized and then returning to his previous behavior when released." J.P.W. was incarcerated two days after DFYS first took custody of the children; he was released from a halfway house in April 1991 and was drinking again by July, when he was found under the parking garage with the children. After another period of incarceration, J.P.W. was released from the halfway house in January 1992. Within days he returned to drinking and was incarcerated in January and March on twelve hour protective custody holds. After another stay in the halfway house, J.P.W. went to Anchorage and entered an inpatient alcohol treatment program in mid-1993, which he failed to complete. After leaving this program, he continued to drink. A January 1995 psychological evaluation of J.P.W. concluded that "[u]ntil [J.P.W.] accepts that it is his responsibility to stay sober and establish the foundation for a stable life, [he] will stay stuck in a Catch-22 largely of his own making." It found that the progno sis for change was "guarded to poor based on history and his present psychological stance." This evidence provides clear and convincing support for the superior court's predictive finding that J.P.W. is likely to continue engaging in severe substance abuse, the conduct that resulted in the neglect of the children. D. The Trial Court Did Not Err in Finding that the State Had Made Active Remedial Efforts. Because J.W. and W.W. are Alaska Native children, the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq., prohibits the termination of J.P.W.'s parental rights to these children unless the State can show that "active efforts have been made to provide remedial services and rehabilitative programs" to preserve the family that have proven unsuccessful. 25 U.S.C. § 1912(d) (1988). J.P.W. concedes that the State made active efforts to help him secure aid and housing. He argues, however, that "[absolutely nothing was done in the realm of active efforts to deal with the root problem— alcohol." "[F]or purposes of determining the sufficiency of the State's remedial efforts, the superior court may properly consider a parent's demonstrated lack of willingness to participate in treatment." A.M. v. State, 891 P.2d 815, 827 (Alaska 1995), overruled on other grounds by In re S.A., 912 P.2d 1235, 1241 (Alaska 1996). However, this lack of willingness cannot be assumed until after the State has already made active efforts to provide remedial or rehabilitative services: We have never suggested that the scope of the State's duty to make active remedial efforts should be affected by a parent's motivation or prognosis before remedial efforts have commenced. To vary the scope of the State's ICWA duty based on subjective, pre-intervention criteria such as a parent's motivation or treatment prognosis might defeat the purpose of the active remedial effort requirement, for it would allow the State to argue, in all doubtful and difficult cases, that it had no duty to make active remedial efforts. A.M., 891 P.2d at 827. The State made sufficiently active remedial efforts initially, when J.P.W. was in Juneau. While its efforts after J.P.W. came to Anchorage were less active, these less active efforts were justifiable in light of J.P.W.'s continuing unwillingness to participate in treatment in any meaningful or ongoing way. The State did make active remedial efforts to rehabilítate J.P.W. initially. DFYS took active steps to supplement the treatment J.P.W. received while incarcerated and facilitate treatment after he was released. DFYS provided him with transportation assistance so he could attend AA meetings. DFYS tried to steer him towards a Native sobriety group when it concluded that this group would provide a more effective support group for him. In preparation for J.P.W.'s release from the halfway house, DFYS contacted and met with a substance abuse officer for the City and Borough of Juneau who' was assigned to the apartments where J.P.W. was to have lived. Finally, after J.P.W.'s post-release relapse, a DFYS social worker tried on a number of occasions to reinitiate contact with J.P.W. when J.P.W. was encountered in the streets. These efforts were sufficiently active to meet the requirements of the ICWA. The State did make some efforts after J.P.W. came to Anchorage and entered the inpatient treatment program. DFYS actively sought out J.P.W. after contact with him was lost, and, once contact was regained, DFYS set up a telephone visitation plan so J.P.W. could communicate with his children while undergoing treatment. These efforts were less active than the efforts in Juneau had. been, however. DFYS sought out J.P.W. only after J.W. asked what had happened to his father; essentially, DFYS had let itself lose contact with J.P.W. before then. While J.P.W. was in the inpatient alcohol treatment program, DFYS did not send any DFYS workers in Anchorage to monitor his treatment, and failed to contact the treatment center itself. DFYS simply relied on the court system to "assure that he would follow through," since J.P.W.'s attendance in the program was court-ordered; it took no active steps to ensure this follow-through itself. DFYS did not contact either the district attorney's office or the city to see to it that J.P.W. was complying with the order. Finally, after J.P.W. left the program, DFYS neither obtained a discharge summary nor coordinated any efforts with the city regarding J.P.W.'s failure to complete his treatment. Arguably the efforts DFYS made to facilitate J.P.W.'s rehabilitation after he came to Anchorage were not sufficiently "active" efforts for ICWA purposes. J.P.W.'s continued unwillingness to participate in treatment in any meaningful way must be considered in determining the sufficiency of the State's remedial efforts after he came to Anchorage, however. By the time J.P.W. came to Anchorage, he had already demonstrated to DFYS that he was unwilling to meaningfully participate in treatment. He had been assigned to counseling, but had refused to attend. A 1991 alcohol assessment had recommended that he receive inpatient treatment, but he had been unwilling to enter such a treatment program. After his relapse within days of his January 1992 release from the halfway house, J.P.W. had avoided contact with DFYS, despite the efforts of DFYS to reinitiate contact. J.P.W. told a social worker at DFYS that he did not want to attend the Anchorage inpatient treatment program, and the social worker told him he did not have a choice. By the time J.P.W. came to Anchorage, he had demonstrated his unequivocal unwillingness to participate in treatment on a number of occasions. DFYS had made active rehabilitative efforts in the past. J.P.W.'s ongoing unwillingness to participate in treatment justified the State's failure to pursue aggressive remedial efforts once he came to Anchorage. A preponderance of the evidence supports the finding that the State made active remedial and rehabilitative efforts, thereby satisfying ICWA requirements. IV. CONCLUSION The judgment of the superior court is AFFIRMED. . Sec. 47.10.010. Jurisdiction, (a) Proceedings relating to a minor under 18 years of age residing or found in the state are governed by this chapter, except as otherwise provided in this chapter, when the court finds the minor (2) to be a child in need of aid as a result of (A) the child . having no parent, guardian, custodian or relative caring or willing to provide care, including physical abandonment by (i) both parents.... . (F) the child having suffered substantial physical abuse or neglect as a result of conditions created by the child's parent, guardian, or custodian. . The superior court's determination that the children were in need of aid as a result of parental conduct must be supported by clear and convincing evidence. R.C. v. State, 760 P.2d 501, 504 (Alaska 1988). . The abandonment of the children at the shelter later that night, which was the basis for DFYS's initial assumption of custody over the children, was a separate incident. The officer who had found the parents and children in downtown Juneau earlier in the night had left the children in their grandmother's custody and had told J.P.W. and V.F. that they could pick the children up in the morning when sober. . Like the determination that the children were in need of aid as a result of parental conduct, the superior court's determination that the parental conduct is likely to continue must be supported by clear and convincing evidence. R.C. v. State, 760 P.2d 501, 504 (Alaska 1988). . In addition to providing the necessary clear and convincing support for the finding that the parental conduct resulting in the neglect is likely to continue, the record also supports the inference that the actual neglect itself is likely to continue as well. While trapped in the "Catch 22" of his alcohol problems, J.P.W. has failed to maintain visitation with the children or communicate with them on a regular basis; he has disappeared from their lives without explanation on a number of occasions, once for as long as a year. Whether these failures constitute neglect in and of themselves, they suggest that, if J.P.W. has been unable to meet even these minimal responsibilities towards the children, he would be even more likely to fail at the more involved responsibilities of providing adequate food, care, clothing, and shelter for the children. . The State must make this showing by a preponderance of the evidence. A.M. v. State, 891 P.2d 815, 826 (Alaska 1995), overruled on other grounds by In re S.A., 912 P.2d 1235, 1241 (Alaska 1996).

10328460

Janet SMITH, Personal Representative of the Estate of Dominic Smith, Deceased, Appellant, v. STATE of Alaska, Appellee

Smith v. State

1996-08-09

No. S-7347

632

636

921 P.2d 632

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.

Janet SMITH, Personal Representative of the Estate of Dominic Smith, Deceased, Appellant, v. STATE of Alaska, Appellee.

Janet SMITH, Personal Representative of the Estate of Dominic Smith, Deceased, Appellant, v. STATE of Alaska, Appellee. No. S-7347. Supreme Court of Alaska. Aug. 9, 1996. Susan Orlansky, Jeffrey M. Feldman, and Erie T. Sanders, Young, Sanders & Feldman, Anchorage, for Appellant. David H. Knapp, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before COMPTON, C.J., and RABINOWITZ, MATTHEWS, EASTAUGH and FABE, JJ.

2050

12450

OPINION COMPTON, Chief Justice. This appeal presents the sole question of whether a genuine issue of material fact precludes summary judgment on the scope of the duty assumed by the State of Alaska (State). The superior court concluded that the State owed the decedent Dominic Smith no duty and granted summary judgment in favor of the State. We reverse. I. BACKGROUND Most of the facts underlying this appeal are not in dispute. A May 1992 fluoride poisoning incident in Hooper Bay resulted in widespread illness and the death of Dominic Smith. The cause of this poisoning was ultimately traced to excessive fluoride in the townsite water system. The water system was owned and operated by Hooper Bay, not the State. In April 1992, however, the State had installed new parts in the fluoride pump at the townsite wellhouse. The State installed these parts in response to excessive levels of fluoride found in water samples. Prior to installing the new parts, the State had made plans to "rehabilitate" the aging townsite water system in its entirety, a project which would involve completely replacing all of the equipment at the site, including the fluoride pump. The rehabilitation work was scheduled to begin within a couple of weeks of the date on which the fluoride poisoning occurred. Janet Smith, the personal representative of Dominic Smith's estate (Smith), brought suit against the State, alleging that the State's negligence in resolving the fluoride problem in the Hooper Bay water system was a cause of Smith's death. The superior court granted summary judgment to the State, based on its conclusion that the State did not have an affirmative duty to fix the water system. The parties agree that the State, by its voluntary actions, assumed a duty of care to the residents of Hooper Bay. They also agree that, absent a voluntary undertaking, the State would have owed no duty of care to the residents in connection to the distribution of water from the townsite water system. The parties disagree, however, as to the precise nature of the duty the State did assume regarding the Hooper Bay water system. The State concedes that by working on the fluoride pump, it assumed a duty to use reasonable care in performing this work. This narrow duty is the only duty the State admits to having assumed. Because there was no evidence that the work was negligently performed by the State, the State contends that summary judgment was appropriate. Smith, however, argues that the State assumed a broader duty, for it "undertook to resolve the fluoride problem." Smith contends that the State should be held liable if it negligently failed to complete this undertaking and if this failure was a cause of Smith's death. Smith claims that evidence in the record supports both "the inference that the State undertook to perform the duty Hooper Bay owed its citizens to protect them from overfluoridation" and "the inference that the State undertook only to replace parts in the fluoride pump." According to Smith, this uncertainty precludes summary judgment, since the nature and extent of the State's duty would differ depending upon which inference is drawn. II. DISCUSSION A. Standard of Review We review summary judgments de novo. Dayhoff v. Temsco Helicopters, Inc., 848 P.2d 1367, 1369 (Alaska 1993). In reviewing a grant of summary judgment, we must determine whether a genuine issue of material fact exists and whether the moving party is entitled to judgment on the law applicable to the established facts. Cozzen v. Municipality of Anchorage, 907 P.2d 473, 475 (Alaska 1995); Broderick v. King's Way Assembly of God Church, 808 P.2d 1211, 1215 (Alaska 1991). All reasonable inferences of fact must be drawn in favor of the non-moving party. Dayhoff, 848 P.2d at 1369. B. Nature of the Duty As the owner and operator of the townsite water system, Hooper Bay is responsible for this system. See 18 AAC 80.005. By voluntarily taking action on the Hooper Bay water system, however, the State could have assumed certain duties towards third persons who rely on the system. "One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if . he has undertaken to perform a duty owed by the other to the third person[.]" City of Kotzebue v. McLean, 702 P.2d 1309, 1313 n. 4 (Alaska 1985) (quoting Restatement (Second) of Torts § 324A (1965)). The "precise nature and extent" of a duty "is a question of law which can be decided at the summary judgment stage." Mulvihill v. Union Oil Co., 859 P.2d 1310, 1314 n. 4 (Alaska 1993). As a question of law, it is a question for the court and not the jury to answer. "Although the precise nature and extent of that duty is a question of law," however, "it depends on the nature and extent of the act undertaken, a question of fact." Estate of Breitenfeld v. Air-Tek, Inc., 755 P.2d 1099, 1102 (Alaska 1988). Where reasonable people could differ over the nature and extent of the act undertaken, summary judgment is inappro priate, since the scope of the assumed duty will vary depending on the inferences drawn from the facts. See Saddler v. Alaska Marine Lines, Inc., 856 P.2d 784, 789 (Alaska 1993) (reasonable inference could be drawn that common carrier had undertaken performance of services necessary for protection of workers; inference created material issue of fact concerning carrier's assumed duty, requiring reversal of summary judgment). Where reasonable people could not differ over the nature and extent of the act undertaken, summary judgment is appropriate, insofar as there is no question as to whether the duty the undertaking gave rise to was fully discharged. See Mulvihill, 859 P.2d at 1314 (reasonable people could not differ on nature and extent of voluntary undertaking when defendant "only agreed to drive [co-employee] home;" summary judgment properly granted because duty assumed through this undertaking was fully discharged); Breitenfeld, 755 P.2d at 1103 ("reasonable minds could not reach divergent conclusions concerning the nature of the acts undertaken" by electrical repair contractor; contractor undertook only to order replacement part, which it did). The superior court concluded that "[t]he facts regarding the State's limited involvement with the water system are not in dispute, as the parties agree there was only the repair of the pump;" therefore "[t]he legal duty which would flow from that is a question of law and public policy, not fact." This conclusion is mistaken, because the appropriateness of the grant of summary judgment in this case cannot be decided simply as a question of law but is instead dependent on the nature and extent of the undertaking, a question of fact. The repair of the pump may have been a complete undertaking in and of itself, or it may have been the initiation of a broader undertaking to resolve the fluoride problem. While it may be true that the underlying facts of the case — what was said and what was done — are not in dispute, these underlying facts may be capable of supporting different inferences as to the nature and extent of the State's undertaking in working on the Hooper Bay water system. If the record can support these competing inferences, a genuine issue of material fact concerning the nature and extent of the duty assumed by the State would exist, precluding summary judgment. We conclude that the record can support such competing inferences. A reasonable person could infer, from the evidence in the record, that the State had undertaken to resolve the fluoride problem, thereby assuming a duty towards Smith and other Hooper Bay water users to complete this undertaking in a non-negligent manner. First, statements made by State employees prior to the work on the pump support the inference that, in sending its engineers to Hooper Bay, the State undertook to resolve the fluoride problem at a systemic level. Steve M. Weaver, an engineer with the Village Safe Water (VSW) section of the Alaska Department of Environmental Conservation (ADEC), testified that Lynn Cochran, another ADEC employee, had asked VSW to "cheek on the fluoridation system." VSW engineer Mae MaePhee also stated that "the sanitarian in Bethel had mentioned that the fluoride readings in the old watering point were erratic and had requested we look at the system." Second, statements by MaePhee support the inference that, when he and fellow VSW engineer Doug Poage arrived in Hooper Bay, their undertaking was not limited to the specific task of installing parts to the pump but involved other actions intended to correct the fluoride problem generally. MaePhee stated that they conducted a general inspection of the system in addition to installing the pump parts. They took water samples, inspected the "well pump wiring and other wiring in the building," and "discussed the replacement of all the wiring and conduit." Finally, before leaving Hooper Bay they gave the lead operator at the townsite water system, Hooper Bay employee Adrian Lake, instructions to test the fluoride level twice a day and disconnect the fluoride pump if the level reached a certain point. They prepared a "sheet for Adrian to record water usage daily and [ ] showed Adrian how to read and record the totals from the water meter." Third, statements made and actions taken by State employees during the weeks that followed the pump work support the inference that the State had undertaken to see to it that the fluoride problem was kept under control. Poage made a follow-up call, a week after the work was performed on the pump, to see what the fluoride level was. Weaver testified that Poage had planned a meeting in Hooper Bay to "look at the fluoridator and resolve the problem" after high fluoride levels persisted. Weaver "said no" to this plan, not because of a belief that the State had already discharged the only duty it had assumed, but because "[w]e're going to gut that building in less than two weeks and throw all that stuff away; we don't need to waste time on it now." Weaver instead instructed that the fluoride pump should be shut off in the meantime, until the rehabilitation was underway. Viewing this evidence in the light most favorable to Smith, as we must, it raises a genuine issue of material fact whether the State undertook to correct the fluoridation problem and thereby assumed the duty to complete this task non-negligently. A jury could infer from this evidence that the State had stepped in and taken on the responsibility of keeping fluoride levels under control during the time it would take to get the rehabilitated townsite water system up and running. Summary judgment was inappropriate when the evidence could support this inference. Because reasonable jurors could differ over the inferences that should be drawn regarding the nature and extent of the State's undertaking, a material issue of fact existed as to the duty the State had assumed, one that should have precluded summary judgment. III. CONCLUSION We reverse the summary judgment and remand for a trial on the merits. . This inference seems particularly plausible in light of VSW's perception that Hooper Bay was unable to manage the townsite water system effectively. Weaver testified that "Hooper Bay was at a point in their organizational structure where they were unable to operate their existing facilities correctly," and that there was need for "a training program and an education program" in addition to the physical rehabilitation of the plant. A reasonable person could infer that the State, having concluded that Hooper Bay was unable to manage its own water system, had undertaken the task of bringing the fluoride problem under control during the weeks prior to the full rehabilitation of the system.

9382672

Adam B. HAMILTON, Appellant, v. STATE of Alaska, Appellee

Hamilton v. State

2002-11-22

No. A-7762

760

773

59 P.3d 760

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.

Adam B. HAMILTON, Appellant, v. STATE of Alaska, Appellee.

Adam B. HAMILTON, Appellant, v. STATE of Alaska, Appellee. No. A-7762. Court of Appeals of Alaska. Nov. 22, 2002. Rehearing Denied Dec. 19, 2002. Marcia E. Holland, Assistant Public Defender, Fairbanks, and Barbara K. Brink, Public Defender, Anchorage, for Appellant. John A. Seukanec, 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.

7501

46192

OPINION MANNHEIMER, Judge. Adam B. Hamilton appeals his convictions for first-degree burglary and first-degree murder. He contends that most of the evidence against him was obtained as a result of an unlawful investigative stop. He also contends that, during his trial, the prosecutor improperly referred to his post-arrest silence, and that the trial judge should have ordered a mistrial because of the prosecutor's comments. Finally, Hamilton contends that the trial judge improperly refused to allow the jury to consider Hamilton's proposed defenses of self-defense and heat of passion. For the reasons explained here, we reject each of these contentions and affirm Hamilton's convictions. In addition, Hamilton argues that his sentence should be vacated; he contends that the sentencing judge, like the prosecutor, relied on Hamilton's post-arrest silence. We do not agree with Hamilton's characterization of the sentencing judge's remarks, and we therefore affirm Hamilton's sentence. Underlying facts of the homicide David Dixon, his wife Rebecca, and their three-year-old daughter lived at 385 Winter Street in Fairbanks. This residence is located a few miles north of the downtown area, just off the Old Steese Highway near Chena Hot Springs Road. The Dixons shared the residence with another couple, Jason Starkey and Heather Woods. The Dixons fell asleep watching television around 11:00 p.m. on the night of November 28, 1999. Shortly before 2:80 a.m., Rebecca Dixon awoke to find her husband struggling with an intruder-"a tall figure wearing a leather jacket". The intruder stabbed David Dixon repeatedly with a long knife and threw him around the room like a "rag doll". Rebecca Dixon could not see the intruder's face because he was wearing a stocking cap or ski mask, and because he had a bandana across his face. As soon as Rebecca Dixon realized the danger, she grabbed her daughter, who had been sleeping on a bed at the foot of the Dixons' bed, and shielded her daughter's head and ears "so she couldn't hear or see what was happening". Rebecca's movement attracted the attention of her husband's attacker. He stopped stabbing her husband and stared at her for a moment. Then the attacker dropped David Dixon in front of a couch, stabbed him a couple more times in the back, and ran out of the house. Rebecca ran screaming to the loft where Jason Starkey and Heather Wood slept. While the two women tried to stop the bleeding, Starkey called 911. The 911 call was received at 2:82 a.m. A few minutes later, when the ambulance arrived, Rebecca Dixon telephoned her husband's best friend, Adam Hamilton, because she knew that Hamilton would be the 'first person that her husband would call if he needed help. But no one was home at Hamilton's house. Rebecca left a message on Hamilton's answering machine. David Dixon had been stabbed twenty-eight times, primarily in the head, neck, chest, and back. He died from his wounds. A considerable amount of physical evidence tied Hamilton to this crime. His clothing was stained with fluids that probably came from Dixon's body. A blood-stained stocking cap and a blood-stained bandana were found in his vehicle. Hamilton's jacket was missing an "airborne pin" or "parachute badge" (a lapel or garment pin in the shape of two wings); Rebecca Dixon found this pin on the floor of her residence, near her husband's body. And Hamilton's shoes matched two bloody footprints that were found on the floor and carpet of the Dixon residence. From the beginning of the trial, Hamilton conceded that he was the one who entered the house and stabbed Dixon. Hamilton suggested, however, that Dixon had let him into the house and that therefore the entry was not a burglary. Hamilton also suggested that Dixon must have done something to spark the confrontation, and that therefore Hamilton was not guilty of first-degree murder but rather a lesser degree of homicide. The jury rejected these suggestions and con-viected Hamilton of first-degree burglary and first-degree murder. . The legality of the investigative stop As just explained, the 911 call was received at 2:82 a.m. Almost immediately, news of the break-in and stabbing was broadcast over the radio frequencies used by the state troopers and the Fairbanks police. Alaska State Trooper Sgt. Kevin Kemp was conducting a DWI traffic stop on the west side of town, in the parking lot of the Safeway store at the corner of University and Airport Roads. Leaving his DWI suspect in the custody of a backup officer, Kemp started driving toward the crime scene. He headed east on Airport Road toward the Steese Highway. When he reached the Steese, he turned north, heading toward Chena Hot Springs Road and the Dixon residence. Given the time of day, traffic was light as Kemp drove through Fairbanks. In fact, as Kemp headed north on the Steese Highway, he saw only two non-police vehicles after he passed Trainor Gate Road. These two vehicles were a snow grader and a four-door sedan, both headed south. That is, these two vehicles were traveling in the opposite direction from Kemp-away from the crime scene. Kemp saw these two vehicles in front of him (%.e., north of him) as he crossed Farmers Loop Road. The sedan was passing the snow grader and was illuminated by the grader's lights. Kemp observed that the sedan had a "whale tail" (¢.e., a spoiler) mounted on its trunk and had a long antenna in back. Kemp also saw that the driver had long hair and was sitting tall in the seat, but he could not tell what the driver was wearing, or whether the driver was a man or a woman. Kemp wanted to record the license plate number of the sedan (so that the authorities could contact the driver later), but he was unable to see the sedan's license plate. Kemp knew that there were at least two Fairbanks police cars behind him so, using his radio, he asked these officers to record the license plate number of the sedan that was headed toward them. Kemp broadcast this request for assistance at 2:42:30 a. m.that is, ten minutes after the 911 call. Officer Pearl J. Turney was one of the Fairbanks police officers who was behind Kemp. She had been patrolling the central area of Fairbanks when she heard the dispatch report of the break-in and stabbing. Turney drove out the Steese Highway to where it intersects with Farmers Loop Road, and there she set up an observation post. Turney was 'in this location when she heard Kemp's request for assistance. From her vantage point, Turney could see the snow grader and the sedan that Kemp had described. After the sedan passed her, Turney pulled onto the Steese Highway and headed south, following the sedan. As Turney got closer to the sedan, she saw that its license plate was covered with snow, making it impossible to read the license plate number. She advised dispatch that the license plate was obscured, and she described the sedan's make and model. As Turney followed the sedan, it traveled south to the Johansen Expressway and then turned west. When Turney informed her fellow officers that the sedan had left the Steese Highway and was now traveling west on the Johansen, her supervisor (Sgt. Matthew Soden) modified Kemp's request for the license plate number. Soden told her to wait for backup, then stop the sedan and interview its occupants. Turney continued to follow the sedan. The car left the Johansen Expressway and turned onto College Road (still heading west). Tur-ney now had backup from Officer Gertha Wells, who had reached College Road in time to see the sedan and Turney's patrol car drive past. Turney and Wells conferred and decided to stop the sedan near the corner of College and Marietta. When Turney activated her overhead lights, the driver of the sedan pulled onto Marietta and stopped. The time was 246 am.-fourteen minutes after the 911 call, and less than four minutes after Kemp radioed his request for assistance in identifying the sedan. Both Turney and Wells parked their patrol cars, and Turney approached the sedan on foot while Wells provided cover. When Tur-ney reached the rear of the sedan, she brushed the snow from the license plate so that the license plate number was visible. Wells immediately radioed the number to their dispatcher. Turney continued walking toward the front of the sedan, on the driver's side. As she neared the driver's door, she looked through the window and saw that the driver's hands were covered with blood. Turney backed away from the car, drew her sidearm, and ordered the driver to get out of the car with his hands up and in plain sight. The driver was Adam Hamilton. The ensuing searches of his person, his clothing, and his vehicle yielded the majority of the State's evidence linking Hamilton to the burglary/homicide. The question is whether the police had the right to stop Hamilton's car. The State offers two justifications for this traffic stop. First, Alaska law-AS 28.10.171(b)-re-quires drivers to maintain their license plates "in a location and condition so as to be clearly legible". The State argues that because the license plate of Hamilton's vehicle was covered by snow, the police were authorized to stop him and cite him for this offense. Second, the State argues that the police were authorized to stop Hamilton because they had reason to believe that he was a potential witness-ie, reason to believe that he might have observed something that would be pertinent to their investigation of the break-in and stabbing. (a) Whether the stop of Hamilton's vehicle was justified because of Hamilton's violation of AS 28.10.171(b) Hamilton acknowledges that his license plate was covered with snow at the time he was stopped. However, he points out that none of the officers involved in the traffic stop ever claimed that they requested or performed the stop so that Hamilton could be cited for driving with an illegible license plate. Instead, all of the officers testified that Hamilton was stopped because they wanted to find out if he knew anything or had seen anything that would further their investigation of the break-in and stabbing. Because the officers did not subjectively rely on the illegible license plate as a basis for their actions, Hamilton argues that the State is barred from relying on this after-the-fact justification for the stop. But, in fact, the State is allowed to rely on an after-the-fact justification, so long as the facts known to the officers at the time of the investigative stop are sufficient to establish the legal foundation for this justification. We decided this point of law in Beauvois v. State, 837 P.2d 1118 (Alaska App.1992). In Bequvois, we held that the legality of an investigative stop hinges on an objective test: whether the facts known to the officers established a legitimate basis for the stop. The officers' subjective theories as to why the stop was proper are irrelevant. Hamilton contends that we receded from this position in Castle v. State, 999 P.2d 169 (Alaska App.2000). But Hamilton has misconstrued our holding in that case. In Castle, a police officer attempted to conduct an investigative stop of the defendant. Fleeing from the officer, the defendant committed a minor offense: running in the middle of the street, a violation of a municipal ordinance regulating pedestrian traffic. We held that the officer's initial effort to conduct an investigative stop had been illegal. The remaining question was whether the State could rely on Castle's ensuing violation of the municipal ordinance to justify the ultimate stop. We said no; the State could not rely on Castle's act of running in the street to justify the stop-because Castle's violation of the pedestrian ordinance was "the direct result of [the officer's] unjustified attempt to seize [Castle]", and because "the policy of the exclusionary rule would be undermined if we allowed Castle's conduct to form the justification for his ensuing arrest". Hamilton, like the defendant in Castle, committed a minor infraction of the law in the sight of police officers, but there the resemblance ends. Hamilton did not cover his license plate with snow in response to illegal conduct by the police. Thus, Hamilton's case is governed by the rule we announced in Beqauvois: the legality of the traffic stop is determined by an objective assessment of the facts known to the officers at the time they conducted the stop. As Officer Turney was following Hamilton's vehicle on the Johansen Expressway, she radioed that she could not see Hamilton's license plate number because the license plate was covered with snow. That is, Turney knew that Hamilton's license plate was covered with snow before she commenced the seizure of Hamilton's vehicle-4.e., before she turned on her overhead lights and signaled Hamilton to stop at the corner of College and Marietta. This fact is sufficient to establish the legality of the ensuing traffic stop under federal law. -In Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), the Supreme Court rejected the doctrine of the "pretext" traffic stop and held instead that, no matter what may have prompted police officers' interest in a vehicle or its occupants, a traffic stop is legal so long as the officers had probable cause to believe that a violation of the traffic code (or any other violation of the law) had occurred in their presence. Here, Officer Turney had probable cause to believe that Hamilton's vehicle was being driven in violation of AS 28.10.171(b), the statute requiring that license plates be maintained in a legible condition. It is a misdemeanor to violate this statute. Thus, Turney was authorized to stop Hamilton's vehicle and either arrest him or cite him for this violation. And, as we held in Beau vois, it is irrelevant that Turney did not actively consider or subjectively rely on this basis for the traffic stop. - Hamilton suggests (although he does not directly argue) that we should reject Whren as a matter of state constitutional law and then invalidate his traffic stop. Hamilton points out that even if. his violation of the license plate law might conceivably have justified the police in stopping his vehicle, the fact of the matter is that the officers' true motive for stopping Hamilton was to investigate the break-in and stabbing, not to enforce the license plate law. Thus, Hamilton contends, we should not allow the State to rely on the "pretext" of Hamilton's violation of the license plate law. We conclude that Hamilton's ease does not require us either to accept or reject Whren as a matter of Alaska constitutional law. We reach this conclusion because we hold that the police were justified in stopping Hamilton's car as part of their investigation of the break-in and stabbing. (b) The stop of Hamilton's vehicle was justified as am investigative stop of a potential witness Under the test for investigative stops adopted by our supreme court in Coleman v. State, 553 P.2d 40 (Alaska 1976), the police must have "reasonable suspicion that imminent public danger exists or [that] serious harm to persons or property has recently occurred". As this Court emphasized in State v. G.B., 769 P.2d 452 (Alaska App.1989), the Coleman rule is ultimately rooted in common sense and practicality. In each case, compliance with Coleman's requirement of recently committed serious harm must be evaluated with a view toward the fundamental concern of the Coleman court: the risk that an investigative stop based on mere suspicion may be used as a pretext to conduct a search for evidence. As indicated in Coleman, the fundamental inquiry in each case is whether "a prompt investigation [was] required . as a matter of practical necessity." G.B., 769 P.2d at 456. In Beauvois v. State and Metzker v. State , we upheld investigative stops based on the need to identify and interview witnesses who may have information pertinent to the investigation of a recently committed serious crime-even when there is no reason to believe that the people who are being stopped committed the crime. We reach a similar conclusion here. In the present case, when the police stopped Hamilton's car, they knew that an intruder had entered a residence in the middle of the night, had perpetrated an apparently fatal assault, and then had fled. The police also knew that the assailant had been at large for approximately fifteen minutes. (The 911 call was received at 2:82 a.m.; Hamilton's car was pulled over at 2:46 a.m.) As Hamilton points out in his brief, there were several routes that the assailant might have taken when fleeing the scene of the crime. But the main route from the Dixon residence to the city center was the Steese Highway. Sgt. Kemp observed Hamilton's car traveling south (away from the Dixon residence) on the Steese Highway at 2:42 am ten minutes after the 911 call. Kemp testified that, aside from the snow grader and the police cars, there were no other vehicles on the Steese Highway between Trainor Gate Road (the north part of central Fairbanks) and the Dixon residence. Kemp could reasonably suspect that the people in this southbound vehicle had seen something-a person or another vehicle, for example-that might prove important to the investigation of the just-committed burglary and assault. But as Kemp continued north toward the Dixon residence, he watched these potential witnesses drive out of sight to the south. He therefore broadcast a request for assistance-not asking the Fairbanks police to stop the vehicle, but merely to record its license plate number so that the authorities could contact the driver later. Hlad the Fairbanks police simply recorded Hamilton's license plate number and allowed him to drive on unimpeded, there would have been no Fourth Amendment issue in this case. But when Officer Turney got behind Hamilton's car, she saw that Hamilton's license plate was covered with snow, thus making it impossible to obtain the license plate number without stopping the vehicle. To summarize the situation at that point: A serious assault had been committed in the middle of the night-an assault which, given the nature and the number of David Dixon's wounds, threatened to become a homicide at any moment. The state troopers and the Fairbanks police responded within minutes. As they made their way to the crime scene, they saw only one private vehicle driving toward central Fairbanks, away from the neighborhood of the crime. The officers had reason to believe that the occupant(s) of this car might have seen something that would aid their investigation. But because the license plate of this vehicle was covered with snow, it was not possible to identify the vehicle and contact the driver later. If the police were to speak with these potential witnesses, it had to be right then. Under these circumstances, we conclude that the Coleman rule was satisfied: "a prompt investigation [was] required . as a matter of practical necessity". We therefore uphold the legality of the investigative stop under Beawvois and Metzker-without regard to the independent ground that driving with a snow-covered license plate is a misdemeanor under AS 28.10.171(b) and AS 28.40.050(a)-(b). The defense request for mistrial after the prosecutor elicited testimony that Hamilton failed to express concern for anyone else following the traffic stop Three of the State's witnesses described Hamilton's behavior at the scene of the stop and, later, at the hospital (where he was taken for treatment of a wound to his thigh). Officer Turney described Hamilton as "very calm" and cooperative during the traf-fie stop, even after he was ordered out of the car and handcuffed. Another officer who arrived shortly after the stop agreed that Hamilton was "calm and unemotional". Tur-ney further testified that, during the ride to the hospital, Hamilton expressed concern about his wound (he apparently was having difficulty either feeling or wiggling his toes), but he did not express concern about anyone else. And Sergeant Kemp, who saw Hamilton after he arrived at the hospital, testified that Hamilton was "fairly calm". Hamilton's attorney conceded that the State was entitled to introduce evidence of Hamilton's demeanor-4i.e, evidence that Hamilton had been calm and unemotional. But he objected to Officer Turney's testimony that Hamilton had not expressed concern for anyone else. The defense attorney argued that this testimony was a comment on Hamilton's right to remain silent about the crime for which he was being investigated. He asked the trial judge either to declare a mistrial or to give a cautionary instruction to the jury. The trial judge, Superior Court Judge Richard D. Savell, denied the request for a mistrial but granted the request for a cautionary instruction. Judge Savell asked the defense attorney to draft an instruction, but the defense attorney declined. Instead, the defense attorney outlined generally what he wanted the instruction to say, and then he asked Judge Savell to come up with the exact language. When court resumed session, Judge Savell told the jurors: The Court: Ladies and gentlemen, I want to remind you that the defendant at all stages of a criminal proceeding is not obliged to make any statements or produce any evidence. And, in fact, it's his right not to do so. Go ahead, Mr. Satterberg [the defense attorney]. ' Nothing further was said about this issue until the next day, when Hamilton's attorney renewed his motion for a mistrial. The defense attorney cursorily asserted that "the court's curative instruction was not strong enough", but he did not explain why he thought so, nor did he suggest any supplement to the court's instruction. Instead, the defense attorney immediately proceeded to his main argument that a mistrial was required under this Court's ruling in Silvernail v. State, 777 P.2d 1169 (Alaska App.1989). In Silvernail, the defendant and two other men were arrested and then charged with kidnapping and murder. At trial, Sitvernail asserted that he had been an unwilling participant-that his two companions had coerced him to aid the kidnapping and murder. Silvernail took the stand to testify in support of this coercion theory. During the prosecutor's eross-examination of Silvernail, the prosecutor asked him why he had not explained his situation to the police officers who arrested him: Prosecutor: When Officer Gaines came and took you out of the passenger seat, did you say to him, "God, I'm glad you're here."? Silvernail: No. Prosecutor: Did you say anything about the fact that you had just been seared to death? [Objection by defense counsel; ruled] over- Prosecutor: You never said to the police officer, when he came up to the car, "Hey, [my companions] just killed a guy. Let me tell you about it."? Silvernail: No. Prosecutor: You never said, "Gee, I'm relieved. You're finally here to help me." Right? Silvernail: No, I didn't say that. Silvernail, 777 P.2d at 1172-73. On appeal, we held that this testimony should have been excluded under Alaska Evidence Rule 403 because its probative value was so heavily outweighed by its potential for unfair prejudice. We pointed out that "in most cireum-stances[,] silence is so ambiguous that it is of little probative force.... [Although silence] gains more probative weight where it persists in the face of accusation, . [failure to contest an assertion . is considered evidence of acquiescence only if it would have been natural under the cireamstances to object to the assertion in question." And we concluded that, given the fact that Silvernail was taken into custody after attempting to evade the police and while wearing a shirt soaked with the victim's blood, "it would hardly have been natural under the cireum-stances for Silvernail to have made a full disclosure of his situation". We explained: At the time of arrest and during eustodial interrogation, [the] innocent and [the] guilty alike-perhaps particularly the innocent-may find the situation so intimidating that they may choose to stand mute. A variety of reasons may influence that decision. In these often emotional and confusing cireumstances, a suspect may not have heard or fully understood the question, or may have felt there was no need to reply. He may have maintained silence out of fear or unwillingness to incriminate another. Or the arrestee may simply react with silence in response to the hostile and perhaps unfamiliar atmosphere surrounding his detention. Silvernail, 777 P.2d at 1177. Given our ruling in Silvernail, it is fairly obvious that the testimony challenged here-Officer Turney's testimony that Hamilton failed to express concern for anyone else-was objectionable and should not have been admitted. In its brief to this Court, the State does not really argue otherwise. But the issue is not the admissibility of this testimony. As explained above, Judge Savell sustained the defense attorney's objection to this testimony and, at the defense attorney's request, the judge gave a curative instruction to the jury. Instead, the issue is whether the curative instruction was inadequate to remedy the harm, so that a mistrial was still required. When Hamilton's attorney renewed his motion for mistrial on the following day, Judge Savell declared that he believed it was "a close call" whether he should declare a mistrial. The judge added that he "[could] imagine cireumstances . that would tip the scale in either direction from here". In the end, however, Judge Savell was not convinced that a mistrial was required. A trial judge's decision to grant or deny a mistrial is reviewed under the "abuse of discretion" standard. This means that we will reverse the trial court's decision "only when we are left with a definite and firm conviction, after reviewing the whole record, that the trial court erred in its ruling." A timely curative instruction is presumed to remedy the unfair prejudice that might otherwise arise from inadmissible testimony. In Hamilton's case, immediately following the defense attorney's objection to Turney's testimony, Judge Savell instructed the jury that Hamilton had a right to decline to make any statements. We have previously recognized that such an instruction can be sufficient to cure the error when a jury hears testimony concerning a defendant's pre-ar-rest silence. As explained above, this curative instruction was given at the defense attorney's request, after the attorney outlined what he wanted the judge to say. Although the defense attorney later complained that the instruction had not been "strong enough", he never suggested alternative or supplemental wording. And, indeed, Hamilton's appellate attorney does not attack the wording of the instruction. We have already noted that when Judge Savell ruled on the motion for mistrial, he warned that he "[could] imagine cireum-stances . that would tip the scale in either direction from here". But events that might have prompted Judge Savell to revise his ruling never came to pass. The prosecutor never asked another witness about Hamilton's concern or lack of concern for other people's welfare, and the prosecutor did not mention this theme during his summation to the jury. On appeal, Hamilton suggests that the prejudice of the inadmissible testimony was exacerbated by the contemporaneous press coverage of the trial. During the second day's argument on the motion for mistrial, Hamilton's trial attorney pointed out that the local newspaper was carrying the headline, "Accused calm after stabbing death". But as Judge Savell correctly noted, this newspaper headline was a "red herring" because everyone agreed (in fact, the defense attorney expressly conceded) that it was proper for the jury to hear testimony concerning Hamilton's demeanor-ie, testimony that he was calm and unemotional following the traffic stop. The issue confronting the court was what to do about Turney's testimony that Hamilton had failed to express concern for anyone else. There is nothing in the record to indicate that the newspaper article mentioned this testimony. Likewise, there is nothing in the record to indicate that any of the jurors disobeyed Judge Savell's instructions to insulate themselves from media coverage of the trial. Having reviewed the record, we conclude that Judge Savell did not abuse his discretion when he concluded that the curative instruction was sufficient to remedy the problem and that a mistrial was not required. _ Was Hamilton entitled to an instruction on self-defense or an imstruction on heat of passion? In his opening statement, Hamilton's attorney suggested that Hamilton acted in self-defense when he stabbed Dixon, or at least that Dixon had provoked Hamilton's violence (thus potentially mitigating the crime to manslaughter due to heat of passion). But when the presentation of evidence was completed, Judge Savell ruled that Hamilton was not entitled to jury instructions on self-defense or heat of passion. A defendant is entitled to have the jury instructed on self-defense or heat of passion (or any other defense) if there is "some evidence" to support the defense. In this context, "some evidence" is a term of art; it means evidence which, when viewed in the light most favorable to the defendant, is sufficient to support a finding in the defendant's favor by a reasonable fact-finder on each element of the proposed defense. (In the case of self-defense and heat of passion, the government ultimately bears the burden of disproving the defense beyond a reasonable doubt. Thus, the evidence is sufficient to support a finding in the defendant's favor if it is sufficient to engender a reasonable doubt on each element of the proposed defense.) At trial, Hamilton's attorney argued that a plausible case of self-defense was established by the following evidence: (1) the wound to Hamilton's leg; (2) Rebecca Dixon's testimony that Hamilton and Dixon were struggling when she first awoke; (8) the fact that Hamilton and Dixon were best friends-suggesting that Dixon must have done something to trigger this kind of conduct from Hamilton; and (4) the lack of evidence of a forced entry-suggesting that Dixon voluntarily permitted Hamilton to enter the house. But Judge Savell concluded that none of this would support a reasonable inference that Dixon had attacked Hamilton or had provoked Hamilton to violence. On appeal, Hamilton renews his contention that he was entitled to jury instructions on self-defense and heat of passion (4.e., serious provocation by the victim) . But Hamilton's argument in support of these defenses consists primarily in noting that Dixon and Hamilton were friends, that there was no apparent reason for Hamilton to attack Dixon, and that Hamilton may have induced Dixon to open the door to him voluntarily (a factual assertion that the jury rejected when they convicted Hamilton of burglary). It is true that the State offered no motive for Hamilton's attack on Dixon. However, the evidence showed that Hamilton came to Dixon's residence in the middle of the night, when everyone in the house was asleep. Regardless of how Hamilton obtained entry, he was armed with a knife and was wearing a bandana to cover his face. When Rebecca Dixon awoke, she saw her husband struggling with Hamilton, but there was no evidence that Dixon was doing anything other than trying to defend himself. David Dixon was unarmed, he was clothed only in his underwear, and he was crouched on the floor while Hamilton stabbed him repeatedly with a downward motion. At this point, there was already blood bubbling from Dixon's mouth. Hamilton then began to throw Dixon around the room "like a limp rag doll", all the while continuing to stab him. Dixon was no longer making any kind of resistance. When Re-beeea Dixon moved from her bed to grab her daughter, Hamilton interrupted his attack and stared at her, but then he continued his attack-dropping Dixon in front of a couch and stabbing him a few more times in the back-before he ran from the house. Neither Hamilton nor any other witness offered an explanation for Hamilton's violence or gave testimony suggesting that David Dixon had initiated or provoked the attack. It is true that Hamilton was bleeding from a wound to his thigh when the police stopped his car. But there was no evidence presented as to when Hamilton received this wound or how it was inflicted. Even assuming that the wound was a knife wound received while Hamilton was inside the Dixon residence, there was no evidence that Dixon was armed at any time during his struggle with Hamilton. Given this evidence, any argument that Hamilton acted in self-defense or as a result of serious provocation by Dixon would be based on pure speculation. As we said in Hilbish v. State, One can certainly conjure scenarios involving self-defense or heat of passion that would arguably be consistent with the evidence at trial; in this sense, [the defendant might] plausibly maintain that the evidence at trial does not rule out the possibility of self-defense or heat of passion.... But the state was under no obligation to assume the burden of disproving self-defense until there was some evidence affirmatively suggesting that what might have happened actually did happen; [likewise, a defendant does not meet the] burden of establishing heat of passion as an affirmative defense merely because the evidence at trial did not disprove it. 891 P.2d 841, 852 (Alaska App.1995). In Hamilton's case, as was true in Hilbish, the evidence that supposedly supports self-defense or heat of passion "is essentially neutral, that is, merely compatible with a theory of self-defense or heat of passion". It has "no material bearing on the crucial issues involved in a claim of self-defense or heat of passion: whether [Dixon] actually used or threatened deadly force at the time of the [stabbing], whether [Hamilton stabbed Dixon] in defense against such force or threat, or whether [Dison] engaged in any act of serious provocation'". Even viewing the evidence in the light most favorable to Hamilton (which we are obliged to do), Hamilton's claims of self-defense or heat of passion rest on speculation; they find no reasonable support in the evidence. Judge Savell properly denied Hamilton's requests for jury instructions on self-defense and heat of passion. One concluding note: In past decisions, including Hilbish, we have stated that the "abuse of discretion" standard governs our review of a trial judge's decision whether to instruct the jury on a proposed defense. This is not completely accurate. If there is "some evidence" of a proposed defense, a judge has no discretion to refuse a timely defense request for a jury instruction on that defense. This is an issue of law which we resolve de novo based on the entire record. Conversely, if there is not "some evidence" of the proposed defense, the defendant is not entitled to have the jury instructed on that defense. . Did Judge Sawell penalize Hamilton for asserting his Fifth Amendment right to de-clime to explain his crime at sentencing? As already noted, the jury convicted Hamilton of first-degree burglary and first-degree murder. Judge Savell sentenced Hamilton to 99 years' imprisonment for the murder-the maximum term allowed by law. (Hamilton received a concurrent 4-year prison term for the burglary.) At sentencing, Hamilton declined to make a statement or present any evidence to explain his behavior. On appeal, Hamilton contends that Judge Savell held Hamilton's silence against him-that the judge's decision to impose a 99-year sentence was tainted by the judge's feeling that Hamilton was obliged to explain his behavior if he wanted to receive something less than the maximum sentence. But the record provides little support for this claim. Shortly after Judge Savell began his sentencing remarks, he expressly acknowledged Hamilton's right to remain silent, and he declared that he would "not accept [any] suggestion that [Hamilton's] invocation of his right to silence [should] result in a harsher sentence for him." Judge Savell then made the remarks that Hamilton criticizes on appeal: The Court: I have to confess that . [E] looked forward to the possibility of learning [during these sentencing proceedings] what could cause two close friends [ie., Hamilton and Dixon] to have their respective lives end this way. I looked forward to [this] sentencing in the hope that I would hear an explanation that could provide background, mitigation, and an understanding [of Hamilton's conduct]. But after saying this, Judge Savell immediately reiterated that he would not penalize Hamilton for asserting his right to remain silent: The Court: I accept that [explanation] is not forthcoming, and I'll not punish [Mr. Hamilton] for it. But [without such an explanation] I am limited in being [able] to assess [Hamilton's] remorse, rehabilitation potential, [and] whether and to what extent deterrence is likely or necessary or futile. Although it is improper for a sentencing judge to penalize a defendant for remaining silent, a sentencing judge remains obliged (as Judge Savell noted) to assess the seriousness of the defendant's crime, the prospects for the defendant's rehabilitation, and the extent to which imprisonment may be needed to deter the defendant from future acts of lawlessness and/or to protect the public until the defendant is rehabilitated. When a defendant declines to offer evidence on these issues, the sentencing judge must base his or her decision on the existing record. The record in this case shows that Hamilton committed a vicious and apparently inexplicable murder. The evidence leaves little doubt that the murder was premeditated: Hamilton illegally entered the Dixon residence in the middle of the night, wearing a bandana over his face and armed with a dagger-like knife. He stabbed Dixon more than two dozen times, continuing his attack long after his victim was rendered defenseless by previous wounds. We have repeatedly held that premeditated murder is among the most serious conduct within Alaska's definition of first-degree murder-and that, in first-degree murder cases, a defendant's premeditation, standing alone, will support a sentence of 99 years' imprisonment. Moreover, even in cases of second-degree murder (e, cases in which the killing was unintended), we have repeatedly upheld sentences in the upper end of the penalty range for defendants who committed gratuitous or otherwise inexplicable acts of extreme violence. It was Hamilton's right not to offer evidence in explanation or mitigation of his conduct. But in the absence of extenuating information, Judge Savell was left with the record as it stood. That record fully supports Judge Savell's decision to impose the maximum sentence for first-degree murder. Given this record, and given Judge Savell's repeated statements that he would not penalize Hamilton for remaining silent, the fact that Hamilton received a sentence of 99 years' imprisonment raises no inference that Judge Savell was surreptitiously punishing Hamilton for failing to explain his conduct. Conclusion The judgement of the superior court is AFFIRMED. . Beauvois, 837 P.2d at 1121 n. 1. . Castle, 999 P.2d at 170-71. . See id. at 175—74. . Id. at 177. . See Whren, 517 U.S. at 813-19, 116 S.Ct. at 1774-77. . AS 28.40.050(a)-(b). . See AS 12.25.030(a)(1) (a police officer may arrest a person without a warrant when the person commits a crime in the officer's presence); AS 12.25.180(a) (a police officer who stops or contacts a person for committing a misdemeanor 'may either arrest them or issue them a citation, at the officer's discretion). . Coleman, 553 P.2d at 46. . Quoting Coleman, 553 P.2d at 46, which in turn was quoting Goss v. State, 390 P.2d 220, 224 (Alaska 1964), overruled on other grounds by Glasgow v. State, 469 P.2d 682 (Alaska 1970). . 837 P.2d at 1121. . 797 P.2d 1219, 1221 (Alaska App.1990). . Silvernail, 777 P.2d at 1171. . See id. . Silvernail, 777 P.2d at 1176 (quoting United States v. Hale, 422 U.S. 171, 176, 95 S.Ct. 2133, 2136, 45 L.Ed.2d 99 (1975)). . Id. at 1176-78. . Quoting Hale, 422 U.S. at 177, 95 S.Ct. at 2137. . See Walker v. State, 652 P.2d 88, 92 (Alaska 1982); Roth v. State, 626 P.2d 583, 585 (Alaska App.1981). . Keogh v. W.R. Grasle, Inc., 816 P.2d 1343, 1349 n. 11 (Alaska 1991). . See Roth, 626 P.2d at 585. . See Hamilton v. State, 771 P.2d 1358, 1360 (Alaska App.1989). . See Lamont v. State, 934 P.2d 774, 777 (Alaska App.1997); Ha v. State, 892 P.2d 184, 190 (Alaska App.1995); see also Snyder v. State, 930 P.2d 1274, 1280 (Alaska 1996). . See AS 11.81.335 ("use of deadly force in defense of self"). . See AS 1141.115(a) & ("heat of passion" resulting from "serious provocation"). . Hilbish, 891 P.2d at 852. . Id. . See AS 12.55.125(a). . See AS 12.55.005; State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970). . Compare Lepley v. State, 807 P.2d 1095, 1101 (Alaska App.1991) (when a defendant asserts the privilege to refuse a psychological evaluation in aid of sentencing, the sentencing judge must not draw an adverse inference from the defendant's assertion of privilege, but the consequence for the defendant is that the judge then assesses the defendant's potential for rehabilitation based on the existing evidence). . See Nelson v. State, 874 P.2d 298, 310 (Alaska App.1994); George v. State, 836 P.2d 960, 963 (Alaska App.1992); Washington v. State, 828 P.2d 172, 174 (Alaska App.1992); Riley v. State, 720 P.2d 951, 952 & n. 1 (Alaska App.1986). . See Monroe v. State, 847 P.2d 84, 92-93 (Alaska App.1993) (upholding a sentence of 60 years' imprisonment); Norris v. State, 857 P.2d 349, 356-58 (Alaska App.1993) (upholding a sentence of 50 years' imprisonment); Page v. State, 657 P.2d 850, 853-55 (Alaska App.1983) (upholding a sentence of 99 years' imprisonment); Faulkenberry v. State, 649 P.2d 951, 956-57 (Alaska App.1982) (upholding a sentence of 60 years' imprisonment); see also the companion cases of Gustafson v. State, 854 P.2d 751, 763-67 (Alaska App.1993), and Cheely v. State, 861 P.2d 1168, 1178-1180 (Alaska App.1993) (upholding, respectively, sentences of 65 and 60 years' imprisonment).

9380148

Michele and Gregory HURST, Appellants, v. VICTORIA PARK SUBDIVISION ADDITION NO. 1 HOMEOWNERS' ASSOCIATION, Appellee

Hurst v. Victoria Park Subdivision Addition No. 1 Homeowners' Ass'n

2002-11-29

No. S-10249

275

280

59 P.3d 275

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.

Michele and Gregory HURST, Appellants, v. VICTORIA PARK SUBDIVISION ADDITION NO. 1 HOMEOWNERS' ASSOCIATION, Appellee.

Michele and Gregory HURST, Appellants, v. VICTORIA PARK SUBDIVISION ADDITION NO. 1 HOMEOWNERS' ASSOCIATION, Appellee. No. S-10249. Supreme Court of Alaska. Nov. 29, 2002. Allan E. Tesche, Russell, Tesche, Wagg, Cooper & Gabbert, Anchorage, for Appellants. Jesse C. Bell, Brena, Bell & Clarkson, P.C., Anchorage, for Appellee. Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

2582

16034

OPINION FABE, Chief Justice. I. INTRODUCTION The Victoria Park Subdivision Homeowners' Association built a short wood fence at the edge of Lot 48, a lot set aside for recreational purposes. Gregory and Michele Hurst, who live on an adjacent lot, sued, claiming that the fence violated a restrictive covenant proscribing "permanent structures" on Lot 48. The trial court granted summary Judgment to the Association on the grounds that the fence comported with the designated purpose of the restrictive covenant and did not prevent the Hursts from using Lot 48. Because the fence does not violate the restriction against "permanent structures" as that term is used in the restrictive covenant, and because there is no factual issue to preclude summary judgment, we affirm. II. FACTS AND PROCEEDINGS A. - Factual History Gregory and Michele Hurst are the owners of Lot 16 of the Victoria Park Subdivision, located at 7701 Canal Street in the Sand Lake area of Anchorage. Their lot borders Lot 48 of the Victoria Park Subdivision. Victoria Park Subdivision Addition Number 1 Homeowners' Association (the Association) is an Alaska nonprofit corporation organized to govern Lots 32 through 56 of the Victoria Park Subdivision Number 1. Lot 48 was set aside for low-intensity recreational purposes and is subject to a restrictive covenant: Lot 48 has been deeded to the non-profit corporation formed as provided in Part E-5, except for the reservations of easements. Lot 48 shall only be used for non-intensive recreational and park purposes such as an informal play/picnic area, limited landing for small, manually transportable boats and limited walkway access, while at all times allowing for maximum protection of natural vegetation. Only pedestrian access shall be allowed. No motorized vehicles or aircraft shall be permitted. No permanent structures except incidental recreational structures such as canoe/boat racks, docks, a gazebo, picnic tables, barbecues, etc., will be allowed. Signs will be permitted to help enforce proper use of Lot 48. The non-profit corporation formed pursuant to E-5 shall maintain, preserve, improve and control the interest in such lot for the use and benefit of all owners in the Victoria Park Subdivision, Addition No. 1, Lots 32 through 56, and for the use and benefit of the owners of Lots 1 through 31, Victoria Park Subdivision, provided the owners of Lots 1 through 31, Victoria Park Subdivision, pay a pro rata share of the costs of Lot 48. The Hursts are not members of the Association, but they do pay a pro rata share of the costs of Lot 48 as provided for in the covenant and are therefore entitled to the use and enjoyment of the lot. The Association experienced considerable difficulties controlling access to and use of Lot 48. A stolen automobile was abandoned on Lot 48, items such as boats and a wind surf board were disturbed, and "No Trespassing" signs were removed without permission. There were also incidents of trespassing. Previous owners of the Hursts' lot, Lot 16, had treated Lot 48 as their "private domain" by filling in its wetlands with excavation dirt, mowing the grass, and harassing other Association members who were attempting to use Lot 48. One previous owner of Lot 16 installed flower beds extending twenty feet onto Lot 48. The owner of Lot 17, next to the Hursts, had problems with trespassers crossing his lot to gain access to Lot 43, so he erected a three-foot-high, split-rail wood fence on the boundary between Lots 17 and 48. On December 7, 1997, the Association voted to erect a fence around the remaining open side of Lot 48. The Hursts purchased Lot 16 in November 1997. On September 14, 1998, the Association informed the Hursts that it intended to construct a low, split-rail fence along the border between Lot 48 and Lot 16. The fence was constructed in the same style and material as the existing fence built by the owner of Lot 17, which also borders Lot 48. It is a three-foot-high, split-rail fence made of wood. It is secured by wood posts inserted approximately two feet in the ground. B. Procedural History On September 24, 1998, the Hursts filed a complaint alleging that the fence violated the terms of the restrictive covenant and asking for declaratory judgment, damages, injunc-tive relief, and attorney's fees. The Hursts and the Association both moved for summary judgment. On April 11, 2001, Superior Court Judge Peter A. Michalski concluded that the wood fence did not violate the prohibition against permanent structures, considering the covenant's purpose to set aside land for "non-intensive recreational and park purposes . while at all times allowing for maximum protection of natural vegetation." Final judgment was entered on June 6, 2001. The Hursts appeal. III. STANDARD OF REVIEW We uphold summary judgment only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The interpretation of a covenant is a question of law to which we apply our independent judgment. Findings of fact will not be disturbed unless they are clearly erroneous. IV. DISCUSSION A. The Fence Is Not Prohibited by the Restrictive Covenant. The issue before us in this case is whether the split-rail wood fence on Lot 48 violates the terms of the restrictive covenant. Both parties have focused on whether other courts have considered fences to be permanent structures in other contexts. Indeed, the Hursts' primary argument is that a fence is a permanent structure, and that it therefore violates the terms of the restrictive covenant. The Hursts cite Thomas v. Depaoli, where a Missouri appellate court concluded that "[the majority rule appears to be that the word 'building' in a restrictive covenant intended to restrain obstruction of view will include any structure having that effect, including a fence." The Hursts also rely on Freedman v. Kittle, where a New York appellate court determined that a fence violated a property's restrictive covenant that prohibited structures "thereon," reasoning that use of the term "thereon" evinced an intent to have views remain unobstructed. However, both of these cases focused on the intent of the parties drafting the covenants to prevent obstruction of views. In contrast, the covenant at issue in this case was not drafted to preserve views for adjacent lot owners, but to maintain Lot 48 for "non-intensive recreational and park purposes." We are thus guided in our analysis by the specific language and purpose of the covenant restricting Lot 48. Whether a fence falls within the operation of a restrictive covenant prohibiting "permanent structures" depends upon the purpose of the restriction and the nature of the fence. In keeping with this basic principle, the Association suggests two questions that must be answered to determine whether the fence is a structure prohibited by the covenant: what was the purpose of setting aside Lot 48 and does the fence contravene that purpose? The Association maintains that Lot 48 was set aside for non-intensive recreational purposes and was meant to have "limited walkway access" in order to protect the natural vegetation. Since the fence furthers these purposes, the Association asserts, it is not a "structure" under the terms of the covenant. In general, we agree. A three-foot-high, split-rail wood fence does not interfere with or materially obstruct the intended use of the land for non-intensive recreational purposes. If Lot 48 were completely surrounded by a high, impenetrable fence, it could interfere with the intended use of the land, but Lot 48 is accessible by two common entrances, one of which is right next to the Hursts' property. Interpretation of restrictive covenants is guided by several canons. Where the language of the covenant is not ambiguous, the plain meaning governs. Where the language of the covenant is ambiguous, judicial construction is necessary. Covenants are construed within their own four corners. They are also construed to effectuate the intent of the parties. Onee the intentions of the parties to the covenant are known, their intention serves to limit the scope and effect of the restriction. Because restrictions are in derogation of the common law, they should not be extended by implication, and doubts should be resolved in favor of the free use of land. Several aspects of the covenant are relevant to our inquiry. First, the covenant prohibits permanent structures and allows "incidental recreational structures" by way of a non-exhaustive list, Since a fence is not for recreation, it cannot be included in the list of "incidental recreational structures" without stretching the meaning of that language. However, the covenant also specifically per mits signs "to help enforce proper use of Lot 48," While only Part D of the covenant actually restricts Lot 43, other provisions of the covenant shed light on the intended meaning of "permanent structure." For example, Part B-8 provides that "[nlo structure of a temporary character (trailer, basement, tent, shack, garage, barn or other outbuilding) shall be used on any lot at any time as a residence." The Association points out that the examples of structures in this section are all "buildings of a size sufficient to house a resident." Part C-1 of the covenant instructs that "no building, structure, fence or other improvement shall be constructed, placed, erected, re-painted, altered or made without the express approval of the Architece-tural Control Committee." The Association argues that "[in this section, 'structure' does not include a fence because 'fence' is listed separately from 'structure.' " Based upon these uses of the term in other parts of the covenant, the trial court concluded that the covenant drafters intended a narrower use of the term "structure." We agree. When considered in the context of the whole document, the term "structure" does not include a fence. Moreover, the purpose of the covenant is plain: "Lot 48 shall only be used for non-intensive recreational and park purposes such as an informal play/pienic area, limited landing for small, manually transportable boats and limited walkway access, while at all times allowing for maximum protection of natural vegetation." Thus, the intent of the covenant was to maintain Lot 48 for "non-intensive recreational and park purposes" and the fence is consistent with that purpose. Indeed, "limited walkway access" is entirely consistent with construction of a low fence. The fence may interfere with the Hursts' previously unobstructed view of the lake and the "illusion of space and openness," but the covenant was drafted to protect Lot 48, not the view from Lot 16. Therefore, we conclude that the low, split-rail fence on Lot 48 is not a "permanent structure" within the meaning of this covenant. The Association also urges this court to consider the duties imposed upon the Association by the covenant to "maintain, preserve, improve and control the interest in such Lot for the use and benefit of all owners" in the Victoria Park Subdivision. The construction of the fence preserves and controls the use of the lot for the benefit of the owners in accordance with that duty. Indeed, it appears that concern for this duty was the reason the Association constructed the fence-the Association was attempting to maintain and preserve the lot in light of difficulties with previous owners of Lot 16, as well as random trespassers. In addition, the Association built the fence to demarcate clearly Lot 48's boundary line as other landowners had attempted adverse possession by extending their gardens and flower beds well onto Lot 43. Thus, the fence comports with the general, affirmative duty that the covenant imposes upon the Association. B. The Hursts' Argument that the Fence Prevents Reasonable Access to Lot 43 Will Not Be Considered. In their reply brief, the Hursts argue that the fence prevents reasonable access to Lot 43. They assert they must now "find a public easement somewhere else" or "literally climb over the [Association's] fence." This argument was raised for the first time in reply and was not made in the trial court. Therefore it is not properly before us, and we decline to consider it. v. CONCLUSION We conclude that the fence does not violate the restrictive covenant's prohibition of permanent structures on Lot 48. In addition, the fence properly effectuates the affirmative duty imposed by the covenant on the Association to maintain and protect Lot 48. The decision of the trial court is AFFIRMED. . The complaint was later amended to add a second count, but no issue involving that count is before this court. . Stadnicky v. Southpark Terrace Homeowner's Ass'n, 939 P.2d 403, 404 (Alaska 1997). . Kohl v. Legoullon, 936 P.2d 514, 516 n. 1 (Alaska 1997). . Id. . The Association responds by suggesting that a fence is not permanent where its posts are not supported by a cement foundation. Town of Ogden Dunes v. Wildermuth, 142 Ind.App. 379, 235 N.E.2d 73, 75 (1968). We find this approach unavailing and decline to employ it. The Hursts also point out that fences are considered permanent structures in the Anchorage building and zoning codes. Furthermore, they suggest that this court's decision in Persson-Mokvist v. Anderson allows reference to state and local regulations and building codes for interpretation of the covenant at issue. 942 P.2d 1154 (Alaska 1997). - Persson-Mokvist concerned state land that was subdivided into five-acre lots and had a plat note that stated, "[this subdivision is for residential/recreational use." Id. at 1155. In order to discern the meaning of "residential use" and "recreational use," we looked to definitions of these terms "in state land disposal and planning regulations in existence when the subdivision was created." Id. at 1156. However, Persson-Mokvist did not involve a restrictive covenant, and the court consequently had no point of reference to determine the meaning of the language or the intent of the parties. Pers-son-Mokvist thus lacks the operative legal instrument central to this case and is therefore of little use. . 778 S.W.2d 745, 749 (Mo.App.1989). . 262 A.D.2d 909, 693 N.Y.S.2d 651, 653 (1999). . 20 Am.Jur.2d Covenants, Conditions, and Restrictions § 190, 224 (1995). . Gordon v. Brown, 836 P.2d 354, 357 (Alaska 1992); Lamoreux v. Langlotz, 757 P.2d 584, 587 (Alaska 1988); 20 Am.Jur.2d Covenants, Conditions, and Restrictions § 171. . 20 Am.Jur.2d Covenants, Conditions, and Restrictions § 171. . See Lamoreux, 757 P.2d at 587. . Id.; 20 Am.Jur.2d Covenants, Conditions, and Restrictions § 16, 171. . 20 Am.Jur.2d Covenants, Conditions, and Restrictions § 171. . Lamoreux, 757 P.2d at 587; see also Kalenka v. Taylor, 896 P.2d 222, 226 (Alaska 1995); Lenhoff v. Birch Bay Real Estate, Inc., 22 Wash.App. 70, 587 P.2d 1087, 1089 (1978). . The covenant provides that "Lot Forty-three (43) shall be subject only to the provisions of Part D herein." The parties agree that although Lot 43 is only restricted by Part D, the meaning of the terms in Part D should be considered in the context of how those terms are used in other parts of the same document; this accords with the covenant canons of construction. 20 Am. Jur.2d Covenants, Conditions, and Restrictions § 171. . Arguments raised for the first time in a reply brief will not be considered. Sumner v. Eagle Nest Hotel, 894 P.2d 628, 632 (Alaska 1995). Moreover, arguments made for the first time on appeal will not be considered. Hoffman Constr. Co. of Alaska v. U.S. Fabrication & Erection, Inc., 32 P.3d 346, 355 (Alaska 2001).

10589627

Application of Thomas B. PAYNE for Admission to the Alaska Bar Association

In re Payne

1967-07-27

No. 792

566

571

430 P.2d 566

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.

Application of Thomas B. PAYNE for Admission to the Alaska Bar Association.

Application of Thomas B. PAYNE for Admission to the Alaska Bar Association. No. 792. Supreme Court of Alaska. July 27, 1967. George F. Boney, of Burr, Boney & Pease, Anchorage, for petitioner. John E. Havelock, Anchorage, for Alaska Bar Ass’n. Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.

2751

16617

RABINOWITZ, Justice. This case comes before us on Thomas B. Payne's petition for review of a decision of the Board of Governors of the Alaska Bar Association which held that petitioner was ineligible for admission without examination. We are of the opinion that petitioner's showing before the Board demonstrated that he was eligible for admission by reciprocity to practice law in Alaska. We, therefore, reverse the decision of the Board of Governors. Reciprocity, as a basis for eligibility, is established by AS 08.08.140 of the Alaska Integrated Bar Act. This statute provides that: An attorney in good standing in the bar of another state which admits members of the Alaska Bar to the practice of law shall be admitted without examination and otherwise upon substantially the same terms and conditions as are fixed in the jurisdiction from which he has come for the admission of attorneys from this state. As a prerequisite to admission to the Alaska Bar the board shall require an attorney to take and pass an examination, unless the applicant (1) has passed a state bar examination, (2) has engaged in the active practice of law for at least five out of the previous six years before filing the application, excluding time spent in the military service of the United States, (3) is a graduate of a law school accredited by the American Bar Association or has been engaged in the active practice of the law for at least 10 years, and (4) meets the character requirements established by the board. The crux of the controversy in this appeal concerns whether petitioner proved that he had been "engaged in the active practice of law for at least five out of the previous six years" prior to the filing of his application for admittance to the Bar of Alaska. The record discloses that petitioner was born in 1910; graduated from Gonzaga High School; and subsequently received his B.A. from Gonzaga University in Spokane, Washington in 1933. Petitioner attended Gonzaga University Law School from 1933 until 1937 and was awarded an LL.B. in 1937. After successfully completing a written bar examination, petitioner was admitted to the practice of law in Idaho on May 28, 1951. From the date of his admission until January 1962, petitioner was engaged in the private practice of law at Wallace and Cottonwood, Idaho. From January 3, 1962, until the time his application came before the Board of Governors, petitioner had been employed on a full-time basis by the U. S. Army Corps of Engineers. For the first ten months of this employment, petitioner worked for the Corps of Engineers at Great Falls, Montana. From October 1963 until the present, petitioner has been employed by the Corps of Engineers at Elmendorf Air Force Base in Alaska. In the conclusions of law which the Board of Governors filed in this matter, it was determined, in part, that petitioner had "not engaged in the active practice of law for five out of the previous six years" (i. e., since 1961). In reaching this conclusion, the Board further determined that petitioner had failed to prove that he had engaged in the active practice of law during his employment by the Corps of Engineers. Also of significance to this case is the fact that in 1965 our legislature amended the Alaska Integrated Bar Act by defining the phrase "active practice of the law." Subsection (3) of AS 08.08.245 defined "active practice of the law" as including' the rendering legal services to an agency, branch, or department of a civil government in the United States or a state or territory of the United States, in an elective, appointive or employed capacity The Board of Governors does not dispute that the services rendered by petitioner to the Corps of Engineers during the period in question were rendered "to an agency, branch or department of a civil government in the United States in an employed capacity." On the other hand, the Board did conclude that the nature of the work performed by petitioner "for the U. S. Corps of Engineers does not constitute 'rendering legal services' within the meaning of AS 08.08.245(3)." And, as indicated previously, our study of the record has convinced us that this latter conclusion of law by the Board is erroneous. Application of Babcock involved review proceedings from the Board of Governors' denial of admission to Babcock by reciprocity. In that case we said in part: Since the Board of Governors has not defined the term 'practice of law' by rule or otherwise, and since the term 'active practice of law' as used in section 9(a) (2) and (3) of the Alaska Integrated Bar Act is not so plain as to leave nothing for interpretation, we find it necessary to resort to the rules of statutory construction in order to determine the scope and intent of the section in question. After our decision in Application of Babcock was rendered, the legislature enacted AS 08.08.245 which contained five separate definitions of "active practice of the law." The primary thrust of the Board of Governors' position in this case is that the legal services performed by petitioner for the Corps of Engineers were too narrow- in scope and frequency to constitute "active practice of the law." We believe that the legislature's enactment of AS 08.08.245(3) after our decision in Application of Babcock is, in part, controlling here. Under the principle articulated in Application of Houston, we have determined that the criteria established by AS 08.08.245(3) is an acceptable standard for determination of eligibility for admission to the Bar of Alaska. Taking a somewhat parallel approach to that used in Application of Babcock} .we note that the term "legal services" as used in AS 08.08.245(3) "is not so plain as to leave nothing for interpretation". Our construction of this term differs from that which the Board of Governors urges us to adopt. In short, in order to qualify as "active practice of the law" under AS 08.08.140, the character of a petitioner's legal services rendered to a government agency in his employed capacity, under AS 08.08.245(3), does not require that the totality of such services exclude the rendering of any other type of services. We are of the opinion, and so hold, that a reasonable construction of AS 08.-08.245(3) is one that requires an applicant to have devoted a substantial portion of his time and energies to the rendering of legal services (extensive in scope) in his employed capacity to the government agency. Here petitioner claims that in the course of his employment by the U. S. Army Corps of Engineers, 65 percent of the services which he rendered, during the period of time in question, were legal services. Our examination of the record has convinced us that petitioner's proof demonstrates he met the burden of showing that a substantial portion of the duties which he performed for the Corps of Engineers consisted of the rendering of legal services. We are of the further view that petitioner's proof discloses that the scope of the legal services which he performed was not so "narrow" as to be disqualified from constituting the rendering of "legal services" under AS 08.08.245(3) or "active practice of law" under the reciprocity provisions of AS 08.08.140 In his petition for review, which was filed in this court, petitioner asserts that: In the performance of [his] duties as an attorney for the U. S. Army, Corps of Engineers, [the petitioner is] engaged in the general practice of law handling contract claims, torts claims, real estate transactions, condemnation cases, quiet title proceedings, and numerous other legal problems of a general and advisory nature. Review of the record has led us to the conclusion that petitioner's proof sustains these assertions. Petitioner's job description, which was filed with the Board, discloses the varied scope and substantial extent of the legal services that petitioner was required to render to the Corps of Engineers in his job position as "Attorney Adviser (Real Property)." In addition to the foregoing, we are of the opinion that the numerous exhibits filed by petitioner before the Board show that he was rendering legal services to the Corps of Engineers during the period in question. On the basis of the entire record in this case, we hold that petitioner is entitled to admission to the Alaska Bar Association under the reciprocity provisions of AS 08.- 08.140. The Clerk of the Supreme Court of Alaska is therefore directed to prepare a certificate of admission for delivery to petitioner upon his taking the required oath. . Since we have concluded that petitioner has established his eligibility for admission through reciprocity, we consider it unnecessary to discuss any issues pertaining to the Board's conclusion that petitioner was ineligible under the provisions of AS 08.08.130(6). Subsequent to the filing of this action, AS 08.08.130 was amended and subsection (6) was deleted. SLA 1967, ch. 135, § 1. . Accord, Alaska Bar Bules, Bule II, § 2. . At the time oral arguments were heard in this court, petitioner was still employed by the U.S. Army Corps of Engineers. . AS 08.08.245 was enacted into law by virtue of the provisions of SLA 1965, ch. 47, § 3. In 1967 the legislature repealed AS 08.08.245 (SLA 1967, ch. 135, § 3). . In its conclusion of law number 5, the Board states: The services rendered by applicant in the course of bis employment are rendered to an agency, branch or department of a civil government in the United States in an employed capacity. . 387 P.2d 694 (Alaska 1963). . Id. at 696 (footnote omitted). In Bab-cock we also said: We do not mean by what we have just said that the legislature or the Board of Governors might not have expressly declared that time spent in the military service in the performance of work of a legal nature should constitute the active practice of law and thus count toward the ten years of law practice made the equivalent of graduation from an accredited law school by the proviso contained in section 9(a) (3). But neither the legislature nor the Board of Governors made such an express declaration. Id. at 698 (footnote omitted). . After the passage of AS 08.08.245 (and in particular subsection (4) thereof), the Babcock matter was brought before us for the second time. In Application of Babcock (Supreme Ct.), Alaska L.J., Vol. 4, No. 6, at 87 (June 1966), petitioner's application for admission, as an attorney at law, to practice in the courts of the State of Alaska and to membership in the Alaska Bar Association was granted. In Application of Houston, 378 P.2d 644, 645 (Alaska 1963) (footnote omitted), this court said in part: [W]e recognize that the legislature may enact laws governing admission to practice law but hold that it may not require this court to admit on standards other than those accepted or established by the court .The position of the Board of Governors in its brief is that: [T]he work experience of the applicant during the past five years has been so narrow in scope that it would be a disservice to the community to allow him to engage in private practice without first taking and passing the qualifying examination regularly given to applicants for admission. * [T]he active practice of law, whether the rendering of legal services to a government agency or otherwise, must include work which is the practice of law on a full-time basis and not mixed work of a legal and non-legal nature. The Board also contends that performing legal duties for 65% of the time is not enough to constitute the 'active practice of law' and on this ground alone the application may be denied. . 378 P.2d 644, 645 (Alaska 1963). . 387 P.2d 694, 696 (Alaska 1963). . Petitioner's legal services cannot be characterized as sparodic or desultory. Compare Appeal of Kogers, 192 Md. 737, 83 A.2d 517 (1946), where the court said: The information before us shows that his practice during that period was more or less of a desultory nature consisting of a few cases, none of which apparently were tried in Court, and an occasional consultation, and some debt collections. See State ex rel. Laughlin v. Washington State Bar Ass'n, 26 Wash.2d 914, 176 P.2d 301, 309 (1947), where the court said: 'An "actual practice" requires, and must command, a substantial portion of the working time of a practitioner.' . Petition of Jackson, 95 R.I. 393, 187 A. 2d 536, 539 (1963). In Auerbacher v. Wood, 142 N.J.Eq. 484, 59 A.2d 863 (1948), the court said: What constitutes the practice of law does not lend itself to precise and all-inclusive definition. There is no definite formula which automatically classifies every case. See Application of Dodd, 132 Conn. 237, 43 A.2d 224, 227 (1945). . In his application for admission to the Alaska Bar Association, petitioner de scribed the nature and extent of his duties in the following manner: Advisor to the Real Estate Division in all types of real property law and I do additional work for the Office of Counsel which embraces all phases of law. Petitioner, in the same application, further described Ms duties as being those connected With District Engineer as General Attorney, U. S. Army. I am adviser to the real estate branch of District Engineer, Alaska, and do additional work for the Office of Counsel which takes in all phases of law. . Before the Board, petitioner submitted exhibits in support of his application. Petitioner also submitted his own affidavit in which he averred in part: That he is employed as an attorney for the ti. S. Army Corps of Engineers in Anchorage, Alaska. * ⅜ [T]hat his legal duties entail, for the most part, those matters which would come before an attorney in the private practice of law, that is, legal decision based upon law and precedent, the drawing of various legal documents in accordance with the exiting laws and the facts surrounding the conditions, the preparation of pleadings for trial, and assisting the United States District Attorney, when called upon, in preparation and trials of actions. . In part, tMs exhibit shows that petitioner is responsible for the acquisition of land, easements, rights of way, and other interest in land by purchase, lease, condemnation, exchange, donation, or transfer from other Government agencies . Conducts the closing of direct purchase transactions, including preparation of closing documents . Prepares declarations of taking and condemnation assemblies. Takes necessary action in connection with real estate phases of the abandonment, vacation or relocation of highways, railroads, other public utilities ⅜. Performs legal services for all functional phases of the Real Estate Division activities, and advises the Division Chief in legal matters. ⅜ Prepares lease instruments and reviews leases as to legality and compliance with regulations . Issues legal opinions or decisions on controversial problems. Petitioner's job description contained the following statement: (NOTE: The Chief of Real Estate Division states a minimum of 65% of incumbent's time will be spent performing the professional legal work required in this assignment. TMs is the sole Attorney position assigned to Real Estate Division, and all legal matters pertinent to real estate are a delegated function of this Division. The Division Chief has also determined professional legal training and experience (and admission to the bar) is the prime consideration for selection to satisfactorily perform the duties of subject position.) .In a statement filed before the Board, petitioner asserted that in addition to the character of the work set out in his job description, he had worked on appeals to the Board of Contract Appeals on claims involving contracts. * ⅜ * I have handled a reasonable amount of the legal work brought about by the earthquake, this involved legal work and opinions on various phases of the law and has involved many areas, people and cities throughout the State of Alaska. Immediately after the earthquake I was transferred to the Emergency Office in downtown Anchorage as legal adviser to the Commanding Officer. In this work I advised him on all legal problems. In addition to this work I set up the legal procedures for the emergency work in Alaska concerning cities, various State and Federal Agencies and individuals.

11754113

Timothy L. GOSSMAN, Appellant, v. GREATLAND DIRECTIONAL DRILLING, INC., an Alaskan Corporation, Appellee

Gossman v. Greatland Directional Drilling, Inc.

1999-02-05

No. S-8310

93

99

973 P.2d 93

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.

Timothy L. GOSSMAN, Appellant, v. GREATLAND DIRECTIONAL DRILLING, INC., an Alaskan Corporation, Appellee.

Timothy L. GOSSMAN, Appellant, v. GREATLAND DIRECTIONAL DRILLING, INC., an Alaskan Corporation, Appellee. No. S-8310. Supreme Court of Alaska. Feb. 5, 1999. Steven D. Smith, Law Offices of Steven D. Smith, P.C., Anchorage, for Appellant. James M. Seedorf and Kimberlee A. Colbo, Hughes, Thorsness, Powell, Huddleston & Bauman, L.L.C., Anchorage, for Anadrill, a Division of Schlumberger Technology Corporation, successor in interest by asset acquisition to Appellee. Before MATTHEWS, Chief Justice, COMPTON, EASTAUGH, FABE, and BRYNER, Justices.

3595

23305

OPINION FABE, Justice. I. INTRODUCTION In April 1995 Timothy Gossman was injured while working at a storage facility formerly owned by Greatland Directional Drilling, Inc. Gossman sued Greatland for negligence. Greatland, however, had voluntarily dissolved as a corporation in 1993. The superior court dismissed the action, ruling that AS 10.06.678 only permitted a suit against a dissolved corporation when the liability arose prior to dissolution. Because we conclude that AS 10.06.678 permits a suit against a dissolved corporation for an action that accrues following dissolution, we reverse. II. FACTS AND PROCEEDINGS In August 1993 Anadrill, a division of Schlumberger Technology Corporation, acquired almost all of Greatland's assets and assumed Greatland Directional Drilling, Inc.'s corporate interests and liabilities. Greatland then voluntarily dissolved as a corporation and received a certificate of dissolution on October 19,1993. As part of its former operations, Greatland stored drill bits in a company-owned facility. In 1984 one of Greatland's employees modified the rack on which the drill bits were kept but allegedly forgot to remount a device that was designed to prevent the drill bits from rolling off the rack. Eleven years later, Gossman, who worked for Anadrill, was injured at the facility when an eight-hundred-pound drill bit fell from the shelf on which it was stored and crushed Gossman's ankle and leg. In July 1996 Gossman sued Greatland for negligence. Anadrill moved to dismiss on the ground that AS 10.06.678 does not provide for such a suit against a dissolved corporation. The superior court heard oral argu ment in April 1997 and dismissed the case. Interpreting AS 10.06.678, which sets forth the limited circumstances in which a corporation may exist after dissolution, the superior court found: Permitting suit on liability which did not exist prior to or at the time of the dissolution is contrary to an orderly cessation of a corporate entity. Consequently . [the statute] permits suit against a dissolved corporation only where the liability was incurred prior to dissolution. The court then denied Gossman's motion for reconsideration. Gossman appeals. III. DISCUSSION A. Standard of Review This appeal concerns the proper interpretation of Alaska's corporate survival statute. The interpretation of a statute presents a question of law, which we review de novo. We will "adopt the rule of law that is most persuasive in light of precedent, reason, and policy." B. AS 10.06.678 Permits Gossman to Sue Greatland. At common law, corporate dissolution abated all litigation to which the corporation was a party. But a survival statute may extend the life of a corporation for litigation purposes. The Alaska Legislature expressly provided such a survival statute but has amended it substantially since its original enactment. The original survival statute, AS 10.05.594, permitted claims brought within two years after dissolution: The dissolution of a corporation . does not take away or impair a remedy available to or against the corporation, its directors, officers, or shareholders, for a right or claim existing, or a liability incurred, prior to dissolution if an action or other proceeding is commenced within two years after the date of dissolution. The action or proceeding by or against the corporation may be prosecuted or defend[ed] by the corporation in its corporate name.[ ] In 1988 the legislature replaced AS 10.05.594 with AS 10.06.678: Continued existence of dissolved corporations; purposes; abatement of actions; distribution of omitted assets, (a) A corporation that is dissolved voluntarily or involuntarily continues to exist for the purpose of winding up its affairs, defending actions against it, and enabling it to collect and discharge obligations, dispose of and convey its property, and collect and divide its assets. A dissolved corporation does not continue to exist for the purpose of continuing business except so far as necessary for winding up the business. (b) An action or proceeding to which the corporation is a party does not abate by the dissolution of the corporation or by reason of proceedings for winding up and dissolution of the corporation. A corporation that is dissolved voluntarily or involuntarily may not commence a court action, except [to recover improper distributions made to shareholders during the wind-up process]. (Emphases added.) We have not had an occasion to interpret AS 10.06.678. Because of the pronounced change in the language of the 1988 survival statute, however, two important questions of interpretation arise in this case: (1) whether a claim must have existed prior to dissolution, and (2) whether a time limit exists for commencing an action. 1. AS 10.06.678 permits actions arising after a corporation has dissolved. We must decide whether the legislature intended AS 10.06.678 to allow suits against dissolved corporations for actions accruing after dissolution. Although we have never had the opportunity to interpret Alaska's original survival statute on this point, the commonly held view was that such statutes only permitted pre-dissolution tort suits. But the 1988 amendments to Alaska's survival statute eliminated the specific language that a claim must exist prior to dissolution. AS 10.06.678 simply states: "A corporation that is dissolved . continues to exist for the purpose of . defending actions against it_" While we no longer apply a rigid plain meaning rule of statutory construction, "[w]here a statute's meaning appears clear and unambiguous . the party asserting a different meaning bears a correspondingly heavy burden of demonstrating contrary legislative intent." Greatland contends that the legislature's removal of the limiting language signified a return to the common law rule, under which neither pending nor future actions could be maintained or brought against a dissolved corporation. Gossman argues that because AS 10.06.678 no longer contains such language, a plaintiff can sue a dissolved corporation at any time, regardless of when the action accrued. We address each argument in turn. Greatland first contends that the legislature intended to eliminate completely the ability to sue a dissolved corporation. The plain text of the statute contradicts this interpretation. Alaska Statute 10.06.678(a) expressly permits a corporation to defend actions against it. Subsection (b) also provides that "[a]n action or proceeding to which a corporation is a party does not abate by dissolution of the corporation." Thus, the legislature apparently did not intend to revert back to the common law bar to all actions against a dissolved corporation. Greatland alternatively argues that AS 10.06.678 limits actions against dissolved corporations to those that have accrued prior to dissolution. Although the legislative history of AS 10.06.678 is somewhat scarce, the House and Senate Judiciary Committees did discuss the development of Alaska's survival statute and the considerations that influenced the 1988 amendments. The legislature enacted the Alaska Corporations Code in 1957 and modeled it after the Oregon Code, which the Oregon legislature took verbatim from the Model Business Corporation Act of 1950 (MBCA). Both the Oregon and Alaska legislatures thus based their survival statutes on MBCA § 98 (1951), later renumbered as MBCA § 105 (1969). Until 1984, courts typically interpreted MBCA § 105 as only allowing suits against corporations for actions arising prior to dissolution. But in 1984 the MBCA was revised. When revamping § 105, the revisors remarked that "[e]arlier versions of the Model Act did not recognize the serious problem created by possible claims that might arise long after the dissolution process was completed ." As a result, revised MBCA § 14.05, replacing § 105, states that corporate dissolution does not "prevent commencement of a proceeding by or against the corporation in its corporate name" or "abate or suspend a proceeding pending by or against the corporation...." The Alaska Legislature expressly considered these revisions to the MBCA when amending Alaska's survival statute. For instance, in a letter to Senator Bettye Fahren-kamp, the drafting committee stated that "[t]he initial and final drafts of the [revised MBCA] were carefully reviewed, as well as comments of its reporter" and that HB 322 "continued the strong influence of the original Model Act . but is now heavily augmented by the work product of the drafters of the [revised MBCA]." Additionally, both the House and Senate Judiciary Committee Files contain working papers that provide a section-by-section analysis of HB 322 and a comparison between the house bill, the old Alaska Business Code, the MBCA, the revised MBCA, as well as similar statutes in Oregon, California, Delaware, New York, and Washington. The official commentary to the proposed 1988 amendment of AS 10.06.678 also noted that "RMBCA 14.05(b) contains similar provisions continuing corporate existence." Thus, the legislative history supports an interpretation of AS 10.06.678 that permits actions arising after dissolution to be brought against the dissolved corporation. Next, we look to similar statutes of other jurisdictions, as well as the cases analyzing and applying them, in our process of statutory interpretation. Several states, like Alaska, do not specify when an action against a dissolved corporation must arise or be brought. Only California, however, uses language identical to Alaska's. California's survival statute states that a dissolved corporation exists "for the purpose of . prosecuting and defending actions by or against it." Therefore, we look to California's interpretation of its statute for guidance. In Penasquitos, Inc. v. Superior Court (Barbee), the California Supreme Court answered the question that is now before us. Penasquitos involved homeowners who sued a dissolved corporation that had improperly graded their housing lots. As in the present appeal, the plaintiffs did not discover the basis for their cause of action until after the corporation had dissolved. Based on the reasoning of the revisors of the MBCA, and a number of older cases interpreting other jurisdictions' survival statutes, the court held that its statute permitted claims accruing after dissolution against a dissolved corporation. The court explained: We perceive nothing unreasonable or improbable in a construction that permits enforcement of postdissolution claims against dissolved . corporations but not against their shareholders. Deciding what actions may be asserted against- dissolved corporations requires a balancing of the interest in compensating just claims against the interest in finality and repose for dissolved corporations. But the interest in repose consists largely, if not entirely, in .the shareholders' interest in the prompt distribution and secure possession of the corporation's remaining assets. Once that interest has been protected, it is difficult to discern any other interest of sufficient weight to justify barring a potentially meritorious cause of action asserted within the relevant limitations period.[ ] After consideration of the legislative history and the persuasive reasoning of the Pe-nasquitos court, we conclude that AS 10.06.678 allows a plaintiff to sue a dissolved corporation on a cause of action that arises after dissolution. This interpretation also addresses any policy concern that a corporation could avoid known potential liability by arranging for its convenient death. With the enactment of AS 10.06.678, the Alaska Legislature eliminated any incentive for corporations to attempt such manipulations. . 2. AS 10.06.678 Does Not Provide a Statute of Limitations. The second issue that we must address is whether AS 10.06.678 provides any limitations period within which claims against a dissolved corporation must be brought. The 1988 amendments to AS 10.06.678 explicitly deleted the two-year limitations period that existed under AS 10.05.594. The official comment on AS 10.06.678 also expresses the legislature's intent that a dissolved corporation continue to exist "[flor an indefinite period of time" in which to wind up and defend actions against it. Moreover, as discussed above, the legislature considered the provisions of the RMBCA, noting that AS 10.06.678 is similar to RMBCA 14.05(b). Section 14.05, alone, leaves open the possibility that a corporation might be sued for an indefinite period of time after dissolution. To address such concerns, the revisors of RMBCA created § 14.06 and 14.07. These sections establish an elective procedure whereby corporations may provide notice to potential claimants that dissolution is to occur and that known and unknown claims must be brought within a certain number of years, usually five. Approximately thirty states adopted some version of RMBCA § 14.05-14.07 — many of them incorporating these sections verbatim. But the drafters of AS 10.06.678 chose not to include the limiting sections of the RMBCA. This omission and the legislative comment imply that the Alaska Legislature intended to allow suits against dissolved corporations for an indefinite time. Greatland argues that such an interpretation will "eviscerate the dissolution procedures" by making it impossible for a corporation to plan for "such a vague and amorphous possibility." But we observe, as did the court in Penasquitos, that the interest in "finality and repose for a dissolved corporation" consists primarily in the shareholders' interest in the prompt distribution and secure possession of the corporation's remaining assets. Allowing post-dissolution claims will not affect the shareholders' interest because distribution occurs before dissolution. In fact, to facilitate this distribution, Alaska law requires a corporation to provide for its known liability before voluntary dissolution, either by purchasing liability insurance, setting aside assets, or having a successor assume its liabilities, as Greatland did here. Moreover, if even a corporation has set aside assets but too much time has lapsed, bringing suit against a dissolved corporation in most cases will often be a pointless exercise, because the corporation will have no assets with which to satisfy a judgment against it. Most importantly, our legislature has made a policy choice to permit a dissolved corporation to exist for an indefinite period of time in which it may be sued for actions, regardless of when such actions arise. We defer to its judgment. IV. CONCLUSION We conclude that AS 10.06.678 permits a suit against a dissolved corporation even when the action accrues after dissolution. We further hold that § 678 does not impose a statute of limitations on such actions. We therefore REVERSE the superior court's dismissal and REMAND for further proceedings. . See Aetna Cas. & Sur. Co. v. Marion Equip. Co., 894 P.2d 664, 666 (Alaska 1995) (citation omitted). . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). .See Penasquitos, Inc. v. Superior Court (Barbee), 53 Cal.3d 1180, 283 Cal.Rptr. 135, 812 P.2d 154, 156 (1991) (cumulating authority). . See, e.g., Hood Bros. Partners, L.P. v. USCO Distrib. Servs., Inc., 140 F.3d 1386, 1387-88 (11th Cir.1998). . Former AS 10.05.594 (emphases added). . Seech. 166, § 6, SLA 1988. . See Chadwick v. Air Reduction Co., 239 F.Supp. 247, 250 (N.D.Ohio 1965); Green v. Oilwell, Div. of U.S. Steel Corp., 767 P.2d 1348, 1350-51 n. 1 (Okla.1989); 3 Model Bus. Corp. Act Annotated [hereinafter MBCA Annotated ] § 14.07 annot. at 14-66, 67 (3d ed. Supp.1996). . AS 10.06.678(a). . University of Alaska v. Tumeo, 933 P.2d 1147, 1152 (Alaska 1997) (citations omitted). . Legislative committee reports are useful in interpreting statutes. See Wien Air Alaska v. Arant, 592 P.2d 352, 360 n. 32 (Alaska 1979), disapproved of on other grounds in Fairbanks North Star Borough Sch. Dist. v. Crider, 736 P.2d 770 (Alaska 1987). . See Bill on the Alaska Corporations Code, House and Senate Joint Journal Supp. No. 9 at 1 (1987). . See MBCA Annotated § 98 (1960). . See Green v. Oilwell, Div. of U.S. Steel Corp., 767 P.2d 1348, 1350-51 n. 1 (Okla.1989); 3 MBCA Anriotated § 14.07 annot. at 14-67 (3d ed. 1996 Supp.). . Model Bus. Corp. Act § 14.07 off. cmt. (rev. ed.1994). . Id. at 14.05(b)(5), (6). . Bill on the Alaska Corporations Code, House and Senate Joint Journal Supp. No. 9 at 9 (1987). . See The Origins of the Alaska Corporations Code, House Judiciary Committee File, microfiche 4704-4708, HB 322 (1988) [hereinafter House Report ]; Revision of the Proposed Alaska Corporations Code, Senate Judiciary Committee file, microfiche 5339-5344, HB 322 (1988) [hereinafter Senate Report']; see also House Report at preface. . Alaska Code Revision Comm'n, A Section by Section Comparison of the Alaska Corporations Code with the Final Draft of the Revised Model Business Corporations Act 93 (1984). . See 2B Sutherland Stat. Const. § 52.01 (5th ed.1992). . See, e.g., Ga.Code Ann. i 14-4-161 (1998) (dissolution shall not "operate to extinguish any demand or cause of action against it in favor of any person whomsoever, whether arising from contract or tort; nor shall such dissolution work the abatement of any action pending against it"); N.J. Stat. Ann. § 14A:12-9 (West 1997) ("[T]he [dissolved] corporation may sue and be sued in its corporate name and process may issue by and against the corporation in the same manner as if dissolution had not occurred."); N.Y. Bus. Corp. Law § 1006(a)(4), (b) (McKinney 1986) ("The dissolution of a corporation shall not affect any remedy available to or against such corporation"; "the corporation may sue or be sued in all courts ."); Ohio Rev.Code Ann. § 1701.88 (Banks-Baldwin 1998) ("Any claim existing or action or proceeding pending by or against the corporation or which would have accrued against it may be prosecuted to judgment...."). . Cal. Corp.Code § 2010(a) (West 1998). . 53 Cal.3d 1180, 283 Cal.Rptr. 135, 812 P.2d 154 (1991). . See id. at 155, 283 Cal.Rptr. 135. . See id. . See id. at 160, 283 Cal.Rptr. 135. . See, e.g., id. at 159, 283 Cal.Rptr. 135 (quoting Oliver v. American Motors Corp., 616 F.Supp. 714, 717 (D.Va.1985) (holding that under Virginia's survival statute, if corporations could be sued for actions arising during the wind-up period, "it seems logical . that a corporation should be liable for acts occurring prior to disso lution which cause injury subsequent to dissolution")); id. at 160, 283 Cal.Rptr. 135 (quoting Naugher v. Fox River Tractor Co., 446 F.Supp. 1281, 1283 (N.D.Miss.1977) (holding that remedial statutes should be interpreted liberally, and that under Ohio's survival statute,, corporate liability is established "at the time the machine was manufactured and placed on the market")). . See Penasquitos, 812 P.2d at 162, 283 Cal.Rptr. 135. . Id. at 160, 283 Cal.Rptr. 135 (citation omitted). . Sectional Analysis of HB 322, House and Senate Joint Journal Supp. No. 9 at 171 (1987). . See Alaska Code Revision Comm'n, A Section by Section Comparison of the Alaska Corporations Code with the Final Draft of the Revised Model Business Coiporations Act 93 (1984). . See Model Bus. Corp. Act § 14.07 off. cmt. (rev. ed.1994). .See id. at § 14.06, 14.07. The annotation to the revised MBCA makes clear that the change from § 105 resulted primarily from the development of product liability doctrine and "other claims that may arise years after the original transaction," which "created a new set of problems that were not satisfactorily addressed by earlier versions of the Model Act." MBCA Annotated § 14.07 at 14-67 (3d ed. 1996 Supp.). The official comment to the revised MBCA noted the tension inherent in the older version of the Act: The problems raised by this type of litigation are intractable: on the one hand, the application of a mechanical two-year limitation period to a claim for injury that occurs after the period has expired involves obvious injustice to the plaintiff. On the other hand, to permit these suits generally makes it impossible ever to complete the winding up of the corporation, make suitable provision for creditors, and distribute the balance of the corporate assets to shareholders. Model Bus. Corp. Act § 14.07 off. cmt.; accord MBCA Annotated, § 14.07 at 14-65. Section 14.07 was thought "to be a reasonable compro mise between the competing considerations of providing a remedy to injured plaintiffs and providing a period of repose after which resolved corporations may distribute remaining assets free of all claims." Model Bus. Corp. Act § 14.07 off. cmt. .See Ala.Code § 10-2B-14.05-.07 (1994) (allowing two years following dissolution in which to bring claims that accrue after dissolution if corporation uses public notice procedure); Ariz. Rev.Stat. Ann. § 10-1405 to 1407 (West 1996) (5 years); Ark.Code Ann. § 4-27-1405 to 1407 (Michie 1996) (5 years); Colo.Rev.Stat. Ann. § 7-114-105 to 108 (West Supp.1997) (5 years); Conn. Gen.Stat. Ann § 33-884, -886, -887 (West 1997) (3 years); Fla. Stat. Ann. § 607.1405-.1406 (West 1993 & Supp.1998); Ind.Code. Ann. § 23-1-45-5 to 23-1-4-7 (Mi-chie 1997) (2 years); Iowa Code Ann. § 490.1405-.1407 (West 1991) (5 years); Ky. Rev.Stat. Ann. § 271B. 14-050 to -070 (Michie 1996) (2 years); Miss.Code Ann. § 29-4-14.05 to 14.07 (1996) (5 years); Mo. Ann. Stat. § 351.482 (West 1991 & Supp.1998) (2 years); Mont.Code Ann. § 35-1-935 to -937 (1997); Neb.Rev.Stat. § 21-20,155 to -20,157 (1997) (5 years); N.H.Rev.Stat. Ann. § 293A:14.05-14.07 (Michie Supp.1997) (5 years); N.C. Gen.Stat. § 55-14-05 to -07 (1990) (5 years); Or.Rev. Stat. § 60.637, .641, .644 (1997) (5 years); S.C.Code Ann. § 33-14-105 to -107 (Law.Coop.1990) (5 years); S.D. Codified Laws § 47-7-6.1 & -7.1 (Michie 1991) (no limit); Tenn.Code Ann. § 48-24-105 to -107 (1995) (2 years); Utah Code Ann. § 16-102-1405 to 1407 (1995) (5 years); Vt. Stat. Ann. tit. 11A § 14.05-.07 (1997) (5 years); Va.Code Ann. § 13.1-745, 746 (Michie 1993) (unspecified); Wash. Rev.Code. Ann. § 23B.14.050, .060 (West 1994) (unspecified); Wis. Stat. Ann. § 180.1405 -.1407 (1992) (2 years); Wyo. Stat. Ann. § 17-16-1405 to - 1407 (Michie 1997) (4 years). . Although we conclude that AS 10.06.678 does not provide a limitations period within which claims against a dissolved corporation must be brought, any post-dissolution claim must still satisfy the applicable statute of limitations in AS 09.10. . See Penasquitos v. Superior Court (Barbee), 53 Cal.3d 1180, 283 Cal.Rptr.135, 812 P.2d 154, 160-61 (1991). . Id. at 160, 283 Cal.Rptr. 135. . See id. at 160-61, 283 Cal.Rptr. 135. . See AS 10.06.620(2); AS 10.06.668(1).

10366186

Robert J. CLUCAS, Appellant, v. STATE of Alaska, Appellee

Clucas v. State

1991-07-19

No. A-3692

384

390

815 P.2d 384

815

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Robert J. CLUCAS, Appellant, v. STATE of Alaska, Appellee.

Robert J. CLUCAS, Appellant, v. STATE of Alaska, Appellee. No. A-3692. Court of Appeals of Alaska. July 19, 1991. Arthur S. Robinson, Robinson, Beiswen-ger & Ehrhardt, Soldotna, for appellant. Joseph N. Lavesque, Asst. Dist. Atty., Nathan A. Callahan, Dist. Atty., Kenai, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

3706

22061

OPINION Before BRYNER, C.J., MANNHEIMER, J., and ANDREWS, Superior Court Judge. BRYNER, Chief Judge. Robert J. Clucas was convicted of operating a set gill net within 600 feet of another gill net. Clucas appeals, arguing that the district court erred in rejecting his proposed affirmative defense of "first in time, first in right." We reverse. Clucas was arrested at Squarehead Cove in Tuxedni Bay on May 9, 1990. Fish and Wildlife Officers Mark Kruzick and Curtis Bedingfield arrived at Squarehead Cove on May 8, 1990, during an open season of the herring gill net fishery. The officers saw approximately 100 to 150 gill nets in the cove, most separated from each other by only 100 to 300 feet, in violation of 5 AAC 27.435, which requires that nets be 600 feet apart. The officers patrolled the area in a small boat, spreading the word that citations would be issued the following day if the nets were not moved farther apart. The next day, Clucas contacted the officers and told them that he would not move his gear, because he had set his nets first. Clucas claimed that another person, Hank Kroll, had subsequently placed his gear within 600 feet of Clucas'. Clucas was told that if he did not move his net, both he and Kroll would be issued citations. Later on that day, the officers issued citations after measuring a distance of 250-270 feet between Clucas' and Kroll's nets. Clucas was cited for violating 5 AAC 27.435 and AS 16.05.722. 5 AAC 27.435 provides: MINIMUM DISTANCE BETWEEN UNITS OF GEAR. No set gill net may be set or operated within 600 feet of another set gill net, except that this provision does not apply in the Chinitna Bay subdistrict. Alaska Statute 16.05.722 provides, in relevant part: Strict liability commercial fishing penalties, (a) A person who without any culpable mental state violates AS 16.05.-440-16.05.690, or a regulation of the Board of Fisheries or the department governing commercial fishing, is guilty of a violation.... At trial, Clucas testified that he arrived in Squarehead Cove on May 1 and set his gear on May 1 and 2, and that Kroll set his gear on May 5. On May 6, Clucas asked Kroll to move his gear because it was too close to Clucas'. Clucas felt he had not been in violation of 5 AAC 27.435, because when he set his gear, there was no other net within 600 feet. The prosecutor argued that Clucas' defense of "first in time, first in right" was irrelevant because 5 AAC 27.435 is a strict liability offense. The trial court found Clucas guilty, concluding that, since Clucas was charged with a strict liability offense, he was not entitled to defend on the basis that his gear was set first. The court stated that the "first in time, first in right" defense might have been applicable if the case had been charged as a misdemeanor, and might even have been applicable to the strict liability offense if the officers had not warned Clu-cas to move his nets. Under the facts of this case, however, the court ruled: [I]t doesn't make any difference whether you got there first or the other person got there first, because you were specifically warned, "Move your net or we'll cite you." And you elected at that point not to move your net, knowing full well that you were going to be cited. Under that particular set of facts, I guess I don't have any choice. Two questions are raised on appeal: (1) is "first in time, first in right" a defense to criminal charges for violating the minimum distance between units of fishing gear?; and (2) if so, is the defense available when the offense is prosecuted as a strict liability violation? The rule that the fisher first on a site has a right to fish that site to the exclusion of others has long been recognized in Alaska civil cases. See, e.g., Snug Harbor Packing Co. v. Schmidt, 394 P.2d 397, 399 (Alaska 1964); Snug Harbor Packing Co. v. Miller, 123 F.Supp. 150, 152 (D.Alaska 1954); Lewis v. Libby, McNeil & Libby, 113 F.Supp. 272, 274 (D.Alaska 1953); General Fish Co. v. Markley, 105 F.Supp. 968, 972 (D.Alaska 1952); Lind v. Markley, 105 F.Supp. 50, 53 (D.Alaska 1952); Fisher v. Everett, 66 F.Supp. 540, 548 (D.Alaska 1945). The rule was reiterated by the Alaska Supreme Court as recently as 1988. See CWC Fisheries, Inc. v. Bunker, 755 P.2d 1115, 1121 n. 16 (Alaska 1988). The sole Alaska criminal case dealing with the "first in time, first in right" rule is Canoe Pass Packing Co. v. United States, 270 F. 533 (9th Cir.1921). The case is not directly on point here, but it strongly suggests that being first at a fishing cite is a defense to charges such as those brought against Clucas. The Canoe Pass Packing Company was convicted of four counts of fishing with a set net in Miles Lake, Alaska, within 600 feet of another net. This was in violation of an order of the Secretary of Commerce providing in part, "The lateral distance interval between all nets in Miles Lake shall be not less than 600 feet." Id. at 534. The court rejected Canoe Pass' argument that it had taken possession of its fishing site prior to the opening of the fishing season by driving stakes and posting notices at the site. The court stated, "[H]e who after [the start of the fishing season] placed in the water a set net within the prohibited distance from another set net which was lawfully there was guilty of a violation of the law." Id. at 536. The court did not decide whether a person who was first at a site could be convicted, because there was sufficient evidence to support a finding that the company had set its nets either after or simultaneously with someone else. In commenting on the sufficiency of the evidence, the Canoe Pass court said about Count 3, "When the defendants and the Abercrombie Company simultaneously placed nets 25 feet apart, both nets were placed in violation of the law, and thereafter, when the defendants, having lost their net, placed another within the prohibited distance of the Abercrombie net, they committed the offense which was charged." Id. at 537. The court remarked about the other counts: It is contended that there was no evidence sufficient to convict under Counts 1, 2, and 4. As to Count 1, there was testimony that, at the time when the defendant's net was set out, another net had been set out by the Abercrombie Packing Company, a distance of 50 feet therefrom. As to the second count, there was testimony that the Abercrom-bie Company set out a net at about 8:30 o'clock of June 5, and about half an hour later, the defendants put out a set net 200 feet therefrom. There was conflict in the testimony as to which of these nets was first set out, but the jury found the facts adversely to the defendants. As to Count 4, there was testimony that on June 5, the defendants set out a net between two nets of the Abercrombie Company, each about 400 feet away from the defendant's net, and that the Aber-crombie nets were set out about 10 minutes before that of the defendant's. Id. While not directly addressing the issue, the court's language suggests that if Canoe Pass' nets had been set prior to those of the Abercrombie Company, the evidence would not have been sufficient to support the convictions. Several of the civil "first in time" cases also support this conclusion. Typical of these cases is Snug Harbor v. Schmidt, 394 P.2d 397 (Alaska 1964), in which the Alaska Supreme Court upheld an award of compensatory damages to Schmidt. Schmidt had been fishing for salmon with a set net on Kalifonski Beach when the Snug Harbor Company installed a fish trap 550 feet from his net. A fisheries regulation in effect at the time provided: Minimum Distance Between Units of Gear. The distance by most direct water measurement from any part of one gill net or seine to any part of another gill net, seine, or trap shall not be less than 600 feet. Id. at 398 n. 1. Both Schmidt and a Snug Harbor representative were arrested and prohibited from further fishing on the site. Schmidt brought an action for damages against Snug Harbor for losses arising out of his arrest and the confiscation of his gear, and for being prevented from fishing during the remainder of the season. The supreme court rejected Snug Harbor's argument that Schmidt's claim was barred because both parties had been fishing in violation of the 600-foot regulation: Being first in time, appellee [Schmidt] had the right to fish the site in controversy to the exclusion of appellant's [Snug Harbor's] fish trap so long as he continued to occupy the site and operate his gear. Appellee was exercising that right and fishing legally when appellant unlawfully trespassed upon the site and commenced the operation of its trap. Appellee continued to fish, despite appellant's trespass, thus insisting on exercising what was his legal right. If appel-lee's fishing then became unlawful, it was solely because of appellant's unwarranted action in setting and operating its trap within 600 feet of appellee's net. Appellant's unjustifiable interference with appellee's fishing rights was the direct cause of the injury suffered by appellee when he was arrested and his gear confiscated and when he was prevented from taking fish during the remainder of the season. In these circumstances the rule that a court will refuse to aid a party whose claim is based upon his own illegal acts has no application. That rule may not be used as a defense by one, like appellant who was directly responsible for appellee's acts becoming illegal — if indeed they were ever illegal at all. What appellant is attempting to do is take advantage of its own wrongful act to prevent appellee from recovering compensation for his injuries. This we shall not permit. Compensatory damages were properly awarded. Id. at 399. While Schmidt is not a criminal case, it appears to indicate that the supreme court would not have looked favorably upon Schmidt's criminal conviction had the conviction been appealed. Of a similar persuasion is Fisher v. Everett, 66 F.Supp. 540 (D.Alaska 1945). In that case each party had set three nets, all too close to each other. Following the "first in time, first in right" rule, the court granted injunctive relief to both parties, stating: For the 1945 fishing season the ruling is: (1) that the plaintiff had paramount right to the site of his No. 1 net; (2) that the defendants had paramount right to the sites of their Nos. 2 and 3 nets; (3) that the plaintiff's Nos. 2 and 3 nets were unlawfully set and fished; and (4) that the defendants' No. 1 net was unlawfully set and fished. Id. at 550. These decisions establish that the "first in time, first in right" defense has consist ently been applied in Alaska civil cases. Although the issue has never been squarely addressed in the criminal context, the courts of Alaska have long assumed that the defense also applies to criminal charges of violating minimum distance fishing regulations. We conclude that the defense applies in criminal cases. We turn next to the question of whether the defense should apply to strict liability violations under AS 16.05.722. The state argues that all defenses should generally be inapplicable in strict liability cases. This issue is one of first impression in Alaska. The question has arisen in other jurisdictions in the context of strict liability traffic offenses. We believe the better-reasoned cases are those that accept defenses in strict liability cases when the defenses are unrelated to culpable mental state. Alaska Statute 16.05.722 authorizes the prosecution of persons who violate Alaska's Fish and Game statutes or fisheries regulations "without any culpable mental state." While the statute plainly establishes strict liability by eliminating the requirement of culpable mental state, it does not purport to establish absolute liability by eliminating other defenses that are unrelated to culpable mental state. The distinction between "strict" and "absolute" liability has been recognized by courts in other jurisdictions. In State v. Brown, 107 Wis.2d 44, 318 N.W.2d 370 (1982), the court ruled that in a prosecution for the strict liability offense of speeding, "the actor may claim the defense of legal justification if the conduct of a law enforcement officer causes the actor reasonably to believe that violating the law is the only means of preventing bodily harm to the actor or another and causes the actor to violate the law." Id. 318 N.W.2d at 376. Brown claimed that he was speeding to avoid erratic and threatening driving of an officer in an unmarked patrol car. The court rejected the state's argument that speeding was "not only a strict liability offense in the sense that the statute eliminates proof of defendant's state of mind but also creates an absolute liability offense in the sense that every violation of the literal terms of the statutes renders the offender guilty without exception." Id. at 375. The court held: We conclude that recognizing a defense of legal justification does not necessarily conflict with the concept that violation of a traffic law is a strict liability offense. The basic concept of strict liability is that culpability is not an element of the offense and that the state is relieved of the burdensome task of proving the offender's culpable state of mind. When the defendant in the case at bar claims legal justification, he is not seeking to disprove a statutorily required state of mind. Instead he is claiming that even though he knowingly violated the law, his violation was privileged under the circumstances. Id. The Supreme Court of South Dakota also distinguishes between strict liability and absolute liability offenses. In State v. Witters, 64 N.W.2d 810 (S.D.1954), the court held that a person charged with the strict liability offense of permitting or causing a motor truck to be operated on a public highway without an adequate horn had a defense of excuse in "conditions in which the person involved could not reasonably be expected to know that he was omitting or committing an act contrary to the statute or . be expected to act otherwise." Id. at 811. Although the court recognized that it was not necessary for the state to prove specific criminal intent or guilty knowledge it held, "[t]his does not mean however that the statute is absolute in the sense that every violation of its express terms renders one guilty under the law." Id. The court recognized an affirmative defense which put the burden of proof on the defendant. In contrast to the approach taken by the Wisconsin and South Dakota courts, the Kansas Supreme Court has ruled that a defense of legal excuse does not apply to strict liability offenses. State v. Merrifield, 180 Kan. 267, 303 P.2d 155 (1956). Merrifield was charged with the strict liability offense of driving while his license was revoked. He claimed that driving from his home to the county jail was excused, because the sheriff had told him to come to the jail to talk. The court rejected this argument in broad terms: It is clear that the statute makes it unlawful to drive a vehicle on the highways when the license to so drive has been suspended. The legislature made no exceptions, and the question of intent is not involved, and the motive or the circumstances under which the driving took place are immaterial. The legislature may forbid the doing of an act and make its commission criminal without regard to the intent or knowledge of the doer, and where the legislative intention appears, it is incumbent upon the court to give it effect, although the intent of the doer may have been innocent. The doing of an inhibited act constitutes the crime, and the moral turpitude or purity of motive by which it is prompted, and knowledge or ignorance of its criminal character, are immaterial circumstances on the question of guilt. Id. 303 P.2d at 157. The Merrifield court's failure to distinguish between intent and motive in strict liability cases is contrary to the Wisconsin court's recognition in Brown that a defendant who claims legal justification is not seeking to disprove a "state of mind" or culpable mental state but rather is claiming that the alleged violation should be excused regardless of the culpable mental state. The Merrifield court's failure to recognize this distinction is particularly significant in light of the wording of Alaska's strict liability statute. Alaska Statute 16.-05.722 establishes strict liability for those who violate fisheries statutes and regulations "without any culpable mental state," that is, without the element of intent, knowledge, recklessness, or negligence. The wording of the provision affects only defenses based on lack of culpable mental state. Culpable mental state, however, is not implicated by the "first in time, first in right" defense. There is no question that Clucas acted intentionally by continuing to fish, even though his nets were less than 600 feet from Kroll's nets. It is not Clu-cas intent, but his priority in time that establishes his defense. Professor Paul M. Robinson provides a helpful distinction in his treatise, Criminal Law Defenses § 23(a) (1984). Robinson distinguishes between defenses based on the prosecution's inability to establish the elements of an offense and defenses that excuse or justify conduct that would otherwise be criminal. As to the latter category, excuse or justification defenses, Robinson observes: [They] are real defenses in the sense that they do more than simply negate an element of an offense. They apply even where all elements of the offense are satisfied. They are distinguishable from general defenses (like self-defense or insanity), however, because they introduce criminalization decisions similar to those used in defining offenses, rather than give effect to general principles of exculpation. Id. at 77. As Robinson points , out, the distinction between these two types of defenses is particularly significant in strict liability cases: "[A] defense that operates independently of its ability to negate a culpability element . will provide a defense even if no culpability element is required by the offense definition." Id. at 107. The defense of "first in time, first in right" is unrelated to the state's ability to prove the elements of an offense and is thus a defense involving excuse or justification. For this reason, statutory changes in or outright elimination of culpable mental states for a given offense would have no direct bearing on the defense. Clucas does not dispute that the state proved all elements of his violation: that he operated a set gill net within 600 feet of another set gill net. Nor does he argue that his conduct was unintentional. Rather, he argues that he had a good reason for doing what he did — a reason that the law accepts as a justification for his conduct. Robinson perceives a single principle behind all defenses involving excuse or justification of conduct that would otherwise be criminal: "[Wjhile the actor has apparently satisfied all elements of the offense charged, he has not in fact caused the harm or evil sought to be prevented by the statute." Id. at 77. The harm sought to be prevented by minimum distance regulations such as the one involved here is the depletion of Alaska's fishery resources. This harm is caused not by the first person who begins fishing, but by subsequent arrivals who fish within 600 feet of the person already at the site. One other potential harm deserves mention. The state has a crucial interest in assuring that its regulations can be effectively enforced. This interest raises legitimate concerns in cases such as Chicas', because, as a realistic matter, an officer arriving at an area where numerous persons are fishing within 600 feet of each other will seldom if ever be capable of distinguishing those who came first from those who subsequently encroached. As a practical matter, enforcement would be virtually impossible if the officer were precluded from taking any action without determining who came to the site first and who encroached later. This concern, though certainly valid, is fully answered by the manner in which the "first in time, first in right" defense operates. As with other defenses involving excuse or justification, the "first in time, first in right" defense must, in our view, operate as an affirmative defense — a defense that the accused bears the burden of raising and of establishing by a preponderance of the evidence. See AS 11.81.-900(b)(1). Thus, officers who encounter two or more persons fishing in violation of minimum distance regulations, but are unable to determine with reasonable certainty who had priority, will be fully justified in taking appropriate action against all potential violators. All persons ordered to move their nets would be obligated to do so, and those cited could escape sanctions only if they managed to make an affirmative showing, to the satisfaction of the court, that they were first in time. In conclusion, we do not read AS 16.05.-722 to establish absolute liability; the statute simply eliminates culpable mental state as an element of specified fish and game violations. Because the "first in time, first in right" defense does not implicate the culpable mental state involved in a case, prosecution of a fish and game case under the strict liability statute does not preclude this defense from being raised. In the present case, we conclude that the trial court erred in declining to consider whether the defense of "first in time, first in right" was established. The judgment is REVERSED. COATS, J., not participating. . See, e.g., AS 11.81.320 (necessity); AS 11.81.-440 (duress); AS 11.81.450 (entrapment).

10328341

Judy A. BERKBIGLER, Appellant, v. Randall BERKBIGLER, Appellee

Berkbigler v. Berkbigler

1996-08-02

No. S-7222

628

632

921 P.2d 628

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.

Judy A. BERKBIGLER, Appellant, v. Randall BERKBIGLER, Appellee.

Judy A. BERKBIGLER, Appellant, v. Randall BERKBIGLER, Appellee. No. S-7222. Supreme Court of Alaska. Aug. 2, 1996. Mary-Ellen Zalewski, Anchorage, for Appellant. Jennifer L. Holland and Max F. Gruen-berg, Jr., Gruenberg and Clover, Anchorage, for Appellee. Before COMPTON, C.J., and RABINOWITZ, MATTHEWS, EASTAUGH and FABE, JJ.

1841

11245

OPINION COMPTON, Chief Justice. I. INTRODUCTION Judy Berkbigler appeals the superior court's denial of her motion to modify a child support award. We reverse. II. FACTS AND PROCEEDINGS Judy Berkbigler and Randall Berkbigler were divorced in December 1988. Judy was awarded sole custody of the parties' two children, and Randall was ordered to pay child support of $545 per month. Randall, who is in the Air Force and was stationed in Hawaii at the time of the divorce, was also made responsible for the costs of transporting his children for visitation. In 1991 Randall was transferred to Abilene, Texas. The support award was thereafter increased to $676. In 1994 Randall was transferred from Texas to Mildenhall, England. After Randall moved to England, Judy asked the Child Support Enforcement Division (CSED) to review the support award. CSED found that Randall's adjusted annual income was $38,-282. Applying Alaska Civil Rule 90.3 guidelines, CSED calculated Randall's monthly support obligation to be $861 per month. Judy filed a motion to modify the support award; Randall opposed. Although Randall calculated his child support obligations under Rule 90.3 to be $928 per month, he argued against any increase in the support award. Randall asserted that the cost of living in England was so much higher than the cost of living in the States that his income had not really increased. The superior court denied Judy's motion: Defendant's costs seem to have remained the same as Alaska, but the costs of transporting his children for visitation have gone up. Since Defendant is required to pay the entire visitation costs, it would be manifestly unjust for the children to miss visitation, simply because Mr. Berkbigler has a temporary increase in COLA due to being in England. Therefore, Mr. Berkbi-gler shall continue to pay 100% of his children's transportation costs for visitation, and his child support will remain at $676.00 per month. If Defendant fails to exercise his visitation the court will reconsider raising his obligation upon a motion being filed. On reconsideration, the superior court affirmed its decision: The children have no greater cost, but Mr. Berkbigler is recognized as having greater costs of living by his . employer. The court's previous ruling shall stand. Mr. Berkbigler's income increased primarily because of his overseas housing allowance and the cost of living allowance, which was given to him due solely to his assignment. Judy appeals. III. DISCUSSION A child support award may be modified upon a showing of a material change in circumstances. Alaska R. Civ. P. 90.3(h)(1). "A material change of circumstances will be presumed if support as calculated under this rule is more than 15 percent greater or less than the outstanding support order." Id. To calculate support in a sole custody case, the superior court must first determine the adjusted annual income of the non-custodial parent. See Alaska R. Civ. P. 90.3(a)(1). This figure is then multiplied by a fixed percentage, depending on the number of children involved. Alaska R. Civ. P. 90.3(a)(2). The superior court may vary a support award calculated under Rule 90.3 only "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(e)(1); see also Alaska R. Civ. P. 90.3 Commentary I.C. ("The support guidelines in the rule may be varied only as provided by paragraph (e) of the rule."). Good cause includes, inter alia, "extraordinary expenses . which require variation of the award in order to award an amount of support which is just and proper for the parties to contribute toward the nurture and education of their children." Alaska R. Civ. P. 90.3(e)(1)(A). If the court varies the award, it must explain in writing "the reason for the variation, [and] the amount of support which would have been required but for the variation_" Alaska R. Civ. P. 90.3(c)(1). The superior court in the present case failed to make explicit findings as to Randall's adjusted annual income and failed to specify the amount of support required under Rule 90.3(a). Further, the court failed to make specific findings in support of the reasons found to constitute good cause — increased airfare for visitation and/or increased living costs. Specific findings are needed so that these reasons can be reviewed on appeal. We therefore remand for additional factual findings. See Gallant v. Gallant, 882 P.2d 1252, 1255 (Alaska 1994) ("A trial court is required to make specific findings to support a determination of adjusted income under Civil Rule 90.3."); Wright v. Gregorio, 855 P.2d 772, 773 (Alaska 1993) ("Adequate findings of fact [under Rule 90.3] are essential, so that a reviewing court may clearly understand the grounds on which the lower court reached its decision."); accord Waggoner v. Foster, 904 P.2d 1234, 1235 (Alaska 1995); see also Adrian v. Adrian, 838 P.2d 808, 812 (Alaska 1992) ("[M]ere references to the parties' relative financial positions fail to provide the raw numbers necessary for a Civil Rule 90.3 calculation."). Randall makes several arguments in this appeal which can be disposed of prior to remand. First, he argues that his Cost of Living Allowance (COLA) and Overseas Housing Allowance (OHA) should not be included in his adjusted annual income because they are only "temporary" increases in income. This argument is without merit. See Alaska R. Civ. P. 90.3(a)(1) ("Adjusted annual income as used in this rule means the parent's total income from all sources."); Alaska R. Civ. P. 90.3 Commentary III.A.29 (Income includes "Armed Service Members base pay plus the obligor's allowances for quarters, rations, COLA and specialty pay."). Randall also argues that an increase in the support award is not warranted because the children's needs are being met at the current level of support. This argument runs counter to the premise of Rule 90.3, which "operates on the principle that as the income available to both parents increases, the amount available to support the children also will increase." Alaska R. Civ. P. 90.3 Commentary II; see Coats v. Finn, 779 P.2d 775, 776-77 n. 5 (Alaska 1989) (quoting with approval Report of the Child Support Enforcement Commission to Governor William J. Sheffield, October 1, 1985) (" '[A]s income increases additional expenditures are made for the benefit of all family members, including children as well as adults.' "). An obligor parent who experiences an increase in income cannot avoid paying additional support merely by showing that the children's needs are being met by an existing support award. Randall details his and Judy's expenses to support his argument that he is already paying his "fair share." However, simply because Randall has significant debts does not, by itself, mean that the award amount should be reduced. See Alaska R. Civ. P. 90.3 Commentary VI.B.5 ("Prior or subsequent debts of the obhgor, even if substantial, normally will not justify a reduction in support."). It is true, as Randall notes, that we have held 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." Coats v. Finn, 779 P.2d at 776. But what Randall fails to appreciate is that Rule 90.3 presumes the non-custodial parent's "fair share" is the amount fixed by its guidelines. See Alaska R. Civ. P. 90.3 Commentary II ("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."). For Randall to rebut this presumption, he must show that his expenses are "extraordinary." See Alaska R. Civ. P. 90.3(e)(1)(A). Finally, we note that any adjustment in support based on travel expenses should be based only on an increase in travel expenses over what Randall was already obligated to pay under the earlier decree. Randall cannot be credited with the entire cost of travel to England, since he was already obligated to pay for visitation within the United States, most recently in Abilene, Texas. Given the fluctuations in airfares and the expressed concern that Randall may not exercise overseas visitation, the most efficient approach, if an adjustment is to be made, would be to permit a direct child support credit for the difference between the fares to England and to Texas, once the tickets have been purchased. IV. CONCLUSION Alaska Civil Rule 90.3 establishes a method for determining child support awards. The superior court did not follow this method. We REVERSE and REMAND the superior court's decision for calculation of a support award in accordance with the guidelines of Rule 90.3. We retain jurisdiction. The parties have until fifteen days after the superior court enters its findings on remand to move for an order permitting supplemental briefing before this court. . Alaska Civil Rule 90.3(a)(1) provides: (a) Guidelines — Sole or Primary Physical Custody. A child support award in a case in which one parent is awarded sole or primaiy physical custody . will be calculated as an amount equal to the adjusted annual income of the non-custodial parent multiplied by a percentage specified in subparagraph (a)(2). (1) Adjusted annual income as used in this rule means the parent's total income from all sources minus: (A) mandatory deductions such as federal income tax, social security tax, mandatory retirement deductions and mandatory union dues; (B) child support and alimony payments arising from prior relationships which are required by other court or administrative proceedings and actually paid; (C) child support for children from prior relationships living with the parent, calculated by using the formula provided by this rule; and (D) work related child care expenses for the children who are the subject of the child support order. . Alaska Civil Rule 90.3(a)(2) provides: (2) The percentage by which the non-custodial parent's adjusted income must be multiplied in order to calculate the child support award is: (A) 20% (.20) for one child; (B) 27% (.27) for two children; (C) 33% (.33) for three children; and (D) an extra 3% (.03) for each additional child. . Different considerations apply if the obligor parent has an adjusted annual income in excess of $72,000. See Alaska R. Civ. P. 90.3(c)(2) ("Paragraphs (a) and (b) [of Rule 90.3] do not apply to the extent that the parent has an adjusted annual income of over $72,000. In such a case, the court may make an additional award only if it is just and proper, taking into account the needs of the children, the standard of living of the children and the extent to which that standard should be reflective of the supporting parent's ability to pay."); see, e.g., Moore v. Moore, 893 P.2d 1268, 1270 (Alaska 1995).

6895677

William BREWER II, Donna Brewer, William Brewer III, Stephanie Brewer, Charles Gray, Margaret Gray and Allen Gray, Appellants, v. STATE of Alaska, Appellee

Brewer v. State

2014-11-28

No. S-14916

1107

1121

341 P.3d 1107

341

Pacific Reporter 3d

Alaska Supreme Court

Alaska

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

CAP

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

William BREWER II, Donna Brewer, William Brewer III, Stephanie Brewer, Charles Gray, Margaret Gray and Allen Gray, Appellants, v. STATE of Alaska, Appellee.

William BREWER II, Donna Brewer, William Brewer III, Stephanie Brewer, Charles Gray, Margaret Gray and Allen Gray, Appellants, v. STATE of Alaska, Appellee. No. S-14916. Supreme Court of Alaska. Nov. 28, 2014. William R. Satterberg, Jr., Law Offices of William R. Satterberg, Jr., Fairbanks, for Appellants. J. Anne Nelson, Assistant Attorney General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Appellee. Before: FABE, Chief Justice, STOWERS, MAASSEN, and BOLGER, Justices.

7921

50077

OPINION MAASSEN, Justice. I. INTRODUCTION Major forest fires swept through areas south of Fairbanks in the summer of 2009 and approached properties owned by the appellants (the landowners). In an effort to save the landowners' structures, firefighters working under the direction of the State Department of Forestry intentionally set fire to the landowners' vegetation. The burnouts deprived the advancing wildfires of fuel and saved the structures. But the landowners sued the State, bringing a takings claim under the eminent domain provision of the Alaska Constitution, article I, section 18 (the Takings Clause), and tort claims for negli-genee and intentional misconduct. We affirm the superior court's dismissal of the tort claims because of governmental immunity; we reverse its dismissal of the constitutional claim, remanding it to the superior court for further consideration of whether the specific exercise of the State's police powers at issue here was justified by the doctrine of necessity. II. FACTS AND PROCEEDINGS A. Facts During the summer of 2009, wildfires that came to be known as the Railbelt Complex developed in Interior Alaska, ultimately engulfing over 600,000 acres. The appellant landowners owned property in subdivisions known as Teklanika Channel Lake, Dune Lake, and Totek Lake, about 45 miles southwest of Fairbanks. Their properties are on land designated by the State's "Alaska Inter-agency Wildland Fire Management Plan" (the Plan) as a "Full Management Option" fire protection area, meaning that the State anticipated an "aggressive initial attack dependent upon the availability of suppression resources. The landowners and the State agree that, as the fires approached, firefighters acting under State authority entered the landowners' property and set fire to vegetation surrounding their structures; these fires were pushed out to meet the oncoming wildfires. The tactic, called backfires or burnouts, is used to deprive an oncoming fire of fuel. According to the State, the Railbelt Complex fires passed through the subdivisions without damaging the landowners' structures; the landowners do not appear to dispute it. B. Proceedings Landowners William Brewer II and Donna Brewer, William Brewer III and Stephanie Brewer, Charles and Margaret Gray, and Cindy Walker all filed suit against the State in 2010. Each suit alleged a takings claim under article I, section 18 of the Alaska Constitution and tort claims alleging negligent and intentional acts. The suits were consolidated in December 2010. Allen Gray filed suit in March 2011, asserting identical harms and legal theories, and his suit was consolidated with the others. The landowners moved for partial summary judgment, contending that the burnouts constituted a compensable taking as a matter of law and that the State's actions were intentional, making it liable in tort. According to the landowners, the only remaining question of fact was the amount of just compensation they were due. The State cross-moved for summary judgment, claiming governmental immunity and advancing a number of arguments against liability for a taking. In subsequent filings the landowners elaborated on their claims. They asserted that, in contravention of its stated policy of Full Management Option protection, the State made no attempt to minimize or suppress the wildfires, instead opting to burn "as much wildland forest as possible," impliedly for purposes of "fuels management." The landowners offered affidavits alleging that the State conducted the burnouts even though there was no "imminent threat of fire damage" to their properties and the State could have "undertaken . the damaging fire suppression activities on bordering State-owned lands" instead. The superior court granted summary judgment to the State. As for the constitutional claim, the superior court decided that the State's actions did not constitute a taking because they were a valid exercise of its police powers. As for the tort claims, the superior court concluded that the State was entitled to immunity under both AS 09.50.250 and AS 41.15.045. The landowners filed this appeal. III. STANDARDS OF REVIEW We review a grant of summary jadgment de novo, affirming if there is no genuine dispute of material fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. We review the facts in the light most favorable to the non-moving parties and draw all reasonable inferences in their favor. We review the Alaska Constitution and Alaska statutes de novo, "adopting rules of law that best reflect precedent, reason, and policy." IV. DISCUSSION A. It Was Error To Dismiss The Landowners' Takings Claims. Article I, section 18 of the Alaska Constitution-entitled "Eminent Domain" and commonly known as the Takings Clause-states that "[plrivate property shall not be taken or damaged for public use without just compensation." The landowners contend that the State damaged their private property for public use, entitling them to just compensation under the Constitution. "We liberally interpret Alaska's Takings Clause in favor of property owners, whom it protects more broadly than the federal Takings Clause. " This protection applies to personal as well as real property and allows compensation for temporary as well as permanent takings. Takings claims are not based in tort and do not require that the government act with any particular mental state. The viability of a constitutional takings claim thus is unaffected by tort immunity, which is not constitutional but statutory. 1. The landowners allege a taking for public use. For the landowners to state a claim entitling them to just compensation under the Takings Clause, they must show that the State damaged their property and did so for a public use. There is no dispute in this case that the landowners' property was damaged, nor that the damage was caused by the State. The parties do dispute, however, whether the damage was for a public use. The landowners concede that the burnouts were intended to protect their structures; their quarrel is with when and where the State set the burnouts. They argue that the burnouts could have been conducted before the structures were directly threatened and could have been set on State-owned land instead of their private land. In the landowners' view, the burnouts damaged their property for a public use because "the State encouraged the burn off of the wildlands between the Kantishna and Teklanika rivers as far south as possible as a public project to rejuvenate the wildlands," an action which "obviously serves to benefit the public demand for, inter alia, game animals for human consumption." They allege a second public use as well: "to forestall the spread of the fire to State-owned lands, e.g. the Tanana Valley State Forest and other commercial forests." The State takes two arguably contradieto-ry positions in response to the landowners' takings claim. In support of its argument that it acted within the lawful exercise of its police powers, the State asserts "that the burnouts were part of the larger fire management effort, and that public purposes of promoting the general health, safety, and welfare of the public animate the police powers." On the other hand, the State argues that the burnouts were "not necessary to the overall fire suppression effort" and were conducted solely to prevent the destruction of the landowners' private structures-not a public use at all. We find more persuasive the State's first argument-that it acted within the lawful exercise of its police powers. The United States Supreme Court has described the public use requirement of the federal Takings Clause as "coterminous with the scope of a sovereign's police powers." One important aspect of the police power is the suppression and prevention of fires; indeed, "[plerhaps the most striking application of the police power is the destruction of buildings to prevent the spread of a conflagration." In Alaska, the State's entry upon private land "for the purpose of preventing, suppressing, or controlling a wildland fire" is explicitly authorized by statute. The legislature further emphasized the public nature of such activities in its enactment of a specific statutory immunity for actions taken while fighting wildfires (discussed below) Implicit in these provisions is the accepted wisdom that fighting wildfires, even on private property, is of benefit to the public as a whole regardless of whether only individual landowners are immediately benefitted. In this case, putting aside the issues of whether the burnouts were set at the right time and in the right place, there is no dispute that they were part of the State's efforts to contain and direct the Railbelt Complex fires. Because the burnouts were set in the exercise of the State's police powers, the damage they caused was for a public use for purposes of the Takings Clause. We therefore need not reach the landowners' arguments that the public use can be found in alleged State purposes to maximize forage for wildlife or to protect forests that were commercially valuable. And we reject the State's argument that there is no public benefit or use in conducting burnouts on private land to prevent the destruction of private structures. On this point, the United States Supreme Court's decision in Hawaii Housing Authority v. Midkiff is helpful. One issue was whether the condemnation of private property was for a public use when it was made under a Hawaii law that transferred ownership to other private parties, the long-term lessees, in an effort to break up historic oligarchies. According to the Supreme Court, "[the mere fact that property taken outright by eminent domain is transferred in the first instance to private beneficiaries does not condemn that taking as having only a private purpose." It quoted its earlier decisions for the propositions that "[i]t is not essential that the entire community, nor even any considerable portion, . directly enjoy or participate in any improvement in order [for it] to constitute a public use"; and "what in its immediate aspect [is] only a private transaction may . be raised by its class or character to a public affair." The Court also noted the great deference courts show to the legislature's determination that certain measures involve a public use. Here, too, the State's argument that the individual landowners benefitted-and perhaps solely benefitted-from the burnouts on their property does not dilute the evident public purpose of the State's firefighting activity,. A similar issue was presented in Town of Gila Bend v. Walled Lake Door Co." The Arizona Supreme Court considered an argument that a town's contract to construct a water main to a factory building violated a state constitutional provision prohibiting public investment in private corporations. The court rejected the argument, observing in part that "the fact that the Company stands to be directly benefited in the event that a fire should oceur at its plant and will be indirectly benefited by reduced fire insurance premiums [] is of absolutely no consequence."" The court concluded, "There can be no doubt but that the supplying of water for purposes of preserving and protecting lives and property is a 'public purpose' and one which will provide a direct benefit to the public at large." We recognize that precedent can lead us in different directions. In National Board of YMCA v. United States, the Supreme Court created what came to be known as the "intended beneficiary" rule, by which government action taken primarily to defend private property from damage does not result in a compensable taking. During riots in the Panama Canal Zone, the Army occupied the petitioners' buildings, which were heavily damaged during the fighting that followed. Although the petitioners argued that the Army used their buildings "as part of a general defense of the Zone as a whole," the Court concluded that "[the stipulated record . demonstrates that the troops were acting primarily in defense of petitioners' buildings." Relying on the purpose of the federal Just Compensation Clause-"to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole"the Supreme Court held that the clause did not apply to the petitioners' losses. It acknowledged that "any protection of private property also serves a broader public purpose." But it went on to say that where, as here, the private party is the particular intended beneficiary of the governmental activity, fairness and justice' do not require that losses which may result from that activity 'be borne by the public as a whole, even though the activity may also be intended incidentally to benefit the public. Were it otherwise, governmental bodies would be liable under the Just Compensation Clause to property owners every time policemen break down the doors of buildings to foil burglars thought to be inside[ ] That the petitioners' damage was not directly caused by the government made no difference to the Court's analysis: "[Pletitioners would not have a claim for compensation under the Fifth Amendment even if they could show that damage inflicted by rioters occurred because of the presence of the troops." | We do not believe that YMCA 's "intended beneficiary" test adequately reflects the broad protection of Alaska's Takings Clause. A New Jersey appellate court recently identified several of the test's shortcomings, most importantly that it "forces courts to be 'caught up in an identification and evaluation of the primary beneficiary,' when, in reality, 'the intended beneficiary of police activity is always the general pub-lie'" We note further that the danger the Supreme Court identified in recognizing a right to compensation under the Fifth Amendment when a private party is "the particular intended beneficiary of the government activity'"-that it would make the government liable to the owners "every time policemen break down the doors of buildings to foil burglars thought to be inside" -gnores the doctrine of necessity, discussed below. In this case, when the State conducted burnouts on the landowners' properties, it was exercising an essential aspect of its police power. We conclude that this is sufficient to show a public use, whether the burnouts were intended to benefit primarily other State lands, as the landowners allege, or primarily the landowners, as the State alleges. 2. The burnouts conducted by the State do not constitute a compensable taking if they were justified by the doctrine of necessity. Regardless of whether the State damaged the landowners' property for a public use, the landowners have no constitutional right to just compensation if the State's actions were justified by the doctrine of necessity. But given the broad protections of Alaska's Takings Clause, we decline to hold that every valid exercise of the police power is justified by the doctrine of necessity and results in a noncompensable taking. In granting summary judgment to the State on the takings claims, the superior court found in effect that necessity was implicit in the State's exercise of its police power. The court reasoned that it was pursuant to the State's police power that the legislature enacted AS 41.15.040, the statute granting firefighters access to private property for the purpose of fighting fires, and that the State acted pursuant to this statutory authority when it set burnouts on the landowners' property. The court reasoned: "Wildfire suppression activities such as those authorized by AS 41.15.040 are clear examples of the valid exercise of state police power for the protection of its citizenry and natural resources, and therefore no compensation is due when property is damaged pursuant to the prevention, suppression, or control of wildland fires." The State essentially adopts the superior court's analysis on this appeal. Firefighting is undoubtedly an exercise of the State's police power, as we acknowledge above. But we decline to hold that the police power is coextensive with the doctrine of necessity, ie., that because firefighting is an exercise of the police power, all damage caused during the State's firefighting activities is per se necessary and therefore not compensable under the takings clause. We agree with an observation of a federal claims court: "If the police power exception to just compensation is limited only by the sovereign power of the Government, . it becomes the exception which swallows the rule, an intolerable result." In the context of firefighting, as we explain below, the doctrine of necessity requires that there be an imminent danger and an actual emer-geney giving rise to actual necessity; otherwise, damage may be compensable under the Takings Clause even though it is caused by the State's otherwise valid exercise of the police power. We have held that "[the distinetion between eminent domain and the state's police power is well established legal doe-trine." Where one ends and the other begins, however, may be difficult to define. Eminent domain is "the right of a government to take and appropriate private property to public use [] whenever the public exi-geney requires it; which can be done only on condition of providing a reasonable compensation therefor," * whereas the police power may allow the State "consistently with constitutional requirements [to] aequire private property interests in a manner that does not constitute a taking," i.e., without having to provide reasonable compensation. In Waiste v. State, for example, we held that the "government seizure of property suspected of having been used to break the law falls squarely within the police power" and "is not an exercise of the State's constitutional taking power for which the Takings Clause triggers the requirement of just compensation." But the distinction between- eminent domain (compensable) and a valid exercise of the police power (not compensable) is not a sharp one. The United States Supreme Court has repeatedly recognized that there are limits beyond which a state's otherwise valid exercise of its police power may require compensation. Defining those limits in the context of firefighting activities is our immediate task; we do so by reference to the doctrine of necessity, which has a long history in the common law. Public necessity acts as a defense to property torts such as trespass and conversion and allows a person to enter land and destroy property where there is "[a] necessity that involves the public interest." Public necessity "completely exeuses the defen dant's liability." While the privilege of public necessity is an individual one, state officials can exercise it. Thus, the state generally does not have to pay compensation where "the destruction or damage was, or reasonably appeared to be, necessary to prevent an impending or imminent public disaster from fire, flood, disease, or riot." Almost all cases that discuss public necessity note that it generally includes the destruction of buildings or land to stop the spread of a fire. When the United States and state constitutions were adopted, courts continued to use public necessity as an implicit exception to the requirement of just compensation. A seminal case is Bowditch v. City of Boston, in which the Supreme Court explained the common law roots of the necessity doctrine: "At the common law every one had the right to destroy real and personal property, in cases of actual necessity, to prevent the spreading of a fire, and there was no responsibility on the part of such destroyer, and no remedy for the owner." It went on: "In these cases the common law adopts the principle of the natural law, and finds the right and the justification in the same imperative necessity." Later cases affirmed the common law foundations of the necessity defense under similar cireumstances. The Federal Cireuit recently discussed the necessity doctrine in TrinCo Investment Co. v. United States Wildfires were burning parts of the Shasta-Trinity National Forest in California. The Forest Service intentionally lit fires on and adjacent to TrinCo's properties in order to deprive the fires of fuel, thereby destroying nearly two thousand acres of TrinCo's timber, worth over $6 million. TrinCo sued the United States, alleging a taking, though unlike the landowners here they alleged that the fires would never have reached their property at all were it not for government intervention. The federal claims court granted the United States' motion to dismiss, reasoning that "the doctrine of necessity absolves the Government from liability for any taking or destruction of property in efforts to fight fires." On appeal, however, the Federal Cireuit held that the lower court had "misapprehended the reach of the doctrine of necessity." It held that "extend[ing] the doe-trine of necessity to automatically absolve the Government's action in any case involving fire control stretches the doctrine too far." The Federal Circuit found no law directly on point, but it concluded that Supreme Court precedent required "that the doctrine of necessity may be applied only when there is an imminent danger and an actual emer-geney giving rise to actual necessity." It noted that in Bowditch, the City of Boston was not liable when its firefighters demolished a building "at a place of danger in the immediate vicinity [of a fire], to arrest the spreading of the fire," and "the measure . stopped the progress of the fire." It noted that in Caltex, the United States was not liable for the Army's destruction of privately owned oil facilities in Manila "in the face of their impending seizure by the enemy," where Japanese troops were marching into the city and their planes were bombing the area. It cited another wartime seizure case, Mitchell v. Harmony, involving the Army's confiscation and loss of a trader's goods during the war with Mexico: "[For a taking to be justified during wartime the 'danger must be immediate and impending or the 'necessity urgent . such as will not admit delay' because 'it is the emergency that gives the right [to the Government to take private property], and emergency must be shown to exist before the taking can be justified" " Applying the test for necessity that it extrapolated from this case law-"imminent danger and an actual emergency giving rise to actual necessity"-the Federal Circuit reversed the dismissal of TrinCo's takings claim. It noted that the facts as alleged in TrinCo's complaint did not demonstrate "the kind of imminent danger and actual emer-geney posed by a fire burning in a populated city, as in Bowditch, or an invading enemy army, as in Caltex. ° It held that "(ilt is certainly plausible that the Iron Complex fire did not pose an imminent danger or actual emergency necessitating the destruction of such a sizable portion of TrinCo's property," and that discovery could show "why the Plaintiff's property had to be sacrificed, as opposed to other property, including other portions of the National Forest itself. $ It concluded: "It would be a remarkable thing if the Government is allowed to take a private citizen's property without compensation if it could just as easily solve the problem by taking its own." We agree with the analysis in TrinCo. Here, the superior court considered only whether the State's actions were taken within the context of its general police power. But a taking of private property does not escape application of the Takings Clause simply because it occurs in the course of the State's firefighting activities; to be noncom-pensable, the taking must be justified by the doctrine of necessity. The doctrine applies only if the State demonstrates the existence of "imminent danger and an actual emergency giving rise to actual necessity," an inquiry that is fact-specific. This inquiry should not devolve into an after-the-fact evaluation of the wisdom of the fire-fighting policies and tactical choices that preceded the taking, decisions that in a tort action are immunized by AS 41.15.045. Whether a taking is necessary must be judged at the time the taking oceurs. The essence of the doctrine is that the government is acting "under pressure of public necessity and to avert impending peril" and chooses to damage private property as the lesser of two evils. It is that choice, in that moment, for which necessity may provide a defense. The facts of this case may support applying the doctrine of necessity. But the parties' evidence must be evaluated in the context of whether there was an "imminent danger and an actual emergency giving rise to actual necessity," a task we leave to the superior court in the first instance. We reverse the grant of summary judgment to the State on the landowners' claim under the Takings Clause of the Alaska Constitution and remand it to the superior court for further consideration; but in so doing we do not decide whether the evidence already in the record would preclude another grant of summary judgment for the State. B. The Superior Court Did Not Err In Dismissing The Landowners' Tort Claims. The landowners argue that the superior court also erred in dismissing their tort claims against the State, but on this issue we affirm the judgment of the superior court, finding the claims barred by statutory immunity. 1. Alaska Statute 41.15.045, not AS 09.50.250, controls whether the State's firefighting activities are immune from tort liability. The superior court conducted a two-step analysis of the State's governmental immunity defense, addressing first the discretionary immunity provided by AS 09.50.250 and then addressing the specific firefighting immunity provided by AS 41.15.045. We hold that the latter statute controls. Alaska Statute 09.50.250 precludes tort claims against the State that are "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a state ageney or an employee of the state, whether or not the discretion involved is abused." We discussed this statute in the context of fighting wildfires in Angnabooguk v. State, in which we specifically rejected the State's claim that all such activities were immune as necessarily involving policy choices or some other exercise of discretion. Focusing on AS 09.50.250, our analysis began with the well-established distinction between planning (that is, discretionary) and operational decisions for purposes of determining whether statutory immunity applies We noted our consistent holdings that "the State's 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." We noted that "certain on-the-scene firefighting tactical decisions may be considered discretionary because they entail resource allocation decisions or considered decisions of firefighting policy that are properly vested in the officials in charge," and we gave as one example the setting of backfires. other hand, we noted that decisions considered operational could include the State's failure to prevent employees from working under the influence of drugs or alcohol, failure to build a firewall, failure to post lookouts during a burnout, and failure to conduct an adequate mop-up. We remanded the case to the superior court for further factual development as to which of the tactical firefighting decisions at issue were operational and which were planning and therefore immune. Following Angnabooguk, the legislature enacted an immunity statute that provides broad tort immunity for firefighting activities without regard to the "planning/operational" distinction drawn in the context of the more general immunity statute, AS 09.50.250. The new statute, AS 41.15.045(a), provides immun-nity to the State and other governmental entities from any "civil action for damages for death, personal injury, or property damage that results from an act or omission in performing or failing to perform activities or duties arising out of prevention, monitoring, control, or suppression of fires authorized to be performed under AS 41.15.010-41.15.170 [addressing wildland and forest fires]." The new statute's only exception is for actions for damages resulting from "intentional misconduct within the course and scope of employment or ageney and with complete disregard for the safety and property of others." Legislative history shows that AS 41,15.045 was adopted in direct response to our decision in Angnabooguk and the law of governmental immunity as we applied it to firefighting activities in that case. The governor's sponsor statement, and his letter transmitting the proposed bill to the legislature, reported that two of this court's 2001 decisions "ruled that the State of Alaska may be sued and held liable for tort claims for losses due to fire suppression efforts" and that "[these decisions open the door to significant financial exposure to the state for losses due to fires." The transmittal letter and sponsor statement stated that "[dlJeci-sions regarding forest management related to fire control and suppression should be prompted by sound forestry and firefighting principles, rather than concerns regarding possible tort liability," and that "litigation of such claims inherently disrupts the division of forestry's day-to-day operations and diverts substantial state resources to defend such lawsuits." The proposed bill was intended to correct this perceived problem; in a contemporaneous sectional analysis of the bill, the Department of Law observed that the broad firefighting immunity provision was included in order to "override [] the decision of the Alaska Supreme Court in Angnabooguk . that, because the state legislature had not explicitly made all firefighting activities and decisions immune from suit, both the state and individual firefighters could be held liable for damage caused by a wildfire. In sum, as we held in Angnabooguk, AS 09.50.250 immunizes tactical firefighting activities only to the extent they may be categorized as discretionary planning decisions; it does not immunize firefighting activities that are operational. Alaska Statute 41.15.045, on the other hand, immunizes all firefighting activities regardless of the planning/operational distinction, with a limited exception for intentional misconduct. As the two statutes conflict, we apply the one that is both more specific and later in time-AS 41,15.045, the 2008 law that addresses firefighting activities specifically. 2. The State's conduct does not fall within the "intentional misconduct" exception of AS 41.15.045(b). Focusing on the firefighter immunity statute, the landowners argue that their claims satisfy its exception for "intentional misconduct within the course and scope of employment or agency and with complete disregard for the safety and property of others." The landowners argue that (1) the State acted intentionally in conducting the burnouts on their properties; and (2) burnouts in violation of the State's Full Management Option protection policy-which applies to the landowners' properties under the interagency fire protection plan-constitute misconduct. The Full Management Option protection policy has as its stated objectives (1) to control fires on the designated property "at the smallest acreage reasonably possible on initial attack without compromising fire fighter safety"; (2) to protect the property from the spread of fires "burning in a lower priority management option"; and (3) to minimize damage on the property "commensurate with the values at risk." The landowners acknowledge that the "Plan was developed to enable appropriate fire suppression decisions 'within the constraints of policy and land management objectives.'" The landowners recognize that the objectives the State faces may be competing ones: for example, the minimization of burning on properties given Full protection status and the maximization of burning for ecological purposes. The landowners complain, however, that 'the State made the wrong choice between these objectives: "the State's maximum acreage goal was prioritized and realized to its fullest extent by means of deliberately damaging the Full fire protection properties." Under the landowners' theory, the State's deliberate election of one policy objective over another constitutes misconduct. As we observed in Angnabooguk, "we have consistently held that, for all State activities, the State's 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." When analyzing cases un der AS 09.50.250, we "have recognized that if decisions require the state to balance 'the detailed and competing elements of legislative or executive policy, they nearly always deserve protection by discretionary function immunity." Furthermore, " '[dJecisions about how to allocate searce resources' will ordinarily be immune from judicial review," The decision on which the landowners base their misconduct argument-allegedly a decision to prioritize a "maximum acreage goal" over the Full protection policy expressed in the interagency fire management plan-inescapably involves both balancing executive policies and allocating limited resources. Under AS 09.50.250, these decisions would be immune as discretionary planning activities. Given that AS 41.15.045 clearly expands the range of firefighting activities for which the State is immune, it would be unreasonable for us to conclude that activities that would be immune under AS 09.50.250 lost their immunity with the enactment of AS 41.15.045 because of the "intentional misconduct" exception. And because the landowners cannot show intentional misconduct, we need not address the other elements of the exception: whether the alleged misconduct occurred "within the course and seope of employment or ageney and with complete disregard for the safety and property of others." v. CONCLUSION We AFFIRM the superior court's dismissal of the landowners' tort claims and REVERSE the dismissal of their claims for just compensation under the Takings Clause of the Alaska Constitution. We REMAND for further proceedings consistent with this opinion. WINFREE, Justice, not participating. . See Auaska IntEracency Coorpmation Ctr. Pre-pictive Servs Section, Auaska Fire Season 2009; Wicpranp Free Summary & Statistics Annuar Report 18 (2009), available at http:/ffire.ak.blm.govw/ content/aice/stats/archive/2009.pdf. . The Plan sets four levels of fire management- '- Critical, Full, Modified, and Limited-with dif ferent planned responses and objectives for each. The listed objectives for the Full Management Option are these: 1. Control all wildland fires occurring within this management option at the smallest acreage reasonably possible on initial attack without compromising fire fighter safety. 2. Protect sites or areas designated as Full management from the spread of wildland fires burning in a lower priority management option. 3. Minimize damage from wildland fires to the resources identified for protection within the Full management designation commensurate with values at risk. . The State explains that "backfire" refers primarily to a fire set to attack and suppress an oncoming wildfire, whereas "burnout" refers primarily to a fire set in defense of designated areas behind control lines. The State asserts that it set the fires at issue primarily to protect structures rather than to suppress the wildfire complex; we therefore use the term "burnout" in this opinion. . Walker was released from the suit before summary judgment. . Waiste v. State, 10 P.3d 1141, 1144 (Alaska 2000). . Id. at 1144-45. . Id. at 1144. , We recognize that when the government takes private property for public use without paying just compensation and the property owner brings suit, the claim is not for eminent domain but for inverse condemnation. See Mt. Juneau Enters., Inc. v. City & Borough of Juneau, 923 P.2d 768, 773 (Alaska 1996). The constitutional provision on which such a suit is grounded, however-the Takings Clause-is entitled "Eminent Domain." . Waiste, 10 P.3d at 1154. . Id. . Cannone v. Noey, 867 P.2d 797, 801 n. 7 (Alaska 1994) ("If an owner is denied productive use of his or her property, that may be a taking regardless of the mental state of the involved government official, whether it be malicious, negligent, non-negligent but mistaken, or non-negligent and not mistaken."). . State, Dep't of Health & Soc. Servs. v. Planned Parenthood of Alaska, Inc., 28 P.3d 904, 914 (Alaska 2001) ("[We cannot defer to the legislature when infringement of a constitutional right results from legislative action." (quoting Valley Hosp. Ass'n v. Mat-Su Coalition for Choice, 948 P.2d 963, 972 (Alaska 1997)) (internal quotation marks omitted)). See also Thousand Trails, Inc. v. Cal. Reclamation Dist. No. 17, 124 Cal. App. 4th 450, 21 Cal.Rptr.3d 196, 204 (2004) ('The inverse condemnation action is independent of any right to sue under traditional tort theories."). . Haw. Housing Auth. v. Midkiff, 467 U.S. 229, 240, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984); see also Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1014, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984). . Northwestern Fertilizing Co. v. Vill. of Hyde Park, 97 U.S. 659, 669, 24 L.Ed. 1036 (1878). . AS 41.15.040. . AS 41.15.045. . 467 U.S. at 243-44, 104 S.Ct. 2321. . Id. . Id. at 244, 104 S.Ct. 2321 (second and third alterations in original) (quoting Rindge Co. v. Los Angeles Cnty., 262 U.S. 700, 707, 43 S.Ct. 689, 67 L.Ed. 1186 (1923)) (internal quotation marks omitted). . Id. (alterations in original) (quoting Block v. Hirsh, 256 U.S. 135, 155, 41 S.Ct. 458, 65 L.Ed. 865 (1921)) (internal quotation marks omitted). . Id. See also Mountain Water Co. v. Mont. Dep't of Pub. Serv. Regulation, 919 F.2d 593, 599-600 (9th Cir.1990) (explaining Hawaii Housing and noting that "[a] taking satisfies the constitutional public use requirement if it advances a 'conceivable public purpose' and regardless of whether it succeeds in realizing that purpose"). . 107 Ariz. 545, 490 P.2d 551 (1971). . Id. at 555-56. . Id. at 556. See also Concerned Citizens for Responsible Gov't v. W. Pt. Fire Prot. Dist., 127 Cal.Rptr.3d 783, 791 (2011), review granted, 132 Cal.Rptr.3d 615, 262 P.3d 853 (2011) ("Fire suppression, like bus transportation or police protection, is a classic example of a service that confers general benefits on the community as a whole."); Vezina v. City of Hartford, 106 Conn. 378, 138 A. 145, 146 (1927) ("A fire department engaged in extinguishing fires is performing a governmental duty for the general good."). . 395 U.S. 85, 89 S.Ct. 1511, 23 LEd.2d 117 (1969). . Id. at 87-88, 89 S.Ct. 1511. . Id. at 90, 89 S.Ct. 1511. . Id. at 89, 89 S.Ct. 1511. . Id. at 92, 89 S.Ct. 1511. . Id. (citations omitted). . Id. at 89, 89 S.Ct. 1511. . "We liberally interpret Alaska's Takings Clause in favor of property owners, whom it protects more broadly than the federal Takings Clause." Waiste v. State, 10 P.3d 1141, 1154 (Alaska 2000); see also Vanek v. State, Bd. of Fisheries, 193 P.3d 283, 288 (Alaska 2008) ("The Alaska Constitution contains a broader conception of compensable takings" than the Fifth Amendment of the federal constitution.). . Simmons v. Loose, 418 N.J.Super. 206, 13 A.3d 366, 389 (N.J.Super.App.Div.2011) (quoting C. Wayne Owen, Jr., Everyone Benefits, Everyone Pays: Does the Fifth Amendment Mandate Compensation When Property is Damaged During the Course of Police Activities?, 9 Wn. « Mary But Rus. J. 277, 295 (2000). . Nat'l Bd. of YMCA, 395 U.S. at 92, 89 S.Ct. 1511. . The statute provides: Upon approval by the commissioner or an authorized agent, an employee of the division of lands, or of any organization authorized to prevent, control, or suppress a fire or a destructive agent, and others assisting in the control or suppression of a fire upon request of an officer or employee of the United States or the state may at any time enter upon any land, whether publicly or privately owned, for the purpose of preventing, suppressing, or controlling a wildland fire or a destructive agent. . Morton Thiokol, Inc. v. United States, 4 Cl.Ct. 625, 630 (1984). . Waiste v. State, 10 P.3d 1141, 1155 (Alaska 2000). . Wernbergv. State, 516 P.2d 1191, 1195 (Alaska 1973) (quoting Commonwealth v. Alger, 61 Mass. (7 Cush.) 53, 85 (1851)) (internal quotation marks omitted). . Waiste, 10 P.3d at 1155 (quoting Hughes v. State, 314 Or. 1, 838 P.2d 1018, 1037 (1992) (internal quotation marks omitted). . R & Y, Inc. v. Municipality of Anchorage, 34 P.3d 289, 297-98 (Alaska 2001). . Waiste, 10 P.3d at 1155. . See Penn. Coal Co. v. Mahon, 260 U.S. 393, 416, 43 S.Ct. 158, 67 L.Ed. 322 (1922) ("[T]his is a question of degree-and therefore cannot be disposed of by general propositions."). . Lucas v. S:C. Coastal Council, 505 U.S. 1003, 1021-28, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) (tracing the judicial development of the distinction between compensable takings for public use and attempts to proscribe uses of property without compensation through the police power, and making note of "Mahon 's affirmation of limits to the noncompensable exercise of the police power"); Mahon, 260 U.S. at 413, 43 S.Ct. 158 ("[Olbviously the implied limitation [of the police power] must have its limits or the contract and due process clauses [of the Constitution] are gone."). . See generally Derek T. Muller, "As Much Upon Tradition As Upon Principle": A Critique of the Privilege of Necessity Destruction Under the Fifth ' Amendment, 82 Notre Dame L.Rev. 481 (2006). . Brack's Law Dictionary 1131 (9th ed.2009). . Id. . 1 Jurius L. Sackman, Nicrors on Eminent Domain § 1.43[2] (3d ed. 2014) ("If the individual who enters and destroys private property happens to be a public officer whose duty it is to avert an impending calamity, the rights of the owner of the property to compensation are no greater than in the case of a private individual.") . City of Rapid City v. Boland, 271 NW.2d 60, 66 (S.D.1978) (citations omitted). . See, eg., Ralli v. Troop, 157 U.S. 386, 405, 15 S.Ct. 657, 39 L.Ed. 742 (1895) ("By our law, indeed, either public officers or private persons may raze houses to prevent the spreading of a conflagration. But this right rests on public necessity, and no one is bound to compensate for or to contribute to the loss, unless the town or neighborhood is made liable by express statute."); Field v. City of Des Moines, 39 Iowa 575, 577 (1874) ("That any persons may 'raze houses to the ground to prevent the spreading of a conflagration," without incurring any liability for the loss to the owner of the houses destroyed, is a doctrine well established in the common law."); Hale v. Lawrence, 21 N.J.L. 714, 730 (N.J.1848) ("[In a densely populated town, all may unite in destroying a building to stop a conflagration which threatens destruction to the rest."); Respublica v. Sparhawk, 1 U.S. (1 Dall.) 357, 363, 1 L.Ed. 174 (Pa.1788) ('Houses may be razed to prevent the spreading of fire, because [of] the public good."); The Case of the King's Prerogative in Saltpetre, (1606) 77 Eng. Rep. 1294 (K.B.) (analogizing taking saltpeter from a private landowner during wartime to destruction to prevent the spread of fire). . See Muller, supra note 44, at 508-10; see also Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1029 n. 16, 112 S.Ct. 2886, 120 LEd.2d 798 (1992) (recognizing that there is no compensable taking when the state's destruction of property is done " 'in cases of actual necessity, to prevent the spreading of a fire' or to forestall other grave threats to the lives and property of others"). . 101 U.S. 16, 18, 25 L.Ed. 980 (1879). . Id. at 19. . See, eg., Lucas, 505 U.S. at 1029 n. 16, 112 S.Ct. 2886 (citing with approval Bowditch, 101 U.S. at 18-19); United States v. Caltex (Phil.), Inc., 344 U.S. 149, 154, 73 S.Ct. 200, 97 L.Ed. 157 (1952) ("[The common law hals] long recognized that in times of imminent peril-such as when fire threatened a whole community-the sovereign could, with immunity, destroy the property of a few that the property of many and the lives of many more could be saved."); TrinCo Inv. Co. v. United States, 722 F.3d 1375, 1377 (Fed.Cir.2013) ("'This principle, absolving the State . of lability for the destruction of real and personal property in cases of actual necessity, to prevent . or forestall . grave threats to the lives and property of others, is commonly referred to as 'the doctrine of necessity' or the 'necessity defense.'" (omissions in original)) (internal quotation marks omitted) (quoting Lucas, 505 U.S. at 1029 n. 16, 112 S.Ct. 2886); see also State v. Olsen, 99 Wis.2d 572, 299 NW.2d 632, 634 (Wis.App.1980) (An example of the doctrine of necessity is "[a) person who, seeking to stop the spread of a fire, razes a building in order to save a town." (citing W. Larave & A. Scott, Jr, HanpBook on CRIMINAL Law at 384 (Hornbook Series 1972))). . 722 F.3d at 1377-80. . Id. at 1377. . Id. . Id. at 1378. . Id. . Id. (citing Bowditch v. City of Boston, 101 U.S. 16, 16-19, 25 L.Ed. 980 (1879); Ralli v. Troop, 157 U.S. 386, 405, 15 S.Ct. 657, 39 L.Ed. 742 (1895); United States v. Caltex (Phil.), Inc., 344 U.S. 149, 151-56, 73 S.Ct 200, 97 L.Ed. 157 (1952); Mitchell v. Harmony, 54 U.S. 115, 135, 13 How. 115, 14 L.Ed. 75 (1851)). . Id. (alterations in original) (quoting Bowditch, 101 U.S. at 16) (internal quotation marks omitted). . Id. at 1378-79 (citing Caltex, 344 U.S. at 151, 73 S.Ct. 200). . Mitchell, 54 U.S. at 129. . TrinCo, 722 F.3d at 1379 (alteration in original) (quoting Mitchell, 54 U.S. at 135). . Id. at 1378, 1380. . Id. at 1380. . Id. . Id. . See United State v. Caltex (Phil.), Inc., 344 U.S. 149, 156, 73 S.Ct. 200, 97 L.Ed. 157 (1952) ("No rigid rules can be laid down to distinguish com-pensable losses from noncompensable losses. Each case must be judged on its own facts."); Mitchell, 54 U.S. at 134 ("It is impossible to define the particular circumstances of danger or necessity in which this power may be lawfully exercised. Every case must depend on its own circumstances."). . Customer Co. v. City of Sacramento, 10 Cal.4th 368, 41 CalRptr.2d 658, 895 P.2d 900, 910 (1995) (quoting Holtz v. Superior Court, 3 Cal.3d 296, 90 Cal.Rptr. 345, 475 P.2d 441, 446 (1970). Claims. . Because we conclude that only AS 41.15.045 applies, we reject the State's argument that the landowners waived the immunity issue by not appealing from the superior court's holding that the State was also protected by AS 09.50.250. . See 26 P.3d 447, 454-55 (Alaska 2001). . See id. at 455-56. . Id. at 456. . Id. at 459. . Id. . Id. . AS 41.15.045(b). . Sectional Analysis of Committee Substitute for H.B. 245, 23d Leg., 1st Sess., available at Alaska Leg. Microfiche Collection No. 10825. . Besides Angnabooguk, the letter apparently refers to Bartek v. State, Dep't of Natural Res., Div. of Forestry, 31 P.3d 100, 101 (Alaska 2001), which we observed in Bartek was "closely related" to Angnabooguk and presented the same immunity issues. Because we decided those issues in Angnabooguk, in Bartek we decided only issues of class certification. See also Srate or Araska, Dep't or Law, Or. Att'y Gen, 2003 WL 22718859 (June 2, 2003) at *4 ("These sections are intended to overrule holdings of the Alaska Supreme Court in the cases of Angnabooguk . and Bartek . that the State is not immune and may be sued for its firefighting activities."). . 2003 House Journal 782-83. . Id. . Sectional Analysis of Committee Substitute for H.B. 245, 23d Leg., 18 Sess., available at Alaska Leg. Microfiche Collection No. 10825. See also State or Auaska, Dep't or Law, Or. Att'y Gen., 2003 WL 22718859 (June 2, 2003) at *4 (The immunity provisions "reassert the State of Alaska's sovereign immunity from claims arising out of fire fighting and related activities and are intended to immunize the entire class of fire fighting activities, with the limited exception of a civil action for damages as a result of intentional misconduct within the course and scope of employment or agency and with complete disregard for the safety and property of others."). . 26 P.3d 447, 458-59 (Alaska 2001). . See Nelson v. Municipality of Anchorage, 267 P.3d 636, 642 (Alaska 2011) ("If one statutory 'section deals with a subject in general terms and another deals with a part of the same subject in a more detailed way, the two should be harmonized, if possible; but if there is a conflict, the specific section- will control over the general.' . 'If two statutes conflict, then the later in time controls over the earlier.'" (quoting In re Hutchinson's Estate, 577 P.2d 1074, 1075 (Alaska 1978); Allen v. Alaska Oil & Gas Conservation Comm'n, 147 P.3d 664, 668 (Alaska 2006))). . AS 41.15.045(b). . Angnabooguk v. State, Dep't of Natural Res., Div. of Forestry, 26 P.3d 447, 456 (Alaska 2001) (emphasis added). . Guerrero ex rel. Guerrero v. Alaska Hous. Fin. Corp., 123 P.3d 966, 977 (Alaska 2005) (quoting Indus. Indem. Co. v. State, 669 P.2d 561, 563 (Alaska 1983)). . Id. (quoting Adams v. City of Tenakee Springs, 963 P.2d 1047, 1051 (Alaska 1998)).

10344279

CARR-GOTTSTEIN PROPERTIES, Appellant, v. STATE of Alaska and Alaska Department of Natural Resources, Appellees

Carr-Gottstein Properties v. State

1995-07-14

No. S-6846

136

149

899 P.2d 136

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.

CARR-GOTTSTEIN PROPERTIES, Appellant, v. STATE of Alaska and Alaska Department of Natural Resources, Appellees.

CARR-GOTTSTEIN PROPERTIES, Appellant, v. STATE of Alaska and Alaska Department of Natural Resources, Appellees. No. S-6846. Supreme Court of Alaska. July 14, 1995. James N. Reeves, Michael T. Stehle, Bogle & Gates, Anchorage, for appellant. Eric E. Wohlforth, Thomas F. Klinkner, Wohlforth, Argetsinger, Johnson & Brecht, Anchorage, for appellees.

7677

47765

OPINION Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ. PER CURIAM. We have determined that none of the points raised by appellant are meritorious. We agree with the decisions entered in this ease by the Honorable Larry R. Weeks, superior court judge. The judgment is AFFIRMED. APPENDIX A IN THE SUPERIOR COURT FOR THE STATE OF ALASKA FIRST JUDICIAL DISTRICT AT JUNEAU Case No. 3AN-94-4995 Cl ORDER AFFIRMING DECISION OF ALASKA DEPARTMENT OF NATURAL RESOURCES MEMORANDUM AND ORDER Introduction This case comes before the court on Appellant Carr-Gottstein's (CG's) appeal of the Commissioner of the Alaska Department of Natural Resources' (DNR's) decision entitled "Final Finding Approving Lease/Purchase Agreement for Anchorage Times Facility Between DNR and ACS," dated April 11, 1994. The superior court has jurisdiction to hear this appeal pursuant to AS 22.10.020(d). Oral argument was heard on CG's Appeal on November 28, 1994 in Juneau Superior Court. At the conclusion of oral argument, the court AFFIRMED the final decision of DNR. Background THE LEASE-PURCHASE AGREEMENT During 1993, the Alaska Court System (ACS) determined it did not have enough office and warehouse space in Anchorage. At that time, ACS was leasing property from Carr-Gottstein Properties. Upon expiration of that lease, ACS determined its property needs could be met by leasing what is known as "The Anchorage Times Building" (Property) owned by VECO. ACS commissioned two appraisals of the Property, and the Property was valued at between $3.3 to $3.75 million. The owner of the Property and ACS negotiated a purchase price of $3.15 million. To acquire the Property, ACS used what is known as a "lease-purchase" agreement. Under the terms of the agreement, the biannual lease payments on the Property for the agreed ten-year lease are essentially equal to one-tenth of the negotiated purchase price. The bi-annual lease payments also include the costs of improvements and renovations needed to meet the interior space requirements of ACS. If the Legislature appropriates funding for each yearly lease payment, the State may acquire the budding at the end of the lease for a nominal purchase price. The mechanics of the ACS/DNR lease-purchase agreement involve multiple parties: (1) ACS, the lessee, (2) DNR, the lessor, (3) VECO, the owner of the property, (4) the bank, acting as Trustee, and (5) the purchasers of certificates of participation (COPs) sold by the Trustee. The agreement specifies that DNR, the lessor, holds title to the Property, and ACS, the lessee, makes biannual lease payments to DNR. The yearly lease payments are divided between principal and interest, and the interest is excluded from the seller's gross income for federal income tax purposes. Under the agreement, DNR assigned its rights under the lease "without recourse," to Seattle First National Bank, acting as Trustee. As Trustee, Seattle First National Bank sold certificates of participation (COPs) to VECO. At this juncture, VECO holds the COPs, and will eventually sell them to COP purchasers. The COPs are negotiable. Each COP holder is entitled to a percentage share of the payments made by ACS over the term of the lease. When the COPs are sold to investor-purchasers, the proceeds will go to the previous owner, VECO. DNR granted a deed of trust on the Property to be held by a trustee as security for the COP purchasers in the event that the legislature does not appropriate funds for future bi-annual lease payments. Finally, rather than make improvements prior to the lease of the Property to ACS, VECO and ACS agreed that VECO would deposit $2.85 million in an account held in trust solely for the purpose of renovating the Property. The $2.85 million may be spent at the direction of ACS to renovate and modify the building to its particular needs. PROCEDURAL HISTORY On October 26, 1993, pursuant to AS 36.30.080(c), ACS notified the Legislature of its intention to enter into a lease purchase agreement regarding the Property. At that time, ACS did not need legislative approval to enter into the lease-purchase agreement. In November of 1993, DNR determined that the lease-purchase agreement was in the best interests of the State. After an initial procedural error in providing a sufficient period for notice and comment as required by AS 38.05.945(b), DNR set a second notice and comment period from February 2, 1994 until March 7, 1994. On April 11, DNR issued a final finding approving the lease-purchase agreement. CG filed a Motion for Reconsideration of DNR's final decision. DNR denied CG's Motion for Reconsideration. CG filed an appeal of DNR's final decision in Anchorage Superi- or Court. The appeal was reassigned to Judge Larry Weeks, Superior Court Judge of the First Judicial District at Juneau on November 1, 1994. LEGISLATIVE BACKGROUND In 1993, the Legislature enacted 1993 SLA Chapter 37 (SB 129) which amended AS 36.30.080(c) to require notice to the Legislature before the legislative or judicial branch entered into a lease-purchase agreement. In compliance with amended AS 36.30.080(e), ACS notified the Legislature of its intention to enter into a lease-purchase agreement involving ACS and DNR. After the Legislature was notified of ACS' intention, the Alaska Legislative Budget and Audit Committee scheduled hearings regarding the ACS lease-purchase agreement. After hearings in December of 1993 and early January of 1994, the Legislative Budget and Audit Committee voted unanimously on January 12, 1994 to introduce SB 247. SB 247 proposed an amendment to AS 36.30.080(e) which would require not only notification of ACS' intention to enter into a lease-purchase agreement, but also legislative approval. In addition, SB 247 proposed an amendment to AS 38.05.030 to specifically prohibit DNR from acquiring real property through the use of lease-purchase agreements. During the course of debate in the Legislative Budget and Audit Committee on December 29,1994 and in the House Finance Committee on April 20, 1994, members of both committees heard testimony from Arthur Snowden, the Administrative Director of the Alaska Court System, state bond counsel, assistant attorneys general, and other parties with intimate knowledge of the Anchorage Times Property lease-purchase agreement. At the end of the process, SB 247 as amended was enacted into law as 1994 SLA Ch. 75. The Legislature, after debating the problems associated with lease-purchase agreements, restricted their use in the future. However, the Legislature specifically provided in 1994 SLA Ch. 75 § 12, that ACS and DNR could complete the lease-purchase agreement involving the Anchorage Times Property. The Legislature allowed ACS and DNR until December 31, 1994 to complete the Anchorage Times Property lease-purchase agreement. QUESTIONS PRESENTED CG's appeal of DNR's final decision presents three questions on review: 1. Whether the lease purchase agreement between DNR and ACS violates the debt restriction provision of article IX, section 8 of the Alaska Constitution. 2. Whether DNR exceeded its statutory authority pursuant to AS 36.30 in acquiring the Anchorage Times Property. 3. Whether the procedure of placing funds in escrow for the renovation of the Anchorage Times Property violates article IX, section 13 of the Alaska Constitution where the funds are not subject to the legislative appropriation procedure. Discussion STANDARD OF REVIEW Where an administrative agency decision involves the expertise of the agency or where the agency has made a fundamental policy decision, reviewing courts defer to the agency decision if it is supported by a reasonable basis. Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987); State, Dep't of Rev. v. Debenham Elec. Supply Co., 612 P.2d 1001, 1003 n. 6 (Alaska 1980); Mobil Oil Corp. v. Local Boundary Comm'n, 518 P.2d 92, 98 (Alaska 1974). However, where an agency interprets a statute which does not implicate the agency's special expertise or determination of fundamental policies, a reviewing court in Alaska exercises its independent judgment. City of Valdez v. State, Dep't of Community & Regional Affairs, 793 P.2d 532, 533 n. 6 (Alaska 1990). Similarly, where constitutional issues present questions of law, a reviewing court applies its independent judgment. Constitutional issues "should be given a reasonable and practical interpretation in accordance with common sense." Arco Alaska, Inc. v. State, 824 P.2d 708, 710 (Alaska 1992). CG's appeal raises questions of statutory interpretation and constitutional issues which neither involve fundamental policy formulation by DNR nor the agency's expertise. CG raised questions before DNR at the agency level regarding whether the lease-purchase of the Anchorage Times Property is in the best interests of the State of Alaska. CG does not assert those claims in this appeal. Therefore, there are no issues before this court which require deference to agency expertise. The court will apply its independent judgment in reviewing the questions of statutory interpretation and constitutional issues raised in CG's appeal. Arco Alaska Inc. v. State, 824 P.2d at 710; City of Valdez v. State, Dep't of Community and Regional Affairs, 793 P.2d at 533. CONSTITUTIONAL DEBT RESTRICTION 1. Whether the lease purchase agreement between DNR and ACS violates the debt restriction provision of article IX, section 8 of the Alaska Constitution. Article IX, section 8 of the Alaska Constitution provides: No state debt shall be contracted unless authorized by law for capital improvements or unless authorized by law for housing loans for veterans, and ratified by a majority of the qualified voters of the State who vote on the question. The State may, as provided by law without ratification, contract debt for the purpose of repelling invasion, suppressing insurrection, defending the State in war, meeting natural disasters, or redeeming indebtedness outstanding at the time this constitution becomes effective. CG argues that the lease-purchase agreement between ACS and DNR creates state debt without proper authorization under article IX, section 8. CG maintains that the COPs, the deed of trust and the terms of the lease-purchase agreement itself obligate the State to pay the full amount of the principal due under the certificates. Thus, CG asserts that the State has taken on a debt to pay $6.153 million plus interest over a ten-year period rather than pay rent for one year's term. CG argues that the State has taken on an "unconditional payment obligation" under the deed of trust," and the fact that the lease provides that bi-annual rental payments are subject to legislative non-appropriation is "immaterial." Further, CG argues that once the lease is in effect, the "free exercise" of future Legislatures will be discouraged when faced with the prospect of non-appropriation and the resulting loss of ACS's facilities. CG argues that the ACS/DNR lease-purchase agreement is nothing more than "a conditional sales contract in substance," and should be viewed as an unauthorized state debt. CG rejects precedent in other jurisdictions which hold that where a lease-purchase agreement is subject to annual appropriation, constitutional debt restrictions are not offended. CG argues that the court should give a broad interpretation to the meaning of "debt" when interpreting the constitutional debt restriction of article IX, section 8 of the Alaska Constitution. The State responds, arguing where bi-annual lease payments under the ACS/DNR lease are subject to annual appropriation by the legislature, that the State does not incur the kind of long term "debt" prohibited by article IX, section 8. The State argues that the legislature is free to "non-appropriate" funds for the lease during any legislative session. The State points to a survey of other jurisdictions which hold that inclusion of a non-appropriation clause in a lease-purchase agreement does not create the type of "debt" which is offensive to constitutional debt limitation provisions. The State asserts that legislative non-appropriation does not constitute "default" under the lease. If non-appropriation were to occur, the State argues it would not "forfeit" its equity; instead, it would be entitled under the lease to receive the surplus proceeds of the sale or reletting of the property after paying the outstanding principal owed under the lease. ALASKA PRECEDENT In a series of cases, the Alaska Supreme Court has interpreted the meaning of "debt" in relation to the Aaska Constitution. In DeArmond v. Alaska State Development Corp., 376 P.2d 717 (Aaska 1962), the newly created Alaska State Development Corporation (ASDC) sought to sell bonds in order to raise money to provide investment capital for Aaska businesses. The Alaska Supreme Court held that where the sale of bonds is backed only by the credit of ASDC, the debt incurred is not the State's. DeArmond, 376 P.2d at 722. The court noted that the legislation creating ASDC specifically provided that bonds sold by ASDC did not constitute a pledge of the State's credit. Id. In Walker v. Alaska State Mortgage Ass'n, 416 P.2d 245 (Aaska 1966), the appellant argued that funds raised through the sale of bonds by the Aaska State Mortgage Association created state debt in violation of article XI, section 8 of the Aaska Constitution. Walker, 416 P.2d at 253. The Walker court reaffirmed its position in DeArmond, holding that where the sale of bonds clearly specifies that bonds are backed only by the resources of the corporation, they do not create state debt. Id. As the State points out, in Walker, the Aaska Supreme Court cited Book v. State Office Bldg. Comm'n, [238 Ind. 120] 149 N.E.2d 273 (1958), in support of its holding. Walker, 416 P.2d at 253, n. 39. In Book, the Indiana Supreme Court reviewed the terms of a lease between the State Office Building Commission and state agencies which leased space in the building. Book, 149 N.E.2d at 286-87. The Book court held: In our opinion this language [in the lease agreement] neither requires the State departments and agencies to rent any space in the proposed building nor binds any future session of the Legislature to appropriate the funds with which to pay the rental due by reason of any use and occupancy agreement which may be consummated by any of the State departments and agencies and the commission. (Emphasis added.) Id. The Book court based its holding that the lease in question did not create debt in contravention of the Indiana Constitution, in part, on the inclusion of a non-appropriation clause in the lease agreement. In addition, in its brief, the State notes that the Book court cited State ex rel. Thomson v. Giessel, [271 Wis. 15] 72 N.W.2d 577 (1955), in which the Wisconsin Supreme Court held that the inclusion of non-appropriation clauses in lease-purchase agreements prevents a state debt obligation from arising. Giessel, 72 N.W.2d at 590 ("[N]o state debt is created where payments are to be made solely at the state's option"). The Giessel decision has been cited as a leading authority for courts which uphold lease-purchase agreements based, in part, on the inclusion of a non-appropriation clause. Reuven M. Bisk, State and Municipal Lease-Purchase Agreements: A Reassessment, 7 Harv.J.L. & Pub.Pol'y 522, 536-37, 545-46 (1984). In Norene v. Municipality of Anchorage, 704 P.2d 199 (Alaska 1985), the court considered whether an Anchorage Home Rule Charter provision which provided that any "lease-purchase" agreement which was in excess of $1 million required voter approval. The Norene court held that the Municipality had entered into a "lease-purchase" agreement, but upheld the Municipality's actions because the lease-purchase agreement did not involve a purchase of more than $1 million. The Norene court's decision to uphold a lease-purchase agreement supports the prop osition that lease-purchase agreements are not offensive per se to the constitutional debt limitation in article IX, section 8. The No-rene court upheld the lease purchase agreement on grounds that the amounts of the lease provisions did not individually exceed $1 million. Id. Further, the Norene court upheld the agreement even though the terms of the agreement provided that the municipality would lose its equity in leased land if it decided not to purchase the property at the end of the lease. Id. In order to uphold the lease-purchase agreement, the Norene court necessarily had to approve of lease-purchase agreements as a threshold matter. Finally, in Village of Chefornak v. Hooper Bay Constr., 758 P.2d 1266 (Alaska 1988), the court defined "debt" in the context of article IX of the Alaska Constitution. In Chefornak, the issue was whether a breach of contract claim settled by the municipality created a debt under article IX, section 9 of the Alaska Constitution. The Chefornak court rejected an interpretation of debt in relation to article IX based on the "commonly understood" meaning of debt as "every obligation to pay money." Chefornak, 758 P.2d at 1269 (quoting Rochlin v. State, [112 Ariz. 171, 175] 540 P.2d 643, 647 (1975)). The Chefomak court adopted a "less comprehensive" definition of debt where it is used "in the constitutional sense": This court has many times said what Article 8 means by the word "debt." We think that it means borrowed money; it denotes an obligation created by the loan of money, usually evidenced by bonds but possibly created by the issuance of paper bearing a different label. Chefornak, 758 P.2d at 1270 (quoting State ex rel. Wittier v. Yelle, [65 Wash.2d 660] 399 P.2d 319, 324 (1965)). When taken together, this court finds that the foregoing Alaska cases and the cases cited by the Alaska Supreme Court define constitutional "debt" as a term of art used to describe an "obligation" involving borrowed money where "there is a promise to pay sums such as rents accruing in the future whether funds are available or not." Bisk, supra, at 522, 537. Where a lease-purchase agreement does not require a future legislature to appropriate funds, the agreement is not a long-term binding obligation to repay borrowed money pursuant to article IX, section 8, and is not "debt" as defined by the Alaska Supreme Court. LEASE-PURCHASE AGREEMENTS IN OTHER JURISDICTIONS During oral argument, the State argued that the majority of jurisdictions which have considered constitutional debt limitations have upheld lease-purchase agreements which contain a non-appropriation clause. CG argued that the courts in jurisdictions cited by the State approved lease-purchase agreements based on the inclusion of a non-appropriation clause and.because the lease-purchase agreement was between a third party and an independent state corporation (e.g. transit authority). The State responded, arguing that the terminable nature of the obligation based on the inclusion of a non-appropriation clause, rather than the status of the parties, is the determinative factor when assessing constitutional debt restrictions in the context of lease-purchase agreements. The court finds that the independent nature of the state corporation or authority is some evidence that the State is not contracting debt in a lease-purchase agreement. However, the nature or relationship of the contracting parties alone is not the dispositive issue in determining whether an agreement violates the debt restriction in article IX, section 8. The court finds that the reasoning in the cases cited by the State is in accordance with Alaska law. In DeAr-mond, Walker, and Norene, the Alaska Supreme Court examined the terms of the lease or transaction to determine whether a debt obligation had been created within the constitutional definition of "debt." See accord Giessel, 72 N.W.2d at 590. The lease-purchase agreement in the case at bar contains a non-appropriation clause and other terms which limit the recourse of the COP holders to the leased property. The court finds that the lease-purchase agreement does not create debt based on the terms of the agreement, notwithstanding the status of the contracting parties. The court upholds the lease agreement in the case at bar where the lease (1) contains a non-appropriation clause; (2) limits recourse to the leased property; and (8) does not create a long-term obligation binding future generations or Legislatures. STATUTORY AUTHORITY TO ENTER LEASE 2. Whether DNR exceeded its statutory authority in acquiring the Anchorage Times Property. CG argues that DNR lacks the statutory authority to enter into the ACS/DNR lease. The State responds, arguing that the plain meaning of the statutory authority authorizing DNR to enter into leases is broad. Further, the State argues that the Legislature was notified of the ACS/DNR lease-purchase agreement, and while exercising its oversight authority regarding future lease-purchase agreements, the Legislature provided specific statutory authority for DNR to proceed with the ACS/DNR lease. The applicable statutes authorizing ACS and DNR to enter into lease-purchase agreements provide: AS 36.30.080. Leases. (b) The department, legislative branch, or judicial branch may enter into lease-purchase agreements, including lease-financing agreements. A lease-purchase agreement must provide that lease payments are subject to annual appropriation. (c) If the department, legislative branch, or judicial branch intends to enter into or renew a lease of real property with an annual rent to the department, legislative branch, or judicial branch that is anticipated to exceed $1,000,000, or with total lease payments that exceed $10,000,000 for the full term of the lease, the department, legislative branch, or judicial branch shall provide notice to the legislature. AS 38.05.035. Powers and Duties of the Director, (a) The director shall (2) manage, inspect and control state land and improvements on it belonging to the state and under the jurisdiction of the division; (12) be the certifying agent of the state to select, accept, and secure by deed whatever action is necessary in the name of the state, by deed, sale, gift, devise, judgment, operation of law, or other means any land, of whatever nature or interest available to the state. 1994 SLA Ch. 75 § 12(b): (b) [T]he Department of Natural Resources may continue to enter into lease-purchase or lease-financing agreements . but only if the Department of Natural Resources is the lessor of the property and the judicial branch is lessee. When read together, the above statutes provide DNR with a broad grant of authority to purchase land for the State before December 31, 1994 for any purpose by means of a lease-purchase agreement, as long as the agreement is subject to annual appropriation, the lessor is DNR and the lessee is ACS. The court finds that the plain meaning of the above statutes provides DNR with the authority to enter into the ACS/ DNR lease-purchase agreement. RENOVATION FUNDS IN ESCROW 3. Whether the procedure of placing funds in escrow for the renovation of the Anchorage Times Property violates article IX, section 13 of the Alaska Constitution where the funds are not subject to legislative appropriation. Article IX, section 13 of the Alaska Constitution provides in relevant part: No money shall be withdrawn from the treasury except in accordance with appropriations made by law. CG argues that funds placed in trust by VECO for the renovation of the Anchorage Times Property are "program receipts" which must be placed in the state treasury and subject to the Legislature's powers of appropriation. The State responds that if VECO had made the improvements ACS requires and had incorporated the costs of the renovation into the total price of the lease, there would be no dispute and that legally the funds would not belong to ACS. Pursuant to AS 36.30.080(c), ACS' notice to the Legislature of its intention to enter into a lease-purchase of the Anchorage Times Property included notice that the property required $2.8 million in renovations. The Legislature specifically approved the cost of the lease-purchase and renovations to the building by enacting SB 247 into law (1994 SLA Ch. 75). Commercial leases commonly require a landlord to make improvements. Where private funds are placed in trust for the renovation of a building subject to the lessee's instructions, the funds do not constitute unrestricted "program receipts" subject to deposit in the state treasury pursuant to AS 37.05.146. The renovation funds are not held in the name of the State. The funds held in trust are restricted by the terms of the contract, and may only be spent to renovate and improve the Property. The funds are not income, and cannot be spent at the unfettered discretion of ACS. Where ACS determines that certain improvements to the Property are necessary, ACS may make improvements. If the funds are spent to improve the Property, the Trustee, pursuant to the terms of the trust, will release the funds necessary to pay for the improvements. The "renovation fund" does not provide ACS with unbridled authority to spend funds renovating the Anchorage Times Building. Renovation funds are limited to the amount held in trust, and are subject to disbursement by the Trustee for improvements to the Property. In 1994, the Legislature approved spending $2.8 million as part of the agreement to lease-purchase the Anchorage Times Building. The $2.8 million renovation fund does not violate article IX, section 13 of the Alaska Constitution. Order The court AFFIRMS the final decision of the Alaska Department of Natural Resources. Done this 7th day of December, 1994. Larry R. Weeks Superior Court Judge. APPENDIX B IN THE SUPERIOR COURT FOR THE STATE OF ALASKA FIRST JUDICIAL DISTRICT AT JUNEAU Case No. 3AN-94-4995 Cl ORDER GRANTING APPELLEES' MOTION FOR ATTORNEY'S FEES MEMORANDUM AND ORDER Introduction This case comes before the court on the Appellees' Motion for Attorney's Fees. The appellees base their motion for attorney's fees on this court's previous Memorandum and Order dated December 7, 1994, where the court upheld a decision of the Commissioner of the Department of Natural Resources (DNR). The court's decision upheld DNR's decision which authorized the Alaska Court System (ACS) and DNR to proceed with the lease-purchase of the Anchorage Times Building in Anchorage. The appellant has opposed the appellees' motion, arguing that the appellant should be accorded public interest litigant status, and that no attorney's fees should be awarded to the appellees. Background Until May 1, 1994, the Alaska Court System (ACS) leased and occupied property owned by Carr-Gottstein Properties (CG) in Anchorage. During 1993, ACS and DNR entered into a lease-purchase agreement for the purchase of the Anchorage Times Building, a building ACS determined would better suit its current and projected space requirements. The lease agreement provided that ACS would be the lessee, and that DNR would be the lessor. The terms of the agreement provided that ACS would make yearly lease payments to DNR. The agreement further provided that DNR would assign its rights to the yearly ACS payments to a trustee. In turn, the trustee would sell certificates of participation, entitling the holders of the certificates to a percentage share of the yearly lease payments made by ACS over the term of the lease. CG opposed the ACS/DNR lease-purchase. During the administrative proceedings, CG argued before DNR that the ACS/DNR lease-purchase violated the constitutional debt restriction in article IX, section 8 of the Alaska Constitution. DNR issued a final decision approving the lease-purchase on April 11, 1994. After DNR denied CG's Motion for Reconsideration, CG filed an appeal with this court. After a hearing on November 28, 1994, the court issued its decision affirming DNR's decision. The court found that the lease-purchase agreement did not create "debt" as prohibited by article IX, section 8 of the Alaska Constitution. The court upheld the ACS/DNR lease-purchase where the lease (1) contains a non-appropriation clause; (2) limits recourse to the leased property; and (3) does not create a long-term obligation binding future generations or Legislatures. The appellees argue that they prevailed on the main issue in the litigation, and should be awarded attorney's fees incurred during the appeal of this case. The appellees submit that they incurred attorney's fees of $33,-587.50 during this appeal. The appellees contend that the fees they incurred are reasonable in light of the "complex questions of first impression that this appeal presented." The appellees conclude that as a prevailing party on appeal, they are entitled to partial compensation for their attorney's fees. The appellant opposes the Appellees' Motion for Attorney's Fees, arguing that the appellant raised important legal questions relating to the interpretation of the Alaska Constitution. The appellant concedes that the appellees prevailed on the main issue of the litigation. However, the appellant contends that as a result of this litigation, benefits many inure to the State in the form of favorable future interest rates. Accordingly, the appellant argues it should be accorded the status of a public interest litigant, and that since it litigated on behalf of the public interest, the appellees may not recover any attorney's fees. The appellant concludes that even if the court rejects the appellant's public interest litigant status, the court should only award reasonable attorney's fees pursuant to the analogous application of Civil Rule 82. The appellant notes that the appel-lees utilized outside counsel instead of any of the estimated 200 assistant attorneys general, and in addition, multiple attorneys worked on the case resulting in a duplication of efforts. The questions presented by the above arguments of the parties are: 1. Whether the appellant is entitled to the status of a public interest litigant, resulting in no award of attorney's fees to the appellees. 2. Whether ther appellees were the prevailing parties in this appeal, and are entitled to attorney's fees pursuant to Buie of Appellate Procedure 508(e). Discussion PUBLIC INTEREST LITIGANT 1. Whether the appellant is entitled to the status of a public interest litigant, resulting in no award of attorney's fees to the appellees. It is an abuse of discretion to award attorney's fees against an unsuccessful public interest plaintiff who raises a claim in good faith. Girves v. Kenai Peninsula Borough, 536 P.2d 1221, 1227 (Alaska 1975); Hunsicker v. Thompson, 717 P.2d 358, 359 (Alaska 1986); Anchorage Daily News v. Anchorage Sch. Dist., 803 P.2d 402, 404 (Alaska 1990). However, where "private stakes are high," a lawsuit may not be in the "genuine public interest." Hunsicker v. Thompson, 717 P.2d at 359, n. 2 (citing Gold Bondholders Protective Council v. Atchison, Topeka and Santa Fe Railway, 658 P.2d 776 (Alaska 1983)). A public interest litigant is a party who satisfies the following criteria: (1) Is the case designed to effectuate strong public policies? (2) If the plaintiff succeeds will numerous people receive benefits from the lawsuit? (3) Can only a private party have been expected to bring this suit? (4) Would the purported public interest litigant have sufficient economic incentive to file suit even if the action involved only narrow issues lacking general importance? Loeb v. Rasmussen, 822 P.2d 914, 921 n. 18 (Alaska 1991); Keane v. Local Boundary Comm'n, 893 P.2d 1239 (Alaska 1995). The litigation in this case appears to have been initiated based on the commercial real estate interests of CG. CG appeared before DNR in opposition to DNR and ACS's proposal to lease purchase the Anchorage Times building. If CG had succeeded in this litigation, the primary beneficiary would have been CG, and CG may have been able to offer ACS a new lease agreement on the building ACS had been leasing from CG. It is true, as CG argues, that litigation of novel questions of constitutional law may benefit a broad range of people and interests. Girves, 536 P.2d at 1227. However, that proposition is true for each incremental advancement of the stare decisis process. In this case, CG had a significant financial incentive to initiate litigation both before DNR and in this court. See generally Murphy v. City of Wrangell, 763 P.2d 229 (Alaska 1988). But compare Keane, 893 P.2d at 1250-51. Even though ACS let the lease of CG's property expire and began vacating the premises, CG may have had an opportunity to attract ACS again as a tenant if the appel-lees had not prevailed. At the origin of this lawsuit before DNR, CG had potentially hundreds of thousands of dollars at stake. The court finds that CG had a significant financial interest in this litigation, and denies the appellant public interest litigant status. ATTORNEY'S FEES AWARD TO PREVAILING PARTY 2. Whether the appellees were the prevailing parties in this appeal, and are entitled to attorney's fees pursuant to Rule of Appellate Procedure 508(e). The Alaska Supreme Court defines the prevailing party as follows: [T]he prevailing party to a suit is the one who successfully prosecutes the action or successfully defends against it, prevailing on the main issue, even though not to the extent of the original contention. He is the one in whose favor the decision or verdict is rendered and the judgment entered. Tobeluk v. Lind, 589 P.2d 873, 876 (Alaska 1979) (quoting Buza v. Columbia Lumber Co., 395 P.2d 511, 514 (Alaska 1964)). The main issue in this litigation was whether the ACS/DNR lease violated the debt restriction provision of article IX, section 8 of the Alaska Constitution. The appellant does not dispute that the appellees prevailed on the main issue of this litigation. The court affirmed the lease-purchase agreement, and ACS and DNR proceeded by implementing the lease based on this court's ruling. The remaining question is what reasonable attorney's fees should be awarded to the appellees as prevailing parties. An award of attorney's fees in an appeal of an agency decision to superior court is governed by Rule of Appellate Procedure 508. Appellate Rule 508 provides in relevant part: (e) Attorney's Fees. Attorney's fees may be allowed in an amount to be determined by the court. If such an allowance is made, the clerk shall issue an appropriate order awarding fees at the same time that an opinion or an order under Rule 214 is filed. If the court determines that an appeal or cross-appeal is frivolous or that it has been brought simply for purposes of delay, actual attorney's fees may be awarded to the appellee or cross-appellee. An award of attorney's fees pursuant to Appellate Rule 508(e) ordinarily "should only partially compensate the prevailing party for attorney's fees." State Public Employees Retirement Board v. Cacioppo, 813 P.2d 679, 685 (Alaska 1991) (quoting Kenai Peninsula Borough v. Cook Inlet Region, Inc., 807 P.2d 487 (Alaska 1991)). In awarding attorney's fees pursuant to Civil Rule 508(e), a court may exercise its sound discretion to award attorney's fees which are justified and reasonable. Cacioppo at 685 (citing Stevens By Park View Corp. v. Richardson, 755 P.2d 389, 396 (Alaska 1988)). The court has reviewed the billing summaries submitted by the appellees in support of their motion for attorney's fees. The billing summaries reflect that the appellees expended a total of 235.6 total hours of attorney and paralegal time on this appeal, for a total value of $33,587.50. The appellees utilized paralegals for a total of 70.7 hours, or 30% of the total hours expended. In addition, the court notes that the record was lengthy, the issue was one of first impression, and the case was fully briefed by both parties. The appellant argues that where a party appeals an administrative agency decision, but receives no money judgement, the guidelines in Civil Rule 82(b)(2) may be applied by analogy to Appellate Rule 508(e) to determine a reasonable award of attorney's fees. The appellant argues that an award of attorney's fees pursuant to Civil Rule 82(b)(2) would result in an award of 20% of $33,587.50, or $6,717.50. Order The court agrees that $6,717.50 is commensurate with the complexity of the issues, the briefing and the magnitude of the lease-purchase at stake in this appeal. Larry R. Weeks Superior Court Judge. . The decisions are appended, having been edited in conformity with Supreme Court procedural standards. . AS 22.10.020(d) provides: The superior court has jurisdiction in all matters appealed to it from a subordinate court, or administrative agency when appeal is provided by law. The hearings on appeal from a final order or judgment of a subordinate court or administrative agency shall be on the record unless the superior court, in its discretion, grants a trial de novo, in whole or in part. . 1994 SLA Ch. 75 § 12 provides: 12. APPLICABILITY TO ALASKA COURT SYSTEM AND DEPARTMENT OF NATURAL RESOURCES. (a) Notwithstanding the amendments of AS 22.05.025(a) made by sec. 2 of this Act, AS 36.30.030 made by sec. 5 of this Act, and AS 36.30.080(c) made by sec. 6 of this Act, the addition of AS 36.30.085 made by sec. 7 of this Act, and the repeal of AS 36.30.080(b) made by sec. 11 of this Act, after the effective date of this section and until December 31, 1994, the Alaska Supreme Court may continue to enter into lease-purchase or lease-financing agreements for the judicial branch under the provisions of AS 22.05.025(a), AS 36.30.030, 36.30.080(b), and 36.30.080(c) as they read before their amendment or repeal by this Act. (b) Notwithstanding the amendments of AS 36.30.080(c) made by sec. 6 of this Act, AS 36.30.850(b)(5) made by sec. 8 of this Act, and AS 36.30.850(c) made by sec. 9 of this Act, the addition of AS 36.30.085 made by sec. 7 of this Act and of AS 38.05.030(g) made by sec. 10 of this Act, and the repeal of AS 36.30.080(b) made by sec. 11 of this Act, after the effective date of this section and until December 31, 1994, the Department of Natural Resources may continue to enter into lease-purchase or lease-financing agreements under the provisions of AS 36.30.080(b), 36.30.080(c), 36.30.850(b)(5), 36.30.850(c), and AS 38.05 as they read before their amendment or repeal by this Act, but only if the Department of Natural Resources is the lessor of the property and the judicial branch is lessee. . Article IX, section 8 originally provided debt restrictions for both state and political subdivisions or municipalities. Debt restrictions covering the state and its political subdivisions were eventually divided into two sections: section 8 provides debt restrictions for the state; and section 9 for political subdivisions. Village of Chefornak v. Hooper Bay Constr., 758 P.2d 1266, 1269 n. 5 (Alaska 1988). . The Delegates to the Alaska Constitution did not specifically prohibit the use of lease-purchase agreements. The court finds that lease-purchase agreements which are subject to yearly appropriation and which the Legislature may cancel are not "debt" within the restrictions explicitly stated in article IX, section 8, or contemplated by the Delegates. The following excerpt from the Constitutional Convention appears to be the only comment by the Delegates on article DC, section 8. The court finds that the lease-agreement in the case at bar does not fall within the constitutional debt restriction as contemplated by the Framers. SIXTY-SEVENTH DAY HELLENTHAL: I have a question I want to ask of Mr. Nordale for purposes of the record and to assist Style and Drafting in a possible clarification. Mr. Nerland, I mean. In Section 11, where the Committee deals with the nonapplicability of the restrictions on debt, in the case of revenue bonds issued by public corporations of the state, first; public enterprises of the state, second; and thirdly, any political subdivision. Does the Committee mean by that language that any political subdivision can issue revenue bonds either through a public corporation or through a public enterprise, or directly, like the City of Anchorage did with its Eklutna project; and in the event that they choose to issue them directly without employing the device of the public corporation, will those bonds be exempt from the restrictions applicable to debt? NERLAND: That was the intention of the Committee, Mr. Hellenthal. February 3, 1956 SEVENTY-THIRD DAY BARR: I would like to ask the grammarian in the Style and Drafting Committee about Section 11. It seems to me that there is one comma in the first sentence which doesn't seem to be placed right. If so, there should be a couple ahead of it, "The restrictions on contracting debt do not apply to debt incurred through the issuance of revenue bonds by a public enterprise or public corporation of the state or a political subdivision, when the only security is the revenues of the enterprise or corporation." PRESIDENT EGAN: Who is the grammarian, Mrs. Nordale? SUNDBORG: Mrs. Nordale. NORDALE: Well, actually, if you put commas in there you would change the meaning of it, at least our understanding of it. They do not apply to debts incurred through the issuance of revenue bonds by a public enterprise or public corporation of the state or political subdivision. You see the whole thing is tied together. It could be either a public enterprise of the state or a political subdivision, or public corporation of the state or a political subdivision. BARR: Why is the comma before the word "when"? What does it separate? NORDALE: That just separates a clause that applies to the whole sentence. BARR: Yes, but there is no separation of thought there. NORDALE: Well, restrictions do not apply when the only security is the revenues of the enterprise or corporation. BARR: Then you wouldn't have a comma. I wouldn't. NORDALE: Well, wouldn't you like to stop to take a breath? .CG argues that the result of a lease-purchase agreement restricts legislative discretion. CG argues that for financial reasons, future legislatures might find it difficult, if not impossible, to stop appropriating funds for the ACS lease. CG argues that the case at bar is similar to Sonneman v. Hickel, 836 P.2d 936 (Alaska 1992). In Sonneman, the Alaska Supreme Court held that a statute which provided that the "the legislature may appropriate amounts from the . fund . to the . marine highway system," did not legally restrict the legislature from using funds for other purposes after a portion of the statute was severed away. The court severed a portion of the statute in question which specifically prevented the Legislature from dedicating funds in question for any other use. Id. at 940-41. There is no provision in the lease-purchase agreement in the case at bar which prevents the legislature from exercising the option of non-appropriation. While economic incentives may make the ACS lease-purchase of the Anchorage Times Property attractive, economic incentives alone do not restrict the Legislature's free exercise of discretion. See Schulz v. State [84 N.Y.2d 231, 616 N.Y.S.2d 343, 352], 639 N.E.2d 1140, 1149 (1994) (Such spending plans are effectual only to the extent subsequent legislatures indeed do "give effect to them by providing the means and directing their payment, but the discretion and responsibility is with them as if no former appropriations had been made. No duty or obligation is devolved upon them by the acts of their predecessors."). . The Alaska Attorney General approved the ACS/DNR lease-purchase agreements on June 2, 1994. . See Opinion of the Justices, 335 So.2d 376, 379-80 (Ala.1976); Glennon Heights, Inc. v. Central Bank & Trust, 658 P.2d 872, 878-79 (Colo.1983); State v. Brevard County, 539 So.2d 461, 463-64 (Fla.1989); Barkley v. City of Rome [259 Ga. 355], 381 S.E.2d 34, 35 (1989); Berger v. Hewlett [25 Ill.2d 128], 182 N.E.2d 673, 675 (1962); State ex rel. Fatzer v. Armory Bd. [174 Kan. 369], 256 P.2d 143, 151 (1953); Warren County Fiscal Court v. Warren County Tuberculosis Sanitarium Corp., 272 S.W.2d 331, 332 (Ky.1954); Edgerly v. Honeywell Information Sys., Inc., 377 A.2d 104, 108 (Me. 1977); St. Charles City-County Library Dist. v. St. Charles Library Bldg. Corp., 627 S.W.2d 64, 66-68 (Mo.App. 1981); Ruge v. State [201 Neb. 391], 267 N.W.2d 748, 750-51 (1978); Enourato v. New Jersey Bldg. Auth. [90 N.J. 396], 448 A.2d 449, 455-56 (1982); Schulz v. State [84 N.Y.2d 231, 616 N.Y.S.2d 343], 639 N.E.2d 1140 (1994); Halstead v. McHendry, 566 P.2d 134, 137-38 (Okla.1977); State ex rel. Kane v. Goldschmidt [308 Or. 573], 783 P.2d 988, 995-96 (1989); Caddell v. Lexington County Sch. Dist. No. 1 [296 S.C. 397], 373 S.E.2d 598, 599 (1988); Millar v. Barnett [88 S.D. 460], 221 N.W.2d 8, 9-10 (1974); Texas Public Bldg. Auth. v. Mattox, 686 S.W.2d 924, 927-29 (Tx.1985); Municipal Bldg. Auth. of Iron County v. Lowder, 711 P.2d 273, 278-80 (Utah 1985); Dykes v. Northern Virginia Transp. Dist. Comm'n [242 Va. 357], 411 S.E.2d 1, 9-10 (1991) (on rehearing); Department of Ecology v. State Finance Committee [116 Wash.id 246], 804 P.2d 1241, 1244-47 (1991); Dieck v. Unified Sch. Dist. of Antigo [165 Wis.2d 458], 477 N.W.2d 613, 618-21 (1991). . ACS/DNR Lease § 3.01 (ACS can terminate the lease at its option pursuant to § 3.03). ACS/DNR Lease § 3.03 states: Lessee is obligated only to pay such Rental Payments under this Agreement as may be lawfully made from funds budgeted and appropriated for that purpose during Lessee's then current budget year.... Should Lessee fail to appropriate or otherwise make available funds to pay Rental Payments following the then current Original Term or Renewal Term, this Agreement shall be deemed terminated at the end of the then current Original Term or Renewal Term. ACS/DNR Lease § 6.01 provides that the "Rental Payments" are not to be construed as the creation of indebtedness of the Lessee of a pledge of the general tax revenues, but are a current expense only. . CG argues that the court should follow the reasoning in Montano v. Gabaldon [108 N.M. 94], 766 P.2d 1328 (1989). In Montano, the court held that where a lease-purchase agreement which is terminated during the course of a lease results in the municipality or state's loss of all equity, the lease agreement constitutes the unconstitutional creation of debt. Id. [766 P.2d] at 1330. The Montano court adopts the view that any "equitable, moral or contingent" duty to appropriate funds for each lease term is offensive to the constitutional prohibition against creating debt without voter approval. Id. [766 P.2d] at 1329-30. The Montano decision is distinguishable from the facts of the case at bar. The ACS/DNR lease provides that ACS does not lose all equity upon termination of the agreement pursuant to ACS/DNR Lease § 13.02 and 13.03 (surplus rental payments in excess of rent due and outstanding principal payments, are awarded to the lessee). The court declines to follow the reasoning of the Montano court based on the foregoing discussion. . See generally Bisk, supra. . AS 36.30.080 (prior to June 7, 1994). . A more detailed factual background regarding the ACS/DNR lease-purchase may be found in this court's Memorandum and Order dated December 7, 1994. . Memorandum and Order, 3AN-94-4995 Cl at 20 (Alaska Superior Court 1994).

11760655

Lesley Ann KNUTSON (Logue), Appellant, v. Randy Thomas KNUTSON, Appellee

Knutson v. Knutson

1999-03-05

No. S-8246

588-596

603

973 P.2d 596

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.

Lesley Ann KNUTSON (Logue), Appellant, v. Randy Thomas KNUTSON, Appellee.

Lesley Ann KNUTSON (Logue), Appellant, v. Randy Thomas KNUTSON, Appellee. No. S-8246. Supreme Court of Alaska. March 5, 1999. Susan H. Carse, Bauer and Carse, Anchorage, for Appellant. David W. Baranow, Law Offices of David Baranow, Anchorage, for Appellee. Before MATTHEWS, Chief Justice, and COMPTON, EASTAUGH, FABE, and BRYNER, Justices.

3871

24372

OPINION EASTAUGH, Justice. I. INTRODUCTION When Randy and Lesley Knutson dissolved their marriage and divided their property in 1988, they agreed to postpone selling the marital residence until its market value rose. In 1997 Randy sought judicial authority to buy out Lesley's share in the still-unsold house. The superior court found the parties' agreement to be ambiguous; interpreting the agreement, it ordered Randy to pay Lesley $4,301.50 to buy out her equity interest. The superior court correctly found that the agreement required division of the parties' equity, but it was error to implicitly fiijd that the parties did not intend to share the benefits of the post-dissolution reduction of their mortgage debt. We remand for recalculation of the value of Lesley's interest to correct that error. It was also error to fail to account for mortgage assistance Randy received that increased the parties' mortgage debt by about $7,900. But it was not error to credit Randy with twenty percent of his post-dissolution home improvement expenses given evidence that the improvements might maintain or increase the value of the house. II. FACTS AND PROCEEDINGS Randy Thomas Knutson and Lesley Ann Knutson (now Logue) married in 1974. In late 1987 they petitioned for dissolution of their marriage. Neither was represented by counsel. Their petition incorporated an amended agreement concerning disposition of their Eagle River marital residence. They had purchased it for $123,440. When they petitioned for dissolution, its market value was about $104,700, and the mortgage balance was about $117,000. Because the house then had a "negative equity," they decided to wait for the housing market to improve before selling it. Their amended dissolution agreement added the following term: "Husband will .occupy the house and pay its mortgage and utilities until it sells, whereupon both parties shall equally split either the profits or debt." They also agreed that Randy would receive all household furniture. Superior Court Judge Peter A. Michalski granted the petition in early 1988. With Lesley's approval, Randy reorganized the mortgage debt in January 1989. The reorganization increased the term from sixteen to thirty years, at the original interest rate. At the same time Randy also received a twenty-four-month subsidy of his mortgage payments through a homeowner's assistance plan. The subsidy added $6,615.67 to the mortgage balance and was to be amortized over the life of the reorganized loan. The reorganization also paid the $1,293.25 January mortgage payment, and increased the new mortgage balance by that amount. Lesley later testified that she had not known of or agreed to the subsidy; Randy did not claim that she had. Lesley remained jointly liable with Randy on the reorganized mortgage. As a result of the 1989 reorganization, the mortgage balance rose from $112,931.81 to $121,698.02. Randy tried to refinance the mortgage in 1994 to take advantage of lower interest rates. According to Randy, Lesley withheld her approval, and Randy could not refinance. Randy contends that he lost the chance to save more than $80,000 over the term of the loan because Lesley blocked the refinancing, although no admissible evidence established that her alleged refusal caused measurable financial loss. Lesley denied that she had refused to cooperate. In January 1997 Randy moved under Alaska Civil Rule 60(b) for relief from the property settlement agreement incorporated into the dissolution decree; he alleged that he feared Lesley would stymie all future refinancing efforts. He asked the court to modify the dissolution decree so that he could "buy out" Lesley's interest in the house. Lesley did not object to a buyout, but disagreed with Randy's proposed method for calculating the buyout price. The parties exchanged memoranda and testified at a hearing before Superior Court Judge Sen K. Tan. They offered conflicting interpretations of their agreement. Randy contended that the parties intended to divide equally any "profit," which he defined as the value of the house at the time of sale minus the cost of sale, the original purchase price, the original closing costs, the costs of pre-dissolution improvements, and the increased value he attributed to post-dissolution improvements. Randy calculated that a hypothetical sale of the house at fair market value in 1997 would result in a loss of $9,374.17. Although his motion did not expressly say so, it implied that Lesley should pay him for half of this hypothetical loss. Lesley contended that the parties intended to divide equally the "equity" in the property, which she defined as the value of the house at the time of the buyout ($127,500) less the mortgage balance then owed ($113,043.77). She concluded that her equity interest was half of $14,456.23. Lesley also argued that Randy's 1989 mortgage reorganization entitled her to a credit of $3,954.46, on her theory that Randy had reduced the parties' equity in the house by obtaining the mortgage subsidy under the state homeowner's assistance plan and the payment of the January 1989 mortgage installment. She contended that Randy's proposed buyout did not warrant Rule 60(b) relief, but that the court simply needed to determine the intent of the parties at the time of the dissolution agreement and make findings as to each party's financial interest in the home. The superior court declined to grant Rule 60(b) relief to Randy, but "clarif[ied] the ambiguous terms of the property settlement." It rejected each party's interpretation of the agreement; it stated that Randy's calculation deprived Lesley of her share of the equity in the house at. the time of dissolution, whereas Lesley's calculation allowed her to "reap a windfall" from Randy's contributions to the equity in the form of post-dissolution improvements and mortgage payments. To determine Lesley's equity interest, the court calculated what part of the increased value was attributable to market conditions, and what part was attributable to Randy's post-dissolution contributions. The court therefore made the following calculation: Sale price $127,500.00 Mortgage debt at time of dissolution -$117,000.00 Post-dissolution addition to value -$ 1,897.00 $ 8,603.00 The court concluded from this calculation that $8,603 of the market value was attributable to equity jointly contributed before the dissolution and to the jointly shared increase in value due to improved market conditions. The court found that the remaining increases in equity resulted from Randy's post-dissolution improvements and mortgage payments. The court ordered Randy to pay Lesley half of the increase attributable to the agreement and pre-dissolution equity contribution, $4,301.50, to obtain her interest in the property. Lesley appeals. III. DISCUSSION A. Standard of Review The interpretation of the parties' dissolution agreement is a question of law. We exercise our independent judgment in reviewing questions of law. We review factual findings for clear error. It is the function of the trial court, not of this court, to judge witnesses' credibility and to weigh conflicting evidence. B. Did the Superior Court Have Authority to Interpret the Agreement? Lesley argues that the superior court had no authority to modify the decree by changing the terms of the parties' agreement. Lesley agreed in the superior court and also agrees on appeal that the superior court had authority to interpret the agreement to determine the parties' contracting intentions. Her argument about the court's authority really translates into a claim that the superior court interpreted the parties' intentions in a way that modified their agreement, even though the superior court denied Randy's motion for Rule 60(b) relief. The approach adopted by the superior court — interpreting the agreement and determining the parties' contracting intentions — was legally appropriate, acceptable to both parties, and factually warranted. Our inquiry therefore turns to the question whether the court erred in interpreting the agreement and determining and enforcing the parties' intentions. C. Was It Error to Calculate Equity without Including Post-Dissolution Mortgage Reductions? Lesley argues that her interest in the house was worth $11,182.67, not $4,301.50 as found by the superior court. She attributes the difference to several alleged errors. Two of these alleged errors — giving her no share of post-dissolution reductions in the mortgage balance and failing to divide Randy's "equity withdrawal" — arise directly out of the way the superior court calculated the parties' equitable interests. A financial agreement entered into in connection with a dissolution proceeding is a contract subject to interpretation under contract principles. "The goal in interpreting a contract is to give effect to the reasonable expectations of the parties. These expectations are determined by reviewing the language of any disputed provisions, other provisions, relevant extrinsic evidence, and case law interpreting similar provisions." The superior court first determined that the parties' ambiguous agreement to split the "profits or debt" was intended to require division of their "equity." It found that the parties intended to split increases in the home's market value, but that the agreement did not address equity increases attributable to reduction of the mortgage and to improvements. Reasoning that allowing Lesley to share in post-dissolution equity increases not attributable to the improving real estate market would give her a windfall, the court subtracted the mortgage debt measured at the time of the 1988 dissolution from the market value measured at the time of the 1997 buyout, and (after a $1,897 adjustment discussed in Part III.E) split the $8,603 difference in half to obtain Lesley's equitable share. Lesley argues that it was error to subtract the 1988 mortgage balance, instead of the 1997 balance, from the 1997 sale price. We agree. Because the parties agreed to delay selling the house to allow its market value to rise and agreed to divide the equity when the house finally sold, the time of sale is presumptively the correct time to calculate the mortgage debt. The record in this case does not support use of a different date for measuring the mortgage debt on this marital property. The superior court's concern about a potential windfall led it to use the 1988 balance. Its concern was based on its finding that the agreement did not address equity increases resulting from post-dissolution mortgage payments and improvements. Given the presumption that the equity in marital property is derived by comparing the market value and the debt as they stand on the same date, an agreement's total failure to address this topic would not justify use of one date to measure the market value and another to measure the debt. And, although the evidence here is sparse on this central issue, we conclude that the existing evidence is inconsistent with any implicit finding that the parties affirmatively intended to exempt Lesley from sharing in post-dissolution mortgage reductions. The agreement specified that Randy "will occupy the house and pay its mortgage and utilities until it sells...." It was undisputed that Lesley no longer lived in the house. Lesley testified that she had understood the agreement to require that she and Randy would split equally the difference between the sale price and whatever was then owed on it. Because the agreement expressly required Randy to make the post-dissolution mortgage payments, Lesley's testimony was inconsistent with giving Randy all the credit for post-dissolution reductions in the mortgage balance. She testified that she believed Randy received the benefit of living in the house in exchange for making the mortgage payments. She also testified that if there had been a loss, she had expected to share that loss equally. In response to the court's questions, she and Randy both testified that when they entered into the agreement there was no time limit on how long it would take to sell the house. Randy testified that in agreeing to make the mortgage payments he understood he would live in the house. He also testified that he did not see that making the mortgage payments was a trade-off for getting to stay in the house. He did not testify that he understood that the parties had agreed the equity would be calculated using the 1988 mortgage balance, or that they had agreed Lesley would not participate in post-dissolution equity increases resulting from mortgage payments. Although Randy objected in the superior court that any evidence by the parties about their contracting intentions violated the parol evidence rule, he does not argue on appeal that Lesley's testimony was inadmissible. Because the agreement seems to balance the benefit of occupying the home against the cost of the mortgage payments, it seems highly improbable that the parties also silently agreed that Randy would also receive all the benefit of mortgage reductions resulting from those payments when their house eventually sold. There is no evidence in the record that the mortgage payments exceeded the monthly rental value of the house. There is no dispute on appeal that the house had substantial value ($127,500). The record establishes that this was a two-bedroom, two-bathroom, 1,546 square-foot house, with a two-car garage. There was no evidence that its condition at the time of dissolution significantly diminished its rental value. The evidence therefore does not permit us to find as a matter of law that the house had insignificant rental value and that Randy consequently derived no benefit from living there, or that the mortgage payments materially exceeded the monthly payments required to rent comparable property. We have recognized that living in the marital residence after dissolution or divorce has value. The record justifies an assumption that the benefit of living in the home was not materially less than the cost of the mortgage payments. Randy moved for relief and proposed a method of valuation that gave him credit for equity increases resulting from his post-dis solution mortgage payments. Although it might be appropriate to conclude that he failed to carry his burden of showing that the benefit the agreement gave him (the right to continue living in the home) was less than the mortgage payments, it is not necessary to rely on a burden of proof analysis. Nothing in the agreement justifies an interpretation that denies Lesley participation in these debt reductions. The parties apparently intended to deal comprehensively in an integrated fashion in dividing their property. Lesley relinquished any claim to Randy's military retirement, but continued to share the contingent liability under the mortgage, including exposure to half the loss if the house was sold before its market value exceeded the balance on the debt. Randy argues that it would be unfair to deny the credit because he claims he paid every expense, cost, tax obligation, and premium for the property. His supporting record citations do not address premiums or tax payments, but assuming Randy paid all such expenses after the dissolution, he also received the benefit of living in the home, as well as the benefit of taking annual income tax deductions for mortgage interest and property tax payments. Splitting post-dissolution reductions in the loan balance roughly approximates what would have happened if Randy had paid half the rental value of this jointly owned property monthly to Lesley and they had each paid half the monthly mortgage payment. The superior court found that denying the credit to Randy would give Lesley a "windfall" and noted what would happen if the mortgage were completely paid off. It found that Lesley's "position would entitle her to half of $127,500." We do not see that result as untoward under these circumstances. Given ambiguity, a court must give effect to the reasonable expectations of the parties as determined by reviewing the language of any disputed provisions, other provisions, relevant extrinsic evidence, and case law interpreting similar provisions. The phrase "profits or debt" is ambiguous, and the superior court correctly interpreted that phrase to mean "equity." But the remainder of the agreement and the extrinsic evidence gave no basis for calculating equity in the way the court did, and we conclude that it was clear error to find that the parties intended that only Randy would be credited with this equity increase. Randy seems to argue that AS 25.24.160(a)(4), Rule 60(b)(5), and Foster v. Foster, 684 P.2d 869 (Alaska 1984) (relying on Rule 60(b)(6)), provide an alternative basis for affirming. He has not cross-appealed or argued that it was error to deny his motion for Rule 60(b)(5) relief. We decline to rely on this alternative basis to affirm. There is no indication extraordinary circumstances justified relief that effectively would have given Randy rent-free occupancy of the house for nine years; the delay in sale of the home and Lesley's alleged refusal in 1994 to cooperate with a potentially beneficial refinancing do not appear to be extraordinary circumstances justifying relief under Rule 60(b)(6). Nor does the record establish that a fundamental, underlying assumption of the dissolution agreement had been destroyed. Under these circumstances, we are not willing to grant extraordinary relief which the superior court chose to deny. D. Was It Error Not to Require Randy to Reimburse Lesley for Randy's "Equity Withdrawal"? The mortgage payment subsidy Randy obtained under the Alaska homeowner's assistance program in 1989 subsidized Randy's mortgage payments for twenty-four months and paid his January 1989 mortgage install ment. The total cost, $7,908.92, was added to the parties' mortgage balance and amortized over the remaining thirty years of the loan. Lesley argues that the subsidy was an "equity withdrawal" by Randy; she contends that the superior court should have ordered Randy to share the equity withdrawal by paying Lesley $3,954.46, half the amount of the withdrawal. The superior court did not expressly discuss this issue, no doubt because it recognized that the credit Lesley sought was inconsistent with the court's decision that it should look to the debt owing at the time of dissolution. It was not necessary for it to reach this issue because the court used the 1988 mortgage to calculate the parties' share in the equity. But because we have concluded that it was error not to rely on the 1997 mortgage balance, we must consider the issue. Randy acknowledges that he received a "front-loaded benefit of a slightly reduced mortgage payment." But he argues, in effect, that he received no real benefit because the cost was amortized over the remaining life of the loan and because he incurred a far greater obligation (with interest). We disagree with his characterization. The subsidies reduced Randy's monthly mortgage payments for twenty-four months by an average of more than $200 and completely paid the January 1989 installment of nearly $1,300. The assistance and the January 1989 payment added $7,908.92 to the balance due on the parties' joint debt. Randy thus unilaterally received the benefit of that assistance in 1989, and in doing so unilaterally reduced the parties' equity in the marital home. On remand, the credit sought by Lesley must be granted to compensate for the benefit received by Randy. E. Was It Error to Subtract $1,897.56 for Value Added by Randy's Post-dissolution Improvements? Randy claimed that he had spent at least $9,487.80 in post-dissolution improvements and asserted that his investment added $1,897.56, twenty percent of the expense, to the house's value. The superior court gave Randy credit for $1,897, as a "post-dissolution addition to value (20% of cost of improvement)." It subtracted this amount from the house's equity to prevent Lesley from benefitting from Randy's post-dissolution contributions. Lesley complains that no evidence substantiates the court's finding that the improvements added $1,897.56 to the market value. Randy provided evidence of his expenses, and a real estate expert testified that improvements could help a house retain value and could also add value to a house. The expert did not express any opinion as to whether Randy's particular improvements added $1,897.56 or any other amount to the value of this house. Because the superior court had before it evidence that the improvements could maintain or increase the house's existing value, it was not clear error for the court to award a relatively modest twenty percent credit for Randy's expenses. We therefore affirm this credit. IV. CONCLUSION Because it was not error to award credit for the home improvement expenses, we AFFIRM this element of the award. Because it was error to look to the debt at the time of dissolution rather than at the time of sale and to fail to divide the "equity withdrawal," we REVERSE and REMAND for recalculation of the amount Randy must pay Lesley to buy out her interest in the marital home. . Randy's motion proposed the following valuation: Sale price $127,500.00 Post-dissolution addition to value -$ 1,897.56 Parties' initial purchase price -$122,000.00 Parties' initial closing costs -$ 1,438.24 Parties' costs of improvements -$ 11,538.37 ($ 9,374.17) . See Van Alfen v. Van Alfen, 909 P.2d 1075, 1077 n. 4 (Alaska 1996) (citing Johnson v. Schaub, 867 P.2d 812, 818 n. 12 (Alaska 1994) (contract interpretation is generally a question of law)). . See id. (citing Beesley v. Van Doren, 873 P.2d 1280, 1281 (Alaska 1994)). . See Harrelson v. Harrelson, 932 P.2d 247, 252 n. 6 (Alaska 1997) (citing State, Dep't of Revenue v. Merriouns, 894 P.2d 623, 625 (Alaska 1995)). . See Parker v. Northern Mixing Co., 756 P.2d 881, 892 (Alaska 1988). . See Keffer v. Keffer, 852 P.2d 394, 397 (Alaska 1993); see also Bond v. Bond, 69 Ohio App.3d 225, 590 N.E.2d 348, 349-50 (Ohio App.1990) ("Where there is good faith confusion over the requirements of the dissolution decree, a court has the power to enforce its decree, to hear the matter, clarify the confusion, and resolve the dispute.") (citations omitted). . Keffer, 852 P.2d at 397 (citing Jensen v. Ramras, 792 P.2d 668, 670 (Alaska 1990)). . " 'A contract is ambiguous only if, taken as a whole, it is reasonably subject to differing interpretations.' " Id. at 397 (quoting State v. Fairbanks N. Star Borough Sch. Dist., 621 P.2d 1329, 1331 n. 4 (Alaska 1981)). . See Black's Law Dictionary 540 (6th ed.1990) (defining "equity" as the "[v]alue of property . over and above the indebtedness against it (e.g., market value of house minus mortgage)," and as the "difference between the fair market value and debt in property"); see also Webster's II New Riverside University Dictionary 440 (1994) (defining "equity" as "[t]he money value of a property beyond any mortgage or liabilities existing on it"). . See Rodriguez v. Rodriguez, 908 P.2d 1007, 1013 (Alaska 1995) ("[W]here the use of marital property after separation effectively excludes the other spouse, the rules of cotenancy require payment to the marital estate of the fair market rental value for use of the property.") (citing Wood v. Collins, 812 P.2d 951, 958 (Alaska 1991)). . See Keffer, 852 P.2d at 397. . See Wood v. Collins, 812 P.2d 951, 959 (Alaska 1991) (affirming relief that was proper under Rule 60(b) even though superior court erroneously "called the motion one for reconsideration"). "We may affirm the superior court on any basis appearing in the record." Far North Sanitation, Inc. v. Alaska Pub. Util. Comm'n, 825 P.2d 867, 869 n. 2 (Alaska 1992)(citing Sea Lion Corp. v. Air Logistics of Alaska, Inc., 787 P.2d 109, 116 (Alaska 1990)). .See Lowe v. Lowe, 817 P.2d 453, 458-59 (Alaska 1991); Schofield v. Schofield, 111 P.2d 197, 202 (Alaska 1989); Foster v. Foster, 684 P.2d 869, 872 (Alaska 1984).

9382587

Christopher J. McCOY, Sr., Appellant, v. STATE of Alaska, Appellee

McCoy v. State

2002-08-30

No. A-7789

747

760

59 P.3d 747

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.

Christopher J. McCOY, Sr., Appellant, v. STATE of Alaska, Appellee.

Christopher J. McCOY, Sr., Appellant, v. STATE of Alaska, Appellee. No. A-7789. Court of Appeals of Alaska. Aug. 30, 2002. Rehearing Denied Oct. 4, 2002. Opinion on Rehearing Nov. 22, 2002. Diane L. Foster and Darin B. Goff, Assistant Public Defenders, Kenai, and Barbara K. Brink, Public Defender, Anchorage, for Appellant. John W. Wolfe, Assistant District Attorney, Kenai, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

7713

49163

OPINION STEWART, Judge. After reaching a plea bargain with the State, Christopher J. McCoy, Sr., pleaded no contest to one count of third-degree assault. Superior Court Judge Harold M. Brown imposed 4 years' imprisonment with all but 18 months suspended. In this appeal, McCoy does not challenge his sentence. Instead, he argues that Judge Brown erred when he denied McCoy's motion to strike certain portions of the presentence report. Because we reject McCoy's arguments, we affirm the superior court. The challenged hearsay statements Before sentencing, McCoy moved to strike certain paragraphs from the "collateral contacts" section of the presentence report and two paragraphs from an addendum to the presentence report that contained informa tion about other assaultive conduct by McCoy. McCoy argued the purportedly objectionable paragraphs contained unverified hearsay statements. Judge Brown ruled that the hearsay statements in the presentence report were sufficiently trustworthy for him to rely on them unless McCoy presented a challenge to their accuracy. He reasoned that the information in the addendum came from police reports in which the victim of the assaults, Michelle McCoy, reported her observations to the police. Judge Brown also noted that the addendum contained "confirming information as to what [the police] did in response." Judge Brown concluded that the other statements in the presentence report, "even though they might be so-called third-hand information, [are] the type of information that the court can consider verified for the purpose of . this sentencing process." In Nukapigak v. State, the Alaska Supreme Court held that hearsay statements can be considered during sentencing if they are "sufficiently verified to appear trustworthy and the defendant was given the opportunity to deny [the truth of the statements] or present contrary evidence of his own." The court defined "verified" as "corroborated or substantiated by supporting data or information." In that case, the presentence investigator spoke with several residents of Nukapigak's village. The presentence report included the villagers' descriptions of Nukapigak's misconduct. Even though the villagers' reports were not based on first-hand knowledge, the supreme court ruled that this information was verified. The villagers were identified in the presentence report, and Nukapigak, who was supplied a copy of the report, was entitled to challenge the accuracy of the reports or offer contrary evidence. Here, the probation officer reported that McCoy's father-in-law described a history of domestic violence in the MeCoy home. Included in the report were the father-in-law's description of the difficulties his grandchildren had when in McCoy's home, the grand-childrens' complaints to him, and his description of the domestic violence against his daughter caused by McCoy. The probation officer's source, the father-in-law, is identified and whatever data the father-in-law provided that was not based on his first-hand knowledge was attributed to either his grandchildren or his daughter. Under the rationale of Nukapigak, this constitutes verified information. Therefore, Judge Brown was not required to strike this material from the presentence report. Whether a presentence imvestigator may review and use the information in a defendant's juvemile probation file without first obtaining special permission from the superior court McCoy objected to the portion of the presentence report that discussed his contacts with the juvenile justice system (contacts that did not lead to formal adjudications of delinquency). He argued that a presen-tence investigator is not authorized to examine a defendant's juvenile records without first obtaining the superior court's permission. We first address a subsidiary question of law. When McCoy's attorney argued that the presentence investigator had no authority to use information from MceCoy's juvenile file, the attorney asked Judge Brown to consider one of this Court's memorandum opinions, State v. Westerlin, because Chief Judge Bryner's concurring opinion in Wester-lin discusses (but reaches no conclusion regarding) this issue. The State responded by asking Judge Brown to strike McCoy's pleading; the State asserted that the defense attorney had violated Alaska Appellate Rule 214(d), which declares that memorandum de cisions of this court are "without precedential effect and may not be cited in the courts of this state." Black's Law Dictionary defines "cite" "refer to or adduce as precedent or authority." MceCoy's attorney did not claim that our memorandum opinion in Westeriin was precedent. It is arguable that the defense attorney adduced Judge Bryner's concurrence as "authority" in the broadest sense of that term-that is, as a record of what another judge thought about a legal issue, for whatever persuasive power it might have. But we do not read Appellate Rule 214(d) to preclude this. Rather, the rule forbids reliance on a memorandum opinion as "authority" in a narrower sense-what Black's Law Dictionary calls "imperative authority": "[a]) legal writing taken as definitive or decisive; esplecially], a judicial . decision cited as precedent." McCoy's attorney did not claim or imply that our unpublished decision in Westeriin resolved the issue of statutory interpretation presented in McCoy's case or that it restricted the seope of Judge Brown's decision-making authority on this issue. Thus, the defense attorney did not violate Appellate Rule 214(d) by bringing Westerlin to Judge Brown's attention. We now turn to the merits of McCoy's argument. McCoy concedes that Alaska Criminal Rule 32.1(b)(1) specifically requires presentence reports to include "any finding of delinquency." But MceCoy contends that prior judicial approval is needed before a presentence Investlgator can refer to any other aspect of a defendant's juvenile history-i.e., contacts that did not lead to a formal delinquency adjudication. To support this contention, McCoy relies on a statute, AS 47.12.300, and a. court rule, Alaska Delinquency Rule 27(a)(1). Alaska Statute 47.12.300(d) states that the superior court is required to seal "all the court's official yecords pertaining to [a] minor" within 30 days of the time the court relinquishes juvenile jurisdiction over the minor (normally, at the time of the minor's 18th birthday). The statute then declares that, once these official court records are sealed, "[no] person may . use these . records for any purpose except that the court may order their use for good cause shown or may order their use by an officer of the court in making a presentenc[e] report." In fact, not only does section 300(d) seemingly prohibit the presentence investigator from "using" the juvenile records without a court order, but section 800(e) seemingly prevents the presentence investigator from even looking at these records. Section 800(e) declares that the records "may be inspected only with the court's permission and only by persons having a legitimate interest in them." McCoy also relies on Alaska Delinquency Rule 27(a)(1), but this rule appears to authorize the practice McCoy is challenging. Delinquency Rule 27(a)(1) states in pertinent part: The court records of a juvenile delinquency proceeding are confidential.... Information [concerning those court records] may not be released and access to the records may not be permitted except as authorized by statute 'or upon court order for good cause shown, . except that . [a] probation officer employed by the [State of Alaska] may review delinquency proceedings records for the sole purpose of preparing a presentence report on the individual whose juvenile record is reviewed. The records may be used in the sentencing proceeding and attached to the probation officer's report. Nevertheless, McCoy argues that this rule supports his position. He points out that the rule speaks of a probation officer's authority to review "delinquency proceedings records" when preparing a presentence report. McCoy contends that this phrase encompasses only "official court records" of the juvenile proceeding. By this, he means that Rule 2T7(a)(1) covers the court's records of the proceedings held in a juvenile case but not the material contained in the juvenile probation officer's file (unless that material hap pens to be incorporated into a court pleading or order). To gain access to the material in the juvenile probation officer's file, MeCoy argues, a presentence investigator must formally seek and obtain the superior court's permission. The problem with McCoy's suggested interpretation of Rule 27(a)(1) is that it would leave the juvenile probation officer's file unprotected. As stated in the first sentence of Rule 27(a), the purpose of the rule is to establish the confidentiality of "[the court records of a juvenile delinquency proceeding"-a phrase which we construe to be equivalent to "delinquency proceedings records" (the shorter phrase used later in that same paragraph). If, as McCoy argues, these two phrases refer only to the papers in the superior court's file, then there would be no rule to protect the confidentiality of the juvenile probation officer's file. Moreover, under MeCoy's interpretation, AS 47.12.300 would not protect the contents of the juvenile probation officer's file, either. That statute requires the sealing of "all the court's official records pertaining to [a] minor." If, as McCoy suggests, "the court's official records" do not include the juvenile probation officer's file, then the statute likewise offers no protection to that file. Because McCoy's interpretation leads to results that are inconsistent with the protective goals shared by the legislature and the supreme court, we reject his interpretation. Instead, we construe the phrases used in Delinquency Rule 27(a)-"court records of a juvenile delinquency proceeding" and "delinquency proceedings records"-to include the contents of the juvenile probation officer's file. Similarly, we conclude that the phrase used in AS 47.12.300(d)-"the court's official records pertaining to [a) minor"-likewise encompasses the juvenile probation officer's file. We must next address the differences between AS 47.12.300 and Delinquency Rule 27(a)(1). Under AS 47.12.300, a presentence investigator must secure special permission from the superior court before inspecting and using juvenile records. But under Delinquency Rule 27(a)(1), a presentence investigator is automatically entitled to inspect and use these records for the purpose of preparing an adult presentence report on that individual. We resolve this conflict by noting that the difference is one of procedure. Both the statute and the rule allow a presentence investigator to review juvenile records. However, AS 47.12.300 requires the presentence investigator to obtain special permission from the superior court in each separate case, while Delinquency Rule 27(a)(1) allows the presentence investigator to review the records without obtaining prior case-specific approval from the superior court. In such instances, the procedure specified in the court rule takes precedence over any contrary procedure specified in the statute. We therefore hold that a presentence investigator in an adult criminal case may review and use the materials found in the defendant's juvenile court files (including the juvenile probation officer's files) without first obtaining case-specific permission from the superior court. Judge Brown acted correctly when he denied McCoy's motion to strike this information from McCoy's presentence report. Conclusion OPINION DENYING REHEARING Christopher McCoy asks us to reconsider our decision in his appeal, McCoy v. State, 59 P.3d 747 (2002). McCoy's main contention on appeal was that pre-sentence investigators must obtain case-specific authorization from the superior court before they can examine a defendant's juvenile probation files and before they can refer to a defendant's criminal activities as a juvenile if those eriminal activities were "adjusted" informally and did not lead to a formal adjudication of delinqueney. To support this contention, McCoy relied on a court rule, Alaska Delinquency Rule 27(2)(1), and a statute, AS 47.12.300. In our decision, we rejected McCoy's interpretations of this court rule and this statute, and we held that pre-sen-tence investigators do not need to obtain case-specific court permission before they refer to a defendant's non-adjudicated acts of delinquency. McCoy, opinion at page 751. McCoy now seeks rehearing. He asserts that we should reconsider our ruling because we failed to consider another statute, AS 122.47.810(a). This statute declares that "all information and social records pertaining to a minor who is [alleged to have committed delinquent acts] prepared by or in the possession of a federal, state, or municipal agency or employee . are privileged and may not be disclosed directly or, indirectly to anyone without a court order." McCoy contends that even if Delinquency Rule 27(a) and AS 12.47.8300 do not support his argument on appeal, his argument is nevertheless correct because this other statute-AS 12.47.310(a)-forbids a pre-sentence investigator from obtaining information relating to a defendant's acts of delinquency if those acts did not lead to a formal adjudication of delinquency. McCoy did not cite AS 12.47.810(a) in either of his briefs to this Court. This omission would normally preclude McCoy from seeking rehearing on this point. As we said in Booth v. State, "[Appellate] Rule 506(a) was not intended to allow parties to raise new arguments after they have had a chance to analyze an appellate court's decision. Rule 506(a) implicitly limits rehearing to legal principles or propositions that were raised by the parties in the normal course of the appeal." McCoy points out that he did mention AS 1247.310(a) in his trial court pleading, and that this pleading was included in his excerpt of record on appeal. But the fact that an argument may be mentioned in a defendant's trial court pleadings does not preserve the argument for appeal. A party's briefs must contain the factual and legal arguments that the party wishes the appellate court to consider: A party 'may not argue a point by incorporating trial court pleadings by reference. Much less can a party "argue" a point by designating trial court pleadings for inclusion in the excerpt of record without even alerting the appellate court that the party intends to rely on the arguments presented in those trial court pleadings. McCoy asserts that his failure to mention AS 47.12.310(a) in his briefs to this Court must have been due to "typographical error or oversight on the part of defense counsel". We reject McCoy's contention of "typographical error", And a petition for rehearing is not the proper vehicle for addressing McCoy's claim of attorney negligence. Moreover, AS 47.12.310(a2) does not provide a clear and straightforward answer to the legal contention raised in McCoy's appeal. Even though the statute declares that "all information and social records pertaining to a minor . are privileged and may not be disclosed directly or indirectly to anyone without a court order", the statute also declares that this rule of privilege is subject to numerous exceptions-in particular, the exceptions specified in AS 47.12.810(b)-(g), AS 47.12.315, and AS 47.12.3820. Many of the exceptions listed in AS 47.12.310(b)-(g) appear to undereut McCoy's contention that a pre-sentence report can not refer to unadjudicated acts of delinquency. For example, AS 47.12.310(b)(1) states that a minor's records "shall" be disclosed to a federal, state, or municipal law enforcement agency when those records are pertinent to a specific investigation being conducted by that agency. - Further, AS 4712.810(b0)@)(E) states that a minor's records "shall" be dis closed to "a law enforcement agency of this state or another jurisdiction as may be necessary for the protection, rehabilitation, or supervision of any minor or for actions by that agency to protect the public safety". Other provisions of AS 47.12.8310 also conceivably allow disclosure to a pre-sentence investigator: - see AS 47.12810(c)(d4) and AS 47.12.3108). Turning to AS 47.12.315, for all acts of delinquency committed on or after January 1, 1998 , subsection (a)(1) of this statute specifically authorizes disclosure of all information relating to a minor's acts of delinquency (except the name of the victim) "when an ageney takes action under AS 47.12.040(a)(1) to [informally] adjust a [delinquency] matter" and the matter involves a crime against a person punishable as a felony, or arson, burglary, sale of a controlled substance, or any other crime in which the minor employed a deadly weapon. Subsection (b) authorizes these same disclosures whenever the Department of Health and Social Services files a delinquency petition against a minor alleging one or more of these same crimes (apparently without regard to the ultimate disposition of that petition). Subsections (a)(2) and (b)(2) authorize these same disclosures whenever a delinquent act has been informally adjusted and the minor then fails to comply with the conditions of the adjustment. Finally, turning to the third statute, AS 47.12.8320, subsection (a)(2) states that the Department of Health and Social Services "may disclose confidential or privileged information about the minor and make available for inspection documents about the minor" to the Governor, the Lieutenant Governor, any legislator, the state Ombudsman, the Attorney General, the Commissioner of Health and Social Services, the Commissioner of Administration, the Commissioner of Public Safety, and any person working for them "for review or use in their official capacities". We need not-and do not-definitely construe any of these statutory provisions. Our point is that, contrary to McCoy's argument in his petition for rehearing, AS 47.12.310(@) does not clearly and unambiguously state that a pre-sentence investigator is barred from examining or relying on Department of Health and Social Services records pertaining to a defendant's prior acts of delinquency when those acts were informally adjusted. In fact, when the four pertinent statutes-AS 47.12.8300 through 320-are considered together, it appears that the law is the opposite of what McCoy claims it to be. For these reasons, McCoy's petition for rehearing is DENIED. The judgment of the superior court is AFFIRMED. . AS 11.41.220(a)(1). . 562 P.2d 697 (Alaska 1977), aff'd on reh'g, 576 P.2d 982, 984-85 (Alaska 1978). . Id. at 701. . Id. at 701, n. 2. . See Nukapigak v. State, 576 P.2d 982, 983 (Alaska 1978). . Id. . - Memorandum Opinion and Judgment No. 3111 (Alaska App., March 29, 1995). . BLACK'S LAW DICTIONARY 237 (7th ed.1999). . Id. at 128-29. . See Ellingstad v. State, Dep't. of Natural Resources, 979 P.2d 1000, 1006 (Alaska 1999) (a court should not construe the language of a statute in such a way as to lead to a result that is "contrary to the purpose of the statute"); Millman v. State, 841 P.2d 190, 195 (Alaska App.1992) ("a court is . obliged to avoid construing statutes in a way that leads to patently absurd results or to defeat of the obvious legislative purpose behind the statute"). . See Gieffels v. State, 552 P.2d 661, 667-68 (Alaska 1976), disapproved of on other grounds by Miller v. State, 617 P.2d 516 (Alaska 1980); Main v. State, 668 P.2d 868, 872-73 (Alaska App.1983). . 903 P.2d 1079, 1090 (Alaska App.1995). . See Anchorage Nissan, Inc. v. State, 941 P.2d 1229, 1240 (Alaska 1997). . See AS 47.12.315(e).

9379961

Vicky Ravijojla POWELL, Petitioner, v. Laura H. TANNER; Harcourt Brace & Company; and The Hertz Corporation, Respondents

Powell v. Tanner

2002-11-22

Nos. S-10254, S-10264

246

255

59 P.3d 246

59

Pacific Reporter 3d

Alaska Supreme Court

Alaska

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

CAP

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

Vicky Ravijojla POWELL, Petitioner, v. Laura H. TANNER; Harcourt Brace & Company; and The Hertz Corporation, Respondents.

Vicky Ravijojla POWELL, Petitioner, v. Laura H. TANNER; Harcourt Brace & Company; and The Hertz Corporation, Respondents. Nos. S-10254, S-10264. Supreme Court of Alaska. Nov. 22, 2002. John R. White, The Law Offices of Jody Brion, Anchorage, for Petitioner. Donald C. Thomas, Delaney, Wiles, Hayes, Gerety, Ellis & Young, Inc., Anchorage, for Respondents. Before: FABE, Chief Justice, MATTHEWS, and BRYNER, Justices.

5597

34914

OPINION FABE, Chief Justice. I. INTRODUCTION These consolidated petitions for review arise out of an automobile accident which occurred when Laura H. Tanner changed lanes and her automobile collided with Vicky Ravijojla Powell's automobile. Tanner was driving a Hertz rental car and was working for Harcourt Brace & Co. at the time of the accident. The trial court granted summary judgment dismissing Powell's vicarious liability claims against Harcourt. The trial court also struck thirty-seven witnesses from Powell's final witness list who had not been named as witnesses until after the close of discovery. Because there is a genuine issue of material fact regarding whether Tanner is a Harcourt employee, making Harcourt potentially vicariously liable for Tanner's actions, summary judgment was improperly granted in favor of Harcourt. In addition, because any immediacy which required striking thirty-seven of Powell's witnesses no longer exists, we need not address whether the order striking Powell's witnesses was an abuse of discretion. II. FACTUAL HISTORY Tanner began working for Harcourt, a publishing company that publishes and sells educational materials, after responding to an advertisement placed by Harcourt stating "educational publisher needs teacher." Tanner worked for Harcourt from the summer of 1996 to the summer of 1998. On March 1, 1997, Tanner signed Harcourt's "Per Diem Agreement for Independent Contractors" which specified that Tanner had been "engaged, on a per diem basis [at $125 per day], for no more than 16 days . [to] sell[ ] all Harcourt Brace School Publishers programs in the state of Hawai." In August 1997 Tanner came to Anchorage to conduct demonstrations of educational materials for Harcourt at an Anchorage School District in-service for teachers. Tanner arrived in Anchorage on August 20, 1997, the day of the accident, and checked into her hotel. Tanner picked up a rental car from Hertz and drove to a storage facility to retrieve the Harcourt materials she needed for her presentation the following day. While driving back to the hotel, Tanner attempted to change lanes and Powell and Tanner's vehicles collided, allegedly causing injuries to Powell's person and automobile. IIL DISCUSSION A. The Superior Court Erred in Granting Partial Summary Judgment to Harcourt. 1. Procedural history relating to summary judgment Powell brought suit against Tanner, Hare-ourt, and Hertz, alleging that Harcourt and Hertz "are vicariously responsible for defendant Tanner's acts and omissions under the "theories of respondeat superior, agency, joint enterprise, negligence, negligent entrustment, and negligent supervision." - Powell further alleged in the complaint that the accident caused severe injuries to her neck, head, back, arms, knees, bladder, abdomen, ribs, and face, as well as damage to her vehicle. In the answer, Harcourt admitted that "Tanner was in the course and scope of her contract with Harcourt at the time of the accident, and that Harcourt paid for the rental of the vehicle Tanner was driving." Harcourt and Hertz moved for partial summary judgment, seeking to dismiss all claims against them. Harcourt argued that Tanner was an independent contractor at the time of the accident and so Harcourt could not be vicariously liable for Tanner's actions under the "independent contractor rule." After considering the motion for summary judgment and Powell's opposition, the superi- or court summarily granted the motion for summary judgment in favor of Harcourt and Hertz, dismissing all claims against them. The superior court subsequently denied Powell's motion to reconsider. Powell petitioned this court to review the summary judgment order. She did not seek review of the court's order dismissing all of Powell's claims against Hertz. We granted Powell's petition. 2. Standard of review relating to motion for summary judgment We review a grant of summary judgment de novo and adopt the rule of law that is most persuasive in light of precedent, reason, and policy. To obtain summary judgment, the moving party must prove the absence of a genuine factual dispute and its entitlement to judgment as a matter of law. All reasonable inferences of fact are drawn in favor of the nonmoving party. Because characterization of the relationship between Harcourt and Tanner is ordinarily an issue for the trier of fact, the burden is initially on Harcourt to affirmatively demonstrate that Tanner was an independent contractor rather than an employee. If Harcourt makes this prima facie showing, Powell must then establish facts from which it reasonably may be inferred that Tanner was an employee. In other words, Powell must prove that a genuine issue of fact exists by showing that she can produce admissible evidence reasonably tending to dispute Hare-ourt's evidence. 3. There is a factual dispute regarding whether Tanner was Harc-ourt's servant or its independent contractor. "Under the doctrine of respondeat superior, an employer is liable for the negligent acts or omissions of his employee committed within the seope of his employment." Harcourt has admitted that "Tanner was in the course and seope of her contract with Harcourt at the time of the accident, and that Harcourt paid for the rental of the vehicle Tanner was driving." However, the parties dispute whether Tanner was an independent contractor or an employee. Under the "independent contractor rule" the doe-trine of respondeat superior does not apply to acts of independent contractors: "Because such an employer normally does not control the work of the independent contractor, he is not held liable for the torts of the contractor and its employees." An independent contractor is "any person who does work for another under conditions which are not sufficient to make him a servant of the other. We have employed the Restatement (Second) of Agency § 220(2) (1958) factors defining a servant to determine the nature of the relationship between a worker and an employer: (1) A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control. (2) In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered: (a) the extent of control which, by the agreement, the master may exercise over the details of the work; (b) whether or not the one employed is engaged in a distinct occupation or business; (c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; (d) the skill required in the particular occupation; (e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work; (f) the length of time for which the person is employed; (g) the method of payment, whether by the time or by the job; (h) whether or not the work is a part of the regular business of the employer; () whether or not the parties believe they are creating the relation of master and servant; and (J) whether the principal is or is not in business.[ ] We have used the language of comment c to the Restatement (Second) of Agency § 220 to describe the degree of control required under Restatement (Second) of Agency § 220(2)(a) to impose vicarious liability: It is not enough that [the employer] has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.[ ] Harcourt exercised control over some aspects of Tanner's work. But because the evidence leads to no clear conclusion whether Tanner is, or is not, an employee of Harcourt, it is for the jury to decide the nature of their employment relationship. On one hand, Harcourt controlled where Tanner held her in-service demonstrations and the type of administrative work that she performed. Harcourt paid for Tanner to attend a training session on its materials and suggested that she dress professionally for the job. Harcourt provided Tanner with the names of the schools where she was to make in-service presentations, and provided her with specific material for use at her presentations, including training outlines. Sasha He-dona, a Harcourt sales representative, scheduled some of the in-services where Tanner made presentations, while other times Tanner would call and schedule in-services for times which were convenient for her. Hedo-na attended some, but not all, of the in-service demonstrations that Tanner performed in Anchorage, but Tanner often did not know which demonstrations Hedona would be attending. Harcourt also directed Tanner to reserve her flight to Alaska through Harcourt's travel agent and Harc-ourt directly paid for Tanner's flight and car rental. On the other hand, in her affidavit, Tanner indicated that for her work in Anchorage, she "re-worked an outline and determined how to present the Harcourt Brace training material to the teachers [she] instructed." In making presentations, Tanner used her own overheads or used ones she received from other people and there were no seripts which she was required to follow. She testified that "hlow I presented [Harcourt's]l materials was up to me." She could refuse assignments she felt were outside of her expertise, and she could reschedule presentations. Tanner stated in her deposition that Hedona "wasn't a supervisor in the traditional sense.... [She wasn't always aware of exactly what I was doing. She didn't totally keep tabs on every detail...." In sum, there is a factual dispute as to whether Harcourt exercised sufficient control over Tanner's work to make Tanner a servant. There is also a factual dispute as to whether the other Restatement § 220(2) factors indicate that Tanner is an employee or an independent contractor. For example, a jury could reasonably conclude that Tanner generally works as a teacher, which is distinct from Harcourt's educational publishing business. Tanner responded to an advertisement in the education section of the newspaper that said "educational publisher needs teacher," and Powell acknowledges that Tanner is a teacher by profession. However, a jury also could reasonably conclude that Tanner's work in demonstrating Harcourt's educational materials to teachers is not sufficiently distinct from Harcourt's principal business of selling educational materials, since Tanner's demonstrations could be considered essential to achieving sales. Indeed, the per diem contract between the parties indicates that Tanner was hired to "sell[ ] all Harcourt Brace School Publishers programs...." A jury also could reasonably conclude that, although Tanner reworked some of her outlines, Harcourt "supplies the instrumentalities [and] tools" for Tanner by providing her with its sample educational materials, which she was required to show to the teachers at her presentations, and with outlines which she could use for her presentations. In addition, Tanner's per diem contract indicates that "Harcourt Brace will own any materials or other contributions prepared by you, including copyright throughout the world, as work-made-for-hire." In addition, Harcourt arguably provided Tanner with "the place of work" by telling her which schools needed in-service presentations. There is also a factual dispute as to whether Tanner was paid "by the time" rather than "by the job." She earned $125 per day for her work in Anchorage. But Harcourt argues that "the facts clearly suggest that a demonstration would not take more than a day. In effect, Tanner was paid per demonstration." Whether the facts do, in fact, indicate that Harcourt effectively paid Tanner by the job is an issue for the jury. The jury may also consider the evidence that Tanner did not receive a W 2 form from Harcourt. Rather, she received an IRS 1099 form and paid self-employment tax on the $9,000 to $10,000 she earned from her work for Harcourt in 1997. How much weight to give the method-of-payment factor against other factors also is an issue for the factfin-der. The record indicates that there is a factual dispute over whether Tanner and Harcourt "believe[d] they [were] creating the relation of master and servant." The only employment contract in the record is the independent contractor contract, and Tanner has repeatedly asserted that she considered herself to be an independent contractor when she did work for Harcourt. She also states that although she was representing Harcourt when making presentations, she "didn't have authority to speak for the company." But Powell argues that Harcourt's and Tanner's statements that she "was doing work for Harcourt Brace" and that she was acting within "the scope of her employment" at the time of the accident indicate that she believed she was an employee of Harcourt. However, the fact that Tanner admitted to working for Harcourt says nothing about the nature of their working relationship. More relevant is Powell's argument that the independent contractor per diem contract does not apply to Tanner's work in Alaska. Tanner's March 1, 1997 "Per Diem Agreement for Independent Contractors" provided that Tanner had been "engaged, on a per diem basis [at $125 per hour], for no more than 16 days . [to] sell[] all Harcourt Brace School Publishers programs in the state of Hawaii." The plain language of this contract covers only sales of Harcourt programs in Hawaii. Thus, a jury reasonably could infer that the contract does not cover the in-service presentations that Tanner conducted in Alaska. In sum, the application of Restatement § 22002) factors (a), (b), (e), (g), and (1) to the facts of this case does not permit the court to resolve on summary judgment whether there is, or is not, a master and servant relation. Harcourt offered prima facie evidence that it exercised insufficient control over Tanner to create an employer-employee relationship and that the other Restatement factors indicate that Tanner was an independent contractor. Powell also satisfied her burden that there is a genuine issue of material fact by providing evidence from which a jury reasonably could infer that Tanner was an employee. Therefore, we reverse the trial court's partial summary judgment in favor of Harcourt. On remand, the jury must consider the evidence relating to each of the factors and decide how to weigh the factors in determining the nature of the working relationship between Harcourt and Tanner. B. The Striking of Thirty Seven of Powell's Witnesses 1. Procedural history relating to motion to strike witnesses On March 8, 2000, the parties held a planning meeting and agreed on a scheduling order setting trial for June 4, 2001. They agreed to provide each other with preliminary witness lists by June 8, 2000, to complete discovery by February 28, 2001, and to exchange final witness lists by April 4, 2001. In Powell's initial disclosures dated November 25, 1999, she provided the factual basis for her claims against Tanner, and identified twenty-three witnesses, including eighteen witnesses who would "testify as to the nature of the injury, its relation to the accident, that it may cause permanent problems, and that it will limit Ms. Powell's activities, work, and his [or her} treatment of the same." In her response to interrogatories on March 31, 2000, Powell listed medical bills from more than twenty medical centers and doctors, and stated that future medical bills would be incurred for problems relating to her knee and bladder. On June 7, 2000, Powell timely filed her preliminary witness list, naming twenty-five witnesses. On March 14, 2001, Powell supplemented her preliminary witness list with one additional witness. In her final witness list, timely filed on April 4, 2001, Powell listed sixty-eight witnesses, including thirty-eight witnesses who had not been named in her preliminary witness list or initial disclosures. On April 9, 2001, Harcourt moved to strike the new witnesses, arguing that Powell could have identified them at the moment the lawsuit was filed, and that Harcourt would be prejudiced by the addition of these new witnesses because it did not have time to interview them in the two months before trial. Powell responded that the new witnesses were necessary to rebut allegations that Powell was not injured in the accident and that her hotel project, for which she claims financial loss, was not fully in effect at the time of the accident. She further argued that the names of all of the new witnesses were revealed to Harcourt through discovery. On May 31, 2001, the trial court summarily granted Harcourt's motion and struck thirty-eight of Powell's new witnesses. Powell filed a motion for reconsideration, describing the nature of the testimony to be given by each witness and how their identities were disclosed to Harcourt in discovery. The trial court denied reconsideration in part, ruling that Powell may only "supplement her witness [list] with Dr. Leon Chandler, whom she has identified as her current treating physician." Powell petitioned for review of the trial court's orders striking certain of her witnesses and entering partial summary judgment against her. We granted this petition as well as the petition challenging summary judgment and consolidated them. 2. Standard of review relating to order striking witnesses Powell argues that the trial court erred in striking her witnesses because there is no evidence of " 'willful noncompliance' with court orders, or 'extreme cireum-stances," or 'gross violations.' " The choice of a particular sanction for a discovery violation generally is a matter committed to the broad discretion of the trial court, subject only to review for abuse of discretion. Because the court's striking of thirty-seven of Powell's witnesses does not establish the outcome of this case or end the litigation, we need not determine whether the order was justified because of "willful noncompliance" with court orders, "extreme cireumstances," or "gross violations" of the Rules, nor must we determine whether the trial court explored alternatives to the sanction. 3. We need not decide whether the trial court abused its discretion by striking witnesses because Pow-elt's failure to supplement her disclosure no longer prejudices Hare-ourt and Tanner. Powell argues that because there was no "evidence of prejudice, noncompliance with a court order, or bad faith, it was error for the trial court to strike 37 witnesses from Powell's final witness list. Harcourt argues that Powell violated the court's pre-trial order for the parties to file preliminary witness lists and to supplement their initial disclosures every thirty days until discovery closed. Alaska Rule of Civil Procedure 26(a)8)(A) requires parties to identify "cach witness, separately identifying those whom the party expects to present and those whom the party may call if the need arises." Alaska Rule of Civil Procedure 26(e)(1) provides that after making initial disclosures under Rule 26(a) [al party . is under a duty to supplement or correct the disclosure or response to include information thereafter acquired if ordered by the court or . if the party learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. Sanctions for noncompliance with these provisions are governed by Alaska Rule of Civil Procedure 37(c)(1): A party that without substantial justification fails to disclose information required by Rule 26(a), 26(e)(1), or 26.1(b) shall not, unless such failure is harmless, be permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed. Powell complied with Rule 26(a) by providing initial disclosures and she complied with the scheduling order's deadlines for filing preliminary and final witness lists. Complicating this case is an anomalous provision in the scheduling order requiring the parties to file their final witness lists after discovery closed. The scheduling order's sequencing of deadlines created a potential conflict over an opposing party's inability to depose witnesses identified for the first time in the final witness list without violating the close of discovery deadline. Nothing in the scheduling order limited the number of witnesses the parties could call or otherwise addressed how to resolve this foreseeable dispute. On the other hand, Powell's failure to identify the thirty-seven additional witnesses before the close of discovery may have been prejudicial at the time, given the looming June 2001 trial date. However, because we reverse the trial court's order granting summary judgment, a new trial date must be set and discovery will likely be reopened. We therefore need not address whether the trial court abused its discretion because any time pressures that existed in spring 2001 no longer exist and Harcourt will now have time to depose Powell's additional witnesses. Pow ell's failure to supplement her disclosures will no longer prejudice Harcourt and Tanner. IV. CONCLUSION Reasonable minds could differ as to whether the Restatement (Second) of Agency § 220(2) factors indicate that Tanner was an employee or an independent contractor. Accordingly, we REVERSE the order granting Harcourt partial summary judgment. We also REVERSE the order striking thirty-seven of Powell's witnesses because Powell complied with the scheduling order deadline, and her failure to identify the additional witnesses will not prejudice Harcourt and Tanner in light of our decision to remand the case for trial. EASTAUGH and CARPENETI Justices, not participating. . Tanner also had an hourly contract with Harc-ourt, entered into on May 1, 1997, under which she performed administrative work for Harcourt, such as contacting schools to see if they were interested in receiving samples of Harcourt's materials and setting up a database. . State v. Alaska Civil Liberties Union, 978 P.2d 597, 603 (Alaska 1999); Cool Homes, Inc. v. Fairbanks North Star Borough, 860 P.2d 1248, 1254 (Alaska 1993). . Alaska Civil Liberties Union, 978 P.2d at 603. . McGlothlin v. Municipality of Anchorage, 991 P.2d 1273, 1277 (Alaska 1999). . See Sterud v. Chugach Elec. Ass'n, 640 P.2d 823, 827 n. 8 (Alaska 1982). . See id. . See Lincoln v. Interior Reg'l Hous. Auth., 30 P.3d 582, 586 (Alaska 2001). . Luth v. Rogers & Babler Constr. Co., 507 P.2d 761, 762 (Alaska 1973); see also Prosser anp xee-Ton on Torts § 70, at 501-03 (5th ed.1984). . Parker Drilling Co. v. O'Neill, 674 P.2d 770, 775 (Alaska 1983). For purposes of determining whether Harcourt is vicariously liable under a theory of respondeat superior, we assume that Tanner was negligent. See Sterud, 640 P.2d at 825 ("For purposes of this [vicarious lfability/re-spondeat superior] theory, the negligence of Hansen or Smith is assumed."). . Restatement (SEconp) or Torts § 409 emt. a; see also Soderback v. Townsend, 57 Or.App. 366, 644 P.2d 640, 641 (1982) ("An independent contractor, as distinguished from a mere employee, is one who, carrying on an independent business, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer as to the means by which the result is to be accomplished, but only as to the result of the work.") (citation omitted). . Sterud, 640 P.2d at 826. . See also Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989) ('In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.") (citations omitted). . Hammond v. Bechtel, Inc., 606 P.2d 1269, 1275 (Alaska 1980); see also Restatement (Seconp) or Torts § 414 emi. a (1965) (""If the employer of an independent contractor retains control over the operative detail of doing any part of the work, he is subject to liability for the negligence of the employees of the contractor engaged therein, under the rules of that part of the law of Agency which deals with the relation of master and servant."). . See Sterud, 640 P.2d at 826 (quoting Restate. MENT or AcEncy § 220(1) cmt. c (1958)) (providing that while the existence or nonexistence of a master-servant relationship is ordinarily a jury question, "[i]{ the inference is clear that there is, or is not, a master and servant relation, it is made by the court"). . See Restatement (Srconp) or Aczncy § 220(2)(b) (1958). . Restatement (Seconp) or Acmncy § 220(2)(e) (1958). . The fact that Harcourt owns the materials that Tanner creates would seem to indicate that she is Harcourt's servant. - See Restatement (Sec-onp) or AcEncy § 220(2) emt. k (1958) (''The fact that a worker supplies his own tools is some evidence that he is not a servant. On the other hand, if the worker is using his employer's tools or instrumentalities, especially if they are of substantial value, it is normally understood that he will follow the directions of the owner in their use, and this indicates that the owner is a master."). However, the United States Supreme Court has made clear that "a work for hire can arise through one of two mutually exclusive means, one for employees and one for independent contractors." - Community for Creative Non-Violence, 490 U.S. at 743, 109 S.Ct. 2166. . Restatement (SEcomp) or Aczncy § 220(2)(e) (1958). . Restatement (SEconp) or Acexncy § 220(2)(g) (1958). . - At least one court has held that a worker is an independent contractor in spite of evidence that the worker is paid on a per diem basis. See Soderback v. Townsend, 57 Or.App. 366, 644 P.2d 640, 642 (1982) (holding that broker was an independent contractor, despite undisputed evidence that he was paid a per diem of $175 plus expenses). . Restatement (Szconp) or AcEncy § 220(2)G) (1958). . See Soderback, 644 P.2d at 643 ("That Townsend may have represented himself as 'working for' Quasar did not present any evidence to dispute Quasar's evidence on its lack of any right to control the means whereby Townsend accomplished his mission for Quasar."). . Furthermore, the record suggests that Tanner may have already exceeded the sixteen days of 'work authorized under the contract. Tanner explained that between March 1, 1997 and August 20, 1997, the day of the accident, she had worked less than iwenty days under that contract. However, in her deposition, Tanner stated that she had done approximately ten presentations for Harcourt before the day of the accident. . See Restatement (SEconp) or Acency § 220(1), cmt. c (providing that although the existence or nonexistence of a master-servant relationship is ordinarily a jury question, "Hf the inference is clear that there is, or is not, a master and servant relation, it is made by the court."); see also Community for Creative Non-Violence v. Reid, 490 U.S. 730, 752-53, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989) (holding that sculptor was an independent contractor because "Reid is a sculptor, a skilled occupation. Reid supplied his own tools. He worked in his own studio in Baltimore, making daily supervision of his activities from Washington practicably impossible. Reid was retained for less than two months, a relatively short period of time. During and after this time, CCNV had no right to assign additional projects to Reid. Apart from the deadline for completing the sculpture, Reid had absolute freedom to decide when and how long to work. CCNV paid Reid $15,000, a sum dependent on {completion of a specific job, a method by which independent contractors are often compensated.' Reid had total discretion in hiring and paying assistants. 'Creating sculptures was hardly 'regular business' for CCNV.' Indeed, CCNV is not a business at all. Finally, CCNV did not pay payroll or Social Security taxes, provide any employee benefits, or contribute to unemployment insurance or workers' compensation funds.") (citations omitted). . See Sterud v. Chugach Elec. Ass'n, 640 P.2d 823, 826-27 n. 8 (Alaska 1982) (affirming judgment in favor of the employer as a matter of law based on affidavits submitted by the employer that indicated that it had no control over the manner and means by which construction by the contractor/labor broker was performed, and the injured party offered no evidence to indicate that the employer retained control over details of the labor involved in the construction: "The mere fact that the question as to whether a particular relationship is that of master-servant or employer-independent contractor is ordinarily a factual one does not mean that it cannot be decided by the court on a motion for summary judgment, where the moving party meets its burden and the nonmoving party does not adequately respond."). . Powell appears to argue that even if Tanner could be considered an independent contractor, Harcourt is vicariously liable for the accident because Tanner is an agent of Harcourt. However, the critical inquiry in determining vicarious liability is whether a master-servant relationship exists; evidence of agency, alone, is insufficient to impose vicarious liability. See Norris v. Sackett, 63 Or.App. 762, 665 P.2d 1262, 1262-63 (1983) (holding that a corporation's liability could not be established merely by showing that the motor vehicle operator was an agent of the corporation; the corporation must have been the worker's master and must have had a right to control its servant while carrying out a task for the corporation's benefit); Resratement (Seconp) or Acency § 250, cmt. a ("It is only when to the relation of principal and agent there is added that right to control physical details as to the manner of performance which is characteristic of the relation of master and servant that the person in whose service the act is done becomes subject to liability for the physical conduct of the actor."). Powell also asserts that the case law cited by the respondents "does not deal with a company being responsible for acts of an agent against third[ Jparties." However, neither the Restate ment nor any decision by this court indicates that an employer may be vicariously liable when an independent contractor injures a third party. Thus, the fact that a third party was injured in this case is irrelevant. . iResratement (Seconp) or AcEncy § 220(1) emt. c (''The relation of master and servant is one not capable of exact definition. . The factors stated in Subsection (2) are all considered in determining the question, and it is for the triers of fact to determine whether or not there is a sufficient group of favorable factors to establish the relation.") (citation omitted). . On May 2, 2001, the superior court granted Powell's attorney's motions to withdraw from the case and to continue the June 4, 2001 trial. However, the trial court did not reopen discovery. . Sykes v. Melba Creek Mining, Inc., 952 P.2d 1164, 1169 (Alaska 1998). . See id. at 1169-70 ("[The trial court's discretion is limited when the effect of the sanction it selects is to impose liability on the offending party, establish the outcome of or preclude evidence on a central issue, or end the litigation entirely. Before extreme sanctions of this kind may properly be imposed, there must be 'will{ul noncompliance' with court orders, or 'extreme circumstances,' or 'gross violations' of the Rules. The record must also 'clearly indicate a reasonable exploration of possible and meaningful alternatives to dismissal.' . If meaningful alternative sanctions are available, the trial court must ordinarily impose these lesser sanctions.") (citations omitted). . The trial court initially struck thirty-eight of Powell's new witnesses, but upon reconsideration, it allowed one of the thirty-eight witnesses to be added to Powell's final witness list. Thus, only thirty-seven witnesses were struck. . But see Sigala v. Spikouris, 2002 WL 721078, 3 (E.D.N.Y.2002) (rejecting the defendant's argument that it should be permitted to depose all witnesses listed on plaintiff's witness list because the argument finds "no support in the Federal Rules of Civil Procedure"). . Note that our decision does not preclude Harcourt from seeking an order compelling Powell to furnish a list of witnesses she actually intends to call at trial. Cf. Matter of Long, 34 B.R. 85, 87 (Bankr.M.D.Fla.1983) ("[It is quite obvious that it is absurd to bombard a litigant with a list of an army of prospective witnesses without specifying which of them will actually testify. In such a situation, the litigant is faced with two choices, both of them unfair. He either takes the chance and guesses which of them will actually testify and depose them or not to take this chance and depose all of them."). Neither does our decision preclude Harcourt from moving to exclude the testimony of any of Powell's witnesses under Alaska Rule of Evidence 403. 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.").

9380109

Johnnie BUSTAMANTE, Appellant, v. ALASKA WORKERS' COMPENSATION BOARD, Space Mark, Inc., American Home Assurance, Ounalashka Corporation, and Reliance Insurance Co., Appellees

Bustamante v. Alaska Workers' Compensation Board

2002-11-29

No. S-10003

270

275

59 P.3d 270

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.

Johnnie BUSTAMANTE, Appellant, v. ALASKA WORKERS' COMPENSATION BOARD, Space Mark, Inc., American Home Assurance, Ounalashka Corporation, and Reliance Insurance Co., Appellees.

Johnnie BUSTAMANTE, Appellant, v. ALASKA WORKERS' COMPENSATION BOARD, Space Mark, Inc., American Home Assurance, Ounalashka Corporation, and Reliance Insurance Co., Appellees. No. S-10003. Supreme Court of Alaska. Nov. 29, 2002. Johnnie Bustamante, pro se, Anchorage. Theresa Hennemann and Rebecca J. Hiatt, Holmes Weddle & Bareott, PC, Anchorage, for Appellees. Ounalashka Corporation and Reliance Insurance Co. Allan E. Tesche, Russell, Tesche, Wagg, Cooper & Gabbert, Anchorage, for Appellees Space Mark and American Home Assurance. Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

2249

14228

OPINION CARPENETI, Justice. I. INTRODUCTION Johnnie Bustamante's workers' compensation administrative appeal was dismissed in the superior court due to his failure to pay for the preparation of a transcript of the Workers' Compensation Board proceedings. Because the superior court had the power to waive the transcript requirement, we remand for the superior court to decide whether to waive the requirement in this case. II FACTS AND PROCEEDINGS Johnnie Bustamante worked for both Space Mark, Inc. and Ounalashka Corporation in 1997. Bustamante claimed an injury from the overuse of his hands while working on computers at Space Mark and filed a claim with the Alaska Workers' Compensation Board (the board). Both employers controverted all benefits. The board found that Bustamante did not suffer a compensable injury in the course and scope of his employment with either employer. Bustamante's claims for benefits were denied and dismissed. Bustamante alleged six errors in his appeal to the superior court. At the time of filing his appeal, Bustamante also filed a request for court-appointed counsel, an extension of time to prepare his appeal, and an exemption from payment of fees. Superior Court Judge Elaine M. Andrews granted Bustamante an exemption from the payment of fees specified in Administrative Rule 9(Ff)(1). - However, Judge Andrews denied Bustamante's request for counsel, stating that "there is no provision to appoint counsel in these cases." Bustamante was informed several times that, to prepare the record for appeal, he would need to arrange and pay for the preparation of a transcript of the board's proceedings. In response, Bustamante filed a request for a waiver of all costs and fees, stating that he was a disabled student relying on charity to maintain himself. Judge Andrews issued an order stating that all costs and fees that could be waived had already been waived. The board, having filed a notice of non-participation in the appeal, filed a motion requesting more time to prepare the record on appeal, citing Bustamante's failure to prepare the transcripts. In response to the second notice sent to him by the board regarding the transcript, Bustamante replied: I agree that ordinarily I would be responsible to provide transcripts to the superior court under Appellate Rule 604(b). However, since the Alaska Workers['] Compensation Board (AWCB) doubts my competency and [I] have not been provided with appropriate legal coun[sel] to represent me, I cannot comply with your request. Since AWCB doubts my current mental stability, I simply cannot enter into any agreement to authorize production of the requested transcripts. Recommend AWCB forward requested transcripts to the superior court as soon as possible. In addition, please be advised that I am a disabled student currently attending Alaska Pacific University and have no financial resources to produce the requested tran-seripts. Space Mark filed a motion to dismiss Bus-tamante's appeal with prejudice on the grounds that Bustamante had "not paid for or accepted responsibility for the payment of preparation of a transcript." - Ounalashka filed a nonopposition to Space Mark's motion to dismiss. Superior Court Judge Donald D. Hopwood dismissed Bustamante's case without prejudice. Bustamante appeals. III. STANDARD OF REVIEW We exercise our independent judgment when interpreting the civil rules, "adopt[ing] the rule of law that is most persuasive in light of precedent, reason, and policy." The decision to appoint counsel for a civil litigant is a procedural decision, which we review for an abuse of discretion. A court abuses its discretion when we are "left with a definite and firm conviction, after reviewing the whole record, that the trial court erred in its ruling." IV. DISCUSSION A. The Superior Court Had the Discretion To Allow Deviation from the Requirements of Appellate Rule 604(b). Bustamante argues that the superior court erred in dismissing his case without reviewing the entire record. Space Mark moved for dismissal on the grounds that Bustamante had not "paid for or accepted responsibility for the payment of preparation of a transcript of Board proceeding as required by Appellate Rule 604(b)." Appellate Rule 604(b) governs the record on administrative appeals. The preparation of the transcript is governed by Appellate Rule 604(b)(1)(B)(iv), imposing the costs of preparing a transcript on the appellant absent an agreement to the contrary or an order of the court and allowing the agency to require advance payment of the estimated costs. We have previously expressed our support for the principle that financial hardship should not preclude access to the courts. The text of Appellate Rule 604(b)(1)(B)(iv) supports this principle: The court may order the parties to deviate from the default position that the appellant pays for the tran-seript. The superior court's order denying Bustamante's request for a waiver of costs indicates that the court was not aware of this power, as it stated that "[alll costs and fees that can be waived have been waived." We have previously held that deviation from Appellate Rule 604(b)(1)(B)Gv) is acceptable to ensure access to the courts. In Baker v. University of Alaska, we were faced with the question whether Appellate Rule 604(b)(1)(B)(iv) allows for accommodation when a party requests relief from the prepayment requirement. While we specifically stated that the case did "not require us to determine whether Baker should be absolved of his duty to pay for preparing the record and transeript, just whether he must pay in advance," we held that Appellate Rule 604(b)(1)(B)iv) allows the superior court to deviate from the ordinary procedure requiring prepayment upon a showing of good cause, citing the principle that "the size of a party's bank account should not foreclose [that] party's opportunity to be heard." While there was no agreement between the parties - pursuant to - Appellate - Rule 604(b)(1)(B)(iv) regarding costs of transcript preparation, the court had the power to order otherwise; this power included waiving the prepayment requirement, requiring the appellant to narrow the designation of needed transcripts, or even allowing designation of the use of tapes (with log notes) if the testimony being reviewed was not so lengthy as to cause an undue burden for the reviewing court. As the court's statement indicates it was not aware of the options available, it was an abuse of discretion simply to dismiss Bustamante's case. B. Bustamante Was Not Entitled to Appointed Counsel for His Appeal. Bustamante argues that the trial court should have appointed counsel to assist him in his appeal. To hire private counsel, Bustamante states, one must be competent. Citing to the board's statement questioning his competency, Bustamante apparently asserts that he was entitled to have counsel appointed for him. In its decision, the board discussed Busta-mante's psychiatric history, including his diagnosis of a conversion disorder. The board relied on Bustamante's previous psychiatric history in coming to its conclusion that this history was the cause of his current conversion disorder, not his work at Space Mark. The board did state that "based on the employee's psychiatric diagnoses, he did not 'knowingly' make false or misleading statement[s]." The board also "question[ed] whether his mental condition may affect his recollection of his medical or pharmacological history, or his ability to testify truthfully." The board, however, did not indicate that Bustamante was not competent to enter into a contract for legal representation. Further, we are unpersuaded that it did anything to prevent Bustamante from hiring counsel. As it does not appear that the board's decision prevented Bustamante from hiring counsel, we next consider whether the superior court erred in refusing to appoint counsel for Bustamante. Relying on the principles justifying appointment of counsel in criminal cases, we have allowed appointment of counsel in certain civil cases or quasi-civil proceedings. While an indigent person has no right to appointed counsel in most civil cases, we have allowed appointment in several types of cases, including termination of parental rights, child custody, paternity suits, and civil contempt proceedings. Bustamante's claim does not fall into one of the already recognized exceptions for appointment of counsel in a civil proceeding. We must therefore determine whether Bus-tamante's due process rights were violated by the superior court's failure to appoint counsel. We have adopted the balancing test from Mathews v. Eldridge to determine what process is due: Identification of the specific dictates of due process generally involves consideration of three distinct factors: the private interest affected by the official action; 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 fiscal and administrative burdens that additional or substitute procedural requirements would entail.[ ] The private interest of a litigant to have counsel in a workers' compensation case is not nearly as strong as the interest involved in cases where the litigants are already afforded appointed counsel by this court. While an unlitigated claim is a species of property, it is an interest that is much less important than the exercise of parental rights, the custody of children, or the deprivation of liberty. Without counsel, a litigant's chanee of success on a workers' compensation claim may be decreased. However, it is not clear that failing to appoint counsel in a workers' compensation case results in an erroneous deprivation of a litigant's rights, especially considering that the workers' compensation board has extensive experience with pro se litigants and considering the statutory framework for the recovery of attorney's fees for successful workers' compensation claimants. Finally, the state has a very strong interest in not appointing counsel for workers' compensation litigants. Requiring the state to pay for counsel for workers' compensation claims would be an extraordinary fiscal burden. As the board did not prevent Bustamante from hiring private counsel with its decision and there is no legal basis for appointment of counsel, the superior court did not err in refusing to appoint counsel for Bustamante. v. CONCLUSION Because Bustamante had no right to the appointment of counsel at public expense, we AFFIRM the superior court's denial of his motion for appointment of counsel. Because the superior court was apparently unaware that it had the discretion to waive the requirement that Bustamante prepay for tran-seript preparation costs, or to narrow the designation of needed transcripts, or to order that the appeal be heard by listening to tapes instead of by reading transcripts, we REVERSE the order of dismissal and REMAND for the superior court to exercise its discretion regarding preparation of a tran-seript. . Peter v. Progressive Corp., 986 P.2d 865, 867 (Alaska 1999). . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). . Balough v. Fairbanks N. Star Borough, 995 P.2d 245, 254 (Alaska 2000). . Peter Pan Seafoods, Inc. v. Stepanoff, 650 P.2d 375, 378-79 (Alaska 1982). . Alaska R.App. P. 604(b)(1) provides, in part: (b) Appeals From Administrative Agencies. (1) Record on Appeal. (A) The record on appeal consists of the original papers and exhibits filed with the ad ministrative agency, and 'a typed transcript of the record of proceedings before the agency. (B) Appellate Rule 210 shall apply except that: (i) Appellate Rule 210(b)(1) and (2) shall not apply. (iv) In the absence of an agreement between the parties or an order of the court to the contrary, all reasonable costs incurred in connection with preparing the transcript and the court's copy of the agency file shall be borne by the appellant. The preparing agency may require advance payment of the costs as reasonably estimated by the agency. . Baker v. Univ. of Alaska, 22 P.3d 440, 442-43 (Alaska 2001). . Alaska R.App. P. 604(b)(1)(B)(v). . 22 P.3d 440 (Alaska 2001). . - Id. at 442. . Jd. . Id. at 443 (internal quotation marks and footnotes omitted) (alteration in original). . It is unclear on what legal grounds Busta-mante bases this proposition. While this court has appointed counsel for indigent civil litigants in certain cases, see, e.g., V.F. v. State, 666 P.2d 42, 44-45 (Alaska 1983) (termination of parental rights); Flores v. Flores, 598 P.2d 893, 895 (Alaska 1979) (child custody); Reynolds v. Kimmons, 569 P.2d 799, 803 (Alaska 1977) (paternity); and Otton v. Zaborac, 525 P.2d 537, 538 (Alaska 1974) (civil contempt proceedings for nonpayment of child support), the decision to do so has turned on the requirements of due process, and not the mental state of the party for whom appointed counsel is sought. See also infra at 274-275. . Reynolds, 569 P.2d at 801. . Langfeldt-Haaland v. Saupe Enters., 768 P.2d 1144, 1146-47 (Alaska 1989). . V.F., 666 P.2d at 44-45. . Flores, 598 P.2d at 895. . Reynolds, 569 P.2d at 803. . Otton v. Zaborac, 525 P.2d 537, 538 (Alaska 1974). . In the Matter of K.L.J., 813 P.2d 276, 279 (Alaska 1991). . 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). . In the Matter of K.L.J., 813 P.2d at 279 (quoting Keyes v. Humana Hosp. Alaska, Inc., 750 P.2d 343, 353 (Alaska 1988)). . Patrick v. Lynden Transp., Inc., 765 P.2d 1375, 1378 (Alaska 1988). . See AS 23.30.145.

10346098

Jesse I. EVAN, Appellant, v. STATE of Alaska, Appellee

Evan v. State

1995-07-14

No. A-5407

926

931

899 P.2d 926

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.

Jesse I. EVAN, Appellant, v. STATE of Alaska, Appellee.

Jesse I. EVAN, Appellant, v. STATE of Alaska, Appellee. No. A-5407. Court of Appeals of Alaska. July 14, 1995. Scott Jay Sidell, Law Office of Chris Provost, Bethel, for appellant. James K. Metcalfe, Asst. Dist. Atty., Ben M. Herren, Dist. Atty., Bethel, and Bruce M. Botelho, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

2938

18698

OPINION MANNHEIMER, Judge. Jesse I. Evan was charged by information with two counts of first-degree sexual abuse of a minor, AS 11.41.434(a), and one count of second-degree sexual abuse of a minor, AS 11.41.436(a). Under a plea agreement with the State, Evan waived grand jury indictment and pleaded no contest to the second-degree sexual abuse charge; the other charges were dismissed. Superior Court Judge Dale O. Curda sentenced Evan to 4 years' imprisonment with 2 years suspended (2 years to serve). Evan now appeals this sentence. We affirm. Evan first challenges the superior court's reliance on the victim's account of the crime. This account was included in the pre-sen-tence report. In advance of sentencing, Evan filed a pleading in which he "[gave] notice that he dispute[d] . the version of events reported by K.E.". In his pleading, Evan argued that, as a legal matter, KE.'s statements could not qualify as "verified" for sentencing purposes under Nukapigak v. State, 562 P.2d 697, 700-02 (Alaska 1977), aff'd on rehrg., 576 P.2d 982, 984-85 (Alaska 1978), unless the State introduced independent corroboration of those statements. Evan next argued that, even if K.E.'s statements qualified as "verified" under Nukapigak, the superior court still could not rely on them until Evan had cross-examined K.E. in court. Relying on Pickens v. State, 675 P.2d 665, 671 (Alaska App.1984), and Agwiak v. State, 750 P.2d 846, 849 (Alaska App.1988), Evan asserted that he had a constitutional right to confront and cross-examine K.E. at the sentencing hearing. Evan argued that "[t]rial judges may rely on verified hearsay information at sentencing . only if the defendant fails to assert his confrontation rights". Evan concluded that, because he "intend[ed] to cross-examine K.E. extensively", Judge Curda could not rely on K.E.'s out-of-court statements unless the State proved that she was "truly unavailable". In a written order issued before sentencing, Judge Curda partially accepted and partially rejected Evan's arguments. The judge ruled that KE.'s reports of other, earlier sexual assaults committed against her by Evan were not sufficiently verified under Nukapigak, and he would therefore not consider these other incidents at sentencing. However, Judge Curda declared that he would rely upon KE.'s hearsay account of the episode underlying the current charge against Evan. The judge ruled that Evan's request to cross-examine K.E. did not, by itself, prohibit the court from considering KE.'s hearsay statements. Rather, to accomplish this purpose, Evan would have to offer a testimonial denial of the matters discussed in K.E.'s account. Evan declined to offer a testimonial denial of K.E.'s statements. Judge Curda relied on KE.'s statements when he decided the existence of aggravating factors and when he sentenced Evan. On appeal, Evan renews his argument that K.E.'s statements in the pre-sentence report (which were apparently obtained from police reports) could not qualify as "verified hearsay" under Nukapigak unless the State introduced independent evidence to corroborate K.E.'s account. In its initial opinion in Nukapigak (hereinafter "Nukapigak I"), the supreme court stated that "verified" meant "corroborated or substantiated by supporting data or information". 562 P.2d at 701 n. 2. This language could be read as support for Evan's argument. However, after saying this, the supreme court upheld the sentencing judge's reliance on uncorroborated hearsay reports of Nukapigak's other criminal acts and his violent behavior. These prior crimes had not been officially investigated or charged; the only evidence of these prior acts was the uncorroborated accounts of other people in Nukapigak's village; some of these accounts involved double-hearsay. Nevertheless, the supreme court distinguished the villagers' accounts (which it found to be "verified") from "bare accusations or unexplained arrests". Nukapigak I, 562 P.2d at 701. Thus, from the court's first opinion in Nu-kapigak, it appeared that the requirement of "supporting data or information" could be satisfied by data or information contained in the hearsay account itself. This interpretation was confirmed by the court in its opinion on rehearing ("Nukapigak II"). The court granted rehearing to address Nukapigak's contention that the hearsay information at his sentencing was not "verified". [Nukapigak] complains of our holding that the trial court was entitled to consider evidence of other instances of antisocial conduct contained in the presentence report. That information consisted of statements of various friends of Nukapigak, relatives, and members of the village council of Point Lay, Alaska, Nukapigak's home. We held that such information was sufficiently verified to be trustworthy and that it could, therefore, be considered in sentencing, where the defendant was given the opportunity to deny it or present contrary evidence. The essence of Nukapigak's argument [is that the persons] interviewed by the author of the presentence report had no first-hand knowledge of the events described and, therefore, [this] information . should not have been considered by the sentencing judge. [Nukapigak] argues that the information, being second-hand, was not sufficiently "verified" to be a proper subject for the court's consideration in framing its sentence. Nukapigak II, 576 P.2d at 983 (footnote omitted). In answer to Nukapigak's contention, the supreme court first stated that it agreed with the holding of the California Supreme Court in People v. Chi Ko Wong, 18 Cal.3d 698, 135 Cal.Rptr. 392, 409, 557 P.2d 976, 993 (1976), that "[a] defendant [who does] not exercise his right to present any materials or call any witnesses to contradict, explain or otherwise rebut materials in the [pre-sentence] report [is] foreclosed from raising such issues". Nukapigak II, 576 P.2d at 984. The court declared, "In the absence of any real indication that the information complained of might have been inaccurate, we believe that the sentencing judge was entitled to consider it; at least where, as here, that information, in and of itself, appears minimally trustworthy." Id. The court explained that "it is the defendant's obligation to comply with 'procedures to establish the claimed unreliability of materials properly submitted for sentencing purposes; a mere claim of invalidity is insufficient.' " Id. (quoting Chi Ko Wong, 135 Cal. Rptr. at 410, 557 P.2d at 994). Based on Nukapigak II, we reject Evan's contention that Judge Curda could not consider K.E.'s hearsay statements unless the State independently corroborated them. Under Nukapigak II, the required verification for hearsay information at sentencing can be found in "that information, in and of itself', unless the defendant presents a "real indication" that the hearsay information is inaccurate. Nukapigak II, 576 P.2d at 984. We therefore uphold Judge Curda's finding that KE.'s statements concerning the episode giving rise to the charge against Evan were "verified" for sentencing purposes. This brings us to Evan's second argument — his contention that, once he requested the opportunity to cross-examine K.E., Judge Curda could no longer rely on K.E.'s hearsay statements even if they were verified. Evan acknowledges that "the rules of evidence [are] relaxed at sentencing[,] allowing the court to consider hearsay evidence". See Alaska Evidence Rule 101(c)(2). Nevertheless, Evan asserts that "judges may rely on verified hearsay information at sentencing . only if the defendant fails to assert his confrontation rights". This, however, is a statement of the rule at trial, not the rule at sentencing. At trial, hearsay evidence is admissible unless the other party "assert[s] his confrontation rights" — that is, objects to the hearsay. Cassell v. State, 645 P.2d 219, 221 (Alaska App.1982). At sentencing, however, a defendant has only a limited right of confrontation and the normal rules against the admission of hearsay do not apply. See Evidence Rule 101(c)(2). In Hamilton v. State, 771 P.2d 1358 (Alaska App.1989), this court recognized that criminal defendants have a conditional right at sentencing to require the State to bring its witnesses to court so that they may be cross-examined. Compare Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949) (a criminal defendant's Sixth Amendment right of confrontation does not extend to sentencing hearings). Under Hamilton, the State must produce its sentencing witnesses (or prove their unavailability and their credibility) if the defendant "denies the allegations under oath and submits to cross-examination". Hamilton, 771 P.2d at 1362. Evan declined to deny K.E.'s allegations under oath. He relies on a ease decided prior to Hamilton: Pickens v. State, 675 P.2d 665 (Alaska App.1984). In Pickens, this court indicated that a defendant might challenge hearsay at sentencing either by offering a testimonial denial or by demanding to cross-examine the declarant. 675 P.2d at 671 ("Absent an express, testimonial denial by Pickens of this incident or a specific request to cross-examine the victim, consideration of this verified incident of prior criminal conduct was proper.") (Emphasis added.) Evan notes that the defendant in Hamilton only offered a testimonial denial and did not demand to cross-examine the hearsay declarant. Hamilton, 771 P.2d at 1361. From this, Evan argues that Hamilton must be confined to its facts and that the language from Pickens expresses the true rule: that a defendant can prevent the admission of hearsay evidence at sentencing either by offering a testimonial denial or by simply asking to cross-examine the out-of-court declarant. Evan reads too much into the language used in Pickens. Because the defendant in Pickens neither offered a testimonial denial nor sought to cross-examine the hearsay de-clarant, it was not necessary for this court to address the hearsay issue in a substantive way. For the same reason, it was not necessary for this court to decide whether either of these two courses of action (testimonial denial or demand for cross-examination) was individually sufficient to preclude the State's use of hearsay at sentencing. In contrast, Hamilton squarely addressed the issue of a defendant's right to object to the use of hearsay at sentencing. This court, citing Nukapigak, Pickens, and other Alaska cases, noted that "[t]he appellate courts of this state [had previously] considered similar arguments in a variety of cases" but had never completely resolved the issue. Hamilton, 771 P.2d at 1361-62. This court reviewed legal authority on a criminal defendant's right of confrontation in various contexts. This court also acknowledged the traditional willingness of state and federal courts to allow sentencing judges to "consider verified information adverse to a defendant even though it was based on hearsay". Hamilton, 771 P.2d at 1362. Striking a balance between these competing considerations, this court held in Hamilton that, when a hearsay declarant is available to testify, the State can not rely on hearsay evidence at sentencing "against a defendant who denies the allegations under oath and submits to cross-examination". Id. The language of Nukapigak II indicates that there may be other circumstances in which a defendant can properly object to the government's use of hearsay at sentencing— circumstances in which, although the defen dant does not personally take the stand, the defense nevertheless "present[s] . materials or call[s] . "witnesses to contradict, explain or otherwise rebut'" the government's hearsay, creating a "real indication that the information complained of [may be] inaccurate". Nukapigak II, 576 P.2d at 984 (in part quoting Chi Ko Wong, 557 P.2d at 998). However, a defendant can not preclude the use of hearsay at sentencing by simply asserting that he or she wishes to have the declarant brought to court. This is the rule that Judge Curda applied in Evan's case. Evan stated that he wished to cross-examine K.E., but he chose not to present a testimonial denial of K.E.'s hearsay statements, nor did Evan "present any materials or call any witnesses to contradict, explain or otherwise rebut" K.E.'s statements. Nukapigak II, 576 P.2d at 984. On appeal, Evan attempts to explain his inaction by asserting that he was too intoxicated to remember the episode at all, and that it would therefore be "irrationality" to require him to affirmatively explain or rebut KE.'s account of those events. However, as the supreme court stated in Nukapigak II, "[i]n the absence of any real indication that the information complained of might have been inaccurate, . the sentencing judge [is] entitled to consider it". 576 P.2d at 984. Judge Curda was therefore entitled to consider KE.'s hearsay statements at Evan's sentencing. We turn now to Evan's claim that his sentence is excessive. As noted above, Judge Curda sentenced Evan to 4 years' imprisonment with 2 years suspended, or 2 years to serve. Evan was a first-felony offender convicted of a class B felony; his sentencing was therefore governed by the guidelines this court established in State v. Jackson, 776 P.2d 320, 326-27 (Alaska App.1989). In Jackson, this court declared that a typical offender committing a typical to moderately aggravated offense should receive between 1 and 4 years to serve. Evan's sentence of 2 years to serve falls well within this benchmark range. Nevertheless, Evan argues that, because this court set a range of from 1 to 4 years for a class of eases that runs the gamut from "typical" to "moderately aggravated", Jackson must be construed to mean that a typical offender committing a "typical" class B felony should receive 1 year to serve, and that sentences in excess of 1 year are reserved for offenders committing aggravated offenses. According to Evan, a court can not sentence a first-felony offender to more than 1 year to serve unless the court affirmatively finds that the defendant's crime is "aggravated". We reject this reading of Jackson. Evan's interpretation of Jackson would put it at odds with Austin v. State, 627 P.2d 657 (Alaska App.1981), the case this court specifically relied on when establishing the 1- to 4-year benchmark. See Jackson, 776 P.2d at 326. In Austin, this court held that a first-felony offender who was not subject to presumptive sentencing should receive a more favorable sentence than the presumptive term of imprisonment established by the legislature for second-felony offenders convicted of the same offense unless the sentencing court found that the defendant's case was exceptional, either because the State had proved statutory aggravating factors or because of extraordinary circumstances that would have warranted referring the case to the three-judge sentencing panel (had the case been governed by presumptive sentencing). Austin, 627 P.2d at 657-58; see also Benboe v. State, 698 P.2d 1230, 1231 (Alaska App.1985). The presumptive term for second-felony offenders convicted of class B felonies is 4 years' imprisonment. See AS 12.55.125(d)(1). Thus, under Austin, Judge Curda could sentence Evan to up to 4 years to serve without making special findings. Jackson was not intended to alter the Austin rule, but rather to implement it. We therefore reject Evan's argument that Jackson requires a sentencing court to find significant aggravating factors before the court can impose a sentence of more than 1 year to serve. Evan challenges Judge Curda's finding that Evan's offense was among the most serious within the definition of second-degree sexual abuse of a minor. See AS 12.55.155(c)(10). Judge Curda made this finding based on K.E.'s statements that, shortly before Evan sexually abused her, he aided another man in raping K.E. (by holding her down and removing her clothing). On the basis of this evidence, Judge Curda found that Evan was guilty of first-degree sexual assault, a more serious crime. Evan asserts that Judge Curda had no authority to consider KE.'s hearsay statements. We have already decided this issue against Evan; we therefore uphold Judge Curda's finding. Evan next asserts that Judge Curda' gave improper weight to this aggravating factor. He correctly notes that proof of an aggravating factor will not automatically justify a significant increase in a defendant's sentence. Compare Juneby v. State, 641 P.2d 823, 833 (Alaska App.1982), modified on other grounds, 665 P.2d 30 (Alaska App.1983) (in cases governed by presumptive sentencing, even when aggravating factors are proved, a sentencing court should be cautious when making adjustments to the prescribed presumptive term). Judge Curda specifically noted this rule of law in his remarks at Evan's sentencing. Moreover, even though Judge Curda concluded that Evan had committed a more serious crime than the one he was convicted of, the judge nevertheless sentenced Evan to a prison term within the lower half of the Jackson benchmark range. Evan has not shown that Judge Curda gave inordinate weight to this aggravating factor. Evan also argues that Judge Curda gave insufficient attention to Evan's potential for rehabilitation and, at the same time, improperly stressed the sentencing goals of deterrence and reaffirmation of societal norms. Judge Curda's sentencing remarks show that he actively considered Evan's lack of prior criminal record. Judge Curda also expressed his belief "that Mr. Evan has probably been deterred [by the experience of] going through this". However, Judge Curda found that Evan had committed an atypically serious offense, first by helping a friend to rape K.E., then by premeditatedly returning to K.E. later and committing the act of sexual abuse for which he was convicted. Based on these findings, Judge Curda assessed Evan's potential for rehabilitation as "fair, and not exceptional". A sentencing judge has substantial discretion when evaluating the priority of the various sentencing goals and assessing the weight they should receive under the facts of a particular case. Asitonia v. State, 508 P.2d 1023, 1026 (Alaska 1973). We have independently examined the record in this case, and we conclude that Judge Curda did not abuse that discretion. The judgement of the superior court is AFFIRMED.

10346714

Jonna ROGERS-DWIGHT, Appellant, v. STATE of Alaska, Appellee

Rogers-Dwight v. State

1995-07-28

No. A-5445

1389

1392

899 P.2d 1389

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.

Jonna ROGERS-DWIGHT, Appellant, v. STATE of Alaska, Appellee.

Jonna ROGERS-DWIGHT, Appellant, v. STATE of Alaska, Appellee. No. A-5445. Court of Appeals of Alaska. July 28, 1995. Susan M. Crocker, Asst. Public Defender, Kenai, and John B. Salemi, Public Defender, Anchorage, for appellant. Ryan C. Bell, Asst. Dist. Atty., Sharon A.S. Illsley, Dist. Atty., Kenai, and Bruce M. Botelho, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

2078

12882

OPINION MANNHEIMER, Judge. Jonna Rogers-Dwight was charged with driving while intoxicated, AS 28.35.030(a). She asked the district court to suppress the evidence against her, arguing that the officer who arrested her had illegally stopped her vehicle. When the district court denied her suppression motion, Rogers-Dwight changed her plea to no contest, reserving her right to appeal the suppression issue. See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974). We uphold the district court's ruling on the suppression motion, and we therefore affirm Rogers-Dwight's conviction. Rogers-Dwight's arrest for driving while intoxicated arose out of an episode involving three vehicles on the Kenai Spur Highway. State Trooper John Whitehead, driving his patrol car, observed a truck exceeding the speed limit, and he gave chase. The speeding truck had just passed Rogers-Dwight's ear when Trooper Whitehead turned on his flashing overhead lights to signal the driver of the truck to pull over. Rogers-Dwight saw the trooper activate his lights, and she too pulled over to the side of the road — not because she believed the trooper was trying to stop her, but because she knew she was legally required to yield her lane to the patrol vehicle. The driver of the speeding truck pulled off the highway and came to a stop. Rogers-Dwight brought her car to a stop about fifty feet behind the truck. Trooper Whitehead stopped his patrol car some distance behind Rogers-Dwight's car. Whitehead got out of his patrol car and walked up to Rogers-Dwight's car; he stood outside her car on the driver's side, intending to tell her that he had not been chasing her and that she was free to go. However, Rogers-Dwight had considerable difficulty trying to roll down her window to speak to the trooper. (The window mechanism was apparently broken.) She finally opened her car door to converse with the officer. When she did so, Whitehead could smell an odor of alcoholic beverages emanating from the car. During their ensuing brief conversation, Whitehead noticed that Rogers-Dwight's speech was slurred. Based on this, Whitehead decided to detain Rogers-Dwight to further investigate whether she was driving while intoxicated. He asked Rogers-Dwight for her driver's license; she had no license but she produced a state identification card, which Whitehead took from her. Whitehead then told Rogers-Dwight to turn off her engine and wait for him while he dealt with the speeder. When Whitehead returned to Rogers-Dwight, he administered field sobriety tests and asked her to take a preliminary breath test. On the basis of all his observations, Whitehead arrested Rogers-Dwight. On appeal, Rogers-Dwight argues that Whitehead subjected her to an investigative stop when he had no suspicion that she had done anything wrong. Rogers-Dwight concedes that she pulled her car to the side of the highway, not because of constraint, but because she understood her duty to yield to an emergency vehicle. At that time, Rogers-Dwight did not think she was being stopped. She argues, however, that the situation changed when the trooper stopped his patrol car behind her (instead of going past her and parking his patrol car between her and the truck). Rogers-Dwight contends that, once the patrol car stopped behind her with its lights flashing, a reasonable person in her position would have felt constrained to remain where she was until the trooper affirmatively allowed her to leave. Thus, Rogers-Dwight concludes, the trooper's actions amounted to a Fourth Amendment seizure, and this seizure was illegal because it was not supported by articulable suspicion of wrongdoing. In determining whether a police officer's actions amount to a Fourth Amendment seizure of a person, we disregard both the subjective intentions of the police officer and the subjective perceptions of the person with whom the officer is dealing. Instead, the question is how a reasonable person, innocent of wrongdoing, would have perceived the officer's actions. Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (2nd ed. 1987), § 5.1(a), Vol. 2, pp. 388-89. A seizure occurs when a police officer engages in "a show of official authority such that a reasonable person would have believed that he [or she] was not free to leave." Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983). The Alaska Supreme Court uses this same objective test when determining whether a seizure has occurred for purposes of the search and seizure clause of the Alaska Constitution (Article I, Section 14). Waring v. State, 670 P.2d 357, 364 (Alaska 1983). The present case is unusual because Rogers-Dwight did not pull over in response to a "show of authority" directed toward her. The trooper activated his overhead lights in order to signal the driver of the speeding truck to pull over. A reasonable person in Rogers-Dwight's position, having seen the speeding truck go past and having seen the trooper activate his lights, would have understood that the trooper was not after her. Rogers-Dwight in fact perceived the situation in this manner. When a police car approaches with either its overhead lights or its siren activated, all drivers are obliged to pull over and stop, then wait for the police car to pass. See 13 AAC 02.-140(a). Therefore, when a reasonable person in Rogers-Dwight's position realized that his or her car was between a speeder and a pursuing police vehicle, the reasonable person would pull over and stop. Such a stop would be the result of the generalized statutory duty applicable to all drivers, not a "show of authority" within the meaning of search and seizure law. Again, Rogers-Dwight perceived the situation in this manner; she testified that she stopped her car at the side of the highway to comply with her statutory obligation to yield to the trooper's vehicle. At the same time that Rogers-Dwight was stopping her vehicle, the driver of the speeding truck was also stopping the truck. When Rogers-Dwight parked her car about 50 feet behind the truck, she was still situated between the truck and the pursuing trooper. As Trooper Whitehead approached the scene, he decided to park behind Rogers-Dwight's car rather than try to maneuver between the two vehicles. Rogers-Dwight's suppression argument rests solely on the assertion that a reasonable driver in this situation, seeing the patrol ear come to a stop behind her, would have felt constrained to stay where she was and submit to investigative questioning. Rogers-Dwight relies on Ozhuwan v. State, 786 P.2d 918, 920 (Alaska App.1990), where this court held that the occupant of a parked ear was seized for Fourth Amendment purposes when a police officer brought his patrol vehicle within ten yards of the parked car, blocking the car's exit, then activated his overhead lights and approached the car to question the occupant. Ozhuwan represents mainstream law in this area. As LaFave says, "[P]olice action which one would not expect if the encounter was between two private citizens — boxing the car in, approaching it on all sides by many officers, or use of flashing lights as a show of authority — will likely convert the event into a Fourth Amendment seizure." Id., § 9.2(h), Vol. 3, pp. 416-17. In Ozhuwan, the government offered two justifications for the police officer's actions: that the officer was engaged in the investigation of possible criminal activity and, alternatively, that the officer had approached the car out of concern for the safety of its occupants. Regarding the first offered justification, this court ruled that the facts of the case failed to provide any reasonable suspicion of criminal activity. Ozhuwan, 786 P.2d at 922. Regarding the government's alternative justification, this court stated: [Although] [i]t is well recognized that otherwise intrusive police conduct may be acceptable when there is a legitimate reason to be concerned for the welfare of a motorist[,] . [nevertheless, the provisions of the fourth amendment apply with equal force to seizures that are effected for the benign purpose of rendering assistance. . To justify conduct that would amount to [a fourth amendment] stop, an officer must be aware of at least some specific circumstances supporting a reasonable belief that the occupants of a vehicle need assistance. Ozhuwan, 786 P.2d at 922. The court then found that the circumstances of the case did not support a reasonable belief that the occupants of Ozhuwan's car needed the officer's assistance. Id. It is important to note that, in Ozhuwan, this court recognized that a police officer's "community caretaker" responsibilities could provide justification for a Fourth Amendment stop. (For a synopsis of the types of police activities that courts have found to be justified under the rubric of "community caretaker" functions, see Provo City v. Warden, 844 P.2d 360, 362-65 (Utah App.1992), aff'd, 875 P.2d 557 (Utah 1994).) The deciding factor in Ozhuwan was that the circum stances of the case did not give the officer reason to believe that a stop was necessary to carry out his community caretaker functions. This court's decision in Crauthers v. State, 727 P.2d 9 (Alaska App.1986), is an instructive point of comparison. In Crauthers, a police officer on routine patrol was approaching an intersection when he saw the car in front of him behave unusually. The car slowed down and came to a stop about 25 to 30 feet before the intersection, and then the driver of the car rolled down his window. Thinking that the driver was attempting to get his attention to ask for directions or other assistance, the officer pulled in behind the car; as a safety precaution (because the two ears were parked in a traffic lane), the officer activated his overhead lights. When the officer made contact with the driver, he discovered the driver to be intoxicated. On appeal, the driver of the car argued that he had been subjected to an unlawful stop when the officer parked behind him and turned on his lights. This court disagreed: When a police officer observes . circumstances which he . reasonably concludes to be a request for contact or assistance, the officer is justified in making that contact. Crauthers, 727 P.2d at 11. The facts of Rogers-Dwight's case bear a resemblance to the facts of Ozhuwan and the facts of Crauthers. In all three eases, a law enforcement officer activated his patrol car's overhead lights and then approached the occupant of a parked car. However, even accepting Rogers-Dwight's assertion that a reasonable person in her position would have perceived the trooper's actions as a Fourth Amendment stop, we nevertheless find that Rogers-Dwight's case is more like Crauthers than Ozhuwan — because, under the facts of Rogers-Dwight's case, Trooper Whitehead did have an articulable reason to make contact with her. As explained above, under 13 AAC 02.140(a), Rogers-Dwight was obliged to pull her car to the side of the road and remain stopped there "to await passage of the [trooper's] vehicle". But the trooper's vehicle did not pass Rogers-Dwight's car. Trooper Whitehead, apparently for reasons of traffic safety, chose to park behind her. Under these circumstances, it was reasonable for Trooper Whitehead to approach Rogers-Dwight and clarify that, notwithstanding the regulation, she was free to go. Even if Rogers-Dwight had been under no statutory duty to remain where she was, Trooper Whitehead's community caretaker responsibilities would still justify his action of approaching and speaking to Rogers-Dwight. Rogers-Dwight's vehicle was parked between a stopped speeder and a law enforcement officer who was about to contact the speeder. In order to eliminate the chance that Rogers-Dwight might be harmed (if Trooper Whitehead's impending encounter with the driver of the truck took a bad turn), Whitehead was justified in approaching Rogers-Dwight and asking her (or directing her) to drive on. The judgment of the district court is AFFIRMED. . 13 AAC 02.140(a) provides: Upon the approach of an authorized emergency vehicle making use of . visual . and audible signals , or a police vehicle making use of either a visual or an audible signal, the driver of every vehicle proceeding in any direction shall yield the right-of-way by slowing and pulling to the right hand edge of the roadway, clear of an intersection[,] and stopping! ] to await passage of the emergency vehicle.

11768307

INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL 1264, Appellant, v. MUNICIPALITY OF ANCHORAGE and Anchorage Daily News, Appellees

International Ass'n of Fire Fighters, Local 1264 v. Municipality of Anchorage

1999-02-12

No. S-7993

1132

1137

973 P.2d 1132

973

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL 1264, Appellant, v. MUNICIPALITY OF ANCHORAGE and Anchorage Daily News, Appellees.

INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL 1264, Appellant, v. MUNICIPALITY OF ANCHORAGE and Anchorage Daily News, Appellees. No. S-7993. Supreme Court of Alaska. Feb. 12, 1999. Charles A. Dunnagan, Jermain, Dunnagan & Owens, P.C., Anchorage, ■ for Appellant. Ann Waller Resch, Deputy Municipal Attorney, and Mary K. Hughes, Municipal Attorney, Municipality of Anchorage, for Appel-lee Municipality of Anchorage. D. John McKay, Law Office of D. John McKay, Anchorage, for Appellee Anchorage Daily News. Before MATTHEWS, Chief Justice, and COMPTON, EASTAUGH, and BRYNER, Justices.

2714

18012

OPINION MATTHEWS, Chief Justice. I.INTRODUCTION The International Association of Fire Fighters, Local 1264, (IAFF) sought a declaratory judgment and an injunction to prevent the Municipality of Anchorage (MOA) from releasing municipal employees' names in conjunction with their salaries to the Anchorage Daily News (News). IAFF alleged that the disclosure violated article I, section 22 of the Alaska Constitution and Anchorage Municipal Code (AMC) section 3.90.040(B) (1996). We affirm the superior court's decision that the disclosure did not violate the employees' constitutional or statutory rights to privacy, and hold that municipal employees do not have a reasonable expectation of privacy in their names and salaries. II. FACTS AND PROCEEDINGS MOA has released a salary list of municipal employees annually since before 1982. This list includes employees' names, job titles, departments, base salaries, overtime, benefits, and cashed-in leave. Information from the list, such as names and salaries of the highest-paid municipal employees, has been subsequently published by the News. On September 12, 1996, IAFF's attorneys requested that MOA release the information by job classifications instead of by individual names. When MOA did not respond by January 9,1997, IAFF filed a complaint in superior court seeking an injunction and a declaratory judgment that MOA's disclosure of specific employees' names in conjunction with their salaries violated their constitutional and statutory rights to privacy. The News then intervened in the action. The superior court held that the disclosure was not an unwarranted invasion of privacy, because the municipal employees do not have a reasonable expectation of privacy in the amount of public money they are paid. The court also stated that even if IAFF had established a privacy right, it was outweighed by the countervailing "public interest in disclosure." The superior court issued a final judgment denying injunctive relief and dismissing the action with prejudice. IAFF appeals this decision. III. DISCUSSION A. MOA Did Not Violate the Municipal Employees' Constitutional Right of Privacy by Disclosing Their Names in Conjunction with Their Salaries. Article I, section 22 of the Alaska Constitution provides: "The right of the people to privacy is recognized and shall not be infringed. The legislature shall implement this section." IAFF argues that MOA violated the municipal employees' right to privacy under article I, section 22 of the Alaska Constitution by disclosing their names in conjunction with their salaries. This court has recognized that "under appropriate circumstances, a statute requiring the disclosure of a person's identity must yield to the constitutional right to privacy." Alaska Wildlife Alliance v. Rue, 948 P.2d 976, 980 (Alaska 1997). Thus, MOA could not disclose the municipal employees' names and salaries if the disclosure would violate their constitutional privacy rights. To determine whether the disclosure of public records violates Alaska's constitutional right to privacy, we apply the following test: (1) does the party seeking to come within the protection of the right to [privacy] have a legitimate expectation that the materials or information will not be disclosed? (2) is disclosure nonetheless required to serve a compelling state interest? (3) if so, will the necessary disclosure occur in that manner which is least intrusive with respect to the right to [privacy]? Id. (alteration in original) (quoting Jones v. Jennings, 788 P.2d 732, 738 (Alaska 1990)). IAFF argues that municipal employees have a legitimate expectation of privacy in their names and salaries because that information is contained in their personnel files, and is intimate and sensitive information that reveals their financial status. The News and MOA, however, argue that salary information is not personal or private, even if included in a personnel file, and that public employees lack a legitimate expectation of privacy regarding such information. To show that disclosure of the municipal employees' names and salaries violates their constitutional right to privacy, IAFF must first demonstrate that the municipal employees have a "legitimate expectation that the materials or information will not be disclosed." Alaska Wildlife Alliance, 948 P.2d at 980. Such an expectation is one that "society is prepared to recognize as reasonable." Nathanson v. State, 554 P.2d 456, 458-59 (Alaska 1976) (quoting Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)). The right to privacy is not absolute; it protects "intimate" or "sensitive personal information . which, if disclosed even to a friend, could cause embarrassment or anxiety." Doe v. Alaska Superior Court, Third Judicial Dist., 721 P.2d 617, 629 (Alaska 1986) (citations omitted). IAFF first argues that we have already held that public employees have a legitimate expectation of privacy in their personnel files, which, it claims, includes their names and salaries. In Jones, 788 P.2d at 738-39, an excessive force tort case, we indicated that police officers had a legitimate expectation of privacy in their personnel records, which contained their names, addresses, and personal financial information, noting that personnel files " 'contain the most intimate details' of an employee's work history." The confidentiality of salary information, however, was not at issue in Jones. The trial court in that case had allowed the policemen's salary information to be withheld until the damages stage of the suit, and the permissibility of its disclosure was not raised before the supreme court. See id. at 734. In Alaska Wildlife Alliance, we held that time sheets were not personnel records under AS 39.25.080, the Alaska Personnel Act. This section provides that "[s]tate personnel records" are confidential, and not open to public inspection. We emphasized in Alas ka Wildlife Alliance that the protected personnel records were of a type similar to the examples in the statute, such as "employment applications" and "examination materials," which "contain details about the employee's or applicant's personal life." Id. at 979-80. The exceptions to the confidentiality requirement, including "compensation authorized," "tell[ ] little about the individual's personal life, but instead simply describef ] employment status." Id. at 980. We also noted that courts in other states have found that payroll records, vacation, and sick leave attendance records are disclosable because they are not "private facts of a personal nature." Id. at 979-80 (citations omitted). Thus we have defined the term "personnel record" narrowly, to include only information which reveals the details of an individual's personal life. Id. at 980. Our statement in Jones that personnel files contain intimate details about "work history" is consistent with this analysis. Work history is personal information, but it only includes information like employment applications and examination materials — not information such as base salary and benefits. Id. at 979-80. When Jones and Alaska Wildlife Alliance are read together, it is clear that employees only have a legitimate expectation of privacy in the personal information contained in their personnel records. The employees' names and salaries, however, are not personal information, and would not be protected by the constitutional right to privacy under our decisions in Jones and Alaska Wildlife Alliance. IAFF also argues that language from our decisions in State v. Glass, 583 P.2d 872 (Alaska 1978), and State, Department of Revenue v. Oliver, 636 P.2d 1156 (Alaska 1981), demonstrates that they have a legitimate expectation of privacy in their salaries, because it is information about their "personal finances." In Glass, we partially justified our holding that electronic surveillance violated the right to privacy with the following statement: "Clever prodding may elicit thoughtless comments about sex, religion, politics, acquaintances, personal finances and even one's innermost thoughts." Id. at 878. This statement, however, was merely a passing reference to "personal finances" in a search and seizure case, and does not control the issue of whether public employees' salaries are private information. In Oliver, we stated that Glass "alludes to personal finances as one kind of information within an individual's expectation of privacy." 636 P.2d at 1166 (citing Glass, 583 P.2d at 878). However, we did not decide whether taxpayers had a legitimate expectation of privacy in their income tax information, because the State conceded this point. Id. This statement in Oliver, therefore, is merely dictum. These statements do not address the question whether the salary of a public employee falls within the concept of protected personal finances. Several other jurisdictions have held that public employees do not have a privacy expectation in their names and salaries. Furthermore, salaries of public employees are not merely private matters. [Ojne aspect of a private matter is that it is private, that is, that it does not adversely affect persons beyond the actor,_ and hence is none of their business. When a matter does affect the public, directly or indirectly, it loses its wholly private character, and can be made to yield when an appropriate public need is demonstrated.[ ] Because the amount public employees are paid clearly affects the public, following Luedtke, the salary information in this case cannot be considered "wholly private." Other states have also held that public employees have a reduced expectation of privacy. We thus hold that municipal employees do not have a legitimate expectation of privacy in their names and salaries. Even if this information is included in their personnel records, it is not sensitive or personal. In addition, as public employees, they have a reduced expectation of privacy in their salaries, which are clearly of legitimate public concern. Thus disclosure of their names and salaries does not violate their constitutional right to privacy. B. MOA Did Not Violate AMC 8.90.01p0(B) by Disclosing the Municipal Employees' Names in Conjunction with Their Salaries. IAFF also argues that MOA's disclosure of the municipal employees' names in conjunction with their salaries violated AMC 3.90.040(B). The Anchorage Municipal Code mandates full disclosure by the municipality of all public records, except those prohibited from disclosure by section 3.90.040 or other law. See AMC 3.90.030. The disclosure provision must be "liberally construed to require full disclosure of all public records . except those specifically exempted under section 3.90.040." AMC 3.90.010. One of the specific exceptions to disclosure is AMC 3.90.040(B), which prohibits disclosure of information contained in a personnel file if the information both "reveal[s] the financial . status of any specific individual," and "would constitute an unwarranted invasion of privacy." Jones v. Jennings, 788 P.2d 732, 736 (Alaska 1990) (alteration in original). Independent analysis of whether MOA's disclosure of the municipal employees' names and salaries violated AMC 3.90.040(B) is not necessary, however. To satisfy this exception from disclosure, the disclosure must be an "unwarranted invasion of privacy." AMC 3.90.040(B). Determining whether disclosure is an "unwarranted invasion of privacy" depends on the same considerations discussed above concerning the constitutional right to privacy. Public employment salary information is not information of a personal nature and its disclosure is justified by the public interest. Therefore the disclosure exception does not apply, and the information was properly disclosed pursuant to AMC 3.90.030. IV. CONCLUSION As public employees, the municipal employees do not have a legitimate expectation of privacy in their names and salaries. We AFFIRM the superior court's decision that the disclosure did not violate the municipal employees' constitutional or statutory rights to privacy. FABE, Justice, not participating. . The question of whether article I, section 22 of the Alaska Constitution or AMC 3.90.040(B) prohibits disclosure of the municipal employees' names in conjunction with their salaries is a question of law which this court reviews de novo. See Jones v. Jennings, 788 P.2d 732, 735 (Alaska 1990). 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). . See Alaska Wildlife Alliance, 948 P.2d at 979-80 (holding that public employees and private contractors involved in wolf control program had legitimate expectation that state would not disclose their names because they had received credible threats of harm). . AS 39.25.080 provides in part: (a) State personnel records, including employment applications and examination materials, are confidential and are not open to public inspection except as provided in this section. (b) The following information is available for public inspection, subject to reasonable regulations on the time and manner of inspection: (1) the names and position titles of all state employees; (2) the position held by a state employee; (3) prior positions held by a state employee; (4) whether a state employee is in the classified, partially exempt, or exempt service; (5) the dates of appointment and separation of a state employee; and (6) the compensation authorized for a state employee. . See, e.g., Pottle v. School Committee of Braintree, 395 Mass. 861, 482 N.E.2d 813 (1985) (upholding disclosure of public employees' names and addresses); Hastings & Sons Pub. Co. v. City Treasurer, 374 Mass. 812, 375 N.E.2d 299, 301-04 (1978) (holding that disclosure of municipal employees' payroll records, including their names, addresses, base pay, overtime, miscellaneous payments and gross pay, did not violate constitutional right to privacy because information was not "intimate details of a highly personal nature"; names and salaries were not type of information legislature intended to exempt as personnel records) (citations omitted); State ex rel. Jones v. Myers, 61 Ohio Misc.2d 617, 581 N.E.2d 629, 630-31 (1991) (holding that disclosure of payroll records, which included names, earnings, statutory withholdings, vacations, sick leave, garnishments, and court-ordered support payments, did not violate privacy because "[t]he public has an absolute right to ascertain the earnings of its servants"; however, deductions for deferred compensation plans, savings bond investments and Christmas club should not be disclosed because this type of information was personal financial information). . Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123, 1135 (Alaska 1989) (quoting Ravin v. State, 537 P.2d 494, 504 (Alaska 1975)); see also City of Kenai v. Kenai Peninsula Newspapers, Inc., 642 P.2d 1316, 1324 (Alaska 1982) (recognizing that applicants for high government positions expose their private lives to public scrutiny). . See, e.g., Braun v. City of Taft, 154 Cal.App.3d 332, 201 Cal.Rptr. 654, 662 (1984) ("Although one does not lose his right to privacy upon accepting public employment, the very fact that he is engaged in the public's business strips him of some anonymity."); Pottle, 482 N.E.2d at 817 (stating that public employees have "diminished expectations of privacy"); Hastings, 375 N.E.2d at 304 (stating that municipal employees are subject to restrictions and regulations not affecting private employees). . AMC 3.90.030 provides in part: Except as provided by section 3.90.040, or by other provisions of municipal, state or federal law, the municipality shall make all public records open to inspection by any person subject to guidelines regulating the time, place and manner of inspection which may be adopted by the municipal mayor pursuant to section 3.90.050. The types of records and information open to public inspection pursuant to this chapter shall include but shall not be limited to the following: D. Salary levels and fringe benefits accorded municipal officers and employees by law, including information in regard to the pay range and step grade of an employee or officer, and statistical analyses or compilations relating to municipal practices and policies concerning compensation for various occupational groups, departments and divisions. (Emphasis added.) . AMC 3.90.010 provides: It is the policy of the municipality to provide the fullest and most rapid public access to municipal records and information so that the right of the people to remain informed is protected. In enacting this measure, the assembly recognizes the competing interests of personal privacy and the right of the public to have access to information concerning the conduct of the people's business. This chapter shall therefore be liberally construed to require full disclosure of all public records in the possession or control of any municipal agency, except those specifically exempted under section 3.90.040. . AMC 3.90.040 provides in part: This chapter shall not be construed to require disclosure of: B. Personnel, payroll or medical files, equal rights commission files or other files which reveal the financial or medical status of any specific individual, the release of which would constitute an unwarranted invasion of privacy.

11768659

Gene V. MARTIN, Jr., Appellant, v. STATE of Alaska, Appellee

Martin v. State

1999-02-19

No. A-6699

1151

1158

973 P.2d 1151

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.

Gene V. MARTIN, Jr., Appellant, v. STATE of Alaska, Appellee.

Gene V. MARTIN, Jr., Appellant, v. STATE of Alaska, Appellee. No. A-6699. Court of Appeals of Alaska. Feb. 19, 1999. Allan R. Thielen, Assistant Public Defender, Kodiak, and Barbara K. Brink, Public Defender, 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.

3859

23654

OPINION MANNHEIMER, Judge. On the evening of January 25, 1996, Gene V. Martin asked a female acquaintance, K.W., to go for a ride with him. Martin's ostensible purpose was to have a frank conversation with K.W. about a mutual friend. During this drive, Martin stopped his truck and offered K.W. some cocaine; she accepted. After they shared the cocaine, Martin drove,to a remote location. He asked K.W. to get out of the truck, telling her that he needed to fold the seat forward so that he could reach something in the cab. Both Martin and K.W. got out of the vehicle. Then Martin grabbed K.W., held a knife to her throat, and told her she would have to "pay" for the cocaine. Martin forced K.W. into the bed of the pickup, where he sexually assaulted her in various ways over the course of two hours. K.W. initially fought Martin, but he was considerably bigger than she was, and K.W. ultimately submitted after Martin struck her in the face particularly forcefully. Martin was initially indicted for kidnapping and several counts of first-degree sexual assault. Ten months later, the State filed a superseding information charging Martin with only one offense: third-degree misconduct involving a controlled substance (delivery of cocaine). Martin pleaded no contest to this substitute charge, and he received a sentence of 9 years' imprisonment with 2 years suspended (7 years to serve). Martin was also ordered to participate in sex offender treatment during his imprisonment, if such treatment was offered to him by the Department of Corrections. In this appeal, Martin asserts that this sentence is excessive. He also challenges the provision requiring him to participate in sex offender treatment. For the reasons explained here, we affirm Martin's sentence. Martin's criminal history, and the evidence adduced at the sentencing hearing Martin's offense, third-degree controlled substance misconduct, is a class B felony. Martin had one previous felony conviction: in 1992, in the State of Washington, Martin climbed on top of a sleeping woman and penetrated her vagina with his fingers; based on this conduct, he was convicted of attempted second-degree rape. Because he was a second felony offender, Martin faced a presumptive term of 4 years' imprisonment for his present drug offense. In addition to his 1992 felony conviction from Washington, Martin had committed other assaults on women. In 1989, in Palmer, Martin was convicted of assault for beating up his wife, T.N. Martin received a suspended imposition of sentence for this offense after T.N. asked the authorities to drop the charge. When T.N. was contacted by the pre-sen-tence investigator in preparation for the sentencing in the present case, T.N. told the investigator that she believed Martin had participated in a 1986 sexual assault on a nude dancer in the Soldotna area. On the evening of the rape, Martin and two friends visited the bar where the dancer worked. The next morning, the police came to Martin's home to question him about his possible knowledge of this crime. According to T.N., Martin lied to the officers: he told them that he had not gone out the previous night. Then, after the officers had gone, Martin left the house and returned to the bar to " 'dump' the dancer's purse [there]". In addition to speaking with the pre-sen-tence investigator, T.N. also testified at Martin's sentencing hearing. She told the court that, during her marriage to Martin, Martin had frequently beaten her. She described one occasion in which Martin beat her and gouged her eyes until blood ran down her face. In addition, Martin often threatened to kill T.N.; sometimes, he would threaten to cut her body into little pieces and throw the pieces into Cook Inlet. T.N. ultimately left Martin in November 1990, after she found out that Martin had assaulted a woman in the El Toro Lounge, a bar in the Palmer-Wasilla area. The victim of this assault, J.G., also testified at Martin's sentencing hearing. J.G. told the court that, on November 9, 1990, she had gone to use the women's restroom at the El Toro. When she opened the stall, Martin was there, sitting on the toilet so that his feet wouldn't show. Martin pushed J.G. aside and left the restroom. J.G. thought that Martin was gone, so she went ahead and used the toilet. But as she was standing up and fastening her pants, Martin broke into the stall again and grabbed her. He slammed her against the back of the stall. When J.G. screamed, Martin put his hand over her mouth. J.G. then kicked Martin in the groin. When Martin dropped down in pain, J.G. ran past him out of the restroom, and then she quickly told a friend what had just happened. By this time, Martin was running out the back door of the bar. J.G., a male companion, and the El Toro bouncers chased Martin out in the parking lot. Martin tried to get into one of the little cabins nearby, but the doors were locked. J.G.'s companion tackled Martin, but the bouncers advised him to let Martin go, so the companion released him. Martin jumped up and ran to his van. Martin had apparently planned for a speedy escape, because the engine was already running. As Martin was leaving the restaurant parking lot, he backed his van into another vehicle, causing approximately $1400 in damage. He then fled the scene'. Martin drove recklessly down the highway, speeding and passing several vehicles in an attempt to beat a railroad train to a crossing. He was unsuccessful: his van was struck by the train, causing the vehicle to leave the road and overturn. Martin, however, was only slightly injured, and he fled on foot. When he returned home, Martin lay down to sleep on the couch. T.N. knew that he was injured, so the next morning she went to Martin's workplace to see if she could find out what actually had happened the night before. Martin's boss told-her that Martin was suspected of assaulting a woman in the El Toro Lounge. When T.N. went to the El Toro and the bartender confirmed that this was true, T.N. decided to leave Martin. She called the police and let them know where to find Martin. She then took the children and went to stay at a neighbor's house. The next day, Martin found her. He banged on the door of the house and threatened to kill her. T.N. met her husband with a shotgun; she told Martin that she would shoot him then and there if he didn't leave. That was the last time T.N. saw Martin until the sentencing hearing in this case. Based on this incident at the El Toro Lounge, Martin was charged with misdemeanor assault in the Palmer district court. Released on bail, he then failed to appear and a bench warrant was issued for his arrest. This warrant was still pending some five years later when Martin was arrested in the present case. Aggravating and mitigating factors Based on this criminal history and the facts of the present case, Superior Court Judge Donald D. Hopwood found that the State had proved several aggravating factors under AS 12.55.155(c): (c)(1) — that Martin inflicted physical injury on K.W.; (c)(7) — that Martin's prior felony (the attempted rape in Washington) Was a more serious class of felony than his current offense; (c)(8) — that Martin's criminal history included aggravated or repeated instances of assaultive behavior; (c)(10) — that Martin's offense (delivery of cocaine) was among the most serious conduct included within the definition of the offense; (c)(12) — that Martin was on release from a misdemeanor charge involving assault (the assault at the El Toro Lounge) when he committed the present offense; and (c)(20)— that Martin was on felony probation (his probation from the 1992 attempted rape in Washington) when he committed the present offense. Martin proposed three mitigating factors under AS 12.55.155(d): (d)(9) — that Martin's offense was among the least serious conduct within the definition of the crime; (d)(14)— that Martin's delivery of cocaine involved only a small amount; and (d)(15) — that Martin's delivery of cocaine had not been done for profit. Judge Hopwood found that Martin had proved the last of these mitigators, but he rejected the other two. On appeal, Martin contends that Judge Hopwood should have found mitigator (d)(14) — that Martin's delivery of cocaine involved only a small amount. Martin bases his argument on the contention that he gave K.W. only 1/2-gram of cocaine. This may have been the amount of cocaine that K.W. consumed, but Judge Hopwood found that Martin "delivered" (that is, handed' K.W.) the entire 1-gram slip. Judge Hopwood also found that 1 gram of cocaine is a "typical amount . delivered for immediate use". Martin has failed to show that either of these findings is clearly erroneous. We therefore uphold Judge Hopwood's ruling on mitigator (d)(14). Martin also challenges Judge Hop-wood's ruling that the State proved aggravator (c)(10) (conduct among the most serious) and his concomitant ruling that Martin failed to prove mitigator (d)(9) (conduct among the least serious). The gist of Martin's argument is that the seriousness of his drug offense should be judged solely on the circumstances directly relating to his delivery of the cocaine to K.W. — -for example, the quantity of the drug, and whether Martin expected to profit monetarily from the delivery. Martin contends that his sexual and physical assaults on K.W. are irrelevant to determining the seriousness of his drug offense, and therefore Judge Hopwood should not have considered this aspect of Martin's behavior when he ruled on aggravator (c)(10) and miti-gator (d)(9). Judge Hopwood's ruling that the State had proved aggravator (c)(10) was based on the judge's factual finding that Martin's delivery of cocaine to K.W. was "just one part of the crime he set up, [just one part of] the design he had with this particular victim". Judge Hopwood explicitly stated that his ruling with regard to aggravator (c)(10) was based not simply on the fact that Martin had sexually assaulted K.W., but rather on the fact that Martin's delivery of cocaine to K.W. was motivated by his intention to commit a sexual assault: THE COURT: I want to emphasize to everybody, and for the record, that the defendant is not being sentenced for sexual assault. But it's impossible to ignore that [assault] or to separate it out, since [the assault] was part of the circumstances: it was an integral part of the setting, and [it was] part of the defendant's purpose in delivering the cocaine. [The delivery of cocaine] was done for the defendant's own sexual gratification, and it was done by design.... The return [on the cocaine] was sexual gratification. And it's pretty clear to me, from all the evidence, that the defendant was going to [obtain] his gratification regardless of [K.W.] 's consent. And he was going to do it by force, or he was going to do it by making her vulnerable if she was under the influence of cocaine_ When I [examine] the defendant's history, and when I see the design and purpose he had in this case, I think the delivery of the cocaine was most serious. In attacking Judge Hopwood's ruling, Martin relies on language from this court's decision in Brezenoff v. State : AS 12.55.155(c)(10) stresses the conduct involved in the specific offense under consideration rather than the personal characteristics of the offender[.] [It] requires comparison of the conduct constituting the crime in question with other conduct which would satisfy the elements of the offense. This aggravating factor does not require a comparison of the defendant to other potential defendants committing the offense. 658 P.2d at 1363. It is true that aggravator (e)(10) focuses on the defendant's conduct, not the defendant's personal characteristics. But Judge Hop-wood did not rely on Martin's personal characteristics; he based his decision on Martin's motive for giving cocaine to K.W. and on the conduct that ultimately accompanied Martin's delivery of this drug. This was proper. Our prior decisions construing aggravator (c)(10) are inconsistent with the restrictive definition of "conduct" that Martin proposes. For example, in Curl v. State the defendant was convicted of a single count of sexual abuse of a minor. The sentencing judge found aggravator (c)(10) based on evidence that the charged incident of sexual abuse was but one of a series of twenty to twenty-five similar episodes, committed over a period of approximately four months, many of which apparently involved multiple acts of sexual contact. We upheld the sentencing judge's finding of aggravator (e)(10). And in Machado v. State , the defendant was sentenced for perjury. The sentencing judge found aggravator (c)(10) based on the fact that Machado's perjury went to a material issue and the fact that Machado committed the perjury in an attempt to escape prosecution for his part in a car bombing. We upheld the sentencing judge's finding of aggravator (c)(10). In particular, we noted that "Machado's motive for giving the false testimony . seem[s] to make his offense particularly severe." We therefore conclude that Judge Hop-wood properly considered Martin's motive for delivering cocaine to K.W.. And, because Judge Hopwood concluded that Martin's motive for this crime was to accomplish a sexual assault, Judge Hopwood could properly conclude that Martin's ensuing physical and sexual assaults on K.W. were related to the delivery of cocaine and aggravated that offense. The length of Martin's sentence In Judge Hopwood's sentencing remarks, he stressed two aggravators: (c)(8) (Martin's history of assaultive behavior) and (c)(10) (conduct among the most serious within the definition of the offense). The judge concluded that these two aggravators were important because the delivery of cocaine was accompanied by an "extreme[ly] assaul-tive" rape, and because the accomplishment of this rape was Martin's motive for delivering the cocaine. Judge Hopwood also found that Martin's potential for rehabilitation was "poor". The judge reached this conclusion based on several factors: Martin's criminal record, the judge's personal observations of Martin in court, and the fact that Martin had never shown remorse or accepted responsibility for his actions. These second and third factors require an explanation. As noted above, K.W. testified at Martin's sentencing hearing; she described her meeting with Martin, the delivery of cocaine, and the ensuing assault. The State called K.W. to rebut Martin's testimony: Martin took the stand at the sentencing hearing and, in lengthy testimony, he denied that a sexual assault had occurred. Martin testified that he went driving with K.W. because K.W. propositioned him, offering her body in exchange for cocaine. Martin further testified that, after they shared the cocaine, K.W. willingly kissed and fondled Martin. Martin then drove to a secluded location, where they engaged in consensual sex. Martin denied assaulting K.W. with the knife, and he denied beating her. When Judge Hopwood announced his findings of fact at the conclusion of the sentencing hearing, he implicitly found that Martin had committed multiple instances of perjury during his testimony. The judge found that K.W. had not offered herself for cocaine and that K.W. had not intended to engage in sexual relations with Martin. The judge further found that Martin restrained K.W., held a knife against her throat, and then engaged in multiple acts of sexual penetration against her will. In other words, Judge Hopwood found that Martin's account of those events was knowingly false. Judge Hopwood found that Martin's delivery of cocaine was a crime of design, motivated by a plan to sexually assault K.W.. The judge noted that Martin had repeatedly engaged in assaultive conduct against women— even while he was on probation from his attempted rape conviction in Washington. He also noted that Martin had engaged in repeated acts of dishonesty as well as repeated violations of bail conditions and probation conditions. Judge Hopwood found that Martin had a severe, long-term alcohol and drug problem. He noted that Martin had made promises of rehabilitation in the past, but nothing had ever come of these promises. Based on these findings, Judge Hopwood assessed the term of imprisonment he would impose. As already noted, Martin's offense is a class B felony and Martin, as a second felony offender, faced a presumptive 4-year term. Judge Hopwood noted that, under the benchmark sentencing ranges established in State v. Jackson for first felony offenders convicted of class B felonies , a defendant who commits an "exceptionally aggravated" class B felony (one involving significant aggravating factors) can receive up to 6 years to serve. Judge Hopwood concluded, for the reasons explained above, that Martin's offense was "exceptionally aggravated" under the Jackson categories. The judge reasoned that, because Martin was a second felony offender, he should receive a more severe sentence than a similar first felony offender would receive under the Jackson benchmarks. The judge therefore sentenced Martin to serve 7 years in prison (9 years with 2 years suspended). We agree with Judge Hopwood that Martin's offense is exceptionally aggravated. Martin has a lengthy history of physical and sexual assaults on women — including acts of physical and sexual violence committed while Martin was on felony probation from an attempted rape conviction in the State of Washington. Judge Hopwood could justifiably conclude that Martin is a dangerous offender. Moreover, based on Martin's recidivism, his lack of remorse, and his failure to take responsibility for his crimes (indeed, his extensive perjury at the sentencing hearing), Judge Hopwood could properly conclude that Martin's prospects for rehabilitation were poor. Under the circumstances of this case, a sentence of up to 6 years to serve would have been supportable if Martin had been a first felony offender. But he was a second felony offender. Given Martin's status as a second felony offender, we conclude that his sentence of 7 years to serve is not clearly mistaken. The provision that Martin must participate in sex offender treatment if such treatment is offered to him in prison Finally, Martin challenges Judge Hopwood's decision to require him to engage in sex offender treatment while in prison if the Department of Corrections offers him such treatment. Martin asserts that "it is difficult to ascertain from the record why the sentencing [judge] ordered sex offender treatment". Martin's contention is close to frivolous. Martin committed multiple acts of sexual assault on K.W. in this ease. In 1992, he was convicted of attempted rape in Washington. And, in 1990, he hid in the women's restroom of a bar and assaulted a woman there. This record certainly justifies the conclusion that Martin is in need of sex offender treatment. The fact that Martin was convicted of a drug offense rather than a sexual offense did not bar Judge Hopwood from ordering Martin to engage in sex offender treatment. In Miyasato v. State we upheld a sentencing judge's decision to require the defendant to engage in sex offender treatment even though he was convicted of a property crime (burglary), not a sex crime. We noted that [although] [conditions of probation must be reasonably related to the rehabilitation of the offender and the protection of the public, . a condition of probation need not directly relate to the offense for which the defendant stands convicted. [For example, in] Allain v. State, 810 P.2d 1019 (Alaska App.1991), this court upheld a probation condition that forbade the defendant from drinking alcoholic beverages, even though the defendant's offense was not alcohol-related. Allain, 810 P.2d at 1022-23. This court upheld the condition because it enhanced the defendant's prospects for rehabilitation^] Miyasato, 892 P.2d at 201-02 (some citations and internal quotations omitted). Miyasato had a record of sex offenses, and his prior behavior exhibited misogyny. We therefore concluded that there was "ample basis for [the sentencing judge] to conclude that sex offender treatment was integrally related to Miyasato's rehabilitation and to the future protection of the public." Martin concedes that Miyasato and Attain (cited in the excerpt from Miyasato) allow sentencing courts to order defendants to engage in rehabilitative programs that are not directly related to the offense for which they are being sentenced. Martin argues, however, that Judge Hopwood never made explicit findings to support his decision to order Martin to participate in sex offender treatment. Given the record in this case, the basis for Judge Hopwood's decision would be clear even if the judge had failed to address this issue. But he did. Judge Hopwood declared that he viewed Martin's behavior in the present case [as] a continuation of a pattern ., [a continuation of behavior] that the defendant has done before in various ways. This incident here involved a physical and sexual assault. I've already noted [that] he's committed prior assaults, and at least one sexual assault in Washington. And [in] these other incidents, . maybe all of them, but at least most of them, the defendant had consumed alcohol or drugs. And in the [Washington] case, the victim of the sexual assault was intoxicated. [I]t just seems to me that the delivery of the cocaine here was just one part of the crime he set up, [one part of] the design he had with this particular victim[.] . And he's done that before_ [T]he defendant is not being sentenced on the sexual assault, but it's impossible to ignore that [sexual assault] or to separate it out, since it was part of the circumstances. It was an integral part of the setting, and part of the defendant's purpose in delivering the cocaine- [T]his incident here, and [also] the Washington case, [were] done for the defendant's own sexual gratification and [were] done by design. In light of these findings, Judge Hopwood's decision to order Martin to engage in sex offender treatment was reasonably related to Martin's rehabilitation and to the future protection of the public. Conclusion The superior court's sentencing decision is AFFIRMED. . AS 11.71.030(a)(1). . AS 11.71.030(c). . AS 12.55.125(d)(1). . See Lepley v. State, 807 P.2d 1095, 1099 n. 1 (Alaska App.1991) (holding that a sentencing judge's findings concerning proposed aggravating and mitigating factors are reviewed under the "clearly erroneous" test); Knight v. State, 855 P.2d 1347, 1349 (Alaska App.1993) (for purposes of applying mitigator (d)(14), a "small quantity" is a quantity that is uncharacteristically small when compared to the broad middle-ground covered by a typical drug case). . 658 P.2d 1359, 1363 (Alaska App.1983). . 843 P.2d 1244 (Alaska App. 1992). . See id. at 1245. . 797 P.2d 677 (Alaska App. 1990). . See id. at 690. . Id. . 776 P.2d 320, 326-27 (Alaska App.1989). . See id. at 326. . See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (holding that an appellate court will affirm a sentencing decision unless it is clearly mistaken). . 892 P.2d 200 (Alaska App.1995). . Id. at 200-01. . Id. at 202.

10346102

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

Simmons v. State

1995-07-21

No. A-4972

931

938

899 P.2d 931

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.

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

David SIMMONS, Appellant, v. STATE of Alaska, Appellee. No. A-4972. Court of Appeals of Alaska. July 21, 1995. Randall S. Cavanaugh, Kirk, Robinson & Cavanaugh, Anchorage, for appellant. Kenneth M. Rosenstein, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

3395

20491

OPINION BRYNER, Chief Judge. David Simmons was convicted of two counts of misconduct involving weapons in the first degree, AS 11.61.200(a)(1) (felon in possession), following a jury trial before Superior Court Judge James A. Hanson. Judge Hanson sentenced Simmons to a composite term of ten years. Simmons now appeals his conviction on numerous grounds and contends that his sentence is excessive. We affirm Simmons' conviction and sentence but conclude that double jeopardy bars the entry of judgment against Simmons on more than one count. Simmons, who had previously been convicted of a felony, was charged with unlawfully possessing a .44 magnum pistol in Bethel on two occasions: once in March or April of 1990 and once in July of the same year. Evidence establishing his ownership and possession of the pistol derived in part from a search of Simmons' Bethel residence in July 1990. The search was conducted pursuant to a warrant; below and on appeal Simmons has contested the validity of the warrant, arguing that it was based on stale and false information. The search warrant for Simmons' residence was based largely on the July 23,1990, testimony of M.J., who had been engaged in a romantic relationship with Simmons and had lived with him in his trailer for about four months. M.J. testified that in the second or third week of April, Simmons received a pistol in the mad. Shortly thereafter, M.J. saw him fire the gun at a nearby shooting range. According to M.J., Simmons usually kept the gun "[i]n the back bedroom. That's where he usually keeps it." M.J. reported that, "Last time I see it was in my suitcase." Several days before testifying, M.J. had moved out of Simmons' trailer. She reported to the police that Simmons had assaulted her, and she sought police assistance in obtaining her car keys from him. Simmons argues that M.J.'s testimony was stale because it described his possession of a gun almost four months prior to the date of the search warrant hearing. A search warrant must be based on current information that supports a finding that probable cause to search exists presently. Snyder v. State, 661 P.2d 638, 646-47 (Alaska App.1983). The freshness of information is determined by a flexible test, however — one that takes into account not just the raw passage of time but the totality of the circumstances of each case. Id. at 647. Relevant considerations include the type of crime involved, "the nature of the items sought[,] the extent of the suspect's opportunity for concealment^] and normal inferences as to where a criminal would be likely to hide incriminating articles." Morrow v. State, 704 P.2d 226, 230 (Alaska App.1985) (citing Snyder, 661 P.2d at 648) (omitting numbering). Here, M.J.'s testimony described Simmons' receipt of a handgun in the mail, his subsequent practice with the gun, and his continued possession of it at home. Although M.J. did not specify when she had last seen the gun, she made it clear that she had seen it on at least one occasion after Simmons fired it in mid- to late April. M.J.'s testimony described no circumstances indicating that Simmons no longer possessed the weapon or that he kept it elsewhere; her statement that Simmons "usually keeps" the gun in his back bedroom suggests both continuity and currency. In issuing a search warrant, a magistrate has only to determine whether there are reasonable grounds to believe that the items to be searched for are at the premises to be searched, not that they are actually there. Stuart v. State, 698 P.2d 1218, 1222 (Alaska App.1985). This court traditionally accords great deference to a magistrate's determination of probable cause and "must resolve doubtful or marginal cases largely by the preference to be accorded warrants." Morrow, 704 P.2d at 229. See also Kvasnikoff v. State, 804 P.2d 1302, 1306 (Alaska App.1991). Considering the totality of the circumstances, we conclude that the issuing magistrate could properly find M.J.'s observations sufficiently fresh to support probable cause. Simmons also maintains that M.J.'s testimony was false and that the warrant must therefore be suppressed under State v. Malkin, 722 P.2d 943 (Alaska 1986). Simmons' argument asserts no impropriety on the part of the police but involves alleged fabrication only by M.J., a private citizen. Simmons sets forth no argument or authority to support the conclusion that suppression would be appropriate in such a case, even assuming that a material false statement were proved. The state cites authority to the contrary. See 1 Wayne R. LaFave, Search and Seizure § 1.8(a), at 174-78 (2d ed. 1987). In any event, the superior court rejected Simmons' evidence of fabrication on credibility grounds. This ruling was not clearly erroneous. See McLaughlin v. State, 818 P.2d 683, 686 (Alaska App.1991). Simmons next claims that the trial court erred in allowing E.A., a rebuttal witness for the prosecution, to testify that in September of 1990 Simmons threatened her with a pistol that had been delivered to Simmons, at Simmons' request, by a friend of Simmons, Jose Manuel Herrera. The trial court admitted E.A.'s testimony over Simmons' objection that it was inadmissible under Alaska Rule of Evidence 404(b) and 408. On appeal, Simmons renews his claim that the testimony had no legitimate nonpropensity value and was in any event more prejudicial than probative. Simmons' defense at trial, however, was that he had possessed the disputed handgun only fleetingly — long enough to dispose of it by selling it to Herrera after Simmons received it in the mail. In support of this defense, Herrera testified that Simmons had sold him the gun in May of 1990; Herrera denied ever giving the gun back to Simmons. The state offered E.A.'s testimony to refute Herrera's testimony and to show that even if Simmons had in fact transferred physical possession of the gun to Herrera at some time, Simmons had never relinquished constructive possession of the gun, since it had always been at his beck and call. The trial court admitted the evidence but cautioned the jury that "you are not trying Mr. Simmons here today for any incidents that may have occurred, as to his guilt or innocence of any incidents that may have occurred in September of last year." Our review of the record convinces us that the trial court did not abuse its discretion in finding this evidence relevant to rebut Simmons' defense or in finding its probative value to outweigh its potential for prejudice. See, e.g., Adkinson v. State, 611 P.2d 528, 532 (Alaska 1980); McKee v. State, 488 P.2d 1039, 1040-41 (Alaska 1971). Simmons separately claims that the trial court deprived him of the opportunity to raise the affirmative defense set out in AS 11.61.200(b)(3): (b) It is an affirmative defense to a prosecution under (a)(1) or (2) of this section that (3) a period of five years or more has elapsed between the date of the person's unconditional discharge on the prior offense and the date of the possession, sale, or transfer of the firearm. A review of the record, however, establishes that the court never deprived Simmons of the opportunity to raise this affirmative defense. Simmons simply did not attempt to raise it. Moreover, the theory Simmons advances in support of his defense appears to have no legal merit. We find no error. Simmons next contends that the constitutional provisions against double jeopardy were violated by his convictions of two counts of misconduct involving weapons in the first degree. He asserts that because his possession of the .44 magnum handgun was continuous and his intent the same throughout, he could only be convicted and sentenced for a single count of misconduct involving weapons. Simmons' argument appears to have merit. Simmons was charged with possess ing the same handgun on two occasions during a three- to four-month period. It appears to be a well-settled proposition in felon-in-possession cases that the element of possession implies continuity: "Possession is a course of conduct, not an act; by prohibiting possession Congress intended to punish as one offense all of the acts of dominion which demonstrate a continuing possessory interest in a firearm." United States v. Jones, 533 F.2d 1387, 1391 (6th Cir.1976). See also State v. Williams, 211 Neb. 650, 319 N.W.2d 748, 752 (1982). It is also well settled that a continuing course of conduct statutorily defined as a single crime cannot properly be charged as multiple crimes occurring at discreet moments in time. "The Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units." Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 2227, 53 L.Ed.2d 187 (1977). Cf. Dawson v. State, 894 P.2d 672, 679 (Alaska App.1995). For this reason, courts have held that, when a defendant is charged with multiple counts alleging possession of the same weapon on different occasions, the state must bear the burden of proving that the defendant's possession was not continuous. This burden must be met by proof beyond a reasonable doubt. The state nevertheless argues that Simmons' double jeopardy argument should .be rejected because, in the present case, evidence was presented at trial indicating that Simmons' possession of the .44 magnum pistol on the two occasions charged — in April and in July of 1990 — was interrupted by Simmons' sale of the weapon to Herrera. The state's argument suffers from two shortcomings. First, the claim of interrupted possession advanced by the state on appeal is at odds with the theory of prosecution it pursued below. Below, Simmons raised his double jeopardy argument in the form of a pretrial motion to dismiss one of the two counts with which he was charged. In response, the state argued that Simmons' motion was premature — that "the proper remedy is merger after a determination of guilt." At trial, even though evidence was presented indicating that the .44 magnum had at times been in Herrera's possession, the state took the position that transfer of actual possession had no effect on Simmons' constructive possession. At the conclusion of trial, the jury was given instructions covering actual and constructive possession. The instructions told the jury that Simmons could be convicted if it found either form of possession. In arguing the state's case to the jury, the prosecutor specifically maintained that, even though at times Herrera may have had actual possession of the gun, the gun had always remained in Simmons' constructive possession: The conduct of Mr. Simmons throughout this time period is consistent with someone who owned, possessed and had dominion and control over a handgun. He had it sent to him in March, it got to him in April, he used it in April. He used it in July. He apparently misplaced it and was looking for it in July, or late June. And then he tried to get rid of it, when he found out that it — he might get in trouble for it. He got rid of it, in the sense that someone else was holding onto it. He got rid of it in the sense that he gave it, or sold it to Mannie Herrera. But it was still available to him, he still had control over it, because all he had to do was pick up the phone, and ask him to bring it over. And use [it] for whatever purposes he wanted to use it. And that happened in September. And that's consistent with Mr. Simmons possessing a gun. Thus, the theory advocated by the state at trial all but invited the jury to convict Simmons of both charges based on a single, uninterrupted course of illegal possession. Second, and more fundamentally, although the evidence presented at trial might theoretically have supported a finding of interrupted possession, the jury was never required to consider or decide the issue. Because the instructions did not apprise the jury of the need to find that Simmons' possession of the .44 magnum pistol had been interrupted at some point between the first alleged offense and the second, the jury's verdicts left the issue unresolved. At this juncture, "[a]ny ambiguity must be resolved in favor of the accused." McDonald v. State, 872 P.2d 627, 660 (Alaska App.1994). Cf. Dawson, 894 P.2d at 679. Accordingly, we conclude that Simmons' two convictions must merge. Simmons further asserts that the trial court erred in denying him a new trial based on alleged juror misconduct. At trial, Dalton Moss was called by the state to testify about the circumstances surrounding his possession of a holster and some live .44 caliber ammunition belonging to Simmons. According to Moss, Simmons had given him a rucksack containing the holster and ammunition toward the end of the summer of 1990 and asked him "to hang onto it." Moss turned the rucksack over to the police after his wife decided that she did not want live ammunition in the house with children. Moss also testified that he had later talked to Simmons in the jail and "was led to believe that I was supposed to say he gave me this rucksack to sell[.]" After trial, Simmons filed a motion for a new trial, alleging misconduct on the part of juror C.L. In response to Simmons' motion, the superior court conducted a thorough hearing. C.L. acknowledged that, sometime before the parties' final arguments, she had overheard Dalton Moss talking on the telephone. Moss had laughingly said "something to the effect that, he didn't say what he was going to say, instead he said everything [a] different way." During the jury's deliberations, C.L. indicated to the other jurors that she wanted to abstain from voting, saying that "there was a phone call which makes me wonder about [Moss'] testimony." The other jurors told C.L. not to inform them of the substance of that telephone call. C.L. made no further mention of the issue. The jury then resumed its deliberations, with C.L. participating. Following the sentencing hearing, the superior court entered a written order concluding that, objectively viewed, the information overheard by C.L. had no effect on the jury's verdict. The court thus denied Simmons' motion. Our review of the record convinces us that the trial court did not abuse its discretion in reaching this decision. See Swain v. State, 817 P.2d 927, 930, 934 (Alaska App.1991). Simmons lastly challenges his sentence. Our decision that one of Simmons' convictions must be vacated makes it unnecessary to consider Simmons' claim that his composite sentence is excessive. We must nevertheless examine his remaining sentencing arguments. Simmons maintains that the sentencing court erred in refusing to strike unverified information from his presentence report. Simmons' cursory discussion of this issue, however, constitutes an abandonment. See, e.g., Lewis v. State, 469 P.2d 689, 691-92 n. 2 (Alaska 1970). Moreover, it appears to us that the information in the presentenee report is adequately verified. See generally Evan v. State, 899 P.2d 926 (Alaska App.1995). Simmons also maintains that the sentencing court erred in rejecting his two proposed mitigating factors: that his conduct in this case was among the least serious in its class and that his past and current offenses have resulted in consistently minor harm. AS 12.55.155(d)(9) & (d)(13). These arguments are meritless; the sentencing court's rejection of the proposed factors was not clearly erroneous. See Lepley v. State, 807 P.2d 1095, 1099 (Alaska App.1991); Shaw v. State, 677 P.2d 259, 260 (Alaska App.1984). Simmons lastly contends that the imposition of maximum sentences was unwarranted in his case. Upon conviction, Simmons was subject to the presumptive term of three years specified for third and subsequent felony offenders convicted of class C felonies. AS 12.55.125(e)(2). The state proved two aggravating factors: that Simmons' prior criminal history included repeated instances of assaultive behavior and that Simmons had three or more prior felony convictions. AS 12.55.155(c)(8) & (c)(15). Based on Simmons' extensive criminal history, Judge Hanson characterized Simmons as "clearly one of the most dangerous people Pve seen[,]" and found him to be "among the very worst offenders[.]" The sentencing record supports these findings; the findings, in turn, support Judge Hanson's decision to impose a maximum term. See, e.g., State v. Graybill, 695 P.2d 725, 731 (Alaska 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 conviction and sentence as to one of the two counts for which Simmons was convicted are AFFIRMED. As to the second count, the conviction must be VACATED. This case is REMANDED to the superior court with directions to amend Simmons' judgment of conviction accordingly. . Professor LaFave cautions against reading too much into imprecise time references: "the existence or nonexistence of probable cause should not turn on whether the affidavit's verbs end in 's' or 'ed.'" 2 Wayne R. LaFave, Search and Seizure § 3.7(b), at 92-93 (2d ed. 1987) (footnote omitted). We view M.J.'s use of the present tense "keeps" to be relevant, but not pivotal. Cf. State v. Davenport, 510 P.2d 78, 82 n. 8 (Alaska 1973) (noting that courts must interpret search warrant affidavits in a "commonsense and realistic fashion"). . Simmons additionally argues that the trial court erred in allowing Herrera to be cross-examined about a pending criminal charge and in allowing witness Dalton Moss to testify that, toward the end of the summer of 1990, Simmons had given Moss a holster and some loose rounds of .44 caliber ammunition and had requested Moss to hold it for him. Simmons failed to object to this evidence below. We find no plain error. See, e.g., Post v. State, 580 P.2d 304, 308 (Alaska 1978). . In contending that the arrest and search warrants in his case had been issued without probable cause, Simmons obliquely asserted that he had been unconditionally discharged on his prior offenses more than five years previously. The record provides no indication that Simmons attempted to pursue this issue as an affirmative defense at trial. . U.S. Const, amend. V; Alaska Const, art. 1, § 9. . See, e.g., United States v. Jones, 533 F.2d at 1391: It is trae that in the case at bar the Government is claiming that Jones possessed the pistol on three separate occasions, not that continuous possession existed which has been broken down into arbitrary time periods. With equal propriety the Government might have charged Jones with possession on more than 1100 separate days and obtained convictions to imprison Jones for the rest of his life. The fact that the Government merely has proof that he possessed the same weapon on three separate occasions, rather than continuously for a three-year period, should not dictate the result that Jones could receive three times the punishment he would face if continuous possession for a three-year period were proved: There is ' no proof that there was any interruption in the possession by Jones of the weapon. . See, e.g., Webb v. State, 311 Md. 610, 536 A.2d 1161, 1165 (1988): [I]t may be that had Webb removed the weapon from his actual or constructive possession, it would be a separate violation when he retrieved it and wore it again on his person. And it may be that if it was shown that the handgun involved in the first incident was a different weapon from that involved in the second incident, there would be two violations. But if any of these circumstances were in fact so, it was incumbent upon the State at trial to prove the circumstance beyond a reasonable doubt. . Later, on rebuttal, the prosecutor argued: "It's our theory, and my contention, that Mr. Simmons received the gun in April. He maintained possession of it all the way up until — at least until September, when he used it to assault [E.A.]." . Upon remand, after giving the state the opportunity to elect the count on which it prefers to have judgment entered, the superior court should vacate the remaining conviction.

10361826

Andrew LOTT, Appellant, v. STATE of Alaska, Appellee

Lott v. State

1992-06-12

No. A-3966

371

378

836 P.2d 371

836

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Andrew LOTT, Appellant, v. STATE of Alaska, Appellee.

Andrew LOTT, Appellant, v. STATE of Alaska, Appellee. No. A-3966. Court of Appeals of Alaska. June 12, 1992. Andrew Haas, Asst. Public Defender, Be-thel, and John B. Salemi, Public Defender, Anchorage, for appellant. Kenneth M. Rosenstein, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

4147

25750

OPINION BRYNER, Chief Judge. Andrew Lott entered pleas of no contest to three charges of assault in the second degree. Superior Court Judge Richard D. Saveli sentenced Lott to a total of ten years with one year suspended. Lott thereafter filed a motion to withdraw his no contest pleas, contending that his trial counsel had provided him with ineffective representation. Following an evidentiary hearing, Judge Saveli denied Lott's motion, finding that Lott had failed to demonstrate that his counsel acted ineffectively. Lott challenges this ruling on appeal. We affirm. Lott was indicted in April of 1989 for kidnapping, first-degree assault, and two counts of second-degree assault. The charges stemmed from a series of assaults Lott committed against R.O., a woman with whom he lived in Tuluksak. Lott's case came up for trial in Bethel in July of 1989. From the record, it appears that Lott's counsel initially planned to present a diminished capacity defense based on intoxication. Following jury selection, however, counsel indicated that Lott had decided to accept the state's offer of a plea agreement. Lott entered pleas of no contest to three counts of second-degree assault; in return, the state dismissed the charges of first-degree assault and kidnapping, and agreed not to request consecutive sentencing. Before Lott entered his no contest pleas, his trial counsel asked for a recess to discuss the plea agreement. During the recess, counsel met with Lott and reviewed a four-page form explaining the .nature of the agreement, elements of and applicable sentencing provisions for the offenses to which Lott would be pleading, the meaning of a plea of no contest, and the various procedural and substantive rights that Lott would relinquish by entering such a plea. The form included language indicating that Lott had discussed all of these matters fully with his attorney, understood them, and had no remaining questions. Upon completion of Lott's pre-plea meeting with his attorney, Judge Saveli reconvened court. Lott's attorney then reviewed the form with Lott on the record, paragraph by paragraph, eliciting Lott's assurance that he had discussed the issues covered therein fully, understood them, and had no further questions. When Lott's counsel had completed his inquiry, Judge Saveli personally addressed Lott, separately conducting the pre-plea inquiry mandated under Alaska R.Crim.P. ll(c)-(e). Lott participated actively throughout this entire process, and at no time did he exhibit any doubt, hesitancy, misunderstanding, or confusion concerning his decision to plead no contest. To provide a factual basis for the no contest pleas, Lott's counsel stipulated to an offer of proof by the state. The state's offer of proof described three separate episodes occurring on the night of March 30 and the morning of March 31, 1989. The first occurred at the home of Lott's parents in Tuluksak. Lott, who had apparently been drinking, became angry with R.O. He struck her with a glass object, which shattered and embedded glass in R.O.'s scalp. Lott continued to attack R.O., kicking her, striking her legs with a fireplace poker, and hitting her in the back with the blunt side of a large axe; this last blow knocked R.O. down and partially incapacitated her. The second episode of assault occurred later that night. Despite her injuries, R.O. had managed to accompany Lott to his own house. There, Lott began drinking more alcohol and wanted R.O. to drink with him. When R.O., who had a history of alcohol-induced seizures, refused to drink, Lott choked her with a rope and with his hands; he later whipped R.O. with the rope. Lott ultimately succeeded in pouring alcohol down R.O.'s throat. R.O. later escaped the house after Lott fell asleep. She went to a nearby house, and her neighbors took her in to provide her shelter from Lott. Shortly thereafter, R.O. did in fact suffer seizures; she stopped breathing and had to be resuscitated. A health aide took R.O. to the village clinic, where arrangements were made to evacuate her to the hospital in Bethel. Lott's third assault began at around 9:00 a.m. on March 31. Lott entered the Tuluk-sak clinic, wakened R.O., and told her to come with him. R.O. was fearful and did not resist; she leaned on his shoulder for support and walked out to Lott's snow machine. The health aide, intimidated by Lott's demeanor and afraid of starting another violent incident, did not interfere. Lott drove R.O. to his house. There, he assaulted her with a variety of objects, including a screwdriver, scissors, and a board. Lott stabbed R.O. with the screwdriver in each leg — one wound penetrating to the bone — and evidently used scissors to probe the wounds. Beating R.O. with a board, Lott broke one of her knuckles, and caused fractures in one of her wrists, a forearm, and an ankle. Lott also tore large quantities of hair from R.O.'s scalp. This final assault ended at about noon, with the arrival of a trooper who had been summoned to Tuluksak after Lott removed R.O. from the clinic. After approaching Lott's house, knocking, and receiving no response, the trooper heard whimpering. With the help of a village public safety officer, the trooper broke down Lott's door to rescue R.O. He found her inside on the bed in a fetal position, crying and incoherent. Lott sat next to her. There was blood all around the room. R.O. was evacuated to Bethel, where she was hospitalized. The physician who examined her upon arrival concluded that her wounds were potentially fatal and that she might not have survived had she not been so young. After finding that the state's offer of proof established a sufficient factual basis, Judge Saveli accepted Lott's no contest pleas. On November 7, 1989, Judge Saveli sentenced Lott to three concurrent terms of ten years with one year suspended. Several months later, in March of 1990, Lott filed a pro se motion to withdraw his plea. In support of the motion, he submitted an affidavit asserting a number of grounds, including ineffective representation by his trial counsel. The affidavit set forth various conclusory assertions con cerning the manner in which his counsel had provided him with deficient representation, including claims that Lott's counsel failed to file a suppression motion challenging the validity of Lott's arrest and the warrantless search of Lott's home, failed to challenge the indictment, failed to have an investigator appointed, failed to otherwise investigate the case, failed to advise Lott adequately concerning his rights and the nature of the proceedings, and failed to pursue a sentence appeal. Lott later filed two additional affidavits: one, dated March 27, 1990, requested discovery for purposes of the motion to withdraw plea and asserted that Lott, himself, had received no discovery to assist in his preparation for trial; the other, dated April 13, 1990, set out a factual account of the alleged incident in which Lott proclaimed his innocence. According to Lott, R.O. sustained her injuries when Lott became involved in a snowmobile accident on the night of March 30, with R.O. as his passenger. Judge Saveli appointed substitute counsel to represent Lott and ordered an evi-dentiary hearing on the motion to withdraw. At the evidentiary hearing, Lott's counsel sought to establish the ineffective assistance of counsel claim by calling Lott and his brother, David Lott. Lott's testimony was brief and general. He indicated that he had been arrested in his home, apparently without a warrant, by a trooper and a village public safety officer; according to Lott, the officers contacted and interviewed the victim, who was with Lott in the bedroom when he was arrested, and they searched the residence. The record fails to indicate what the scope of the search was, what evidence was seized, or what significance it might have had. Lott also testified that he had received a copy of his police report about a month before trial and did not have a chance to listen to the tape of the grand jury proceeding. Lott claimed that his trial counsel did not have an investigator appointed to the case. According to Lott, he asked his trial counsel to come to Tuluksak to interview his mother and his brother, David, who he claimed had been with him during the portions of the night on which his crimes were allegedly committed; Lott wanted David and his mother called as witnesses at trial. Lott's counsel told him he would interview the witnesses by telephone. Lott further claimed that he asked his trial counsel to file a suppression motion and various other motions, the nature of which Lott did not specify; Lott did not believe his counsel had filed any such motions. Lott testified additionally that he entered his no contest plea because his trial counsel told him to, saying that Lott would receive a fifty-year sentence if he did not. Lott reiterated his belief that trial counsel had never contacted any witnesses; from his testimony, however, it is not certain that he formed this belief until some time after having been sentenced. Lott said that, when he changed his plea, he believed that he would not be allowed to call any witnesses in his own behalf. Finally, Lott complained that his trial counsel provided him with a copy .of the presentence report only two days before sentencing, spoke with him about it for only ten minutes, and did not explain that Lott could challenge facts recited therein. David Lott also testified briefly in support of Lott's ineffective assistance of counsel claim. When initially asked if he remembered when Lott was arrested for assaulting R.O., David replied, "Yeah, but I wasn't watching. Maybe when I went out-that day_" David initially denied having a chance to see Lott and R.O. that night, saying the he had to be with his kids. He then said that he had seen them both that night at his house; both were drinking. David said he did not recall walking with Lott and R.O. to his house; he did remember that he walked with them at some point that night, however, and that R.O. "was behind, and, from there, she ran — I don't know where she went." David Lott apparently had little other knowledge of the alleged incident, since he was not questioned further. Neither at the evidentiary hearing nor on appeal has Lott's current counsel made any effort to explain how David Lott's vague and cryptic testimony might have been of material benefit to Lott or how trial counsel's failure to interview David might have resulted in actual prejudice to Lott's case. The relevance of the testimony is not apparent from the record currently before this court. Although Lott initially contemplated calling his trial counsel as a witness in support of the ineffective assistance of counsel claim, he ultimately elected not to. The state also declined to call trial counsel, or any other witnesses, in response. Lott's motion for withdrawal of his plea was thus submitted to Judge Saveli based on Lott's testimony, the testimony of his brother, and Lott's three previously submitted pro se affidavits. Judge Saveli concluded that Lott had failed to meet his burden of establishing ineffective assistance of counsel and had thus failed to establish manifest injustice warranting withdrawal of his plea. Judge Saveli stated, in relevant part: Is there a showing of ineffective assistance of counsel? The case law, whether in a Rule 35.1 setting, Rule 11 setting, or a straight appeal, is clear that there is a presumption of competence, a presumption that decisions were made for sound, tactical reasons, as a matter of trial strategy. Absent those situations where clear error, malpractice, or ineffective lawyering is present — clear in the sense that it doesn't take a witness to identify it. Absent those situations, a defendant must present an affidavit of counsel in order to [make a] threshold showing of ineffective assistance. An affidavit saying what was wrong.... There is no such showing in this case. There are references in the record for a greater need for investigation; . there are references to allegedly illegal searches that should have been explored or addressed. But, there is no showing factually supporting the basis for these sometimes vague complaints. Or, that they meet the requirements necessary to show manifest injustice and to permit a withdrawal of the plea. On appeal, Lott takes issue with Judge Saveli's finding. Lott argues that the judge was mistaken in concluding that he should have presented an affidavit or testimony from his trial counsel. Lott claims that he presented uncontroverted evidence establishing that his trial attorney's conduct was deficient. In Lott's view, it should be obvious that the actions of his trial counsel were not based on any tactical decisions. Lott argues that he thus met his burden of proving ineffective assistance. Lott acknowledges cases decided by this court holding that a person claiming ineffective assistance of counsel must normally present an affidavit or testimony from the allegedly ineffective attorney, in order to establish the reasons for the attorney's actions and to rule out the possibility that the conduct was based on sound tactical choice. See, e.g., State v. Jones, 759 P.2d 558, 569 (Alaska App.1988); Barry v. State, 675 P.2d 1292 (Alaska App.1984). Lott insists, however, that these cases deal exclusively with procedural requirements for post-conviction relief actions filed under Alaska R.Crim.P. 35.1 and are inapplicable to ineffective assistance of counsel claims raised under Criminal Rule 11, which governs motions to withdraw pleas. Lott points out that Rule 11 does not specify any particular procedure for proving a claim of inef fective assistance of counsel Lott goes on to argue that Judge Saveli should at least have given Lott advance notice of his intent to follow the procedures specified in Criminal Rule 35.1, so that Lott could have supplied the court with an affidavit or testimony from his trial counsel. Lott's argument is unpersuasive. Alaska R.Crim.P. 11(h)(1) allows a defendant to withdraw a plea of guilty or no contest "whenever the defendant, upon a timely motion ., proves that withdrawal is necessary to correct manifest injustice." Under subparagraph (ii)(aa) of the rule, manifest injustice is established upon proof that "[t]he defendant was denied the effective assistance of counsel." As we said in Smith v. State, 717 P.2d 402, 404 (Alaska App.1986), this provision makes it "clear that a showing of ineffective assistance of counsel will entitle the defendant to withdraw his plea, without further inquiry into the issue of manifest injustice." In all cases involving motions to withdraw pleas of guilty or no contest, however, the defendant bears the burden of proving that withdrawal is warranted. See, e.g., Morgan v. State, 582 P.2d 1017 (Alaska 1978); McClain v. State, 742 P.2d 269 (Alaska App.1987). Hence, a defendant claiming manifest injustice for withdrawal of a plea under Rule ll(h)(l)(ii)(aa) bears the burden of proving ineffective assistance of counsel. In Risher v. State, 523 P.2d 421, 424-25 (Alaska 1974), the Alaska Supreme Court, construing the Alaska Constitution, adopted a twofold standard for ineffective assistance of counsel. Under the Risher test the defendant is required to prove, first, that trial counsel's performance fell below the minimal level of competency— that counsel failed to perform at least as well as a lawyer with ordinary training and skill in criminal law; second, the defendant is required to show prejudice by creating a reasonable doubt that counsel's incompetence contributed to the outcome. The Risher standard mirrors the standard for ineffective assistance of counsel adopted by the United States Supreme Court under the federal constitution, except, as to the prejudice requirement, the federal standard requires the defendant to do more than raise a reasonable doubt; instead, the defendant must prove a reasonable probability of prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). This court elaborated on the Risher and Strickland tests in State v. Jones, 759 P.2d at 567-70. We said, in relevant part: An informed decision on the issue of competence can be made only with full knowledge of the reasoning and information upon which counsel chose to act. In evaluating trial counsel's conduct, the court must apply a strong presumption of competence. Strickland, 466 U.S. at 689 [104 S.Ct. at 2065]. See also Cronic [United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)], 466 U.S. at 658 [104 S.Ct. at 2046]. An integral component of the presumption of competence is the further presumption that trial counsel's actions were motivated by sound tactical considerations. The duty of rebutting this presumption is part and parcel of the accused's burden of proof: "[T]he defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Strickland, 466 U.S. at 689 [104 S.Ct. at 2065] (citation omitted). In the absence of evidence ruling out the possibility of a tactical reason to explain counsel's conduct, the presumption of competence remains unrebutted and operates to preclude a finding of ineffective assistance. In this connection, if it appears that counsel's actions were undertaken for tactical or strategic reasons, they will be virtually immune from subsequent challenge, even if, in hindsight, the tactic or strategy appears to have been mistaken or unproductive_' [W]hen a tactical choice has in fact been made, even if it was made by an attorney who was not fully informed as to available options, the choice will be subject to challenge only if the tactic itself is shown to be unreasonable — that is, a tactic that no reasonably competent attorney would have adopted under the circumstances. Id. at 569-70. Lott mistakenly reasons that our holding in Jones is inapplicable to his case, because Jones was a post-conviction relief action filed under Criminal Rule 35.1, rather than a motion to withdraw a plea filed under Rule 11. Although Jones did extensively discuss the procedural requirements for establishing post-conviction claims under Criminal Rule 35.1, see Jones, 759 P.2d at 565-67, the decision gave separate consideration to the substantive requirements for proving an ineffective assistance of counsel claim under the Risher test, regardless of the procedural context in which the claim is raised. Id. at 570-72. The passages from Jones that we have quoted above are from the portion of our opinion addressing substantive issues common to all claims of ineffective assistance of counsel arising in criminal eases, not from the portion discussing procedural issues unique to claims raised under Criminal Rule 35.1. In ruling on Lott's motion to withdraw, Judge Saveli correctly recognized that the principles discussed in these passages apply in any case in which the defendant bears the burden of proving ineffective assistance under the Risher test, regardless of whether the case involves a Rule 11 motion to withdraw a plea, a Rule 35.1 application for post-conviction relief, or a direct appeal. Since Lott's claim of manifest injustice under Rule 11 was predicated on his allegation of ineffective assistance of counsel — an allegation that he was required to prove — these principles applied to his case. Applying these principles, we think it apparent that the vague and conclusory allegations of incompetence contained in the affidavits Lott filed in support of his motion, coupled with the sketchy and abbreviated testimony he presented at the evidentiary hearing, fall far short of providing the type of evidentiary context necessary to overcome the strong presumptions that his trial counsel performed com petently and that his actions were motivated by sound tactical considerations. Lott's complaints against his trial counsel do not involve conduct so plainly and unmistakably incompetent as to be per se ineffective; yet Lott has failed to present any evidence whatsoever to provide insight into the specific circumstances under which his counsel acted or the underlying motivations for his conduct. To find ineffective assistance of counsel on this evidentiary record would require a presumption of incompetence rather than a presumption of competence. We find no error in Judge Sa-veli's decision that Lott failed to meet his burden of proving ineffective assistance of counsel, and that he consequently failed to establish manifest injustice warranting withdrawal of his pleas. The order denying Lott's motion to withdraw his pleas is AFFIRMED. . Lott's change of plea hearing occurred while the jury that had been selected for his trial was waiting for the trial to begin. At the change of plea hearing, the state asked to supplement its offer of proof by presenting various witnesses who had been subpoenaed for trial and were standing by. Judge Saveli agreed to allow the state to perpetuate the testimony of these witnesses, but indicated that they should be presented after Lott's no contest pleas had been entered and after the jury had been excused. The record on appeal does not reflect what witnesses, if any, subsequently testified. . It is unclear from the record whether trial counsel ever actually interviewed these prospective witnesses. At the evidentiary hearing, Lott's counsel asked Lott if his trial counsel ever spoke with his mother or David Lott; Lott responded that his trial counsel said that he never did. Judge Saveli struck this testimony, however, when the state objected to it on grounds of hearsay. In subsequent testimony, Lott reiterated his personal belief that his trial counsel never interviewed any witnesses, but he provided no further basis to support this allegation. David Lott, though later called as a witness at the hearing, was never asked if he had spoken with Lott's trial counsel. Neither Lott's mother nor his trial counsel testified or submitted affidavits. . We note that the presentence report is not in the appellate record; the record provides no indication as to what disputed facts the report contained, what facts Lott could have challenged, how he might have challenged them, or whether they were significant for sentencing purposes. . Indeed, the quoted passages from Jones occurred in a portion of the opinion that was specifically headed "SUBSTANTIVE ISSUES," State v. Jones, 759 P.2d 558, 567 (Alaska App.1988); the preceding portion of the opinion was specifically headed "PROCEDURAL ISSUES." Id. at 565. . Lott's claim that Judge Saveli erred procedurally is mistaken in two other respects. Initially, Lott suggests that, because his evidence on the issue of ineffective assistance of counsel was uncontradicted, the trial court was in effect bound to accept it. It is true that, for purposes of determining whether a claim of ineffective assistance of counsel may be rejected summarily, without affording the defendant an opportunity for an evidentiary hearing, the court must provisionally accept as true any facts asserted by the defendant. See, e.g., Jones, 759 P.2d at 565-66 (discussing motions for judgment on the pleadings and for summary judgment in cases filed under Criminal Rule 35.1). By contrast, in the present case, Judge Saveli granted Lott a full evidentiary hearing on his claim. Having conducted a full hearing, Judge Saveli was no longer bound to accept Lott's assertions as provisionally true; rather, at this stage, the judge was required to undertake a full and final resolution of the factual and legal issues presented. In performing this task, Judge Saveli was responsible for deciding issues of credibility. For this reason, if the judge found Lott's testimony incredible or unpersuasive, he was authorized to reject it, even if it was uncontroverted by other evidence. Lott also suggests that Judge Saveli could not properly dismiss Lott's case without prior notice of his intent to do so and without affording Lott the opportunity to present additional evidence. This claim, however, hinges on Lott's mistaken assumption that Judge Saveli held Lott to procedural standards specified in Criminal Rule 35.1. Lott apparently relies in this regard on Criminal Rule 35.1(f)(2), empowering the court to dismiss a facially insufficient post-conviction relief action sua sponte, provided that the applicant is given advance notice of the court's intent to dismiss and an opportunity to correct the defects in the application. See, e.g., Hampton v. Huston, 653 P.2d 1058 (Alaska App.1982). Our holding that the principles of Jones applied in Lott's case were substantive principles relating to all ineffective assistance of counsel claims, rather than procedural principles unique to post-conviction relief actions, largely disposes of this argument. However, we note that even if the trial court had held Lott to the procedural requirements of Rule 35.1 in this case, advance notice of dismissal would not have been required under Rule 35.1(f)(2). Here, the court did not dismiss Lott's motion sua sponte, based on a deficiency in Lott's pleadings. Instead, the court denied Lott's motion on its merits after affording him a full opportunity to present evidence to establish his claim.

9382528

John N. CRIVELLO, Appellant, v. STATE of Alaska, Commercial Fisheries Entry Commission, Appellee

Crivello v. State

2002-12-06

No. S-9871

741

747

59 P.3d 741

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. j

John N. CRIVELLO, Appellant, v. STATE of Alaska, Commercial Fisheries Entry Commission, Appellee.

John N. CRIVELLO, Appellant, v. STATE of Alaska, Commercial Fisheries Entry Commission, Appellee. No. S-9871. Supreme Court of Alaska. Dec. 6, 2002. Louis James Menendez, Juneau, for Appellant. John T. Baker, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices. j

3641

22886

OPINION EASTAUGH, Justice. I. INTRODUCTION wThe Commercial Fisheries Entry Commission (CFEC) rejected John Orivello's limited entry salmon permit application because it found that he had insufficient points. Crivel-lo appeals the CFEC's denial of a third hearing and argues that he was entitled to more points for gear ownership and income dependence. Because the CFEC reasonably interpreted its regulation and disallowed the points Crivello's partner tried to cede to Crivello and because substantial evidence supported the CFEC's findings regarding Crivello's independent ownership of gear, we affirm the superior court's affirmance of the CFEC decision denying Crivello's application. HI. FACTS AND PROCEEDINGS John Crivello fishes commercially in Bristol Bay. In April 1977 Crivello applied for a Bristol Bay drift gillinet limited entry salmon permit. He claimed a total of twelve points: eight for his past participation in the fishery as a crewman from 1965 until 1972 and four for ownership of a vessel and gear. From 1961 until 1972 Crivello's partner, Vince Aiel-lo, held the gear license and Crivello held the commercial license. Crivello obtained a gear license in 1978. As of January 1, 1978 Cri-vello and Aiello jointly owned the vessel used in their commercial fishing operation. The CFEC, per AS 16.48.240 and 16.43.250(@), determined that applicants with seventeen points and higher would be issued permits for the Bristol Bay drift gillnet fishery. In March 1979 the CFEC classified Crivello as eligible for twelve points but denied him a permit because he had insufficient points. Crivello .promptly requested an administrative hearing. The CFEC initially denied review but, after Crivello filed a notice of appeal and a motion for remand, the superior court remanded the case to the CFEC for a determination whether Crivello was entitled to more points under our decision in State, Commercial Fisheries Entry Commission v. Templeton. The CFEC held the first hearing on Cri-vello's application on December 19, 1980. Crivello was represented by counsel. Crivel-lo and Aiello testified. Aiello testified that he would relinquish to Crivello the net own ership points to which Aiello was entitled but which Aiello did not need to obtain his own fishing permit. The hearing officer rendered her decision in June 1982. She awarded Crivello four out of a possible six points for vessel and gear ownership for his one-half interest in the partnership's boat and gear. She rejected Crivello's argument that he be awarded the two points that Aiello did not need in this category. She determined that simply being the partner of a gear license holder from 1969 to 1972 did not entitle Crivello to points for holding a gear license under Templeton. Finally, the hearing officer reviewed the settlement sheet, partnership tax return, and Social Security Earnings Record Crivello submitted and awarded Crivello two points for income dependence for 1971. After adding the eight points he received for past participation as a crew member, she recommended that the CFEC classify Crivello at fourteen points and deny him a permit for insufficient points. The CFEC granted Crivello, at his request, an opportunity to make an oral presentation to challenge the hearing officer's decision. Crivello appeared with counsel before the CFEC in May 1983 to challenge the decision. The CFEC reduced Crivello's vessel and gear award from four to three points because his one-half ownership in the boat and gear only entitled him to one half of the six possible ownership points. It added three points for income dependence for 1972. These changes gave Crivello up to sixteen points, still one short of the seventeen points needed for a permit for this fishery. The CFEC advised Crivello's attorney to develop the record as thoroughly as possible and gave him more time to produce evidence of, among other things, investment credit. Crivello then submitted two affidavits-one from himself and one from Aiello-dis-cussing the partnership and the joint ownership of the vessel and gear. He submitted the partnership's 1966, 1967, and 1969 state and federal Return of Income and his 1966 and 1967 individual state tax returns. The CFEC issued its final decision in May 1999. This decision awarded him three points for vessel and gear ownership for his one-half ownership interest. It cited Chocknok v. State, Commercial Fisheries Entry Commission to support its policy not to distribute points between partners. It calculated Crivello's income dependence using the total gross earnings attributable to the partnership in 1971 and 1972 and awarded him two points for 1971 and three for 1972. It denied him a permit because his final point total was sixteen, one less than the seventeen required for a permit for this fishery. Crivello petitioned for reconsideration and supported his petition with his 1999 affidavit. In the affidavit he claimed points for ownership of gear independent of the partnership and alleged not to have understood the need to make the claim for independent gear ownership points earlier. He also alleged that the CFEC miscalculated his non-fishing occupational income and awarded him too few points for income dependence. He requested a third hearing. On reconsideration, the CFEC reevaluated Crivello's income dependence for 1971 and 1972 and revoked the five points he had previously received in that category. It determined that "the record failled] to provide the commission with sufficient information to establish the amount of the applicant's non-fishing occupational income." The CFEC also determined that the reason Crivello gave for his prior failure to include evidence of his individual gear ownership-that he did not think he needed the extra points the evidence could have afforded him-was unpersuasive. The CFEC reasoned that Crivello had the incentive and the opportunity to present any useful evidence before his petition for reconsideration because he had lacked sufficient points for a permit since he first applied. The CFEC ultimately decided that this issue was moot, however, because in light of the five income dependence points the CFEC had just revoked, the three disputed points for individual gear ownership would not bring Crivello's point total to seventeen and therefore would not make him eligible for a permit. The CFEC denied his application, concluding that Crivello had only eleven points, six less than required. The CFEC also rejected Crivello's request for another hearing because, unlike the appellants in Forquer v. State Commercial Fisheries Entry Commission, Crivello was "now well beyond the initial application stage and ha[d] already had two hearings." It concluded that Crivello's petition had not es-. tablished a genuine issue about which to hold a hearing. It stated that if Forguer required a third, hearing at the reconsideration. stage, "the commission could never reach finality on an application unless it turned back all such evidence without comment." Crivello appealed to the superior court, which affirmed the CFEC's decision on the three issues Crivello contested: income dependence, due process, and vessel and gear ownership. On income dependence the court held that "there is simply no evidence presented that Crivello's non-fishing income was low enough to produce the income percentages required for an award of points" and that such an award "would not have 'been supported by substantial evidence and would therefore have been erroneous." The court rejected Crivello's due process argument and agreed with the CFEC that the two hearings Crivello had received were sufficient to allow him to be heard. Finally, the court agreed with the CFEC that the issue whether Cri-vello owned gear independent of the partnership was moot because the extra points would not be sufficient for a permit,. The superior court affirmed the CFEC in all respects. Crivello appeals. III. DISCUSSION A. - Standard of Review When the superior court acts as an intermediate court of appeal, we review the underlying administrative decision independently. We review an ageney's interpretation of its regulations under the reasonable basis standard. We review the agency's factual findings under the substantial evidence standard. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." B. The Superior Court Did Not Err by Affirming the CFEC's Decision. The 1978 Limited Fisheries Entry Act established the Commercial Fisheries Entry Commission (CFEC) and "charged it with protecting distressed fisheries by granting a limited number of access permits to commercial fishers. Alaska Statute 16.48.260(a) limits permit eligibility to fishers who hold a gear license as of the qualification date, January 1, 1973, and the CFEC determines further eligibility based on economic dependence on the fishery for which the fisher seeks the permit and the hardship the fisher would endure if denied the permit. Crivel-lo applied in 1977 for a permit for the Bristol Bay drift gillnet fishery. The CFEC denied him a permit because he had insufficient points. To receive the seventeen points needed for this permit, Crivello must prevail on his appellate claims for both additional gear ownership and income dependence points. As it stands, he has eight undisputed past participation points and three undisputed gear ownership points. He therefore needs at least six more points to receive a permit. It is clear that Crivello is arguing on appeal that he is entitled to five income dependence points. Even if he receives those five income dependence points, he also needs at least one gear ownership point in addition to the three he has already received. We do not need to decide whether Crivello is entitled to any income dependence points, because we uphold the superior court's affirmance of the CFEC's denial of Crivello's claim for additional gear ownership points. Our ruling on this issue moots Crivello's claims regarding income dependence points. Crivello argues that he should have been awarded more points for vessel and gear ownership under 20 AAC 05.630(b)(8). The interpretation of this regulation "implicates agency expertise of the determination of fundamental policies within the scope of the agency's statutory functions"; therefore we apply the reasonable basis standard to review the agency's decision. The CFEC awarded Crivello three out of an available six points for vessel and gear ownership. Crivello argues that he is entitled to six. First, Crivello argues that he should have been awarded the full six points available in this category because his partner was willing to cede his partnership interest in the vessel and gear to Crivello to make COri-vello eligible for a permit. Crivello asserts that the CFEC unreasonably interpreted its regulations to preclude giving Crivello credit for full ownership of the partnership's vessel and gear. He claims the partnership would not fare better if he were allotted these extra points because the partners would still be limited to distributing only the available six points between themselves. He asserts that it is unreasonable for the CFEC not to allow partners to distribute among themselves their ownership interests in jointly owned gear. He argues that because Aiello does not need these points to obtain his own permit, Aiello should be able to donate his unneeded partnership interest in the vessel and gear to Crivello. The CFEC argues that it properly denied Crivello the three additional points and that its interpretation of its regulation was reasonable. It concedes that it had previously allowed spouses to distribute ownership points between themselves, but asserts that this court, in Chocknok, upheld the change to a policy of treating every partnership equally and disallowing point distribution among partners. The CFEC characterizes Crivel- lo as arguing that "a literal interpretation of the regulation is unreasonable," because as the CFEC observes, it is undisputed that Crivello only owned fifty percent of the vessel and gear at the qualification date and therefore should only be entitled to half of the available points. It argues that Crivello and Aiello did not have an understanding as to ownership interest distribution before the qualification date, as 20 AAC 05.620(2) requires. It contends that Crivello's interpretation of Chocknok would result in partners faring better than individuals because it would "create} two units of gear where only one existed in the fishery prior to the qualification date, the precise result the regulations were designed to avoid." We affirm the superior court and the CFEC's decision on this issue. We held in Choeknok that in discontinuing its practice of allowing spouses to distribute ownership interest between themselves and in prohibiting partners who were not spouses ever to distribute interest between themselves, "[the Commission had] not changed a regulation, but ha[d] corrected a policy." That ruling is dispositive on this issue. The CFEC did not err in interpreting its regulation to preclude Aiello from donating his interest to Crivello. Crivello next argues that he should have been awarded the full six ownership points because he owned gear independent of the partnership. Orivello first claimed points for separate gear ownership in his 1999 reconsideration petition. The CFEC dismissed Cri-vello's individual ownership claim in its Final Commission Decision on Reconsideration for two reasons: it surmised that Crivello had used this gear illegally, given his testimony that he used it in Aiello's absence before Crivello was a gear license holder; and it was not persuaded by Crivello's argument that he first mentioned this individually owned gear in his petition for reconsideration because he did not realize he needed these points until the reconsideration stage. Crivello argues that he testified that he had used the gear only when "it was acceptable" to the Alaska Department of Fish and Game (ADF & G). He asserts that there was substantial evidence that he owned the gear by the qualification date, when he was a gear license holder, and that the regulation only requires that the gear is "to be used in the fishery," regardless of the use he had made of the gear before he applied for the permit. The CFEC asserts that Crivello waived this claim to ownership of separate gear because he failed to preserve it before the superior court. The CFEC contends that he raised this claim for the first time on reconsideration of the CFEC's final decision and abandoned it in his superior court brief. CFEC argues that it is relevant that he used the gear illegally and that there is no evidence that the ADF & G condoned Crivello's use of the gear or gave Crivello reason to believe that he could fish alone without a gear license. It also contends that, regardless of Crivello's use of the gear, the CFEC was entitled to find that there was substantial evidence that Crivello did not in fact own any separate gear independent of the partnership. It relies on testimony in which Crivello only referred to gear the partnership owned and his emphasis on that joint ownership. Crivello replies that if there is contradieto-ry evidence in the record whether Crivello owned separate gear, a hearing is needed. He asserts that he did not waive this argument. He contends instead that the CFEC and the superior court both addressed it and both found it a moot point because even if he were awarded these points he would not have reached the requisite seventeen points. We agree with Crivello that he did not waive his claim for independent gear ownership points. The superior court actually addressed that claim, (although that court determined that the issue was moot because the extra points would not have given Crivel-lo the requisite seventeen). We nonetheless affirm the decision not to grant Crivello more points for independent gear ownership and the decision not to grant him a new hearing under AS 16.43.260(c). We hold that there was substantial evidence that Crivello was not using his own gear. This evidence consisted of testimony by Crivello and his partner that referred to all gear as jointly owned. We also agree with the CFEC's interpretation of AS 16.48.260(c) and hold that the CFEC was not required to grant Crivello a third hearing. In Forguer we held that "(bly extending a new opportunity to submit additional evidence to [the] applicants . the Commission was then required to conform to the mandate of the statute and its hearing requirement." To hold that Cri-vello is entitled to a new hearing on reconsideration after he had two previous hearings would mean that the CFEC is required to hold a hearing whenever it accepts any new evidence, regardless of the applicant's opportunity to present the evidence in previous hearings. It was Crivello's burden from the outset to establish his eligibility for as many points as he could. He was on notice from the beginning that his application lacked the requisite points to make him eligible for a permit. The hearing officer initially found him eligible for fourteen points and the CFEC never awarded him enough points to obviate an independent gear ownership claim. He had ample opportunity to présent any evidence of individual gear ownership, and the CFEC even advised him to develop the record for investment credit. "Whether to consider a new issue raised for the first time in a petition for reconsideration can properly be committed to the agency's discretion." We uphold the superior court's affirmance of the CFEC's denial of more points for vessel and gear ownership. IV. CONCLUSION For these reasons we AFFIRM the superi- or court's affirmance of the CFEC's decision to deny Crivello's limited entry permit application. . In 1973 the Alaska Legislature found that commercial fishing had reached levels of participation that had impaired or threatened to impair fishery resources. AS 16.43.010. 'It created the CFEC to determine fishers' eligibility for limited entry permits to fish protected fisheries based on economic dependence on and past participation in the fishery. AS 16.43.020, .250. A fisher proves economic dependence by, among other things, establishing how much income the fisher derives from the fishery as opposed to non- . fishing occupations, and how great an investment the fisher has made in gear ownership. AS 16.43.250; 20 Alaska Administrative Code (AAC) 05.630(b)(3) (2000). . 598 P.2d 77, 81 (Alaska 1979) ("[Alllocating one permit between two partners solely on the fortuitous circumstances of which one held the gear license in two given years does not realistically weigh the relative hardship which each partner would suffer by denial of a permit.") (footnote omitted). . - Crivello does not-appeal the CFEC's decision to deny him points for past participation as a gear license holder. . At that time, Crivello derived non-fishing income from his part ownership of a restaurant in Monterey, California. . See 20 AAC 05.630(b)(3). . There was brief confusion over one 1969 participation point that was eventually settled in Crivello's favor. . The CFEC explained in its decision and in its brief for this court why its final decision was delayed. Crivello does not argue that the delay caused him prejudice. Crivello has fished under an interim permit in the intervening years. . 696 P.2d 669, 676 n. 10 (Alaska 1985). . The CFEC determined that it would not rely on the evidence that it previously used to calculate Crivello's income dependence, such as Social Security earnings. . 677 P.2d 1236, 1242 (Alaska 1984) (holding that CFEC must conduct hearing when it accepts new evidence before it may reject entry permit application due to applicant's failure to establish qualifications). . Leuthe v. State, Commercial Fisheries Entry Comm'n, 20 P.3d 547, 550 (Alaska 2001). . Bartlett v. State, Commercial Fisheries Entry Comm'n, 948 P.2d 987, 990 (Alaska 1997). . Jones v. Commercial Fisheries Entry Comm'n, 649 P.2d 247, 249 n. 4 (Alaska 1982). . Commercial Fisheries Entry Comm'n v. Baxter, 806 P.2d 1373, 1374 (Alaska 1991) (citation and internal quotations omitted). . Leuthe, 20 P.3d at 548; see also AS 16.43.010-.990. . AS 16.43.250. . 20 AAC 05.630(b) (2000) sets out the following relevant points schedule: Up to a maximum of 20 points will be awarded an applicant for economic dependence on a fishery based on . (3) investment as of the qualification date in vessel, gear or setnet site used or to be used in the fishery for which application is being made.... (A) owns vessel . 6 points; . (C) owns gear . 3 points. . Matanuska-Susitna Borough v. Hammond, 726 P.2d 166, 175 (Alaska 1986). . See 20 AAC 05.630(b)(3). . 20 AAC 05.620(2) reads in part: [TJhe commission will rank an applicant based on the factor of investment in vessels, gear and setnet sites if the applicant, on the qualification date, was the owner of a vessel, gear or setnet site used or to be used in the fishery for which he is applying.... In cases where a vessel, gear or setnet site was owned jointly or in a corporate capacity, an applicant's points will be determined by multiplying his percentage of ownership interest times the total number of points possible. . See Chocknok v. State, Commercial Fisheries Entry Comm'n, 696 P.2d 669, 676 n. 10 (Alaska 1985) (holding that "two people co-owning a vessel and gear should not fare better than one person") (citing Rose v. Commercial Fisheries Entry Comm'n, 647 P.2d 154, 161 (Alaska 1982)). . Id. ('The Commission has not changed a regulation, but has corrected a policy. It is well established that the choice between modifying an existing agency policy by rule or by individual ad hoc litigation is one that lies in the informed discretion of the agency.") (citation omitted). . Id. . 20 AAC 05.630(b)(3). . AS 16.43.260(c) reads: When an applicant is unable to establish qualifications for an entry permit by submitting the specific verified evidence required in the application by the commission, the applicant may request and obtain an administrative adjudication of the application according to the procedures established in AS 16.43.110(b). At the hearing the applicant may present alternative evidence of qualifications for an entry permit. . 677 P.2d 1236, 1242 (Alaska 1984). . Jones v. Commercial Fisheries Entry Comm'n, 649 P.2d 247, 250 (Alaska 1982).

9379985

Tracy O. ATKINS, Appellant, v. Veronica L. VIGIL, Appellee

Atkins v. Vigil

2002-11-22

No. S-10621

255

259

59 P.3d 255

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.

Tracy O. ATKINS, Appellant, v. Veronica L. VIGIL, Appellee.

Tracy O. ATKINS, Appellant, v. Veronica L. VIGIL, Appellee. No. S-10621. Supreme Court of Alaska. Nov. 22, 2002. Tracy Atkins, pro se, Anchorage, Appellant. Maryann E. Foley, Law Office of Maryann E. Foley, Anchorage, for Appellee. Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

1683

10602

OPINION PER CURIAM. 1. Appellant Tracy Atkins challenges the superior court's determination that the Uniform Child Custody Jurisdiction and En-foreement Act (UCCJEA) prevents Alaska from exercising jurisdiction over a custody dispute between Atkins and appellee Veronica Vigil over their son Julian. The superior court ruled that California is Julian's home state and that even if Alaska has home state jurisdiction, California's proceeding preempts Alaska's jurisdiction. We reverse the ruling of the superior court. 2. Julian Atkins was born to Veronica Vigil and Tracy Atkins on April 2, 1996. Julian's parents were never married. Vigil and her family have taken care of Julian ever since his birth. 3. On July 4 or 5, 2001, Julian went to California to visit Vigil's mother, Julie Roby. While Julian was in California, Vigil decided that Julian should permanently stay with Roby. Since Vigil initially only intended to send Julian for a visit to California, Julian's initial absence from Alaska was a temporary absence and not intended to be permanent. 4, Less than six months after Julian moved to California, Roby petitioned the Superior Court of California in Marin County to name Roby guardian of Julian. The California court ordered a child custody investigation. On November 28, 2001, a California investigator spoke to Atkins on the phone and informed Atkins of the California guardianship proceeding. - Atkins objected to Roby's petition for guardianship. 5. On January 11, 2002, six months and six or seven days after Julian went to California, Atkins filed a custody petition in Alaska. Vigil filed a motion asking the Alaska superior court to decline custody jurisdiction. The superior court granted Vigil's motion, ruling that it could not exercise jurisdiction. Atkins now appeals. 6. Whether a lower court can exercise jurisdiction is a question of law. For questions of law, the standard of review is de novo or independent judgment. This court adopts the rule of law that is most persuasive in light of precedent, reason, and policy. 7. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and the Parental Kidnapping Prevention Act (PKPA) govern jurisdictional issues regarding child custody cases in Alaska. These statutes were "promulgated in an effort to encourage courts considering child custody matters to cooperate in order to arrive at a fully informed judgment transcending state lines and considering all claimants, residents and nonresidents, on an equal basis and from the standpoint of the welfare of the child." 8. In order to advance this uniform treatment of custody cases, the statutes assign children "home states." The home state of the child determines which court has principal jurisdiction. A child's home state is the state where the child has lived with his parent or person acting as a parent for six consecutive months immediately before the commencement of the proceeding. 9. The superior court ruled that it could not exercise jurisdiction on two grounds. First, it reasoned that California was Julian's home state. Alternatively, it concluded that even if Alaska had jurisdiction, California's proceeding still preempted the trial court's jurisdiction. 10. A child's home state is determined at the time an action commences. Because Roby commenced the California proceeding less than six months after Julian arrived in California, California was not Julian's home state when Roby filed the California guardian petition. Moreover, Julian's continued residence in California after Roby filed her petition is not relevant in determining Julian's home state; a child and parent cannot fulfill the six-month home state period through their continued residence in a state after a custody action has been filed. Therefore, California is not Julian's home state. 11. Alaska has jurisdiction under AS 25.30.300(a)(2), which provides that "a court of this state has jurisdiction to make an initial child custody determination only if . this state was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state...." In this opinion we refer to jurisdiction under this section as "recent home state jurisdiction." Alaska had been Julian's home state within six months of Atkins's filing of his child custody action and therefore Alaska had recent home state jurisdiction. In calculating whether Alaska is a child's home state within six months of a proceeding's commencement, a court should include temporary absences from the state. Therefore, in this case, the superior court should have included any temporary absence from Alaska in assessing whether Julian lived in Alaska within six months of the commencement of the Alaska proceeding. Julian's initial departure from Alaska was temporary. According to Roby, Vigil agreed to make Julian's absence from Alaska permanent only after Julian was in California for a significant period of time. In a pleading filed in the California action, Roby describes the evolving nature of Vigil's decision to leave Julian with Roby on a permanent basis: "Julian stayed in California with me longer and longer because my daughter Veronica's life was unstable and I offered to keep him. She agreed, first it was for a few more weeks, then through summer camp, then to start kindergarten, then to stay for the entire kindergarten year. Because Atkins filed the Alaska petition six months and six or seven days after Julian left Alaska for California, and because it is undisputed that Julian's absence from Alaska did not become permanent until more than seven days after his initial departure from Alaska, Alaska was Julian's home state within six months of the commencement of the proceeding. Accordingly, Alaska had recent home state jurisdiction. 12. Contrary to the superior court's holding, California's pre-existing child custody proceeding does not preempt the Alaska superior court's jurisdiction. The Uniform Child Custody Jurisdiction Act (UCCJA), which Alaska has since replaced with the UCCJEA, created the possibility of concurrent jurisdiction and resolved the potential conflict by giving preference to the first jurisdiction to hear the custody case. However, the PKPA eliminated the possibility of concurrent jurisdiction and the "first in time" rule: As to initial jurisdiction, the federal standards implement some of the same policy judgments underlying the UCCJA, but there are also significant differences because the PKPA was drafted, in part, to fill the gaps which existed under the UCCJA. The key distinction is that the UCCJA could result in concurrent jurisdiction if more than one state meets one of the conditions set forth in § 3(a) thereof, while 28 USCS § 1788A¥(c)@)(B)G) and 28 USCS § 1738A(d) effectively eliminate the possibility of concurrent jurisdietion.[ ] 13. This court has held that the PKPA preempts the UCCJA; therefore, under Alaska law, a child's home state has exclusive jurisdiction in child custody cases: "Under the UCCJA, a court may not exercise jurisdiction if a custody proceeding is already pending in another state, assuming that state has jurisdiction over the case. The PKPA, however, preempts this 'first in time' provision, and grants exclusive jurisdiction to the child's home state.[ ] 14. Moreover, the UCCJEA, which replaced the UCCJA, is consistent with the PKPA and grants exclusive jurisdiction to the home state or recent home state. 15. Turner v. Pannick sets out the relevant standard that the superior court should apply in determining custody between a biological parent and a third party. In Turner, we concluded that a biological parent should ordinarily be awarded custody over a third party unless "it clearly would be detrimental to the child. This "clear detriment" standard may also bear on the question of whether the child should remain with Roby in California during the pendency of this litigation. 16. We REVERSE the superior court's decision declining jurisdiction in this case and REMAND for proceedings consistent with this order. . Kopanuk v. AVCP Reg'l Hous. Auth., 902 P.2d 813, 816 (Alaska 1995). . Bennett v. Bennett, 6 P.3d 724, 726 (Alaska 2000). . Id. . AS 25.30.300-25.35.390. . 28 U.S.C. § 1738A. . Rogers v. Rogers, 907 P.2d 469, 471 (1995). . David Carl Minneman, Annotation, Home State Jurisdiction of Court Under § 3(a)(1) of the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.S. § 1738A4(c)(2)(A), 6 ALR.5th 1, 16 (1992). . AS 25.30.300; 28 U.S.C. § 1738A(b)(4). . 28 U.S.C. § 1738A(b)(4). . Bock v. Bock, 824 P.2d 723, 724 n. 4 (Alaska 1992). . David Carl Minneman, Annotation, Home State Jurisdiction of Court Under § 3(a)(1) of the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.S. § 1738A4(c)(2)(A), 6 A.L.R.5th 1, 48-50 (1992); Irving v. Irving, 682 S.W.2d 718, 721 (Tex.App.1985) ("[Wle cannot allow the appellee to bootstrap his way into a Texas court based on relationships developed after suit was commenced."). . AS 25.30.909(7) (" 'home state' means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months, including any temporary absences of the child or parent or person acting as a parent); 28 U.S.C. § 1738A(b)(4) ("Periods of temporary absence of [child, parent, or person acting as parent] are counted as part of the six-month . period."). . Declaration of Julie Roby in Opposition to Motion to Quash Guardianship Proceedings, executed on February 19, 2002, at Novato, California. . David Carl Minneman, Annotation, Pending Proceeding in Another State as Ground for Declining Jurisdiction Under § 6(a) of the Uniform Child Custody Jurisdiction Act (UCCIA) or the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.S. § 1738A(g), 20 ALR .5th 700, 731 (1994). . Rogers v. Rogers, 907 P.2d 469, 471 (1995). . AS 25.30.300. AS 25.30.300(3) only gives jurisdiction to a non-home state when there is no home state or recent home state jurisdiction, thereby eliminating the possibility of concurrent jurisdiction. . 540 P.2d 1051 (Alaska 1975). . Id. at 1054.

10591896

Mark S. MERRILL by his guardian ad litem, Robert L. Merrill, Appellant, v. Howard M. FALTIN, Appellee

Merrill ex rel. Merrill v. Faltin

1967-08-07

No. 742

913

918

430 P.2d 913

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.

Mark S. MERRILL by his guardian ad litem, Robert L. Merrill, Appellant, v. Howard M. FALTIN, Appellee.

Mark S. MERRILL by his guardian ad litem, Robert L. Merrill, Appellant, v. Howard M. FALTIN, Appellee. No. 742. Supreme Court of Alaska. Aug. 7, 1967. George F. Boney and Warren W. Matthews, Jr., of Boney & Pease and Hugh B. White, Anchorage, for appellant. John S. Hellenthal, Anchorage, for appellee.

2842

16705

OPINION Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ. DIMOND, Justice. Appellee hit appellant with his fist and broke appellant's jaw. Appellant brought this action for damages and the jury returned a verdict in appellee's favor. On this appeal appellant contends that several errors committed by the trial court call for a new trial. Amendment of Answer Appellant's counsel interrupted appellee's counsel's opening statement to the jury in order to object to the latter making any reference to self-defense to the alleged assault and battery. The ground for the objection was that self-defense was an affirmative defense and since it had not been pleaded in accordance with Civil Rule. 8(c), it had been waived and was not an issue in the case. Appellee then moved to amend his answer in order to state the affirmative defense of self-defense. The court granted the motion to amend and stated that appellant was entitled to a continuance if he wished, and that if there were a continuance, costs and attorney's fees would be assessed against appellee. Appellant did not accept the offer of a continuance but elected to proceed with the trial. He claims here that it was error on the part of the trial court to allow the amendment to appellee's answer. Under Civil Rule 15(a) it was within the discretion of the trial court to grant or deny appellee the opportunity to amend his answer to appellant's complaint. We will interfere in the exercise of such discretion only where it has been abused. We find no abuse of discretion. The court had the task of balancing the hardship to appellee if the affirmative defense of self-defense was not allowed to be made against the disadvantage to appellant in allowing such a defense to be made after the trial had begun. In attempting to achieve a fair balance, the court chose to allow the amendment to appellee's answer, and at the same time attempted to relieve appellant of the disadvantage to which he would be put by the belated amendment by allowing a continuance and court costs and attorney's fees to appellant for the delay. In so doing, the court obviously was cognizant of the mandate of Civil Rule IS (a) that leave to amend "shall be freely given when justice so requires". That means in this case that if the circumstances relied upon by appellee as to the alleged assault and battery might constitute a proper defense, appellee ought to have been afforded the opportunity to test his defense on the merits. The trial court's decision was in keeping with the purpose of pleading under our civil rules, i. e., to facilitate a proper decision on the merits of the controversy, and was consistent with the overall purpose of the rules which is to secure the just, speedy and inexpensive determination of every action. It may be true that appellant and his witnesses were ready to go to trial and that a continuance at that point would have been inconvenient. But it is apparent that the trial court considered that the inconvenience to appellant was outweighed by the hardship to appellee if the merits of the controversy could not be thoroughly gone into and decided. We cannot say that the court was wrong in this decision. Motion for Directed Verdict At the close of the evidence appellant moved for a directed verdict on the issue of self-defense. The motion was denied. Appellant assigns this action of the trial court as error. Appellant testified that he and two friends, Jack Carl and Ken Boggs, stopped at the Center Bowl in Spenard, Alaska to use a public telephone. Appellant and Boggs were leaning against the wall while Carl made a phone call in a wall-type telephone booth. Appellant testified that while he was speaking with Boggs he recalled noticing a man approach and pass by. Appellant's next recollection was that someone tapped him on the shoulder, and as he turned to face this person he saw only a flash of light as he was struck a sharp blow to the face. On the other hand, appellee testified that he had been bowling; that when he went to the clothes rack to get his sweater he observed that appellant had his left hand in a pocket of the sweater; that he said to appellant, "Get your hands out of my pocket"; that appellant took his hand out of the pocket of the sweater and moved toward appellee; that appellant was towering over appellee, appellant being 6 feet 2 inches tall as compared with appellee's S feet 6½ inches; that appellant was extremely belligerent in manner and was clenching his fist; that appellant advanced toward appellee some more and that appellee backed up against a row of seats; that two other persons appeared to be with appellant and were "ganging up" on appellee; that there was a man behind appellee which gave him some concern because he thought he was being surrounded; and that when appellant moved toward appellee the second time and appellee noticed that the person behind him made a movement, appellee struck appellant on the jaw because he thought that appellant and his companions were surrounding him and were about to attack him. Looking at the evidence in a light most favorable to appellee, it seems clear from appellee's testimony that fair minded men in the exercise of reasonable judgment could have differed on the question of whether appellee was justified as a matter of self-defense in striking appellant. Submitting this issue for jury determination was proper. Instruction No. 13 In Instruction No. 13 the jury was told: In this action, the plaintiff has the burden of proving the following issues: (1) That defendant committed a-mali- ' cious and unlawful assault ' and battery on plaintiff; (2) That plaintiff suffered damages and the extent of such damages. The defendant has the burden of proving that the assault and battery was committed in self-defense. In determining whether or not an issue has been proved by a preponderance of the evidence, you should consider all of the evidence bearing upon that issue regardless of who produced it. Appellant claims that this instruction was erroneous because it misstated the law as to assault and battery by placing the burden on appellant, to prove that appellee acted maliciously. What appellant says as to the element of malice is correct. To make one liable for an assault and battery it is not necessary that he be inspired by malicious motives. If one acts intending to cause a harmful or offensive contact with the person of another, and if the latter is put in imminent apprehension of such a contact, and an offensive contact results, one is liable for an assault and battery even though he acted with no feeling of hostility or ill will or enmity toward the other. The trial court was mistaken .in stating that appellant had the burden of proving that appellee committed an assault and battery that was malicious. Appellee argues that if the instruction was erroneous, the error was cured by Instruction No. 14. We disagree. Instruction No. 14 simply defines a battery as the unlawful touching of another in a rude, insolent or angry manner. The jury was still required by Instruction No. 13 to find that such unlawful touching was malicious in order to find appellee liable. It is true, as appellee points out, that appellant did not object to the giving of Instruction No. 13. We have held that we shall not pass upon an assertion that the giving of an instruction was error where the matter had not been properly brought to the attention of the trial court. But we have also held that we shall consider plain errors, even though not objected to below, which are so substantial as to result in injustice. That is the situation here. We are unable to assess the effect that the erroneous instruction may have had on the jury. It is clear, though, that the court placed on appellant a greater burden than was required, by making it necessary for him to prove that appellee acted with malice in committing an assault and battery on appellant. It is entirely possible that the jury may have found that there was an assault and battery on the person of appellant, but determined that there was no liability because it was not proved that appellee acted maliciously, that is, with ill will, or hatred or enmity. In this situation we cannot say with any degree of confidence or certainty that the erroneous instruction was not prejudicial to appellant. There must be a new trial. Appellant's Requested Instruction Appellant requested the trial court to instruct the jury as follows: You are instructed that if you believe from the evidence that the Defendant used more force than was reasonably necessary to protect himself or his property, then you shall find the Defendant liable, and assess such damages, in favor of the Plaintiff, as you may believe from the evidence, will compensate him for the injuries sustained, if any. The court denied the request and appellant assigns that ruling as error. In Instruction No. 18 the court told the jury that if they found that the injuries inflicted on appellant were not injuries that were necessary to be inflicted by ap-pellee in self-defense, then their finding should be for appellant. In Instruction No. 16 the court spoke of the degree of force that one may use in self-defense of his person when he has reasonable ground to believe and does believe that another person is about to inflict bodily injury upon him. These two instructions adequately cover the subject matter of appellant's proposed instruction, and therefore refusal to give such instruction to the jury was not error. Argument to the Jury In his final argument appellant's counsel reviewed the evidence and outlined his theory of the case to the jury, but omitted any reference to damages. At the close of appellant's opening argument, appellee's counsel presented his argument to the jury. He discussed the question of damages. When he finished, he moved the court to restrict appellant's rebuttal argument to matters mentioned in his opening argument and that appellant be precluded from making any argument respecting damages. The court granted the motion, stating that appellant had waived any argument on damages by not having mentioned that subject in his opening argument, and the court precluded appellant's counsel from making any argument to the jury on the question of damages in rebuttal. In making this ruling the court relied upon that part of Civil Rule 46(g) which provides that "If the plaintiff waives the opening argument and the defendant then argues the case to the jury, the plaintiff shall not be permitted to reply to the defendant's argument." The rule is applicable here because appellant did waive his opening argument as to the issue of damages. The trial court had the choice of either applying the rule, which he did, or of relaxing or dispensing with the rule under Civil Rule 94, which he chose not to do. This was a matter within the trial court's discretion. We will interfere in the exercise of that discretion only where it has been abused. Appellant has not convinced us that there has been such an abuse in this case. The judgment is reversed and the case remanded for a new trial. . Civ.R. 8(e) provides: In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation. . Civ.R. 15(a) provides: A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders. . See Malasarte v. Coleman, 393 P.2d 902, 903 (Alaska 1964). Roman v. Davis, 371 U.S. 178, 182, 83 S.Ct 227, 9 L.Ed.2d 222, 226 (1962) (construing Rule 15(a), Federal Rules of Civil Procedure, which is identical with Alaska Civ.R. 15(a)). . As it turned out at the trial, self-defense was the only defense appellee had inasmuch as he admitted hitting appellant in the jaw. . See Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). . Civ.R. 1 provides: The procedure in the superior court and so far as applicable, in the magistrate courts, shall he governed by these rules in all actions or proceedings of a civil nature — legal, equitable or otherwise. These rules shall be construed to secure the just, speedy and inexpensive determination of every action and proceeding. . Rexford v. Saslow, 425 P.2d 611, 614 (Alaska 1967); Saxton v. Harris, 395 P.2d 71, 73 (Alaska 1964). See Harris v. Barrett & Lesh, Inc., 426 P.2d 331, 334 (Alaska 1967) ; Bertram v. Harris, 423 P.2d 909, 915 (Alaska 1967). . Restatement (Second) of Torts § 34, comment a; 21; 18 (1965). . Instruction No. 14 provided: You are instructed that assault and battery is the unlawful beating of.another and you are further instructed that the least unlawful touching of the person of another in a rude, insolent or angry manner is a battery. . See Pepsi Cola Bottling Co. v. Superior Burner Serv. Co., 427 P.2d 833, 836-837 (Alaska 1967). Saxton v. Harris, 395 P.2d 71, 73 (Alaska 1964). . Meyst v. East Fifth Ave. Serv., Inc., 401 P.2d 430, 434 (Alaska 1965). . Instruction No. 18 provided: You are instructed that one committing an unlawful assault upon another is responsible in damages and for the natural and reasonable consequences of his act. In this ease, if you find that the- Plaintiff was unlawfully attacked by the Defendant and that the Plaintiff sustained injuries thereby as charged in the Complaint, and if you also find that the injuries inflicted upon the Plaintiff were not injuries that were necessary to he inflicted in self defense, then your finding should be for the Plaintiff. .Instruction No. 16 provided: In this ease the defendant claims he acted in keeping with his right of self-defense. A person upon whom an unprovoked assault is being made, or a person who has reasonable ground for believing and does believe that another person is about to inflict bodily injury upon him, need not retreat but may stand his ground and defend the integrity of his person; and where in such self defense of his person he injures his assailant, the law holds there is legal justification provided he used no more or greater force or means than that which he in fact believed to be reasonably necessary, and no more or greater force or means than would appear to a reasonable person, in similar circumstances, to be necessary, in order to prevent the bodily injury which then appears to be imminent. Tbe burden of proving this defense by a preponderance of tbe evidence rests upon tbe defendant. . Civ.R. 46(g) provides in full: When the evidence is concluded, and unless tbe case is submitted to the jury by mutual agreement of both sides without argument, tbe plaintiff shall open with his argument; tbe defendant shall follow with Ms argument and tbe plaintiff may conclude the argument. Not more than two counsel shall be allowed to address the jury on behalf of either party, unless otherwise allowed by the court. If the plaintiff waives the opening argument and the defendant then argues the case to the jury, the plaintiff shall not be permitted to reply to the defendant's argument. . Civ.R. 94 provides: These rules are designed to facilitate business and advance justice. They may be relaxed or dispensed with by the court in any case where it shall be manifest to the court that a strict adherence to them will work injustice.

10587528

Application of Joseph J. BREWER for Admission to the Alaska Bar Association

In re Brewer

1967-07-17

No. 789

150

153

430 P.2d 150

430

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Application of Joseph J. BREWER for Admission to the Alaska Bar Association.

Application of Joseph J. BREWER for Admission to the Alaska Bar Association. No. 789. Supreme Court of Alaska. July 17, 1967. R. Stanley Ditus, Anchorage, for applicant-petitioner. John E. Havelock, Anchorage, for Alaska Bar Ass’n. Before NESBETT, C. J., and DIMOND and RABINO WITZ, JJ.

1730

10154

DIMOND, Justice. At the time that Joseph J. Brewer made application for admission to the Alaska Bar Association, the Alaska Bar Act provided that one was eligible for admission to the Alaska Bar without examination if, in addition to meeting other requirements, the applicant had passed a bar examination of another state or the District of Columbia and had been actively employed in Alaska by a law firm or by the state or federal government in work of a legal nature for at least three consecutive years, and if this court determined that it was in the best interests of the legal profession that the applicant be admitted. One did not qualify under the Act, however, if he had taken and failed to pass the Alaska bar examination after June 30, 1965. The applicant in this case, Joseph Brewer, met the foregoing requirements as to admission without examination, except that he took and failed to pass the Alaska bar examination after June 30, 1965. For that reason he was denied admission to the bar by the Board of Governors of the Alaska Bar Association. He has petitioned this court for admission to the bar without examination. He claims that the provisions in the statute as to the effect of one failing to pass a bar examination after June 30, 1965 was an invalid limitation and unwarranted intrusion upon the inherent and final power of this court to determine the standards for admission to the bar, was not a reasonable standard for admission because it had no rational connection with fitness to practice law in Alaska, and denied applicant due process of law and equal protection of the law contrary to the fourteenth amendment to the' federal .constitution and sections 1 and 7 of article I of the Alaska constitution. In Application of Houston we held that the inherent and final power and authority to determine standards for admission to the practice of law in this state reside in this court. We also held that the legislature may enact laws governing the practice of law, but that it may not require this court to admit on standards other than those accepted or established by the court. Whether or not we accept legislative standards or rules for admission to the practice of law depends upon whether they have a rational connection with one's fitness to practice law in Alaska. We will hold that there is such a rational connection if application of the legislative standards has a reasonable tendency to determine whether an applicant has a sufficient knowledge of law in Alaska to hold himself out to the public that he is adequately prepared to assume efficiently the obligations and responsibilities commensurate with representing persons in legal matters. In AS 08.08.130 the legislature had stated in effect that in its judgment one who was eligible for admission to the Alaska Bar without examination under the statute would be considered ineligible if he took and failed to pass a bar examination after June 30, 1965. We cannot say that the legislative judgment was unreasonable and that such a standard for determining eligibility for admission to the bar is unacceptable to this court. Bar examinations are commonly used throughout the states as a test of one's fitness to advise and represent clients in legal matters. When one fails to pass an appropriate and properly administered examination, it is not unreasonable to say that he has demonstrated his lack of proficiency in law so as to justify denying him the right to be admitted to the bar. We believe that the legislature-imposed disqualification for one who took and failed to pass the bar examination after June 30, 1965 did have a rational connection with one's fitness to be admitted to the Alaska Bar and was not an unwarranted intrusion upon the inherent power of this court to determine the standards for such admission. Because such a rational connection did exist and the legislative requirement was not arbitrary, and because applicant did take and fail to pass the bar examination after June 30, 1965, there has not been a denial of due process of law in refusing applicant admission to the Alaska Bar. Nor do we find a denial of equal protection of the laws. The provision in AS 08.08.130 which made one ineligible for admission to the bar without examination if he had taken and failed to pass the Alaska bar examination after June 30, 1965 was contained in a 1965 enactment of the legislature which became effective on June 30, 1965. The effect of this legislation was to make ineligible for admission to the bar without examination those persons who took and failed to pass the Alaska bar examination after the effective date of the act, but not those who may have taken and failed the bar examination prior to such effective date. We see here no unjust distinction between the two groups of persons. When the legislature adopts new standards for admission to the bar, it is not obliged by the requirements of equal protection of the laws to make its legislation retrospective so as to encompass situations which existed prior to the time the legislation becomes effective. To make the legislation prospective in operation only, as was done here, satisfies constitutional requirements of equal protection so long as the law in operating prospectively does not invidiously discriminate between different classes of persons. There was no such discrimination here. All persons who attempted to qualify for .admission without examination under AS 08.08.130(6) were treated alike in that all .who took and failed to pass the bar examination after the effective date of the 1965 act were considered ineligible for admission to the Alaska Bar without examination. The amended findings of fact and conclusions of law of the Alaska Bar Association which determined that applicant was not entitled to admission to the bar without examination under AS 08.08.130(6) are affirmed. Applicant's petition for admission to the Alaska Bar Association without examination is denied. .AS 08.08.130 provided: A person is eligible for admission to the Alaska Bar if he (1) is a citizen of the United States; (2) is over 21 years of age; (3) has been a resident of the state for at least 60 days before the date of application for admission by examination or by reciprocity, and the date for the examination for admission or the date for certification by the board that the person be admitted by reciprocity shall be at least 90 days after the application is made; (4) is a graduate of a law school approved by the American Bar Association or has completed a clerkship in the manner required by § 135 of this chapter; and (5) has passed a bar examination given by the Alaska Bar; or (6) meets the requirements in (1) — (4) of this section, and (A) has passed a bar examination of another state or the District of Columbia; (B) is a member in good standing of the bar of that state or the District of Columbia; (C) has been a resident of Alaska for at least three years before petitioning the court to be admitted; (D) has been actively employed in Alaska by a law firm or the state or federal government in work of a legal nature for at least three consecutive years; (E) the supreme court determines that it is in the best interests of those served by the legal profession that he be admitted, except that nothing in this paragraph shall permit the admission of an attorney who after June 30, 1965, has taken and failed to pass the Alaska bar examination. In SLA 1967, ch. 135 the legislature amended AS 08.08.130 by deleting subsection (6) (A), (B), (O), (D) and (E). . The fourteenth amendment to the federal constitution provides that no state shall [D]eprive any person of life, liberty, or property, without due process of law; nor deny to any person the equal protection of the laws. . Alaska Const, art. I, § 1 and 7 provide: Section 1. Inherent Bights. This constitution is dedicated to the prin ciples 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. Section 7. Due Process. No person shall be deprived of life, liberty, or property, without due process of law. . 378 P.2d 644 (Alaska 1963). . Statute quoted note 1 supra. . Cf. Schware v. Board of Bar Examiners, 353 U.S. 232, 238-39, 77 S.Ct. 752, 1 E. Ed.2d 796, 801-802 (1957); Konigsberg v. State Bar of California, 353 U.S. 252, 262, 77 S.Ct. 722, 1 L.Ed.2d 810, 819 (1957); Application of Houston, 378 P. 2d 644, 646 (Alaska 1963). . SLA 1965, ch. 47, § 1. . Article II, section 18 of the state constitution provides that "Laws passed by the legislature become effective ninety days after enactment. The legislature may, by concurrence of two-thirds of the membership of each house, provide for another effective date." SLA 1965, ch. 47 was approved by the governor on April 1, 1965. Since no other effective date was provided, this law became effective 90 days after April 1, 1965, which was June 30, 1965. . In Leege v. Martin, 379 P.2d 447, 452 (Alaska 1963), we said that the equal protection provision of article I, section 1 of the Alaska constitution was "a prohibition against laws which, in their application, make unjust distinctions between persons." . Statute quoted note 1 supra.

10583169

Emma Jane HAWKINS, Appellant, v. ALASKA FREIGHT LINES, INC., and E. W. Hundley, a/k/a Eugene L. Hundley, Appellees

Hawkins v. Alaska Freight Lines, Inc.

1966-02-14

No. 564

992

994

410 P.2d 992

410

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Emma Jane HAWKINS, Appellant, v. ALASKA FREIGHT LINES, INC., and E. W. Hundley, a/k/a Eugene L. Hundley, Appellees.

Emma Jane HAWKINS, Appellant, v. ALASKA FREIGHT LINES, INC., and E. W. Hundley, a/k/a Eugene L. Hundley, Appellees. No. 564. Supreme Court of Alaska. Feb. 14, 1966. H. Russell Holland and Ted Stevens, Anchorage, for appellant. Clifford J. Groh and John W. Hendrick-son, Groh & Benkert, Anchorage, for appel-lees. Before NESBETT, C. J., and DIMOND and RABINO WITZ, JJ.

1460

8549

DIMOND, Justice. Appellant is the owner of two waterfront lots situated on the east side of Resurrection Bay, across the bay from the City of Seward, Alaska. The lots are located along the coastline between waterfront property owned by appellee, Hundley, and the Nash Highway which connects with the Seward Highway. . Hundley leased his property to appellee, Alaska Freight Lines, which constructed a dock on Hundley's property at his expense, and at its own expense in 1952 built a road along the beach across appellant's lots. Appellant commenced this action against appellees, alleging that the construction and use of the beach road by appellees constituted a trespass on appellant's property. Appellant's complaint asked for damages on account of the trespass, for rental value for the use of the beach road from the time of entry by appellees, and for an injunction restraining appellees from further trespassing on appellant's property. The case was tried by the court below without a jury. The court found from conflicting testimony that appellant's son, James Hawkins, was her agent prior to and during the years 1952-1956, with full right to manage appellant's affairs and property located in the Seward Recording District; that appellant, through her son and agent, had given oral permission to appellees to use the beach road in 1952; that appellant knew of the location of the road being constructed by Alaska Freight Lines and acquiesced in such construction; and that appellant had initiated no written complaint or legal action until the commencement of this suit in 1959. The trial court held that since appellant had failed to object at the time large expenditures for road construction were being made, she was estopped to deny ap-pellees the use of the beach road. Judgment was entered for appellees, and appellant brought this appeal. Although appellant raises 14 specifications of error in her brief, we need consider only two questions: (1) whether the evidence supports the finding that appellant gave oral permission to appellees to use the beach road and acquiesced in such use and in the expenditures of money by Alaska Freight Lines to construct the road, and (2) whether it was proved that the beach road constructed by appellees crossed over any portion of appellant's property. As to the first question, we hold that the finding as to oral permission and acquiescence was clearly erroneous. Appellant testified that her son, James, had authority to run her store in Seward, but had no authority to manage, sell, or give away any of the property involved in this case. She stated that her son had told her that he had given permission to appellee, Hundley, to improve what was referred to as the "existing cat road", and that she had no objection to that. According to the evidence, the existing cat road was not the same as the beach road, but was a rough, partly passable road located about 200 to 300 feet above the location of the beach road. Appellant did not admit, nor was there any other evidence tending to prove that she had given permission to appellees to construct and use the beach road, that she had authorized her son, James, to give such permission, or that she even knew of the construction of the beach road until after it was completed. Appellees may not rely upon the theory of creation of an easement by oral grant and estoppel, when there is no evidence to support a finding that an oral grant was made. The second question that we must consider involves the trial court's findings of fact Nos. 15 and 16, which read as follows: 15. Although the road was caused to be surveyed by the plaintiff during the course of the trial, neither party has met the burden of proof for showing what portion, if any, of the road constructed by the de Tndants passes across the plaintiff's property, nor have they met the burden of proof as to showing where the high and low water mark along the beach exists. 16. In the absence of such evidence, the Court is unable to determine whether a portion, if any, of the road constructed is on the plaintiff's property. Plaintiffs (Appellant's) exhibit 13 is a drawing of a field survey made in 1964 of appellant's property and of the location of the beach road in relation to such property. The seaward boundary of the property is designated by the high water meander line, established by surveyors from the field notes of a United States government survey of the property made in 1911. The actual mean high water line is not shown. In findings of fact Nos. IS and 16 the trial court sustained appellees' contention that since only a meander line and not the line of mean high water was established, and since the line of mean high water is the boundary line of waterfront property, it is impossible to tell where the beach road is situated in relation to the seaward boundary of appellant's property. In the surveying of property, the meander line such as is involved here is a straight line between fixed points, or a series of connecting straight lines, run along the shore of a body of water for the purpose of marking the general contour of the shore at high water. Since it is not always possible or feasible to follow all of the minute windings of a high water line, only the general course of the body of water is followed and the meander line runs substantially along the line of high water. The meander line is generally not the boundary line of the property along the shore — the boundary being marked by the actual line of mean high water. Here it is true, as appellees contend, that the seaward boundary of appellant's property was not surveyed. The reason for this is that it was impracticable to establish the mean high water line because it had been covered by fill when appellees constructed the beach road. In order to attempt to ascertain the mean high water mark it would have been necessary to drill through the road into the beach below and take core samples, and then obtain a geologist's opinion as to the true location of the mean high water line before the road was constructed. Since appellees, by their own actions, made it impracticable for appellant to establish the seaward boundary of her property, it would be unfair to place the burden on appellant to establish that boundary in order to prove that the beach road crossed her property. In such a situation we hold that it will be presumed that the meander line, which approximates the line of mean high water, constitutes the mean high water mark and established appellant's seaward boundary, and that the burden was upon appellees to rebut that presumption. Since appellees did not meet this burden, and since the survey of appellant's property shows that the beach road is situated mostly above or landward of the meander line, a trespass on appellant's property has been established. The judgment is reversed and the case remanded to the court below for determination of the relief prayed for in appellant's complaint. . This road will hereafter be referred to as the "beach road". . The evidence showed that Alasita Freight Lines expended $40,000 in the construction of the beach road. .See Freightways Term Co. v. Industrial and Commercial Constr., Inc., 381 P.2d 977, 984-9S5 (Alaska 1963). . Finding of fact No. 8 appears to conflict in part with findings 15 and 16. Finding No. 8 reads as follows: The defendants constructed a road along the beach winch crossed over a portion of plaintiffs property, and which road terminated at the lands owned by defendant Hundley. (Emphasis added.) . Niles v. Clear Point Club, 175 U.S. 300, 308, 20 S.Ct. 124, 44 L.Ed. 171, 174 (1899); Horne v. Smith, 159 U.S. 40, 42-43, 15 S.Ct 988, 40 L.Ed. 68, 69 (1895); Shively v. Bowlby, 152 U.S. 1, 39, 14 S.Ct. 548, 38 L.Ed. 331, 345 (1894); St. Paul & Pac. R.R. v. Schurmeier, 74 U.S. (7 Wall.) 272, 286-287, 19 L.Ed. 74, 78 (1869); Nordale v. Waxberg, 84 F.Supp. 1004, 1006, 12 Alaska 399, 403-404 (D.Alaska 1949); Den v. Spalding, 39 Cal.App.2d 623, 104 P.2d 81, 83 (1940); Trustees of Internal Improvement Fund v. Toffel, 145 So.2d 737, 741 (Fla.Dist.Ct.App. (1962); Clark, Surveying & Boundaries, § 199-201 (2d ed. 1939).

10587579

Burton C. IRWIN, Appellant, v. RADIO CORPORATION OF AMERICA, Appellee

Irwin v. Radio Corp. of America

1967-07-17

No. 744

159

161

430 P.2d 159

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.

Burton C. IRWIN, Appellant, v. RADIO CORPORATION OF AMERICA, Appellee.

Burton C. IRWIN, Appellant, v. RADIO CORPORATION OF AMERICA, Appellee. No. 744. Supreme Court of Alaska. July 17, 1967. James K. Tallman, Anchorage, for appellant. Richard O. Gantz and Robert C. Erwin, of Hughes, Thorsness & Lowe, Anchorage, for appellee. Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.

1650

9024

DIMOND, Justice. After a -civil trial jury of twelve with one alternate juror had been impaneled and sworn, appellant moved to dismiss the jury and to have another impaneled on the ground that the impaneling of the jury did not conform to the requirements of statute. The motion was denied by the court below. Appellant claims on this appeal that the denial of such motion was reversible error. The selection of jurors is regulated by statute. Based on a .voting list prepared by the secretary of state from the preceding general election, the clerk of the superior court for each judicial district prepares a list of names of residents of the district who are qualified for jury service. The clerk then writes the names included on the list on separate pieces of paper, or prepares metal, plastic or other types of pieces to correspond with numbers on the jury list, and deposits the names or numbered pieces in a jury box in the manner, as directed by the court, to assure a fair and impartial drawing of the jury panel. Under the direction of the court the clerk conducts a public drawing of jurors for the panel by shaking the box to mix the names or numbered pieces and by drawing as many names or numbers as are ordered by the court to fill the jury panel. A jury panel for the trial of civil cases consists of at least 24 jurors or more as determined by the court. If at any time the number of jurors on the panel falls below 24 or the regular panel is exhausted, the court is required to order the clerk to complete the panel or secure additional jurors by drawing sufficient names from the jury box. A jury is impaneled for the trial of a civil action by the clerk drawing from a trial jury box, containing the names of those on the jury panel, a number of names or numbers sufficient to name a jury of 12 unless the court directs otherwise. Appellant contends that the jury selected for the trial of this case ought to have been dismissed because the court failed to provide for a panel of 24 jurors as required by AS 09.20.080, and becattse the jury panel was not selected by a public drawing as provided by AS 09.20.070. Appellant points out that the court started the case with 18 jurors present in court; that before the selection of the first 12 jurors, one was excused because she worked for the appellee; that during the selection of the jury two additional jurors were added to the list and one of their names, together with the name of a listed juryman who was not originally present, were placed in the trial jury box; that of these three additional jurors, one never appeared at the proceedings; that the net result was that the court had only a list of 19 jurors to draw from rather than 24 as provided by statute; and that the' group of 19 jurors was completely exhausted with the selection of the thirteenth, or alternate, juror. In impaneling a trial jury, the law does not require the drawing of 24 names of those on the jury panel, but only a number "sufficient to name a jury of 12 unless the court directs otherwise." In this case the jury was being impaneled, which is done by drawing names from a box containing the names of those on the jury panel. This was not a case of a public drawing of names from a box to form or fill the jury panel of at least 24 persons. There is nothing in the record to show that the trial jury box did not contain the names of at least 24 persons on the jury panel as required by law. The transcript of proceedings in the superior court shows that the first action taken by the court was to ask the clerk to "call the roll of the jury", and that when this was done, there were 18 jurors present in court. It is true that the record does not show that the names of these 18 persons were arrived at by the clerk drawing names from a box in accordance with the provisions of statute for impaneling a trial jury, although it may be presumed that this was done because a jury was being impaneled. But neither does the record show in any way that the 18 persons present in court constituted the entire jury panel and that this panel was short by six the 24 jurors required by statute. Counsel for appellant states in his brief that "the jury panel as first presented to counsel" contained a list of 21 names. But the record contains no such list or anything else to indicate that this was the case, so that we cannot say that there were only 21 jurors on the panel instead of the required 24. Furthermore, such a list would not necessarily mean that the total number of jurors on the panel was only 21. Such list might have indicated merely that only 21 jurors of a panel of 24 or more were available for this particular case at the time it was called for trial. Other jurors on the panel may have been excused for some reason or other or could have been serving on a jury in another courtroom. Appellant points to the fact that during the impaneling of the jury the trial judge stated that two or three more jurors would probably be needed, and that subsequently the names of two additional jurors were placed in the jury box. But this does not necessarily signify that there were less than 24 jurors on the panel. It could signify as well merely that all of the jurors on the panel were not in the courtroom at the time the impaneling of the jury began, or that some of the names of the jurors on the panel had not been placed in the jury box. The point is that there is nothing in the record of this case to show that the jury panel in the superior court did not consist of at least 24 jurors as required by statute. Even if the panel had consisted of less than 24 jurors, we still would find no reversible error in the superior court's denial of appellant's motion to dismiss the jury and impanel a new one. If the panel was insufficient, this was apparent before selection of the jury began. If such a defect in the panel had been brought to the attention of the trial judge, it could have been remedied by adding additional jurors to the panel. But appellant participated in the selection of the jury and said nothing as to the panel being insufficient until after the jury had been selected and sworn. This constituted a waiver of whatever right appellant may have had to challenge the sufficiency of the jury panel. Finally, appellant contends that the procedure prescribed by AS 09.20.070 for a public drawing of jurors for the panel was not followed. The record in no way supports such an assertion. There was nothing to show how the jury panel was made up. In the absence of a showing to the contrary, we presume that it was done according to law. The judgment is affirmed. . AS 09.20.050. . AS 09.20.060. . AS 09.20.070. . AS 09.20.080. . AS 09.20.090. . AS 09.20.080 provides: The jury panel for the trial of civil cases consists of at least 24 jurors or more as determined by the court. If at any time the number of jurors on the panel falls below 24 or the regular panel is exhausted, the court shall order the clerk to complete the panel or secure additional jurors by drawing sufficient names from the jury box. . AS 09.20.070 provides: Under the direction of the court the clerk shall conduct the public drawing of jurors for the panel by shaking the box to mix the named or numbered pieces. The clerk shall then draw as many names or numbers as are ordered by the court to fill the jury panel. If the name or number of a person is drawn from the box and the person is deceased, unqualified, disqualified, or the person's attendance cannot be obtained within a reasonable time or may involve a large and unnecessary expense, and the fact appears to the satisfaction of the court through the use of questionnaires or otherwise, the court may reject the name of that person and direct that the name or number of another be drawn in his place. . AS 09.20.090 provides: When a civil case which is to be tried by a jury is called for trial, the clerk shall draw from the trial jury box containing the names of those on the jury panel a number of names or numbers sufficient to name a jury of 12 unless the court directs otherwise. The prospective jurors shall be examined, challenged, and sworn as provided by rules of the supreme.court. . AS 09.20.070. See footnote 7 supra. . AS 09.20.080. See footnote 6 supra. . See footnote 7 supra. . The law presumes that official duty has been regularly performed. Hess v. Mullaney, 213 F.2d 635, 642, 15 Alaska 40 (9th Cir.), cert. denied, Hess v. Dewey, 348 U.S. 836, 75 S.Ct. 50, 99 L.Ed. 659, 15 Alaska 221 (1954) ; Cramer v. Kincaid & King Constr. Co., 13 Alaska 238, 241 (D.Alaska 1951) ; Application of Fink, 109 F.Supp. 729, 730, 14 Alaska 198, aff'd, 208 F.2d 898, 14 Alaska 468 (9th Cir. 1953).

10373595

Rodney L. WILLETT, Appellant, v. STATE of Alaska, Appellee

Willett v. State

1992-07-31

No. A-3943

955

960

836 P.2d 955

836

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Rodney L. WILLETT, Appellant, v. STATE of Alaska, Appellee.

Rodney L. WILLETT, Appellant, v. STATE of Alaska, Appellee. No. A-3943. Court of Appeals of Alaska. July 31, 1992. Marcia E. Holland, Asst. Public Defender, Fairbanks, and John B. Salemi, Public Defender, Anchorage, for appellant. Kenneth M. Rosenstein, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

2720

17141

OPINION BRYNER, Chief Judge. Following a jury trial presided over by Acting Superior Court Judge Larry C. Zer-vos, Rodney L. Willett was convicted of one count of interference with official proceedings and one count of assault in the second degree. Willett appeals his convictions, contending that there was insufficient evidence to support his conviction for interference with official proceedings and that the trial court erred in denying his request for a lesser-included offense instruction on the second degree assault charge. We affirm Willett's interference with official proceedings conviction, but reverse his conviction for assault. Willett's convictions resulted from his assault of William Golding on the night of May 4-5, 1990. On the evening of May 4, Golding attended a large, outdoor beer party in Fairbanks. Golding drank beer for part of the evening and then went to his car, intending to sleep off the effects of the beer so that he could drive home. While Golding was passed out in his car, Willett pulled Golding out, threw him to the ground, and began kicking him. Willett landed approximately five to twelve kicks to Golding's face, shoulders, and torso before bystanders separated him from Golding. Golding offered no resistance to Willett's assault, remaining unconscious throughout the episode. Golding's first recollection was awakening at the hospital, where a friend had taken him for treatment. As a result of being kicked, Golding's face was severely swollen; he suffered a cut almost two inches long on his upper lip and a second cut, approximately an inch long, over one of his eyes. Both cuts required sutures. The physician who treated Golding also thought that Golding might have had a fractured nose. Willett's attack on Golding was apparently rooted in an incident that occurred on July 20 of the previous year, when Willett had become angry with Golding and had damaged Golding's car. As a result of that incident, Willett had been charged and convicted of criminal mischief in the second degree, a felony. Golding had testified against Willett before the grand jury and at Willett's trial in November of 1989. Wil-lett was subsequently ordered to pay Golding three hundred and fifty dollars in restitution. At the May 4 party, a friend of Willett's had approached Golding and warned him that Willett was at the party and was angry with Golding; this warning had prompted Golding to go to his car. The state charged Willett with assault in the second degree pursuant to AS 11.41.-210(a)(1): (a) A person commits the crime of assault in the second degree if (1) with intent to cause physical injury to another person, that person causes physical injury to another person by means of a dangerous instrumenté] In charging this offense, the state asserted that Willett's shod foot was a dangerous instrument. The state also charged Willett with interference with official proceedings, in violation of AS 11.56.510(a)(1)(C): (a) A person commits the crime of interference with official proceedings if the person (1) uses force on anyone . with intent to . (C) retaliate against a witness or juror because of participation by the witness or juror in an official proceeding[.] The state's theory in charging this offense was that Willett had attacked Golding in retaliation for Golding's previous testimony against Willett before the grand jury and at trial on the criminal mischief charge. After the state completed its casein-chief at trial, Willett moved for a judgment of acquittal on the interference with official proceedings charge, arguing that the state had failed to produce any specific evidence to establish that the alleged assault had been motivated by a desire to retaliate against Golding for his prior testimony. Judge Zervos denied the motion, concluding that sufficient evidence had been presented to allow the case to go to the jury. On appeal, Willett renews his claim that there was no direct evidence produced establishing a retaliatory intent. The standard of review to be applied to a denial of a motion for acquittal is whether fairminded persons could reasonably differ on whether guilt has been established beyond a reasonable doubt. In applying this standard, we must view the evidence and the inferences to be drawn in the light most favorable to the state. Adams v. State, 598 P.2d 503, 509 n. 8 (Alaska 1979) (citations omitted). "The same standard applies to review by an appellate court." Siggelkow v. State, 648 P.2d 611, 613 (Alaska App.1982). "No different standard applies when the state's evidence is circumstantial rather than direct." Snyder v. State, 661 P.2d 638, 641 (Alaska App.1983). Applying these principles to the case at hand, we conclude that Judge Zer-vos did not err in denying Willett's motion for a judgment of acquittal. Here, the state proved Willett's commission of a deliberate and apparently unprovoked assault on Golding not long after Golding testified against Willett in a criminal trial. Willett had been convicted and had recently been ordered to pay Golding restitution. Although this evidence was not direct proof of Golding's intent, it is circumstantial evidence from which the jury could properly infer that Willett acted with retaliatory purpose. In exercising its discretion to determine the weight and effect of the evidence presented at trial, the jury was entitled to give this circumstantial evidence as much weight as it might have given to direct evidence of intent. Snyder, 661 P.2d at 641. Considering the totality of the evidence in the light most favorable to the state, we believe that fair-minded jurors could reasonably have differed on the issue of Willett's intent. Accordingly, the evidence was sufficient to justify denial of Willett's motion for judgment of acquittal. Willett next challenges his conviction for assault in the second degree. At the close of his trial, Willett asked Judge Zervos to give the jury a lesser-included offense instruction on assault in the fourth degree. The judge denied this request, and the jury found Willett guilty of second-degree assault. Willett contends that a lesser-included offense instruction was mandatory under the circumstances. Under Alaska R.Crim.P. 31(c), a lesser-included offense is one that is "necessarily included in the offense charged." See also State v. Minano, 710 P.2d 1013 (Alaska 1985). A lesser offense is "necessarily included" in the offense charged when it would be impossible, in the context of the case, to convict of the charged offense without also convicting of the lesser. Minano v. State, 690 P.2d 28, 31 (Alaska App.1984), rev'd on other grounds, State v. Minano, 710 P.2d 1013 (Alaska 1985). A trial court is required to give a lesser-included offense instruction when "there is a factual dispute as to an element of the greater offense so that the jury could rationally acquit on the greater offense and convict on the lesser offense." Johnson v. State, 665 P.2d 566, 569 (Alaska App.1983). Whether a factual dispute exists is determined by the "some evidence" test. Cavanaugh v. State, 754 P.2d 757, 758 (Alaska App.1988). See also Nathaniel v. State, 668 P.2d 851, 854-56 (Alaska App.1983). "Some evidence" is evidence " 'in light of which a reasonable juror could have entertained a reasonable doubt' as to the element in question." Folger v. State, 648 P.2d 111, 113 (Alaska App.1982) (quoting LaLonde v. State, 614 P.2d 808, 810 (Alaska 1980)). The "some evidence" test is not a rigorous one: In order to satisfy the "some evidence" test, it is not necessary that the defendant testify or even offer direct evidence in his own behalf. Some evidence establishing a dispute as to a factual issue may arise from weakness in the prosecution's evidence or from impeachment of its witnesses. Similarly, circumstantial evidence presented as part of the state's case-in-chief may give rise to some evidence of a disputed fact. Nathaniel v. State, 668 P.2d at 855 (citations omitted). To determine whether this test has been met in a particular case, the court must view the evidence in the light most favorable to the defendant. Paul v. State, 655 P.2d 772, 776 (Alaska App.1982). As long as there is some evidence to support the defendant's theory of the case, any weakness or implausibility in that theory is a matter for the jury, not for the court. See Folger v. State, 648 P.2d at 113. In the present case, as we have previously noted, Willett's charge of second-degree assault required the state to prove that he intentionally caused physical injury to Golding with a dangerous instrument (his shod foot). The fourth-degree assault instruction Willett proposed was based on AS 11.41.230(a)(1), under which he could be convicted for recklessly causing physical injury to Golding, regardless of whether he used a dangerous instrument: (a) A person commits the crime of assault in the fourth degree if (1) that person recklessly causes physical injury to another person[.] In the context of Willett's case, the sole element that distinguished second-degree assault from fourth-degree assault was the use of a dangerous instrument. The state does not dispute that the lesser offense of fourth-degree assault was necessarily included in the offense of second-degree assault, with which Willett was charged. The only issue is whether the element distinguishing the greater and lesser offenses — Willett's use of a dangerous instrument — was in dispute, that is, whether reasonable jurors, viewing the evidence in the light most favorable to Willett, might have entertained a reasonable doubt as to whether Willett's foot was a dangerous instrument. This issue turns on the definition of "dangerous instrument," which is set forth in AS 11.81.900(b)(ll): "dangerous instrument" means any deadly weapon or anything that, under the circumstances in which it is used, attempted to be used, or threatened to be used, is capable of causing death or serious physical injury. "Serious physical injury," in turn, is defined in AS 11.81.900(b)(50): (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[.] The state insists that there can be no reasonable doubt that Willett's feet were dangerous instruments under these definitions; thus, according to the state, Willett's use of a dangerous instrument was not actually in dispute. In advancing this argument, however, the state makes the mistake of interpreting the evidence in the light most favorable to the prosecution, instead of viewing it, as is required, in the light most favorable to Willett. Although the evidence indicating that Willett's feet were dangerous instruments may have been strong, it was certainly not conclusive; there was at least some evidence from which the jury might have found a reasonable doubt on the issue. Feet, regardless of how they are shod, are not per se dangerous instruments. They may become dangerous instruments "if used in such a way as to be capable of causing death or serious physical injury." Wettanen v. State, 656 P.2d 1213, 1218 (Alaska App.1983). Whether a foot constitutes a dangerous weapon when used to kick another person is a fact-specific determination to be gleaned from the circumstances surrounding an assault; the inquiry in each case must center on the manner in which the kick was administered and the victim's vulnerability to the kick. Id. See also Konrad v. State, 763 P.2d 1369, 1375 (Alaska App.1988) (dismissing indictment for third-degree assault where prosecutor's instruction to the grand jury may have created the impression that the grand jury had to accept as a matter of law that defendant's hand was a dangerous instrument; grand jury should have been alerted to "the need for it to find, based on the evidence in the case before it, that the defendant used an instrument in a manner that actually created a substantial risk of death or serious physical injury."). The state correctly observes that proof of an object's use in a manner that actually resulted in serious physical injury is normally prima facie evidence that the object was a dangerous instrument. Konrad v. State, 763 P.2d at 1374. Yet, here, the state did not charge Willett with actually inflicting serious physical injury on Golding; nor was the evidence so forceful as to compel a finding of serious physical injury. The state presented no evidence establishing that Golding's injuries were actually life-threatening, that is, that they occurred "under circumstances that create[d] a substantial risk of death." AS 11.81.-900(b)(50)(A). And while the state presented evidence that Golding's injuries were potentially disfiguring and resulted in at least some impairment, it did not conclusively establish that the impairment would be "protracted" or that any disfigurement would inevitably be "serious and protracted." AS 11.81.900(b)(50)(B). Viewing the evidence in the light most favorable to Willett, reasonable jurors could have found that Golding did not actually sustain serious physical injury. Nevertheless, referring to the definition of "dangerous, instrument" set out in AS 11.81.900(b)(ll), the state insists that a shod foot is obviously "capable of causing death or serious physical injury," when used to kick a sleeping man in the face. The state thus reasons that Willett's foot was necessarily a dangerous instrument. As we have already indicated, however, this determination must be based on a case-specific analysis of the totality of the circumstances; for purposes of applying the "some evidence" test,, that analysis must construe the evidence in the light most favorable to the defense. At trial, estimates of the total number of kicks Willett delivered to Golding ranged from five to twelve; some of those kicks were aimed at or landed on Golding's shoul ders and torso. Although two prosecution witnesses testified that Willett was apparently wearing boots, Willett presented circumstantial evidence indicating that he may have been wearing tennis shoes. Apart from establishing that Golding had passed out and offered no resistance, the state presented no evidence indicating that Willett's kicks were delivered in an unusually dangerous manner. No medical witnesses testified concerning the degree of risk inherent in conduct such as Wil-lett's. Given these circumstances, we do not believe it would be irrational for a juror to entertain a reasonable doubt as to whether Willett's feet were dangerous instruments, particularly if the juror found that Golding had not actually sustained serious physical injury. The absence of serious physical injury would itself be circumstantial evidence upon which the jurors could rely in assessing the degree of risk actually caused by Willett's conduct. Considering the totality of the record, we find there was at least some evidence to support a finding that Willett's feet were not dangerous instruments. Because Wil-lett's use of a dangerous instrument was in dispute under the evidence at trial, we must conclude that the trial court erred in denying Willett's request for a lesser-included offense instruction on fourth-degree assault. This conclusion requires reversal of Willett's conviction for assault in the second degree. The conviction for interference with official proceedings is AFFIRMED. The conviction for assault in the second degree is REVERSED. . The two offenses also differed in their culpable mental state elements: second-degree assault requires proof of intent to cause physical injury, whereas fourth-degree assault requires proof only of recklessness. Recklessness is a lesser culpable mental state necessarily included in intentional conduct: "If acting recklessly suffices to establish an element, that element also is established if a person acts intentionally or knowingly." AS 11.81.610(c). In the present case, however, Golding did not dispute the element of intent. Thus, in context, the different culpable mental requirements did not differentiate the charged offense of second-degree assault from the lesser-included offense of fourth-degree assault. . On remand, as an alternative to re-trying Wil-lett for second-degree assault the state should be allowed to request entry of judgment against Willett for fourth-degree assault. If the state so requests, the superior court should enter judgment on the lesser offense unless Willett can demonstrate that he would be unfairly prejudiced. See Nix v. State, 624 P.2d 823, 824-25 (Alaska App.1981).

11760297

BELUGA MINING COMPANY, Appellant, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES, Appellee

Beluga Mining Co. v. State, Department of Natural Resources

1999-02-19

No. S-8256

570

580

973 P.2d 570

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.

BELUGA MINING COMPANY, Appellant, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES, Appellee.

BELUGA MINING COMPANY, Appellant, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES, Appellee. No. S-8256. Supreme Court of Alaska. Feb. 19, 1999. Peter J. Maassen, Ingaldson Maassen, P.C., Anchorage, for Appellant. Nathaniel B. Atwood, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before MATTHEWS, Chief Justice, and COMPTON, EASTAUGH, FABE, and BRYNER, Justices.

5151

32692

OPINION EASTAUGH, Justice. I. INTRODUCTION Beluga Mining Company held mining claims located on lands held in trust by the State for the benefit of the Alaska Mental Health Lands Trust. A preliminary injunction entered in litigation over the State's handling of the Mental Health Trust lands prevented the State from issuing mining leases on trust lands. Unable to mine its claims, Beluga abandoned them and sued the State for resulting economic losses. The superior court dismissed the suit. Because we conclude that there was no taking, contract, or unjust enrichment, we affirm. II. FACTS AND PROCEEDINGS Beluga Mining Company, a corporation created to begin a gold mining operation, owned mining claims known as the "Beluga-Threemile Claims" on more than 36,000 acres on the west side of Cook Inlet. Beluga's predecessors staked the claims before 1983. Some were located on lands held in trust by the State for the benefit of the Alaska Mental Health Lands Trust. Beluga worked on developing its claims. In 1989 the State granted the first of Beluga's annual placer mining applications. In 1990 the State issued Beluga a miscellaneous land use permit. Beluga conducted assay work which it estimated cost hundreds of thousands of dollars. In 1990 and 1991 Beluga had a processing plant designed, constructed, and shipped to Alaska. In February 1991 Beluga created Nuway Corporation to conduct actual mining activities. By the spring of 1991, Beluga was allegedly ready to begin operations and only needed to obtain a state mining license. Beluga was prevented from obtaining a mining license by the Mental Health Lands Trust litigation, described in State v. Weiss (Weiss I), 706 P.2d 681 (Alaska 1985). The litigation arose out of the State's breach of a trust imposed by the federal government before Alaska became a state. In the 1956 Alaska Mental Health Enabling Act (AM-HEA), Congress granted one million acres of federal land to the Territory of Alaska to "be administered by the Territory of Alaska as a public trust"; the trust income was to "first be applied to meet the necessary expenses of the mental health program of Alaska." Notwithstanding the land's trust status, "[t]he state managed these lands without maintaining a special account until 1978," when the Alaska legislature enacted legislation that redesignated the AMHEA land as general grant land, to be managed by the Alaska Department of Natural Resources. A class of mental health program beneficiaries sued the State in 1982, seeking to overturn the 1978 redesignation legislation and to have the original AMHEA trust land restored to trust status. In 1985 we held that the State had breached its duties as trustee; we invalidated the 1978 redesig-nation legislation and remanded the case for reconstitution of the trust "to match as nearly as possible the holdings which comprised the trust when the 1978 law became effective." We also required that the trust be reimbursed at fair market value at the time of sale for trust lands that had been "sold." We declined to rule on questions raised by the amicus regarding the title held by con-veyancees and bona fide purchasers of trust lands. We later held that our decision invaliding the redesignation statute did not strip the title from a third-party bona fide purchaser of those lands. On remand, the Weiss plaintiffs asserted that parcels granted to Alaska under the AMHEA, including those encumbered by third-party interests, should be returned to trust status under the Weiss I decision. The State contended that those parcels had been "sold," and that the appropriate remedy was cash compensation, not return of those lands to trust status. Consistent with that position, the State planned to fulfill its perceived obligations to third-parties by issuing patents, leases, permits, etc., when the third-parties satisfied all conditions precedent. In July 1990 the Weiss plaintiffs obtained a preliminary injunction that temporarily precluded the State from conveying to third-parties any interests (such as mining leases or production licenses) in original trust lands, pending resolution of the Weiss litigation. The preliminary injunction enjoined the State from issuing any patent(s) or other documents or taking any further steps which convey or transfer mental health trust lands or any interest(s) therein, including without limitation, any permits to use or occupy mental health trust lands, or extract resources from any mental health trust lands, pending final resolution of this litigation or earlier order of this court. The State had opposed the preliminary injunction in part because it would frustrate the State's ability to satisfy the State's obligations to third-parties. Superior Court Judge Mary E. Greene, presiding over the Weiss litigation, responded to the State's concern, noting that, The state can be adequately protected. The preliminary injunction would not undo any of the state's commitments; rather, it would delay execution. The effect of the preliminary injunction would be to temporarily prevent the state from transferring title to the mental health trust lands to third-parties pending resolution of the claims in this lawsuit. Judge Greene also entered an order addressing third-party interests adversely affected by the injunction. The order stated that a third-party claiming an interest in mental health trust lands could move to modify the July injunction, and that the court would not act on any such motion until the third-party certified that it had first sought relief by stipulation through consultation with the Weiss plaintiffs and the State. Because the Beluga-Threemile Claims were located on original trust lands, the preliminary injunction frustrated Beluga's efforts to mine its claims. Nuway filed an Annual Placer Mining Application, Land Use and Water Use Permits, and Mining License for Threemile Claim No. 264 in early 1991. The Department of Natural Resources (DNR) determined that the application was consistent with the Alaska Coastal Management Program, but that Beluga would also need a state mining lease. Michael Bolstridge, the president of Beluga and Nuway, sought to convert four of the Beluga-Threemile Claims into an upland mining lease. According to Beluga, DNR informed Bolstridge in 1991 that the commissioner could not approve Beluga's lease application without the approval of James Gott-stein, a private attorney who represented one of the plaintiff classes in Weiss. Beluga claims on appeal that Gottstein required commercially unreasonable terms. Beluga asserts that because it was unable to obtain Gottstein's approval, Beluga did not obtain a mining lease and could not mine the Beluga-Threemile Claims. Beluga did not file a motion to modify the Weiss preliminary injunction, as permitted by Judge Greene's order addressing third-party participation. Beluga claims that it tried to remain viable until it could mine its claims under commercially reasonable terms. It asserts that its principals exhausted their cash reserves, sold personal assets, and sold twenty percent of Beluga's stock to pay the annual rental on the claims. Beluga finally abandoned the claims . in November 1994 after failing to make the necessary rental payments. On December 6, 1994, Judge Greene approved a settlement in Weiss, dismissed that case, and dissolved the preliminary injunction. Beluga sued the State in 1996. Its amended complaint asserted contract, quasi-contract, rescission, promissory estoppel, breach of the covenant of good faith and fair dealing, and takings claims. Superior Court Judge John Reese granted the State's motion to dismiss. Beluga sought reconsideration on the ground that the superior court had not addressed the takings issue. Judge Reese denied the reconsideration motion. Beluga appeals. III. DISCUSSION A. Standard of Review Both sides asked the superior court to consider materials outside the complaint when the State moved for dismissal under Alaska Civil Rules 12(b)(6) and 56. The court granted the motion without specifying what materials it had considered. As the parties have requested, we choose here to review the order as a grant of summary judgment. In doing so, 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. We are not bound by the reasoning of the superior court and can affirm a grant of summary judgment on alternative grounds. Moreover, we should consider any matter appearing in the record, even if not passed upon by the lower court, in defense of the judgment. B. There Was No "Taking." Beluga argues that it obtained exclusive rights to mine the Beluga-Threemile Claims by locating them, and that the State "took" those rights, depriving Beluga of private property without just compensation in violation of the Alaska Constitution. A person obtains the exclusive right to possess and extract minerals on state land open to claim staking by discovery, location, and recording. But AS 38.05.275 states that, "[m]ining locations made on state land . acquire for the locator mining rights under AS 38.05.185-38.05.275, subject to existing claims and to any denial of or restriction in the tentative approval of state selection or patent of the land to the state." (Emphasis added.) The mining statutes defined Beluga's rights as the successor locator of the Beluga-Threemile Claims. Given the "existing claims" limitation in AS 38.05.275, Beluga's rights could be clouded by assertion of an "existing claim." The superior court held that "the Weiss litigation constituted an 'existing claim' under [AS 38.05.275]. Any rights [Beluga] could have obtained to its claims would have been subject to the rights of the Mental Health Trust." Beluga asserts that the Weiss plaintiffs had no "existing claims" under AS 38.05.275 to the Beluga-Threemile Claims, because the Weiss litigation first made claims adverse to Beluga's mineral rights when Judge Greene entered the 1990 injunction, long after Beluga's claims had been located. We do not agree. The crux of Beluga's suit is that the State prevented Beluga from exercising its "right" to mine. Because no "right" to mine could arise until the State issued Beluga the necessary mining leases, and because the 1990 Weiss injunction prevented the State from issuing those leases, the Weiss plaintiffs had clearly asserted "existing claims" within the meaning of AS 38.05.275. As the State points out, it did not matter whether the Weiss plaintiffs asserted claims that were actually superior to Beluga's; what mattered was that they asserted that their as-yet-unresolved claims were superior to claims such as Beluga's and that the injunction preserved the status quo while those claims were litigated. Beluga next asserts that the State's acts effected a "taking" under takings doctrine as applied in Alaska. Before we turn to Beluga's legal arguments, we note that it is not apparent how the State "took" Beluga's property. Takings doctrine is only implicated when the State deprives a person of a property right. The State deprived Beluga of no property right. Beluga had property rights in its claims, but it had no right to mine; its mining "rights" were prospective and contingent, and were subject to existing claims. These considerations appear to present an insurmountable threshold to Beluga's takings claim, but even if they did not, Beluga's legal arguments are unconvincing. Beluga first argues that a per se taking occurred. We have recognized two classes of per se takings: (1) where there is a physical invasion and (2) where a regulation denies a landowner all economically feasible use of the property. We do not perceive any per se taking. There was no physical invasion of Beluga's property, and no "regulation" denied Beluga all economically feasible use of its property. The injunction simply delayed Beluga's ability to obtain permission to mine and did not deprive Beluga of its underlying claims. Beluga's failure to make the annual rental payments — not the State's enforcement of the statutory scheme — caused the loss of Beluga's claims. We have also stated that when cases are not within either per se category, "courts must engage in a case-specific inquiry to determine whether governmental action effects a taking." This inquiry triggers a four-factor analysis. Courts should consider "(1) the character of the governmental action; (2) its economic impact; and (3) its interference with reasonable investment-backed expectations. The legitimacy of the interest advanced by the regulation or land-use decision is also relevant to this inquiry." Invoking these factors, Beluga next argues that it suffered a taking because (1) the State's mismanagement of the Mental Health Lands Trust led to the Weiss injunction; (2) Beluga suffered a major economic loss; (3) Beluga's investment-backed expectations were reasonable; and (4) any interest advanced by the "regulation" (the "Gottstein approval requirement") was not legitimate because it was the direct result of the State's misconduct that led to the Weiss litigation. Beluga's discussion of the takings issue does not explain how the case-specific factors apply to these circumstances. It does not clearly explain which State entity (legisla ture, superior court, or DNR) or act (enactment of the redesignation legislation, entry of the injunction, or denial of the lease application) effected the alleged taking. We are left with a conclusory assertion that the facts satisfy the factors, but with little analytical guidance. The following brief discussion explains why we conclude that Beluga has not demonstrated that a taking occurred under the four-factor inquiry. Both the character of the State's acts and the legitimacy of its interest weigh against finding a taking. The State did not physically interfere with, damage, or destroy Beluga's property. The redesignation legislation was ill-fated, but was not intended to adversely affect Beluga or others like it. The injunction, although intended to affect claimants such as Beluga, was a necessary and appropriate act of judicial discretion intended to maintain the status quo and protect adverse claimants who potentially possessed unresolved existing claims superior to Beluga's. And the superior court also entered an order appropriately allowing third persons, such as Beluga, to seek interim relief. The economic impact of the State's actions is difficult to assess, partly because Beluga's losses appear attributable to Beluga, not the State. Beluga did not ask the superior court to lift the injunction or relax the requirements for relief from the injunction. Also, we put little weight on any economic impact of the injunction and lease denial, because they delayed but did not terminate the permitting process. Beluga lost its claims, and the opportunity to obtain permission to mine, when it failed to pay the annual rentals, not because DNR or the court appropriated Beluga's property. Beluga claims that it was unable to pay the rentals because its resources were exhausted, but that exhaustion is not attributable to the State. Although Beluga asserts it invested heavily in its claims, it has not established a basis for concluding that it had "reasonable investment-backed expectations." Beluga's claims were always contingent on State permission to mine and assertion of adverse existing claims. Absent any demonstration to the contrary, we conclude that reasonable investors could have recognized that DNR might be delayed in granting Beluga permission to mine. After all, Beluga developed its claims despite the pending Weiss litigation, which began in 1982, despite our 1985 decision that invalidated the 1978 redesignation legislation and left open the question of whether the claims of parties like Beluga were superior to the claims of the Weiss plaintiffs, and despite AS 38.05.275, which made Beluga's rights subject to existing claims. In our view, Beluga has not demonstrated a basis for finding that governmental action had the character of a taking or the kind of economic impact on investment-backed expectations that would permit a conclusion that a taking had occurred. Beluga cites Conoco, Inc. v. United States, 35 Fed.Cl. 309 (1996)', to support its takings argument. Conoco and other companies (lessees) had federal off-shore oil leases which granted the lessees exclusive rights to drill for, develop, and produce oil and gas resources, subject to the Outer Continental Shelf Leasing Act (OCSLA) and other applicable law. But before the lessees could produce oil, they had to submit an environmental impact statement and exploration and development plans for approval by the Secretary of the Interior. Congress later enacted the Outer Banks Protection Act, which restricted the Secretary's powers to approve the lessees' proposed plans. The lessees sued for breach of contract and taking. The Federal Claims Court stated that the new laws prevented the plaintiffs from taking part in the regulatory process because the Secretary would not even consider the exploration plans. The court concluded that there was a breach of contract, and declined to preclude a takings claim based on the breach. Beluga contends that Conoco is analogous: Just as the statutory scheme obliged the Secretary to consider Conoco's lease application under the statutory scheme, the State of Alaska was obliged to consider Beluga's mining lease application. Beluga argues that the State breached this obligation by requiring that Beluga obtain Gottstein's approval; Beluga alleges that this requirement imposed a new obstacle that did not exist under the normal statutory framework, and that its inability to surmount this new obstacle caused the loss of Beluga's claims. But Conoco is distinguishable. The lease contracts between the Conoco lessees and the Office of Surface Mining (OSM) expressed the particular process to which the lessees were subject, and the deviation from that process constituted the breach of contract. Whereas the government action in Conoco altered an existing contract, Beluga had no contract with the State that altered the potential effect of AS 38.05.275. Any rights Beluga potentially had to extract minerals were always subject to challenges under the "existing claims" provision in AS 38.05.275. Because any delay the Weiss preliminary injunction caused was consistent with the provisions of law Beluga had to meet to obtain the right to mine, Conoco is inapposite. Beluga also relies on Eastern Minerals International, Inc. v. United States, 36 Fed.Cl. 541, 545 (1996). Eastern, a coal lessee, had prepared a site for mining and then applied to the OSM for a mining lease. OSM denied the lease on grounds of the possible adverse effects. Eastern appealed the denial, and an administrative law judge ordered OSM to make specific findings regarding the probable adverse effects and reconsider the permit. OSM delayed making the findings for several years. Finally, Eastern allowed its contractual right to extend its lease to expire, since it "believed that OSM would never grant the permit" and it "did not want to incur additional rent liability." The court determined at trial that "the Government had no intention of ever granting the permit." The court held that a compensable taking had occurred. Eastern Minerals is also distinguishable. The State did not fail to do something, such as issuing findings or permits, that it was required to do. Rather, the preliminary injunction prevented the State from doing what Beluga wanted it to do. But Beluga had no absolute rights to extract minerals from the claims. Rather, its rights were always subject to existing claims, challenges, and possible delay under the statutory scheme. The Weiss injunction and the attendant "Gott-stein approval requirement" were consistent with the provisions of law controlling issuance of approval to mine. The delay the preliminary injunction caused was well within the realm of challenges anticipated by the statutory scheme. The injunction included a procedure for deciding whether the Weiss plaintiffs' claims were superior to Beluga's. The superior court did not explain why it rejected the takings claim. Because we conclude that the claim lacked merit, any possible error in failing to address the claim was harmless. C. There Was No Breach of Contract. Beluga contends that it had a claim for breach of contract because it was unable to mine the claims: [The State's] interposition of this extra hurdle — Gottstein's approval — was not a part of the mining laws as embodied in the Constitution and AS 38.05.185-275, but was rather mandated by the Weiss injunction that had been put in place to help remedy the State's misfeasance in the handling of the AMHEA trust. The interposition of this extra hurdle significantly altered the statutory requirements necessary to obtain a mining lease and in fact rendered impossible Beluga's exercise of its "exclusive right of possession and extraction of the minerals." The change of the rules . was a breach of the State's promises to Beluga and gives rise to contract damages.... Citing Clawson v. United States, 24 Cl.Ct. 366, 370 (1991), the superior court held that Beluga's yearly payments to the State under statutory mining law did not create a contract, that there was no express or implied intent to enter into a contract, and that there was no consideration or bilateral exchange to support the finding of a contract. In Clawson, the Federal Court of Claims considered the way in which mining rights are acquired by statute and regulation, rather than by bilateral exchange, and concluded that "there is no contract in the usual sense of the word." The Clawson court stated that "'[i]t would do violence to traditional contract theory, not to mention the operation of government, to hold that any statute requiring some action by a citizen to obtain a benefit or protect a right constituted an open offer to contract.' " We agree. Because the statute gave rise to no contract between Beluga and the State, and because miscellaneous land use permits covering the claims were expressly subject to the statutory scheme, we affirm the superior court's holding that the State could not be liable on a claim for breach of contract. As the State points out, the formation of a valid contract requires "an offer encompassing all essential terms, unequivocal acceptance by the offeree, consideration, and an intent to be bound." No express or implied promise by the State could have created a contractual mining right, thereby eliminating the requirement of participation in the public process established by the Alaska mineral location regulatory scheme. Beluga raises two additional arguments that assume a contract between the State and Beluga: (1) the State breached the covenant of good faith and fair dealing by failing to use diligent efforts to have the preliminary injunction lifted to permit Beluga to exercise its rights on the Beluga-Threemile Claims, and (2) the State cannot, in defending against a breach of contract claim, assert that the Weiss injunction excused the State's performance by making its performance "impracticable." Our analysis of Beluga's contract claim forecloses these arguments. D. Estoppel Created No "Irrevocable License." Beluga argues that it had an "irrevocable license" to mine, the result of an alleged "executed contract created by es-toppel," subject only to the express requirements of AS 38.05.185- 275. We have stated that "'[t]he general elements of equitable estoppel are (1) assertion of a position by conduct or word, (2) reasonable reliance thereon, and (3) resulting prejudice. A fourth element, most often explicitly stated in promissory estoppel cases, is that the estoppel will be enforced only to the extent that justice so requires.' " Invoking these elements, Beluga argues that (1) the State's "position" was asserted by Alaska's mining laws, which give a minerals locator who complies with statutory and regulatory procedures exclusive rights to extract the minerals; (2) Beluga reasonably relied on its exclusive right to possess and extract the minerals; (3) Beluga was seriously prejudiced by the interposition of the non-statutory condition to lease (i.e., the "Gott-stein approval requirement"); and (4) the question of whether injustice may be avoided by enforcing a promise is a fact question and the superior court failed to make factual findings regarding this question. Equitable estoppel could give Beluga no irrevocable license to mine because Beluga cannot satisfy the first essential element. Beluga's rights were never exclusive of existing claims. Alaska Statute 38.05.275 states that, "Mining locations made on state land . acquire for the locator mining rights . subject to existing claims." Given the absence of this element, Beluga's estoppel claim fails, and we need not consider whether, as the State argues, other elements were also absent. E. Beluga's Annual Rental Payments Did Not Unjustly Enrich the State. Beluga argues that the State was unjustly enriched when it accepted Beluga's rental payments for mineral rights that the State was "ultimately unable to convey." We first note that Beluga inaccurately describes the circumstances. Although the Weiss injunction prevented the State from granting the mining lease when Beluga first sought it, the State regained authority to grant mining leases when the injunction was dissolved. Beluga, however, was unable to wait until the dissolution of the Weiss injunction. A party seeking to recover for unjust enrichment must show: (1) a benefit conferred upon the defendant by the plaintiff; (2) appreciation by the defendant of such benefit; and (3) acceptance and retention by the defendant of such benefit under such circumstances that it would be inequitable for him to retain it without paying the value thereof[ ] The superior court rejected Beluga's unjust enrichment argument, apparently because Beluga's rental payments preserved its mineral rights. The court noted that AS 38.05.265 and 11 AAC 86.221(e) require locators to preserve their mineral rights by paying yearly fees upon risk of losing their claims under abandonment. We agree. Beluga received something of value in exchange for its rental payments: preservation of its rights in the mining claims. The rental payments gave Beluga no additional substantive rights to the property. F. Other Issues Given .our resolution of the takings, contract, and unjust enrichment issues, we need not consider whether the superior court erred by holding that sovereign immunity barred claims that were based on any purported misrepresentations made by the State. IV. CONCLUSION The issues here turn on the nature of Beluga's rights to possess and extract miner als from these mining claims. It is undisputed that the State's management of the trust lands resulted in the Weiss preliminary injunction. Because the delay caused by the Weiss injunction was within the realm of the statutory scheme that defined Beluga's rights, the State was not liable for Beluga's losses resulting from entry of the injunction. AFFIRMED. . See State v. Weiss, 706 P.2d 681, 681-84 (Alaska 1985). . Id. at 681-82. . Id. at 682 (citing ch. 181, § 3(a), SLA 1978). . See id. at 682. . Id. at 684. . Id. . See id. at 684 n. 4. . See James v. McCombs, 936 P.2d 520, 525-26 (Alaska 1997). See also Alaska Center for the Envir. v. State, 940 P.2d 916 (Alaska 1997) (reviewing history of Weiss litigation); Weiss v. State (Weiss II), 939 P.2d 380 (Alaska 1997) (affirming superior court's approval of agreement settling Weiss litigation and reviewing history of Weiss litigation). . See Andrews v. Wade & De Young, Inc., 875 P.2d 89, 90-91 (Alaska 1994) (recognizing our three options in such an event: remanding for proper consideration, reviewing the decision as a grant of relief under Rule 12(b)(6) after exclusion of the outside materials, or reviewing it as a grant of summary judgment). . See id. at 91 n. 5 (citing Drake v. Hosley, 713 P.2d 1203, 1205 (Alaska 1986)). . See Wright v. State, 824 P.2d 718, 720 (Alaska 1992) (citing Moore v. State, 553 P.2d 8, 21, (Alaska 1976)). . See id. (citing State v. Pete, 420 P.2d 338, 341 (Alaska 1966); Ransom v. Haner, 362 P.2d 282, 285 (Alaska 1961)). : "Private property shall not be taken or damaged for public use without just compensation." Alaska Const. art. I, § 18. . See Alaska Const, art. VIII, § 11 ("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."); AS 38.05.195 ("Rights to deposits of minerals subject to AS 38.05.185-38.05.275 in or on state land that is open to claim staking may be acquired by discovery, location and recording as prescribed in AS 38.05.185 -38.05.275. The locator has the exclusive right of possession and extraction of the minerals subject to AS 38.05.185-38.05.275 lying within the boundaries of the claim."); Welcome v. Jennings, 780 P.2d 1039, 1042 (Alaska 1989) (noting that "[a] person acquires the exclusive right to possess and extract minerals on state land by discovery, location and recording"). .See Anchorage v. Sandberg, 861 P.2d 554, 557 (Alaska 1993) (citing Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014-19, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992)). . Id. (citing Lucas, 505 U.S. at 1019 n. 8, 112 S.Ct. 2886). . Cannone v. Noey, 867 P.2d 797, 800 (Alaska 1994) (quoting Sandberg, 861 P.2d at 557). . See Conoco, Inc. v. United States, 35 Fed.Cl. 309, 317 (1996). . See id. . See id. at 318. . See id. at 327. . See id. at 327, 336. . See Eastern Minerals Int'l, Inc. v. United States, 36 Fed.Cl. 541, 545 (1996). . See id. . See id. . See id. at 550. . Id. at 545. . Id. at 550. . See id. at 548-52. . Cf. Aspen Exploration Corp. v. Sheffield, 739 P.2d 150, 162 n. 27 (Alaska 1987) (noting in footnote that when plaintiff's ability to obtain offshore prospecting rights was dependent on grant of permit and plaintiff's application for permit was by law subject to possible denial, plaintiff had no vested right in permit and could not complain of deprivation of any substantive property right when permit was denied); cf. also Owens v. Beard, 829 F.Supp. 736, 739 (M.D.Pa.1993) (stating that if decision-making process is discretionary, i.e., statutes and regulations establish guidelines without mandating a particular result, there is no protectable interest in achieving a particular outcome to support a due process claim). .See Veal v. Newlin, 367 P.2d 155, 157 n. 8 (Alaska 1961); see also Alaska R. Civ. P. 61. . Clawson, 24 Cl.Ct. at 370 (citing Bennett v. Kentucky Dep't of Educ., 470 U.S. 656, 669, 105 S.Ct. 1544, 84 L.Ed.2d 590 (1985)). . Id. (quoting Last Chance Mining Co. v. United States, 12 Cl.Ct. 551, 556 (1987), aff'd, 846 F.2d 77 (Fed.Cir.1988)). . See Davis v. Dykman, 938 P.2d 1002, 1006 (Alaska 1997). .Mortvedt v. State Dep't of Natural Resources, 858 P.2d 1140, 1142-43 (Alaska 1993) (citations omitted) (quoting Municipality of Anchorage v. Schneider, 685 P.2d 94, 97 (Alaska 1984)). . See supra Part III.B. . State, CSED v. Wetherelt, 931 P.2d 383, 390 n. 13 (Alaska 1997) (quoting Darling v. Standard Alaska Prod., 818 P.2d 677, 680 (Alaska 1991)). . 11 AAC 86.221(e) provides in relevant part that "[i]f a locator fails to make a timely rental payment, the claim or leasehold location will be considered abandoned under AS 38.05.265." Prior to its amendment in 1997,'AS 38.05.265 provided in relevant part that, Failure to properly record a certificate of location or a statement of annual labor, file with the director within the time prescribed a lease application, pay any required annual rental, pay any required production royalty, or keep location boundaries clearly marked as required by AS 38.05.185 — 38.05.275 and by regulations adopted under these sections constitutes abandonment of all rights acquired under the mining claim, leasehold location, lease, or site involved, and the claim, location, lease, or site is subject to relocation by others. .See AS 09.50.250(3).

10365927

STATE of Alaska, Petitioner, v. UNITED COOK INLET DRIFT ASSOCIATION, Kenai Peninsula Sportsman's Association, Ronald Cox, Timothy Moore, and Henry Wojtusik, Respondents

State v. United Cook Inlet Drift Ass'n

1991-08-13

No. S-4649

378

379

815 P.2d 378

815

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

Before MATTHEWS, COMPTON and MOORE, JJ.

STATE of Alaska, Petitioner, v. UNITED COOK INLET DRIFT ASSOCIATION, Kenai Peninsula Sportsman’s Association, Ronald Cox, Timothy Moore, and Henry Wojtusik, Respondents.

STATE of Alaska, Petitioner, v. UNITED COOK INLET DRIFT ASSOCIATION, Kenai Peninsula Sportsman’s Association, Ronald Cox, Timothy Moore, and Henry Wojtusik, Respondents. No. S-4649. Supreme Court of Alaska. Aug. 13, 1991. Sarah McCracken Gay, Asst. Atty. Gen., for petitioner. Michael Stanley, Juneau and Arthur Robinson, Robinson & Beiswenger, Soldotna, for respondents. Before MATTHEWS, COMPTON and MOORE, JJ.

434

2726

ORDER On consideration of the emergency petition for review, filed on July 30, 1991, the response to the petition, filed on August 2, 1991, and the reply to the response, filed on August 5, 1991, IT IS ORDERED: 1. The emergency petition for review is granted. 2. The temporary restraining order of July 24, 1991, is reversed for the reasons that follow. 3. In entering the temporary restraining order, the court required the respondents to show only that there are serious and substantial questions going to the merits of the case. That standard, however, 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. A.J. Industries, Inc. v. Alaska Pub. Serv. Comm'n, 470 P.2d 537, 540 (Alaska 1970); Alaska Pub. Utilities Comm'n v. Greater Anchorage Area Borough, 534 P.2d 549, 554 (Alaska 1975). 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 before a temporary restraining order or a preliminary injunction can be issued. Id. The trial court in this case failed to consider the injury to subsistence users which would result as a consequence of the issuance of the temporary restraining order. Subsistence users are given statutory priority over commercial users, AS 16.05.258(c), and the injury which they would suffer as a result of the injunctive relief is as irreparable as the injury which commercial fishermen might suffer if injunctive relief were not granted. In this circumstance, the court should not have ordered a temporary restraining order without finding that respondents probably would succeed on the merits of this case. 4. Although this case is now technically moot, we have decided to exercise discretionary review and issue this order as precedent for future similar cases. The issues are important and recurring and they may otherwise evade review. See Central Constr. Co. v. Home Indem. Co., 794 P.2d 595, 597 (Alaska 1990). RABINOWITZ, C.J., and BURKE, J., not participating.

12031718

Doris HARRIS and William Harris, her husband, Appellants, v. BARRETT & LESH, INC., a corporation, Appellee

Harris v. Barrett & Lesh, Inc.

1967-04-10

No. 754

331

335

426 P.2d 331

426

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Doris HARRIS and William Harris, her husband, Appellants, v. BARRETT & LESH, INC., a corporation, Appellee.

Doris HARRIS and William Harris, her husband, Appellants, v. BARRETT & LESH, INC., a corporation, Appellee. No. 754. Supreme Court of Alaska. April 10, 1967. James K. Tallman, Anchorage, for appellants. James K. Singleton and Eugene F. Wiles, of Delaney, Wiles, Moore & Hayes, Anchorage, for appellee.

2517

15490

OPINION Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ. RABINOWITZ, Justice. Appellant Doris Harris slipped and fell while shopping for groceries in appellee's store. She then sued appellee for personal injuries allegedly sustained as a result of the fall. At trial the jury returned a verdict in appellee's favor. Judgment was entered upon the verdict dismissing the action and awarding costs and attorney's fees to ap-pellee. Appellant's motion for new trial was subsequently denied and this appeal followed. We affirm the judgment which was entered below. Appellant's first specification of error is that the superior court erred in giving Instruction No. 7. This instruction reads as follows: The issues to be determined by you in this case are these: . First: Was the defendant negligent? ' If your answer to that question is 'no', you will return a verdict for the defendant. If your answer is 'yes', you will have a second issue to determine, namely: Was that negligence a proximate cause of any injury to the plaintiff? . If your answer to that question is 'no', plaintiff is not entitled to recover, but if your answer is 'yes', you then must find on a third question: , Was the plaintiff guilty of contributory negligence? . If your answer to that question is 'yes', your verdict must be for the defendant, but if your answer is 'no', and you previously have found that negligence on defendant's part was a proximate cause of plaintiff's injury, you then must fix the amount of plaintiff's damages and return a verdict in her favor. • ,As indicated in this instruction, you should first determine the question of liability before you undertake to fix an amount that would compensate for damage, if any, found to have been suffered. Appellant claims this instruction placed "too great a burden" upon her because it was repetitious and emphasized "the burdens" which were placed upon her in other instructions. We hold that the instruction was not erroneous. It correctly outlined the issues which the jurors were asked to decide, and also properly informed them that they were to consider the issue of liability before they determined damage questions. In our opinion this instruction was not repetitious nor did it overly emphasize appellant's burdens of proof in regard to appellee's negligence and the proximate cause issue. Appellant next argues that the superior court erred in instructing the jury on the issue of contributory negligence. Instruction No. 8 of the court's instructions read in part as follows: Mention has been made of contributory negligence. The general rule of law applicable to cases like the one before you is that the plaintiff is not entitled to recover for injuries claimed to have been sustained by reason of the negligence of the defendant if the plaintiff himself was guilty of contributory negligence, so that the injuries for which suit is brought were the proximate result of the concurring negligence of both the plaintiff and defendant. The trial court also gave the jury two additional instructions which are pertinent to the disposition of appellant's second specification of error. In Instruction No. 13 the jurors were informed that: Negligence is the doing of an act which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, actuated by those considerations which ordinarily regulate the conduct of human affairs. It is the failure to use ordinary care in the management of one's property or person. In regard to the contributory negligence issue, the jurors were further told in Instruction No. 14 that contributory negligence is an affirmative defense, and must be proven by a preponderance of the evidence. If the defendant does not preponderate in the evidence, then you must not consider the question of contributory negligence. Appellant argues that Instruction No. 8 should not have been given because "no evidence was introduced by the defendant on the question of contributory negligence and there was no evidence from which the jury could infer that the plaintiff was contributorily negligent in this case." Appellant's first contention is disposed of by our decision in Smith v. Boen-ICoon & Egge-Cummins Constr. Co. In that case we said: Counsel says, in effect, that since the plaintiff had proved negligence on the part of the defendant and the defendant introduced no evidence of contributory negligence, the court should have found for the plaintiff. That argument overlooks the rule of law that a defendant who has pleaded the defense of contributory negligence may establish the defense by the plaintiff's own evidence or by inferences favorable to the defendant which appear from the presentation of the plaintiff's case either on direct or cross-examination. [Citing Bellows v. City and County of San Francisco, 106 Cal.App. 2d 57, 234 P.2d 729, 730 (1951); Johnston v. Vukelic, 67 Wyo. 1, 213 P.2d 925, 930 (1950); 2 Harper and James, Torts § 22.11, at 1236 (1956).] Here appellee had pled the affirmative defense of contributory negligence, and under our holding in Smith could establish this defense from appellant's own evidence or favorable inferences therefrom. In regard to the second facet of appellant's argument that the evidence did not justify submission of the contributory negligence issue to the jury, our decision in City of Anchorage v. Steward is apposite. In that case we stated: The city's main point on appeal is that the trial judge erred in ruling that plaintiff was not guilty of contributory negligence and that he arrived at the ruling because of his original mistaken belief that plaintiff must have had actual knowledge of the existence of the pipe stub before he could be held to be guilty of contributory negligence. The undisputed testimony of three witnesses, including that of the plaintiff, was that the pipe stub was plainly visible. Photographs admitted into evidence bear out this testimony. The fall occurred around 9 a. m. It was winter daylight, and the testimony of witnesses, including plaintiff, was that there was sufficient light to see well. Admittedly plaintiff was not looking at the sidewalk at the time he stumbled. To determine whether or not the plaintiff was guilty of contributory negligence the trial judge should have considered whether the pipe stub was such an obvious defect that a reasonably careful and prudent person under the same circumstances would have seen and avoided it in crossing the sidewalk. If the trial judge found that the plaintiff's conduct measured up to that of a reasonably careful and prudent person under the same circumstances then a holding that plaintiff was free of contributory negli gence would have been proper. Otherwise the trial judge should have held that plaintiff's conduct fell below that of the reasonable man and that he was con-tributorily at fault. We have previously held that a jury question is presented as to negligence or contributory negligence when fair-minded jurors could differ as to the facts pertaining to these issues. In our opinion the record supports the trial judge's conclusion that the issue of contributory negligence was one that should be submitted to the jury for determination. We hold that a jury question was presented as to whether a reasonably careful and prudent person, under the .circumstances of the case at bar, should have seen and avoided the substance on appellee's floor which purportedly caused her fall. In the case at bar the very evidence which permitted appellant to reach the jury on the question of appellee's negligence also established the basis for submission of the contributory negligence issue. We hold that the issue of contributory negligence was properly submitted to the jury in this case. Appellant's third contention in regard to contributory negligence is that a finding of contributory negligence does not preclude the jury from returning a verdict in plaintiff's favor. Appellant's counsel subsequently amplified this position during oral argument, at which time he requested this court to deviate from its previous holdings and adopt a comparative negligence rule for this jurisdiction. We are not inclined to rule upon such a significant policy matter when it has been so casually treated by appellant's counsel. In Ahlstrom v. Cummings we said: As their last two points appellants argue that the trial judge erred in refusing to admit certain hospital records into evidence, and that the jury's verdict was the result of passion or prejudice. We need not decide the question as to the admissibility of the hospital records, since they related to the issue of damages which passed out of the case when the question of liability was resolved in appellees' favor. As to the verdict, there is nothing to indicate that the jury was ruled by passion or prejudice. Appellant's four remaining specifications of error all deal with errors pertaining to damage issues. We consider Ahlstrom controlling here since the liability issue was resolved against appellant and in our view, the record does not establish that appellant's position as to the liability issue was prejudiced by the trial court's actions in regard to the damage issues. The judgment entered below is affirmed. . Appellant's specifications of error in this appeal are substantially identical to the grounds which were urged in support of her motion for new trial. . This instruction also dealt with degrees of negligence. In this regard Instruction No. 8 reads in part: Under the rule mentioned, the degree of negligence of the parties is of no consequence; that is to say, if you find that the plaintiff was negligent, and his negligence proximately contributed to the accident and to the reuslting injuries, even though the negligence of the plaintiff was slight and the negligence of the defendant was great in proportion, still, if you find that the negligence of the plaintiff proximately contributed to the accident and the resulting .injuries, the plaintiff is not entitled to recover because recovery is barred by contributory negligence. . 384 P.2d 283, 286 (Alaska 1963). . 374 P.2d 737, 738 (Alaska 1962). (Footnote omitted.) . In Saslow v. Rexford, 395 P.2d 36, 41 (Alaska 1964), it was stated in part that: Contributory negligence has been defined as consisting of 'conduct which involves an undue risk of harm to the person who sustains it.' It is one's failure to exercise reasonable prudence for his own safety when he perceives danger to himself created by another's negligence. See also Van Reenan v. Golden Valley Elec. Ass'n, 379 P.2d 958, 962 (Alaska 1963). . Mallonee v. Finch, Opinion No. 337, 413 P.2d 159, 162 (Alaska 1966); Otis Elevator Co. v. McLaney, 406 P.2d 7, 9-10 (Alaska 1965); Crawford v. Rogers, 408 P.2d 189, 194 (Alaska 1965); Saslow v. Rexford, 395 P.2d 36, 41 (Alaska 1964); McCoy v. Alaska Brick Co., 389 P.2d 1009, 1010 (Alaska 1964). . Appellant's own testimony was that she had been shopping in appellee's store for approximately forty minutes prior to the accident. That she slipped and fell while reaching for some Kleenex towels after pushing a loaded food cart to that location. After she was down she noticed that she had fallen on a sticky substance (i. e., syrup). Just prior to falling, appellant's testimony establishes that she had not been looking at the floor in the aisle in which she was shopping. After she had fallen, appellant observed the existence of clearly visible tracks (from the syrup) running up and down the aisle she had fallen in for distances of at least fifteen feet from the point of her fall. . In Mitchell v. Knight, 394 P.2d 892, 896 (Alaska 1964) (Footnote omitted.), we said: Appellant contends that it was error for the court to give instruction No. 11. That portion of the instruction relating to degrees of negligence and slight negligence on the part of the appellant might have the tendency to mislead the jury into believing that appellant was subject to a higher standard of care than appellees, and thus that less proof would be required to establish appellant's contributory negligence than appellees' negligence. For this reason we disapprove of the instruction. However, we find no prejudice to appellant in this instance because instruction No. 10 adequately dealt with the subject of contributory negli-Jence according to the conventional standard of the ordinarily prudent person, and the evidence of contributory negligence was such that the jury could have found apiiellant guilty of contributory negligence by applying the normal standard of care demanded by ordinary prudence. In note 2 supra that part of the court's Instruction No. 8 which contains language we disapproved of in the Mitchell case is set out. Here, as in that ease, we find' no prejudice to appellant as Instructions No. 13 and 14 adequately dealt with the contributory negligence issue under the Mitchell standard. . Appellant relies on two cases from Arizona in support of her argument that the jury can still find for a plaintiff despite the element of contributory negligence. See Krek v. Briel, 3 Ariz.App. 120, 412 P.2d 301, 304 (1966) and Layton v. Bocha, 90 Arfe. 369, 368 P.2d 444, 445 (1962). In tlio latter case it was pointed out that the Arizona constitution, article 18, § 5, A.B..S. provides: "The defense of contributory negli- . gence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury." . The court in the Layton case also stated that the jury should be instructed "that in the event of contributory negligence tlie jury 'should' find for the defendant [since] [t]his form more accurately advises the jury of its duty." As we have indicated, we have determined not to pass upon the soundness, or applicability of, those Arizona decisions. This court's past decisions have clearly established that a plaintiff's own contributory negligence bars any right of recovery. . 388 P.2d 261, 262-263 (Alaska 1964). . Appellant asserts as error the superior court's instructions in which the jurors were told that they were not to award any damages for permanent injury, and that they were to disregard all testimony relating to an "alleged miscarriage and hysterectomy operation performed' on the plaintiff by Dr. Sedwick." Appellant further argues that certain medical bills were wrongfully excluded from evidence, and the court erred in striking all "testimony pertaining to surgery and hospitalization by plaintiff for her female troubles .Cisneros v. Cities Serv. Oil Co., 334 3T.2d 232, 233-234 (2d Cir. 1964); Holli-day v. Great Atl. & Pae. Tea Co., 256 F.2d 297, 300 (8th Cir. 1958). We find no merit in appellant's suggestion that Ahlstrom is inapplicable because the jury could have found no damages under the court's instructions and rulings as to damage issues and yet have decided the liability issue in favor of appellant. Review of the record refutes this contention for the jury had before it appellant's evidence of lower back injuries and medical expenses related thereto. Nor do the verdict forms, furnished to the jury, lend any support to this contention.

10365483

Allan G. DOYLE, Jr., Appellant, v. Patricia A. DOYLE, Appellee

Doyle v. Doyle

1991-07-26

No. S-3780

366

373

815 P.2d 366

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.

Allan G. DOYLE, Jr., Appellant, v. Patricia A. DOYLE, Appellee.

Allan G. DOYLE, Jr., Appellant, v. Patricia A. DOYLE, Appellee. No. S-3780. Supreme Court of Alaska. July 26, 1991. Robert John, Law Offices of William R. Satterberg, Jr., Fairbanks, for appellant. Robert B. Downes, Law Offices of Robert B. Downes, P.C., Fairbanks, for appel-lee.. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

4247

25798

OPINION BURKE, Justice. Allan G. ("Grant") Doyle, Jr. and Patricia Doyle were married in October 1966 and divorced in December 1989. The marriage produced two children: a daughter, emancipated at the time of the divorce; and a son, Allan G. Doyle III (Allan), born April 25, 1972. The Doyles separated in July 1987 and Patricia moved into a place of her own. Allan, according to his own preference, remained with Grant in the family home. Patricia filed a divorce complaint in March 1989. At the end of October and the beginning of November 1989, the superior court, Judge Richard D. Saveli, held a two day trial. The court entered an order on January 4, 1990, nunc pro tunc to December 29, 1989, granting a decree of divorce and addressing all other issues in the case. As to property division, the trial court generally adopted Patricia's version of personal and real property valuation, and then allocated individual items of property between Grant and Patricia in an explicit attempt to divide the total in half. The trial court ordered Grant to pay Patricia punitive substitution awards for certain items of missing personal property. The court further ruled against Grant in its child support and attorney's fees awards. Grant appealed each aspect of the superior court's decision. I The trial court has broad discretion in property division cases. AS 25.24.-160(a)(4); Moffitt v. Moffitt, 749 P.2d 343, 346 (Alaska 1988). When a marriage is one of long duration and the parties have commingled their assets, property division in divorce proceedings essentially consists of three steps: (1) determining what property is available for distribution; (2) placing a value on that property; and (3) allocating the property equitably. Moffitt, 749 P.2d at 346. If in the course of determining what property is available the trial court makes legal determinations, those legal determinations are reviewable under the independent judgment standard. Id. Otherwise, we review a trial court's determinations as to property available for distribution under the abuse of discretion standard. Id. The second step, valuation of available property, is usually a factual determination to be upset on appeal only if there is clear error. Id. (citing Alaska R.Civ.P. 52(a)). The final step, a trial court's equitable allocation of property, is reviewable under the abuse of discretion standard, and this court will not disturb the trial court's allocation "unless it is clearly unjust." Id. (quoting Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska 1983)). Additionally, the trial court must render findings of ultimate fact that support any decreed property division; the findings must be explicit and sufficiently detailed to give this court a clear understanding of the basis of the trial court's decision. Lewis v. Lewis, 785 P.2d 550, 552 (Alaska 1990); Lang v. Lang, 741 P.2d 1193, 1195 (Alaska 1987); Merrill v. Merrill, 368 P.2d 546, 547-48 (Alaska 1962). Grant appeals three aspects of the trial court's division of property. We consider each in turn. A Grant first argues that the trial court improperly chose the date of separation as the date on which to value the marital property for division purposes. The choice of valuation date especially affected division of the Doyles' real property, which consisted of three parcels — two in Fairbanks (the family residence and an unimproved lot) and one in Port Charlotte, Florida. In 1985, the Doyles purchased the family home for almost $160,000 and the unimproved Fairbanks lot for $25,000. By the summer of 1987, when the Doyles separated, the family home had depreciated significantly. Evidence at trial indicated that the home continued to depreciate in 1988 and 1989, so that at the trial date in December 1989 it was worth only about $118,000. Evidence also indicated that the unimproved lot was worth about $20,000 at the trial date. The court awarded both Fair banks properties to Grant, but valued them in its calculations as of date of separation: the family home at $127,500 and the unimproved lot at $26,000. In contrast, the Florida property had appreciated significantly during 1989. The court awarded that property to Patricia, valuing it, apparently as of date of separation, at $10,000. Grant argues that the trial court's use of separation date as valuation date effectively overvalued the Fairbanks properties he received and undervalued the Florida property Patricia received. As a result, Grant concludes that the court awarded Patricia approximately $25,000-$35,000 that does not appear in the court's calculations. We do not necessarily agree with the monetary figure that Grant offers as the erroneous result of the trial court's misvaluation. We do agree with Grant's assertion of error, however, inasmuch as he argues that the trial court improperly chose to value the divisible marital property according to its worth on the date of the Doyles' separation. As we recently made clear in Ogard v. Ogard, 808 P.2d 815, 819 (Alaska 1991), the date on which the trial court values marital property generally "should be as close as practicable to the date of trial." In special situations, the trial court may value property as of the date of separation of the parties. See id. at 820. However, "[i]n that event, there should be specific findings as to why the date of separation is the more appropriate choice for valuation." Id. In the present case, the trial court did not explain why it considered the date of separation to be an appropriate valuation date. Thus, on remand the trial court should value all of the marital property, including the real property, as of the date of the trial, unless the court specifically finds that a special situation requires it to impose a different valuation date. B Grant next asserts that the trial court committed clear error when it valued the parties' personal property according to purchase price values that Patricia compiled. Grant argues that the trial court should have employed the fair market value of personal property in its calculations. Grant also argues that the trial court could have estimated fair market value from the testimony that his expert witness offered. We have held that "[i]n 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). In Nelson, the asset at issue was a corporation, and we rejected a "book value" appraisal of the corporation's worth because it bore "little relationship to [the corporation's] fair market value." Id. at 970. Also, in Richmond v. Richmond, 779 P.2d 1211 (Alaska 1989), we rejected a "replacement cost" valuation of office equipment and ordered the trial court on remand to calculate the fair market value. Id. at 1214-15. The personal property in the present case generally resembles the fungible office equipment at issue in Richmond. Thus, we conclude that fair market value is the appropriate index of valuation for the personal property here. Likewise as in Richmond, however, the fair market value evidence in this case, offered by Grant's witness, appears flawed. Indeed, the expert witness admitted on cross examination that she really did not understand the meaning of "fair market value." On remand the trial court should calculate, in light of all available evidence, the fair market value of the personalty at the time of the trial, unless special circumstances require another valuation date. See id. at 1214-15. C When the Doyles married in 1966, Grant had been in the Army approximately one year. In August 1985, almost exactly twenty years after joining the Army, Grant retired with the rank of major and began to receive a pension. The pension consisted of two components: $1,073 per month ordinary retirement pay and $413 per month disability pay. Upon dissolution of the marriage, the trial court awarded Patricia 47.5% — or, one-half (½) of nineteen-twentieths (19⅛) — of the ordinary, nondisability portion of Grant's military pension. Grant contests this award. We disagree with Grant's assertion that the trial court abused its discretion on this point. We repeatedly have held that, under all applicable federal and state laws, military pensions are divisible marital property upon dissolution of marriage. Lang, 741 P.2d at 1196 (trial court can award former spouse part of a military pension "if necessary to effectuate an equitable property division"); see also Chase v. Chase, 662 P.2d 944, 945-46 (Alaska 1983) (citing 10 U.S.C. § 1408(c)(1)). Thus, the trial court's decision to include Grant's military pension as part of the divisible marital property here was not an abuse of discretion. The trial court also did not abuse its discretion in its calculation of the precise portion of Grant's pension that Patricia should receive. The trial court calculated Patricia's share of the ordinary pension as ½ of 19⅛ because Grant and Patricia were married for approximately nineteen of the twenty years that Grant served in the Army. In Chase, the divorcing husband also had entered the military approximately one year prior to the marriage and had retired after twenty years of service. Chase, 662 P.2d at 945. We upheld an award in Chase of "one-half (½) of nineteen-twentieths (⅜) of [the retiree's] military retirement pay." Id. at 946. We likewise uphold the trial court's use of the factor ¾⅛ of 19⅛ here because it fairly represents the wife's eligibility for a share of the pension in proportion to the number of years the parties' marriage and the husband's military service overlapped. II Soon after Patricia filed for divorce, tension between her on the one hand, and Grant and Allan on the other, turned to overt hostility. This hostility was especially apparent as the family attempted to achieve an interim division of personal property. At an initial hearing in the case on May 10,1989, the superior court entered a temporary order instructing Grant to relinquish certain items of personal property to Patricia. Allan and Grant placed the personal property outside of their home, under a tarp, and instructed Patricia to come for the property over Memorial Day weekend of 1989. When Patricia arrived to retrieve the property, some of the items the court had ordered Grant to relinquish were not under the tarp. Grant and Allan were not home. Someone acting on Patricia's behalf entered an open window and unlocked the house, allowing Patricia to take several items from inside. On the next major holiday of the year, July 4, 1989, Allan entered Patricia's home while she was not there and removed several items of personal property. Allan left a note indicating that his act was reprisal for Patricia's Memorial Day intrusion. Among the items missing from Patricia's home after Allan's visit were her gold wedding band, a gold necklace, and a gold nugget. As part of its decree in this case, the trial court ordered the missing three items of gold returned to Patricia. "If they are not returned within [fifteen days of this decree]," stated the court, "[Grant] shall pay [Patricia], within 60 days, $1,000 per item not returned." Grant argues that the trial court erred by imposing the $1,000 per item punitive substitution fine upon him. We agree. The trial court's own explanation for its punitive order is not particularly clear. Some passages of the trial court's statement of decision on the record suggest that the court wished to punish Allan for his misconduct by punishing Grant. Other passages suggest that the court intended to punish Grant for his failure to control Allan in the past. As such, the court's imposition of the punitive awards might be characterized as an ill-advised attempt to exercise its criminal contempt power. See AS 09.50.010(5); Diggs v. Diggs, 663 P.2d 950, 951 (Alaska 1983) (criminal contempt citations appropriate "in cases involving past wilful flouting of the court's authority"). The more plausible and defensible explanation for the trial court's punitive awards, however, is that they constitute an exercise of the court's civil contempt power, by which the court meant to coerce Grant to abide, in the future, by the order to deliver the three missing items to Patricia. See L.A.M. v. State, 547 P.2d 827, 832 (Alaska 1976) (attempt to coerce future conduct distinguishes civil contempt from criminal contempt, which punishes past conduct); see also Continental Ins. Co. v. Bayless & Roberts, Inc., 548 P.2d 398, 405 (Alaska 1976) (elements of both punitive and remedial punishments are present in most civil contempt awards). Such use of the civil contempt power in itself is not an abuse of discretion. See, e.g., Continental Ins. Co., 548 P.2d at 405. We agree with Grant, however, that the trial court's choice of an arbitrary $1,000 per item award constituted an improper exercise of the contempt power in this case. Alaska Statute 09.50.040 states that the trial court may both punish for contempt and "give judgment in favor of the party aggrieved" in a damages amount "sufficient to indemnify that party and to satisfy the costs and disbursements of that party." The trial court here did not allocate any portion of its punitive award as a penalty payable to the court. Rather, all of the punitive award amounts were payable to Patricia, the "party aggrieved" within the meaning of AS 09.50.040. Moreover, we have interpreted AS 09.50.040 to mean that there must be a correlation between the aggrieved party's actual damages and costs and the amount assessed as damages. Hartland v. Hartland, 777 P.2d 686, 648 (Alaska 1989). On the present record, we find no correlation between Patricia's actual loss of three unique items and the three identical amounts that the court assessed against Grant. Thus, the trial court abused its discretion by imposing the specific award amounts payable to Patricia. Ill Grant next challenges the trial court's child support award, arguing that the trial court erred both in its decision not to make the award retroactive to the date of separation and in its determination of the monthly amount Patricia must pay. We find Grant's first argument deficient for several reasons; we agree, however, with his second argument. The question whether the trial court properly refused to make its child support award retroactive to the date of separation is more complex than Grant acknowledges. There are actually two time periods at issue. Initially, we note that Judge Hodges issued a temporary order in the case on May 10,1989, in which he directed Grant to pay Patricia $400 per month. As Patricia's counsel later argued, Judge Hodges apparently considered many factors before deciding upon the temporary $400 per month award. Among those factors was Grant's continuing support of Allan. Consequently, the trial court had sufficient reason to conclude that its child support award should not cover the period between May 10, 1989 and the date of dissolution. As to the second period in issue— the time between the date of separation in July 1987 and the temporary order in May 1989 — Grant's proper claim is in the nature of an action on a debt based on the parental duty to support a child. Ogard, 808 P.2d at 817 & n. 1; Matthews v. Matthews, 739 P.2d 1298, 1299 (Alaska 1987). Whether Grant deserves reimbursement from Patricia for any amount she, as a parent, owed for Allan's support during the separation period is an individual claim Grant did not raise below. Neither in his pretrial memorandum, nor at closing argument did Grant advance such a claim. "It is well established that matters not raised at trial will not be considered on appeal." Brooks v. Brooks, 733 P.2d 1044, 1053 (Alaska 1987). As a result, we decline to consider Grant's argument that the trial court erred by not ordering reimbursement to him for his support of Allan from July 1987 to May 1989. On the other hand, we agree with Grant's argument that the trial court erred in its calculation of a minimal award of $40 per month child support against Patricia. In its findings of fact and conclusions of law, the trial court stated that its award to Grant of child support for Allan was different than the amount Civil Rule 90.3 would normally require the court to award. See Alaska R.Civ.P. 90.3. The court explained: The reason for the departure . is based on the earning power disparity of the parties. In addition, due to Allan's closeness to the age of majority and the fact that visitation was effectively thwarted because of the son's emotional state, the Court is greatly concerned about the role that [Allan] was permitted to play and did play as he was allowed to become personally involved in this divorce. The dispositive question on review is whether any of the reasons listed above conform to the requirements of Civil Rule 90.3(c), which permits variance from the letter of Civil Rule 90.3 for "good cause upon proof by clear and convincing evidence that manifest injustice would result" without the variance. Alaska R.Civ.P. 90.-3(c)(1). Civil Rule 90.3 includes examples of exceptional circumstances that might amount to "good cause." See Alaska R.Civ.P. 90.-3(c)(1). In this case, none of the trial court's stated reasons for varying from the formulae of Civil Rule 90.3 resemble any of those examples of "good cause" offered in the Rule. Of course, the examples in Civil Rule 90.3 are not exhaustive. Coats v. Finn, 779 P.2d 775, 777 (Alaska 1989). The meaning of the term "good cause," however, is to "be determined by the context in which it is used." Id. That context, for Civil Rule 90.3 purposes, must focus first and foremost on the needs of the children. See Civil Rule 90.3, commentary at sec. 1(B). The trial court in this case showed no signs of such a focus. On the contrary, the court once again appears to have used its power improperly to punish Grant and Allan. As a result, the court did not vary from Civil Rule 90.3 in order to avoid the sort of "manifest injustice" that may justify a variance. We thus vacate and remand the support award for recalculation pursuant to Civil Rule 90.3. IY Finally, Grant argues that there was not a sufficient "disparity of earnings" between him and Patricia to support the trial court's award of $2,500 in partial attorney's fees to Patricia. We disagree. The relevant considerations for determining attorney's fee awards in divorce cases are the relative economic situation and earning power of each party. Hartland, 777 P.2d at 644. If the parties are in "comparable economic situations, each side should bear [its] own costs." Id. If not, then an award of attorney's fees in a divorce case is within the discretion of the trial court. Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1192 (Alaska 1987). Such an award "will not be disturbed on appeal unless it is 'arbitrary, capricious, manifestly unreasonable, or stems from an improper motive.' " Id. (quoting Brooks v. Brooks, 733 P.2d 1044, 1058 (Alaska 1987); Tobeluk v. Lind, 589 P.2d 873, 878 (Alaska 1979)). Record evidence indicates that Grant's income at the time of the divorce decree, including his part of the retirement pension, was approximately $62,000 per year. Evidence further indicates that Patricia's income, also including her part of the pension, was approximately $40,000 per year. Additionally, Grant has a B.S. degree in civil engineering, extensive experience as an engineer, and current employment as an engineer. In contrast, Patricia has two A.A. degrees, one in liberal arts and one in dental hygiene. She has worked off and on since 1981 as a dental hygienist. We find no abuse of discretion in the trial court's conclusion that Grant and Patricia were not in comparable economic situations. Both the actual earnings and earning powers of the parties are significantly disparate. We thus affirm the trial court's award of partial attorney's fees to Patricia. The judgment is VACATED in part, AFFIRMED in part, and REMANDED to the superior court for proceedings consistent with this opinion. . For the law governing property division when a marriage in divorce proceedings is of short duration and without significantly commingled assets, see Rose v. Rose, 755 P.2d 1121, 1125 (Alaska 1988). . The trial court computed a negative equity value of $13,714.55 for the family home by subtracting the amount still owed on the Doyles' mortgage at date of trial — $141,214.55—from the property value at date of separation. Grant's argument essentially is that the negative equity value placed on his side of the ledger should have been larger. . The trial court valued the unimproved Fairbanks lot at $26,000 on the date of separation and then subtracted $2,500 still owed on the property at date of separation. Thus, the unimproved lot entered Grant's side of the ledger with a total value of $23,500. . The Doyles had purchased the Florida lot in 1970 or 1971 for $10,000. Grant's witness, a Florida real estate broker, testified that the lot probably was still worth only $7,000 to $10,000 in the summer of 1987. The broker also stated that real estate speculation in 1988 and 1989 had driven the value of the lot up to at least the $23,000 to $25,000 range. The trial court found the broker's testimony utterly unpersuasive as to value in 1989, yet sufficiently persuasive as to value in 1987 to justify imposition of the $10,-000 figure. .Because the trial court used the date of separation as valuation date, it ignored some payments on the Fairbanks properties that Grant made during separation. On remand, the trial court also should consider all payments during separation in its redivision of the marital property. . Grant's valuation expert described her understanding of the term "fair market value" as follows: I've always considered fair market value what anyone will pay for it. So . fair-market value then, to me if I'm a seller, would be what I can get for it. If I'm a dealer, then fair-market value is what I can sell it for. And they're two different things. By contrast, fair market value is a single, unitary figure, commonly defined as "[t]he amount at which property would change hands, between a willing buyer and a willing seller, neither being under compulsion to buy or sell and both having reasonable knowledge of the relevant facts." Black's Law Dictionary 597 (6th ed. 1990). . Grant argues that the trial court should have applied a factor of ½ of 225/240 — 225 being the number of months Grant alleges that the marriage overlapped his 240 months of military service. It is true that in Lewis v. Lewis, 785 P.2d 550 (Alaska 1990) we endorsed marital property division of a "contingent stock interest . similar to a nonvested pension" according to a monthly ratio. Id. at 556 & n. 9. However, in Lewis, the period in which the marriage and the accruing stock interest overlapped was quite brief — less than 18 months. Id. Thus, use of a monthly ratio in that case was sensible. Moreover, we note that the record in this case does not clearly support Grant's contention that his marriage overlapped his military service for precisely 225 months. . We respect the superior court's conclusion that Grant himself acted improperly during the period of his separation from Patricia. We note, however, that the trial court's power to consider one party's fault in marital property division cases is extremely limited. See AS 25.-24.160(b). On the other hand, we also note that a party's improper post-separation conduct, if specifically improper in respect to marital assets or debts, may be a relevant factor in determining a final, just division of the marital property. Oberhansly v. Oberhansly, 798 P.2d 883, 885 (Alaska 1990) (husband's willful mismanagement of marital assets during separation justified unequal division of property); Hartland v. Hartland, 777 P.2d 636, 642 (Alaska 1989) (same); Moore v. Moore, 499 P.2d 300, 303 & n. 3 (Alaska 1972) (in dividing marital property, court properly considered wife's appropriation of marital funds during separation); see also Merrill, 368 P.2d at 547 n. 4 (providing basis for decisions in Oberhansly, Hartland and Moore). Thus, upon remand, the trial court may consider, in its final property division determination, the extent to which Grant was at fault for any misappropriation of marital assets in the case. . Grant, of course, properly would have received a hearing to show cause why the court should not levy the contempt awards against him. Alaska R.Civ.P. 90(b). At such a hearing, the trial court could have considered further the question whether Grant properly could be held in contempt for not returning items allegedly misappropriated by Allan. . When the trial court announced its child support decision, Grant's counsel inquired whether the court's award was retroactive to the date of separation. The court said that the award was not retroactive. That simple question-and-answer exchange, initiated after the court had determined a support award and with no reference to any prior argument in the case, Was as close as Grant came to raising the question of a debt owed him based on the parental duty to support a child. . Grant earned $50,404 in 1988. His share of his full disability pension and his part of the ordinary retirement pension after its division by the trial court amounted to approximately $11,-716 per year. . Patricia earned $34,200 in 1988. The trial court award of ½ of l9Ao of Grant's ordinary pension equaled approximately $6,116 per year.

12036001

Virginia L. GLASGOW, Appellant, v. Charles B. GLASGOW, Appellee

Glasgow v. Glasgow

1967-04-24

No. 749