Datasets:

free-law

/

Caselaw_Access_Project

like 52

Follow

FreeLaw 9

10586214

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

State v. Smith

1966-07-25

No. 676

252

254

417 P.2d 252

417

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:34:22.887079+00:00

CAP

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

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

STATE of Alaska, Appellant, v. William J. SMITH, Appellee. No. 676. Supreme Court of Alaska. July 25, 1966. Thomas E. Fenton, Dist. Atty., and William H. Fuld, Asst. Dist. Atty., Fairbanks, for appellant. Edward R. Niewohner of Boggess, In-graham & Niewohner, Fairbanks, for ap-pellee. Before: NESBETT, C. J., DIMOND and RABINO WITZ, JJ.

1542

9123

OPINION DIMOND, Justice. In a complaint filed in the district magistrate court by a state police officer, ap- pellee was charged with the misdemeanor of pointing a firearm in public in violation of AS 11.55.050. Later the state filed a motion to dismiss the complaint and to substitute in its place an information charging appellee with the crime of pointing a firearm in public. The motion was granted. Appellee was found guilty by a jury in the magistrate court. On appeal, the superior court vacated the judgment of conviction. The court reasoned that under Magistrate Criminal Rule 1 a complaint is the only prescribed form for gaining jurisdiction over the subject matter of the action and the only recognized form of pleading upon which a trial in the magistrate court may proceed, that since the state dismissed the complaint and filed an information in its place there was no longer any complaint upon which a trial before the magistrate could be had, that a trial in the magistrate court without a complaint was a nullity, and therefore that the judgment of conviction entered by the magistrate court was entered without authority and was void. The state has taken an appeal to this court, raising the sole question of whether it is proper to file an information in a magistrate court as a substitute for a complaint which was used to commence a criminal action. Magistrate Criminal Rule 1 contemplates not only that the verified complaint be the basis upon which jurisdiction over the subject matter of a criminal action is obtained, but also that it constitutes the pleading by which the offense charged be prosecuted. The latter is clear from the fact that this rule provides that the complaint must be read to the defendant at his arraignment, that the defendant is called upon to plead to the complaint, and that at the trial the magistrate is required to define for the jury the nature of the offense charged and the statute or regulation upon which the complaint is based. But those provisions of the rules do not mean that when an information is filed in lieu of the complaint that the magistrate court loses jurisdiction of the subject matter of the offense charged so that the court's judgment is a nullity. The magistrate court acquires jurisdiction when the complaint is filed. Such jurisdiction thus obtained is not lost because thereafter the means of prosecuting the offense charged in the complaint is by way of an information rather than the complaint. Although Magistrate Criminal Rule 1 does not provide expressly for the use of an information, such use is not prohibited. Subdivision (j) of the rule expressly names the Rules of Criminal Procedure that are not applicable in a magistrate court, and Criminal Rule 7 is not mentioned. The test of whether an information may be utilized depends upon whether it is practicable, since the introductory paragraph to Magistrate Criminal Rule 1 provides that: "Wherever practicable the Rules of Criminal Procedure shall apply to criminal actions within the jurisdiction of district magistrate courts." We cannot say that the application of Criminal Rule 7 relating to informations would in no case be practicable in a magistrate court. If an information is filed in a case in the magistrate court, there is no reason why the verified complaint should be dismissed as it was here. But the fact that the complaint was dismissed does not mean that jurisdiction was lost and that the judgment of conviction of appellee was void. Jurisdiction over the subject matter of the action had been obtained when the complaint was filed. It was not intended that the substitution of the information in lieu of the complaint should amount to an acknowledgment that the complaint was without merit, or that the dismissal of the complaint should amount to a dismissal of the charge against appellee. In the circumstances all that the dismissal of the complaint meant was that the information should take the place of the complaint and should constitute the pleading by which the offense would thereafter be prosecuted. In support of the ruling of the superior court, appellee contends that the judgment of conviction was void because trial was had on the information, and the deputy magistrate who acted on the state's motion to substitute the information for the complaint had no authority to act. It is unnecessary for us to discuss the limitations on the authority of a deputy magistrate. If the deputy magistrate had no authority to act on the state's motion, then the deputy magistrate's attempt to grant the motion for substitution of the information for the complaint would have been ineffective. This would mean that the complaint would not have been dismissed, and that the offense charged would have been prosecuted by the complaint as appel-lee contends that it ought to have been. Finally, appellee contends that we are without jurisdiction to consider this appeal because of AS 22.05.010 which provides in part that "the state shall have no right of appeal in criminal cases, except to test the sufficiency of the indictment or information." Appellee argues that this appeal does not concern the sufficiency of the information but rather the permissibility of its use. This argument is without merit. The issue on this appeal is whether the information, substituted in place of the complaint, was adequate to answer the purpose . for which it was intended, i. e., to prosecute the offense with which appellee was charged. This raises a question of the'information's sufficiency. AS 22.05.010 does not bar this appeal. ¡ The judgment is reversed and the case remanded for further proceedings consistent with the views expressed in this opinion. . Effective July 1, 1966, the district magistrate court is known as the District Court for the State of Alaska, the dis-triet magistrates, as district judges, and the deputy magistrates, as magistrates. (SLA 1966, ch. 24) . AS 11.55.050 provides: Flourishing, pointing or discharging firearm in public place. A person who flourishes, points or discharges a firearm in a city, town, village or other community, or in or on a railway coach, steamboat or steamship, or in or near a park or public grounds, or at a public place, whether public in itself, or made public at the time by an assemblage of persons, is guilty of a misdemeanor, and upon conviction is punishable by a fine of not more than $500, or by imprisonment in a jail for not more than six months,.or by both. . Magis.Crim.R. 1 provides in part: Wherever practicable the Rules of Criminal Procedure shall apply to criminal actions within the jurisdiction of district magistrate courts. (a) Commencement of Actions. A criminal action is commenced by the filing of a complaint, verified by the oath of the officer or other person commencing the action, and the issuance of a warrant or summons, in the manner provided by Criminal Rules 3 and 4. When a complaint is made by any person other than a peace officer, no judgment of conviction may be given except upon a plea of guilty unless the person making the complaint, or the person injured by the offense charged, appear at the trial as a witness. (b) Arraignment and Plea. When the defendant is brought before the magistrate the complaint must be read to him, and he shall be furnished a copy of the complaint upon request. The magistrate shall inform the defendant of his right to counsel, to be admitted to bail, that he is not required to make a statement, and that any statement made by him may be used against him. If the defendant does not desire the aid of counsel he shall be called upon to plead to the complaint; if counsel is requested, a reasonable time shall be allowed for appearance of counsel and plea. Pleas shall be oral, in open court. The defendant may plead either guilty or not guilty, but if he refuse to plead the magistrate must enter the fact, together with a plea of not guilty on his behalf. (c) Trial. The date of trial shall be fixed by the magistrate at such time as will afford the defendant a reasonable opportunity for reparation [sic] and for representation by counsel. The trial shall be conducted as are trials in criminal cases in the superior court, except that the court shall not instruct the jury other than to define the nature of the offense charged and the statute or regulation upon which the complaint is based. .Note 3 supra. . See also Supremo Ct. R. 6 which provides : An appeal may be taken to this court from a final judgment entered by the superior court or a judge thereof in any action or proceeding, civil or criminal, except that the state shall have a right to appeal in criminal cases only to test the sufficiency of the indictment or information. . State v. Shelton, 368 P.2d 817, 820 (Alaska 1962).

10587564

EMPLOYERS' LIABILITY ASSURANCE CORP. and State of Alaska, Appellants, v. John BRADSHAW and Alaska Workmen's Compensation Board, Appellees

Employers' Liability Assurance Corp. v. Bradshaw

1966-08-25

No. 691

600

602

417 P.2d 600

417

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:34:22.887079+00:00

CAP

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

EMPLOYERS’ LIABILITY ASSURANCE CORP. and State of Alaska, Appellants, v. John BRADSHAW and Alaska Workmen’s Compensation Board, Appellees.

EMPLOYERS’ LIABILITY ASSURANCE CORP. and State of Alaska, Appellants, v. John BRADSHAW and Alaska Workmen’s Compensation Board, Appellees. No. 691. Supreme Court of Alaska. Aug. 25, 1966. Donald L. Craddick, of Faulkner, Ban-field, Boochever & Doogan, Juneau, for appellants. R. J. Annis, of Robertson, Monagle, East-augh & Annis, Juneau, for appellees.

1148

6788

OPINION Before NESBETT, C. J., and DIMOND and RABINO WITZ, JJ. DIMOND, Justice. On June 27, 1962, while in the course of his employment as a state police officer, appellee tripped and fell to the ground striking his left shoulder, head and neck. A claim for workmen's compensation on account of the injuries suffered from the fall was not filed until March 2, 1965,'more than two and one-half years after the accident. The main question presented in this litigation is whether the claim was timely filed. The Alaska Workmen's Compensation Board held that it was and awarded appellee temporary total disability compensation. The Board's decision was affirmed on appeal to the superior court. A further appeal has been taken to this court by the appellants. Shortly after the accident, on July 2, 3 and 5, 1962, appellee received chiropractic treatment for acute myositis. No x-rays were taken by the chiropractor. About a month later appellee's neck started hurting again and he started getting headaches. On December 2, 1963 appellee was examined by Dr. Haggland, an orthopedic surgeon. According to Dr. Haggland's brief report to the Board, appellee was seen by the doctor "with a complaint referable to his right shoulder, diagnosed as a subdel-toid and cuff irritation and not a true bursitis. He was treated conservatively by a medication." According to appellee, in his testimony before the Board, he had complained to Dr. Haggland about a pain that would start in the junction of his left shoulder and neck and go to the top of his head. Dr. Haggland denied having any record that he had seen appellee "at all about his neck". No x-rays were taken by Dr. Hagg-land. On May 2, 1964 appellee was examined by Dr. Meyer, an associate of Dr. Hagg-land. According to Dr. Haggland's report appellee had seen Dr. Meyer "about his ear and an occasional rare headache as part of his symptom but nothing referable to his neck." According to appellee, he had seen Dr. Meyer regarding the same pain he had seen Dr. Haggland about, i. e., a pain that started in the junction of his left shoulder and traveled up to the top of his head. Again, the record does not indicate that any x-rays were taken. Appellee was next examined on December 2, 1964 by Dr. Wilde who took x-rays of appellee's neck. Dr. Wilde advised ap-pellee that he had suffered a broken neck and that the cause of his pain and discomfort was cervical spondylosis. Appellee next consulted Dr. Moore, an orthopedic surgeon. On January 14, 1965, Dr. Moore submitted a report in which he diagnosed the neck pains as a "flexion and extension injury of the neck in the Spring of 1962." Appellee's claim for compensation was filed on March 2, 1965. On May 28, 1965, Dr. Clawson, the head of the Division of Orthopedic Surgery at the University of Washington Hospital, diagnosed the injury as a "cervical spondylosis with nerve root pressure at G-7, possibly C-6," and recommended that treatment should be in the "form of cervical spine fusion and possible foraminotomy if necessary." The Alaska Workmen's Compensation Act provides in part: The right to compensation for disability under this chapter is barred unless a claim for it is filed within two years after the employee has knowledge of the nature of his disability and its relation to his employment and after disablement. It is true that appellee experienced intermittent but continuing headaches and pain in his shoulders and neck for a period of over two years after the accident of June 27, 1962. But there is substantial evidence in the record showing that until appellee had consulted Dr. Wilde in December 1964, which was the first time that x-rays were taken, appellee had not been presented with a medical diagnosis of the condition of his neck. Until appellee saw Dr. Wilde in December 1964, he had no way of knowing what was creating the pain and discomfort and its relationship, if any, to the June 27, 1962 accident. As a layman, appellee should not be expected to diagnose a condition which physicians whom he had consulted in December 1963 and in May 1964 failed to diagnose.* We hold that within the meaning of AS 23.30.105(a) appellee as a rea sonable man did not have'"knowledge of the nature of his disability and its relation to his employment" until December 1964 when he was examined by Dr. Wilde. It was then that he received for the first time a medical diagnosis of. the neck injury and a medical opinion that such injury resulted from the accident of June 27, 1962. The Board was correct in concluding that appellee's claim for compensation was timely filed. As a separate specification of error appellant contends that the superior court erred in failing to make sufficiently detailed findings of fact so as to indicate to this court the ground upon which it affirmed the decision of the Workmen's Compensation Board. It is true, as appellant points out, that we have held it necessary that findings and conclusions be sufficiently explicit so as to give this court a clear understanding of the basis for the trial court's decision. But that rule applies only where it is required that the court below make findings of fact and state conclusions of law. Such a requirement was not present in this case. The superior court, in reviewing the Workmen's Compensation Board's decision, did not conduct a trial de novo, as it was empowered to do by statute, but instead acted as an appellate court in exercising its power to review an administrative agency's decision. Civil Rule 52(a) which requires findings of fact is not applicable in this situation since the superior court was not the fact finder. We have examined the remaining points made by appellants and find no error. The judgment is affirmed. . AS 23.30.105(a). . Morrison-Knudsen Co. v. Vereen, 414 P.2d 536, 541 (Alaska 1966). . Stock & Grove, Inc. v. City of Juneau, 403 P.2d 171, 176-177 (Alaska 1965); Dickerson v. Geiermann, 368 P.2d 217, 219 (Alaska 1962). . AS 44.62.570(d), respecting judicial review of the decisions of administrative agencies, provides in part that "The court may augment the agency record in whole or in part, or hold a hearing de novo. ⅜ ⅜ ⅜ ' .Civ.R. 52(a) provides in part: In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment; * ⅜ ⅜.

12340739

David F. THOMSON, Appellant, v. Marjorie W. THOMSON, Appellee

Thomson v. Thomson

2017-05-19

Supreme Court No. S-16155

604

610

394 P.3d 604

394

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-11T02:30:40.572946+00:00

CAP

Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Camey, Justices.

David F. THOMSON, Appellant, v. Marjorie W. THOMSON, Appellee.

David F. THOMSON, Appellant, v. Marjorie W. THOMSON, Appellee. Supreme Court No. S-16155 Supreme Court of Alaska. May 19, 2017 Michael A. D. Stanley, Juneau, for Appellant. Paul H. Grant, Juneau, for Appellee. Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Camey, Justices.

2836

18008

OPINION CARNEY, Justice. I. INTRODUCTION In 2006 a divorcing couple agreed to divide the husband's retirement benefit based on its present value and implemented' the division with a Qualified Domestic Relations Order (QDRO). In 2014, after the husband received an updated benefit projection that calculated the wife's share of the benefit using his salary at retirement instead of at divorce, he sought to modify the QDRO. He asked the court to require that her benefit be based upon the same salary data used in the 2006 calculation. The superior court denied the motion. Because the settlement did not contain clear language establishing the use of the earlier salary as required by Hartley v. Hartley, we affirm. II. FACTS AND PROCEEDINGS A. The 2006 Divorce And Property Settlement David and Marjorie Thomson married in 1982 and permanently separated on December 31, 2004. Working with a mediator, they developed a property settlement agreement that was incorporated into their August 9, 2006 divorce decree. David retained the marital home, so the property settlement assigned about 53% of the net estate to Marjorie to help her establish adequate housing for the couple's minor children. They agreed that this division "fairly allocate[d] the economic effect of their divorce" as required by AS 25.24.160(a)(4). Among the assets divided were retirement accounts belonging to both, including their State of Alaska Public Employees' Retirement System (PERS) retirement accounts. David was still working for the State and had accrued a little more than 20 years of PERS service credit when the parties separated. The parties agreed on a value for David's PERS account based on its present value as calculated by a third party company. The company used David's most recent average earnings for 2003-2005 to calculate a projected benefit if he retired at the expected date of April 1, 2015. It then determined that the March 2006 present value of his benefits was $286,882 and that the marital portion was $271,316. That amount was based on the proportion of David's PERS service that occurred between their 1982 marriage and their separation on December 31, 2004. The parties allocated the agreed-upon value of David's PERS benefit along with the agreed values of their other assets between themselves in a chart of their marital assets. Once they reached what they considered a fair distribution of the entire estate in dollar terms, they calculated what percentage of David's PERS benefit was on Marjorie's side of the ledger. Based on these calculations, the property settlement agreement provided that Marjorie would receive 46.96% of "the marital poidion of David's account" to be distributed via a QDRO. The settlement also provided that each party would "solely . retain other property acquired after their 31 December 2004 permanent separation. That property is agreed to be non-marital and neither party is making a claim to it." The QDRO submitted by the parties said, in relevant part, that "Marjorie W. Thomson, as the Alternate Payee, shall receive from the Plan, from the final monthly retirement benefit which otherwise would be payable to the Member, 46.96% of the total monthly benefit which is based on credited service accrued from August 7,1982 to December 31, 2004." (Emphasis in original.) The court signed this QDRO along with the divorce decree and settlement on August 9, 2006. B. The Present Dispute Over The QDRO Distribution Amount In the fall of 2014 David obtained an updated projection of his PERS benefits from the state Division of Retirement and Benefits (DRB). The projection estimated his benefits as of a retirement date of May 1, 2015 and showed how those benefits would be affected by the QDRO. The benefits were calculated using David's average earnings for his final three years of employment, 2013-2015. Due to his significantly increased salary and about ten additional years of credited service, David's retirement benefit was projected at about 80% more than the 2006 projection. Under the QDRO Marjorie would receive "nearly double" what David had expected based on the earlier projection. When David questioned why the salary years from the 2006 projection were not used to calculate Marjorie's payment, DRB reportedly responded that he might need to amend the QDRO to do so. David then moved to amend the QDRO to have Marjorie's benefit calculated using the salary years from the 2006 projection. He argued that such an amendment would "conform [it] to the parties' property settlement and effectuate the agreed distribution of David's PERS benefit." He argued that the parties had relied upon the 2003-2005 salary data when they divided their assets. According to David, the settlement language and QDRO demonstrated that Marjorie's payment had to be calculated based on the 2006 figures "so that her share would be limited to the 'marital portion' of his account." He further argued that using the 2014 figures would allow her to benefit from non-marital property he had acquired after their divorce, contrary to their settlement agreement. Marjorie responded that Hartley v. Hart-ley barred David's interpretation of the settlement and his proposed amendment of the QDRO: "Absent clear language to the contrary in a property division agreement, a court should base the division of retirement benefits on the employee spouse's high-three salary years at the time of retirement." The superior court agreed with Marjorie and found the Hartley rationale "persuasive and controlling in this instance." It further stated that "no language in the QDRO or in the property agreement . requires a different conclusion" and denied the motion to amend. David moved for reconsideration, arguing that the court had overlooked evidence of the parties' intent and that its decision would result in Marjorie receiving more of the marital estate than the parties had agreed. The superior court denied the motion because the agreement did not contain the clear and unambiguous language required by Hartley. David appeals. III. STANDARD OF REVIEW "When the parties have reached a settlement as to property division, '[w]e apply basic contract interpretation principles to interpret a property division agreement incorporated into a divorce decree.'" 'We treat the interpretation of contract language as a question of law and interpret the language de novo." IV. DISCUSSION Interpretation of the parties' property settlement agreement is the central issue before us. Interpretation of such an agreement is governed by contract principles, which require us "to give effect to the reasonable expectations of the parties." If the contract language is not ambiguous, "we decide the meaning of the contract as a matter of law." "An ambiguity exists only where the disputed terms are reasonably subject to differing interpretation after view ing the contract as a whole and the extrinsic evidence surrounding .the disputed terms." In Hartley we established a rule governing how courts interpret property agreement provisions that divide retirement assets. In that case a divorcing couple agreed to divide a retirement account without specifying the salary years to be used in' calculating the benefit amount. The husband objected to the superior court's adoption of a QDRO that explicitly based the calculation on his three highest paid salary years at retirement. We concluded that the "marital foundation theory" was "generally the most equitable" approach to dividing retirement benefits and held that, "[ajbsent clear language to the contrary in a property division agreement, a court should base the division of retirement benefits on the employee spouse's high-three salary years at the. time of retirement." David's PERS is a defined benefit plan. Under a defined benefit plan, a retired employee "is entitled to a fixed periodic payment." The payment's amount' generally depends on the employee's prior salary and length of service. David's benefit is based on his years of service and his highest average monthly salary at the time of retirement. The Thomsons decided to distribute the marital portion of David's benefit using the "deferred distribution" method, which distributes "the benefits actually received in the future." A deferred distribution of benefits is implemented via a QDRO, which does not add to or modify an agreement to distribute benefits but "simply enforces a court order calling for division of retirement benefits," Here the parties agreed that Marjorie was entitled to 46.96% of the marital portion of David's PERS benefit and implemented the agreement via a QDRO. David now disputes what average monthly salary should be used to calculate Marjorie's share of the benefit. The Hartley rule governs the interpretation of the Thomsons' settlement agreement, as the superior court rightly concluded. David briefly objects that Hartley should not apply because it had not been decided at the time of settlement. But Hartley ⅛ interpretive rule does not depend on the parties' awareness of it, as demonstrated by Hartley itself. Without clear language requiring the use of David's 2003-2005 salary data, Maxjo-rie's share must be calculated based on David's actual benefit, using his highest salary data at retirement. David also argues that several specific phrases provide the "clear language" requiring the use of the 2003-2005 salary data. We disagree and address each of his arguments in turn. David argues that the settlement's express statement that Marjorie has a 46.96% interest in the "marital portion" of David's PERS account and the QDRO's corresponding statement that her interest is "based on credited service accrued from August 7,1982 to December 31, 2004" prohibit using his post-separation salary to calculate her benefit. He argues that these statements not only limit Marjorie's share to the years of service credit accrued during the marriage but also to a benefit calculated based on his salary level during the marriage. But neither the meaning of the term "marital portion," nor the dates used in the QDRO to calculate Marjorie's share, support David's claim. The standard meaning of "marital portion" or "marital share" in Alaska involves application of the coverture fraction, which "is calculated by dividing the number of years worked during the [marriage] by the total number of years worked." David's proposed definition of "marital portion" would limit a former spouse's retirement benefits to the salary level earned during the marriage, but he has cited no cases supporting this additional meaning. The QDRO's listing of the marriage and separation dates provides no reason to reevaluate the meaning of "marital portion" in the agreement. It indicates the time period used to calculate the marital portion of the benefit. The QDRO's dates establish the numerator of the coverture fraction, while David's total period of employment would establish the denominator once he retired. This understanding of the QDRO's use of the dates is bolstered by other language in the QDRO explicitly indicating that David's final benefit — calculated according to his three highest paid salary years at retirement — will be used in calculating Marjorie's share: Marjorie "shall receive .,. 46.96% of the total monthly benefit which is based on credited service accrued" during the marriage. (Emphasis added.) David also argues that a settlement clause excluding from division any property acquired after separation establishes that Marjorie is not entitled to receive a benefit calculated using his post-separation salary. That paragraph states: "The parties agree solely to retain other property acquired after their 31 December 2004 permanent separation. That property is agreed to be non-marital and neither party is making a claim to it." David argues that calculating Marjorie's monthly payment using his salary at retirement is inconsistent with this portion of the agreement. But by its terms, this paragraph applies to "other property" acquired after separation. (Emphasis added.) It therefore does not apply to the marital portion of David's PERS account, which was by defini tion acquired before separation and was discussed earlier in the agreement. Therefore this provision does not contain "clear language" requiring the use of the earlier salary-years. Because the settlement does not contain the clear language required by Hartley, we conclude that the superior court did not err when it denied David's motion. We therefore do not reach David's other claims regarding the parties' intent. V. CONCLUSION The order of the superior court is AFFIRMED. . 205 P.3d 342, 350 (Alaska 2009). . David had remarried, so this 80% increase in his projected benefit accounted for a survivor benefit for his new wife. Without the survivor benefit, the 2014 projected benefit was more than two and a half times the 2006 projection. . Hartley, 205 P.3d at 350. . Herring v. Herring, 373 P.3d 521, 528 (Alaska 2016) (alteration in original) (quoting Cook v. Cook, 249 P.3d 1070, 1077 (Alaska 2011)). . Id. (alteration omitted) (quoting Cook, 249 P.3d at 1077). Though David also raises a question of fact — the parties' intent — only David introduced extrinsic evidence, and the superior court made no factual findings for us to review. . Villars v. Villars, 277 P.3d 763, 768 (Alaska 2012) (citing Zito v. Zito, 969 P.2d 1144,1147 n.4 (Alaska 1998)). . Id. (quoting Knutson v. Knutson, 973 P.2d 596, 600 (Alaska 1999)). . Krushensky v. Farinas, 189 P.3d 1056, 1060 (Alaska 2008) (citing Keffer v. Keffer, 852 P.2d 394, 397 (Alaska 1993)). . Villars, 277 P.3d at 768-69 (quoting N. Pac. Processors, Inc. v. City & Borough of Yakutat, Alaska, 113 P.3d 575, 579 (Alaska 2005)). . 205 P.3d 342, 349-50 (Alaska 2009). . Id. at 345-46. . Id. at 346. . "This theory reasons 'that a post-divorce merit increase is based upon the employee's entire history of service to the employer. In other words, the post[-]divorce increases are built upon a foundation of prior marital efforts' and therefore the increases are not separate property..., [T]his approach [is] 'better policy' because it 'avoids undervaluation of contributions made early in a marriage' and 'gives more dollars to the spouse who assisted in the development of the employee's career, and less dollars to the spouse who was the passive beneficiary of that career after it was established,' " Id. at 349-50 (quoting 2 Brett R. Turner, Equitable Distribution of Property § 6:26, at 171, 183 (3d ed. 2005)). . Id. at 349-50. . Id. at 347 (quoting Comm'r, Internal Revenue v. Keystone Consol. Indus., Inc., 508 U.S. 152, 154, 113 S.Ct. 2006, 124 L.Ed.2d 71 (1993)). . Id. . Id. at 348. . Zito v. Zito, 969 P.2d 1144, 1146 (Alaska 1998) (citing Wahl v. Wahl, 945 P.2d 1229, 1232 (Alaska 1997)). . Hartley, 205 P.3d at 347-50. . Although both parties discuss the terms of the QDRO, the relevant language under Hartley is that, of the settlement agreement. See Hartley, 205 P.3d at 350. See also Zito, 969 P.2d at 1146. . Engstrom v. Engstrom, 350 P.3d 766, 770 (Alaska 2015) (quoting Hansen v. Hansen, 119 P.3d 1005, 1015 (Alaska 2005)) ("Determining the [retirement health] benefits' marital portion requires calculation of the 'coverture fraction.' "). Accord Faulkner v. Goldfuss, 46 P.3d 993, 1003 (Alaska 2002) ("The marital share of a pension is typically determined by the coverture fraction...."); Wainwright v. Wainwright, 888 P.2d 762, 763 (Alaska 1995) ("The marital portion of the pension will be determined by a so-called coverture fraction of 75/240. Seventy-five is the number of months of Robert's qualified employment during the marriage. Two hundred and forty will be the total number of months of qualified employment at the time of vesting."). . Cf. Faulkner, 46 P.3d at 1003 n.36 (using "marital share" to refer to a portion of the actual benefit at retirement). . See Engstrom, 350 P.3d at 770. . In addition, the dates of marriage do not correspond to the salary years David claims are required. The QDRO correctly states that the parties permanently separated at the end of 2004, but David argues Maijorie's benefit must be calculated based on his average salary in 2003-2005 — fully one-third of which is after the marriage. The parties used the permanent separation date, December 31, 2004, as the end of the marriage for property division purposes. See Hanlon v. Hanlon, 871 P.2d 229, 231 (Alaska 1994). David explains in his brief that this use of post-separation salary was acceptable because the coverture fraction was applied to ensure Marjorie received only a share of the marital portion. This is precisely the reason that Marjorie's actual benefit can be calculated using post-separation salary without her receiving more than the parties agreed on in the settlement agreement. .David also argues that "PERS service credit that [he] accrued since the parties' divorce undeniably constitutes non-marital property under this Paragraph 6." However, Marjorie has never argued that she should be entitled to the years of service credit David accrued after their separation, nor did the court's order allow her to receive any benefits from those years of service credit. The use of the coverture fraction prevents that. Service credit and salary are separate elements of the benefit calculation, . As we have explained, the marital foundation theory establishes that the increased value of the marital portion of a retirement benefit remains marital property, so the clause does not establish that the increased value based on David's higher post-separation salary is separate property. See Hartley v. Hartley, 205 P.3d 342, 349-50 (Alaska 2009). . See id. at 350.

12340759

Lisa REASNER, Appellant/Cross-Appellee, v. STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee/Cross-Appellant, and Rolin N. Allison Jr. Appellee

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

2017-05-19

Supreme Court Nos. S-15900/15929

610

621

394 P.3d 610

394

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-11T02:30:40.572946+00:00

CAP

Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.

Lisa REASNER, Appellant/Cross-Appellee, v. STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN’S SERVICES, Appellee/Cross-Appellant, and Rolin N. Allison Jr. Appellee.

Lisa REASNER, Appellant/Cross-Appellee, v. STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN’S SERVICES, Appellee/Cross-Appellant, and Rolin N. Allison Jr. Appellee. Supreme Court Nos. S-15900/15929 Supreme Court of Alaska. May 19, 2017 Susan Orlansky, Reeves Amodio, LLC, Anchorage, and Michael C. Kramer and Reilly Cosgrove, Kramer and Associates, Fairbanks, for AppellanVCross-Appellee. Ruth Botstein, Assistant Attorney General, Anchorage, and Craig W. Richards, Attorney General, Juneau, for Appellee/Cross-Appel-lant State of Alaska, Department of Health & Social Services, Office of Children’.s Services. No appearance by Appellee Rolin N. Allison, Jr. Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.

5876

36783

OPINION BOLGER, Justice. I. INTRODUCTION Lisa Reasner suffered years of sexual abuse while in foster care and after the Office of Children's Services (OCS) approved her adoption. Years later Reasner sued OCS after discovering that OCS might have played a role in allowing her abuse. The superior court concluded that Reasneris claims were untimely and granted summary judgment in favor of OCS. The superior court also concluded that even if Reasner's claims had been timely, OCS would still be entitled to partial summary judgment on various other grounds, including that OCS was partially protected by discretionary function immunity and that Reasner failed to establish that her foster parents had not completed the proper training. Por the reasons explained below, we vacate the superior court's grant of summary judgment and remand fdr further proceedings. II. FACTS AND PROCEEDINGS Reasner was born in 1989. OCS assumed custody of her in 1993 after ongoing reports of child neglect. In January 1994 OCS placed Reasner in a foster care home with Rolin Allison Sr. and Myna Allison. In July 1998 OCS received a report alleging that one of the Allisons' sons had sexually molested a neighbor's granddaughter. During the ensuing investigation Reasner revealed that Rolin Allison Jr. (J.R.), a different son, had sexually abused her "a long time ago." At the time of the investigation, however, J.R. was not living with the Allisons, and Reasner was allowed to remain in the Allison home. The Allisons adopted Reasner in April 1999. OCS received reports that J.R. was abusing Reasner after the adoption but OCS did not take steps to remove Reasner from the home. In November 2011 J.R. was arrested for sexually abusing Reasner and other children. (J.R. eventually pleaded guilty to five counts of felony sexual abuse of a minor.) Reasner attended his arraignment and spoke with her former OCS caseworker. The caseworker told Reasner that OCS had known that J.R. was dangerous and had ordered Myna Allison to keep him away from the home. Ae-cording to Reasner this was the first time she learned that OCS may have failed to protect her from J.R. Reasner sued OCS on December 3, 2012. Relevant to this appeal, Reasner'alleged that (1) OCS had negligently investigated reports of harm occurring while OCS had legal custody of Reasner; (2) OCS had negligently supervised/monitored the Allison home; and (3) OCS had negligently failed to investigate reports of harm after Reasner was adopted. The superior court granted OCS summary judgment on all of Reasner's claims, concluding that they were untimely under Alaska's two-year statute of limitations for tort suits. The superior court also, determined that even if Reasner's claims had been timely, OCS, would still be entitled to partial summary judgment on Reasner's claims because she failed to establish a genuine issue of material fact as to whether the Allisons had completed certain training requirements and because OCS was partially protected by discretionary function immunity. The superi- or court, however, rejected OCS's argument that Alaska's statute of repose also barred Reasner's claim concluding that the statute was unconstitutional as applied to Reasner, and the superior court also rejected OCS's argument that Reasner had failed to establish a causal link between OCS's alleged negligence and her harm. Reasner. appeals and OCS cross-appeals. III. DISCUSSION The parties appeal a grant of summary judgment. When ruling on a summary judgment motion, a court must construe all reasonable factual inferences in favor of the non-moving party. "[S]ummary judgment is appropriate only when no reasonable person could discern a genuine factual dispute on a material issue." As we have consistently explained, "ours is a 'lenient standard for withstanding summary judgment.'" "Any admissible evidence in favor of the nonmov-ing party concerning a material fact is sufficient. ." We review questions of summary judgment de novo. We divide our discussion into two categories: (1) whether the superior court erred in granting OCS summary judgment because Reasner's claims were untimely and (2) whether Reasner's claims otherwise withstand summary judgment. A. Whether Reasner's Claims Were Untimely I. It was error to grant summary judgment to OCS under AS 09.10.070 because a genuine issue of material fact exists as to when Reasner's claims accrued. Alaska Statute 09.10.070 requires that tort claims be brought "within two years of [their] accrual." A different statute, AS 09.10.140(a), tolls the limitations period for minors until they reach the age of 18. The superior court found that all of Reasner's claims were untimely because she filed suit more than two years after her eighteenth birthday. Reasner argues that this was error because a genuine issue of material fact exists concerning when her claims "aecru[ed]" as that tern is used in AS 09.10.070 and that, at the very least, an evidentiary hearing was required to resolve this dispute. We agree with Reasner. In Alaska the statute of limitations begins to run on the date "when a reasonable person has enough information to alert that person that he or she has a potential cause of action or should begin an inquiry to protect his or her rights." The test for inquiry notice focuses on when a plaintiff has sufficient information to prompt an inquiry, not on when she has specific information establishing each element of her cause of action. Determining that date requires a "fact-intensive" analysis. We have therefore cautioned that summary judgment should only be used to resolve the time at which a statute of limitations commences when "there exist un-controverted facts that determine when a reasonable person should have" begun an inquiry to protect her rights. In order to succeed in her suit against OCS, Reasner must prove that OCS acted negligently. Reasner argues that a reasonable person in her circumstances would not have begun an inquiry until she discovered that OCS may have played some role in allowing her to be abused. The superior court appeared to accept this reasoning, but found that by the time Reasner turned 18, she did, in fact, have information suggesting that OCS may have played a role in allowing her to be abused. Specifically, the superior court found that when Reasner tamed 18 she essentially knew what her social worker later told her — "that OCS knew that J.R. was dangerous and had told Myna Allison that he was forbidden to be around the home." In reaching this conclusion the superior court relied on two events: (1) that Reasner reported her abuse to OCS but OCS allowed her to remain in the Allison home and (2) that Reasner told a counselor in 2007 that she had reviewed her OCS and adoption records. Summary judgment, however, "is appropriate only when no reasonable person could discern a genuine factual dispute on a material issue." We conclude that a genuine factual dispute exists concerning when Reas-ner discovei'ed information suggesting that OCS had played a role in allowing her to be abused. First, we note that when ruling on a summary judgment motion, a court must construe all reasonable factual inferences in favor of the non-moving party. Applying that standard, the events relied upon by the superior court do not justify the superior court's ultimate conclusion that Reasner had information suggesting OCS's role in her abuse as early as 2007. The fact that Reasner reported her abuse to OCS while in OCS custody only establishes that Reasner knew a report about J.R. had been made to OCS. It does not establish, at least for the sake of summary judgment, that Reasner knew that OCS previously had known J.R. was dangerous or that Reasner knew that OCS previously had told Myna that J.R. was not allowed to be around the home. The 2007 counselor's report is similarly unhelpful. It stated only that "[a]t the age of 18 she looked up her OCS records and adoption records. She feels like her adoptive parents lied to her for 14 years." The counselor's report did not contain any details as to what documents Reas-ner actually reviewed or whether she understood their contents. In a second affidavit accompanying her motion to reconsider, Reasner stated that she had only reviewed some adoption records in her mother's closet, not her OCS records. Indeed, as Reasner points out on appeal, OCS was not permitted to disclose her records under 7 Alaska Administrative Code (AAC) 54.050(1). More importantly, the conclusion reached by the superior court was directly contradicted by Reasner's own sworn affidavit. In that affidavit Reasner asserted "the first time that [she] had information that OCS was negligent in failing to protect [her] from [J.R.] was on November 9, 2011, because that was the date her former OCS caseworker told her that "OCS knew that [J.R.] was dangerous, and [that OCS] had told Myna Allison that he was forbidden to be around the home or any of the foster children." As we have stated, "[a]ny admissible evidence in favor of the nonmoving party concerning a material fact is sufficient" to withstand summary judgment. Reasner's sworn affidavit constitutes admissible evidence and is relevant to determining when Reasner discovered sufficient information "to alert a reasonable person to begin an inquiry to protect [her] rights." Rather than resolving this issue at the summary judgment stage, the superior court should have held an evidentia-ry hearing to resolve the preliminary question of fact concerning when the statute of limitations on Reasner's claims began to run, OCS also asks us to affirm the superi- or court's ruling on a different basis: that "Reasner's knowledge that she suffered sexu al molestation while in OCS custody triggered the duty to investigate OCS," In other words, OCS asks us to hold that, as a matter of law, a child who suffers sexual abuse while in OCS custody is aware or should be aware that OCS may have played a role in allowing the child to be abused. We implicitly rejected a similar argument in Catholic Bishop of Northern Alaska v. Does 1-6. In that case the plaintiffs sued two institutional defendants, the Catholic Bishop of Northern Alaska and the Society of Jesus, Oregon Province, alleging sexual abuse by a priest many decades earlier, We allowed their case to proceed past the motion to dismiss stage, noting that "[ujnder the discovery rule, the date on which the statute of limitations begins to run is a question of fact" and that we could not "rule out the possibility that evidence may be introduced that will show that the statute of limitations has not run." We therefore implicitly concluded that a child who has been sexually abused does not, as a matter of law, have sufficient information to prompt a reasonable person to inquire into potential claims against institutional defendants. Applying that conclusion here, we decline to affirm the superior court on OOS's proposed alternative basis, and we therefore reverse the superior court's grant of summary judgment. 2. Alaska Statute 09.10.065(a) does not apply to Reasner's claims. Reasner argues that even if her claims are untimely under AS 09.10.070, they are timely as a matter of law under a different statute, AS 09.10.065(a). We disagree. Alaska Statute 09.10.066(a) allows a person to bring a suit "at any time for conduct that would have, at the time the conduct occurred, violated provisions of any of' five listed felony offenses, including felony sexual abuse of a minor. The question we must resolve is whether Reasner's suit against OCS is "for conduct" that amounted to felony sexual abuse of a minor. We review a superior court's interpretation of a statute de novo. We interpret the statute "according to reason, practicality, and common sense, considering the meaning of the statute's language, its legislative history, and its purpose." We apply "a sliding scale approach, where '[t]he plainer the statutory language is, the more convincing the evidence of contrary legislative purpose or intent must be.' " We conclude that Reasner's suit against OCS is not subject to the extended limitations period provided in AS 09.10.065(a). First, Reasner's suit falls outside the plain language of AS 09.10.065(a). Reasner argues that her suit against OCS is "for conduct" that amounted to "felony sexual abuse, of a minor" and that she is therefore permitted under AS 09.10.065(a) to bring that suit "at any time." But Reasner, of course, is not alleging that OCS committed felony sexual abuse of a minor; rather, she argues that J.R. committed the underlying crime and that OCS was negligent in failing to protect her from his conduct. Reasner's suit against OCS can thus only be characterized as "for" the negligent conduct of OCS — conduct which Reasner admits did not constitute felony sexual abuse of a minor. Therefore Reasner's negligence suit against OCS is not "for conduct" constituting felony sexual abuse of a minor, and we conclude that her suit falls outside the plain language of AS 09.10.065(a). Because Reasner asks us to interpret AS 09.10.065(a) in a manner inconsistent with the plain language of the statute, we will adopt her proposed construction only if we can find convincing evidence of contrary legislative purpose or intent to include suits like Reasner's — i.e., negligence suits against non-perpetrators — within the scope of AS 09.10.065(a). Reasner points to a change in the statutory language from "against the perpetrator" to "for conduct . violat[ing]" as indicating an intent to include negligence suits against non-perpetrators within the scope of AS 09.10.065(a). According to Reasner this change indicates a legislative intent to permit "suits against third parties who are legally responsible for allowing [sexual] abuse to occur." But as we have stated before, "the absence of greater discussion is a meaningful indication that the [legislature] was not charting a radical course," and nothing in the legislative history suggests that by making this change the legislature intended to' broaden the application of the statute to include negligence suits, Reasner also points to legislative committee minutes expressing a general policy of expanding victims' access to courts. But such general statements do not indicate an intent to cover claims that are not "for conduct . violating]" any of the listed felony offenses. Finally, we find that our approach is consistent with the approach taken by courts in other jurisdictions interpreting similar statutes. We therefore conclude that AS 09.10.065(a) does not apply to Reasner's action against OCS. 3. The superior court should first determine whether AS 09.10.055 applies to Reasner's claims before reaching her as-applied constitutional challenge. OCS argued below that even if Reas-ner's claims were timely under the discovery rule or under AS 09.10.065(a), Alaska's statute of repose would still bar them. Alaska's statute of repose extinguishes all personal injury actions (subject to certain exceptions) unless commenced within ten years of "the last act alleged to have caused the personal injury." The superior court rejected OCS's argument, concluding that the statute of repose was unconstitutional as applied to "facts in which the child's legal custodians are the alleged tortfeasors" because it would deny minors access to courts and therefore violate due process. But the superior court never made an initial determination that the statute of repose actually would bar Reasner's claims. For a statute to be unconstitutional as applied to a particular set of facts, the statute must actually apply to those facts. The United States Supreme Court has called it "an uncontroversial principle of constitutional adjudication . that a plaintiff generally cannot prevail on an as-applied challenge without showing that the law has in fact been (or is sufficiently likely to be) unconstitutionally applied to [her]." Here, however, it is possible that the statute of repose does not bar Reasner's claims or only bars some of them. First, the statute of repose requires claims to be filed within ten years of "the last act alleged to have caused the personal injury, death, or property damage." Reasner brought her claim on December 3, 2012, and alleges that OCS received reports that she was being sexually abused in 2004 and 2006 — less than ten years before she sued — and negligently'failed to protect her. Second, the effective date of AS 09.10.055 is August 7, 1997. Reasner argues that even if OCS did not commit any negligent ácts after December 2002, she would still be able to proceed with her claims based on multiple acts prior to AS 09.10.055's effective date. Finally, AS 09.10.055(b)(1) provides that the statute of repose does not apply when the damages resulted from, among other things, gross negligence, misrepresentation, or breach of fiduciary duty. Reasner argues that those three exceptions are applicable to her case. Because the superior court decided that the statute of repose was unconstitutional as applied to Reasner's claims without first deciding whether the statute actually applied to those claims, we reverse that portion of the superior court's order. On remand, the superior court should determine whether the statute of repose applies to Reasner's case before it considers Reasner's as-applied constitutional challenge. B. Whether Reasner's Claims Survive Summary Judgment On The Merits 1. Discretionary function immunity. The Alaska Tort Claims Act authorizes tort claims against the State, but the State is immune from claims "based upon the exercise or performance or the failure to exercise or perform a discretionary junction or duty on the part of a state agency or an employee of the state, whether or not the discretion involved is abused." As we have previously stated, "[t]wo varieties of agency action are not covered by discretionary function immunity: those involving no discretion and those involving 'only discretion free from policy considerations.'" "Whether a governmental act is entitled to discretionary function immunity is . a matter of law that is reviewed de novo." a. OCS is not generally immune from suit for negligent investigation. One of Reasner's claims is that OCS negligently investigated the reports that she was being sexually abused. OCS argues that it is immune from suit for negligent investigation because social worker investigations involve the use of discretion and are therefore protected by discretionary function immunity. But as we have previously explained, " 'the allegedly negligent decisions in a particular ease must be examined individually to determine if they are' protected by discretionary function immunity." The superior court did that in this case, and OCS has not challenged its individual determinations. We therefore turn to Reasner's argument on this point. b. OCS was not entitled to summary judgment on Reasner's claims that OCS failed to maintain the requisite "minimum contacts" with her foster family. The superior court granted OCS summary judgment on Reasner's claim that OCS had failed to conduct the requisite number of home visits while she was in foster care, because it found that OCS's policy governing such "minimum contacts" was protected by' discretionary function immunity. Reasner argues that this conclusion was erroneous with respect to the OCS policy in place between January 1998 and April 1999. We agree with Reasner. OCS amended its policy governing minimum contacts with foster families in January 1998. Before that date OCS's policy required OCS to conduct at least one face-to-face family contact every three months, and "in-home contacts to family [were] required in addition to placement contacts with the child." But OCS's policy also provided that "[a]ctual delivery of this minimum service level [was] dependent on workload size." Given this "workload size" caveat, the superior court determined that OCS was protected by discretionary function immunity under the pre-1998 policy because "the actual number of contacts is discretionary rather than mandatory." When OCS amended the policy in January 1998 it retained the requirement of "in-home contacts to family . in addition to placement contacts with the child." But it omitted the "workload size" caveat and allowed "[c]hanges in service level [to] be made only after a service level review." Reasner argues that OCS is not protected by discretionary function immunity under the post-1998 policy and that, because this new policy was in effect for the last five quarters that she was in OCS's legal custody, she should be allowed to proceed on her negligent investigation claim. We agree. The post-1998 policy language allows for either "no discretion" or "only discretion free from policy considerations," at least until a "service level review" has been conducted. Because this new policy was in effect for a period of time during which OCS had legal custody of Reasner, she should have been allowed to proceed on her negligent investigation claim. c. Reasner has not challenged the actual . grounds of the superior court's grant of summary judgment on her ICWA-related claims. Reasner also asserted below that OCS has policies and procedures adopting provisions of the Indian Child Welfare Act (ICWA) and that her OCS caseworkers failed to follow these policies. The superior court found that OCS's "adoption of policies and procedures intended to implement ICWA requirements represents] its efforts to balance the requirements of federal law with state economic and political policy factors" and that a violation of those policies was therefore protected by discretionary function immunity. The superior court was careful to note that it was only ruling on Reasner's specific claims and that "[i]t is possible that there are claims regarding violation of OCS procedures implementing ICWA that would not be protected by discretionary function immunity." On appeal Reasner argues that this was error because she is merely alleging "a straightforward negligence claim against OCS and cit[ing] OCS's violations of the law as evidence of OCS's negligence." She therefore argues that the superior court erred in granting summary judgment to OCS "on the ground that these authorities do not create a direct cause of action." But as we have just explained, the superior court granted summary judgment to OCS on Reasner's ICWA-related claims because it found that OCS is protected by discretionary function immunity, not because the claims do not create a direct cause of action. Absent a passing assertion in her reply brief that "OCS incorporated provisions of [ICWA] into mandatory policy," Reasner has not challenged the actual basis for the superior court's decision. We therefore affirm the superior court's grant of summary judgment to OCS on Reasner's ICWA-related claims, but we express no opinion whether the superior court was substantively correct when it determined that OCS is protected from those claims by discretionary function immunity. 2. There is a genuine dispute whether Reasner's foster parents completed the required training. Reasner alleged that OCS negligently monitored the foster home in part because it did not require her foster parents to complete mandatoiy foster parent orientation or follow-up annual training. The superior court granted OCS partial summary judgment on this claim because it found that Reasner "ha[d] not provided any evidence that the required orientation and trainings did not occur." We disagree. As we have explained above, a court must construe all reasonable factual inferences in favor of the non-moving party. "[S]ummary judgment is appropriate only when no reasonable person could discern a genuine factual dispute on a material issue." Here, Reas-ner presented the Allisons' training record from Alaska Center for Resource Families, which indicated that the Allisons had not completed the necessary training at that facility. Reasner also presented evidence from a 1998 adoption home study indicating that the Allisons "ha[d] been slow to become comfortable with [support] services." Finally, Reasner provided an internal OCS email from January 1998 stating "[o]ne of the items we are planning is to require that [the Alli-sons] go to our adoption preparation series. They have been invited a number [of] time[s] over the past years, When they have attended, they have only come for one session, so they have never completed the series." OCS, on the other hand, presented no direct evidence showing that the Allisons had actually completed the training and admitted that the Allisons' licensing file was no longer available because it had been purged three years be-foi'e "as part of OCS's routine file retention policy." Under Alaska's lenient standard for surviving summary judgment, there is a genuine dispute as to whether the Allisons had completed the required courses and training. Summary judgment on this issue was therefore inappropriate. 3. The superior court correctly concluded that OCS was not entitled to summary judgment as to causation. On cross-appeal OCS argues that Reasner failed to demonstrate a causal nexus between OCS's failure to require the Allisons to complete the required training and- Reas-ner's harm. But reasonable inferences from the admissible evidence demonstrate a dispute as to this causal connection. For example, a reasonable person could infer that if the Allisons had completed the required training, they would have been able to identify warning signs of sexual abuse and taken steps to protect Reasner. Furthermore, if the Allisons did fail to complete the required training, then OCS might have been required to remove Reasner from their home because a foster home must be licensed every two years. Given these possible inferences, a reasonable person could discern a genuine factual dispute as to whether OCS's failure to remove Reasner was also a proximate cause of her harm. We also reject OCS's argument that its failure to make quarterly in-person visits between January 1998 and April 1999 lacks a causal nexus with Reasner's harm. The superior court found that "[rjeasonable jurors could conclude that 'but fori the lack of contact, OCS would have become aware that Ms. Reasner was being abused and/or that it would have more fully investigated the reports that she was being sexually and/or physically abused, which could have resulted in OCS substantiating the reports and taking action to protect her from harm." Although the superior court's analysis should have focused on whether a reasonable person could discern a factual dispute, and not on whether a reasonable juror could find for Reasner, we agree with the superior court's ultimate conclusion that summary judgment on the issue of causation was inappropriate. IV. CONCLUSION For the reasons stated above, we REVERSE the superior court's summary judgment order in part and REMAND for proceedings consistent with this opinion. . OCS was known at the time as the Division of Family and Youth Services. . Because this case was decided on summary judgment, we present the facts in the light most favorable to Reasner's claims. See Hagen v. Strobel, 353 P.3d 799, 802-03 (Alaska 2015). . The court's order addressed both OCS's motion to dismiss and its motion for summary judgment. But because the order relied on evidence outside the pleadings, we simply treat it as a grant of summary judgment. See Alaska R. Civ. P. 12(c) (providing that a motion for judgment on the pleadings shall be treated as one for summary judgment if "matters outside the pleadings are presented to and not excluded by the court"). . AS 09.10.070. . Christensen v. Alaska Sales & Serv., Inc., 335 P.3d 514, 520 (Alaska 2014). . Id. . Id. (quoting Shaffer v. Bellows, 260 P.3d 1064, 1069 (Alaska 2011)). . Greywolf v. Carroll, 151 P.3d 1234, 1241 (Alaska 2007). . Cikan v. ARCO Alaska, Inc., 125 P.3d 335, 338-39 (Alaska 2005). . AS 09.10.070(a). . Mine Safety Appliances Co. v. Stiles, 756 P.2d 288, 291 (Alaska 1988). This is referred to as the "discovery rule." See Cameron v. State, 822 P.2d 1362, 1365-66 (Alaska 1991) (explaining Alaska's formulation of the discovery rule). . See Cameron, 822 P.2d at 1366. . Ranes & Shine, LLC v. MacDonald Miller Alaska, Inc., 355 P.3d 503, 509 (Alaska 2015). . Palmer v. Borg-Warner Corp., 818 P.2d 632, 634 (Alaska 1990). . Generally, Reasner must show that (1) OCS owed her a duty of care, (2) OCS breached that duty, (3) she was injured, and (4) her injury was the factual and proximate result of OCS's breach. See Regner v. N. Star Volunteer Fire Dep't, Inc., 323 P.3d 16, 21 (Alaska 2014); Kelly v. Municipality of Anchorage, 270 P.3d 801, 803 (Alaska 2012). . See Pedersen v. Zielski, 822 P.2d 903, 907 (Alaska 1991) (noting that while the need for the discovery rule is most apparent "where the plaintiffs injury is undiscovered and reasonably undiscoverable," Alaska's formulation of the discovery rule "is broad enough to cover other undiscovered and reasonably undiscoverable elements such as whether the cause of the injury was tortious"). See also Sopko v. Dowell Schlumberger, Inc., 21 P.3d 1265, 1270 (Alaska 2001) (citing Pedersen and stating that discovery rule in tort suits "protects plaintiffs whose injury is known but the cause is not reasonably discoverable during the limitations period"). Cf. Mine Safety Appliances Co., 756 P.2d at 291-92, (affirming summary judgment decision that under the discovery rule the statute of limitations for a product defect in a worker's helmet began to run from the date of the accident involving head injuries and damage to the helmet, rather than date the plaintiff actually discovered the helmet was defective). . Christensen v. Alaska Sales & Serv., Inc., 335 P.3d 514, 520 (Alaska 2014). . Id. . Greywolf v. Carroll, 151 P.3d 1234, 1241 (Alaska 2007). . Cameron v. State, 822 P.2d 1362, 1366 (Alaska 1991). . Catholic Bishop of N. Alaska v. Does 1-6, 141 P.3d 719, 725 (Alaska 2006). . We may affirm the superior court's grant of summary judgment "on any basis supported by the record, even if that basis was not considered by the court below or advanced by any party." Powercorp Alaska, LLC v. Alaska Energy Authority, 290 P.3d 1173, 1181 (Alaska 2012) (quoting Smith v. Stafford, 189 P.3d 1065, 1070 (Alaska 2008)). . 141 P.3d 719. . Id. at 720. . Id. at 725. . We have found in some cases that plaintiffs are on inquiry notice from the date of injury, even when they lack knowledge of specific facts indicating that a particular defendant had played a role in causing that injury. See, e.g., Palmer v. Borg-Warner Corp., 818 P.2d 632, 635 (Alaska 1990) (holding that the estate of passenger killed in an airplane crash was on inquiry notice of potential claims against an airplane engine component manufacturer when the estate discovered that the crash had occurred); Mine Safety Appliances Co. v. Stiles, 756 P.2d 288, 292 (Alaska 1988) (holding that plaintiff who suffered a head injury while wearing a protective helmet designed to prevent such injuries was on inquiry notice of potential product defect claims from the date of injury); As we indicated in those cases, however, the nature of the injury and identity of the potentially negligent parties is critical to this analysis. In Palmer, for example, we concluded that notice of an airplane crash put the plaintiff on notice of potential negligence claims against an airplane engine component manufacturer because "[t]he general safety record of air travel and the present state of air technology compelled] us to conclude that air crashes do not normally occur absent negligence" by "the pilot, the carriers, or the manufacturers," Palmer, 818 P.2d at 634 (quoting Widmyer v. Se. Skyways, Inc., 584 P.2d 1, 14 (Alaska 1978)). That same reasoning does not apply here; the obvious cause of child sexual abuse is the intentional action of the abuser, and there is no evidence at this juncture suggesting that such abuse does not normally occur in foster homes absent negligence by the supervisory agency. . Reasner also asserts other grounds for tolling the two-year statute of limitations in her case, including mental incompetency under AS 09.10.140(a) and that she did not connect her sexual abuse to her psychological injuries until she resumed counseling in 2011. OCS argues that these arguments were waived because Reas-ner failed to raise them in a timely fashion. But even if Reasner waived those alternative tolling grounds for the sake of the present appeal, she is still free to raise them on remand, and thus we do not need to reach those arguments. . AS 09.10.065(a) (emphasis added). . Girdwood Mining Co. v. Comsult LLC, 329 P.3d 194, 197 (Alaska 2014). . Parson v. State, Dep't. of Revenue, Alaska Hous. Fin. Corp., 189 P.3d 1032, 1036 (Alaska 2008). . State, Commercial Fisheries Entry Comm'n v. Carlson, 270 P.3d 755, 762 (Alaska 2012) (alteration in original) (quoting Gov't Emps. Ins. Co. v. Graham-Gonzalez, 107 P.3d 279, 284 (Alaska 2005)). . See AS 11.41.434, .436, and .438. In Catholic Bishop we left undecided the similar question whether AS 09.10.065(a) applies to vicarious liability claims against non-perpetrators. Catholic Bishop of N. Alaska v. Does 1-6, 141 P.3d 719, 722 (Alaska 2006). That issue is not raised by this case because Reasner is suing OCS for its own negligent conduct, not under a theory of vicarious liability. . See former AS 09.10.060(c) (2000). . Glover v. State, Dep't of Transp., Alaska Marine Highway Sys., 175 P.3d 1240, 1248-49 (Alaska 2008) (emphasis in original). . See Ch. 86, § 1, SLA 2001; Ch. 40, § 1, SLA 2003; see also Catholic Bishop, 141 P.3d at 722-23 (discussing the legislative history of AS 09.10.065). . See Minutes, H. Jud. Comm. Hearing on H.B. 210, 22nd Leg., 1st Sess. (Apr. 9, 2001) (comments by Representative Ethan Berkowitz and the Executive Director of the Council on Domestic Violence and Sexual Assault). . See, e.g., Sandoval v. Archdiocese of Denver, 8 P.3d 598, 602 (Colo. App. 2000) (holding that an analogous Colorado statute does not encompass actions for negligent hiring or supervision by an employer); Kelly v. Marcantonio, 678 A.2d 873, 875-76 (R.I. 1996) (holding that an analogous Rhode Island statute only applies to actions against the perpetrator). . AS 09.10.055(a)(2). . We note that this conclusion goes beyond our previous holdings. See Sands ex rel. Sands v. Green, 156 P.3d 1130, 1133-36 (Alaska 2007) (striking down a statutory provision excluding children under the age of eight from the broad tolling provisions granted to other minors, but not addressing the constitutionality of the statute of repose); Evans ex rel. Kutch v. State, 56 P.3d 1046, 1067-68 (Alaska 2002) (plurality opinion) (holding Alaska's statute of repose facially constitutional in response to equal protection and due process challenges). . McCullen v. Coakley, — U.S. —, 134 S.Ct. 2518, 2534 n.4, 189 L.Ed.2d 502 (2014) (emphasis in original); cf. Kyle S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 309 P.3d 1262, 1268 (Alaska 2013) ("An as-applied challenge requires evaluation of the facts of the particular case in which the challenge arises."). . AS 09.10.055(a)(2). . Ch. 26, § 55, SLA 1997. . AS 09.50.250. . AS 09.50.250(1) (emphasis added). . State, Dep't of Health & Soc. Servs. v. Mullins, 328 P.3d 1038, 1043 (Alaska 2014) (quoting R.E. v. State, 878 P.2d 1341, 1349 (Alaska 1994)). . State, Dep't of Corr. v. Cowles, 151 P.3d 353, 358 (Alaska 2006). . Mullins, 328 P.3d at 1044 (emphasis added) (quoting Cowles, 151 P.3d at 359). . Reasner has not challenged the superior court's conclusion and we do not address the . court's ruling on that point. . Mullins, 328 P.3d at 1043 (quoting R.E., 878 P.2d at 1349). . See former 7 AAC 50.433 (1990). . Christensen v. Alaska Sales & Serv., Inc., 335 P.3d 514, 520 (Alaska 2014). . Id. . See id. . See id. at 520-21.

12345632

KYLIE L., Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, Office of Children's Services, Appellee

Kylie L. v. State, Department of Health & Social Services

2017-10-13

Supreme Court No. S-16520

442

453

407 P.3d 442

407

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-11T02:30:42.741741+00:00

CAP

Before: Stowers, Chief Justice, Winfree, Maassen, and Bolger, Justices. [Carney, Justice, not participating]

KYLIE L., Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, Office of Children’s Services, Appellee.

KYLIE L., Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, Office of Children’s Services, Appellee. Supreme Court No. S-16520 Supreme Court of Alaska. October 13, 2017 Olena Kalytiak Davis, Anchorage,, for Appellant. Megyn Greider, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellee. Before: Stowers, Chief Justice, Winfree, Maassen, and Bolger, Justices. [Carney, Justice, not participating]

6351

39696

OPINION WINFREE, Justice. I. INTRODUCTION After the trial court found that the Office of Children's Services (OCS) failed to demonstrate it had made reasonable. efforts to reunify a family, the court nonetheless terminated the mother's parental rights to her daughter, finding that OCS's failure was "excused." The mother appealed; we earlier issued an order reversing the' court's "excused" determination and vacating the trial court's tennination order, indicating we would fully discuss our reasoning in a later opinion. We' do so now. II. FACTS AND PROCEEDINGS Kylie L. and Kurt B.- began a relationship in 2003 and had a daughter, Belinda B., in 2010. Kurt was often abusive toward Kylie, who remained in the relationship partly because Kurt threatened that if she left him he would kill her and Belinda. OCS became involved with the family in May 2013 when-Kurt injured Belinda. In the midst of an alcohol-fueled argument Kurt threw a glass beer bottle at Kylie; he instead hit Belinda in the back of the head, knocking her off the table on which she was seated. Kylie escaped to the becjroom with Belinda, but Kurt followed them, punching Kylie in the head and jumping on her as she attempted to protect Belinda with her body. Despite a "baseball sized lump" on Belinda's head, Kurt refused to let Kylie secure medical care, hiding Kylie's phone and car keys to prevent her taking Belinda to a doctor. The next morning Kurt returned Kylie's phone and keys so she could go to work. When Kylie arrived at work she called the police, reported the abuse to a child advocacy center, and brought Belinda to a hospital for medical attention. Kurt was arrested and OOS opened • an investigation; Belinda rer ceived a forensic evaluation and follow-up care. In June Kylie obtained a> domestic violence protective order to keep Kurt away from her and Belinda. Kylie soon entered into a relationship with Lou C. Lou was not a safe companion; he used methamphetamine and "had a lot of involvement with the law." Yet.Kylie had difficulty accepting that Lou was dangerous because he "didn't physically harm her like her past partners, had." OCS closed its investigation in August, substantiating findings that Kurt had harmed Belinda. Only a week after closing its first investigation, OCS received another report of ham to Belinda. Kylie, Belinda, Lou, and Lou's son had gone on a road trip. Kylie explained that during this trip she noticed Belinda was not placing weight on one of her legs. The day after they returned from the trip, Kylie took Belinda to the hospital; Kylie and Lou told the hospital staff they did not know how Belinda had been injured but thought perhaps Lou had reclined his ear seat onto the girl's ankle. They told the doctor that Belinda had not cried out when they thought the injury might have occurred, nor had she cried during the trip. The doctor believed the injury — two broken bones in Belinda's leg — was not consistent with Ky-lie's explanation and reported to OCS his suspicions of non-accidental trauma. OCS initiated' an investigation and implemented a protective action plan under which Belinda stayed with a family friend, OCS requested that Kylie and Lou submit to urinalysis (UA) testing, but neither showed up. The OCS caseworker referred Kylie'and Belinda to a family preservation program. The caseworker, who had received reports that Lou was involved in drug trafficking, discussed with Kylie that Lou was an unsafe person, emphasizing'the danger of exposing children to methamphetamine. By September Kylie had begun to express that she understood the danger Lou posed and had told OCS the relationship was over. The OCS worker felt Kylie "had begun to demonstrate protective capacities" and moved Belinda from an out-of-home safety plan to an in-home safety plan, requiring supervision by Kylie's mother. Problems with the in-home safety plan quickly developed; Kylie's mother was leaving Belinda alone with Kylie and failing to report to ÓCS as required. In October Kylie moved to modify the protective order against Kurt, telling the court she wanted "[t]o reestablish [the] relationship between [Kurt] and his daughter." During this period the case was transferred to an OCS family services worker who spoke with Kylie about how her pattern of engaging with dangerous men posed a threat to Belinda. The OCS worker believed Kylie was not internalizing these messages: because Lou did not physically abuse Kylie, she continued to have trouble accepting that he was unsafe, and she was planning to visit an old friend who recently had been released after serving time in prison for a manslaughter conviction resulting from a road rage incident. In November, after Belinda had been returned to Kylie's care under the in-home safety plan, OCS received a third report of harm, this time concerning a cigarette burn on Belinda's lower back. Kylie told Belinda's daycare workers that she had been holding a cigarette while removing her daughter from a ear seat and that the "cherry" fell into Belinda's diaper and burned the. girl. OCS took emergency custody of Belinda the day after receiving the report; OCS filed an adjudication and temporary custody pétition the following day asserting that Kylie had minimized the incident. After assuming custody and placing Belinda in foster care, OCS continued providing services.to Kylie and Belinda. OCS arranged visitation between the two and made service referrals for relationship classes, a parental risk assessment, a substance abuse assessment, and dyadic therapy, which, focuses on the parent-child relationship with' the goal of healing the child's trauma within the context of an attachment relationship. OCS also assisted Kylie in meeting basic needs by obtaining food boxes and assisting her efforts to secure housing and heating fuel. By all reports the dyadic therapy began very well. At some point Kylie revealed to her therapist that she was still in a relationship with Lou and that he was living in her home. But when the therapist attended a February 2014 OCS meeting addressing the possibility of a trial home visit, she did not pass on to OCS information about Lou's continued presence in the home. OCS learned that Kylie was pregnant with Lou's child the following month. Because Ky-lie had previously revealed the pregnancy and continuing relationship to her therapist, OCS was concerned that Kylie was triangulating providers — "telling one professional one thing, another professional something else" — making it difficult to work as a team. The therapy center did not agree with that assessment. Kylie contended that her relationship with her daughter began to deteriorate in March, when Belinda was transferred to new foster parents who had little experience. Belinda began telling her new foster parents that her mother and father had hurt her; this led to another forensic interview, but no abuse was substantiated. OCS also moved visits from an off-site center to its own facilities. Belinda soon began exhibiting troubling behaviors and resisting visitation. In April OCS referred Belinda to individual therapy. This decision was made in part by an OCS supervisor who was herself receiving therapy from the same therapist and who was going through a contentious divorce involving significant domestic violence allegations. The original dyadic therapist tried unsuccessfully to coordinate efforts with this new thérapist and address issues that might arise if Belinda were to continue seeing them both. In May OCS abruptly ended Kylie and Belinda's dyadic therapy sessions. Also in May Lou was arrested on suspicion of involvement in a child's death; another woman he was seeing apparently killed her son and Lou was later convicted of failing to report the crime. Lou's arrest effectively terminated his relationship with Kylie. In July OCS cancelled visitation between Kylie and Belinda. OCS made the decision to cancel visitation based on the advice of Belinda's new therapist,- although that therapist had never met Kylie. Kylie began receiving individual therapy in August. In September OCS filed a petition for the termination of Kylie's and Kurt's parental rights. This situation generally continued — no dyadic therapy or visitation between Kylie and Belinda, each of them receiving individual therapy — until December, when Kylie engaged Dr. 'Marti Cranor, a licensed psychologist, to review the OCS file and give an opinion on OCS's decision-making in the case. Dr. Cranor was critical of OCS's efforts; she did not believe Belinda's individual therapy was appropriate, she believed dyadic therapy should not have been terminated, and she believed OCS had displayed a pattern of misrepresentation and exaggeration. In January 2015 an OCS staff manager reviewed the case and found it was not being handled appropriately. She believed OCS was not being very helpful and that providers were working at odds and not communicating. She directed visitation to resume, which it did in late January after almost seven months without any contact between Kylie and Belinda. The OGS staff manager also replaced Belinda's individual therapist. The, new therapist restarted dyadic therapy and diagnosed Belinda with post-traumatic stress disorder, observing a wide range of associated symptoms. The therapist noted that although Belinda and Kylie appeared to be making progress, things soon deteriorated again. She believed contact with Kylie was triggering Belinda's traumatic symptoms and that as a consequence their bond was weakening. In July Kylie made what she later acknowledged was a poor choice; she emailed Kurt after he was released from jail and arranged to meet with him in a public parking lot so she eould update him on Belinda. Kylie told the new therapist about the incident but then denied the contact when an OCS caseworker questioned her about it, maintaining her denial until the caseworker confronted her with a copy of the email she had sent Kurt. In September OCS issued a Quality Assurance Report — an internal review of its management of the case. The review documented a number of significant concerns, including that: services "have not been well organized and have not served to facilitate reunification"; OCS was not providing a warm environment for visitation; and documentation of visits was "overly negative," contributing to an unwarranted negative "narrative or belief system" about Kylie. Belinda's behavior surrounding visitation continued to regress; by October OCS workers and her foster parents had to physically force her to attend. Her therapist was concerned that visitation had become re-traumatizing for Belinda and that forcing her to attend threatened her ability to maintain safe relationships. Based on these concerns OGS made visitation voluntary, giving Belinda the option of attending visitation every week; Belinda consistently declined, effectively terminating visitation. In November Kylie obtained a neuropsy-chological assessment at OCS's request. The assessment was generally quite positive, concluding that Kylie understood the impact on her dadghter of past trauma and that Kylie eould safely care for her daughter as long as 'she avoided abusive relationships.' Although visitation had been effectively suspended, dyadic therapy continued. But by early 2016 the. therapist, who. had grown increasingly concerned about the risk continued joint therapy sessions posed to Belinda's mental health, discontinued dyadic therapy and limited Belinda to individual therapy instead. Meanwhile, Kylie secured a full-time job with the local school district, obtained affordable permanent housing, and completed a number of relevant training courses on her own initiative. Kylie had not been in a relationship since Lou's arrest in May 2014. A termination trial was held in June 2016. The trial court issued its decision on record in October. The court found that OCS met its burden of proof on all issues except for the requirement that it make reasonable efforts to reunify the family. Despite OCS's failure to demonstrate that it had made reasonable efforts, the court nonetheless terminated Ky-lie's parental rights, holding that the reasonable efforts requirement was "excused" because remedying the deficiency by providing OCS more time would be pointless and harm ful to Belinda due to the ruptured mother-child bond. ' Kylie appealed, and we earlier issued an order vacating the termination of her parental rights,. This opinion explains the basis for that order. III. STANDARD OF REVIEW " 'Whether OCS made reasonable efforts to reunify the family is a mixed ques-tipn of law and fact.' For mixed questions, "we review factual questions under the clearly erroneous standard and legal questions using our independent judgment.' " "Whether the superior court's factual findings satisfy the CINA statutes is a question of law that we review de novo, adopting the rule of law that is most persuasive in light of precedent, reason, and policy." IV. DISCUSSION Kylie challenges the trial court's finding that she failed to remedy the conduct or conditions that put Belinda at risk of harm and its holding that OCS was excused from making' reasonable efforts to reunify her family. Because we conclude the trial court improperly excused OCS's failure to demonstrate reasonable efforts were made, we do not reach the question of failure to remedy. A. Reasonable Efforts Play An Important Role In Every CINA Case. We have stated in the Indian Child Welfare Act (ICWA) context that the "scope, of the State's . dutfies]" may not be varied "based on subjective, preintervention criteria such as a parent's motivation or treatment- prognosis" because to- do so "might defeat the purpose of the active remedial effort requirement." This uncompromising standard holds true in every CINA case: even .if the outlook is bleak and the likelihood of success is low, the State has an obligation to provide "timely, reasonable efforts . designed . to enable the safe return of the child to the family home"; this obligation persists because "terminating parental rights is a drastic'measure," as we must always bear in mind. OCS's remedial efforts are a "critical component" of state intervention in the family; they serve to avqid the drastic measure of termination whenever feasible, and procedurally they form a "necessary bridge between a need of aid finding and a failure to remedy finding." Before t'erminat- ing parental rights, courts must "identify the problem that caused the [child] to be in need of aid" and then evaluate whether OCS made remedial "efforts to assist the parent in remedying the conditions that led to finding the child in need of aid" and ensure those efforts were "specifically designed to prevent the breakup of the . family." To provide anything less — although necessary and permissible in some circumstances — risks infringing the "right to the care and custody of one's own child . recognized by both the federal and state constitutions." B. It Was Error To Excuse Reasonable Efforts In This Case, .Alaska Statutes 47.10.086(a) and 47.10.088(a) "require a finding, by clear and convincing evidence, that OCS has made 'timely, reasonable efforts to provide family support services to the child and to the parents .,. that are designed to prevent out-of-home placement of the child or to enable the safe return of the child to the family home.' " "In the alternative," the trial court can find that OCS "was excused from the requirement to make reasonable efforts" if it finds by clear and convincing evidence that one of the bases listed in AS 47.10.086(c) applies. Two subsections arguably are relevant here. Reasonable efforts may be excused under subsection (c)(1) if "the parent . has subjected the child to circumstances that pose a substantial risk to the child's health or safety," including "abandonment, sexual abuse, torture, chronic mental injury, or chronic physical harm." They also may be excused under subsection (c)(7) if the "child has suffered substantial physical harm as the result of abusive or neglectful conduct by the parent . or by a person known by the parent . and the parent . knew or- reasonably should have known that the person was abusing the child." Alaska Statute .47.10.086(c)(1) was "designed to eliminate remedial requirements in extreme circumstances." "[T]he statutory framework prevents [OCS] from deciding on its own, prior to a hearing or order by the court, that reasonable efforts are unnecessary..., The statutory language instructs the court, arid not [OCS], to make the determination regarding the need for reasonable efforts...." "But the fact that [OCS] is precluded from determining on its own that reasonable efforts are unnecessary .,. does not preclude the eourt from determining after commencement of a termination trial that the reasonable efforts requirement is excused." Here the trial court found "OCS did not meet its burden of proof on the issue of providing reasonable efforts to reunify this family." But the court later continued: "That is not the end of the question though. . [O]nce I find that [OCS] has not met its reasonable efforts requirements, then the issue is what does the court do with that." The court felt that doing what "traditionally . happens" and setting the case out for 6 to 12 months to permit continued efforts was "a non-starter." The court instead chose to excuse the reasonable efforts requirement, stating that its decision was based on its understanding of testimony by Kylie's expert witness, Dr. Cranor, that the "parentchild bond has been irrevocably breached" so that it would be "harmful to [Belinda]" and pointless to continue attempting to reunify the family. Kylie argues the trial court erred by excusing the reasonable efforts requirement. OCS argues that we can affirm: first, on the alternative ground that OCS made reasonable efforts, notwithstanding the trial court's finding to the contrary; second, on the basis that the decision to excuse reasonable efforts was valid under AS 47.10.086(e)(1) or (c)(7), even if the trial court did not expressly rely on either. 1. The trial court did not clearly err in finding OCS failed to demonstrate it had made reasonable efforts. OCS first argues that we should "affirm the superior court's decision on the alternative ground[ ] that OCS's efforts, viewed in totality, were reasonable," in effect asking us to rule that the trial court clearly erred in finding OCS failed to demonstrate it had made reasonable efforts. But the trial court's determination was supported by evidence in the record. The court noted that OCS's own internal review found the department had unreasonably stopped visitation and made poor decisions, , and that those bad decisions had "really influenced the outcome of the case thereafter." OCS's internal review also found that: services "ha[d] not been well organized and ha[d] not served to facilitate reunification"; case managers had changed providers "because [they did] not like [the initial providers'] findings"; Kylie "appeared to be spot lighted [sic] in the visits" and the supervising OCS worker excessively regulated her interactions with Belinda; the OCS worker refused to refer to Kylie as "mom" during visits and did not provide a "warm environment"; Kylie "appear[ed] to be a lonely figure, not receiving much support"; "documentation of the visits [wa]s overly negative, appearing to inflate incidents"; and that this negative documentation "appealed] to migrate to other parts of the case record, contributing to a 'narrative or belief system' about the mother which may not [have been] based in fact." The trial court found the internal review's conclusions were buttressed by Dr. Cranor's testimony, which the court gave "value and weight." Dr. Cranor testified that: stopping visitation and changing therapy had been unwarranted; the decision to do so was based on "inaccurate or misleading information that had . been perpetuated in the file"; OCS had "tried to justify [the decision] after the fact by saying . the therapist told [them] to do" so when that was not the case; and OCS minimized positive information about Kylie while exaggerating harm to Belinda. OCS points to extensive other services it provided to the family, including visitation during other periods, regular therapy for both mother and daughter, efforts to remedy the problems identified in the internal review, various action and safety plans, referrals for UAs and a substance abuse assessment, and assistance with stress man--agement and housing. It argues that "the court's decision to narrowly focus on the months in which there was no visitation fails to appreciate or acknowledge" those "broader services" and notes that we. have frequently held reasonable efforts detenqina-tions must be made by looking at OCS's efforts in their entirety and not at a particular segment in time. These are valid arguments. But "we will not reweigh evidence when the record provides clear support for a trial court's ruling" and "[c]onflicting evidence is generally not sufficient to overturn a trial court's fae- tual findings." The trial court had clear support — from OCS's own 'witnesses and internal review, as well as credible expert testimony — for its finding that OCS failed to carry its burden of demonstrating it had provided reasonable efforts. That finding was not clearly erroneous. 2. Excusing reasonable efforts on the grounds provided was error.' Alaska Statute 47.10.086 permits a trial court to excuse reasonable efforts when it finds by clear and convincing evidence that one of the bases enumerated in AS 47.10.086(c) applies. But Kylie correctly argues that AS 47.10.086(c) "clearly [wa]s not [the] reason for the court's ruling." At the trial's conclusion the court noted its view of Dr. Cranor's testimony that the mother-daughter bond had been "irrevocably damaged" and asked for closing briefing on what to do with that information if it concluded sufficient services had not been offered by OCS. It acknowledged that "[s]ometimes judges will see cases" without sufficient services and will order additional time for further efforts, but stated "this ease doesn't resonate with me as something that if [there were not sufficient services]" more time would be an appropriate remedy. In its decision on record the court repeatedly pointed to its view of Dr. Cranor's testimony that the parent-child bond had been damaged or destroyed; the court based its decision to excuse the failure in services on its finding that the bond was destroyed and that further efforts would be harmful and pointless. The court relied exclusively on its conviction that further -efforts would be pointless, and it did not find by clear and convincing evidence that an AS 47.10.086(c) basis applied. That decision was legal error. Alaska Statute 47.10.088(a)(8) requires the trial court to determine by clear and convincing evidence that OCS has complied with AS 47.10.086's provisions; AS 47.10.086(a) provides that OCS "shall make timely, reasonable efforts" except, in relevant part, as provided in subsection (c), If the trial court does not find by clear and convincing evidence that one of those enumerated bases applies, there is no room in the statutory framework tó ¿xeuse reasonable efforts', on alternative bases. Nor would a decision to forego required reasonable efforts in expectation of their futility comport with bur parallel ICWA holdings; in that context we have stated that courts may not "vary the scope of the State's ICWA duty based on subjective, pre-intervention criteria such 'as a parent's motivation or treatment prognosis" because doing so "might' defeat the purpose of the active remedial effort requirement, for it would enable the State to argue,- in all doubtful and difficult cases, that it had no duty to make active remedial efforts." 3. We decline to affirm on the basis of AS 47.10.086(c)(1) or (c)(7). Citing Torrey v. Hamilton, OCS next argues that we "may affirm the superior court's decision on any appropriate ground, even if it is a ground that was rejected by the trial court," and that AS 47.10.086(c)(1) and (c)(7) both provide bases to do so. OCS contends that subsection (e)(7) should apply because the trial court "found Kylie subjected Belinda to circumstances that posed a substantial risk to her health or safety," noting she had "endured three physical injuries while in Kylie's care." OCS argues that although "the court's finding did not rest" on subsection (c)(7), its passing remark in its decision on record — the court, stated it "[didjn't disagree" that subsection (c)(7) should apply — shows the court "clearly understood that it could have." OCS concludes that "given the breqdth of evidence supporting the court's substantial physical harm finding — and Kylie's acknowledgement [sic] that the provision has 'some relation to this case,' " we "should affirm the court's finding that efforts were excused" under the statute. Kylie argues that if subsection (c)(7) "applies in this case — not a case at the margins of parent conduct . — then [the'statute] will apply in every CIÑA case involving domestic violence (whether the parent is the perpetrator or, like Kylie, the victim)." We first note that . AS 47.10.086(c) does not exist to absolve OCS's failure to execute its responsibilities in routine interventions; it is intended to operate as a safety valve, permitting courts to excuse — in the best interests of the child — remedial efforts if extraordinary circumstances or the parent's egregious conduct would render those efforts pro forma or, more importantly, endanger the'child's welfare. And second, although- OCS is correct that we "may affirm . on any appropriate ground," it is prudent, to avoid doing so when alternative grounds would require us to enter discretionary rulings best committed to the sound judgment of the trial court, which will generally be much more intimately familiar with the parties and the case. A finding that reasonable efforts are not required under AS 47.10.086(c) is just such a discretionary ruling. The statute permits trial courts to excuse reasonable effort's when one of the enumerated bases applies, but it does not require them to do so. We leave it for the trial court to first consider statutory exceptions to OCS's reasonable efforts requirement, if requested. V. CONCLUSION We REVERSE and VACATE the trial court's order terminating Kylie's parental rights. We REMAND for reconsideration of the trial court's order denying Kylie further visitation and for further proceedings consistent with this order. . Pseudonyms are used to protect the parties' privacy. . Under relevant Alaska Child in Need of Aid (CINA) statutes and rules, parental rights may be terminated at.trial only if OCS shows: (1)by clear and convincing evidence that (A) the child has been subjected to conduct or conditions described in AS 47.10.011 and (i) the parent has not remedied the conduct or conditions in the home that place the child at substantial risk of harm; or (ii) the parent has failed, within a reasonable time, to remedy the conduct or conditions in the home that place the child in substantial risk so that returning the child to the parent would place the child at substantial risk of physical or mental injury; [and] (2) by clear and convincing evidence that (A) the Department has complied' with the provisions of AS 47,10.086 concerning reasonable efforts; [and] (3) by a preponderance of the evidence that termination of parental rights is in the best interests of the child. CINA Rule 18(c); see also AS 47.10.088 (establishing requirements for termination). . Joy B. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 382 P.3d 1154, 1162 (Alaska 2016) (quoting Sherry R, v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 332 P.3d 1268, 1273-74 (Alaska 2014)). . Casey K. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 311 P.3d 637, 643 (Alaska 2013) (citing J.S. v. State, 50 P.3d 388, 391 (Alaska 2002)). . 25 U.S.C. § 1901-1963 (2012). . AM. v. State, 891 P.2d 815, 827 (Alaska 1995), overruled in part on other grounds by In re S.A., 912 P.2d 1235, 1241 (Alaska 1996). Although ICWA's." 'active efforts, requirement . is more demanding than the 'reasonable efforts' requirement of AS 47.10.086," Winston J. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 134 P.3d 343, 347 n.18 (Alaska 2006), and imposes a "higher burden" on OCS, Casey K. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 311 P.3d 637, 646-47 (Alaska 2013), the requirements serve the same function of attempting to facilitate the child's safe return to the parent, see CINA Rule 18(c)(2)(A)-(B); AS 47.10.086(a),. and the reasoning from ICWA cases on OCS's active efforts obligations in varying circumstances is generally applicable in non-ICWA cases as well, Winston J., 134 P.3d at 347 & n.18; cf. Jon S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 212 P.3d 756, 765 n.31 (Alaska 2009) ("Our conclusion that the superior court did not err in holding that the state met its active efforts requirement also disposes of [appellant's] argument that the state failed to meet the lower 'reasonable efforts' requirement in AS 47.10.086." (citing Winston J., 134 P.3d at 347 n.18)). . AS 47.10.086(a). . Christina J. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 254 P.3d 1095, 1104 (Alaska 2011) (quoting Martin N. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 79 P.3d 50, 53 (Alaska 2003)). . Josh L. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 276 P.3d 457, 468 (Alaska 2012) (Winfree, J., dissenting) (2-2 decision) (citing Christina J., 254 P.3d at 1104); see AS 47.10.086(a)(1) (requiring reasonable efforts to include "family support services that will assist the parent or guardian in remedying the conduct or conditions in the home that made the child in need of aid"), . Josh L., 276 P.3d at 468 (Winfree, J. dissenting) (2-2 decision) (alteration in original) (quoting Barbara P. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 234 P.3d 1245, 1262 (Alaska 2010)). . Id. (citing CINA Rule 18(c)(2)(B); Jon S., 212 P.3d at 763). . See AS 47.10.086(a) ("Except as provided in (b), (c), and (g) of this section, the department shall make timely, reasonable efforts.,.,"). . Seth D. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 175 P.3d 1222, 1227 (Alaska 2008) (quoting J.M.R. v. S.T.R., 15 P.3d 253, 257 (Alaska 2001)), . Joy B. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 382 P,3d 1154, 1164 (Alaska 2016) (alteration in original) (quoting AS 47.10.086(a)) (citing CIÑA Rule 18(c)(2)). . Vivian P. v. State, Dep't of Health & Soc. Servs,, Div. of Family & Youth Servs., 78 P.3d 703, 708 (Alaska 2003). . AS 47.10.086(c) lists these bases in 11 subsections. Qualifying reasons for excusing reasonable efforts under these subsections range from extreme criminal behavior — e.g" sexual abuse, torture of the child, or homicide of the other parent — to the - objectively demonstrated futility of further efforts — e.g., a parent's incarceration or ' failure to comply with court orders, OCS's inability to identify or locate a parent after diligent • search, or a recurring pattern of removal from the home. . AS 47.10.086(c). . Vivian P., 78 P.3d at 708 (citing J.S. v. State, 50 P.3d 388, 392 & n.13 (Alaska 2002)). . Id. at 709 (citing AS, 47.10.086(c)). . Id. . See Frank E. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 77 P.3d 715, 720 (Alaska 2003) ("[W]e examine whether the state's reunification efforts, when looked at in their entirety, satisfy the requirements of AS 47.10.086(a)."). . Emma D. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 322 P.3d 842, 849 (Alaska 2014) (quoting Chloe O. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 309 P.3d 850, 856 (Alaska 2013)). . We note our concern that Dr. Cranor's testimony was too conditional and ambiguous to stand as the primary support for the trial court's determination. There were two relevant exchanges at trial. On direct examination by Kylie's attorney, Dr. Cranor testified: . Q: Based on your two reports and what you viewed of the file through March of 2016, did you come tó any conclusions as to whether OCS has acted fairly with [Kylie]? ; A: In my opinion, I do not believe she was given a fair opportunity to demonstrate that she was able to safely parent her child and, . I believe that she was deprived visitation for questionable reasons and that, as a result'of that, more than likely . her relationship with her daughter has been irrevocably altered, if not destroyed. On cross-examination by OCS shortly after this, Dr. Cranor testified: Q: So based on ybur experience and the information you reviewed, what services should be and are available in Fairbanks, and how long-well, what services would be available if the dyadic therapy isn't working to repair what you perceive to'be an irreparable rift in the parent-child bond? A: Well, I think you just answered the question there. If it's irreparable, I don't think there are services that can repair it. Q: So at this point, your testimony would be that perhaps no length of time of further waiting is going to fix our current situation? A: That's correct. The trial court interpreted this testimony as conclusive evidence that the parent-child bond had been ruptured beyond repair. Kylie challenges 'the court's interpretation of Dr. Cranor's testimony with justification. Kylie is correct that Dr. Cranor on direct examination did not take as strong a stand as the court later credited. Dr. Cranor testified that the relationship had 'more' than likely" been "irrevocably, altered, if not destroyed." If the relationship had merely been altered, then that would undermine the reasoning behind the trial court's decision to terminate parental rights. And if the damage were not "irrevocabl[e]" — a possibility Dr. Cra-nor's testimony allowed for, although she believed it more likely that the damage was permanent — that would also undermine the basis for the decision. It also is noteworthy that in this first exchange, Dr. Cranor was responding to a question not about the extent or manner of the damage to the mother-child relationship - but about OCS's failings in the case; she referenced the damage only in passing to illustrate the problems caused by what she considered OCS's unfair treatment of Kylie. Kylie's challenge to the trial court's interpretation of Dr. Cranor's testimony on cross-examination likewise has merit. As Kylie notes, "Dr. Cranor answered a conditional and tautological question with a conditionally affirmative answer." This is an accurate characterization. The question was conditional: "[W]hat services would he available if the dyadic therapy isn't working .?" The question was tautological: What could be done to "repair . an irreparable rift .?" And the answer was only conditionally affirmative: "If it's irreparable, I don't think there are services that can repair it." OCS responds with two arguments. It first notes that Dr. Cranor was asked what could be done to repair "what you perceive to be an irreparable rift," and that rather than denying she viewed the rift as irreparable or otherwise equivocating about the question's assumptions, she simply stated that in such a situation nothing could be done. OCS then points to the -exchange's conclusion as confirmation that the doctor did not question the premise of an irreparable rift that further efforts could not repair. In that exchange Dr. Cranor answered affirmatively when asked whether "your testimony would be that perhaps no length of time of further waiting is going to fix our current situation." That is questionable: "perhaps", means just that — perhaps. . The court - made a passing reference to AS 47.10.086(c)(7) in its decision on record, when acknowledging OCS's argument — made'"for the first time in its closing brief after trial had' concluded — that the ' subsection should apply, remarking that it "[didjn't disagree with that." Briefly acknowledging OCS's closing argument does not constitute -a finding by clear and convincing evidence that the subsection applies under the facts of this case. The only other legal authority the trial court provided for excusing reasonable efforts was our decision in Vivian P. v. State, Department of Health & Social Services, Division of Family & Youth Services, 78 P.3d 703 (Alaska 2003). But in that case the trial court found OCS was excused from the reasonable efforts requirement on the basis of AS 47.10.086(c)(1) because the parent had subjected the child to "chronic mental injury or chronic physical harm." Id. at 708. . AS 47.10.086(a) (emphasis added). . A.M. v. State, 891 P.2d 815, 827 (Alaska 1995), overruled in part on other grounds by In re S.A., 912 P.2d 1235 (Alaska 1996). . 872 P.2d 186, 188 (Alaska 1994) ("Although the trial judge explicitly declined -to base the award on Civil Rule 79, ¿is court may affirm the judgment on any appropriate ground, even if it is a ground which was rejected by the trial court." (citing State v. Alaska Land Title Ass'n, 667 P.2d 714, 725 (Alaska 1983); Ransom v. Haner, 362 P.2d 282, 285 (Alaska 1961))). . See AS 47.10.086(f) ("In making determinations and reasonable efforts under this section, the primary consideration is the child's best interests."). . See Vivian P., 78 P.3d at 708 (noting AS 47.10.086(c)(1) was "designed to eliminate remedial requirements in extreme circumstances" (citing J.S. v. State, 50 P.3d 388, 392 & n.13 (Alaska 2002))). . Torrey, 872 P.2d at 188 (citing Alaska Land Title Ass'n, 667 P.2d at 725; Ransom, 362 P.2d at 285). . See Snyder v. Am. Legion Spenard Post No. 28, 119 P.3d 996, 1001 (Alaska 2005) ("The rule that an appellate court may affirm a judgment on any ground supported by the record regardless of whether the ground was relied on by the trial court should not ordinarily extend to discretionary rulings that the court might properly have declined to make. But where it is clear that the court would have exercised its discretion, in a manner that upholds the judgment, .we believe that an appellate court can properly apply the rule."); see also Moira M. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs,, 370 P.3d 595, 602 (Alaska 2016) ("(T]he statutoiy scheme recognizes the superior court's role in determining whether OCS may cease making reasonable efforts." (citing AS 47.10.086(b)-(c))); cf. Parson v. State, Dep't of Revenue, Alaska Hous. Fin. Corp., 189 P.3d 1032, 1039 (Alaska 2008) ("Although ap, appellate court may affirm a grant of summary judgment based on any grounds appearing in the record, this power is discretionary." (citing Snyder, 119 P.3d at 1001)). . See AS 47.10.086(c) ("The court' may determine that- reasonable efforts . are not required" (emphasis, added)).

12345689

Lewis JORDAN Jr., Appellant, v. STATE of Alaska, Appellee

Jordan v. State

2017-09-29

Court of Appeals No. A-12004

499

501

407 P.3d 499

407

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-11T02:30:42.741741+00:00

CAP

Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge.

Lewis JORDAN Jr., Appellant, v. STATE of Alaska, Appellee.

Lewis JORDAN Jr., Appellant, v. STATE of Alaska, Appellee. Court of Appeals No. A-12004 Court of Appeals of Alaska. September 29, 2017 Megan M. Rowe, Denali Law Group, P.C., Anchorage, and Michael Barber, Barber Legal Services, Boston, Massachusetts, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge. Sitting by assignment made pursuant to Ardele IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).

1272

8022

' OPINION Senior Judge COATS. Lewis Jordan Jr., was charged with various counts of assault and controlled substance misconduct. At the close of the State's casein-chief at Jordan's trial, the prosecutor announced that the State wished to dismiss one of the assault chai'ges with prejudice (because the State was unable to locate two crucial witnesses). Jordan's attorney stated that he did not oppose the State's dismissal of the charge, and the charge was dismissed. Jordan now argues that it was plain .error for the judge to allow the State to dismiss this assault charge without Jordan's personal consent, and he claims that this error prejudiced him because it affected the jury's deliberations on the remaining charges. For the reasons explained in this opinion, we conclude that a defendant's personal consent is not required when the State dismisses a charge with prejudice. The trial judge committed no. error, and we therefore affirm Jordan's.convictions.- , Background facts and proceedings Anchorage police officers arrested Jordan for assaulting a woman, P.S. In the course of the arrest and the ensuing pat-down search of Jordan's person, the officers discovered drugs. When 'the police found the drugs, Jordan became agitated and he started fighting yríth the officers. The officers wrestled with Jordan for several minutes before they were able to restrain him. Based on this episode, Jordamwas charged with several crimes, including one charge of fourth-degree assault against P.S., based on the events that took place before the officers arrived. At the close of the State's case-in-chief, the prosecutor announced that the State intended to dismiss the assault charge involving P.S. because the State had been unable to locate the two witnesses it needed to prove this charge: Prosecutor: Your Honor, 'the State is prepared to rest its case. But before doing so, I'd like to explain that we were unable to locate [a witness at the apartment building] although [we served him with a] subpoena. We were [also unable] to locaté [P.S.] Based on that, the'State will dismiss Count III, assault in the fourth degree against [P.S.] The Court: That is Count III, Any objection? Defense Attorney: No objection, Your Honor. The Court: Thank you. It'll be dismissed. With prejudice? Prosecutor: [Yes], Judge. Jordan's trial continued, and the jury found him guilty of all the remaining charges — ie., the drug charge and the charges based on Jordan's fight with the officers. Why we conclude that Jordan did not have to personally consent to the State's dismissal of the assault charge with prejudice Jordan argues that the superior court committed plain error when it allowed the State to dismiss the assault charge involving P.S. without obtaining Jordan's personal consent. According to Jordan, Alaska Criminal Rule 43(a)(1) requires a defendant's personal consent whenever the State wishes-to dismiss a charge after the defendant's trial has-begun. Criminal Rule 43(a)(1) declares: The prosecuting attorney may füe a dismissal of an indictment, information or complaint[,] and the prosecution shall thereupon terminate. Such a dismissal shall not be filed during the trial without the consent of the defendant. Jordan argues that, because .the dismissal of the assault charge occurred in the middle of his trial, the dismissal could not occur "without the consent of the defendant" — which Jordan interprets to mean his personal consent rather than the consent of his defense attorney. But our research shows that Criminal Rule 43(a)(1) is addressed to dismissals mthout prejudice — that is, dismissals' that leave the State free to reprosecute the charge. Alaska's Criminal.Rule 43(a) is drawn from the corresponding federal rule, Federal Criminal Rule 48(a). That-.federal rule provides: The government may, with leave of court, dismiss an indictment, information, or complaint. The government may not dismiss the prosecution during trial without the defendant's consent. As explained in Wright and Hen-ning's Federal Practice and Procedure; even though Federal Criminal Rule 48(a) seemingly applies to any dismissal of a criminal charge, the rule is actually addressed solely to instances where the government files a notice of nolle prosequi — ie., a dismissal without prejudice. The purpose of the second sentence of Federal Criminal Rule 48(a), which requires the defendant's consent to any mid-trial nolle prosequi, is to protect the defendant against double jeopardy and to prevent the government from engaging in the harassing tactic of charging the defendant, dismissing the charge, and then refiling the charge. Under federal case law, if a court erroneously allows the government to nolle prosequi a criminal charge without the defendant's consent after the jury is sworn at the defendant's trial, the remedy is to convert the dismissal into a dismissal with prejudice. This latter type of dismissal does not require the defendant's consent because the government is barred from reviving . the charge. We interpret Alaska Criminal Rule 43(a) as codifying the same principle as the federal rule. That is, . Criminal Rule 43(a) bars the State from dismissing a charge without prejudice after the jury has been sworn at the defendant's trial unless the defendant consents. In Jordan's case, the prosecutor was not trying to nolle prosequi the assault charge involving P.S. — ie., not trying to dismiss the charge in such a way as to leave the State free to pursue the charge later. Rather, the prosecutor announced that the State would dismiss this charge with prejudice. In other words, there was no possibility that Jordan could be tried and convicted of this charge later, . Criminal Rule 43(a) does not require the defendant's consent in this circumstance. We therefore find no error in the trial court's handling of this matter. Because we hold that Criminal Rule 43(a) does not apply to dismissals with prejudice; we need not decide whether the rule requires a defendant's personal consent (as opposed to their attorney's consent) when the State wishes to nolle prosequi a charge after the jury has been sworn. Conclusion We AFFIRM the judgment of the superior court. . The other charges were fourth-degree controlled substance misconduct (former AS 11.-71.040(a)(3)(A)) (pre-2016 version); fourth-degree assault (AS 11.41.230(a)(1)); resisting or interfering with an arrest (AS 11.56.700(a)(1)); and violating the -conditions of release (formen AS 11.56.757(b)(2)) (pre-2016 version). . See Adams v. State, 261 P.3d 758, 764 (Alaska 2011) (to establish plain error, the defendant must show that the error "(1) was not the result of intelligent waiver or a tactical decision not to object; (2) was obvious; (3) affected substantial rights; and (4) was prejudicial"). . Charles Alan Wright and Peter J. Henning, Federal Practice and Procedure: Criminal (4th ed. 2013), § 801, Vol. 3B, pp. 324-29; see Advisory Committee Notes to Fed. R. Crim. P., 48(a); Spriggs v. United States, 225 F.2d 865, 867-68 (9th Cir. 1955). . See Rinaldi v. United States, 434 U.S. 22, 29 n.15, 98 S.Ct. 81, 54 L.Ed.2d 207 (1977). . See State v. Storer, 368 S.W.3d 293, 296 (Mo. App. 2012) (if the defendant does not consent to a dismissal without prejudice during trial, then the remedy is that the charge is dismissed with prejudice).

12345669

Jack W. FREDRICKSON, Appellant, v. Allison O. HACKETT, Appellee

Fredrickson v. Hackett

2017-10-27

Supreme Court No. S-16298

480

485

407 P.3d 480

407

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-11T02:30:42.741741+00:00

CAP

Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.

Jack W. FREDRICKSON, Appellant, v. Allison O. HACKETT, Appellee.

Jack W. FREDRICKSON, Appellant, v. Allison O. HACKETT, Appellee. Supreme Court No. S-16298 Supreme Court of Alaska. October 27, 2017 Jack W. Fredrickson, pro se, Sitka, Appellant. James W. McGowan, Sitka, for Appellee. Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.

2239

14389

OPINION STOWERS, Chief Justice. I. INTRODUCTION A married couple with the assistance of an attorney-mediator reached a settlement agreement and filed for divorce in January 2012. Under the agreement the marital home and primary physical custody of. the couple's three children were awarded to the mother. After the divorce the father moved into a cabin and expanded it to the point that it was able to adequately house the children. The father moved to modify custody on the grounds that there had been a substantial change in circumstances since the original custody order. The superior court denied the motion without a hearing, and the father appeals. We hold that the father presented evidence of a substantial change in circumstances and that the court should have conducted an evidentiary hearing. We therefore reverse and remand for further proceedings. II.FACTS AND PROCEEDINGS Jack W. Fredrickson and Allison 0. Hack-ett married in February 1996. Three children were bom during the marriage, all of whom are still minors. An attorney-mediator assisted Fredrickson and Hackett in settling property and custody issues and in jointly filing their divorce petition in January 2012. The superior court issued a divorce decree in March 2012 adopting the parties' "Child Custody, Child Support, and Property Settlement Agreement." Under their property agreement, Fre-drickson received a cabin that was rented to a tenant at the time, and Hackett received the family home. Them child custody agreement provided that Fredrickson and Hackett would have shared legal custody and that Hackett would have primary physical custody. It set forth a detailed schedule of when the children would be with Fredrickson. Under this schedule Hackett would have physical custody of the children approximately 75% of the time and Fredrickson would have physical custody of the children approximately 25% of the time. In August 2015 Fredrickson, representing himself, filed a motion and affidavit to modify custody, visitation, and child support. Fre-drickson requested shared physical custody, seeking approximately 40% custody of the children instead of 25%. Hackett, represented by counsel, partially opposed the motion to modify, opposing modification of custody and visitation but agreeing that modification of child support was needed. In his motion and affidavit Fredrickson stated that the agreement to give Hackett the family home left him without suitable housing for the children. While Hackett and the children lived in the family home, Fre-drickson initially lived with family and friends and, briefly, at his church. Later, the tenant of the cabin that Fredrickson received in the divorce moved out, and Fredrickson moved into the cabin. He then built an approximately 1,300-square-foot addition, so the cabin had "a large kitchen/living area with two and a half bathrooms" and separate bedrooms for each child. The superior court denied Fredrickson's motion to modify custody and visitation without a healing and requested more information -with respect to the motion to modify child support. The court's order explained that Fredrickson's remodeling of the cabin constituted "merely an improvement insufficient to establish a significant change in circumstances." Fredrickson appeals the denial of his motion to modify custody and visitation without a hearing. The child support modification is not at issue on appeal. III. STANDARD OF REVIEW We review de novo the denial of a motion to modify custody or visitation without a hearing. "[W]e take the moving party's allegations as true" to determine whether the moving party has demonstrated a sufficient change in circumstances to warrant a hearing. "[W]e will affirm the denial if '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 Interpreting The Custody Agreement. As an initial matter, Fredrickson argues that in their settlement agreement the parties intended to provide for shared physical custody with a 60/40 custody split. He notes that some of the child support materials, including the child support order, stated that the parties would have shared 60/40 custody. Child support was calculated based on this custody division, and this shared-custody child support calculation was incorporated into the child support section of the settlement agreement. The superior court concluded that "[t]here was, no ambiguity about the custody and visitation," that "[t]he terms of the parties' agreement . were specific and detailed," and that use of a 60/40 split for child support "embodie[d] a simple clerical error." We review de. novo the superior court's interpretation of the settlement agreement and agree that there was no ambiguity about the approximate amount of time each party would have custody. The custody section of the agreement stated that Hackett would have primary physical custody and provided a detailed schedule of the dates and times Fredrickson would have custody. All references to shared 60/40 custody were brief and concerned child support. "We construe settlement agreements in dissolutions using traditional contract principles." "In contracts, as in statutes, 'where one 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.' " We affirm the superior court's interpretation of the custody agreement. We next consider Fredrickson's argument that there was a change in circumstances sufficient to warrant a hearing. B. Fredrickson's Allegations About Changes In Living Conditions Warrant A Hearing. Alaska Statute 25.20.110(a) provides, "An award of custody of a child or-visitation with the child may be modified if the court determines that a change in circumstances requires the modification of the award and the modification is in the best interests of the child." We have held that "[a] parent seeking to modify physical custody must . demonstrate that a substantial change in circumstances has taken place since the last custody order was entered." "The 'change in circumstances' requirement is 'intended to discourage, continual relitigation of custody decisions, a policy motivated by the judicial assumption that finality and certainty in custody matters are critical to the child's emotional welfare.' " We have explained that the denial of a motion to modify custody or visitation without a hearing is analogous to a decision on summary judgment. The trial court must take the allegations of the moving party as true and may deny a hearing only when "the facts alleged, even if proved, cannot warrant modification, or if the allegations are so general or eonclusory, and so convincingly refuted by competent evidence, as to create no genuine issue of material fact requiring a hearing." For determining whether there has been a substantial change in circumstances in this case, the relevant date of comparison is March 9, 2012, when Fredrickson and Hack-ett obtained a divorce decree incorporating their settlement agreement. In his motion to modify custody Fredrickson alleged that by giving Hackett the marital home, the settle ment agreement left him without a permanent home and his lack of a permanent home left him without living conditions suitable for the children. At the same time the agreement also provided that Haekett would receive primary physical custody of the children. Fre-drickson's' circumstance — his ability to provide living conditions suitable for children— substantially changed when Fredrickson's previous tenant left and Fredrickson moved into his cabin and enlarged it to provide suitable housing for the children. We have suggested that changes of this nature could require a hearing, In the unpublished case Ware v, Farquhar we affirmed a superior court decision that modified visitation based on the father obtaining "proper accommodations for longer visits." The pri- or custody order in Ware "explicitly envisioned modification" by providing that the visitation schedule it set out would govern until the father "[could] provide proof' of proper accommodations for longer visits." We concluded that the father "obtaining] a larger apartment .' constituted a change in circumstances adequate to modify the visitation agreement." Although the parties' settlement agreement in this case contained no such provision, the custody section of the agreement provided that Haekett would have primary custody at the same time the property division section left Fredrickson without suitable accommodations. for the children. This alleged change in Fredrickson's living situation is therefore substantial. Haekett argues that Fredrickson's expansion of his cabin was a "mere improvement" and that our cases concerning 'mere improvements" by one party control this case. It is true that we have said "mere improvements" in the position of one party do not establish a substantial change in circumstances sufficient to modify custody. But these cases concern motions to modify custody because- of á non-custodial parent's newfound sobriety or because of-general improvements in maturity and economic situation by both-parties. Where a parent has developed a record of "overall maturation" and "sustained control of a former drinking problem," we have found a substantial change in- circumstances. In this case Fre-drickson obtained a permanent residence and then substantially increased its size. This change Was not temporary and was directly -related to Fredrickson's ability to house the children, Fredrickson has alleged a substantial change in his living situation. Fredrickson alleges a substantial change in his living conditions. This substantial change is a change sufficient under AS' 25,20.110(a) to require a hearing. Because we conclude that Fredrickson's allegations about his change in living situation are sufficient to require a hearing on his motion to modify custody, we need not consider whether he has alleged a change in circumstances sufficient to modify visitation, which requires "a lesser showing." We also need not consider whether the other allegations in Fredrickson's motion and affidavit would warrant a hearing. On remand the superior court is free to consider all relevant evidence with respect to potential changes in custody or visitation. V. CONCLUSION We AFFIRM the superior court's interpretation of the settlement agreement: But we REVERSE the court's order denying Fredrickson's motion to modify custody and visitation without a hearing and REMAND for further proceedings consistent with this opinion. . Abby D. v. Sue Y., 378 P.3d 388, 391 (Alaska 2016). . Id. (quoting Collier v. Harris, 261 P.3d 397, 405 (Alaska 2011)). .Id. (quoting Bagby v. Bagby, 250 P.3d 1127, 1128 (Alaska 2011)). . See Martin v. Martin, 303 P.3d 421, 429 (Alaska 2013). . Id. (citing Villars v. Villars, 277 P.3d 763, 768 (Alaska 2012)). . Norville v. Carr-Gottstein Foods Co., 84 P.3d 996, 1004 (Alaska 2004) (quoting In re Estate of Hutchinson, 577 P.2d 1074, 1075 (Alaska 1978)). . Fredrickson argues that the settlement agreement was rushed and that neither he nor the attorney-mediator understood the agreement. He did not argue this in superior court, and even if true, the settlement agreement is unambiguous. Fredrickson also argues that he should be able to modify the custody agreement under the provision for modification in the agreement.'But that provision states simply that either party may file a motion to modify custody if the party believes there has been a substantial change in circumstances, the standard for motions to modify under AS 25.20.110. These arguments similarly fail. . Collier v. Harris, 261 P.3d 397, 403, (Alaska 2011) (citing Hunter v. Conwell, 219 P.3.d 191, 195-97 (Alaska 2009)). . Id. (quoting Peterson v. Swarthout, 214 P.3d 332, 340-41 (Alaska 2009)). . Id. at 404 (citing C.R.B. v. C.C., 959 P.2d 375, 378 (Alaska 1998)). . Abby D. v. Sue Y., 378 P.3d 388, 391 (Alaska 2016) (quoting Bagby v. Bagby, 250 P.3d 1127, 1128 (Alaska 2011)) (citing Collier, 261 P.3d at 405). . No. S-6838, 1996 WL 34396516, at *3 (Alaska Nov. 20, 1996). . Id. at *1,*3. . Id. at *3 (citing Kramer v. Kramer, 738 P.2d 624, 626 (Utah 2987)). . In Yvonne S. v. Wesley II, we explained that an alleged change in living conditions might have warranted a hearing except the superior court had previously identified the mature child's strong preference as the "most significant factor" in its custody decision and neither party alleged that this preference had changed. 245 P.3d 430, 431, 435-36 (Alaska 2011). Neither party in this case alleged that a factor other than the parties' living conditions was the most signif- . icant factor. Of course, after a hearing tire superior court may find that housing was not a significant factor to the parties when they agreed on custody or that it should not be a significant factor now. Whether a hearing on custody modification is needed presents a purely legal question, but after a hearing the superior court may make factual findings and has broad discretion in deciding whether to modify custody. Collier v. Harris, 377 P.3d 15, 20 & n.14 (Alaska 2016). . Haekett cites our discussion of "mere improvement[s]" in Nichols v. Mandelin, 790 P,2d 1367, 1372 n.15 (Alaska 1990) (first quoting Gratrix v. Gratrix, 652 P.2d 76, 82 (Alaska 1982); then quoting Garding v. Garding, 767 P.2d 183, 186 (Alaska 1989)). . See Abby D. v. Sue, Y., 378 P.3d 388, 394-97 (Alaska 2016); Garding, 767 P.2d at 185-86; Gratrix, 652 P.2d at 83-84. . See Abby D., 378 P.3d at 394-97; Garding, 767 P,2d at 185-86; Gratrix, 652 P.2d at 83-84. . Nichols, 790 P.2d at 1372. . Collier v. Harris, 261 P.3d 397, 408 (Alaska 2011) (citing Havel v. Havel, 216 P.3d 1148, 1151 n.6 (Alaska 2009)).

12345653

Sababu HODARI, Appellant, v. STATE of Alaska, DEPARTMENT OF CORRECTIONS, Appellee

Hodari v. State, Department of Corrections

2017-10-27

Supreme Court No. S-16347

468

474

407 P.3d 468

407

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-11T02:30:42.741741+00:00

CAP

, Before: Stowers, Chief Justice, Bolger,, and Carney, Justices. [Winfree and Maassen, Justices, not participating.]

Sababu HODARI, Appellant, v. STATE of Alaska, DEPARTMENT OF CORRECTIONS, Appellee.

Sababu HODARI, Appellant, v. STATE of Alaska, DEPARTMENT OF CORRECTIONS, Appellee. Supreme Court No. S-16347 Supreme Court of Alaska. October 27, 2017 ■Jon Buchholdt, Buehhojdt Law Offices, Anchorage, for Appellant. John K. Bodick, Assistant Attorney General, Anchorage, and Jahna Lindémuth, Attorney General, Juneau, for Appellee. , Before: Stowers, Chief Justice, Bolger,, and Carney, Justices. [Winfree and Maassen, Justices, not participating.]

3326

20674

OPINION CARNEY, Justice. I. INTRODUCTION In May 2014 the Alaska Department of Corrections found Sababu Hodari, an inmate at Palmer Correctional Center, guilty of a disciplinary infraction. Hodari appealed the Department's decision to the superior court, arguing that the Department violated his right to due process by failing to follow prescribed procedure in the disciplinary hearing. While the appeal was pending the Department reversed its decision and removed the disciplinary records from Hodari's file.' The superior court then found that Hodari had effectively prevailed on his appeal, and it allowed him to recover costs and- fees from the Department. Hodari moved for an award of $4,800 in attorney's and paralegal fees. The court awarded Hodari fees and costs but did not specify the amount of the award in its order, so the Department moved for clarification of the fee-award order. In its clarification order the court stated that because Ho-dari had not shown that the paralegal' fees were for legal work "ordinarily performed by an attorney," he was only entitled to $1,800 in attorney's fees. Hodari appeals, arguing that the superior court abused its discretion in refusing to award him paralegal fees. We disagree, and we therefore affirm the superi- or court's fee award. II. FACTS AND PROCEEDINGS At a Department of Corrections disciplinary hearing held in May 2014, Sababu Hodari was found-guilty of planning an escape from Palmer Correctional Center. He filed an appeal in the superior court in August 2014, arguing that the Department had violated his right to due-process by failing to provide him with a complete disciplinary report and by relying on evidence it did not disclose to him. While Hodari's appeal was pending the De-; partment informed the court that it intended to conduct a new hearing on Hodari's disciplinary offense. The court therefore concluded that "Hodari has effectively prevailed here," and it ordered the Department .to show cause why the court should not grant Hodari his requested relief along with costs and fees. In its response to the show cause order the Department asked the court to require Ho-dari to file a motion for costs and fees; it requested that the "statement of costs and fees should include a statement of the specific work performed, the date the specific work was performed, who performed the work, the credentials of the person who performed the work, and the hourly rate for the work." The superior court then issued an order dismissing the appeal, naming Hodari the prevailing party, and stating that Hodari "may seek costs and/or fees as may be allowed under the law." Hodari's counsel submitted a motion for award of attorney's fees in which he stated that he had spent six hours at $300 per hour on the appeal, and that his office expended an additional twenty hours of "non-attorney (paralegal) time" at $150 per hour on the appeal. He did not itemize his fees in any further detail. The Department questioned the accuracy of this hourly reporting, asserting that "[tjhere is no way filing the form pleadings, reviewing this 17-page record, listening to a 5-minute hearing CD, and writing this one argument took six hours of attorney time and 20 hours of paralegal time." It asked the court to deny Hodari's motion for attorney's fees, or, if the court granted the motion, to require Hodari to submit "an itemized statement of the actual hours performed on this case which includes the work performed, the date of the work, who performed the work and the amount of time of the work performed on that date." The court granted Hodari's motion for attorney's fees without ordering him to submit an itemized fee request. It determined that Alaska Appellate Rule 508, which governed the fee award in this case, allowed it to grant full reasonable fees and costs to Hodari as a constitutional claimant under AS 09.60.010. The court did not, however, specify the amount of fees the Department was required to pay Hodari; it stated only that "[t]he requested attorneyt's] fees and costs are reasonable and would not impose a substantial and undue hardship on DOC." The Department moved to clarify the court's order, asking for clarification of three issues. First, it stated that neither Hodari's motion for attorney's fees nor the court's order specified the amount of fees to be paid. Second, it noted that the affidavit attached to the motion for attorney's fees listed both attorney and' paralegal fees, but the court had not specified whether the Department was required to pay the paralegal fees. And third, it observed that although the court's order mentioned costs, Hodari had not requested costs in his motion for attorney's fees. The Department therefore argued that "a more specific order is necessary for the Department to remit payment." Hodari filed a notice of partial non-opposition to the Department's request for clarification, stating that he was seeking $4,800 in fees to be paid by May 19,2016. In its order on the motion for clarification the court noted that AS 09.60.010, under which Hodari was entitled to reasonable attorney's fees, does not define the term "attorney's fees." The court therefore adopted the Alaska Civil Rule 82 definition of attorney's fees as "includ[ing] fees for legal work customarily performed by an attorney but . delegated to . [a] paralegal." It noted that Hodari had not itemized his fee request or indicated whether the twenty hours of paralegal work he was requesting included work "customarily performed by an attorney," and it concluded that the Department's request for itemized details "was sufficient to raise the issue." Because Hodari had not identified which of the paralegal hours fell within the definition of attorney's fees, the court limited the fee award to "actual attorney time" and awarded Hodari $1,800 in attorney's fees, the amount corresponding to the hours he had listed as attorney work. Following the court's order, Hodari filed a motion for reconsideration arguing that the Department had not questioned whether the paralegal work was work "customarily performed by an attorney," but rather had asserted that the number of work hours claimed was unreasonable. Because he believed the Department had not raised the question whether the paralegal fees were to be included in the attorney's fees, he argued that it was error for the court to raise the question sua sponte. He argued that the court instead should have ordered him to submit a more specific, itemized list of the paralegal fees he was seeking so that "the court could examine the records for reasonableness." In support of his motion for reconsideration, Hodari submitted an affidavit itemizing his paralegal fees. The court denied the motion, concluding that Hodari did not present any argument "that could not have been addressed" "in briefing on the motion for attorney's fees." The court reiterated that the Department had asked Hodari to itemize his requested fees, but Hodari had failed to do so. Hodari now appeals, arguing that the court abused its discretion in denying the award of paralegal fees. III. STANDARD OF REVIEW We review a superior court's award of attorney's fees for abuse of discretion; the same standard of review applies when the superior court acts as an intermediate appellate court. We will find an abuse of discretion when the superior court's award of attorney's fees is "arbitrary, capricious, manifestly unreasonable, or improperly motivated." IV. DISCUSSION In an appeal from an agency decision to the superior court, Appellate Rule 508 governs the award of attorney's fees. Attorney's fees may be 'awarded under the rule only if they are "provided by statute, case-law, or contract." For .parties prevailing on a claim or appeal "concerning the establishment, protection, or enforcement of a right under the United States Constitution or the Constitution of the State of Alaska," AS 09.60.010(c)' requires courts to award "full reasonable attorney fees and costs." Alaska Statute 09.60.010(c) does not specifically define "attorney's fees." However, "we have allowed the superior court to use Rule 82(b)(2) as a guideline in an administrative appeal," and Rule 82(b)(2) defines attorney's fees as "includ[iñg] fees for legal work customarily performed by an attorney but which was delegated to and performed by an investigator, paralegal or law clerk." Although the court has broad discretion in awarding attorney's fees, where a fee-award rule "authorizes reasonable actual fees, a court may not award attorney's fees to a party who has not itemized his or her requested fees, when the opposing party has requested such itemization." A. The Court Did Not Abuse Its Discretion In Declining To Award Hodari Paralegal Fees. Hodari argues that the Department did not request an itemization of his attorney's fees. He concedes that "had a specific and cognizable request for itemization been lodged, it would- have been his duty to provide one." But he argues that the Department's purported request for itemization consisted of only "one cursory sentence located in an alternative argument in the conclusion" of its opposition to attorney's fees, and that this request was not sufficient to require him to submit .a fee itemization. He asserts that, had the court ordered him to itemize his fee request, he "would have immediately complied" — indeed, he argues, once the court's final- order put him on notice of the itemization requirement, he duly submitted his itemized paralegal fee request along with his motion for reconsideration. Hodari's argument that the Department's request for fee itemization was not sufficiently specific and cognizable is not supported by our precedent. In Marrón v. Strómsiad'we held that the paying party's request for a "detailed listing of services" in her opposition to a motion for attorney's fees was "sufficiently specific and cognizable" to require the moving party to submit a fee itemization. Like the paying party in Mar-rón, the Department in this case included a clear, detailed request for fee itemization in its opposition to Hodari's motion for attorney's fees: It asked Hodari to provide "an itemized statement of the actual hours performed on this case which includes the work performed, the date of the work, who performed the work and the amount of time of the work performed on that date." This request specifically identified the information sought from the itemization, and it was sufficient to require Hodari to submit a fee itemization. As the Department points out, Ho-dari did not present evidence regarding his paralegal fees until his motion for reconsideration, and courts will ordinarily not consider new'evidence in a motion for reconsidera^ tion. Because Hodari failed to submit a fee itemization even after the Department's specific and cognizable request, it was not an abuse of discretion to deny the paralegal fees. Hodari further argues that the court's order was erroneous because it "results in a default presumption that all services performed by a paralegal are of a nature not normally performed by an attorney." Without citing any legal precedent or presenting any argument about why the court should presume otherwise, he states that "[t]he record does not disclose any reason to presume that all of the paralegal hours claimed were for work that was of a nature not normally performed by an attorney," The award of attorney's and paralegal fees is left to the broad discretion of the superior court. The court may determine whether the requested fees are reasonable and may refuse to award fees based on "billings that are too vague to allow a fair determination that they were reasonably incurred or incurred in connection with the ., lawsuit." Any requested attorney's fees are therefore subject to a showing of reasonableness and connection to the litigation; by the same token, the court must have the discretion to determine whether requested paralegal fees are.for work "customarily performed by an attorney." Requiring the court to presume that all paralegal fees meet the definition of "reasonable attorney's fees" would directly undermine the court's discretion in this regard. Hodari's argument is therefore without merit. B. Any Abuse Of Discretion In The Court's Award Of Attorney's Fees Was Harmless. Hodari argues that the superior court's different treatment of attorney's and paralegal fees was "arbitrary and capricious." He notes that none of the hours for which he requested payment were itemized, yet the court granted the attorney's fees and denied the paralegal fees. He concludes that the case should be remanded for a new determination of the attorney's fee award. Hodari correctly notes that the Department requested itemization of all fees, not just paralegal fees. However, given the small amount of attorney's fees at stake, any ' error in the court's failure to require itemization of the attorney's fees was harmless. In Capolicchio v. Levy, we affirmed a $488.20 fee award despite the moving party's failure to submit a fee itemization in response to the paying party's request. We concluded that the appellant is correct, that Marrón requires an- itemized billing statement and that [the appel-lee's] counsel did not..provide one. But here, because the..amount of attorney's fees was so low and the hours [the appel-lee's] counsel expended on defending the case were so minimal, any error.in failing to order itemization was harmless: The superior court could consider the fee request to be reasonable per se. Under such circumstance, we will not find reversible error in the failure to require: itemization.1 [ ] In light of this precedent, and in light of the fact that the Department that was burdened by any erroneously awarded fees has not objected to the erroneous fee award, we conclude that any abuse of discretion in the superior court's decision to award attorney's fees without itemization was harmless. We note, however, that the Department in its initial opposition to Hodari's motion for attorney's fee's raised a legitimate concern about the accuracy of his timé reporting. As the Department noted, Hodari's attorney evidently reused briefs he had submitted in prior, unrelated appeals: The briefs in this case repeat verbatim entire passages from briefs filed in two similar, but unrelated, appeals. Attorneys may certainly reuse pertinent language from prior proceedings in their court filings. However, in doing so, they must accurately reflect the time spent preparing the documents for the particular matter at bar. In. a case such as this one, where little more than the name of the appellant was changed from prior filings, the attorney's obvious recycling of briefs should lead the court to consider carefully the attorney's fee request to determine whether the amount requested is reasonable. Where. requested fees are not sufficiently itemized or otherwise appear unreasonable, courts should not hesi tate to deny those fees. Nevertheless, because the Department did not raise this issue again on appeal, we do not address further the question of the reasonableness of Ho-dari's attorney's fees. V. CONCLUSION Because the court did not abuse its discretion in denying the award of paralegal fees, and because any abuse of discretion in the award of attorney's fees was harmless, we AFFIRM the superior court's decision. . AS 09.60.010(c) provides in pertinent part: In a civil action or appeal concerning the establishment, protection, or enforcement of a right under the United States Constitution or the Constitution of the State of Alaska, the court (1) shall award, subject to (d) and (e) of this section, full reasonable attorney fees and costs to a claimant, who, as plaintiff, counterclaim-ant, cross claimant, or third-party plaintiff in the action or on appeal, has prevailed in asserting the right . . Hodari did, in fact, specify in the affidavit attached to his motion for attorney's fees that he was requesting a total of $4,800 in combined attorney and paralegal fees. . Miller v. Matanuska-Susitna Borough, 54 P.3d 285, 289 (Alaska 2002); Cook Inlet Pipe Line Co. v. Alaska Pub. Utils. Comm'n, 836 P.2d 343, 348 (Alaska 1992). . Roderer v. Dash, 233 P.3d 1101, 1106 (Alaska 2010) (quoting Rhodes v. Erion, 189 P.3d 1051, 1053 (Alaska 2008)). . Carr-Gottstein Props. v. State, 899 P.2d 136, 148 (Alaska 1995). . Alaska R. App. P. 508(e)(1). . See Krone v. State, Dep't of Health & Soc. Servs., 222 P.3d 250, 255-56 (Alaska 2009). The statute establishes certain exceptions to this rule, neither of which applies here; A court may not award fees when the claimant had "sufficient economic incentive to bring the suit, regardless of the constitutional claims involved," AS 09.60.010(d)(2), and a court may reduce the fee award when "the full imposition of the award would inflict a substantial and undue hardship upon the party ordered to pay the fees and costs or, if the party is a public entity, upon the taxpaying constituents of the public entity." AS 09.60.010(e). . Griswold v. Homer City Council, 310 P.3d 938, 943 (Alaska 2013) (citing Stalnaker v. Williams, 960 P.2d 590, 597-98 (Alaska 1998)). . Doubleday v. State, Commercial Fisheries. Entry Comm'n, 238 P.3d 100, 110 (Alaska 2010) (citing Alaska R. App. P. 508(e); Cleaver v. State, Commercial Fisheries Entry Comm'n, 48 P.3d 464, 470 (Alaska 2002)). . Marron v. Stromstad, 123 P.3d 992, 1014 (Alaska 2005). By contrast, we have upheld awards of attorney's fees in the absence of an itemized request when the paying party did not request fee itemization. Koller v. Reft, 71 P.3d 800, 810 (Alaska 2003) (citing Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123, 1138 (Alaska 1989)). . Marron, 123 P.3d at 1013 ("[W]e have suggested that a prevailing parly must itemize any requested fees where his or her opponent has made 'a specific cognizable request for itemization.' " (quoting Koller, 71 P.3d at 810)). . Id. . Cf. Koller, 71 P.3d at 810 (finding no specific, cognizable request for fee itemization where paying'party "complained frequently about having to pay" and asked his own -attorney for a fee itemization but "never made a motion in court seeking itemization"). This was also the second request for fee itemization submitted by the Department; in its earlier response to the court's show cause order, it had requested a "statement of costs and fees [that] should include a statement of the specific work performed, the date the specific work was performed, who performed the work; the credentials of the person who performed the work, and the hourly rate for the work." . Achman v. State, 323 P.3d 1123, 1127 n.13 (Alaska 2014) (citing Koller, 71 P.3d at 805 n.10). . Both Hodari and the court appear to conflate the fee-itemization requirement with the requirement that paralegal fees be for work "customarily performed by an attorney." The court noted in its order that the Department's request for fee itemization was sufficient to raise the issue of whether the paralegal fees met the definition of "attorney's fees." And although the court's decision was based on Hodari's failure to show that the paralegal fees were for legal work, Hodari dedicates his argument almost entirely to the fee- - itemization requirement. The two bases for denial of paralegal fees are conceptually distinct, but we "may affirm the superior court on any basis supported by the record, even if that basis was not considered by the court below or advanced by any party." Gilbert M. v. State, 139 P.3d 581, 586 (Alaska 2006). . Alaskasland.com, LLC v. Cross, 357 P.3d 805, 825 (Alaska 2015) ("We have 'consistently held that . the award of costs and fees [is] committed to the broad discretion of the trial court.' 'Therefore, any party seeking to overturn a trial court's decision in this regard [bears] a heavy burden of persuasion.' " (quoting Schultz v. Wells Fargo Bank, N.A., 301 P.3d 1237, 1241 (Alaska 2013) (third alteration in original)). . Bobich v. Hughes, 965 P.2d 1196, 1200 (Alaska 1998). . 194 P.3d 373, 381-82 (Alaska 2008). . Id. . Hodari's attorney failed even to change the name of the other appellant to Hodari's name in one passage.

12345719

STATE of Alaska, Petitioner, v. Peter G. NICORI and Winifred Olick, Respondents

State v. Nicori

2017-11-03

Court of Appeals Nos. A-12866, A-12875, & A-12886

518

520

407 P.3d 518

407

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-11T02:30:42.741741+00:00

CAP

Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge.

STATE of Alaska, Petitioner, v. Peter G. NICORI and Winifred Olick, Respondents.

STATE of Alaska, Petitioner, v. Peter G. NICORI and Winifred Olick, Respondents. Court of Appeals Nos. A-12866, A-12875, & A-12886 Court of Appeals of Alaska. November 3, 2017 Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Petitioner. Laurence Blakely, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Respondent Nicori. No appearance for Respondent Olick. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).

1160

7368

OPINION Judge MANNHEIMER. The State of Alaska has petitioned this Court to review and reverse two decisions of the superior court: (1) the court's decision to require the prosecuting- attorney to attend and testify at an evidentiary hearing to investigate whether the current criminal charges against Peter G. Nieori and Winifred Olick are the result of actual prosecutorial vindictiveness, and (2) the court's refusal to allow the State to seek reconsideration of this decision. Respondent Peter Nieori has filed a cross-petition (File No. A-12886) in which he asserts that he has already presented a prima facie case of the appearance of prosecutorial vindictiveness, and that the superior court should therefore be placing the burden on the State to affirmatively disprove this charge of vindictiveness. For the reasons explained in this opinion, we GRANT the State's petition on the second question presented by the State. We hold that the superior court should have allowed the State to seek reconsideration of the court's decision to hold the evidentiary hearing and to require the prosecutor to testify. Because we are directing the superior court to allow the State to pursue its motion for reconsideration, we need not reach the first question presented in the State's petition — because, now that a motion for reconsideration is pending, the superior court has not yet issued a final order on the question of whether to require the prosecutor to testify at the evidentiary hearing. With regard to the question presented in Nicori's cross-petition, the cross-petition is DENIED. The procedural history of this litigation The controversy in this ease arose when the State re-indicted Nieori and Olick on more serious charges the day after the two defendants filed a request for discovery. The defendants then filed a motion asserting that the timing of the re-indictment created the appearance of prosecutorial vindictiveness. The superior court initially found that the defendants had set forth a prima facie case of vindictive prosecution, and the court therefore scheduled an evidentiary hearing to give the State an opportunity to affirmatively rebut this presumed vindictiveness. After the defense subpoenaed the prosecuting attorney to testify at this hearing, the State asked the superior court to reconsider its decision, and the court granted the State's request. On reconsideration, the court reversed itself and declared that the facts did not give rise to the appearance of prosecuto-rial vindictiveness. But the court then ruled (apparently sua sponte) that the defendants were still entitled to subpoena the prosecutor to testify at the evidentiary hearing, so that the defendants could interrogate the prosecutor regarding whether the re-indictment was the product of actual vindictiveness — a claim that the defendants had not raised. After receiving the superior court's decision on reconsideration, the State filed a second motion for reconsideration, asking the superior court to reconsider its latest decision. But rather than reaching the merits of the State's arguments, the superior court ruled that the State was barred from filing another request for reconsideration. Why we direct the superior court to let the State pursue its second motion for reconsideration There is no Alaska ease that directly addresses the question of whether a party can ask a court to reconsider a decision or order issued in response to an earlier request for rehearing or reconsideration. But though there is no published Alaska decision resolving this point, many other states have ruled that a litigant is allowed — indeed, is often required — to file a second petition for rehearing when the litigant believes that a decision on rehearing is flawed. Based on this ease law, and based on the policy of giving trial courts a full opportunity to consider, and correct' errors before any appeal, we conclude that parties have the right to seek rehearing or reconsideration of a decision issued by a court on rehearing or reconsideration, if the second request for rehearing or reconsideration is addressed to problems that.are newly arisen because of the court's decision on rehearing or reconsideration. Here, the issues addressed in the State's' second motion for reconsideration are newly arisen because of the superior court's ruling on the State's first motion. Thus, the superi- or .court committed procedural.error when it refused to allow the State to seek reconsideration of that ruling.. We express no opinion on the merits of the State's second motion for reconsideration. We hold only that the State is entitled to pursue that motion. We do not retain jurisdiction of this case. . See Brickell Place Condominium Ass'n v. American Design and Development Corp., 470 So.2d 74, 75 n. 1 (Fla. App. 1985) (declaring that if the litigant believed the court's first decision on rehearing was flawed, the litigant "could have sought rehearing of our decision on rehearing"); Consumers' Company v. Public Utilities Comm'n, 40 Idaho 772, 236 P. 732, 732-33 (1925); Moncla v. City of Lafayette, 257 La. 174, 241 So.2d 532 (1970) (holding that the litigant was foreclosed because he failed to seek rehearing of the lower court's decision on rehearing); Succession of Moody, 149 So.2d 719, 723 (La. App. 1962) (entertaining a petition to rehear a decision on rehearing); Dziama v. City of Portsmouth, 140 N.H. 542, 669 A.2d 217, 219 (1995); Carter v. Industrial Comm'n, 76 Utah 520, 290 P. 776, 784 (1930) ("[W]hen [the commission] granted the first rehearing [and]- set aside and vacated its [initial] order or judgment . the [ensuing orr der on] rehearing . in effect . became a new .,. order or judgment superseding the former, which gave the defeated or aggrieved party the same right to move against it as he had to move against the displaced former order or judgment."); Denmark v. Liberty Life Assurance Co., 566 F.3d 1 (1st Cir. 2009); United States v. Garcia-Lagunas, 645 Fed.Appx. 271 (4th Cir. 2016). See also Brown v. Industrial Comm'n, 8 Ariz. App. 461, 447 P.2d 276, 276 (1968) (reviewing, without comment, the commission's second decision on rehearing — i.e., a decision rendered on a petition for rehearing seeldng review of its first decision on rehearing); Goodrich v. Industrial Accident Comm'n, 22 Cal.2d 604; 140 P.2d 405, 409 (1943) (holding that die commission had the authority, to entertain, a second petition for rehearing when its decision on rehearing rested on new evidence or new grounds). But see Weinhagen v. Hayes, 187 N.W. 756, 756 (Wis. 1921). (holding that a litigant is not allowed to seek rehearing of a decision on rehearing).

10587541

ALASKA REDI-MIX, INC., Appellant, v. ALASKA WORKMEN'S COMPENSATION BOARD, State of Alaska, and Genevieve L. Wheeler, Appellees

Alaska Redi-Mix, Inc. v. Alaska Workmen's Compensation Board

1966-08-15

No. 692

595

599

417 P.2d 595

417

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:34:22.887079+00:00

CAP

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

ALASKA REDI-MIX, INC., Appellant, v. ALASKA WORKMEN’S COMPENSATION BOARD, State of Alaska, and Genevieve L. Wheeler, Appellees.

ALASKA REDI-MIX, INC., Appellant, v. ALASKA WORKMEN’S COMPENSATION BOARD, State of Alaska, and Genevieve L. Wheeler, Appellees. No. 692. Supreme Court of Alaska. Aug. 15, 1966. Howard Staley, McNealy & Merdes, Fairbanks, for appellant. William B. Emmal, Fairbanks, for appel-lee Genevieve L. Wheeler.

2593

16135

OPINION Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ. RABINOWITZ, Justice. In this appeal appellant seeks reversal of a compensation order.of the Alaska Workmen's Compensation Board. The Board's award was sustained by the superior court and appellant thereafter appealed to this court from the superior court's denial of its motion for summary judgment and af-firmance of the Board's compensation order. Appellant urges us to reverse on three separate' grounds, namely: that the superior court erred in not remanding the case to the Board because the. record upon which the Board based its decision was "garbled and unintelligible"; that the Board's compensation order omitted any finding to the •effect that Marshall Wheeler's (husband of .appellee Genevieve Wheeler) death arose out of and in the course of his employment by appellant; and that the superior court erred in not remanding the case to the Board for the purpose of permitting the Board to consider the testimony of two physicians which the Board had previously rejected. This case was commenced in August of 1962, when appellee-claimant Genevieve Wheeler filed an application for compensation with the Board. A hearing was held before the Board on October 13, 1962. At this first hearing appellee produced testimony from six witnesses, including the testimony of Doctor Walter R. Fischer, a pathologist. Then, on September 25, 1963, the Board entered a compensation order in which it awarded death benefits to appellee. Subsequent to the Board's order of September 25, 1963, appellant filed an application for review by the full Workmen's Compensation Board. After the conclusion of some rather dubious procedures, the Board granted appellant's application for full Board review. What impresses us as unusual in the Board's handling of this application is that after appellant had filed its application for review a Board member wrote to counsel for appellant requesting that an affidavit be submitted in support of one of the grounds alleged as a basis for review. The Board omitted to send a copy of this letter to counsel for appellee-claimant. Counsel for appellant replied and on the basis of this letter, appellant's application was granted. It was not until the Board informed counsel for claimant of its decision to grant the application that appellee and her counsel were furnished with a copy of counsel for appellant's letter to the Board. Thereafter, in response to a letter from claimant's counsel, the Board advised respective counsel that: the makeup of the Board in January will be.completely different from that which heard this matter originally, so all evidence should be resubmitted. When the matter came before the Board for hearing on January 17, 1964,' Mr. Kirk-bride stated at the opening of the proceedings that: I want to point out that on December 27, 1963,1 wrote to Mr. Emmal in response to his inquiry and told him that we the Board would hear this entire matter and that all evidence should be resubmitted. I want to add to that, that the Board is going to review the transcript of the original hearing and the medical evidence. Counsel for appellee-claimant then stated that he was "going to submit it on the original record." After considerable discussion, it was agreed that counsel for appellant would have until February 17, 1964, within which to submit Doctor Donald Tatum's testimony by way of answers to interrogatories and then the matter was to be reviewed by the Board. Subsequently counsel for appellant submitted to the Board not only Doctor Tatum's testimony but also attempted to submit interrogatories addressed to and the answers of Doctors Winthrop Fish and Arthur J. Schaible. Counsel for claimant objected to the receipt in evidence of the two additional sets of interrogatories, and the Board ruled that the proffered testimony of Doctors Fish and Schaible would not be made part of the record. Then, on November 10, 1964, the Board issued a second order in this matter again awarding death benefits to appellee Genevieve L. Wheeler. Our review of the proceedings which culminated in the Board's refusal to consider Doctor Fish's and Doctor Schaible's testimony has convinced us that the Board did not err in rejecting this evidence. As we previously indicated, by virtue of a somewhat unusual procedure, it was appellant who obtained a review by the full Board of its initial compensation order. At the review hearing counsel for appellant acquiesced in the very procedure which ap--pellant now seeks to void. The record of the proceedings before the full Board reveals that counsel for appellant agreed that he would submit testimony of Doctor Tatum within thirty days We, therefore, hold that appellant's contention that the Board "did not follow reasonable standards of procedural fair play" in rejecting the testimony of the two physicians is not borne out by the record in this case. In a review proceeding initially obtained by appellant, and one in which appellant's counsel agreed to the procedure followed by the Board, it was not error for the Board to refuse to consider appellant's additional evidence.' Appellant also contends that the Board's order granting compensation was "invalid because of the lack of a necessary finding of fact that Mr. Wheeler's fatal coronary attack had been caused by exertion in his employment." As 44.62.510(a) of our Administrative Procedure Act requires that the Board's decision "shall be written and shall contain findings of fact ." In our recent opinion Morrison-Knudsen Co. v. Vereen, we were presented with an issue concerning, the duty of the Board to make findings in regard to the issue of whether application for compensation was timely filed. On the record in that case we determined that the matter need not be remanded to the Board for the entry of find ings, although we cautioned that "in future cases coming before the Board, the Board should make findings which disclose the basis for its determination _" We reach a similar result here and reaffirm our previous admonition to the Board. In its second decision of November 10, 1964, the Board, in part, made the following findings of fact: Marshall E. Wheeler, 39, suffered a fatal coronary thromboses on July 20, 1962, while employed by the defendant. The deceased had changed a tire on the cement mixer truck he operated for the defendant at approximately 8 a. m. and died some two hours later while unloading cement at the Lathrop High School. The deceased had a pre-existing arteriosclerosis condition as revealed by the autopsy. The Board's conclusions of law stated in part: The deceased suffered a compensable death under the Alaska Workmen's Compensation Act in that his death was the result of an aggravation of a pre-exist-ing arteriosclerosis condition. Under the Alaska Workmen's Compensation Act, compensation is payable for "disability or death of an employee." The act defines "death", as a basis for the right to compensation, as a "death resulting from an injury In turn, the act's definition of "injury" encompasses an accidental "death arising out of and in the course of employment In light of this statutory definition of compensable death and the Board's findings of fact and conclusions of law previously alluded to, we conclude that the Board's findings contained in its second decision of November 10, 1964, sufficiently disclose the basis for the Board's determination that Marshall Wheeler's death was compensable. Appellant's third contention is that the superior court "erred in not remanding this, case to the Board because the record on which the Board based its decision was garbled and unintelligible." This same argument was addressed to the superior-court when the matter was before that court on appeal.' The superior court rejected appellant's argument and in its memorandum opinion wrote in part as follows: However, this Court is unable to agree with plaintiff's assessment of the transcript of that testimony as useless to-the January 17, 1964, Board's determination. Dr. Fischer's testimony is intelligible on an overall basis to this Court- and there is no reason to believe it to-have been any less intelligible to the Board. His autopsy findings are clearly set forth and his opinion that there was-causation is clearly stated. Indeed, plaintiff apparently found the transcript intelligible enough to form the basis for-his interrogatories to Dr. Tatum. The various errors in the transcript are-neither so grave or so extensive as to-, move this Court to declare, as a matter-of law, that said transcript could not give the Board, as composed on January 17,. 1964, an intelligible view of Dr. Fischer's testimony and opinion at the October 1962 hearing. We are of the opinion that the superior court was correct in its evaluation of quality of the transcription of the proceedings and in particular the transcript of Doctor Fischer's testimony and, therefore, conclude that the superior court did not err in declining to remand the case to the Board because of an asserted defective transcript. One other aspect of appellant's position in this appeal warrants discussion. In its brief appellant has also argued that "there is no substantial evidence that Mr. Wheeler's death was caused by his employment, because the testimony of Doctor Fischer on this point was in the form of a transcript which was completely garbled and unintelligible and there was no other testimony offered by the claimant on this point." In Thornton v. Alaska Workmen's Compensation Board, we held that in deciding such questions our function was to determine whether in the light of the whole record that finding is supported by substantial evidence, that is, such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Also pertinent is that portion of our opinion in Northern Corp. v. Saari where we said: In other words, if the accidental injury or death, is connected with .any of the incidents of one's employment, then the injury or death would both arise out of and be in the course of such employment. In Thornton, we held that the presence of a pre-existing disease does not preclude recovery if employment "aggravated, accelerated, or combined with the disease or infirmity to produce the death or disability for which compensation is sought." In view of our holdings in Thornton and Northern Corp., and upon consideration of the whole record, we are of the opinion there is substantial evidence in the record to support the Board's determination that Marshall Wheeler's death was compensable. In his autopsy report Doctor Walter R. Fischer (a pathologist) concluded that the cause of Marshall Wheeler's death was "Recent and Fresh Myocardial infarca-tions" due to "Coronary Arteriosclerosis with Thromboses." At the October 13, 1962, hearing before the Board, Doctor Fischer testified the decedent sustained a thrombosis to his right coronary artery within eight to eighteen hours before his death and that within "hours" of his death the decedent sustained a second thrombosis to his anterior descending coronary artery. Doctor Fischer further testified that the decedent's pre-existing heart condition of arteriosclerosis with thromboses, together with the evidence of recent and fresh myocardial infarcations, could "quite definitely" have been aggravated by "exertion or over exertion." In addition to this expert's testimony, appellee furnished testimony from other witnesses as to ¡decedent's activities during the morning work hours immediately prior to his death. These witnesses testified to the mental and physical strain decedent was exposed to as an incident of his employment as a cement truck driver for appellant- on the morning of his death. ' Dr • For the foregoing reasons the Board's compensation order of November 10, 1964, and the superior court's affirmance thereof is affirmed. . The Board, at the time of the October 13,1962, hearing, consisted of A. J. Kuek-lick and Louis Shaffer. . Apparently after the initial hearing on October 13, 1962, additional evidence was received on January 14, 1963. This additional evidence consisted of the testimony of appellant's witness Doctor Donald Tatum. . In its compensation order of September 25, 1963, the Board found in part as follows: It is the finding of this Board that Marshall E. Wheeler became deceased on July 20, 1962, as the result of an injury arising out of and in the course of employment, to-wit: A coronary arteriosclerosis with thromboses, resulting in recent and fresh myocardial infarctions suffered as a result of working conditions arising out of and in the course of his employment as a truck driver. . AS 23.30.125(b) provides: If an application for review is made to the board within 10 days from the date of an award, by less than all the members, the full board, if the first hearing was not held before the full board, shall review the evidence or if considered advisable, shall hear the parties at issue and the representatives and witnesses as soon as practicable. The board shall make and file an award with the findings of fact on which it is based, and send a copy to each of the parties immediately. .Two of the grounds urged by appellant in support of its application for review were: 2. That the members at the hearings, or at least one of them, was given evidence of decedent Wheeler's activities, not in the presence of defendant, and which at least defendant's carrier had no opportunity to controvert, as counsel is informed and so believes. 3. That two doctors testified, Dr. Eisher, a pathologist, stating death was caused by exertion. Dr. Tatum, a Board Internist, testified that exertion did not cause the death of Wheeler. We believe that Board erred in completely ignoring the testimony of a qualified internist and heart man to favor one who admitted his field is pathology. . At this time the composition of the Board consisted of Joe KLrkbride, Tom. Chandler and Lewis Dischnor. . At this hearing R. J. McNealy appeared as counsel for appellant. . See also AS 23.30.125(b), supra note 4 and AS 44.62.570(b) of the Administrative Procedure Act which provides: Inquiry in . an appeal extends to the following questions: (1) whether the agency has proceeded without, or in excess of jurisdiction; (2) whether there was a fair hearing; and (3) whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has. not proceeded in the manner required by law, the order or decision is not supported by the findings,, or the findings are not supported by the evidence. .414 P.2d 536, 539 (Alaska 1966). . Morrison-Knudsen Co. v. Vereen, supra note 9, at 539. . AS 23.30.010. . AS 23.30.265(9). . AS 23.30.265(13). . This conclusion is further buttressed if the Board's findings in its first compensation order of September 25,1963, are considered together with the findings in question. See note 3 supra. . As to the requirement of a record in regard to proceedings before the Alaska Workmen's Compensation Board, AS 44.-62.450(d) of the Administrative Procedure Act provides: The proceedings at the hearing shall he reported by a phonographic reporter or recorder, or other adequate means of assuring an accurate record. See also AS 23.30.135(b) of our compensation act which was amended in 1965 • to provide as follows: 'All testimony given during a hearing-before the board shall be recorded, but need not be transcribed unless further - ' review is initiated.: . 411 P.2d 209, 210 (Alaska 1966). . See also Morrison-Knudsen Co. v. Vereen, supra note 9, a recent decision citing the test stated in Thornton and collecting, in footnote 15, applicable authorities. . 409 P.2d 845, 846 (Alaska 1966). . Supra note 16, 411 P.2d at 210.

10575706

M-B CONTRACTING COMPANY, Inc., Appellant, v. Charles C. DAVIS, Appellee

M-B Contracting Co. v. Davis

1965-01-25

No. 500

433

437

399 P.2d 433

399

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:35:53.648105+00:00

CAP

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

M-B CONTRACTING COMPANY, Inc., Appellant, v. Charles C. DAVIS, Appellee.

M-B CONTRACTING COMPANY, Inc., Appellant, v. Charles C. DAVIS, Appellee. No. 500. Supreme Court of Alaska. Jan. 25, 1965. Arthur D. Talbot, Anchorage, for appellant. No appearance for appellee. Before NESBETT, C. J., and DIMOND and AREND, JJ.

2741

16235

AREND, Justice. By this appeal the appellant employer,. M-B Contracting Company, seeks to have-reviewed the superior court's award of an-attorney's fee to counsel for Charles Davis, the injured workman, for representing Davis in the proceeding before the Alaska Workmen's Compensation Board (hereinafter referred to as the Board) in spite of the fact that the employer was the prevailing party when the award of compensation-by the Board was appealed to the superior-court. As a consequential proposition, the-employer contends that it should have been-awarded an attorney's fee and not the injured employee. We have prepared the following statement of the case from the record before us :- Charles Davis sustained a severe head injury on August 26, 1959, while acting in-the course and scope of his employment by the appellant. Neither the appellant cm- ployer nor its insurance carrier has ever contended that Davis's injury was not com-pensable under the Alaska Workmen's Compensation Act. Compensation for 'temporary total disability was paid by the carrier, who likewise paid, or agreed to pay, the hospital and medical expenses resulting from the injury. Davis was treated by Dr. Fritz and Dr. .Mead. The doctors indicated early in 1962 •that Davis's condition had become fixed; whereupon Davis, by his attorney Bay 'Clark, applied to the Board for a permanent •partial disability rating. A hearing was held by the Board on June 13, 1962, at which Davis was represented by his attorney Clark. Davis and Dr. Mead both testified at the Tiearing. Additionally the Board had before it two letters from Dr. Fritz and two letters from Dr. Mead. The first letter from Dr. Fritz is dated January 12, 1962, and states that Davis had a combined loss of 18.5% of the hearing in both ears. In the second letter, written two weeks later, Dr. Fritz declined to rate Davis's general •disability from the head injuries, over and above the disability from the loss of hearing. Dr. Mead in his first letter, dated February 1, 1962, suggested that Davis had a residual disability of about 16% over and above Dr. Fritz's 18.5% figure for loss of hearing. Dr. Mead's second letter is addressed to Davis's counsel. It is dated June 12, 1962 — one day before the hearing. This letter was not formally introduced into evidence, but the carrier's adjuster questioned Dr. Mead about it and from the doctor's answers it became apparent that he rounded off Dr. Fritz's 18.5% figure for loss of hearing to 19% and added to that figure the 16% permanent partial disability of the whole man previously determined by Dr. Mead, thereby arriving at a rating of 35% permanent partial disability of the whole man. On July 10, 1962, the Board entered its "Order and Award" in which it found (1) that the appellant had made no offer to settle Davis's claim as to permanent partial disability; (2) "that this was and is a controverted claim"; and (3) that Davis "is entitled to 35% permanent partial disability to the whole body." On the basis of these findings the Board ordered the appellant to pay to Davis the sum of $5,950 for 35% permanent partial disability to the whole body and the sum of $745 to Davis's counsel as attorney's fee. On July 16, 1962, the appellant filed a complaint in the superior court against Davis and the Board as an appeal from the Board's award, contending that the award of a 35% permanent partial disability rating to the whole body was not in accordance with law since there was no competent evidence to support it, and that the award of attorney's fee was excessive and not computed or allowed in accordance with the Workmen's Compensation Act. The appellant prayed that the Board's award be reversed and set aside, and that the appellant recover its costs and a reasonable attorney's fee from Davis and the Board. The case was submitted to the superior court upon the record and file of the Board, including the transcript of the hearing held before the Board on June 13, 1962, and upon memoranda filed by counsel for the parties. On April 8, 1964, the superior court made and entered findings of fact and conclusions of law in which the court found the facts to be as we have related them above and found further that: 11. There was no evidence, substantial or otherwise, to support a rating of 35% permanent partial disability of the whole man. There was substantial evidence (which has never been disputed by the employer or its compensation carrier) that the claimant [Davis] sustained an 18.5% loss of hearing, plus a permanent partial disability equivalent to 16% of the whole body, related to head injuries other than loss of hearing. 12. Claimant's [Davis's] counsel rendered substantial services to him in proceedings before the Board, although the compensation carrier did not controvert the fact that the claimant was entitled to compensation or that claimant was entitled to an award of 18.5% loss of hearing, plus a permanent partial disability of 16% of the whole man. From its findings the trial court concluded that the Board erred in adding a scheduled disability (loss of hearing) to a nonscheduled disability in arriving at an award of 35% disability of the whole man; and that the award should be modified to provide that Davis shall receive $1,295 for loss of hearing plus $2,720 for a 16% permanent partial disability of the whole man, or a total of $4,015 instead of the $5,950 awarded by the Board. With respect to attorney's fees the court concluded that Davis was entitled to an award of $250 to be paid by the compensation carrier over and above the compensation awarded to Davis, "even though there was no controversy at all about compensation payments until after the award entered by the Board on July 10, and although the calculations made by the Board were obviously wrong." The court also concluded that, although the appellant employer was technically entitled to an attorney's fee in connection with the appeal to the superior court, "under all the circumstances existing, it would be unfair to charge the claimant [Davis] with those attorney's fees and, accordingly, each party should bear his own loss with reference to this appeal." The court then entered judgment in conformity with its conclusions of law and particularized in the judgment that the $250 attorney's fee was to be paid by the employer to Davis's counsel for representing Davis before the Board. The appellant employer has appealed from that portion of the judgment ordering it to pay an attorney's fee of $250 to Davis's counsel and directing that each party bear his own costs in connection with the appeal to the superior court. The legislature has made special provision in section 26 of the 1959 Workmen's Compensation Act regarding the payment of attorney's fees, here pertinent, as follows: "(1) Whenever the Board advises that a claim has been controverted, in whole or in part, the Board may direct the fees for legal services be paid by the employer or carrier in addition to compensation awarded, and such fees may be allowed only on the amount of compensation controverted and awarded. Whenever the Board advises a claim has not been controverted, but further advises that bona fide legal services have been rendered in respect of the claim, then the Board shall direct the payment of such fees out of the compensation awarded. * "(3) If an employer shall fail to file timely notice of controversy or shall fail to pay compensation within 15 days after such became due or shall otherwise resist the payment of compensation, and if claimant shall have employed an attorney in the successful prosecution of his claim, the Board shall make an award to reimburse the claimant for his costs of such proceedings, including a reasonable attorney's fee, which award shall be in addition to compensation ordered. "(4) If any proceedings are had for review of any compensation order before any court, the court may allow or increase an attorney's fees, which fees shall be in addition to compensa tion ordered and shall be paid as the court may direct." We interpret the foregoing provisions •of the statute to mean with respect to the instant case that, if there had been no appeal to the superior court from the Board's award, the Board would have had no authority to require the appellant employer or its insurance carrier to pay an attorney's fee to Davis's counsel for services performed in representing Davis before the Board. None of the things happened in this case which would have given the Board power, under the act, to award an attorney's fee against the employer. As pointed out by the appellant, there was no failure on the part of the appellant to file a notice of controversy since there was no controversy until the Board adopted Dr. Mead's rating of 35% permanent partial disability of the whole man. There was no evidence of failure to pay compensation within fifteen days after it became due. Counsel employed by Davis never succeeded in ultimately getting more for Davis than the appellant thought it should pay. And, lastly, there was no compensation controverted .and awarded upon which to allow a fee to Davis's counsel. We find no basis, however, for the appellant's further contention that the superior court likewise lacked statutory authority to assess "attorney's fees against the employer and carrier in essentially uncontroverted cases, or in cases where the carrier should properly be regarded as the prevailing party." The appellant cites no authority in support of its contention and disregards -the plain language of the fourth subdivision of section 26, supra, which reads: "If any proceedings are had for review of any compensation order before any court, the court may allow or increase an attorney's fees, which fees shall be in addition to compensation ordered and shall be paid as the court may direct." The right to tax attorney's fees in compensation cases is purely statutory and the employee, in order to be entitled to such fees and to have them taxed against the employer or the carrier, must bring himself under the statute. The Alaska statutory provision, quoted in the preceding paragraph, as we construe it, authorizes the court, before which a compensation order of the Board is up for review, to exercise its discretion as to whether attorney's fees should be allowed to counsel for the claimant appellee and be taxed against the employer, even though the employee is not successful on the appeal. We hold that the direction by the trial court for the payment of attorney's fees in the amount and manner specified in its judgment was authorized by our statute. This leaves only the question of whether the trial court erred in disallowing costs and attorney's fees to the appellant as the prevailing party on the appeal. If the appellant felt that it was entitled to costs in the superior court, Civil Rule 79(a) required that, within ten days after entry of judgment, it serve "on each of the other parties to the action or proceeding a cost bill, together with a notice when application will be made to the clerk to tax costs." The rule also provides that failure of a party to serve the cost bill and notice shall be construed as a waiver of his right to recover costs. There is nothing in the record to indicate that the appellant ever served the requisite cost bill and notice; so we find that it waived its right to recover costs. The appellant's claim of entitlement to attorney's fees as the prevailing party presents a somewhat different problem. In Civil Rule 82 is published a schedule of attorney's fees to be adhered to by the court in fixing such fees as a part of the costs of the action for the party recovering a money judgment therein, "[ujnless the court, in its discretion, otherwise directs Then there is added this short paragraph: "Should no recovery be had, attorney's fees for the prevailing party may be fixed, by the court as a part of the costs of the action, in its discretion, in a reasonable amount." [Emphasis added.] The wording of this paragraph leaves it in the sound discretion of the trial court to decide, first of all, whether the prevailing party should receive an attorney's fee at all. In the instant case the trial court concluded: The employer should technically be entitled to attorney's fees with reference to its appeal, but, under all the circumstances existing, it would be unfair to charge the claimant with those attorney's fees and, accordingly, each party should bear his own loss with reference to this appeal. The appellant recognizes the broad discretion vested in the superior court by Civil Rule 82 in the matter of awarding attorney's fees, but urges that the court abused its discretion and acted arbitrarily and capriciously in withholding from the prevailing party an attorney's fee. No sufficient showing has been made, nor do we find one in the record, that the trial judge abused his discretion in denying an attorney's fee to the appellant. This is not a situation in which it might have been said that the injured employee has appealed on frivolous grounds and should therefore be penalized by the taxation of an attorney's fee against him. Instead, it was the employer who had prosecuted the appeal, in this case rightly so, but thereby placing the employee in a position where he had to engage counsel to represent him in the superior court on what was then a debatable question of law. That circumstance added to the fact that the employee, Davis, had suffered a severe head injury resulting in an 18.5% loss of hearing in both ears, plus a 16% permanent partial disability of the whole man, would alone have justified the trial court in refusing to allow and tax an attorney's fee against Davis. Judgment affirmed. . SLA 1959, eh. 193 [now AS 23.30.005 through 23.30.270]. . On August 8, 1962, the appellant amended its complaint and appeal to the superi- or court hut not in any respect material to the issues raised here. . Of the monetary figures appearing in the opinion above, the $1,295 represents 18.-5% of the $7,000 maximum allowable for total loss of hearing, while the $2,720 represents 16% of the maximum allowable award of $17,000 for permanent partial disability of the whole man. . The portions of the Alaska Workmen's Compensation Act relating to the payment of attorney's fees, as quoted in the text above, are set forth in subsections (1), (3) and (4) of section 26, chapter 193, SLA 1959 [now AS 23.30.145(a), (b) and (c)]. . SLA 1959, ch. 193, § 26(4) [now AS 23.30.145(c)]. . Fidelity & Cas. Co. of New York v. Kennard, 162 Neb. 220, 75 N.W.2d 553, 562-63 (1956). . Cf. Wick Hoofing Co. v. Curtis, 110 So.2d 385 (Fla.1959), in which the court held that, under a Florida statutory provision similar to the Alaska provision under consideration, the allowance of attorney's fees by the appellate court is not made contingent upon success at the appellate level. . In Ruth v. Yon Hickman, 214 Or. 490, 330 P.2d 722 (1958), the Oregon Supreme Court had before it for interpretation a statute employing language somewhat similar to that found in our Civil Rule 82, directing that costs and disbursements shall be allowed in equity suits to the prevailing party unless the court otherwise directs. Said the court, at 726 of 330 P.2d: "Under this statute the trial court may allow or deny costs in its discretion and upon appeal the exercise of such discretion will not be disturbed except for a manifest abuse thereof." . See Davidsen v. Kirkland, 362 P.2d 1068 (Alaska 1961), in which we expressed our reluctance to interfere with a trial judge's exercise of his discretion in the matter of awarding attorney's fees; and also Preferred Gen. Agency of Alaska, Inc. v. Raffetto, Opinion No. 214, 391 P.2d 951 (Alaska 1964), in which this court stated that it would limit review regarding the allowance of attorney's fees to the question of whether the lower court exceeded the bounds of the broad discretion vested in it.

10569832

Stanley Jay SHERIDAN, Appellant, v. Russella Suzanne SHERIDAN, Appellee

Sheridan v. Sheridan

1970-03-20

No. 1120

821

825

466 P.2d 821

466

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:36:15.817445+00:00

CAP

Before DIMOND, RABINOWITZ, BONEY, and CONNOR, JJ., and FITZGERALD, Superior Court Judge.

Stanley Jay SHERIDAN, Appellant, v. Russella Suzanne SHERIDAN, Appellee.

Stanley Jay SHERIDAN, Appellant, v. Russella Suzanne SHERIDAN, Appellee. No. 1120. Supreme Court of Alaska. March 20, 1970. Helen L. Simpson, Anchorage, for appellant. Herbert A. Ross, Anchorage, for appel-lee. Before DIMOND, RABINOWITZ, BONEY, and CONNOR, JJ., and FITZGERALD, Superior Court Judge.

2847

17288

OPINION RABINOWITZ, Justice. Appellant Stanley Sheridan sued his wife Russella for divorce on the grounds of incompatibility of temperament. Appel-lee Russella Sheridan counterclaimed for divorce also asserting the existence of an incompatibility of temperament. Both parties sought custody of the three young children of the marriage. Later the parties entered into a stipulation under the terms of which appellee's pleadings were amended to include allegations that she was then "pregnant with another child" by appellant. It was further stipulated that appellant disputed the paternity of the as yet unborn child. After trial the lower court entered a partial decree of divorce, reserved decision on the paternity, child custody, and property division issues, and ordered an investigation and report to be made by the Department of Health and Welfare. Subsequent to the receipt of the Department of Health and Welfare's report, the superior court entered findings of fact and conclusions of law. In its decree, the trial court awarded appellee custody of the children; ordered appellant to pay $75 monthly for the support of each minor child of the parties; to pay the $163 monthly installments due on the parties' home; and further or dered that the $10,000 equity of the parties in the home was to be divided equally. In this appeal, appellant contends that the trial court erred in awarding custody of the three minor children to appellee because of her immoral conduct, her unsatisfactory conduct toward her children, her perjury, and her prior abandonment of the children. Appellant further argues that the trial court committed error in awarding the children to appellee, whom the court itself considered to be the less fit. In regard to the property provision and support aspects of the decree, appellant takes the position that the court was mistaken in awarding half of the parties' property to appellee, and in requiring appellant to pay child support, make house payments, and pay all of the then existing family debts. Only brief reference is required to the property issues raised in this appeal. Alaska's Code of Civil Procedure establishes that as part of any judgment in an action for divorce the trial court may provide for the division between the parties of their property, whether joint or separate, acquired only during coverture, in the manner as may be just, and without regard to which of the parties is in fault; Concerning the trial court's distributive powers in divorce actions, we have held that this subject is a matter left by statute to the broad discretion of the trial court and will not be disturbed on appeal unless an abuse of such discretion is shown. To establish an abuse of discretion, the aggrieved party must show that the property division was clearly unjust. Review of the record has not convinced us that the trial court's division of the parties' property was clearly unjust in any respect. We therefore affirm the property division which was decreed by the lower court. Turning to the more troublesome question of custody of the three minor children, the relevant portions of the record disclose the following: Appellant Stanley J. Sheridan was 42 years old at the time of trial; had worked in construction at various geographic locations for approximately 20 years; and married appellee Russella in May of 1959. Two daughters, Holly and Heather, and one son, Philip, were born of this marriage. In appellant's opinion, appellee Russella was unfit to have custody of the children because she was "short" with the children; could not dress them without shaking and jerking them; screamed at and used profanity towards them; and exhibited a great deal of tension toward the children, as a result of which the children had become nervous and tense. Appellant further testified that on two prior occasions appellee had filed suit for divorce. Prior to the commencement of the third action for divorce (the case at bar), appellee and the three children joined appellant in Okinawa where the latter was then employed in construction work. According to appellant, after three months together in Okinawa appellee left without the children and returned to Anchorage to live with a lover. At the time appellee left for Anchorage, she told appellant that she would sue for divorce and that the children would be his. While appellee was in Okinawa, the children became nervous and cried all the time because of their mother's conduct. After appellee left Okinawa, appellant took sole care of the children for a period of nine months. Appellant returned to Anchorage with the children in November 1967, at which time appellee asked appellant to let her move back in with the family because she was "sick and tired of being alone and was thinking about suicide. [That] she was broke and needed help." Appellant further testified that after his return to Anchorage appellee admitted that she had lived with one man in Anchorage and had had affairs with five other men. During the first week after his return from Okinawa, appellee informed appellant that she was pregnant. This revelation ultimately led to the stipulation mentioned above. Prior to the entry of the trial court's final decree, the parties entered into a second stipulation under the terms of which the paternity issue of ap-pellee's fourth child was settled. Pursuant to this stipulation, it was established that appellant could not have been the father of this fourth child. Appellee Russella Sheridan testified to the following: At the time of trial, she was 34 years old and had completed two years of college education at Ohio Wesleyan University, one year at Boston University night schools, and one year full time at Boston University. From the inception of their married life appellant and appellee had encountered problems. Stanley left her for a few days when they were first married, and she left him several times since then. In appellee's view, they lacked a satisfactory social life and, only had a few close friends; her husband's life revolved around bars; and the nature of her husband's occupation necessitated frequent location changes in Alaska which placed great strain upon her. Appellee also complained that her husband continually harassed her about money matters and her irresponsibility in regard to the handling of money. Russella's version of why she left Okinawa without the three children differs from appellant's. She claims her failure to take the children back to Anchorage with her came about because appellant drove her out of their home in Okinawa, accused her of having an affair with one Neil Fisher, and kept the children's passports from her, thus preventing her from taking the children with her. Appellee admitted she had an affair with Neil Fisher. Only one other witness appeared before the trial court. Mrs. Naidine Johnson testified that she had known appellee for two and one-half to three years, appellee was a "wonderful" mother who spent countless hours with her children, was a good housekeeper and cook, and that the three children loved her. After the taking of testimony was concluded, the trial court ordered an investigation to be undertaken by the Department of Health and Welfare in order to assist in resolution of the custody issue, and further ordered that both parties be examined by a psychiatrist. Generalized criteria for resolution of custody issues in Alaska have been delineated both by judicial precedent and by legislative enactment. It is well established that on appeal our task is to ascertain whether or not the trial court misapplied the broad discretion vested in it in regard to determination of custody questions, and whether the court's findings in respect to custodial issues are clearly erroneous. In Rhodes v. Rhodes, we said: In determining the custody of children the trial court should be guided by the rule of quite general application that the welfare and best interests of the children should be given paramount consideration. This criterion has been consistently adhered to in subsequent decisions. In Harding v. Harding, we qualified the tender years doctrine that the mother of a young child, if fit and proper, will generally be given preference in awards of custody with the requirement that it be applied only when other considerations were evenly balanced and was further subject to the court's discretionary power to safeguard the best interests of the children. Somewhat similar legislative criteria have been enacted. AS 09.SS.20S of the Alaska Code of Civil Procedure provides in part that in awarding custody, the court is to be guided by the following considerations : (1) by what appears to be for the best interests of the child and if the child is of a sufficient age and intelligence to form a preference, the court may consider that preference in determining the question; (2) as between parents adversely claiming the custody neither parent is entitled to it as of right. Application of these criteria to the extremely perplexing problem of custody involves many uncertainties. Mechanistic application of these general custody rules is undesirable in any attempted solution of so crucial a question as what will promote the best interests, welfare and happiness of minor children. We recognize that articulation of the bases of custody decisions presents a formidable task for the trial court; that in many cases there is no satisfactory answer, given the parents' inability to live together as husband and wife; that great weight must be accorded to the trial judge's experience and to his evaluation of demeanor testimony; and that limitations of the courts' and litigants' resources and time often impede the creation of a satisfactory record. Concerning the rationale for the trial court's award of custody in the case at bar, the court's formal findings of fact disclose the following: Both parties are adequate persons to have care and control of the minor children, however, because of the young age of the three children, the [appellee] is best fit to have legal custody of the minor children. This formal finding is consistent with the trial judge's more comprehensive oral decision in which he stated, in part, that the "best interests" of the children were his only concern. After concluding that the psychiatric report was not too helpful, and that the Department of Health and Welfare's report was "not the best," the trial court further observed in his oral opinion that appellant was "more stable" than appellee. The court's reluctance to award the children to appellant apparently stemmed from the fact that appellant had not remarried, had at the time no place to keep the children, and would have had to hire a babysitter to take care of the children. In regard to the appellee, the trial judge concluded that she had a "great many faults," had engaged in "horrendous conduct," was "unfaithful," and had left the children in Okinawa, yet was the mother of the children, properly cared for their physical needs, taught them what she could and did provide a home for them. On this record we believe that the trial judge abused his discretion in awarding custody of the minor children to appel-lee. It appears that the basis for resolution of the custody issue was the tender years' doctrine to the exclusion of any other pertinent legal criteria or relevant factual considerations. Seemingly ignored in the decisional process was the paramount criterion of the welfare and best interests of the children which should be determinative. Study of the record shows appellee to be unstable and an irresponsible parent. The trial judge found that she had abandoned her children in Okinawa, possessed a great many faults, and had engaged in a course of "horrendous" conduct. Against these negative factors, it appears that appellant would have been awarded custody of the children but for the facts that he had not remarried by the time the final hearing was held, and that he would have had to employ babysitters if he had obtained custody. These reasons are unpersuasive in light of the welfare and best interests of the children, and the picture of the respective character and fitness of the parties that emerges from the factual record. We therefore conclude that the trial court's findings concerning appellee's fitness to have the care and custody of the parties' minor children was clearly erroneous, and that it was an abuse of discretion to award custody to appellee. The case is reversed with directions to enter an amended decree awarding custody of the minor children to appellant with reasonable rights of visitation to appellee. NESBETT, C. J., not participating. . In the decree appellee and the three children were granted the right to continue living in the home. Sale of the home was to take place in the event appellee discontinued living there. . At oral argument counsel for appellant conceded that the primary issue in the case at bar was the superior court's resolution of the custody issue. . AS 09.55.210(6). . Crume v. Crume, 378 P.2d 183, 186 (Alaska 1963). See also Houger v. Houger, 449 P.2d 766, 771 (Alaska 1969) ; Groff v. Groff, 408 P.2d 998, 1001 (Alaska 1965) ; McSmith v. McSmith, 387 P.2d 454, 455 (Alaska 1963). The factors which are considered relevant in deciding questions relating to the division of property were alluded to in Merrill v. Merrill, 368 P.2d 546, 547-548 n. 4 (Alaska 1962). There it was stated that the principal factors to be considered by the trial court are: [T]he respective ages of the parties; their earning ability; the duration and conduct of each during the marriage; their station in life; the circumstances and necessities of each; their health and physical condition; their financial circumstances, including the time and manner of acquisition of the property in question, its value at the time and its income producing capacity if any. . Subsequent to oral argument, appellee moved this court to affirm the property division provisions of the decree. Appellant had no objection to the motion and on February 24, 1970, an order was entered affirming the property division. . At the time the trial took place in June of 1968, the oldest child, Holly, was six and one-half and the youngest, Philip, was three and one-half. . Both of these prior actions were dismissed. The ease at bar arises out of a third action for divorce which was commenced in November 1967. . Bass v. Bass, 437 P.2d 324, 325 (Alaska 1968) ; Ransier v. Ransier, 414 P.2d 956, 957 (Alaska 1966) ; Rhodes v. Rhodes, 370 P.2d 902, 903 (Alaska 1962). . 370 P.2d 902, 903 (Alaska 1962) (footnote omitted). . In Ransier v. Ransier, 414 P.2d 956, 957 (Alaska 1966), the record disclosed unfaithfulness on the wife's part, as well as her abandonment of the children. In that case we concluded that the paramount factor to be given weight in the determination of the custody issue was the welfare and best interests of the children. . 377 P.2d 378, 379-380 (Alaska 1962). . Followed in Glasgow v. Glasgow, 426 P.2d 617 (Alaska 1967). . AS 09.55.205 (SLA 1968, ch. 160 § 1) became effective on July 23, 1968. In the case at bar, the trial took place in mid-June of 1968, partial findings and a partial decree were entered on December 6, 1968, and final findings of fact and conclusions of law and decree were entered on March 3,1969. The House Judiciary Committee's Report on Committee's Substitute for House Bill No. 247, which was eventually enacted into law as SLA 1968, ch. 160, reads in part as follows: The basic change in existing law made by this bill is the removal of the concept of 'fault' (for a divorce) from consideration in the award of child custody. 'Fault' for the divorce is not necessarily relevant to the question of which parent could best take care of the child. » * ⅜ 1967 Alaska House Journal 529-30. Prior to its repeal by SLA 1968, ch. 160 § 2, AS 09.55.210(1) empowered the court to provide for the care and custody of the minor children of the marriage as it considers just and proper, having due regard to the age and sex of the children, and, unless otherwise manifestly improper, giving the preference to the party not in fault, (emphasis added) . In this regard, the trial judge said: "If he were married to a fine girl and had a fine home, I might at this moment look very differently about this whole thing. I probably would, considering he's the most stable of the two." . Rhodes v. Rhodes, 370 P.2d 902, 903 (Alaska 1962) ; Harding v. Harding, 377 P.2d 378, 379-380 (Alaska 1962) ; AS 09.55.205(1) and (2). .We note that in contested custody cases the trial court, in its discretion, is empowered to appoint guardians ad litem to represent the interests of minor children. This discretion should be exercised advisedly, although in appropriate circumstances appointment of counsel will provide additional protection for the minor children. Civil Rule 14(b) ; compare Children's Rule 11(a).

10581037

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

Beck v. State

1965-12-20

No. 611

996

998

408 P.2d 996

408

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:35:34.342669+00:00

CAP

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

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

Robert BECK, Appellant, v. STATE of Alaska, Appellee. No. 611. Supreme Court of Alaska. Dec. 20, 1965. Warren A. Taylor, Fairbanks, for appellant. Warren C. Colver, Atty. Gen., of Alaska, Juneau, William H. Fuld, Asst. Atty. Gen., Fairbanks, for appellee. Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.

1289

7310

DIMOND, Justice. Appellant waived trial by jury in the district magistrate court, and after a trial by the court was convicted of operating a motor vehicle while under the influence of intoxicating liquor. He appealed to the superior court where his conviction was affirmed. On appeal to this court appellant contends that the state failed to prove his guilt beyond a reasonable doubt. The state presented one witness, Lowell Parker, a trooper with the Alaska State Police. Parker testified that at approximately 1:00 a. m. on August 9, 1964 he followed defendant's automobile for about two miles along the Chena Hot Springs road, which was about two and one-half miles from the City of Fairbanks. Parker said that appellant was driving at about 20 miles per hour, and that his car was weaving badly across the center line and on to the shoulder of the road. Parker stopped appellant and noticed a strong smell of liquor on his breath. He had appellant walk as straight as he could from appellant's to Parker's car and back, the distance between the two cars being about 25 to 30 feet. Parker said that appellant was unsteady on his feet, that he weaved around and was slow, and that he was "more or less staggering along." Appellant was asked by Parker to stand straight with his head back and his eyes closed and touch his nose with his finger. Parker stated that appellant tried to do this but would not keep his head back and would not keep his eyes closed. He also stated that he gave appellant a balance test by asking him to stand on one foot, and that appellant was unable to do this for any length of time. Parker said that appellant had no trouble with his speech. According to Parker, appellant stated that he had just left a friend's house where he had had dinner and a few drinks. It was Parker's opinion that appellant was definitely under the influence of intoxicating liquor. Two witnesses testified for the defense— appellant, and his wife who had been riding with him at the time he was stopped by Parker. Their testimony, in substance, was that appellant had not been drinking, and that he did not tell Parker that he had been drinking; that the only time his car swerved across the center line of the road was when his wife's purse fell to the floor of the car and he leaned over to pick it up; that he had driven on the shoulder of the road in order to let Parker pass him; that he had had no trouble in walking between the two cars after Parker stopped him, and that he did not stagger or lurch but walked normally; that he had always had difficulty in standing on one foot with his eyes closed and has never been able to do the finger to nose test because of a lack of balance; that his chest was taped because of broken ribs and that to put his head back and touch his nose with his finger took all his breath away because of the tape around his ribs; and that his ribs were hurting but that he didn't complain to Parker about the pain because "it wouldn't have done any good." Appellant challenges the sufficiency of the evidence to support a finding that his guilt was proved beyond a reasonable doubt. In determining the issue raised by such challenge, the evidence and the inferences to be drawn therefrom are to be viewed in a light most favorable to the state. The question, then, is whether the finding of guilt is supported by substantial evidence, that is, such relevant evidence which is adequate to support a conclusion by a reasonable mind that there was no reasonable doubt as to appellant's guilt. We hold that there was substantial evidence to support a finding by the district magistrate court that appellant was guilty of the offense with which he was charged. The district magistrate heard the evidence, had the opportunity to observe the demeanor of the witnesses, and saw the demonstrations as to how the appellant performed when asked to walk a straight line. It was his function, and not ours, to determine the credibility of the witnesses. This is what the magistrate did. He stated that he believed what Parker testified to. If Parker's testimony is to be accepted as true, one could reasonably conclude that there was no reasonable doubt that appellant had been driving while under the influence of intoxicating liquor. It is true, as appellant points out, that the magistrate stated that this was a pretty difficult case, that the case was not the strongest one that he had heard, and that he would have found for the appellant if it had not been for Parker's testimony. But this does not mean that the magistrate did not find guilt beyond a reasonable doubt or that the evidence did not justify such a finding. The magistrate made it abundantly clear that he believed Parker's testimony, and that he was persuaded that there was proof of guilt beyond a reasonable doubt. As we have stated, the evidence justified such a finding. The state contends that appellant's failure to move for a judgment of acquittal at the close of either the state's case or at the close of all the evidence resulted in a waiver of appellant's right to question the sufficiency of the evidence. There is no merit to such contention. Criminal Rule 29, which deals with motions for judgment of acquittal, pertains only to jury tried cases and not to cases tried by the court without a jury under Criminal Rule 23(c). The judgment is affirmed. . Appellant was also concurrently tried and convicted on a charge of improper vehicle registration. This latter conviction is not before us on appeal. . The superior court beard the appeal on the record and the parties' briefs. . Seefeldt v. United States, 183 F.2d 713, 715 (10th. Cir. 1050). This is the rule applied on motions for judgment of acquittal in a jury case. Bush v. State, 397 P.2d 616, 618 (Alaska 1964); Eaton v. State, 390 P.2d 218, 219 (Alaska 1964). . United States v. Owen, 231 F.2d 831, 833 (7th Cir.), cert, denied, 352 U.S. 843, 77 S.Ct. 42, 1 L.Ed.2d 59 (1956); See-feldt v. United States, supra note 1. .This definition of "substantial evidence" is in accord with the definition given that term in a civil action: "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Keiner v. City of Anchorage, 378 P.2d 406, 411 (Alaska 1963). . United States v. Cook, 184 F.2d 642, 644 (7th. Cir. 1950); Hanrahan v. City of Anchorage, 377 P.2d 381, 384 (Alaska 1962); Gilley v. City of Anchorage, 376 P.2d 484 (Alaska 1962); accord, Goss v. State, 369 P.2d 884, 885 (Alaska), cert, denied, 371 U.S. 843, 83 S.Ct. 75, 9 L.Ed.2d 79 (1962) ; Davis v. State, 369 P.2d 879, 881 (Alaska 1962) ; see Chirikoff Island Cattle Corp. v. Robinette, 372 P.2d 791, 794 (Alaska 1902). . Crim.R. 23(c) provides: Trial Without a Jury. In a case tried without a jury the court shall make a general finding and shall, in addition, on request, find the facts specially. DeLuna v. United States, 228 F.2d 114, 116 (5th Cir. 1955). But see Beltran v. United States, 302 F.2d 48, 52 (1st Cir. 1962).

10572807

Robert P. WELLS and Jane Wells, Appellants, v. L. W. NOEY, Appellee

Wells v. Noey

1965-02-19

No. 510

217

220

399 P.2d 217

399

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:35:53.648105+00:00

CAP

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

Robert P. WELLS and Jane Wells, Appellants, v. L. W. NOEY, Appellee.

Robert P. WELLS and Jane Wells, Appellants, v. L. W. NOEY, Appellee. No. 510. Supreme Court of Alaska. Feb. 19, 1965. Helen L. Simpson, Anchorage, for appellants. John M. Savage, Clark & Savage, Anchorage, for appellee. Before NESBETT, C. J., and DIMOND and AREND, JJ.

1955

11170

NESBETT, Chief Justice. In a previous action between the parties hereto Noey sued the Wellses to quiet title to certain real property located in Anchorage, Alaska, based on a claim of adverse possession. The Wellses denied that Noey had occupied the property adversely for the seven year period required by statute and in a counterclaim alleged that Noey's only claim to ownership was based on an erroneous, illegal and void tax deed to the property. Although the decision was in favor of Noey on his claim of adverse possession the trial court found that the Wellses had failed to prove the allegations of their counterclaim. In their amended complaint in the present action the Wellses alleged that Noey's tax deed was invalid because of defects in publication of notice of the delinquent tax roll and notice of sale of the properties contained in the delinquent tax roll for 1952-1953; because the assessment was void as the property was misdescribed as well as assessed jointly with property belonging to a third party in the name of the third party. In an affirmative defense Noey alleged that the property involved was identical to the property which was the subject of the previous action; that the issues raised in the amended complaint were either decided adversely to the Wellses in the previous action or were the proper subject of a compulsory counterclaim and could not be raised again in the present action. The trial court found that the issue of the validity of Noey's tax deed from the City of Anchorage was a compulsory counterclaim in the original suit between the parties by reason of the requirements of Civil Rule 13(a). Since the claim was not asserted in that action the trial court held that it could not be asserted in the present suit and granted summary judgment to-Noey. On appeal the Wellses contend that, the issue of the invalidity of Noey's tax deed was not a compulsory counterclaim for the six reasons stated in italics below and' discussed by this court in the paragraphs, which follow. 1. The claim for relief is not the same-because the same evidence would not sustain both suits and there is no identity of things sited for. The argument in support of this-point seems to be that the prayers for relief as to the counterclaim in the previous action: and the complaint in this action are not: the same. The prayers for relief cannot be a criterion in determining whether the claims for relief are the same and must not be so confused . It is also argued that all of the matters-pleaded by the Wellses in the first action; were in the nature of defenses to a claim of adverse possession, whereas the case now-before the court is one to remove a cloud on the title to the property, based upon another claim of Noey's which was not litigated in; the first case, that is, his claim under the tax deed as such. We are unable to find logic in this argument. Noey's claim of occupancy by adverse possession in the first case was based in part on occupancy under the very same tax deed which is the subject of the present action. In the first action the Wellses alleged in their counterclaim that this tax deed was "erroneous, illegal and void" but failed do produce proof to this effect. In the present action they allege that the tax deed •is invalid because of various defects in the procedure leading up to the tax sale. We agree with the trial court that the issue of the validity of the tax deed was raised in the first suit; that all of the facts -and circumstances now sought to be advanced by the Wellses in this suit to prove invalidity of the same tax deed, by reason of -defects in the tax sale, were known or should Rave been known to them during the first •trial and that the evidence necessary for proof in both cases would be the same. 2. The decision on the counterclaim in the first cause zvas not necessary to the result. Argument under this heading seems to be Rased on the premise that the finding by the trial court in the first case, that Noey had occupied the property adversely to the Wellses for seven years, made any decision on the counterclaim unnecessary to a disposition of the case. We do not agree. If the Wellses had produced proof that Noey's tax deed was "erroneous, illegal and void" as they indicated they would do in the •counterclaim, his claim of adverse possession under color and claim of title might thereby have been defeated in the trial •court. .3. The Sttpreme Court reserved the issue of the validity of the deed in the first action. In its opinion in the earlier case, at the request of the Wellses, this court struck a finding of fact from the record which provided that the tax deed issued to Noey was not erroneous, illegal or void, because there had been no evidence submitted by either side with respect to the validity of the tax deed. The Wellses counterclaim and Noey's denial in that case made the validity of the tax deed an issue as of the time the pleadings were closed. This position was maintained by the Wellses in their pre-trial memorandum filed in the case. At the trial, however, the only effort made by the Wellses to prove the allegation appears to have been to invite the trial judge's attention to what appeared to be a defect on the face of the tax deed. In affirming the trial court's finding that the Wellses had failed to prove the counter^ claim, it was not the intention of this court to reserve the issue of the validity of the tax deed from any of the effects of a judgment in that case. In stating in our opinion in the previous case that the validity of the tax deed had not been an issue during the trial, it would probably have been more accurate to have stated that the issue had been raised by the pleadings, but was apparently abandoned at the trial, since no evidence was introduced pro or con with respect to the counterclaim. 4. Res judicata would not bar a subsequent suit. Argument in support of this point is based on the premise that a decision on the counterclaim was not necessary to a disposition of the first case and has been discussed earlier in this decision. 5. There is no logical relationship between the Wellses claim (in the present case) and the counterclaim (in the previous case) within the meaning of the compulsory counterclaim rule. It is contended in support of this point that the rule requiring the pleading of a compulsory counterclaim should be applied only to the particular claim pleaded by a plaintiff and that where a plaintiff could have pleaded either of two separate claims for relief and selected only one, then the defendant's obligation to plead compulsory counterclaims must be judged only in relation to the particular claim pleaded by the plaintiff. It is argued that the Wellses asserted every claim to title they had in the first case, based upon their warranty deeds to the property and that the invalidity of Noey's tax deed was not a basis for their claim of ownership. We cannot find any logic or reasoning in this argument that would support the proposition advanced. In our opinion there was a logical relation between the claim and counterclaim in the first case. Noey's claim was based upon seven years of possession adverse to the Wellses. During two of the seven years Noey was claiming under a certificate of sale. The remaining five years were while claiming title under the tax deed under discussion. The quality of each of the instruments was pertinent to the establishment of Noey's claim. Failure of either of the instruments to qualify as a legal basis for exerting a claim under color and claim of title would have defeated the action. Thus, any claim which would defeat Noey's possession under either of the instruments had a logical relation to his claim and should have been pleaded, as was done. Most of the efforts at the prior trial seemed to have been centered around obtaining a determination of the question of whether Noey's possession for two years under the certificate of sale could qualify under the statute as being under color and claim of title. No effort- was made by the Wellses to prove that the tax deed was erroneous, illegal or void. If that question had been litigated there is every reason to believe that the need for the present action would have been obviated. 6. It (the counterclaim) does not arise out of the transaction or occurrence that is the subject matter of the appel-lee's original claim. It is argued that Noey's claim in the first case was based on adverse possession and is-entirely separate from the claim concerning the tax deed which is involved in the instant case. It may very well be that the claims are separate as the Wellses argue, but they are logically related as we have pointed out in the preceding paragraph. Noey's original claim was based on adverse possession. To< prove this claim he had to establish the tax deed as being sufficient color to claim title for five of the seven years. The validity of the tax deed is therefore directly and logically related to the subject matter of Noey's claim. For this reason it was a compulsory counterclaim required to be pleaded and proved in the first action in order to be taken advantage of. It cannot now be made the subject of another action. The judgment below is affirmed. . AS 09.25.050. . Wells v. Noey, 380 P.2d 876 (Alaska 1963). The trial court found that Noey's possession of the property for a period of two years while claiming color of title based on a certificate of sale was adverse possession within the meaning of the Alaska statute. On appeal the above finding was reversed and Noey was denied relief on his claim. However, the trial court's finding that the Wellses had failed to prove their counterclaim which alleged that Noey's tax deed was erroneous, illegal and void, was affirmed on appeal. . Civ.R. 13(a) states: "Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the-court cannot acquire jurisdiction, except that such a claim need not be so stated' if at the time the action was commenced the claim was the subject of another-pending action." . Civ.R. 54(c); see Wilson v. Interior Airways, Inc., 384 P.2d 956, 958-959 (Alaska 1963); Rhodes v. Rhodes, 370 P.2d 902, 904-905 (Alaska 1962); Miller v. Johnson, 370 P.2d 171, 172 (Alaska 1962); Mitchell v. Land, 355 P.2d 682, 687 (Alaska 1960). . Wells v. Noey, 380 P.2d 876, 879 (Alaska 1963). . Wells v. Noey, supra note 5. . Wilson v. Dyess Farms, 74 F.Supp. 990, 991 (E.D.Ark.1948); MacDonald v. Krause, 77 Nev. 312, 362 P.2d 724, 727-29 (1961); 1A Barron & Holtzoff, Federal Practice & Procedure § 394, at 571-84 (Rules ed. 1960).

10581042

William Howard CRAWFORD, Petitioner, v. STATE of Alaska, Respondent

Crawford v. State

1965-12-20

No. 637

1002

1011

408 P.2d 1002

408

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:35:34.342669+00:00

CAP

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

William Howard CRAWFORD, Petitioner, v. STATE of Alaska, Respondent.

William Howard CRAWFORD, Petitioner, v. STATE of Alaska, Respondent. No. 637. Supreme Court of Alaska. Dec. 20, 1965. Peter J. Kalamarides and Edward J. Reasor, Anchorage, for petitioner. Warren C. Colver, Atty. Gen. of Alaska, Juneau, John K. Brubaker, Dist. Atty., Anchorage, and John L. Devney, Asst. Atty. Gen., for respondent. Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.

4993

29709

DIMOND, Justice. The grand jury that indicted petitioner for first degree murder was made up of persons residing within a fifteen mile radius of the City of Anchorage. The question to be decided is whether such a geographical limitation on the selection of jurors is lawful. The-court below held that it was and denied petitioner's motion to dismiss the indictment. We have granted; review of such interlocutory order because it affects a substantial right of petitioner and involves a question of general importance in the administration of justice throughout the entire court system. The presiding superior court judge of each of Alaska's four judicial districts ¡ ,s the responsibility under law of selecting persons to serve on petit and grand juries. The selection is made from a list of names of persons residing in the district who are qualified by law for jury service and who voted in the state general election immediately preceding the preparation of the list of prospective jurors. The names of those eligible for jury service, or numbers corresponding with the names, are placed in a box, and a public drawing of jurors then takes place. Shortly after the establishment of the state court system in I960, the presiding judge for the Third Judicial District adopted a policy of summoning for jury duty in the City of Anchorage only those persons whose presence could be obtained without undue hardship or expense. Under this policy, jurors were selected, not from the entire district, but only from those areas within the district that were served by highway or by reasonably regular and frequent air service. After about two years of experience, the presiding judge found that the cost of utilizing jurors from outside the Anchorage area was very large and, in his opinion, quite unnecessary. He thereupon abandoned the original policy of selecting jurors, and adopted the existing policy of calling as jurors for jury functions to be performed in the City of Anchorage only those residents of the Third Judicial District who resided within a fifteen mile radius of the city. Petitioner claims that such a geographical limitation on the selection of jurors is in violation of AS 09.20.070. This statute permits the court to reject the name of any person drawn for jury duty if it appears to the satisfaction of the court that such "person's attendance may involve , a large and unnecessary expense." Petitioner contends that under such provision in the law the court is required to make an independent appraisal of what may amount to a "large and unnecessary expense" in each separate situation on a name to na.me basis, and that the statute does not empower the court to make a blanket rule based on a fixed geographical limitation of the area from which jurors should be drawn. We disagree with petitioner. The legislature has given to the superior court the power to determine whether jurors should be summoned from less than the entire judicial district. The standard which guides the court in making such determination is whether a large and unnecessary expense is involved in obtaining jurors from all parts of the district. The legislature has not specified how the court should make that determination, whether on a name to name basis, as petitioner suggests, or by way of a general rule, as the court has done in this case. This is a question for the court to determine in its discretion. The only question that we must be concerned with is whether in exercising its discretionary authority the court had a rational, factual and legal basis for what it did. We find that the presiding judge had a reasonable basis for concluding that a large expense would be involved in summoning jurors from outside the Anchorage area. In opposition to petitioner's motion to dismiss the indictment, the state filed the affidavit of Judge Davis, who was presiding judge of the superior court at the time the policy mentioned was adopted. According to Judge Davis, the expense in summoning jurors outside the Anchorage area would be large because of transportation costs that the state would be required to pay if a juror were summoned from a place more than fifteen miles distant from the City of Anchorage. In addition, Judge Davis stated that population beyond the fifteen mile radius was very scattered, and in order to bring in an additional large population group it would be necessary to cx-tend the radius out to fifty or sixty miles. This would be expensive to the state, not only because of transportation costs, but also because of the per diem that the state would be obliged to pay if it was impracticable for jurors to return to their homes each evening. The judge was also satisfied that such a large expense was unnecessary. He stated in his affidavit that approximately 70% of the population of the Third District is concentrated in the Anchorage area, and that that area constituted a very cosmopolitan community which included most, if not all, of the racial, economic, occupational and religious groups found in the Third District. It is on the question of necessity or lack of it in limiting the selection of juors to the geographical area established by the court, that petitioner takes issue with the state. It is petitioner's contention that it is necessary to incur the expense of summoning jurors from most, if not all of the whole judicial district in order to protect petitioner's constitutional rights. Petitioner argues that the present geographical limitation constitutes a systematic and arbitrary exclusion from the panel of grand jurors of certain economical, social, racial and geographical groups. The result of such exclusion, petitioner contends, is to deprive him of equal protection of the laws as guaranteed by the fourteenth amendment to the federal constitution. In support of this argument, petitioner filed affidavits which show substantially the following: (1) John M. Savage, a practicing attorney in Anchorage, stated that he had tried a minimum of 125 jury cases in Anchorage since 1959, and that at no time had he had on- a jury panel either a commercial fisherman, an Eskimo, or an Alaskan farmer. (2) T. O. Schmidtke, the Mayor of Palmer, Alaska, stated that in the Palmer area about 500 persons are dependent upon farming for their livelihood, and about 430 upon the coal mining industry. He' also stated that there were hundreds of homesteaders and land owners throughout the area who lived on their property but who produced no farm products for sale. (3) Frank Theodore, a resident of Cor-dova, Alaska, stated that the main industry and economical backbone of the City of Cordova is commercial fishing, that commercial fishermen are definitely a separate economic group of the Third Judicial District, and that the majority of the population of the City of Cordova are commercial fishermen. (4) Stanley J. McCutcheon, a practicing attorney in the City of Anchorage, stated that he was counsel for the native village of Tyonek, Inc., Alaska, and that there are residing in the village of Tyonek certain Indians who voted in the last general election and who seemingly would qualify to sit as grand and petit jurors under appropriate Alaska law. (5) John Shaffer, a resident of the central Kenai Peninsula in the Third Judicial District, estimated that within a fifty mile radius of Soldotna, Alaska the population in August 1964 was approximately 3600' people, and that approximately 50% of those people were occupied either as homesteaders or fishermen or a combination of both. (6) Henry L. Taylor, Jr., a private investigator in the City of Anchorage, stated' that of his own knowledge a vast majority of various economic groups reside in the Third District and live outside the fifteen: mile radius of the City of Anchorage. Some of these groups, according to Taylor, are farmers, coal miners, homesteaders, oil' field workers, ranchers and commercial fishermen. In addition, Taylor stated that more persons of Alaska native extraction, indigenous to and residing in the Third-District, live outside a fifteen mile radius-of Anchorage than live inside such radius. In an effort to controvert petitioner's contentions and to show that there was in-fact no unconstitutional exclusion from jury service of any particular social, racial,, religious, economical or geographical group-resident in the Third District, the state filed affidavits which show substantially the following: (1) Judge Davis stated that in his experience as superior court judge from the date the court system was established in 1960, and as presiding judge from that date until November 1964, that the system of limiting jurors to a fifteen mile radius; of the City of Anchorage placed in the jury box people of all races, including the native people of Alaska, all occupations, including fishermen and farmers, and all other stratif-ications of our society. He also stated that when the court sits in other communities of the district, such as Kodiak, Cordova and Seward, any required jurors are chosen from the area of the community in which the court is sitting- at that time. (2) Anna Mae Vokacek, clerk of the superior court for the Third District, stated that in her experience she had seen people of all races, including the native people of Alaska, and of all walks of life, summoned for jury duty in Anchorage. (3) Agnes Jackson, a clerk in the Anchorage office of the Alaska Department of Fish and Game, stated that she found from a search of the records of the Alaska Department of Fish and Game that in 1964, 536 resident commercial fishing licenses were sold in the City of Anchorage. She stated that it was her experience in selling such licenses that the great majority of people purchasing them in the City of Anchorage listed residences in the Anchorage area. (4) Wallace O. Craig, area field representative for the Bureau of Indian Affairs, United States Department of the Interior, stated that the Third District of the State of Alaska had a total population of approximately 12,634 native Indian, Aleut and Eskimos, and that his estimate of the number of such persons living in the greater Anchorage area was 2,350 as of December 31, 1964. From an assessment of the affidavits filed by petitioner and the state, it is reasonably apparent that a majority of the native population, and a majority of the farmers, coal miners, homesteaders, oil field workers, and commercial fishermen in the Third District, are not subject to being summoned for jury duty in the City of Anchorage. This does not mean however, that there is not a substantial number of persons residing within the area selected who are of native blood or who do now or have in the past followed the occupation mentioned. It is not contended by petitioner that the exclusion of these persons from jury service is done intentionally for the purpose of discriminating against them or against any particular race or class. The question, then, that is presented is whether, regardless of purpose or intent, the failure to include the area of residence of certain persons or groups of persons for jury service is in violation of constitutional requirements and the concept of a jury system according to American tradition and democratic ideals. Petitioner asserts that the failure to include the area of residence mentioned above denies him the equal protection of the laws. The United States Supreme Court has held that it is a denial of equal protection to try a defendant under an indictment issued by a grand jury from which persons of the defendant's class have been systematically excluded. But that is not what occurred here. Petitioner makes no claim that there was a systematic exclusion from the grand jury that indicted him of a class of persons of which petitioner was a member. There has been no showing of a denial of equal protection of the laws. Apart from any question involving equal protection, the United States Supreme Court has acted to curb what it has considered to be an undermining of and an injury to the jury system caused by the systematic exclusion from jury service of classes of persons that are eligible to serve as jurors. In Thiel v. Southern Pac. Co., a verdict of a jury in a federal district court was set aside -where it was shown that the clerk of the court and the jury commissioner had deliberately and intentionally excluded from jury service all persons who worked for a daily wage. The Supreme Court said: The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community. Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 85 L.Ed. 84, 86; Glasser v. United States, 315 U.S. 60, 85, 62 S.Ct. 457, 86 L.Ed. 680, 707. This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community; frequently such complete representation would be impossible. But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups. Recognition must be given to the fact that those eligible for jury service are to be found in every stratum of society. Jury competence is an individual rather than a group or class matter. That fact lies at the very heart of the jury system. To disregard it is to open the door to class distinctions and discrimina-tions which are abhorrent to the democratic ideals of trial by jury. It follows that we cannot sanction the method by which the jury panel was formed in this case. The trial court should have granted petitioner's motion to. strike the panel. That conclusion requires us to reverse the judgment below in the exercise of our power of supervision over the administration of justice in the Federal courts. See McNabb v. United States, 318 U.S. 332, 340, 63 S.Ct. 608, 612, 87 L.Ed. 819, 823. On that basis it becomes unnecessary to determine whether the petitioner was in any way prejudiced by the wrongful exclusion or whether he was one of the excluded class. See Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680, supra; Walter v. State, 208 Ind. 231, 195 N.E. 268, 98 A.L.R. 607; State ex rel. Passer v. County Board, 171 Minn. 177, 213 N.W. 545, 52 A.L.R. 916. It is likewise immaterial that the jury which actually decided the factual issue in the case was found to contain at least five members of the laboring class. The evil lies in the admitted wholesale exclusion of a large class of wage earners in disregard of the high standards of jury selection. To reassert those standards, to guard' against the subtle undermining of the-jury system, requires a new trial by a jury drawn from a panel properly and' fairly chosen. In Ballard v. United States, the Supreme Court ordered dismissal of an indictment that had been returned by a grand' jury from which women had been intentionally and systematically excluded. The court stated: We conclude that the purposeful' and systematic exclusion of women-from the panel in this case was a departure from the scheme of jury selection which Congress adopted and that,, as in the Thiel case, we should exercise our power of supervision over the-administration of justice in the federal' courts, McNabb v. United States (US) supra, (318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819), to correct an error which permeated this proceeding. [R]eversible error does not depend on-a showing of prejudice in an individual' case. The evil lies in the admitted exclusion of an eligible class or group-in the community in disregard of the- prescribed standards of jury selection. The systematic and intentional exclusion of women, like the exclusion of a racial group, Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84, or an economic or social class, Thiel v. Southern P. Co., [328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181, 166 A.L.R. 1412], supra, deprives the jury system of the broad base it was designed by Congress to have in our democratic society. It is a departure from the statutory scheme. As well stated in United States v. Roemig, D.C., 52 F.Supp. 857, 862, "Such action is operative to destroy the basic democracy and classlessness of jury personnel." It "does not accord to the defendant the type of jury to which the law entitles him. It is an administrative denial of a right which the lawmakers have not seen fit to withhold from, but have actually guaranteed to him." Cf. Kotteakos v. United States, 328 U.S. 750, 764, 765, 66 S.Ct. 1239, [90 L.Ed. 1557, 1566, 1567]. The injury is not limited to the defendant — there is injury to the jury system, to the law as an institution, to the community at large, and to the democratic ideal reflected in the processes of our courts. As the United States Supreme Court does with respect to the federal courts, we would exercise our power of supervision over the administration of justice in the state courts and order the indictment dismissed if it appeared that the grand jury had been selected in disregard of standards of jury selection reflected in our American tradition and democratic ideals of indictment and trial by jury. But we find nothing in the record in this case which calls for the exercise of such supervisory power. The policy of calling jurors only from an area within a fifteen mile radius of the City of Anchorage does not result in the exclusion from jury service of any particular and defined stratum of society so as to detract from the broad base that our jury system is designed to have. It may be true, as petitioner asserts, that the fifteen mile limitation encompasses only about one-half of one percent of the total land area in the Third Judicial District. But that in itself does not signify a forbidden exclusion from jury service of any particular social, economic, racial, political, religious, or geographical group of persons, because within a radius of fifteen miles of the City of Anchorage is found approximately 70% of the entire population of the District. It may also be true that in the towns and villages outside the Anchorage area there will be found a majority of Alaska's native population, and a majority of persons who depend for their livelihood upon commercial fishing, farming, coal mining, ranching, and oil field work. But some of each class of those persons reside within the Anchorage area and are eligible for jury service. Judge Davis stated that [T]he Anchorage area constitutes a very cosmopolitan community which includes most, if not all, of the racial, economic, occupational and religious groups found in the Third Judicial District of Alaska. And Judge Moody, who ruled on the matter hclow and is presently the presiding judge for the Third District, stated: There is no serious contention by the defendant that all the groups indicated —indicated in his motion, geographical, economic, races and classes, that there are some not within the fifteen mile .area designated by the Presiding Judge, although it is conceded that maybe a •greater number proportionately would he located outside of the fifteen mile .area. I find that there's been no showing that any of the groups claimed by the defendant to have been excluded totally were, in fact, totally excluded since, •as indicated by the State, it is common knowledge and this Court having sat •on a large number of jury cases, in .approximately three years, can attest to the fact that all of these groups referred to by the defendant have at one time or another either sat on a jury or have been called for jury duty although they may have been excused or challenged. We do not require, in order to maintain the broad base that our jury system is designed to have, that there be equal representation on juries of every economic, social, religious, racial, political and geographical •group of the entire judicial district. To require that would involve a tremendous •cost to the state, because of the vastness of the Third District and the remoteness of •many towns and villages, many of which are •accessible only by air on an unscheduled 'basis and at limited times depending upon •weather conditions. We believe such costs to be unnecessary within the meaning of AS 09.20.070. Based upon the record as it pertains to the .geography of the Third District and the people who reside there, we are of the opinion that those persons residing in that portion of the Third District comprising the City of Anchorage and an area within a fifteen mile radius of the city represent a fair cross-section of the different economic, social, religious, racial, political and geographical groups found in the Third District. A grand jury selected from the Anchorage area is a jury which satisfies proper standards of jury selection. Petitioner's final point is that one of the members of the grand jury which indicted him was not legally qualified to serve as a grand juror, and therefore petitioner's constitutional right to be indicted by due process of law was violated. AS 12.40.010 provides that grand jurors shall have the qualifications and be drawn as are trial jurors in civil actions. One of the grand jurors in this case, Julia Simonson, was not selected to serve on the grand jury in the manner provided by law, i. e., at a public drawing. Instead, by court order she was transferred to the grand jury from the petit jury where she initially had been chosen to serve. Criminal Rule 6(a) permits a qualified member of the grand jury panel not designated to serve as a member of the grand jury to be placed on the petit jury panel. The rule does not provide, however, for the placement on the grand jury panel of a qualified member of the petit jury panel not designated to serve as a petit juror. Julia Simonson was not selected according to law and therefore not legally qualified to serve as a grand juror. This does not mean, however, that the indictment was invalidated and was subj ect to dismissal. In accordance with Crimi nal Rule 6(d) the trial judge ordered that the record of the number of grand jurors concurring in the finding of the indictment against petitioner be made public. Such records show that the vote on the indictment was unanimous' — all fifteen of the grand jurors voting in favor of the indictment. The superior court was therefore correct in holding that the indictment was valid and', not subject to dismissal, since the records; show that a majority of the total number of grand jurors, after deducting the one not qualified, had concurred in finding the indictment. The order denying petitioner's motion to> dismiss the indictment is affirmed. . Alaska Supreme Ct.R. 23-24. Knudson v. City of Anchorage, 358 P.2d 375, 376 (Alaska 1960). . AS 09.20.050-09.20.070, 12.40.030, 12.-45.010. . Petitioner does not attack the constitutionality of AS 09.20.070. . 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 than 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 jierson and direct that the name or number of another be drawn in his place. .See Yoho v. United States, 202 F.2d 241, 14 Alaska 174 (9th Cir. 1953), which was decided under § 55-7-36 ACLA 1949 which contained similar language to AS 09.20.070. Compare 28 U.S.C.A. § 1865(a). Lewis v. United States, 279 U.S. 63, 49 S.Ct. 257, 73 L.Ed. 615 (1929); Ruthenberg v. United States, 245 U.S. 480, 38 S.Ct. 168, 62 L.Ed. 414 (1918); United States v. Titus, 210 F.2d 210 (2d Cir. 1954); United States v. Gottfried, 165 F.2d 360 (2d Cir.), cert, denied 333 U.S. 860, 68 S.Ct. 738, 92 L.Ed. 1129 (1948). . Admin.lt. 17 (b) provides: Jurors summoned from places more than 15 miles distant from the place of court shall receive reimbursement for round-trip travel performed from the juror's residence to the place of court for the total distance actually and necessarily traveled at the rate of 12 cents a mile. Where air transportation is used, the actual cost of such transportation shall he paid in lieu of mileage. . Admin.R. 17 (c) provides: Where it is impracticable for a 'juror to return to his home each evening, subsistence at the rate of 321.00 a day shall be allowed for each day of his term of service on the venire. . Petitioner takes issues with Judge Davis's statement that approximately 70% of the population of the Third District is con- centrated in the Anchorage area. In support of his motion to dismiss the- indictment, petitioner filed the affidavit of Henry Taylor, who stated that based on the 1960 census the total population of the Third District was 118,886 persons, and that of those, 82,833 lived in the Anchorage voting district. This means that 69.674% of the total population of the Third District resides in the Anchorage voting district. Taylor also stated that the Anchorage voting district covered an area larger than a fifteen mile radius of the City of Anchorage, but he did not state how much larger it was or what percentage of the population of the voting district resided outside the fifteen mile area. . Affiant appears to be mistaken regarding the number of jury cases he has tried. Court records reveal that instead of having tried a minimum of 125 jury cases in Anchorage since 1959, affiant has tried only 50 such cases in the superior and magistrate courts combined. . The City of Palmer has a population of 2,000 persons and is situated approximately 40 miles from the City of Anchorage. . The City of Cordova has a population of 1200 persons and is situated approximately 150 miles from the City of Anchorage. . The village of Tyonek has a population of approximately 195 persons and is situated approximately 50 miles from the-City of Anchorage. . The City of Soldotna has a population of approximately 320 persons and is situated approximately 75 miles from the-City of Anchorage. . Eubanks v. Louisiana, 356 U.S. 584, 585-589, 78 S.Ct. 970, 2 L.Ed.2d 991, 993-995 (1958) ; Reece v. Georgia, 350 U.S. 85, 87, 76 S.Ct. 167, 100 L.Ed. 77, 81 (1955); Hernandez v. Texas, 347 U.S. 475, 477—482, 74 S.Ct. 667, 98 L.Ed. 866, 869-872 (1954); Annot., 2 L.Ed.2d 2040 (1958). . 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946). . Id., 328 U.S. at 220-225, 66 S.Ct. at 985-988, 90 L.Ed. at 1184-1187. . 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181 (1946). . Id. at 193-195, 67 S.Ct. at 264-265, 91 L.Ed. at 185-187. . We also reject petitioner's contention that equality demands uniformity of rules and there can be no constitutional uniformity if each jurisdictional district in Alaska is allowed to promulgate its own rules and regulations as to the impaneling of grand and petit jurors. Contrary to petitioner's assertion, the provisions of AS 09.20.050-09.20.070 permit each district to determine for itself questions ' pertaining to the selection of grand and petit jurors. We are of the opinion that this statutory grant is reasonable in light of the significant differences, in such factors as population, location, weather, modes of transportation, and climate, between the four judicial districts of this state. .The total geographical land area of the Third District, according to petitioner's computation, is 138,985 square miles. .See Bary v. United States, 248 F.2d 201, 206 (10th Cir. 1957); United States v. Gottfried, 165 F.2d 360, 364 (2d Cir.), cert, denied, 333 U.S. 860, 68 S.Ct. 738, 92 L.Ed. 1139 (1948). . Yoho v. United States, 202 F.2d 241, 14 Alaska 174 (9th. Cir. 1953). . AS 12.40.010 reads: Grand jurors shall have the qualifications and be drawn as are trial jurors under AS 09.20.010-09.20.080. . Crim.R,. 6(d) provides: Foreman and Deputy Foreman. The presiding judge shall appoint one of the jurors to be foreman and another to be deputy foreman. The foreman shall have power to administer oaths and affirmations and shall endorse all indictments. He or another juror designated by him shall keep a record of the number of jurors concurring in the finding of every indictment and shall file the record with the clerk of the court, but the record shall not be made public except on order of the presiding judge. During the absence of the foreman, the deputy foreman shall act as foreman. . Crim.R. 6(c) (2) provides: Motion to Dismiss. A motion to dismiss the indictment may be based upon-, objections to the array or the lack of legal qualification of an individual juror, if not previously determined upon challenge. An indictment shall, not be dismissed upon the ground that one or more members of the grand jury were not legally qualified if it appears from the record kept pursuant to subdivision (d) of this rule that a-majority of the total number of grand: jurors, after deducting the number not legally qualified, concurred in finding; the indictment.

10563514

STATE of Alaska, Appellant, v. 7.026 ACRES, more or less; William W. Friday, et al., Appellees

State v. 7.026 Acres

1970-03-16

No. 1106

364

367

466 P.2d 364

466

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:36:15.817445+00:00

CAP

Before: DIMOND, RABINO WITZ, BONEY and CONNOR, JJ.

STATE of Alaska, Appellant, v. 7.026 ACRES, more or less; William W. Friday, et al., Appellees.

STATE of Alaska, Appellant, v. 7.026 ACRES, more or less; William W. Friday, et al., Appellees. No. 1106. Supreme Court of Alaska. March 16, 1970. G. Kent Edwards, Atty. Gen., Juneau, Richard P. Kerns, Asst. Atty. Gen., Anchorage, for appellant. No appearance for appellees. Before: DIMOND, RABINO WITZ, BONEY and CONNOR, JJ.

1608

9404

DIMOND, Justice. In the exercise of the power of eminent domain, the state condemned 7.026 acres of land for highway purposes. A master appointed by the superior court awarded $4,-214 as just compensation. Appellee Friday, the owner of the property, appealed from the master's report, and a jury awarded $22,455 as just compensation. On the state's motion for a new trial, the superior court determined that the evidence was insufficient to justify an award of more than $17,770, and granted the state's motion for a new trial unless a reduction in the award, or a remittitur was accepted by appellee. He accepted the remittitur to $17,770, and the court entered a judgment for that amount and denied the state's motion for a new trial. The state has appealed, claiming error in certain evidentiary rulings made by the trial court. Maurice Gebhart testified as to the value of the property. When asked on cross-examination whether his valuation was based on what the property would have sold for in cash, Gebhart stated that property of that type and value was more often than not sold on terms, rather than for a cash payment of the total purchase price. The state contends that the testimony was incompetent because Gebhart's valuation was not based on cash value. What the state appears to argue is that fair market value is the price that could be realized from a buyer able to pay the entire purchase price in cash, rather than one who would buy partly with a cash payment, with the balance payable on terms, such as- in monthly installments. Gebhart was giving his opinion of the fair market value of the property, which is a legitimate method of ascertaining just compensation. Fair market value is the price in money that the property could be sold for on the open market under fair conditions between an owner willing to sell and a purchaser willing to buy, with reasonable time allowed to find a purchaser. It is not necessary, in order to give credence to a witness' opinion of fair market value, to also require him to show that the property and market value are such that the entire purchase price could be expected to be paid at the time of sale. In defining fair market value for the jury, the trial court spoke of the price that would be paid "in cash" on a free and open market. The reference to cash is significant only as indicating that value was to be assessed in terms of money, rather than in terms of something of value other than money. A sale would be for cash, within the meaning of the court's instruction, if the total purchase price was paid in money at the time of sale. The sale would also be for cash if the purchase price was payable in money, partly at the time of sale and partly on terms of reasonable credit by way of deferred payments. Gebhart's testimony regarding the likelihood of the property involved being sold on terms, rather than for a total cash price at the time of sale, was not incompetent and was admissible. As its second point on appeal, the state contends that the trial court erred in admitting the following evidence: (1) the testimony of witnesses Mercer and Tomlin-son as to previous sales of subdivided lots owned by them in the vicinity of appellee's property; (2) the testimony of appellee as to his intention to subdivide his property into about 55 lots and sell them as recreational cabin sites; and (3) a proposed subdivision plan prepared by appellee in 1962, which had never been submitted to nor acted up by any governmental agency. The state argues that evidence of potential uses to which condemned property may be put must be limited to those which are reasonably and naturally adaptable in the foreseeable future, and that evidence of a property owner's plan to subdivide property into lots, where no significant steps have been taken to effect the subdivision, is inadmissible because too remote and speculative to merit consideration by a jury. Appellee was entitled to just compensation for the taking of his property by the state. Just compensation is measured by the value of the property taken. One criterion for determining value is what the property is worth on the market — its fair market value, and this is to be determined by a just consideration of all the uses for which the property is suitable. It is the widely accepted rule that the highest and most profitable use for which the property is adaptable is to be considered, to the extent that the prospect of demand for such use affects the market value while the property is privately held. Such adaptability, merely within the realm of possibility, is not sufficient. It must be shown that the use for which the property is claimed to be adaptable is reasonably probable. If this cannot be shown, evidence of prospective use must be excluded because it would allow mere conjecture and speculation to become a guide for ascertainment of value, and this is not a permissible method for the judicial ascertainment of truth. Counsel for the state stipulated at the trial that the "highest and best use" of ap-pellee's property was for subdivision into cabin sites. The evidence presented, including that objected to by the state, tended to establish the validity of that stipulation. There was evidence that similar property in very close proximity to appel-lee's property had been subdivided and the resulting lots sold. There was evidence that appellee had planned a subdivision in 1962, that since then he had constructed 26 access roadways to accommodate 33 proposed lots to be used as cabin sites, and that some of his property had already been used, for such purposes. All of this evidence tended to show that the adaptability of appellee's property for subdivision purposes was reasonably probable, and not just conjectural or speculative, and therefore was admissible as bearing on the fair market value of the property. The state's argument against the admissibility of the evidence objected to is directed mainly at the proposed subdivision plan that appellee had prepared, and which was introduced in evidence as an exhibit. It has been held that such a plat is not admissible in evidence. Although various reasons have been given for holding it error to allow a subdivision plat to be considered by the trier of fact, the main basis seems to be that under the facts of a particular case the use of the land for subdivision purposes is too remote and speculative to influence present market value. On the other hand, where the adaptability of the land for subdivision use is shown to be reasonably probable, and not too remote or speculative, then a subdivision plat is admissible as illustrating the potential and reasonably probable use. That was the purpose of introducing appellee's proposed subdivision plan in this case. Its admission into evidence was not improper. The judgment is affirmed. NESBETT, C. J., not participating. . Bridges v. Alaska Housing Authority, 375 P.2d 696, 698 (Alaska 1962). . Bridges v. Alaska Housing Authority, 375 P.2d 696, 698 (Alaska 1962) ; Olson v. United States, 292 U.S. 246, 257, 54 S.Ct. 704, 78 L.Ed. 1236, 1245 (1934). . The court's Instruction No. 2 provided in part: Pair market value is that price, upon a free and open market, which a buyer who is willing and fully informed, but not compelled to buy would pay in cash for a given property, and in which a seller who is willing and fully informed, but not compelled to sell, would accept in cash for the property; that is to say it is the price which the owner would be willing to take and it is the price which the purchaser would be willing to pay in cash on a free and open market, both acting intelligently and without either being compelled to make the transaction. .Baucum v. Arkansas Power & Light Co., 179 Ark. 154, 15 S.W.2d 399, 401 (1929). . Baucum v. Arkansas Power & Light Co., 179 Ark. 154, 15 S.W.2d 399, 401 (1929) ; Riley v. District of Columbia Redevelopment Land Agency, 100 U.S.App.D.C. 360, 246 E.2d 641, 643 (1957). . Alaska Const, art. I, § 18 provides: Private property shall not be taken or damaged for public use without just compensation. . Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 78 L.Ed. 1236, 1244 (1934) ; 4 Nichols, Eminent Domain § 12.314 (rev. 3d ed. 1962). . Olson v. United States, supra note 7, 292 U.S. at 257, 54 S.Ct. at 709, 78 L.Ed. at 1245-1246; United States v. Waterhouse, 132 F.2d 699, 703 (9th Cir.1943) ; 4 Nichols, Eminent Domain § 12.314, at 140-152 (rev. 3d ed. 1962). . Olson v. United States, supra note 7, 292 U.S. at 257, 54 S.Ct. at 709, 78 L.Ed. at 1245-1246. . Arkansas State Highway Comm'n v. Parks, 240 Ark. 719, 401 S.W.2d 732, 733-734 (1966) ; Lower Nueces River Water Supply Dist. v. Collins, 357 S.W.2d 449, 452 (Tex.Civ.App.1962) ; Annot., 26 A.L.R.3d 780, 786, 792-96, 805-11, 819-24, 830-34, 837-44 (1969). . Iske v. Metropolitan Util. Dist. of Omaha, 183 Neb. 34, 157 N.W.2d 887, 893-894 (1968) ; 5 Nichols, Eminent Domain § 18.11 [2], at 18-57, 18-58 (rev. 3d ed. 1962) ; Annot., 26 A.L.R.3d 780, 789-92, 796-805, 811-19, 827-30, 834-37 (1969).

10581039

Robert GROFF, Appellant, v. Frances E. GROFF, Appellee

Groff v. Groff

1965-12-20

No. 630

998

1002

408 P.2d 998

408

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:35:34.342669+00:00

CAP

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

Robert GROFF, Appellant, v. Frances E. GROFF, Appellee.

Robert GROFF, Appellant, v. Frances E. GROFF, Appellee. No. 630. Supreme Court of Alaska. Dec. 20, 1965. George F. Boney, Burr, Boney & Pease, Anchorage, for appellant. Charles E. Cole and Michael A. Stepo-vich, Fairbanks, for appellee. Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.

2066

12495

RABINO WITZ, Justice. Appellant appeals from the entry of a decree of divorce dated May 28, 1965. The gist of appellant's dissatisfaction with the decree centers on the trial court's division of the parties' property and the award of alimony to appellee. We have concluded that the trial court did not err in its division of the property, but that the alimony provision of the decree should be modified. The record discloses that the parties were married in February 1946, and at the time of the hearing below were both forty-two years old. Two children were born of this marriage. The older daughter of the parties is now married. The younger daughter is sixteen years old and has a diabetic condition. In regard to the property of the parties, the evidence adduced disclosed the following. During their marriage the parties acquired a duplex, located in Fairbanks, having an appraised value of $42,500.00 against which there is an existing mortgage indebt-' edness of $27,000.00 payable at the rate of $263.00 monthly. Appellee and the sixteen year old daughter of the parties reside in one of the apartments in the duplex. The' other apartment is presently rented unfurnished for $210.00 a month with heat and water supplied. The value of the furnishings located in the portion of the duplex resided in by ap--pellee and the minor daughter was estimated to be from $5,000.00 to $7,500.00. During their marriage the parties also acquired ten shares of stock in the First National Bank of Fairbanks having a total market value of $2,800.00. They also own a fifty per cent interest in Fairbanks Transfer and Storage, Inc., a holding company, which is purchasing the stock of Sig Wold Storage and Transfer, Inc. The purchase price of the Sig Wold stock is $241,000.00 payable at the rate of $1,000.00 per month plus interest at five per cent. Under its stock purchase agreement, Fairbanks Transfer and Storage, Inc. owes a balance of $184,-000.00. The present book value of the parties' interest in fifty per cent of the stock of Fairbanks Transfer and Storage, Inc. is $28,500.00. , As to the existing liabilities of the parties, the evidence shows that in addition to the $27,000.00 balance remaining to be paid on the duplex mortgage the parties owe $9,467.00. The record also disclosed the following in regard to the employment histories and earning capacities of the respective parties. Appellant has been employed by the First National Bank of Fairbanks since 1957 and presently holds the position of Vice-President. Appellant's gross income is $1,333.00 per month with a net income of $1,012.00 per month. Appellant also receives an annual bonus equal to one month's salary which gives him a total annual income of approximately $17,300.00. During the twenty years of her married life, appellee has been principally occupied as a housewife. In the past appellee was employed for three months in 1963 earning $2.00 an hour clerking in a photography shop, and had also been employed part time at the Sig Wold Storage office. At the time of the hearing appellee was working three days a week as a sales clerk in a children's clothing store in Fairbanks earning $2.25 per hour. In its decree the trial court awarded ap-pellee the duplex (the parties' equity being $15,500.00) ; the furnishings in the duplex (valued from $5,000.00 to $7,500.00); and one half of the parties' interest in the Fairbanks Transfer and Storage, Inc. stock (book value of this one half interest being $14,250.00 at the time of the hearing). In addition to permitting appellee to receive the $210.00 monthly income from the rented portion of the duplex, the decree provided that appellant was to pay the $263.00 monthly installments on the mortgage bal-anee against the duplex. The decree also provided that appellant was to pay to ap-pellee $300.00 monthly for "her support and maintenance." Under the terms of the decree appellant was awarded the ten shares of stock in the First National Bank of Fairbanks (having a market value of $2,800.00) and one half of the parties' interest in the Fairbanks Transfer and Storage, Inc. stock (the book value of the one half interest being $14,-250.00). In addition to requiring the appellant to pay the $263.00 monthly installments on the duplex mortgage, the decree required appellant "to assume and pay all obligations of the parties" incurred prior to the entry of the decree (which obligations totalled approximately $9,467.00 in addition to the $27,000.00 mortgage indebtedness). In Crume v. Crume we stated in part: with respect to the judicial division of the property in this case, that is a matter left by statute to the broad discretion of the trial court and will not be disturbed on appeal unless an abuse of such discretion is shown. To establish an abuse of discretion the aggrieved party must show that the property division was clearly unjust. Also pertinent to the property division issue in this appeal are the factors to which we alluded in Merrill v. Merrill. In that case we stated that the principal factors which should be considered by the trial court in resolving property division and alimony issues were: the respective ages of the parties; their earning ability; the duration and conduct of each during the marriage; their station in life; the circumstances and necessities of each; their health and physical condition; their financial circumstances, including the time and manner of acquisition of the property in question, its value at the time and its income-producing capacity if any. Our review of the evidence and the trial court's findings of fact and conclusions of law convinces us that the trial court conscientiously considered the factors we referred to in the Merrill case and appropriately applied these factors in determining the division of the parties' property. We conclude that the trial court did not abuse its discretion and that its division of the property was not clearly unjust. On the other hand a consideration, of these same factors leads us to the conclusion that the award of alimony in the decree should be modified. Under the decree's provisions appellant is required to make monthly payments in the total amount of $1,025.00. This amount includes, in addition to the $300.00 alimony payment, $140.00 for child support, $263.00 for duplex mortgage payment, and a $322.00 monthly payment to the Seattle First National Bank. In relation to appellant's monthly obligation to pay $1,025.00 under the decree, it is pertinent to remember that appellant's net monthly income is only $1,012.00. Upon consideration of the circumstances referred to immediately above, the fact that appellant is required to pay all of the existing indebtedness of the parties, and the relative position of appellee resulting from the property division decree, we are of the opinion that the trial court abused its discretion in awarding alimony to appellee at this time. We conclude, therefore, that the decree should be modified to suspend for a period of eighteen months the require ment imposed upon appellant to pay to appel-lee the sum of $300.00-per month alimony. After the expiration of eighteen months from the date of this court's mandate, the trial court may, if appellee so desires, determine whether or not any given amount of alimony should at that time be awarded. The trial court is directed to modify the decree in accordance with the foregoing, and as modified, the decree is affirmed. . Tlie $263.00 monthly payment includes interest, insurance and taxes. . The expenses of renting this apartment are approximately $79.00 per month. The evidence also shows that there is a finished basement which is suitable for rental purposes. . This stock normally pays a dividend of 3% to 3½% annually. . This balance of $184,000.00 is being paid from the earnings of Sig Wold Storage and Transfer, Inc. . This $9,467.00 figure comprised the following indebtedness: $4,300.00 balance on loan from Seattle First National Bank (payable at $322.00 per month) which was used to purchase parties' interest in Fairbanks Transfer and Storage, Inc. (This loan is secured by a pledge of the parties' ten shares of stock in the First National Bank of Fairbanks); $1,-700.00 balance on the down payment of the purchase of the parties' fifty per cent interest in Fairbanks Transfer and Storage, Inc.; and a total of $3,467.00 in miscellaneous family obligations. At the time oral arguments were heard on the appeal, the total indebtedness of $9,467.00 had been reduced, although the precise amount of the reduction was not established. . At the time of her marriage, appellee was a beautician but has not worked as such since her marriage and is not licensed in Alaska. . The decree also awarded custody of the diabetic minor daughter of the parties to appellee and required appellant to pay the sum of $140.00 monthly for the child's "support, maintenance and education." Appellant raises no issue in regard to this portion of the decree. Similarly, appellant doesn't question the award of the duplex, rent from the duplex and furnishings of the duplex to appellee. Appellant was also agreeable to the assumption of all the obligations of the parties including the $263.00 monthly installments on the duplex mortgage. The principal objections of the appellant go to that part of the decree which awards appellee one half of the parties' interest in the Fairbanks Transfer and Storage, Inc. stock and the allowance of $300.00 per month alimony. . 378 P.2d 183, 186 (Alaska 1963). . The "clearly unjust" standard was subsequently applied in McSmith v. McSmith, 387 P.2d 454, 455 (Alaska 1963). See also Rhodes v. Rhodes, 370 P.2d 902, 905 (Alaska 1962); Merrill v. Merrill, 368 P.2d 546, 547 (Alaska 1962). AS 09.55.210(6) provides as follows: In a judgment in an action for divorce * ⅜ * the court may provide ⅜ (6) for the division between the parties of their joint property or the separate property of each, in the manner as may be just, and without regard as to which of the parties is the owner of the property; and to accomplish this end the judgment may require one of the parties to assign, deliver, or convey any of his or her real or personal property to the other party; * ⅜ * . 368 P.2d 546, note 4, at 547-548 (Alaska 1962). . AS 09.55.210(3) establishes that the court in its judgment in a divorce action may provide: (3) for the recovery from the party in fault an amount of money, in gross or in installments, as may be just and proper for the party to contribute to the maintenance of the other * ⅜ *. It is also pertinent to note that the appellant initiated the action by filing a eomplaint seeking divorce on the grounds of incompatibility of temperament. Ap-pellee "counterclaimed" seeking a divorce on the grounds of cruel and inhuman treatment and the separate ground of personal indignities rendering life burdensome. The trial court found that appellant had inflicited upon appellee personal indignities rendering her life burdensome and that appellant was the party at fault within the meaning of AS 09.55.210(3). Although we are of the view that it would serve no useful purpose to catalogue the evidence appearing in the record which supports 'these findings, we are of the opinion that there is more than adequate evidence to support these findings of the trial court. . The payments are in regard to a' $4,-300.00 balance owing to the Seattle First National Bank — supra note 5. . If appellant's annual bonus is taken into consideration, it would not him approximately $90.00 a month more. . Under the decree, in addition to receiving a rent free home, the appellee re ceives monthly $120.00 not from the rental of the other duplex unit; $140.00 for the support of the parties' minor child; and $216.00 from her part time employment as a sales clerk. . If appellee desires a hearing at such time, it is contemplated that the trial court will then have the benefit of the current financial status of the respective parties, the employment record of ap-pellee during this period, and the benefit of medical evidence pertaining to the ability or lack of ability on appellee's part to be employed full time.

10580932

Allen SIDNEY, Appellant, v. STATE of Alaska, Appellee

Sidney v. State

1965-12-13

No. 565

858

863

408 P.2d 858

408

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:35:34.342669+00:00

CAP

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

Allen SIDNEY, Appellant, v. STATE of Alaska, Appellee.

Allen SIDNEY, Appellant, v. STATE of Alaska, Appellee. No. 565. Supreme Court of Alaska. Dec. 13, 1965. Joe P. Josephson, of Josephson & Strach-an, Anchorage, for appellant. John K. Brubaker, Dist. Atty., Anchorage, for appellee. Before NESBETT, C. J., and DIMOND- and RABINOWITZ, JJ.

3432

20567

RABINOWITZ, Justice. The gist of this appeal raises questions-pertaining to the State's introduction into-evidence of records of appellant's prior criminal convictions. We consider it necessary to initially refer in some detail to the trial proceedings so that the factual context leading up to the admission into evidence of the judgments of conviction will be more readily understood and our disposition of these issues claidfied. Appellant Allen Sidney was indicted for the crime of assault with a dangerous weapon allegedly committed August 17, 1964, by stabbing Johnson Scott with a knife in violation of AS 11.15.220. After trial by jury appellant was found guilty of assault with a dangerous weapon and was sentenced to serve a five year term of imprisonment. It is from this sentence that appellant appeals. During the impanelling of the jury, trial counsel for appellant disclosed to the prospective jury panel that appellant had been previously convicted and incarcerated. The first disclosure occurred during co'unsel for appellant's voir dire examination of juror DeArmon. The juror was asked the following questions by appellant's counsel : Will the fact that the defendant has been in the penitentiary and will tell you from the witness stand that he has, from this Court here years ago, would that have any tendency to prejudice you against him ? Could you overlook that completely and try this case on his reputation and his character and the facts since that time ? I take it then that none of you have spoken up, you would not be prejudice [sic] against him by reason of the fact that he did do a term in the penitentiary at McNeil Island from this very city of Anchorage here? If you found and believed that he had repented from that and was doing right, you would not hold that against him, would you? Assault with dangerous weapon. A person armed with a dangerous weapon, who assaults another with the weapon, is punishable by imprisonment in the penitentiary for not more than 10 years nor less than six months, or by imprisonment in jail for not more than one year nor less than one month, or by a fine of not more than $1,000 nor less than $100. Substantially the same type of interrogation took place during counsel for appellant's voir dire examination of two subsequent prospective jurors. The next reference to appellant's criminal record occurred during his counsel's opening statement to the jury. At this point counsel said: We will also show that my client here was a convict and served in the penitentiary. He will show that he became a member of the religious organization there in the penintentiary [sic]. After the prosecution had rested its case in chief, appellant elicited testimony from three defense witnesses as to his good reputation for truth and veracity. Appellant then testified in his own behalf. During appellant's direct examination, the following took place : Q And had you — Allen, had you prior to that time served a sentence in the penitentiary ? A Yes sir. Q And what year did you receive that sentence? A In 1958, sir. December 17th, yes. Q December 1958 ? A Yes sir. Q And after you got out of the penitentiary did you come right back to Anchorage ? A Yes sir. During the prosecution's cross-examination of appellant, copies of four judgments of conviction were introduced into evidence over appellant's objections. At no time prior to offering these judgments of conviction into evidence did counsel for the prosecution ask appellant any question as to his prior criminal record. The four judgments of conviction indicate that appellant had been convicted of the crimes of robbery in 1958, of rape in 1957, of possession of an unregistered firearm in 1957, and of robbery in 1944. To each of these four exhibits appellant's counsel objected on the grounds of lack of competency, relevancy, materiality, and foundation. It is the introduction into evidence of these four judgments of conviction which appellant asserts as error. For reasons, which will hereafter be explained, we have concluded that it was not error for the trial court to'have ruled that the four exhibits were admissible. Appellant's argument centers primarily on the provisions of Civ.R. 43(g) (11) [b]" This rule of procedure provides: Impeachment of Adverse Party. A witness may be impeached by the party against whom he was called by contradictory evidence, or by evidence that his general reputation for truth is bad, or that his moral character is such as to render him unworthy of belief. He may not be impeached by evidence of particular wrongful acts, except that it may be shown by the examination of the witness or the record of a judgment that he has been convicted of a crime. Appellant contends that the "customary mode of proof" contemplated by Civ.R. 43(g) (11) [b] required the prosecution to first ask him "whether he had ever been convicted of a crime" and that the trial court's failure to adhere to this mode of proof requires reversal by this court. This is the first occasion that we have been asked to answer this precise question. Under the common law it was established that evidence of prior convictions was inadmissible to show guilt of the defendant. An exception to this general rule occurred when the defendant voluntarily submitted himself as witness. He then became subject to impeachment. At common law it was also held that proof of an official record, such as a judgment of conviction, had to be established by a certified copy in preference to receiving testimony from a witness as to its contents. Dean McCormick states that this rule of tire common law: [W]as applied in England to proof of records of conviction, so as to preclude the cross-examiner from asking about convictions. This practice still lingers in a few states, but the inconvenience of such a requirement, and the obvious reliability of the answer of a witness acknowledging his own conviction, have led most jurisdictions, by either statute or decision, to permit the proof to be made either by production of the record or a copy, or by the oral statement of the convicted witness himself. In our jurisdiction Civ.R. 43(g) (11) [b] permits impeachment of a defendant-witness by evidence of prior convictions of crime to be adduced either by examination of the defendant-witness or by the record of conviction. We hold that under the provisions of Civ.R. 43(g) (11) [b] it was not error for the lower court to have admitted the judgments of conviction into evidence without first requiring the prosecution to ask •appellant whether or not he had been convicted of a crime. We further hold that the judgments of conviction were also admissible under that portion of Civ.R. 43(g) (11) [b] which provides: A witness may be impeached by the party against whom he was called by contradictory evidence, . Under this aspect of Civ.R. 43, the judgments of conviction (other than the 1958 robbery conviction) were admissible to con- tradict the inference arising from appellant's testimony on direct examination, to the effect that he had only been convicted on one prior occasion. Appellant also urges that the lower court erred in allowing the judgments of conviction to be received into evidence because of the prosecution's failure to comply with Civ.R. 44(b) (2)'s conditions precedent for the admission of official records. Crim.R. .26(e) provides: Proof of Records. An official or business record or an entry therein or the lack of such a record or entry may he proved in the same manner as in civil actions. The admission of official records in civil •actions is governed in part by Civ.R. 44(b) (2) which reads: Conditions of Admitting Official Records. Any writing admissible under .subdivision (1) shall be received only if the party offering such writing has delivered a copy of it or so much there- of as may relate to the controversy, to each adverse party a reasonable time before trial, unless the court finds that such adverse party has not been unfairly surprised by the failure to deliver such copy. We find no merit in appellant's argument that the four judgments of conviction were erroneously received into evidence due to the prosecution's failure to comply with the requirements of Civ.R. 44(b) (2). We mentioned earlier the grounds upon which appellant objected to the introduction of these exhibits at the trial. Examination of the record reveals that appellant did not, at any time during the trial, object to the admissibility of the judgments of conviction on Civ.R. 44 grounds. We have previously held that we will not consider on appeal any objection which was not raised at the trial level. Furthermore, we find nothing in the record to indicate that appellant was "unfairly surprised" by any failure on the prosecution's part to deliver to defendant copies of the judgments of conviction a reasonable time before trial. Appellant further contends that the admission of the judgments of conviction was so prejudicial as to require the setting aside of his conviction. What we have said in regard to appellant's first two contentions is applicable here and controlling. The chief thrust of appellant's argument at this point is that the impact upon the jury flowing from this documentary evidence of appellant's prior criminal convictions was prejudicially greater than what would have occurred if the trial court had initially limited the prosecution under Civ.R. 43 to an examination of appellant while on the witness stand. In addition to our holdings in regard to appellant's first two contentions, we note that the record shows from the very inception of the trial appellant's counsel disclosed to the jury that appellant had been convicted and had served time in the penitentiary. The record also indicates that this information was brought to the jury's attention by appellant's counsel (in substantially the same form) on three additional occasions. And, as indicated previously, appellant on direct examination testified that in 1958 he had been sentenced and served a period of time in the penitentiary. Thus the fact that appellant had suffered at least one prior criminal conviction was well known to the jury before the prosecution attempted to introduce the judgments of conviction during its cross-examination of appellant. Any prejudice to appellant's case arising from the introduction of the judgments of conviction was both lessened by appellant's anticipatory references to a single past conviction and heightened by appellant's, at the least equivocal, attempts to impress the jury that he had only been convicted on one prior occasion. Since we have held that Civ.R. 43 (g) (11) [b] authorizes the use of judgments of conviction and in light of the foregoing, we can find no basis for upsetting appellant's conviction on the urged grounds that the introduction of the judgments of conviction were so prejudicial as to require reversal of his conviction. Appellant's final contention is that the allowance into evidence of the 1957 judgments of conviction of rape and possession of an unregistered firearm was-prejudicial error. In support of this argument appellant contends that under Civ.R. 43(g) (11) [b] impeachment of a defendant-witness should be limited solely to crimes involving dishonesty or false statement. In Anderson v. State this court said,, in discussing the-question of whether it was-proper for the prosecutor to have asked a. witness whether he had been convicted of a felony, that: As far as we are aware Alaska courts have uniformly permitted the prosecutor to ask a witness the question of whether he had been convicted of a. crime. A rules amendment now in-process of adoption will resolve the ambiguity making it clear beyond doubt that a witness may be asked whether he has been convicted of a crime. This reflects the state of the law as to impeachment at the time appellant's trial' took place. Under the wording of Civ.R-43 and the Anderson case, no limitation-exists as to the type of crimes that can be used to impeach a defendant-witness. The judgment and commitment entered; below is affirmed. . AS 11.15.220 provides: . At the trial appellant was represented by Bailey Bell, court appointed counsel. Mr. Josephson was subsequently appointed to represent appellant in regard to this appeal. Appellant admitted knifing Scott but claimed he acted in self defense after Scott had first struck him. The principal conflicts in evidence revolved around the location of the stabbing and whether or not appellant acted in self defense at the time in question. . Juror Marie Cohen was asked by appellant's counsel the following question: Do you feel that the fact that he had had some trouble and served some time in the penitentiary, do you think you could still treat him just the same if he had reformed from that and living right, you could treat him just as good as if that had never happened? During the voir dire examination of juror Gloria Dickenson, appellant's counsel asked: You're willing to forgive a person who has made a wrongful step and has gone to the penitentiary for it and paid his debt to society and come home and tried to live right, but you're willing to forgive him for it, aren't you? .Officer William L. Box of the Anchorage City Police was asked if he knew what general reputation appellant had as to truth and veracity. The officer testified "As far as I know, he was known to be truthful." Reverend Boyd E. Rodgers testified that appellant bore a good reputation for truth and veracity. Reverend Ernest Mitchell Howard also testified that appellant's reputation for truth and veracity was a "very good one." . The following exchange between appellant and his counsel also occurred during appellant's direct examination: Q Are you trying, Allen, to live down the past where you have had bad luck and got a sentence? A Yes sir. I started that in McNeil Island, Washington, sir. I got converted on McNeil Island. . Note: As to each of the judgments of conviction the prosecution did ask appellant, in the process of identifying the exhibits, whether or not he was the Allen Sidney referred to in the particular exhibit. Appellant was never asked if he had ever been convicted of a crime. . The judgment and commitment in regard to the 1958 robbery conviction showed that appellant received a five year sentence; the judgment and commitment pertaining to the 1957 rape conviction disclosed that appellant was given a three year sentence with all but nine months suspended; as to the 1957 possession of an unregistered firearm conviction, the judgment and commitment reflects that appellant was fined $250.00 and placed on probation for five years; the 1944 copy of minutes (commitment) relating to appellant's robbery 'conviction also disclosed that appellant had been convicted of burglary in 1936 and had served a period of incarceration under the 1936 burglary conviction. . As to Exhibits 5 and 7 counsel for appellant additionally objected to their admission on the grounds of remoteness. Note: At one point, in ruling on appellant's objections to one of these exhibits, the trial judge stated that the exhibit was "introduced solely for the purpose of credibility of the witness and as such it is admissible." In his instructions to the jury the trial judge said the following in regard to impeachment : The testimony of a witness may be discredited or impeached by showing that he had been convicted of a crime. Prior conviction does not render a witness incompetent to testify, it merely reflects on his credibility. It is the province of the jury to determine what weight, if any, should be given to such prior conviction as impeachment. .Civ. R. 43(g) (11) [b] is made applicable to criminal proceedings by virtue of Crim. R. 26(a) and Crim. S. 50(b). Crim. R. 26(a) provides in part: In General. In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules. The admissibility of evidence shall be governed by Civil Rule 43 and by these rules, or in the absence of rule, by the principles of common law as they may be interpreted by the courts of the state in the light of reason and experience. Crim. R. 50(b) provides: Civil Rules to Apply. All other provisions of the Rules of Civil Procedure relating to attorneys, regarding applications to the court, stipulations, examining witnesses, counsel as a witness, arguments on motions or hearings, nonresident attorneys, and disbarment and discipline, shall apply to practice in criminal actions in the courts of the state. . Appellant contends that if the witness admits the conviction, then use of the record of conviction would be precluded. . Lane v. Warden, Maryland Penitentiary, 320 F.2d 179, 181-182, 185 (4th Cir.1963). . IV Wigmore, Evidence § 1269 at 535 (3d ed. 1940); McCormick, Evidence § 43 at 92 (1954). . McCormick, supra note 11 at 92. See IV Wigmore, Evidence § 1270 at 540, 545 (3d ed. 1940), where he states in regard to this common law rule as to proof of prior convictions that: The result is that three types of rules now obtain in the different jurisdictions : (1) the requirement of a copy in all eases; (2) the allowance of an admission on eross-examination of the witness to be impeached, but the requirement . of a copy or an abstract when proof is made T)y another witness, — this rarely by common-law decision, but widely by statute; (3) the allowance of recollection-testimony either from the witness to be impeached or from another, — -this rarely, and by statute only. The second form is the only proper one, and now obtains in the majority of jurisdictions. .Appellant relies upon People v. Perez, 58 Cal.2d 229, 23 Cal.Rptr. 569, 373 P.2d 617, 3 A.L.R.2d 946 (1962), and State v. Coloff, 125 Mont. 31, 231 P.2d 343 (1951), in support of his assertion that Civil Rule 43(g) (11) [b] should be construed to require the prosecution to first ask the accused whether or not he has been convicted of a crime before it should be allowed to introduce the record of a judgment of conviction under Rule 43's alternative method of impeachment. The state on the other hand cites several decisions under statutes containing language similar to our Civil Rule 43 where the courts have held that proof of prior convictions may be made alternatively, that is either by examination of the witness or by the record. See Meeks v. United States, 163 E.2d 598, 600, 11 Alaska 378 (9th Cir. 1947); Wright v. State, 38 Ala.App. 64, 79 So.2d 66, 68 (1954); Le Blanc v. State, 95 Okl.Cr. 280, 245 P.2d 134, 137 (1952); State v. Pielow, 141 Wash. 302, 251 P. 586, 588 (1926). . Christy v. United States, 261 F.2d 357, 360-361, 17 Alaska 107 (9th Cir. 1959). . Page 860, supra. . Mitchell v. Knight, 394 P.2d 892, 896-897 (Alaska 1964); Lumbermens Mut. Cas. Co. v. Continental Cas. Co., 387 P.2d 104, 109 (Alaska 1963); Pollastrine v. Severance, 375 P.2d 528, 531 (Alaska 1962). .In support of this assertion appellant cites State v. Costa, 11 N.J. 239, 94 A.2d 303 (1953), where at 309 of its opinion the court quotes from State v. Cleve land, 6 N.J. 316, 78 A.2d 560, 568, 23 A.L.R.2d 907 (1951), as follows: The observation that 'A thing in writing carries, particularly with the layman, a weight of its own [and is] a present and constant reminder to the jury of its contents' and ' shears the balance of the oral testimony in the case of the weight it would otherwise have' . . Page 859, supra. . Page 859, supra. . Pages 859, 860, supra. .384 P.2d 669, 673 (Alaska 1963). . Civ. It. 43(g) (11) [b] at the time of appellant's trial permitted impeachment, by evidence of conviction of "a crime." . In regard to appellant's last contention, we refer counsel and the bar to-Sup.Ct.lt. 53 which provides: Proposal of Changes to Rules. Any person may propose to the supreme court rules or changes in the rules governing practice and procedure-, in civil and criminal cases and governing administration of all courts. Such a proposal must be in writing and include a statement of the reasons for the proposed rules or changes. All proposals shall be submitted to the administrative director of courts at Anchorage. See: Griswold, "The Long View", 51 A.B.A.J. 1017, 1021 (1965).

10572718

Desmond R. RADICH, d/b/a Frontier Construction Co., Appellant, v. FAIRBANKS BUILDERS, INC., an Alaska Corporation, Appellee

Radich v. Fairbanks Builders, Inc.

1965-02-19

No. 417

215

217

399 P.2d 215

399

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:35:53.648105+00:00

CAP

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

Desmond R. RADICH, d/b/a Frontier Construction Co., Appellant, v. FAIRBANKS BUILDERS, INC., an Alaska Corporation, Appellee.

Desmond R. RADICH, d/b/a Frontier Construction Co., Appellant, v. FAIRBANKS BUILDERS, INC., an Alaska Corporation, Appellee. No. 417. Supreme Court of Alaska. Feb. 19, 1965. Henry J. Camarot, Fairbanks, for appellant. Charles E. Cole, Fairbanks, for appellee. Before NESBETT, C. J., and DIMOND and AREND, JJ.

1061

6208

DIMOND, Justice. Appellee was the prime contractor on a government project. Appellant was the subcontractor for brush clearing and excavation work. During the course of the project work appellee terminated the sub-contract and awarded it to a third party. Appellant brought this action for damages, claiming that appellee's termination of the sub-contract was a breach thereof. The trial court held that it was appellant who had breached the contract by reason of his delay in commencing the excavation work. The court concluded that appellee had not shown any damage by reason of appellant's breach, and awarded appellant $1,940.97 which he had expended in performance of the subcontract and which the court found had inured to appellee's benefit in the performance of the prime contract. In addition, the court ordered the return to appellant of a $4,000 cash bond which he had deposited as security for the performance of the subcontract. Appellant brought this appeal, contending primarily that the court erred in holding that he had breached the sub-contract. We find that the appeal was not timely and must be dismissed. Judgment was entered on May 29, 1963. The running of the 30-day period for taking an appeal was terminated 5 days later, on June 3, when appellant filed exceptions to findings of fact and conclusions of law, which can be equated to a motion to amend the findings under Civil Rule 52(b). The full time for appeal again commenced to run when the Rule 52(b) motion was denied on July 1, 1963, and expired 30 days later on July 31. Notice of appeal was not filed until August 16, which was 16 days after the time for appeal had expired. Appellant contends that the appeal was timely because filed within 30 days after an amended judgment had been entered on July 23. The original judgment had awarded appellant $1,940.97 and the $4,000 cash performance bond, plus attorney's fees in the amount of $1,241.15. The amended judgment was identical with the original except that the attorney's fees were reduced to $485.24. The change was apparently made by the clerk at the instance of the trial judge who wrote to the clerk on July 9, 1963 as follows: "Under paragraph 2 of the Judgment in the foregoing case I granted attorney's fees to Plaintiff in accord-anee with the rule. It is my intention! to grant the percentage as attorney's fees based upon the amount of recovery rather than the amount sued for. This means that attorneys fees should be much less than the amount which has been written in on the Judgment. Would you effect the necessary change and notify the parties."- The question is whether the court-initiated amendment as to attorney's fees, which were-awarded as part of the costs of the action-under Civil Rule 82, affected the time for-taking the appeal. We hold that it did not. The amendment was immaterial so far as. the merits of the controversy were concerned. No substantial change was made in the nature of the judgment. The respective-legal rights and obligations of the parties,, which had been settled with finality by the findings of fact, conclusions of law and' judgment on May 29, 1963, were not disturbed or revised by changing the amount of attorney's fees allowed as costs. Since the controversy between the parties on this, appeal relates only to matters that were fully adjudicated on May 29, and not to the-question of costs, the amended judgment has no significance so far as the timeliness of the appeal is concerned. Appellant contends that the question as to whether the appeal was timely was. finally resolved when we previously denied appellee's motion to dismiss the appeal, which had been filed before the case was. argued and submitted. Appellant cites no-authority, and we are aware of none, which would sustain his position that this court •did not have the power to reconsider the question at a later stage of the proceedings. The time limit for filing a notice of appeal under our Rule 7(a) is not jurisdictional. The requirements of that rule may be relaxed or dispensed with where a strict .application would be unfair. At the time we denied appellee's motion to dismiss, we did not foreclose ourselves from later examining the question of whether the appeal was timely after we had had the opportunity to study the record and briefs and hear oral .arguments. We could then determine with greater discernment whether Rule 7(a) should be strictly enforced or whether it should be relaxed under Supreme Court Rule 52. We have now made that determination. We are not persuaded that the application of Rule 7(a) according to its terms will work any injustice. The appeal is dismissed. . Supreme Ct.R. 7(a) provides in part: "The running of the time for appeal is terminated by a timely motion made pursuant to any of the rules of civil procedure for the superior court in suits of a civil nature, and the full time for appeal fixed in this subdivision commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: granting or denying a motion for judgment under Rule 50(b); or granting or denying a motion under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; or granting or denying a motion under Rule 59 to alter or amend the judgment; or denying a motion for a new trial under Rule 59."' . Federal Trade Comm'n v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 211-212, 73 S.Ct. 245, 97 L.Ed. 245, 252 (1952); In re Rocky Run Drainage Dist., 184 Wis. 557, 200 N.W. 384, 385 (1924); Besser v. Alpena Circuit Judge, 155 Mich. 631, 119 N.W. 902, 903 (1909); Lemmons v. Huber, 45 Or. 282, 77 P. 836, 837 (1904). . Supreme Ct.R. 52. Vogt v. Winbauer, 376 P.2d 1007, 1010 (Alaska 1962); Bridges v. Alaska Housing Authority, 349 P.2d 149, 155 (Alaska 1959).

8167888

SOUTHEAST ALASKA CONSERVATION COUNCIL and Tongass Conservation Society, Appellants, v. STATE of Alaska and University of Alaska, Appellees

Southeast Alaska Conservation Council v. State

2009-03-13

No. S-13159

1162

1177

202 P.3d 1162

202

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-11T02:21:51.501822+00:00

CAP

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

SOUTHEAST ALASKA CONSERVATION COUNCIL and Tongass Conservation Society, Appellants, v. STATE of Alaska and University of Alaska, Appellees.

SOUTHEAST ALASKA CONSERVATION COUNCIL and Tongass Conservation Society, Appellants, v. STATE of Alaska and University of Alaska, Appellees. No. S-13159. Supreme Court of Alaska. March 13, 2009. See also 86 P.8d 891 Katharine S. Hover, Thomas S. Waldo, Earthjustice, Juneau, for Appellants. J. Anne Nelson, Assistant Attorney General, Anchorage, Talis J. Colberg, Attorney General, Juneau, for Appellee State of Alaska. James D. Linxwiler, Michael S. McLaughlin, Guess & Rudd P.C., Anchorage, for Ap-pellee University of Alaska. Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, and CARPENETI, Justices.

9420

57905

OPINION MATTHEWS, Justice. I. INTRODUCTION In 2000 and 2005 the legislature passed two bills (collectively, the act) conveying approximately 250,000 acres of land to the University of Alaska. The act directed that the net proceeds from the University's sale or use of the property be deposited in the University's endowment trust fund, an existing fund from which only earnings may be spent. Southeast Alaska Conservation Council and Tongass Conservation Society brought suit challenging the act, alleging that it violates article IX, section 7 of the Alaska Constitution by improperly dedicating state funds. The superior court granted summary judgment to the State and University, holding that the transfer of land and net proceeds from land under the act does not violate the dedicated funds clause and, in the alternative, that the University is exempt from that constitutional provision. The conservation groups appealed. We hold that (1) the see-tions of the act committing proceeds from the granted lands to the endowment trust fund are unconstitutional under the dedicated funds clause and (2) those sections are not severable from the remainder of the act, with the exception of provisions creating a research forest. II. FACTS AND PROCEEDINGS In March 2000 the legislature passed Senate Bill 7, which allowed the University of Alaska to select 250,000 to 260,000 acres of land over which it would take title. All "net income derived from the sale, lease, or management of the land selected by and conveyed to the University of Alaska" was to be placed and held in the University's endowment trust fund (ETF). State law mandates that the principal of the ETF be held in perpetuity and that "[t]he total return from the [ETF] shall be used exclusively for the University of Alaska." The following month, Governor Tony Knowles vetoed S.B. 7. The legislature voted to override the veto by a margin normally sufficient to do so but below the three-fourths majority required to override vetoes of appropriation bills. We ruled that the bill's provisions did not constitute appropriations, thus allowing the bill to become law; in so doing, we "decline[d] to address the question of whether S.B. 7 violates the constitutional prohibition on dedications because the matter was not fully litigated below." On remand, the superior court refused to permit conservation groups to intervene to litigate the dedication issue. In 2005 the legislature passed House Bill 130. That bill amended S.B. 7, rescinding the University's right to choose the land it would receive and instead conveying "by quitelaim deed" land identified by the "University of Alaska Land Grant List 2005." H.B. 180 retained the requirement that net proceeds from the land be placed in the ETF. The bill also established a "University Research Forest" on certain parcels of conveyed land to be used for "advancing research into forest practices, ecology, wildlife management, and recreation." Southeast Alaska Conservation Council and Tongass Conservation Society (collectively "SEACC") filed suit against the State of Alaska and the University of Alaska in the superior court in April 2007. SEACC argued that the act violates article IX, section 7 of the Alaska Constitution, which mandates that "[the proceeds of any state tax or license shall not be dedicated to any special purpose." Ruling on cross-motions for summary judgment, the superior court upheld the act. The court first addressed "whether the proceeds from state land are the proceeds of a tax or licence," and ruled they are not. Despite the "substantial persuasive weight" of precedent from this court suggesting a contrary conclusion, the superior court held that the language and history of the dedicated funds clause do not support a broad reading of the text. The court next considered "whether the conveyance of revenue producing land to the University, and placement of the income from such land in an endowment trust fund for the University, can be considered a dedication of state revenues," and concluded, as an alternative reason for upholding the act, that it is not. The superior court reasoned that because the University is constitutionally chartered as a "body corporate" and explicitly permitted by the constitution to hold title to its lands, it "would be illogical to assume the constitution was intended . to divorce management of the land from the ability to receive financial benefits from the land." The State moved to reconsider, arguing that the superior court need not have ruled on the meaning of "state tax or license" and should have based its decision solely on the alternative ground. The State contended that the court's narrowing of the scope of the dedicated funds clause was legally incorrect and, as a practical matter, would have a "profound" impact on the finances of Alaska. The superior court denied the motion, noting that its original decision "expressly does not apply to oil or gas royalties" and so would not have great significance for the state budget. SEACC filed an emergency motion for injunction pending appeal to this court, A single justice granted that motion on June 27, 2008, enjoining the State from conveying property to the University pursuant to the act and enjoining the University from disposing of property it had already received. Both the State and the University challenged the order, and, in response, we vacated the injunction prohibiting the State from conveying property to the University but left in place the injunction against the University. We also ordered that SEACC's appeal proceed on an expedited schedule. III. STANDARD OF REVIEW We review decisions granting summary judgment de novo and will affirm them "when there are no genuine issues of material fact and the prevailing party is entitled to judgment as a matter of law." Questions of constitutional and statutory interpretation, including analysis of the constitutionality of a statute, "are questions of law to which we apply our independent judgment." We will adopt "the rule of law that is most persuasive in light of precedent, reason, and policy." We presume statutes to be constitutional, and the party challenging the statute bears the burden of showing otherwise." IV. DISCUSSION A. Article IX, Section 7 Prohibits the Dedication of Income Derived from Land Conveyed to the University of Alaska. This case calls on us to consider once again the scope of article IX, section 7 of the Alaska Constitution, which prohibits the earmarking of state funds for predetermined purposes. The dedicated funds clause reads: The proceeds of any state tax or license shall not be dedicated to any special pur pose, except as provided in section 15 of this article or when required by the federal government for state participation in federal programs. This provision shall not prohibit the continuance of any dedication for special purposes existing upon the date of ratification of this section by the people of Alaska,.[ ] We have discussed the origin and purpose of this clause at some length in our case law. In State v. Alex we observed: The origin of section 7's prohibition of earmarking can be traced back through the constitutional convention records to the Alaska Statehood Commission's studies which were prepared for the use of the delegates at the convention. One of the studies noted that "[the most severe obstacle to the seope and flexibility of budgeting results from the earmarking or dedication of certain revenue for specified purposes or funds." 83 Alaska Statehood Commission, Constitutional Studies pt. IX, at 27 (1955). The study stated that one of the key reasons for the popularity of dedicated taxes was that they reduced taxpayer resistance by guaranteeing that the tax would be used to benefit those who paid it. Id. The study then noted that earmarking curtailed the exercise of budgetary controls and simply amounted to an abdication of legislative responsibility. Id. at 29-30. [ ] In Sonneman v. Hickel we reiterated the preservation of legislative control rationale of the dedicated funds clause and quoted extensively from the constitutional debates: The constitutional convention committee which drafted the prohibition on the dedication of funds commented that the reason for the prohibition is to preserve control of and responsibility for state spending in the legislature and the governor. Even those persons or interests who seek the dedication of revenues for their own projects will admit that the earmarking of taxes or fees for other interests is a fiscal evil. But if allocation is permitted for one interest the denial of it to another is difficult, and the more special funds are set up the more difficult it becomes to deny other requests until the point is reached where neither the governor nor the legislature has any real control over the finances of the state. In one Rocky Mountain state the legislature is free to appropriate only 17 per cent of the tax collections; the rest are dedicated. In Alaska at present, 27 per cent of territorial funds are earmarked, primarily for school construction and roads. 6 Proceedings of the Alaska Constitutional Convention (PACC) Appendix V at 111 (Dee. 16, 1955). Without earmarked funds, the constitutional framers believed that the legislature would be required to decide funding priorities annually on the merits of the various proposals presented. - Delegate Barrie White, the spokesman for the committee which drafted section 7, stated in the convention debates: [tlhe Committee feels that if you accept the principle of not earmarking, it puts everyone in the same position and that the legislature will then be in the position being able to decide each case on its merits. If you go the other route and allow for earmarking or start drawing up all the exceptions that everybody would want to have drawn up, you are then back to the situation that most states now find themselves in, where an ever-increasing percentage of their revenues are earmarked for special purposes and an ever-decreasing amount is available to the general fund. 4 PACC 2364 (Jan. 17, 1956). Delegate White was then engaged in a colloquy about the appropriation of funds collected through lHieenses to agencies which had collected them: Delegate Gray: "It doesn't earmark it but the talking point that these organi zations have for the use of this money that is rightfully theirs, why, they haven't been precluded, they just have to sell their viewpoint to the legislature and if they need the money, why they probably could get it if they could talk them into it." Delegate White: "They have to sell their viewpoint along with everybody else." Id. at 2367.[ ] With this background in mind, we consider first whether proceeds from land sales and leases are revenues to which the dedicated funds clause applies, and second whether the University is exempt from the clause. 1. Proceeds from land are within the definition of "proceeds of any state tax or licence" for purposes of the dedicated funds clause. SEACC argues that revenue derived from land is encompassed by article IX, section T's reference to "proceeds of any state tax or licence." SEACC relies on our opinion in State v. Alex, quoting our statement that those who wrote the provision "intended it to prohibit not only the dedication of taxes, but also such revenue as the proceeds from the sale of state lands." The University disagrees with that reading of the clause, arguing that revenue from land is not, according to the dictionary definitions of "tax" or "license," within its seope. We reaffirm the reasoning and language of Alex. In Alex, we struck down a statute authorizing aquaculture associations to collect assessments from commercial salmon fishermen because it violated the dedicated funds clause. Our opinion considered the meaning of the word "tax" and concluded that "the sense in which 'tax' is used in article IX, section 7 of the constitution must be determined from its context, both in the text and according to the discussion at the constitutional convention which adopted the wording." We then turned to constitutional history, noting that the studies on which Constitutional Convention delegates relied encouraged adopting a prohibition on earmarking because the dedication of funds "curtailed the exercise of budgetary controls and simply amounted to an abdication of legislative responsibility. We also remarked that the commission's studies "used the terms revenues, funds, and taxes interchangeably" in discussing this issue. We interpreted an amendment to the proposed provision that inserted "proceeds of any state tax or licence" in the place of "all revenues" as an effort to "allow for the setting up of certain special funds, such as sinking funds for the repayment of bonds," rather than "to exempt some sources of revenue from the prohibition." Thus, we held "that since the constitution prohibits the dedication of any source of revenue," the assessments in question could not be earmarked. We see no reason to hold differently now. In addition to the history described in Alex, the amendment to article IX, section 7 creating an exception for the Permanent Fund indicates that the prohibition is meant to apply broadly. If only revenue collected as taxes or license fees were included, there would have been no need to expressly exempt "all mineral lease rentals, royalties, royalty sale proceeds, federal mineral revenue sharing payments and bonuses received by the State" to ensure that placing those revenues in the Permanent Fund did not violate the constitution. The State argues that the grant of land and proceeds from it does not violate the dedicated funds clause because the grant of land and proceeds is not a dedication of revenue but rather an asset conveyance. The State asks us not to rely on State v. Alex but to rule that this case should follow what it contends is the reasoning of Myers v. Alaska Housing Finance Corp. In Myers, we upheld the state's sale of future proceeds from settlements with tobacco companies against a challenge under the dedicated funds clause. The State argues that the situation here-conveying real property and dedicating the proceeds the property will generate-is an analogous situation and thus does not violate the constitution. We disagree. In Myers, we explicitly accepted Alew's reasoning in determining that revenue from the settlement of a lawsuit was within the scope of the dedicated funds clause. The legislature had authorized the sale of the right to future proceeds from the settlement for a Iump-sum amount based on the present value of the future proceeds. The legislature appropriated the lump sum in a single year for various purposes. No dedicated fund was created nor were revenues placed in a pre-existing dedicated fund. Accordingly, we concluded that "[blecause the legislature sold the tobacco settlement and then appropriated the resulting income, it did not directly violate the anti-dedication clause." Nonetheless, we were concerned that the transaction might be contrary to the spirit of the clause; ultimately, however, we found no constitutional violation. Thus Myers neither holds nor suggests that revenue from state property can be placed in a dedicated fund. Likewise, it does not imply that there is an exception to the dedicated funds clause applicable to revenue from state property. Instead, Myers suggests that the reach of the dedicated funds clause might be extended to statutes that, while not directly violating the clause by dedicating revenues, in some other way un-dereut the policies underlying the clause. 2. The University is not exempt from article IX, section 7. The State would prefer that we affirm the superior court's holding on the alternative ground that the University's special status means that revenues generated by its lands may be dedicated. The State and University argue, in effect, that article VII, seetion 2 of the Alaska Constitution creates an implied exception to the dedicated funds clause by authorizing the University to hold title to real property. Because, the appellees reason, University lands are not state lands, University land revenues are not state revenues, and therefore University land revenues can be dedicated. In addition to drawing this conclusion from the constitutional text, the appellees emphasize that the University's lands are distinct from state lands under certain statutes, such as the Alaska Land Act and laws regarding public domain land. SEACC believes interpreting article VII, section 2 to permit ownership but deny control of proceeds harmonizes that provision with the dedicated funds clause without improperly reading an exception into the dedicated funds clause. Further, SEACC argues that the University is an instrumentality of the state for relevant purposes and points out that the legislature controls the University's funding. Therefore, SEACC concludes, University revenues are subject to article IX, section 7. Our case law establishes that University lands are state lands. Article VII, section 2 establishes the University, declares it a "body corporate," provides that the University "shall have title to all real and personal property now or hereafter set aside for or conveyed to it," and states that "[ilts property shall be administered and disposed of according to law." We considered the meaning of article VII, section 2 in State v. University of Alaska. There, we held that the state could take land that Congress had granted to the University to be held in trust for it under the federal 1929 act, but that the state had to compensate the University with monetary damages or equivalently valuable land. Our opinion emphasized article VII, section 2's command that "property shall be administered and disposed of according to law," and noted that "'according to law' refer[s] to the legislature's power to make laws." Thus, even when the University has title to land, "only the legislature can make laws effecting the disposal of land, not the Board of Regents." " We further observed that "[the natural resources article of the Alaska Constitution grants extensive powers to the legislature to control lands," which makes "clear that [the University lands received under the 1929 act] 'belong' to the state." The conclusion we reached in State v. University of Alaska, that University land is state land, applies even more readily to the present case because the University land involved here is not shielded by a federal trust obligation. Statutory language treating University lands differently from other state land does not overcome this constitutionally based conclusion. Because University land is state land, revenue from University land is state revenue for purposes of the dedicated funds clause. This conclusion receives additional support from two historical sources. Governor William Egan, who had served as President of the Constitutional Convention, vetoed a 1959 bill that would have given one million acres of land to the University. He wrote: I am vetoing [the bill}, a bill intended to reserve lands for the support of the University of Alaska, because I believe it wrong in principle, inconsistent with constitutional concepts and not in the public interest. In so saying, I may add that I would act similarly on any bill which sought, as this does, to make special disposition of the proceeds of public lands in aid of one public function to the exclusion of others. To return now, by the enactment of [this bill}, to a proposal whereby lands are given piecemeal earmarking for various state functions would be a distinct step backward. If we are to return to the "internal improvement" concept of earmarking state lands, can we in good conscience limit the practice to the University? . Certainly, this bill invites similar treatment for other state responsibilities. By this bill the door would be opened to an unplanned disposition, or dissipation, of the resource without regard to relative need and without regard to the clear constitutional and congressional intent. Five years later, Senator Bob Bartlett, who had been Alaska's delegate to Congress during Alaska's statehood campaign, wrote to Governor Egan, explaining that the policies that underlie the dedicated funds clause impelled him to prevent the federal government from granting to the new state land that was already reserved for certain purposes: [AJt many times during the consideration of the statehood bill, efforts were made to set aside this amount of land or that amount of land for the common schools and for other educational uses. I always resisted these and, as it turned out, successfully. My conviction was-and is-that notwithstanding the possible need for such reservations in the early statehood bills, the reasons for such have long since evaporated.... [I]f dedication is made for one institution or one purpose, what argument could be made against expanding? None, of course. B. The Land Grant Provisions of the Act Are Not Severable from the Dedication of Proceeds Provisions, but the Research Forest Provisions Are Severable. The act does not contain a severability clause, but AS 01.10.080 inserts one into every statute passed by the legislature. We have stated that this general severability provision ereates only "a weak presumption in favor of severability." " In Lynden Transport, Inc. v. State, we described the two-part test for determining whether, after an unconstitutional portion of a statute has been severed, the remainder of the law can stand: the remainder may not stand alone "unless it appears both that, standing alone, legal effect can be given to it and that the legislature intended the provision to stand, in case others included in the act and held bad should fall. In arguing that the act should be entirely invalidated, excepting the research forest provision, SEACC focuses on the second part of the Lynden Transport test. It argues that the "central and critical intent behind the enactment of SB 7 and HB 1830 was the creation of a permanent endowment trust fund for the University." Because this objective cannot be accomplished, SEACC argues that allowing the land grant provisions of the act to stand "would result in an entirely different statute than the legislature enacted." SEACC notes that under the sections that would remain if we permitted severance, the University would be the owner and manager of the granted lands but the proceeds from the sale or use of the land would not be placed in trust under AS 14.40.365() and AS 14.40.400(a)(2) and (c). Instead, the proceeds would by default be deposited in the University receipts fund, which is a non-dedicated account subject to legislative appropriation " Though the source of the funds might give the University a hope or expectation that the funds would be appropriated for the University, SEACC argues that this would be a mere "talking point," and the legislature would be able to appropriate the funds for any agency and any purpose. SEACC also points out that the entire proceeds from the sale or lease of the lands would be subject to appropriation each year. SEACC reasons that making all proceeds available to spend would conflict with the legislative intent that all net proceeds be capitalized and preserved in perpetuity in the ETF. The State argues that the land grant provisions of the act are severable and could be given legal effect. The net proceeds from the land, the State argues, "would have to be accounted for with the other university receipts instead of with the endowment trust proceeds." The State contends that "the university still would benefit financially from having the 'talking point' of increased receipts when making its annual budget request." The State also argues that the University still would be required to use the land for development purposes and that use would contribute to Alaska's economy, "even if the land is not managed as part of the endowment trust." The State does not address SEACC's argument that the land, or the net proceeds derived from the land, would not be preserved in perpetuity. The University's argument regarding severance is similar to that made by the State, but the University addresses SEACC's argument that net proceeds would be spent under the severed remainder rather than capitalized and preserved in the ETF. It contends that the legislature could still achieve its original purpose of preserving net proceeds by "simply appropriating] some of the University receipts, equivalent to the amount of the annual proceeds from the HB 130 Lands, into the Endowment Trust Fund." The central question before us, then, is the one posed by the second prong of the Lynden Transport test: whether the legislature would have passed the act without requiring that net proceeds derived from the lands be placed and held in the ETF. In other words, we consider whether the legislature would have granted the 250,000 acres of land to the University had it not believed it was able to dedicate the net proceeds from the land to the ETF. One way to determine legislative intent is to decide whether the valid provisions would still further the main purpose of the act. If the purpose is stated broadly as simply to improve the University's financial status, it would be possible to conclude that allowing the land grant provisions of the act to stand would serve this purpose. Under the severed provisions, net proceeds from the sale or use of the lands would be deposited in a non-dedicated fund, from which the legislature could make appropriations to any agency. But given that the source of the proceeds would be University lands, the University would have a "talking point," that is, a possible advantage over other agencies, when seeking the funds from the legislature. But the main legislative purpose underlying the act cannot accurately be described as to provide a "talking point"-or indeed even to provide more funding-to the University. Instead, the act's main purpose is to enhance the University's permanent endowment so that the enhanced endowment will provide ongoing additional income to the University. The difference between granting land to provide additional funding and granting land to enhance an endowment to provide additional funding is not merely semantic. The difference is between providing support both from capital and income on the one hand, and on the other, preserving capital and providing support only from income. The act's findings and purpose section indicates that the legislature believed that the University, as a land grant college, was underfunded in terms of its original land grant from Congress. The land grant made under the act was designed to remedy this deficit. As with respect to the lands granted by Congress, all net proceeds derived from the sale or use of the land granted by the act were required to be placed in the ETF. Only net earnings of the ETF could be spent. In this way, the legislature sought to contribute to a "financially secure state university system," as a "cornerstone to the long-term development of a stable population and to a healthy, diverse economy in the state." The legislative findings show that the main purpose of the act was to make a land grant that would operate in a manner similar to the way that the University's federal land grant has operated since before statehood: the University is partially supported by net earnings from the ETF, which in turn is funded by net proceeds from revenues derived from the sale or use of land grant lands. Under the act as passed, the University would continue to receive only net earnings from the ETF. Proceeds from the sale or use of the granted land would be capitalized and placed in the ETF. The capital would not be spent. This long-term goal is reiterated in statements by S.B. T's primary sponsor in committee meetings and floor debates. The land grant provisions of the act, if allowed to stand alone, would not enhance the University's endowment. With only the land grant provisions, the legislature would appropriate on an annual basis the net proceeds gained from the sale or use of the land. The appropriation could be directed in whole or in part to the University or any agency. The appropriated proceeds would be available for immediate use. They would not be capitalized and preserved. If the University were to sell the land, which would be likely given the legislature's goal of encouraging development, the land could be substantially disposed of within a few decades. Because the net proceeds from the land would be spent rather than saved, the benefits from the land grant, far from lasting in perpetuity, could be dissipated in a relatively short period of time. As noted, though the State does not address the impermaneney of the grant that would result if severance were permitted, the University does. It argues that a permanent benefit from the lands could be achieved if the legislature were to appropriate an amount equivalent to the annual net proceeds from the granted lands and place the amount in the ETF. We think this argument fails for two reasons. First, there is a substantial question as to whether appropriating unrestricted funds into the ETF would in itself violate the dedicated funds clause. While the dedicated funds clause is not, of course, violated merely by the fact of an appropriation for a specific purpose, it would be of concern that the income generated by the appropriation would be dedicated. We think that there is sufficient doubt as to the constitutionality of an appropriation made for the purpose of generating dedicated income that the University's suggestion that this might be done cannot justify severance. Second, under the University's proposed solution, the legislature would have to decide each year whether to appropriate net proceeds into the ETF. This decision would be made in competition with the demands of other agencies for funding. Whether in fact the legislature would appropriate the net proceeds into the ETF in any given year could not be predicted. Depending on annual discretionary appropriation - decisions would be a poor substitute for the capital preservation system mandated by the act. Unlike the severable provisions in Sonne-man, the trust provisions in this case are not a "minor part" of the overall act. In summary, we conclude that the land grant provisions, if severed from the provisions requiring proceeds to be placed and held in the ETF, would not serve the act's main purpose and would operate strikingly differently from the original act. In Alaskans for a Common Longuage, Inc. v. EKritz we observed that "the risk involved in severing a statute is that an erroneous judicial reading of the intent of those who enacted the statute will result in a statute that no one wanted. "74 In light of the considerations we have discussed above, we believe that there is a distinct risk that allowing the land grant provisions to stand without the strict protections the legislature imposed to ensure that the grant would last in perpetuity would result in a law that the legislature would not have wanted. But the provisions of the act creating a research forest stand on a different footing. They are directly related to the core education and research function of the University and not to the objective of enhancing the University's endowment. The section of the act establishing the research forest, AS 14.40.461(a), starts with its own statement of purpose: "For the purpose of advancing research into forest practices, ecology, wildlife management, and recreation, a university research forest is established. Although if the research forest provisions stand, they will not advance the main purpose of the act-enhancing the University's endowment-that would be the case even if the whole act were upheld as constitutional. None of the parties argues that the research forest provisions should be stricken. We agree because the research forest provisions are so separate in purpose from the rest of the act as to be sui generis. And since the main purpose of the research forest is not the generation of proceeds for the University endowment, the provisions creating it will function when severed primarily as they would have functioned if the rest of the act were held constitutional and allowed to stand. For these reasons we conclude that the research forest provisions are severable. v. CONCLUSION As this case illustrates, dedicating funds for a deserving purpose or a worthy institution is an attractive idea. Our constitutional founders were aware of the power of the dedication impulse. They decided that the good that might come from the dedication of funds for a particular purpose was outweighed by the long-term harm to state fi nances that would result from a broad application of the practice. In accordance with this belief, they promulgated article IX, seetion 7 of the Alaska Constitution, barring the dedication of state funds. We enforce the considered judgment of the founders in this case. We do so with full awareness that the University is an important state institution and that it would benefit from the enhanced endowment that the legislature intended to bestow. We conclude that University lands are state lands, that proceeds from University lands are state funds that are subject to the dedicated funds clause, and therefore that the act violates the dedicated funds clause. With the exception of the land for the research forest, the land grant provisions of the act are not severable from the dedication of proceeds provisions because without the dedication provisions the proceeds from the granted lands would not be capitalized and preserved in perpetuity as a source of income for the University. Instead, a grant that was intended to last forever could be dissipated over time by the consumption of both capital and income. We decline to order severance because this result differs greatly from the act's intended operation. For these reasons the judgment of the superior court is REVERSED. This case is REMANDED to the superior court with instructions (1) to order reconveyance to the State of the land transferred under the act, (2) to order the return of any net proceeds received from the land, and (8) to enter judgment in favor of the appellants in accordance with the views expressed in this opinion. WINFREE, Justice, not participating. . 21st Leg., 2d Sess. (2000). The act, which consists of Senate Bill 7, passed by the 2000 legislature, as amended by House Bill 130, passed by the 2005 legislature, see 24th Leg., 1st Spec. Sess. (2005), is codified in significant part as AS 14.40.365, 14.40.366, and 14.40.400(a)(2). We set out here the sections of the act that are relevant to this opinion. Section 1: The uncodified law of the State of Alaska is amended by adding a new section to read: FINDINGS AND PURPOSE. The legislature finds that (1) as the beneficiary under the provisions of the Acts of August 30, 1890, and March 4, 1907, designating the Alaska Agricultural College and School of Mines as beneficiary, and of March 4, 1915, 38 Stat. 1214, transferring certain land for its location and support, the University of Alaska is a land grant university; (2) under the Acts of March 4, 1915, 38 Stat. 1214, and January 21, 1929, 45 Stat. 1091, the Congress of the United States granted to the Territory of Alaska certain federal land to be held in trust for the benefit of the predecessor of the University of Alaska; (3) the Territory was unable to receive most of the land conveyed by the Act of March 4, 1915, before repeal of that Act by Sec. 6(k) of the Alaska Statehood Act (P.L. 85-508, 72 Stat. 339); (4) the Congress of the United States granted the State of Alaska the right to select 102,-500,000 acres of federal land under Sec. 6(b) of the Alaska Statehood Act; (5) the land selection rights embodied in the Alaska Statehood Act reflect in part congressional recognition that the state would need the land to support its government and programs, and the Congress assumed that the State of Alaska would in turn devote some of the land or the income from it for the use and benefit of the University of Alaska; (6) most land grant colleges in the western United States have obtained a larger land grant from the federal government than the University of Alaska has received; (7) an academically strong and financially secure state university system is a cornerstone to the long-term development of a stable population and to a healthy, diverse economy in the state; (8) it is in the best interests of the state and the University of Alaska that the university take ownership of a significant and substantial portfolio of income producing land in order to provide income for the support of public higher education in the state; and (9) renewable resources should be managed on a sustained yield basis, taking into account the total land grant. Section 2: The uncodified law of the State of Alaska is amended by adding a new section to read: LEGISLATIVE INTENT. It is the intent of the legislature that the University of Alaska (1) receive land under this Act in an expeditious fashion; and (2) encourage the development of in-state value-added industries to the maximum extent feasible when developing land conveyed under AS 14.40.365. AS 14.40.365: (a) Except as provided in (b) of this section, before July 1, 2008, the commissioner of natural resources shall convey to the Board of Regents in trust for the University of Alaska, by quitclaim deed, the state land identified for conveyance to the university and described in the document titled "University of Alaska Land Grant List 2005," dated January 12, 2005. (b) As soon as practicable after June 30, 2055, the commissioner of natural resources shall convey to the Board of Regents in trust for the University of Alaska, by quitclaim deed, the state land described as the "University Research Forest" and identified for conveyance to the university in the document titled "University of Alaska Land Grant List 2005," dated January 12, 2005. (i) The responsibility for the management of land conveyed to the Board of Regents in trust for the University of Alaska under this section vests with the Board of Regents in trust for the University of Alaska on the date of recording of that conveyance. ~ (}) The Board of Regents of the University of Alaska is entitled to receive any income derived from land conveyed to the Board of Regents in trust for the University of Alaska under this section accruing after the date of conveyance, including any income accruing from an existing lease, license, contract, prospecting site sale, permit, right-of-way, easement, or trespass claim. AS 14.40.366: (a) Before the conveyance or the disposal of an interest in the land to a third party, land conveyed to the Board of Regents in trust for the University of Alaska under AS 14.40.365 shall be managed in a manner that, to the extent practicable, permits reasonable activities of the public, including historic recent public uses, that do not interfere with the use or management of the land by the university. (b) For land conveyed to the Board of Regents in trust for the University of Alaska under AS 14.40.365, the Board of Regents shall (1) seek public comment on proposals for land development, exchange, or sale; and (2) adopt policies that require the preparation of land development plans and land disposal plans. (c) Before the Board of Regents of the University of Alaska offers a parcel of land for sale under this section, the board shall offer first refusal to the closest municipality. (d) The Board of Regents shall adopt policies requiring public notice before approval of land development plans and land disposal plans. The policies must require that the notice be provided not less than 30 days before the proposed action and that the notice be (1) sent to local legislators, municipalities, and legislative information offices in the vicinity of the action and at other locations as the university may designate; (2) published in newspapers of general circulation in the vicinity of the proposed action at least once each week for two consecutive weeks; and (3) published on state and university public notice Internet websites. (e) In this section, "development, exchange, or sale" does not include the grant of an easement or right-of-way or the development of a campus facility. AS 14.40.400: (a) The Board of Regents shall establish a separate endowment trust fund in which shall be held in trust in perpetuity all (1) [ALL] net income derived from the sale or lease of the land granted under the Act of Congress approved January 21, 1929, as amended; [AND] (2) net income derived from the sale, lease, or management of the land [SELECTED BY AND] conveyed io the Board of Regents in trust for the University of Alaska under AS 14,40.365; however, the amount deposited in Footnote 1-continued the endowment trust fund under this paragraph resulting from mineral lease royalties and royalty sales proceeds may not be less than 25 percent of all such mineral lease royalties and royalty sales proceeds received by the university; and (3) [ALL] monetary gifts, bequests, or endowments made to the University of Alaska for the purpose of the fund. (c) The total return from the fund shall be used exclusively for the University of Alaska, as the successor under AS 14.40.030 of the Agricultural College and School of Mines. (f) In this section, (1) "fund" means the separate endowment trust fund established under (a) of this section; (2) "total return" means the total earning of the fund, including current yield, gains, and capital appreciation, less all costs, expenses, losses, and capital depreciation. (Additions made by the act are underlined and deletions are capitalized and bracketed.) AS 14.40.461(a): For the purpose of advancing research into forest practices, ecology, wildlife management, and recreation, a university research forest is established on land described as the "University Research Forest" and identified for conveyance to the Board of Regents in trust for the University of Alaska in the document titled 'University of Alaska Land Grant List 2005," dated January 12, 2005. . S.B. 7 § 3,5. . Id. § 6. The ETF already receives income from land the University holds under a 1929 Act of Congress. AS 14.40.400(a)(1). - "[MJonetary gifts, bequests, or endowments made to the University of Alaska for the purpose of the fund" are also deposited into the ETF. AS 14.40.400(a)(3). . See AS 14.40.400(a). . AS 14.40.400(c). . Alaska Legislative Council v. Knowles, 86 P.3d 891, 893 (Alaska 2004). . Id. . Id. at 899. . 24th Leg., ist Spec. Sess. (2005). . Id. § 1-3. . Id. § 5. . Id. § 6 (codified at AS 14.40.461). HB. 130 contains other changes to S.B. 7 not significant to the issues before us. . Araska Const. art. IX, § 7. . See id. art. VII, § 2 ('The University of Alaska is hereby established as the state university and constituted a body corporate. It shall have title to all real and personal property now or hereafter set aside for or conveyed to it. Its property shall be administered and disposed of according to law."). . Alaska Pub. Interest Research Group v. State, 167 P.3d 27, 34 (Alaska 2007). . Premera Blue Cross v. State, Dep't of Commerce, Cmty. & Econ. Dev., Div. of Ins., 171 P.3d 1110, 1115 (Alaska 2007). . Id. (citing State Commercial Fisheries Entry Comm'n v. Carlson, 65 P.3d 851, 858 (Alaska 2003). . Alaska Pub. Interest Research Group, 167 P.3d at 34. . Auaska Const art. IX, § 7. . 646 P.2d 203 (Alaska 1982). . Id. at 209 (internal footnote omitted). . P.2d 936 (Alaska 1992). . Id. at 938-39. . Alex, 646 P.2d at 210 (citing 3 Proceepines or THE - Araska - Constrrurionat - Convention (PACC) 2317-19). . Id. at 204-05. . Id. at 208. . Id. at 209 (citing 3 Araska StatEroop Commis-stom, Construrionat Stupies pt. IX, at 29-30 (1955)). . Id. (citing 3 Araska Commission, Cont strrumionat Stuptes pt. IX, at 27-30 (1955)). . Id. at 210. We referred to a "well-researched" attorney general opinion from 1975, which "carefully and minutely detail{ed] the debate of the constitutional convention on the point" and concluded that the clause applied to "any source of public revenue: tax, license, rental, sale, bonus-royalty, [or] royalty...." Id. at 210 (citing 1975 Formal Op. Att'y Gen. 9, 24 (May 2, 1975)). That opinion quoted a document on which the convention delegates had relied, noting that the amendment removing the words "all revenues" avoided having to make explicit necessary exceptions to the clause for "certain moneys, e.g., pension contributions, proceeds from bond issues, sinking fund receipts, revolving fund receipts, contributions from local government units for state-local cooperative programs, and tax receipts which the state might collect on behalf of local government units." 1975 Formal Op. Att'y Gen. 9, 6-7 (May 2, 1975) (quoting Mem. from Pub. Admin. Serv., Jan. 4, 1956). . Alex, 646 P.2d at 210. . - Article IX, section 7 includes three exceptions: (1) "as provided in section 15 of this article," (2) "when required by the federal government for state participation in federal programs," and (3) "any dedication for special purposes existing upon the date of ratification of this section by the people of Alaska." Article IX, section 15 creates the Permanent Fund. The other exceptions are not applicable to this case. . Araska Const. art. IX, § 15. . Id. art IX, § 7. . 68 P.3d 386 (Alaska 2003). . Id. at 391-93. . The University makes a similar argument, contending that Myers creates an implied exception to the dedicated funds clause that encompasses the conveyance here. . Myers, 68 P.3d at 390-91. . Id. at 388. . Id. at 387-88. . Id. at 394. . Id. We stated: Although selling the tobacco settlement revenue stream is an indirect method of producing an effect very similar to the prohibited dedication of those future revenues, the anti-dedication clause clashes with the legislature's appropriation power. We conclude that the sale of the tobacco settlement is constitutional because the legislative appropriation power includes the power to sell state assets, lawsuit settlements are not traditional sources of public revenue, and the legislature has the responsibility to manage the state's risk. Id. . See AS 38.05.965. . See AS 14.40.291(a). . SEACC provides several examples of other purposes for which we have found that the University is part of the state, citing University of Alaska v. National Aircraft Leasing, Ltd., 536 P.2d 121, 123-25, 127-28 (Alaska 1975) (holding that the University is protected by sovereign immunity and can be sued under statutes subjecting the state to suit); University of Alaska v. Geistauts, 666 P.2d 424, 427-28, 427 m. 3 (Alaska 1983) (holding that meetings of a university committee are subject to the Public Meetings Act); Carter v. Alaska Public Employees Ass'n, 663 P.2d 916, 920-21 (Alaska 1983) (holding that the University must comply with the requirements of the public records statute), and Ellingstad v. State, Department of Natural Resources, 979 P.2d 1000, 1007 (Alaska 1999) (holding that the University's treatment as a state entity under state law makes transfer of contractual rights to it distinct from transfer to a private entity). . Araska Const. art. VI, § 2. . 624 P.2d 807, 814 (Alaska 1981). . Id. at 815-16. . - Id. at 814 (quoting Araska Const. art. VII, § 2). . Id. at 815 n. 10. . Id. at 815. . Id. The court was referring to and quoting article VIII, section 2 of the constitution, which states: "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." See id. . Cf. State v. Alex, 646 P.2d 203, 210 (Alaska 1982). Our conclusion that revenues from University land are subject to the dedicated funds clause does not, of course, prohibit the dedication of revenues received from land grants under the 1929 act because such revenues are excepted from the prohibition by the second sentence of article IX, section 7. See supra note 30. . 1959 House Journal 1186, 1186-88; Terrence M. Cork, A Laxp Grant Wirrout tHE Lanp: A History or tus University or Araska's FEDERAL Laxnp Grant, A Report to tes University or Araska State-wine Orrice or Lanp Manacement 18-19 (1993). 54. 1959 House Journal 1186, 1186-87. 55. Letter from Bob Bartlett to William Egan (June 8, 1964), in Core, supra note 53, at 17. . See AS 01.10.030 ("Any law heretofore or hereafter enacted by the Alaska legislature which lacks a severability clause shall be construed as though it contained the clause in the following language: 'If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the remainder of this Act and the application to other persons or circumstances shall not be affected thereby.' "). . Sonneman v. Hickel, 836 P.2d 936, 941 (Alaska 1992) (citing Lynden Transp., Inc. v. State, 532 P.2d 700, 712 (Alaska 1975)). In Lynden we considered the significance of the legislature's including a specific severability clause within a statute as compared to its choosing not to include one. See Lynden Transp., 532 P.2d at 711-12. We suggested that "the soundest interpretation . is that, whereas a specific severability clause creates a slight presumption in favor of severability, a general clause creates an even weaker presumption," although "[fJor all practical purposes, the difference between the two is negligible." Id. at 712-13. More recently we have concluded that a built-in severability clause creates a "stronger" presumption of severability than the general savings clause of AS 01.10.030. Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d 183, 213 n. 183 (Alaska 2007). . 532 P.2d 700 (Alaska 1975). . - Id. at 713 (quoting Dorchy v. Kansas, 264 U.S. 286, 290, 44 S.Ct. 323, 68 L.Ed. 686 (1924)) (internal quotation marks omitted). . See supra note 1 (providing the text of these statutory provisions). . - See AS 14.40.170(b)(4) (allowing the Board of Regents to receive university receipts and expend them subject to appropriation by the legislature); AS 14.40.491(4) (including "receipts from sales and rentals of university property" within the definition of university receipts). . This refers to the "talking point" colloquy between delegates Gray and White during the Constitutional Convention. See supra page 14. . See Lynden Transp., 532 P.2d at 713 ('The crucial question, then, is what was the legislative intent."). . See State v. Alaska Civil Liberties Union, 978 P.2d 597, 633 (Alaska 1999) (upholding severance and noting that invalidating the unconstitutional sections did not undermine "the structure of the Act as a whole"); Sonneman v. Hickel, 836 P.2d 936, 941 (Alaska 1992) (upholding severance and noting that after deletion "the remainder of the act still has the same meaning that it had with that subsection included"); see also Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 685, 107 S.Ct. 1476, 94 LEd.2d 661 (1987) ('The more relevant inquiry . is whether the statute will function in a manner consistent with the intent of Congress."). . In particular, see findings 3 and 6, S.B. 7 § 1, supra note 1. . AS 14.40.400(a)(1) & (2). . AS 14.40.400(c) & (Q2). . See finding 7, S.B. 7 § 1, supra note 1. . See Act of Jan. 21, 1929, ch. 92, 45 Stat. 1091, 1092 (1929) ("[A] fund shall be established in the Territorial treasury to carry out the purposes of this Act, and whenever any money shall be in any manner derived from any of the land granted same shall be deposited in the Territorial treasury in the fund. The Territorial treasurer shall keep all such money invested in safe interest-bearing securities.... The income from said fund may and shall be used exclusively for the purposes of such Agricultural College and School of Mines."); AS 14.40.400(c) ('The total return from the fund shall be used exclusively for the University of Alaska, as the successor under AS 14.40.030 of the Agricultural College and School of Mines."). . See, eg., Meeting of the House Finance Committee, 21st Leg., 2d Sess. (Mar. 21, 2000) {statement of sponsor Sen. Robin Taylor, S. Finance Comm.) ("[UJnder the legislation the university would receive an endowment . which would provide an economic base and greater autonomy and reduce the state's general fund support."); Meeting of the House Resources Committee, 21st Leg., 2d Sess. (Feb. 7, 2000) (statement of Jim Pound, legislative aide to Sen. Robin Taylor, on behalf of Sen. Taylor) ("[The purpose of the bill is to give the University of Alaska the land grants that it was promised by the federal government prior to statehood.... [The money will go into a trust account that will be drawn on primarily as an 'interest situation," similar to the permanent fund, but it will be specifically designed for the University of Alaska."); Floor Debate on Senate Bill 7, 21st Leg., 2d Sess. (Mar. 30, 2000) (statement of Sen. Robin Taylor, S. Finance Comm.) ("I sincerely appreciate all the work that has been put in . to pass a bill on to the governor that will provide for an endowment for our university.... What a wonderful position this legislature might find itself within in the next 10, 15 years if the university no longer has to be funded out of general funds."); Floor Debate on Senate Bill 7, 21st Leg., 2d Sess. (May 3, 1999) (statement of Sen. Robin Taylor, S. Finance Comm.) ("I can't think of a greater gift for this legislature to give future generations of Alaskan students than to provide their university with a solid, stable, autonomous land base upon which they may develop and encourage and strengthen our university."). . Our cases have not specifically addressed whether income earned by an agency from appropriated funds is covered by the dedicated funds clause. A 1982 attorney general opinion considered this question and concluded that such income likely would be covered. The opinion discusses policy reasons that would also apply to appropriating money to dedicated funds: A difficulty that arises from the view that the dedicated funds prohibition is not applicable to interest or investment income on separate funds is that it permits steadily increasing amounts of money to be received and used by state departments and agencies without legislative control through the annual budget process. This is precisely the problem posed by the dedication of revenue sources which the drafters sought to avoid. For this reason, while we are not certain about the likely outcome, we doubt that a blanket exception for derivative income would be approved by the courts. . Although not expressly addressed by them, the framers were very much aware of the boom-bust cycle of Alaska's economy. In fact, a driving force behind statehood was the desire of Alaskans themselves to be able to manage the income derived from those brief periods . when the state may receive enormous sums of money which are then immediately available for expenditure or placement, by appropriation, into a variety of funds and accounts for various permissible purposes. Depending on the number and size of those funds and accounts, the interest earned on the money placed in them could itself be substantial.... [The significance of that interest income in properly managing the state's budget leads us to the conclusion that our framers would have considered it to be within the dedicated fund prohibition. 1982 Formal Op. Att'y Gen. 13 at 16-17. . See Sonneman v. Hickel, 836 P.2d 936, 941 (Alaska 1992). . 170 P.3d 183 (Alaska 2007). . Id. at 210. . HB. 130 § 6 (codified as AS 14.40.461(a)). . The time of conveyance and interim management of the research forest lands is also distinct. The rest of the land under the act was to be conveyed by July 1, 2008, but the research forest is not to be conveyed until 2055. AS 14.40.365(b). Before conveyance to the University, the Department of Natural Resources will manage the property and may sell timber rights. AS 14.40.461(c) & (d). . The State argues that the doctrine of laches bars the appellants from requesting that any land already transferred pursuant to the act be returned to it. We disagree. The appellants' decision to file suit only after H.B. 130 revised S.B. 7 was reasonable, and the State and University have been aware of the possibility that the bills would be struck down since this case was filed. Furthermore, the public interest in compliance with the constitution is paramount here. We have previously held that public interest is a factor in considering a laches claim, see Jackson v. Kenai Peninsula Borough for Use & Benefit of Kenai, 733 P.2d 1038, 1043-44 (Alaska 1987); Moore v. State, 553 P.2d 8, 19-20 (Alaska 1976), and thus constitutional values put significant weight on the side of rejecting the defense, cf. Gwich'in Steering Comm. v. State, Office of the Governor, 10 P.3d 572, 585 (Alaska 2000) ("[A] suit brought to ensure compliance with statutory and constitutional policies that concern the public as a whole effectuates strong public policies.").

10560791

Stephen BURKHOLDER, Petitioner, v. STATE of Alaska, Respondent

Burkholder v. State

1971-11-30

No. 1346

754

758

491 P.2d 754

491

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:13.332373+00:00

CAP

Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, JJ-

Stephen BURKHOLDER, Petitioner, v. STATE of Alaska, Respondent.

Stephen BURKHOLDER, Petitioner, v. STATE of Alaska, Respondent. No. 1346. Supreme Court of Alaska. Nov. 30, 1971. Jay Hodges, of Curran & Hodges, Fairbanks, for petitioner. John E. Havelock, Atty. Gen., Juneau, Monroe Clayton and Stephen Cooper, Dist. Attys., Hal R. Horton, Asst. Dist. Atty., Fairbanks, for respondent. Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, JJ-

2578

15546

DIMOND, Justice. In a two-count indictment petitioner was charged with the sale of depressant, stimulant or hallucinogenic drugs in violation of AS 17.12.010. He seeks review of an order denying his motion for production of the grand jury minutes which led to the indictment. In a similar case involving a different defendant but an identical offense, where the same, sole witness appeared before the grand jury, a different judge in the same judicial district granted that defendant's motion for production of the grand jury minutes, and then dismissed the case. In order to attain uniformity in the superior court in such matters, we have granted review. At the time of petitioner's motion, Criminal Rule 6(h) allowed matters before a grand jury to be disclosed when permitted by the court at the defendant's request "only . . . upon a showing that grounds may exist for a motion to dismiss the indictment. . . . " The courts have been chary about revealing matters that occur before a grand jury, and have generally held that such matters are secret and not subject to disclosure. The courts have put forth numerous propositions to justify concealment of grand jury proceedings. The various reasons commonly urged by the courts to support their position were accurately stated by the Third Circuit in United States v. Rose: (1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt. While the policy of secrecy may have some valid basis while the grand jury is deliberating, there appears to be no justification for secrecy when the deliberations have been completed, the indictment has been returned and the defendant has been arrested and is ready for trial. Reason (1) has no application to this latter period because the indictment is not just contemplated but is a fact and the defendant is in custody. Similarly, ground (2) is not pertinent because the deliberations are over and since the defendant has been indicted there would be no point in importuning the grand jurors. Reason (3) is not a valid consideration. Criminal Rule 7(c) requires that "the names of all witnesses examined before the grand jury must be inserted at the foot of the indictment, or endorsed thereon, before it is presented to the court." Thus, the names of the grand jury witnesses are not secret and disclosure of the grand jury minutes will not increase the likelihood of subornation of perjury or tampering with witnesses who may later appear at the trial of those indicted. Reason (4) would have merit only if witnesses before the grand jury remained anonymous. But since the names of all witnesses examined before the grand jury must be inserted at the foot of the indictment, or endorsed thereon, secrecy of grand jury proceedings does little to encourage "free and untrammeled disclosures by persons who have information with respect to the commission of crimes." Finally, reason (S) relied upon in support of secrecy lacks validity. If a person is not indicted, then under our holding no disclosure of the fact that he has been under investigation will occur nor will he be subject to the burdens of standing trial. Moreover, where no indictment is returned there will exist no basis for the person investigated to obtain a transcript of the grand jury proceedings. Where, as here, an indictment is returned secrecy is of little moment for it is apparent that an investigation has occurred and a trial will be necessary. Rather than preserving the secrecy of grand jury proceedings after indictment, there is good reason for permitting the indicted defendant, before he goes to trial, to have access to such proceedings. We held in State v. Parks, that an indictment was subject to dismissal if the grand jury was presented no evidence that rationally established the facts. We held that under this rule the question was one of sufficiency of the evidence — "whether it is adequate to persuade reasonable minded persons that if unexplained or uncontradicted it would warrant a conviction of the person charged with an offense by the judge or jury trying the offense." Criminal Rule 6(h), as it existed at the time this petition for review was filed, permitted a court to disclose matters occurring before the grand jury at the request of a defendant "upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury." The difficulty with that rule, as applied in conjunction with Parks, is that so far as the sufficiency of the indictment is concerned, there is no way that the defendant could test that sufficiency in the absence of being able to show that "grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury." Yet it is only by being able to have access to the grand jury proceedings without any prior showing that a defendant can know whether the indictment is subject to dismissal because of insufficiency of evidence. The necessity for keeping a record of grand jury proceedings, which would be available to a defendant without a particularized showing, was suggested by our colleague, Justice Rabinowitz, in his concurring opinion in Parks. To facilitate the attainment of a grand jury proceeding without an elaborate showing, we quite recently amended Criminal Rule 6 by adding subdivision (j) to read as follows : Upon request, a defendant shall be entitled to listen to the electronic recording of the grand jury proceedings and inspect all exhibits presented to the grand jury. Upon further request he may obtain a transcript of such proceedings and copies of such exhibits. Under this amendment there is no question but that a defendant now has available a means to determine, before trial, whether an indictment is sufficient to subject him to trial, or whether it is challengeable as insufficient and subject to dismissal. But entirely apart from this amendment, we hold that petitioner was entitled to a transcript of the grand jury minutes in this case in order to give meaning to Parks by enabling petitioner to determine the sufficiency of the indictment. It was error for the court to deny petitioner's motion for production of the grand jury minutes. Here the only witness who testified before the grand jury was an Alaska State Trooper. According to a transcript of the grand jury minutes the trooper testified that a criminal informant working for the trooper bought 27 grams of hashish from appellant for $100, that the informant was one whose reliability was known to the police through their operation with him, and that the informant knew the identity of the appellant. We are dealing here with hearsay. The state trooper was relating what was told to him by the informant. The use of hearsay involved, of course, attempts to get into evidence a statement made by one who was not testifying, and the value of that hearsay rested upon the credibility of the out-of-court declarant. Under the rules of evidence, hearsay is inadmissible upon objection unless it falls within one of the exceptions to the hearsay rule. In the past, however, we have recognized that not all of the formal and stringent rules of evidence should apply to a grand jury proceeding. As a result, we have held that even those forms of hearsay not countenanced within one of the recognized exceptions are admissible in a grand jury proceeding. In adopting such a position we have not been unmindful of the protective value of the constitutional right to a grand jury indictment. We have been continually cognizant of "what we have stated to be a vital function of the grand jury — the protection of the innocent against oppression and unjust prosecution". In Parks we indicated that: Hearsay, if relevant, is evidence, and if it is such that, unexplained or uncontra-dicted, it would persuade a grand jury that it would warrant the conviction of the defendant at the trial, then it is sufficient evidence to justify the finding of an indictment. In so holding we did not determine whether the hearsay presented to the grand jury in Parks was sufficient to support an indictment. We held only that: [Hjearsay evidence may rationally establish facts and therefore may be sufficient evidence to justify the findings of an indictment by a grand jury. We do not decide in this case whether the particular hearsay evidence involved was sufficient for that purpose, because that question is not before us. We only decide that an indictment is not insufficient or invalid and subject to dismissal when founded upon hearsay evidence alone. Under the Parks standard the hearsay testimony presented to the grand jury in the present case is insufficient to support an indictment. At best, only a modicum of credibility can be attributed to the informant-declarant in this case. The name of the informant was not disclosed, the nature and extent of his relationship with the police and the appellant were not revealed, and the circumstances relating to the purchase of hashish from appellant were not explored. Briefly stated, the hearsay testimony presented lacked the probative value required by Parks. In such circumstances the hearsay testimony presented cannot "rationally establish facts" sufficient to support an indictment as required by Parks. In this case the hearsay presented was so devoid of persuasive force as to fail to furnish a logical basis to justify an indictment. The indictment must be dismissed. We hold that appellant was entitled to a transcript of the grand jury minutes. As we have indicated, our examination of the minutes of the grand jury convinces us that the testimony presented was insufficient to support an indictment, and the indictment must be dismissed. . Prior to October 31, 1971 Criminal Rule 0(h) provided: Secrecy of Proceedings and Disclosure. Disclosure of matters occurring before the grand jury other than the deliberations and the vote of any juror may be made to the prosecuting attorney for use in the performance of his duties. Otherwise, a juror, attorney, interpreter or stenographer may disclose matters occurring before the grand jury only when so directed by the court preliminary to or in connection with a judicial proceeding or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury. Xo obligation of secrecy may be imposed upon any person except in accordance with this rule. The court may direct that an indictment shall be kept secret until the defendant is in custody or has given bail, and in that event the clerk shall seal the indictment and no person shall disclose the finding of the indictment except when necessary for the issuance and execution of a warrant or summons. . 215 F.2d 617, 628-629 (3d Cir. 1954). . 437 P.2d 642 (Alaska 1968). . Id. at 644. . Id. . Id. at 646 n. 4 where Justice Rabinowitz observed: It might well be that . . . Crim.R. 6(h) . . . will have to be modi fied to effectuate the evidentiary rule articulated in today's opinion. It will also be mandatory that a record be kej)t of all proceedings before any grand jury. In this connection, we note that by a recent amendment contained in Crim.lt. 6 (g) we provided for the recordation of grand jury proceedings. .State v. Parks, 437 P.2d 642, 644 (Alaska 1968). . Merrill v. State, 423 P.2d 686 (Alaska 1967), cert. denied, 386 U.S. 1040, 87 S.Ct. 1497, 18 L.Ed.2d 607 (1967). . State v. Parks, 437 P.2d 642, 645 (Alaska 1968). . Id. at 643. . State v. Shelton, 368 P.2d 817, 819 (Alaska 1962) (footnote omitted). . State v. Parks, 437 P.2d 642, 644 (Alaska 1968) (footnote omitted). . Id. nt 645. . In relying upon Paris we are not unmindful of oases which take a contrary view, and prohibit basing an indictment upon hearsay, at least in the absence of some quantum of competent non-hearsay evidence. The standards announced in the A.B.A. Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function (Approved Draft, 1971) § 3.6, at 88-89, appear appropriate. (a) A prosecutor should present to the grand jury only evidence which he believes would be admissible at trial. However, in appropriate cases the pros-executor may present witnesses to summarize admissible evidence available to him which he believes he will be able to present at trial. (b) The prosecutor should disclose to the grand jury any evidence which he knows will tend to negate guilt. (c) A prosecutor should recommend that the grand jury not indict if he believes the evidence presented does not warrant an indictment under governing law. (d) If the prosecutor believes that a witness is a potential defendant he should not seek to compel his testimony before the grand jury without informing him that he may be charged and that he should seek independent legal advice concerning his rights. (e) The prosecutor should not compel the appearance of a witness whose activities are the subject of the inquiry if the witness states in advance that if called he will exercise his constitutional privilege not to testify. The following commentary also seems persuasive : As a general principle, the use of secondary evidence before a grand jury should be avoided unless there are cogent reasons justifying the presentation of a matter on the basis of such evidence. On the other hand, some jurisdictions allow an indictment to rest on evidence which would not be admissible at trial, e. g., Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956). The need to use a summary of available evidence may arise in cases involving voluminous records or where an absent witness has given a written statement but is not available at the time and circumstances justify prompt grand jury action. Similarly, where the victim of a criminal act is seriously injured and therefore is unavailable, someone to whom the relevant facts have been related should be permitted to relate to the grand jury what has been told. A third illustrative situation exists where the safety of an important witness reasonably warrants that his identity remain covert and his statements have been recorded and can be presented to the grand jury in sufficient detail to warrant an indictment. Appellant has urged reconsideration of our previous holding in Paris, but since we have concluded that the present case does not even meet the standard announced in Parks there exists no compelling reason to do so here.

10556779

In the Matter of the ESTATE of Wendell A. GREGORY, Deceased. Claire L. THOMSON, Administrator, and Lora Gregory Ford, Widow and former Administratrix, Appellants, v. Robert M. GREGORY, Guardian ad Litem, Appellee

Thomson v. Gregory

1971-07-14

No. 1164

59

64

487 P.2d 59

487

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:16.911957+00:00

CAP

In the Matter of the ESTATE of Wendell A. GREGORY, Deceased. Claire L. THOMSON, Administrator, and Lora Gregory Ford, Widow and former Administratrix, Appellants, v. Robert M. GREGORY, Guardian ad Litem, Appellee.

In the Matter of the ESTATE of Wendell A. GREGORY, Deceased. Claire L. THOMSON, Administrator, and Lora Gregory Ford, Widow and former Administratrix, Appellants, v. Robert M. GREGORY, Guardian ad Litem, Appellee. No. 1164. Supreme Court of Alaska. July 14, 1971. Helen L. Simpson, Anchorage, for appellants. John M. Conway and Bruce E. Gagnon, of Atkinson, Wade, Conway & Young, Anchorage, for appellee.

2610

15527

OPINION CONNOR, Justice. This is a probate case in which certain orders of the superior court are brought into question. These orders were directed against a former administratrix who had been removed for misconduct in handling the estate's affairs. Wendell Gregory died in 1962, leaving a widow, Lora M. Gregory, and four children from a previous marriage. Lora obtained probate of a will and had herself appointed administratrix of the estate. She submitted an inventory, listing a federal income tax refund as the estate's only asset. Robert Gregory, brother of the deceased, became guardian ad litem for the three minor children of the deceased. Robert succeeded in having the will set aside because Lora had procured witnesses to sign the will after the death of the deceased. Shortly after his appointment as guardian, Robert moved to compel an accounting, alleging that Lora had failed in previous inventories to list all the assets of the estate. Several inventories and accountings were thereafter filed, each one showing additional assets previously unlisted. More than once, Lora Gregory was cited by the probate master for failure to file timely accountings. In February of 1965 Lora Gregory filed a first and final account and petition for distribution and discharge. The accounting showed assets of $5,656.42 and claims and expenses of $6,572.06, leaving nothing for distribution. Robert Gregory objected to the accounting, claiming that Lora Gregory had failed to include assets in excess of $3,000.00 and had included numerous personal expenses. After a hearing on the first and final account, the probate master found, among other things, that Lora Gregory as admin-istratrix had intermingled assets and mismanaged the estate to such an extent that an accurate accounting was impossible. The master also found that the account should be disapproved and that Lora Gregory should be removed as administratrix. Based on the master's findings, the superior court on July 22, 1965, ordered Lora Gregory's letters of administration revoked and ordered her to put the estate's assets into proper order. Lora Gregory filed a petition for review of this order, but apparently abandoned it. Nothing further was done in the estate until March of 1967 when Lora Gregory, by that time remarried, petitioned the court for an award of a widow's allowance. The probate master denied her petition and further ordered that a new administrator be appointed to make a complete appraisal of the assets preparatory to a full and final accounting. The new administrator, Claire Thomson, filed a first and final account and petition for final distribution on November 26, 1968. Robert Gregory as guardian for the minor children filed objections. The master found that Lora M. Gregory had improperly claimed certain personal expenses as expenses of the estate. He also found that Lora had purchased a new car for herself in 1963 with the insurance proceeds from the wrecked automobile in which Wendell Gregory had died. He recommended that Lora should restore to the estate with interest the sum of $2,995.00 received from the auto insurance. The administrator in his account had determined that the estate should be credited with only 30 percent of the assets of the business which deceased had operated. This determination was based on income tax returns for Wendell and Lora Gregory for the years 1960, 1961 and 1962. The returns showed Wendell's income as roughly 28 percent of their total combined income for those years. The master disagreed with this determination and recommended that 50 percent of the business assets should be included in the estate. All of the master's findings and recommendations were accepted by the superior court, except for the denial of Lora's widow's allowance, as to which the superior court reserved judgment. An amended first and final account was subsequently filed in March of 1969. Fol lowing a hearing and further amendments by the court, the accounting was approved in May of 1969. The superior court ordered, inter alia, that the interest on the $2,995.00 in automobile insurance which Lora had converted to her personal use should be compounded annually from January 1, 1963, to January 1, 1969, rather than computed simply. The superior court also found the assets of the estate to be $8,109.75 and the claims, expenses and other costs to be $4,604.47. The net estate was awarded as a family allowance to Robert Gregory as guardian of the minor child Phyllis Gregory, for her support and maintenance. From the court's order, the administrator of the estate and Lora M. Gregory have appealed. 1. The Family Allowance. Lora Gregory (now Lora Ford) cites as error the superior court's award of the entire net estate as a family allowance for the benefit of the minor child Phyllis Gregory. The award of the family allowance was based on AS 13.30.130(a) which provides: "Award to Family, (a) After the filing of the inventory, if the deceased died leaving a widow or minor children, the judge, upon such notice as may be fixed by him, upon being satisfied that the funeral expenses, expenses of last illness and of administration have been paid or provided for, and upon petition for that purpose, shall award and set off to the surviving widow or minor children property of the estate not exceeding the value of $8,000, exclusive of any mortgage or mechanic's, laborer's or other lien upon the property so set off, which property so set off shall include the home and household goods, if any, and all property of the deceased exempt from execution. The award shall be by an order or judgment of the judge and vest the absolute title, and there shall be no further administration upon the portion of the estate so set off and awarded, but the remainder of the estate, if any, shall be settled as other estates. The property thus set apart, if there is a widow, shall be decreed by the judgment, her property to be used and expended by her for the maintenance of herself and the minor children of the deceased, if any, or if there is no widow it shall be decreed the property of the minor child, or if there are more than one, of the minor children in such proportion as the judge considers proper, taking into consideration their age and the expense of maintenance, to be used and expended in the nurture, maintenance and support of the child or children, until they become of legal age, by the guardian thereof, as the law may direct. The judgment, decree and award shall specifically describe the property set apart and is final, except in case of appeal or for fraud." This court has stated that the predecessor to this section, when read in conjunction with the sections that are now AS 13.30.120 and 13.30.140, "disclosefs] the motivating thought: that of support and maintenance of the widow and children." In re Hewett's Estate, 358 P.2d 579, 581 (Alaska 1961). Appellant maintains that AS 13.30.130 is mandatory once a petition is filed, and that the court has no discretion as to the amount of property it will set aside. That is, if a petition is filed, the court must set aside property of the estate worth $8,000, or if, after deduction of the designated expenses, the estate is not worth $8,000, then the court must set aside as much property, exclusive of liens, as remains. Appellant argues further that this award must be given to the surviving widow. We do not agree. The plain words of the statute are: " the judge shall award and set off property of the estate not exceeding the value of $8,000 (Emphasis supplied.)" Nothing in the language of the statute indicates that the court must award the entire $8,000, or any specific amount. It only states that the award may not be in excess of $8,000. Since the dominant purpose of the family allowance statute is to assure that the widow and minor children receive support and maintenance, we believe the court has discretion to determine what amount is necessary to achieve this purpose. Therefore, it was not error for the superior court to find that the minor child, Phyllis Gregory, was entitled to the allowance to Lora Gregory's exclusion. Appellant also argues that under the terms of the statute, even if the allowance is to be applied to the child's benefit, it must go to the widow if there be one. The facts of this case, however, indicate that the minor child's interests have been adverse to Lora Gregory's throughout the entire proceeding. It has long been recognized that the courts employ equitable principles in carrying out the purposes of the statutes governing the administration of decedents' estates. The court implicitly had the power to set up the support and maintenance arrangement under the family allowance statute in the manner it did, taking into account the apparent attitude of Lora Gregory toward the child. 2.Repayment of the $2,995.00. Appellant claims that it was error for the superior court to order restoration to the estate of the sum of $2,995.00 which Lora Gregory had received in the form of automobile insurance proceeds. Lora admits that she purchased a 1963 Chevrolet Impala automobile upon receipt of the proceeds, but argues that she accounted for the $2,995.00 in every accounting submitted to the court after May, 1964. While it is quite true that the automobile was listed in the inventories and accounts, the master found that Lora Gregory used the automobile as her personal car. Furthermore, although she had had the full use of the car for six years, Lora had consistently listed its value at the purchase price. Thus, as late as 1969, when she was ordered to pay the money back to the estate, this 1963 Chevrolet was still being listed at a value of $2,995.00, although its value to the estate at that time was much less. It is settled that an administratrix may not use estate funds without the permission of the court. In re Underwood's Estate, 6 Alaska 673 (1922). There was no error in ordering her to repay this money. 3. Interest on the $2,995.00. The superior court ordered Lora Gregory to pay compound interest on the $2,995.00 for a period of six years, the interest to be compounded annually. She assigns as error, first, the imposition of any interest and, second, the imposition of compound interest. An administratrix may be charged with interest on estate funds which she has converted to her own use. Sullivan v. Sullivan, 335 Mass. 268, 139 N.E.2d 510 (1957); In re Thompson Estate, 98 N.J.Super. 36, 235 A.2d 920 (1967), aff'd, 104 N.J.Super. 324, 250 A .2d 35 (1969); In re Meyer, 173 Pa.Super. 592, 98 A.2d 444 (1953); see also Annot. 18 A.L.R.2d 1384 (1951). The superior court correctly found that Lora M. Gregory had converted the sum of $2,995.00 to her own use, and that interest should be charged. We believe, however, that a charge of compound interest was erroneous. AS 45.45.010(a) (1) provides: "Legal rate of interest, (a) The rate of interest in the state is six per cent a year and no more on (1) money after it is due » Phis section cannot be construed as authorizing compound interest. Appellee argues that since the admin-istratrix had a duty to place the estate funds in an interest-bearing account, compound interest must be charged to put the estate in as good a position as it would have been had the money been so invested. We cannot accept this argument. We have no assurance that this money would not at some point have been authorized by the court to have been paid out in the form of claims or other expenses. While Lora Gregory's performance as administratrix was questionable, we cannot say with any certainty that the estate would have had the benefit of six years' compound interest had she not used the money to buy herself a car. 4.$1,443.35 Claimed as Funeral Expense. From the time of her first semiannual accounting, Lora Gregory has claimed as an expense of the estate $1,443.35 for funeral expenses of the deceased. The record indicates that this sum was paid by Maryland Casualty Company, in the form of a check made out jointly to Lora M. Gregory and a funeral home. Lora contends that the insurance money was never part of the estate, but was in the nature of medical payments arising out of the accident. It should be noted that Wendell Gregory died instantly and incurred no medical expenses. Further, the check was in the exact amount due and owing the funeral home. Lora Gregory did not introduce any evidence to support her claim that the $1,443.35 was hers and not estate property. Nor did she present a verified claim as is required by AS 13.30.330. The finding of the court was not dearly erroneous and must, therefore, be affirmed. 5. Division of Business Assets, The administrator who succeeded Lora Gregory recommended that only 30 percent of the business assets should be included in the estate, this recommendation being based solely on the .income tax returns of Lora and Wendell Gregory. The master found that the assets should be divided equally between Lora and Wendell Gregory, and the superior court accepted that finding. Since these income tax returns were quite inconclusive as to the actual contributions which Lora made to the acquisition of the business assets, we cannot say that the findings of the master as accepted by the superior court were clearly erroneous. 6. Attorney's Fees. The attorney for the administrator was awarded a fee of $500.00. Appellants claim that an award so low was an abuse of discretion. We disagree. Much of the labor expended in this case was for the personal benefit of Lora M. Gregory and should not have been chargeable to the estate. There was no abuse of discretion. In re Underwood's Estate, supra, 6 Alaska at 678-679. The case is remanded for further proceedings consistent with this opinion. Affirmed in part, reversed in part. . All other children of the deceased had by this time reached majority. . AS 13.30.120 provides that the widow and children may remain in possession of the homestead, wearing apparel of the family, and household furniture, and also may have "reasonable provision allowed for their support" during the period before administration of the estate has been granted and the inventory filed. AS 13.30.140 provides for an allowance in addition to the one provided in 13.30.130 as necessary for the maintenance of the widow and minor children during the progress of the settlement of the estate. . In re Goulart's Estate, 218 Cal.App.2d 260, 82 Cal.Rptr. 229 (1963). . In re Bell's Estate, 168 Cal. 253, 141 P. 1179 (1914) ; In re Clos' Estate, 110 Cal. 494, 42 P. 971 (1895) ; In re Niles, 113 N.Y. 547, 21 N.E. 687 (1889). . See In re McSwain's Estate, 176 Cal. 280, 168 P. 117 (1917) ; Rosin v. United California Bank, 226 Cal.App.2d 166, 37 Cal.Rptr. 830 (1964). . We are not presented with any questions of partnership law or the treatment to he given to property held exclusively by deceased but acquired through contributions by the surviving spouse. Each party apparently operated on the assumption that a division of business assets in some amount between Lora and deceased was proper.

10559283

Leslie WERNBERG, Appellant, v. MATANUSKA ELECTRIC ASSOCIATION, Inc., a corporation, Appellee

Wernberg v. Matanuska Electric Ass'n

1972-03-17

No. 1456

790

795

494 P.2d 790

494

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:29.676845+00:00

CAP

Before BONEY, C. J., and RABINO-WITZ, CONNOR and ERWIN, JJ.

Leslie WERNBERG, Appellant, v. MATANUSKA ELECTRIC ASSOCIATION, Inc., a corporation, Appellee.

Leslie WERNBERG, Appellant, v. MATANUSKA ELECTRIC ASSOCIATION, Inc., a corporation, Appellee. No. 1456. Supreme Court of Alaska. March 17, 1972. James K. Tallman, Anchorage, for appellant. John D. Shaw, Palmer, for appellee. Before BONEY, C. J., and RABINO-WITZ, CONNOR and ERWIN, JJ.

3040

17906

OPINION ERWIN, Justice. This appeal arises out of an action brought on June 3, 1965, by appellant Wernberg against appellee Matanuska Electric Association for trespass to his homestead in the Talkeetna area. The homestead patent, issued in 1954, reserved the highway right-of-way pursuant to a federal statute. The state acquired the right-of-way in 1963 under the statute by serving Wernberg with a standard Notice of Utilization. The 200-foot wide right-of-way extending across Wernberg's land was partially cleared by the State Highway Department, but the easternmost 30 feet remained covered with trees and vegetation. In 1964 the State Highway Department issued Matanuska Electric a Utility Permit authorizing the construction of an electric power line inside the uncleared 30-foot strip in the right-of-way. Negotiations with Wernberg to acquire an easement outside the highway right-of-way failed, so Matanuska Electric began construction of a line by clearing the easternmost 30 feet of the right-of-way. Wern-berg filed suit while the power line was under construction seeking injunctive relief and damages. At trial, appellant Wernberg introduced evidence of the destruction of trees and testified that the power line would interfere with his proposed airstrip and with a proposed business site on the east side of the highway. On cross-examination, however,Wernberg admitted that he had made no investment nor done anything to start those business ventures. The jury awarded damages of $15,000 which were broken down into $2,500 for damage to the trees and $12,500 in general damages. On motion by the defendant, the superior court ordered remittitur to $7,500, or, in the alternative, a new trial on the ground that the verdict was excessive. In its memorandum opinion the court accepted the jury's decision regarding damages to the cut timber, but said that Wernberg's evidence concerning the damage to his proposed landing strip paralleling the right-of-way was "purely speculative and not very satisfactory." The court also stated that there were several matters that were admitted without objection from the defendant that may have improperly influenced the jury and that general damages above $5,000 were the result either of unjustified consideration of these matters or "passion and prejudice". Appellant refused the remittitur and a second trial was held. At the second trial, Matanuska Electric presented an expert in real estate appraisal who testified over obj ection as follows: My conclusion is that the value of the property was exactly the same after the trees were — were removed as it was prior to their removal because they were in a public right-of-way and normally accepted in that light by the knowledgeable parties to such transactions, both buyers and sellers. The trees in fact were not theirs and could be removed at any time by the department of highways. The jury's verdict was entered on November 19, 1970, for "None (Zero)" and six interrogatories were answered by the jury as follows: 1. What damages were caused to plaintiff as the result of the cutting of trees and bulldozing of a 30 foot strip of land in the 200 foot wide road right-of-way? ANSWER: $ NONE 2. Was there an encroachment or trespass committed by defendant on plaintiff's land outside of the area covered by the 200 foot road right-of-way ? [ANSWER:] Yes. 3. If your answer to 2., above, is YES, was the encroachment deliberate, or was it casual, involuntary, or committed by defendant under a belief it had a right to be there — that is, not a deliberate encroachment ? [ANSWER:] NOT DELIBERATE. 4. What were the actual damages caused to plaintiff, if you find that an encroachment occurred outside of the area covered by the 200 foot road right-of-way ? ANSWER: $ NONE. 5. What damages did plaintiff suffer with respect to his proposed aircraft landing strip ? ANSWER: $ NONE. 6. What damage did plaintiff suffer with respect to his business site ? ANSWER: $ NONE. On January 29, 1971, the court entered an order denying plaintiff's motion for a new trial and upon its own motion entered judgment notwithstanding the verdict "for plaintiff in the amount of nominal damages of $1.00" and awarding plaintiff $250 in attorney's fees. Appellant initially argues that the superior court erred in setting aside the judgment in the first trial and ordering a remittitur or a new trial. Alaska Civil Rule 59(a) provides simply: A new trial may be granted to all or any of the parties and on all or part of the issues in an action in which there has been a trial by jury . if required in the interest of justice. In deciding on review whether the grant or denial of a motion for a new trial was proper, however, it is well established that the rule is as follows: The matter of granting or refusing a new trial rests in the sound discretion of the trial judge. We shall not interfere with the exercise of his discretion except in the most exceptional circumstances and to prevent a miscarriage of justice, (footnote omitted) Ahlstrom v. Cummings, 388 P.2d 261, 262 (Alaska 1964). In National Bank of Alaska v. McHugh, 416 P.2d 239, 244 (Alaska 1966), the court elaborated, stating: In order for us to hold that the trial judge has abused his discretion, we would have to be left with the definite and firm conviction on the whole record that the judge made a mistake in refusing to order a remittitur or grant a new trial in response to appellant's motion, (footnote omitted) We find no such abuse of discretion. Appellant challenges the order of remittitur on the grounds that the order deprived him of his constitutional right to a jury trial. However, appellant refused to accept the remittitur and in fact had a second jury trial. Thus, what appellant appears to be arguing is that he is entitled to the verdict rendered in the first trial as a constitutional right without regard to whether the jury fairly and impartially considered the case on the evidence presented. We decline to adopt such a rule. Appellant is entitled to a jury trial before a fair and impartial jury. It is the duty of the trial judge to assure this event. In this case the court determined that the verdict was not in conformity with the evidence. We see no abuse of discretion in this decision. Appellant next contends that the jury verdict in the second trial was contrary to the evidence. In answers to interrogatories submitted by the judge, the jury found that a trespass had occurred on the land outside the right-of-way, but that it was not deliberate. Appellant argues that the jury verdict was inconsistent with the evidence in that it' found that a trespass had occurred but awarded no damages. While the common law rule was that from every direct entry upon the land of another "the law infers some damage; if nothing more, the treading down of grass or herbage", Prosser argues that it "seems more reasonable to limit recovery without proof of damage to cases of intentional invasion, where the trespass action may serve an important purpose in determining and vindicating the right to exclusive possession of the property." Similarly, the Second Restatement of Torts provides as follows: 165. One who recklessly or negligently, or as a result of an abnormally dangerous activity, enters land in the possession of another or causes a thing or third person so to enter is subject to liability to the possessor if, but only if, his presence or the presence of the thing or the third person upon the land causes harm to the land, to the possessor, or to a thing or a third person in whose security the possessor has a legally protected interest. 166. Except where the actor is engaged in an abnormally dangerous activity, an unintentional and non-negligent entry on land in the possession of another, or causing a thing or third person to enter the land, does not subject the actor to liability to the possessor, even though the entry causes harm to the possessor or to a thing or third person in whose security the possessor has a legally protected interest. This would seem to be the better, modern view. Thus, since the jury found that the trespass caused no actual damage and was non-deliberate, it was not required to award any damages. Plaintiff next attempts to argue that the jury verdict was contrary to un-controverted evidence that the trespass was deliberate and that there were damages to the proposed landing strip. This conten tion is without merit. Not only is there evidence to support the jury's finding, but in Innes v. Beauchene, 370 P.2d 174, 177 (Alaska 1962), the court, quoting from Young Ah Chor v. Dulles, stated the rule to be: 'The trier of fact need not accept the uncontradicted testimony of a witness who appears before it, and the demeanor of that witness may be such as to convince the trier that the truth lies directly opposed to the statements of the witness. (Citing authorities.) This rule is particularly true where the witness is interested in the outcome of the case, or where his testimony is improbable or contains patent omissions and inconsistencies. (Citing authorities.)' Appellant additionally advances the point that the court incorrectly instructed the jury regarding the burden of proof and the damages to be awarded. Although the appellant argues that four instructions were improper, this section of the brief is only two pages long and contains no citation to any authority whatsoever. Supreme Court Rule 11(a) (8) provides that: [The brief shall contain] [t]he argument, stating clearly the points of fact and of law being discussed, with reference to the pages of the record and authorities relied upon in support of each point, (emphasis added) In Lewis v. State, 469 P.2d 689, 691-692, note 2, this court said: We interpreted this rule to require that where a point is specified as error in a brief on appeal, thus raising such point as one to be relied upon, but such point is not given more than cursory statement in the argument portion of the brief, such point will not be considered by the Supreme Court. Failure to argue a point constitutes an abandonment of it. Associated Engineers & Contractors, Inc. v. H. & W. Const. Co., 438 P.2d 224 (Alaska 1968). 'If the adversary system is to function at the appellate level, counsel's participation and minimal compliance with the rules of this court are necessary.' Pedersen v. State, 420 P.2d 327, 330 n. 5 (Alaska 1966). We thus conclude that appellant has abandoned these points on appeal. Where one, acting under mistake as to boundary or to title, cuts timber, the usual rule of damages is to give the owner the amount of the diminution in value of his land due to the removal of the timber. Some jurisdictions use as the measure of damages the loss of the actual value of the trees, while still others permit the plaintiff to choose either theory for damage recovery. In the case at bar the court instructed the jury that they could use either theory. Appellant asserts that this was error and that the error was compounded by permitting expert testimony by a real estate appraiser based on the legal theory that the loss of the trees had not decreased the value of the property, nor did the timber have independent value in the area. Appellant does not explain what the correct legal formula for damages should be, but relies on the assertion that the property owner should be able to recover for "infringement upon the individual pleasure or personal pleasure." Further, he asserts that this is an action for waste and argues that the distinction between damages for waste as opposed to damages for trespass is axiomatic. Our review of the legal authorities casts extreme doubt on the purported distinction between the rule of damages for waste and for trespass. No such distinction is made by the legal authorities in formulating a rule for damages under circumstances similar to the case at bar. The only difference between the two doctrines is that if the party charged with destruction of the trees is rightfully in possession of the property he is guilty of waste, if not he has committed trespass. The rule of damages, however, is the same in either case. We thus find no error in the instruction given or the admission of the expert testimony of the real estate appraiser. Finally, appellant's assertion that he is entitled to recovery for infringement upon his individual pleasure as property owner is at odds both with the law and logic. Such a standard would make the award of damages turn basically upon the plaintiff's testimony as to his personal feelings rather than on the actual damages to the property. While the property owner is permitted to testify as to the market value of his land, it is clear that the amount of damage to property in trespass as in eminent domain cases is more appropriately the subject of expert testimony measured by an objective standard of damages. Such a course was properly followed herein. The judgment of the superior court is affirmed. BOOCHEVER, J., not participating. . Although there is authority that it is proper to locate electric power lines inside a highway right-of-way and that no additional compensable servitude is thereby placed on the adjacent land, the court let the case go to the jury and there has been no cross-appeal on this point. See United States v. Oklahoma Gas & Elec. Co., 318 U.S. 206, 63 S.Ct. 534, 87 L.Ed. 716 (1942). . In Hash v. Hogan, 453 P.2d 468 (Alaska 1969), this court held that where the court finds the verdict to be the result of "passion and prejudice", it must order a new trial, not just remittitur. Any error here, however, was cured by the second trial. . Although there was an objection to this testimony at trial on the ground that the witness stated a conclusion of law, this is not raised on appeal by appellant. . See also Dowling Supply and Equipment, Inc. v. City of Anchorage, 490 P.2d 907 (Alaska 1971); State v. 45,621 Sq. Feet of Land, 475 P.2d 553, 558 (Alaska 1970); Maxwell v. Olson, 468 P.2d 48, 49 (Alaska 1970); Hash v. Hogan, 453 P.2d 468, 471-472 (Alaska 1969); West v. Adm'rx of Estate of Nershak, 440 P.2d 119, 121 (Alaska 1968); Peters v. Benson, 425 P.2d 149, 151 (Alaska 1967); Bertram v. Harris, 423 P.2d 909, 915 (Alaska 1967); Mallonee v. Finch, 413 P.2d 159, 162 (Alaska 1966); Otis Elevator Co. v. McLaney, 406 P.2d 7, 10 (Alaska 1965); Alaska State Housing Authority v. Vincent, 396 P.2d 531, 535 (Alaska 1964); Montgomery Ward v. Thomas, 394 P.2d 774, 774-775 (Alaska 1964). The federal case authority is to the same effect. See 3 Barron & Holtzoff, Federal Practice & Procedure, ¶ 1301-1302.1 at 337-56 (Wright Ed. 1958). . The trial judge's conclusion that the $15,000 verdict was excessive is supported by the fact that the Matanuska-Susitna Borough had apparently assessed the property for tax purposes at less than $8,000. This evidence was introduced at trial without objection of counsel. Compare State v. 45,021 Square Feet of Land, 475 P.2d 553, 557-558 (Alaska 1970). . Dougherty v. Stepp, 18 N.O. 371 (1S35). See W. Prosser, Daw of Torts § 13, at 66-07 (4th ed. 1971). . Prosser, supra note 5, at § 66-67. . Restatement (Second) of Torts § 165, 166 (1965). .Even in jurisdictions following tlie common law rule a plaintiff wlio establishes the fact of technical trespass but not the amount of damage may only recover nominal damages. See 1 Harper & James, Law of Torts § 1.8 (1956); W. Prosser, Law of Torts § 13, at 66-67 (4th ed. 1971); C. McCormick, Law of Damages § 23, at 91 (1935); Keesling v. City of Seattle, 52 Wash.2d 247, 324 P.2d 806, 809 (1958); Mackey v. Board of County Commissioners, 185 Kan. 139, 341 P.2d 1050, 1056 (1959); Haase v. Helgeson, 57 Wash.2d 863, 360 P.2d 339, 341 (1961). . 270 F.2d 338, 341 (9th Cir. 1959). . See also Fairview Development, Inc. v. City of Fairbanks, 475 P.2d 35 (Alaska 1970). . C. McCormick, Law of Damages § 126, at 491 (1935); National Rating Bureau v. Florida Power Corp., 94 So.2d 809, 811 (Fla.1956). . United States v. Firchaw, 234 Or. 241, 380 P.2d 800, 804 (1963); Barker v. Missouri Pac. Ry. Co., 94 Kan. 61, 145 P. 829, 831 (1915). . Fairview Fruit Co. v. H. P. Brydon & Bro., 85 W.Va. 609, 102 S.E. 231 (1920). See Schafer v. Schnabel, Op.No. 774, 494 P.2d 802 n. 3 (Alaska, 1972), for a discussion of these various rules of damages. . Instruction 14 stated as follows: The measure of damages for damage to trees is the loss of the value of trees or the decrease in value of the land. .Appellant characterizes the expert testimony and the damage instruction given as being identical to those given in the case of severance damages in condemnation cases. The two rules are quite similar, for they are both based on recovery for damage to the remaining property. Of. 4A Nichols, Eminent Domain § 14.21 (Sackman, 3d rev. ed. 1971) and 4 G. Thompson, Real Property § 1853 (1961). Appellant also argues that this is somehow improper, but we are unable to ascertain any basis for this assertion. Of. 1 Harper & James, The Law of Torts § 1.8, at 27 (1956) ; W. Prosser, Law of Torts § 13, at 66 (4th ed. 1971) ; C. McCormick, Law of Damages § 126, at 491 (1935). . We freely concede that the failure of apellant to cite legal authority for his assertion has made consideration of his point in great depth somewhat difficult. Of. 1 Harper & James, The Law of Torts § 1.8 at 27 (1956) ; W. Prosser, Law of Torts § 13, at 66 (4th ed. 1971) ; C. McCormick, Law of Damages § 126, at 491 (1935). . Foster v. Beard, 221 So.2d 319, 322 (La.App.1969). . See 5 Nichols, Eminent Domain § 19.4 [2] (Sackman, 3d rev. ed. 1969).

10559524

Mrs. John C. VANCE, individually and as Guardian Ad Litem for John C. Vance, et al., Appellant, v. ESTATE of Charles O. MYERS, Deceased, Appellee

Vance v. Estate of Myers

1972-03-13

No. 1447

816

821

494 P.2d 816

494

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:29.676845+00:00

CAP

Before BONEY, C. J., and RABINO-WITZ, CONNOR and ERWIN, JJ.

Mrs. John C. VANCE, individually and as Guardian Ad Litem for John C. Vance, et al., Appellant, v. ESTATE of Charles O. MYERS, Deceased, Appellee.

Mrs. John C. VANCE, individually and as Guardian Ad Litem for John C. Vance, et al., Appellant, v. ESTATE of Charles O. MYERS, Deceased, Appellee. No. 1447. Supreme Court of Alaska. March 13, 1972. Leroy J. Barker, Anchorage, for appellant. No appearance for appellee. Before BONEY, C. J., and RABINO-WITZ, CONNOR and ERWIN, JJ.

2856

17053

OPINION CONNOR, Justice. The central question in this case concerns the liability of an estate for the torts of a trustee, executor, or administrator. Appellant brought a tort action against the administrator of the appellee's estate. The action was filed shortly before the superior court discharged the administrator, thus terminating the administration of the estate. Appellant moved to set aside the decree of discharge and reinstate the administrator until the tort action could be concluded. Appellant's motion was denied. The issue on appeal is whether the court erred in refusing to set aside its decree of discharge. Charles O. Myers died in Fairbanks, Alaska, on May 3, 1969. Shortly thereafter Howard E. Holbert was appointed administrator of the estate. By court order Hol-bert was allowed to operate the business owned by the decedent, Chuck's Corner Bar, in Nenana, Alaska. On June 1, 1970, Holbert filed a petition for settling final account, distribution and discharge. In an order of July 16, 1970, the court approved the accounting and found that the administrator should be discharged, after paying expenses and making distribution of the estate. The final distribution, leaving no funds of the estate in the hands of Holbert, was accomplished on August 20, 1970. On August 31, 1970, a request was made by the sole beneficiary of the estate that the administrator be discharged. This request included a statement of satisfaction with the disbursements made by the administrator. On September 22, 1970, the administrator submitted a second supplement to his final accounting and petitioned for discharge. This was granted by order of the superior court on September 25, 1970. On August 31, 1970, the appellant filed suit against several persons, including Hol-bert as administrator of the estate of Myers. The complaint alleges that appellant's husband, for whom she is suing as guardian ad litem, was physically injured in an altercation in Chuck's Corner Bar on June 5, 1970. It is alleged that the injuries resulted, in part, from the actions of the administrator and an employee of the administrator in that they served drinks to John Vance, when Vance was already intoxicated. The complaint further alleges that this rendered Vance incapable of caring for his own safety, that the employee assisted in dragging Vance to the street outside the bar after Vance had been beaten by another person in the bar, and that the employee failed to protect Vance from being beaten in the bar while Vance was in a helpless condition. An amended complaint, stipulated by the parties as part of the record, but as yet unfiled, also asserts that Holbert was negligent in failing to obtain liability insurance covering the op- ' eration of the bar. Holbert was served with the complaint on September 6, 1970. A copy of the complaint was sent to the probate master on September 14, 1970. The superior court was aware of the pending tort action at the time it granted the discharge. Appellant argues that the estate should not have been closed and the administrator discharged while a tort action was pending against it, relying upon Dunn v. Lindsey, 68 N.M. 288, 361 P.2d 328 (1961). But that case is quite distinguishable. There the cause of action was based upon the conduct of the decedent himself, not that of the executor. In the present case the claim relates entirely to the alleged negligence of the administrator in his operation and management of the assets of the estate. We must consider, therefore, whether those assets can be subjected directly to liability for the alleged torts of the administrator. Preliminarily it should be observed that in the area we are treating no distinction exists between a decedent's estate and a trust estate. Under the traditional rule a trustee, executor, or administrator was normally liable for torts committed by him or his servants in the administration of the trust or estate. But such torts did not result in the imposition of direct liability upon the assets of the trust or estate. Kirchner v. Muller, 280 N.Y. 23, 19 N.E.2d 665 (1939); Brown v. Guaranty Estates Corp., 239 N.C. 595, 80 S.E.2d 645 (1954); Barnett v. Schumacher, 453 S.W.2d 934 (Mo.1970); A. Scott, "Liabilities Incurred in the Administration of Trusts," 28 Harv.L.Rev. 725 (1915). The orthodox view, still adhered to in a great number of jurisdictions, is that the person to whom the trustee has incurred liability in the administration of the trust must bring an action against the trustee personally, but not in his representative capacity. The claimant may not reach the trust estate directly and apply it to the satisfaction of his claim. The personal liability of the trustee or executor for torts of his agents is now generally qualified, however, by allowing the executor or trustee to obtain reimbursement from the assets of the estate when he is personally without fault. Restatement 2d, Trusts, § 247. If the claim against the trustee is uncollectible, it is generally recognized that the plaintiff may then reach the trust assets to the extent of the trustee's right to reimbursement. Restatement 2d, Trusts, § 268; H. Stone, "A Theory of Liability of Trust Estates for the Contracts and Torts of the Trustee," 22 Colum.L.Rev. 527 (1922). In some jurisdictions, when the trustee's right to reimbursement is clear, the courts have allowed suit against the trustee in his representative capacity, thus avoiding circuity of action. Ewing v. Wm. L. Foley, Inc., 115 Tex. 222, 280 S.W. 499 (1926); Dobbs v. Noble, 55 Ga.App. 201, 189 S.E. 694 (1937); Smith v. Coleman, 100 Fla. 1707, 132 So. 198 (1931). One of the original principles underlying the basic rule was that the trustee had an obligation to the trust beneficiaries to manage the estate without fault. Trust property should not be impaired or dissipated through wrongdoing of the trustee. This is, of course, a sound principle where the trustee acts outside the scope of his authority. It evolved at a time when the administration of trusts and estates was relatively passive and seldom required active management of a business enterprise. In much of the earlier case law the courts seem to be concerned exclusively with protecting the estate and the beneficiaries from the acts of reckless and improvident fiduciaries. Parmenter v. Barstow, 22 R.I. 245, 47 A. 365 (1900); Birdsong v. Jones, 222 Mo.App. 768, 8 S.W.2d 98 (1928). Little thought seems to have been given to the plight of the tort victim for harms done to him by the operation of a business enterprise. Where the trustee's wrongful acts or omissions occur within the general scope of his authority to manage trust assets', and more particularly when the trustee himself has no appreciable assets, the impact of the traditional rule has been perceived as unjust. For this reason the courts have sought mechanisms, described above, by which the claimants in these circumstances could ultimately reach the assets of the estate. Many of the resulting decisions represent only a partial solution to the problem. Circuity of action is still often required, suit being filed first against the trustee, and only when collection against the trustee has been exhausted and proved futile is enforcement allowed against the estate directly. Kirchner v. Muller, supra; Schmidt v. Kellner, 307 Ill. 331, 138 N.E. 604 (1923). Even that procedure assumes that the trustee has a right to be exonerated out of the estate for the liability he has incurred, which is not always the case even when the trustee's tort was committed within the scope of his authority. Reimbursement may be denied to the trustee when he is personally at fault. A strained, and we think erroneous, approach to the whole problem is exemplified in such cases as Fetting v. Winch, 54 Or. 600, 104 P. 722 (1909). There the executor was in possession of a building which was an asset of the estate, but he was not actively managing it. A suit was brought for death caused by an elevator accident attributable to the negligence of one of the building's janitors, employed by the executor. The court held that the execute? could not be found liable individually, as he had not been personally negligent. Neither could the estate be held liable because, not being a legal person, it was incapable of committing a tort. The court refused to impose respondeat superior liability upon the executor because it felt that the doctrine should not be applied in an instance where the executor derived no profit or personal advantage from the enterprise. In other words, the plaintiff would have no avenue of recovery against the business enterprise conducted by means of the building, no matter how clear his cause of action. The traditional rule and its exceptions have been criticized by recognized scholars and jurists as being inadequate and unfair to the tort creditor. Dean, later Chief Justice, Harlan Fiske Stone pointed out fifty years ago in a salient law review article that the traditional rule was premised upon theories which were untenable. The trustee's right to indemnity should not be the measure of the plaintiff's rights against the assets of the trust, for this leads to uneven results based solely upon the criterion of whether the trustee was or was not personally at fault. The true reason for reaching the assets of the estate should be the policy of casting the economic loss resulting from the trustee's tort upon the estate, rather than upon the tort victim. This would bring the law of trust liability into harmony with the modern doctrine that an economic enterprise should bear the burden of the losses caused by it, including actionable personal injuries which result from its operations. H. Stone, op. tit., 542-545. To the same effect are the penetrating analyses and conclusions found in C. Fulda & W. Pond, "Tort Liability of Trust Estates," 41 Colum.L.Rev. 1332 (1941). In 1937 the Commissioners on Uniform State Laws proffered one solution to the problem in the Uniform Trusts Act. Section 14 of that act provides that the trustee may be sued in his representative capacity and collection may be had directly from the trust assets if "the tort was a common incident of the kind of business activity in which the trustee or his predecessor was properly engaged for the trust." This provision has been adopted in several states. U.L.A., Uniform Trusts Act (1957). But it is not necessary that a statute be enacted in order to bring this standard into being. The basic rule was the product of common law decision. It can be altered in the same manner. One of the current reasons advanced for perpetuating the traditional rule is that if the tort claimant is allowed to sue the trustee in his representative capacity, the beneficiaries may not be adequately represented. That is, a conflict can exist between the trustee as an individual and the trustee in his official capacity, for often he will be named a party defendant in both those capacities. Johnston v. Long, 30 Cal. 2d 54, 181 P.2d 645 (1947). But this problem can be minimized by the appointment of a special representative to protect the interests of the estate and beneficiaries when such a conflict between the estate and the fiduciary appears. In re Estate of Gregory, 487 P.2d 59, 63 (Alaska 1971). Other courts have held that the trustee may be sued in his representative capacity in cases such as the one before us. Miller v. Smythe, 92 Ga. 154, 18 S.E. 46 (1893); Smith v. Coleman, 100 Fla. 1707, 132 So. 198 (1931); Carey v. Squire, 63 Ohio App. 476, 27 N.E.2d 175 (1939). We are convinced this is the right result. It should be recognized that in respect to tort liability a trustee acting within the general scope of his authority can subject the estate to liability, in the same manner as could an agent acting on behalf of an ordinary principal. That the estate lacks legal personality is true. But that factor should not be a roadblock to achieving realistic justice. See commentary, Restatement 2d, Trusts, § 271A, comment a.-c. at 23. We hold that an administrator, executor, or trustee may be sued in his representative capacity, and collection may be had from the trust assets, for a tort committed in the course of administration, if it is determined by the court that the tort was a common incident of the kind of business activity in which the administrator, executor, or trustee was properly engaged on behalf of the estate. It follows that appellant's action against appellee was proper. Because we have found that there can be an action against the administrator in his representative capacity, we must now consider whether the superior court has the power to set aside an order discharging the administrator. While the dec-tee on final account is evidence as to the correctness of the accounting, the statute describing the decree on final account does not state that it is conclusive on this issue. In the instant case appellant seeks to have the order set aside because her tort claim was never adjudicated in the probate proceedings, and therefore asserts that this mistake should provide a basis for setting aside the order. The record shows that appellant did not receive notice of the decree of discharge until several days after it was an accomplished fact, so her only recourse was the attempt to have the decree set aside. A final order of a probate court is only effective as to matters that have been adjudicated; a final accounting may be set aside in order to adjudicate an unsettled portion of the administration of the estate. In re Matheson's Estate, 7 Alaska 322, 327-329 (1925); National Surety Co. v. Matheson's Estate, 7 Alaska 582 (1927); Beardsley v. Hall, 291 Mass. 411, 197 N.E. 35, 37 (1935). An action for damages in tort represents a claim against the estate, and the service of summons on the executor was a sufficient exhibition of the claim. Final settlement of the estate must await settlement of the tort claim. In re Collignon's Estate, 333 Ill.App. 562, 77 N.E.2d 841 (1948). Appellant has a right to present her claim for injuries against the estate in a court of law. It is not necessary for the appellant to show fraud, mismanagement or mistake on the part of the administrator because her claim was not included in the final account. Until the appellant's claim has been adjudicated it is clear that the estate has not been completely settled. In re Miles' Estate, 262 N.C. 647, 138 S.E.2d 487, 491 (1964); Powell v. Buchanan, 245 Miss. 4, 147 So.2d 110, 112 (1962); Sub lusky v. Fudge, 121 Ga.App. 674, 175 S.E.2d 100, 102 (1970). While in some of the above-cited cases there was an insurance policy covering the outstanding tort claim, with the policy shown as an asset of the estate, there is no reason why the rulé should be altered merely because the decedent or the estate was not insured against the risk asserted in the tort action. In his memorandum in the superior court in opposition to appellant's motion to set aside the decree of discharge, ap-pellee relied on the fact that the assets of the estate had been distributed prior to the time that appellant served the administrator with summons and complaint in her tort action. This factor should not bar the action of appellant. Appellant's claim was made known to the executor within the time allowed for presenting a claim under AS 13.30.260. Appellant was also in compliance with AS 13.20.390 because the suit was filed before the discharge of the administrator. Satisfaction of a judgment against the estate after the distribution has become an accomplished fact may present serious problems for the appellant should she prevail in her action. However, we hold, as a matter of law, that she can pursue her remedy against the estate. We must reverse the denial of appellant's motion to set aside the decree of discharge and to reinstate the administrator until the tort action can be concluded, and we must remand for proceedings consistent with this opinion. Reversed. . "AS 13.30.730 Decree on final account. Upon the hearing the court shall give a decree allowing or disallowing the final account, either in whole or in part, as may be just and right. The decree in any otlier action or proceeding between the parties interested or their representatives is primary evidence of the correctness of the account as thereby allowed and settled." . "AS 13.20.390 Time within which actions brought. An action may be commenced against an executor or administrator at any time after the expiration of six months from the granting of letters testamentary or of administration, and until the final settlement of the estate and discharge of the executor or administrator from the trust, and not otherwise."'

10563326

STATE of Alaska, Appellant, v. Freddie E. ARMANTROUT, Appellee

State v. Armantrout

1971-04-05

No. 1303

696

698

483 P.2d 696

483

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:26.771103+00:00

CAP

Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, JJ-

STATE of Alaska, Appellant, v. Freddie E. ARMANTROUT, Appellee.

STATE of Alaska, Appellant, v. Freddie E. ARMANTROUT, Appellee. No. 1303. Supreme Court of Alaska. April 5, 1971. G. Kent Edwards, Atty. Gen., Juneau, Harold W. Tobey, Dist. Atty., Robert L. Eastaugh, Asst. Dist. Atty., Anchorage, for appellant. Marshall K. Coryell, Special Asst. Public Defender, Anchorage, for appellee. Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, JJ-

1222

7493

PER CURIAM. This is a sentence appeal. The State of Alaska appeals to this court pursuant to AS 12.55.120(b) on the ground that the sentence imposed by the trial court is too lenient. . The appellee, Freddie E. Armantrout, was convicted of assault with a dangerous weapon in violation of AS 11.15.220 after a trial by jury. He was sentenced on April 27, 1970, to the custody of the Commissioner of the Department of Health and Welfare for three years. The sentence was suspended and probation was ordered during the period of the sentence. There are two conflicting accounts of the incident which led to Armantrout's arrest and conviction. The state contends that Armantrout and a friend, George Flynn, picked up the victim George Lee Brooks, Jr., who was extremely intoxicated, by telling Brooks they were driving out to a dance in Palmer. Armantrout and Flynn purportedly intended to rob Brooks when they picked him up. According to the State, Brooks was driven to a secluded spot just off the Palmer Highway between Eagle River and Palmer; during the trip from Anchorage, Brooks passed out in Armantrout's car. When Armantrout and Flynn reached the chosen spot, they supposedly proceeded to rob their victim, at which time he awakened from his stupor, realized what was happening, and attempted to run. It is the State's theory that when Brooks tried to escape, Armantrout struck him on the head with a tire iron, thereby rendering him unconscious. The State argues that Ar-mantrout and Flynn consummated their robbery, and left their victim for dead. A somewhat different story of the crime is related by Armantrout. According to his version, he was drinking in Anchorage on the night in question with a group comprised of, among others, Flynn and George Lee Brooks, Jr. As the evening wore on, the size of the group dwindled until there were three people left, Armantrout, Brooks, and Flynn. All were quite inebriated, but decided, nonetheless, to drive to a dance in Palmer. Armantrout drove his two companions toward their destination in his car. The car had been recently purchased and Armantrout was very proud of it. In the course of the journey Brooks allegedly passed out in the hack seat of the car and vomited. Armantrout states that he pulled the car off of the road and removed Brooks from the back seat, a process which apparently woke Brooks up. He then ordered Brooks to clean up his mess; Brooks adamantly refused, and cursed Armantrout. It is Armantrout's claim that he became enraged at Brooks' conduct; the two men began fighting. During the course of the altercation, Ar-mantrout picked up a tire iron and hit Brooks. After he struck Brooks and saw the damage which his blow had caused, he panicked, thinking that Brooks was dead. Armantrout and Flynn proceeded to remove Brooks' watch and wallet in an attempt to prevent identification of their victim, and then fled the scene. While the parties differ as to the precise nature of the events leading to the attack in question, it is conceded that Armantrout did strike Brooks with a tire iron. There is no dispute on the extent of the damage to Brooks; he suffered three broken facial bones and a wound which required 27 stitches. The record reveals that Armantrout is 23 years old and a sergeant in the United States Army. He attended school through the ninth grade. While in the Army, he has earned a high school equivalency diploma. Armantrout has a limited conviction record. He was convicted of the felony of passing an insufficient funds check in' his home town of Garden City, Kansas, and sentenced to thirty days in jail. He was convicted in Anchorage for failing to pay a traffic ticket which had been issued for speeding and driving without a license. Prior to sentencing, letters of recommendation from Armantrout's military superiors were submitted to the trial court. In substance, they state that he is a model soldier with excellent leadership abilities. At sentencing, the prosecutor recommended a three-year period of incarceration. The probation officer who prepared the pre-sentence report recommended that the appellee be denied probation and that he be sentenced in relation to the District Attorney's recommendation. The defense counsel, on the other hand, argued' for stringent probation. The trial judge rejected the recommendations of the prosecutor and the probation officer and imposed a suspended sentence with a three-year period of probation. In arriving at his sentence, the judge gave considerable weight to Armantrout's version of his attack on Mr. Brooks. He found that the removal of Mr. Brooks' watch and wallet was not made with intent to steal but rather with intent to remove his identification. The judge expressed concern over the brutality with which the victim had been attacked, and admonished Armantrout to place greater value on human life. However, in passing sentence, the judge seems to have given controlling weight to recommendations from Armantrout's military superiors, and to Armantrout's own assurances that he would, in the future, control his temper. We conclude that the sentence imposed by the trial judge was too lenient. We feel that some incarceration should have been imposed. This sentence failed to sufficiently reflect the nature and extent of the brutal attack upon the victim. It is no excuse that Armantrout removed the victim's watch and wallet for the purpose of preventing identification. No effort was made by Armantrout to get help for his victim. Rather, the victim was left for dead in an isolated area. Armantrout and his companion threw away their bloody shirts and washed the victim's blood from the car. The victim suffered serious injuries as a result of Armantrout's brutal attack. Death could easily have resulted. Under the circumstances, the trial judge gave too much weight to the assurances of Armantrout and his military superiors, and too little weight to the nature and consequences of the violent episode which led to Armantrout's conviction. We believe, as we stated in State v. Chaney, that in this case incarceration would bring home to Armantrout "the seriousness of his dangerously unlawful conduct, would reaffirm society's condemnation of [assault with dangerous weapons], and would provide the Division of Corrections of the State of Alaska with the opportunity of determining whether appellee required any special treatment prior to his return to society." We also note that the trial judge made no provision for continuation and enforcement of Armantrout's probation in the event he was transferred by the United States Army from Alaska. Unless probation is accompanied by continued supervision, it is meaningless insofar as the rehabilitation of an offender is concerned. The law of Alaska views assaults with dangerous weapons as among the most serious crimes, and imposes a maximum sentence of ten years in prison. A sentence of probation under the facts of this case does not implement the State's public policy. We, therefore, express our disapproval of this sentence. . 477 P.2d 441, 447 (Alaska 1970). . AS 11.15.220.

10569467

Arthur FRESNEDA, Appellant, v. STATE of Alaska, Appellee

Fresneda v. State

1971-03-31

No. 1287

1011

1019

483 P.2d 1011

483

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:26.771103+00:00

CAP

Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, JJ-

Arthur FRESNEDA, Appellant, v. STATE of Alaska, Appellee.

Arthur FRESNEDA, Appellant, v. STATE of Alaska, Appellee. No. 1287. Supreme Court of Alaska. March 31, 1971. W. G. Ruddy, Juneau, for appellant. G. Kent Edwards, Atty. Gen., Gail Fraties, Dist. Atty., Joseph D. Balfe, Asst. Dist. Atty., Juneau, for appellee. Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, JJ-

4607

27405

OPINION ERWIN, Justice. In the case of Fresneda v. State, 458 P. 2d 134 (Alaska 1969), this court reversed appellant's first conviction for possession and sale of marijuana. He was tried again December 29-31, 1969, and again convicted, from which conviction he brings this appeal. Fresneda was found guilty on one count of possession of marijuana and another of sale of marijuana to a minor, a second possession count having been dismissed by the state during the trial. The state's principal witness was Mrs. Sherry Meachem Freheit. At the time of the offense, in December, 1967, she was 16 years old and already married and the mother of a young baby. Since that time she has been divorced, remarried to another man, divorced again and remarried to the same man, and is apparently involved in still another suit for divorce. Both the girl and her mother were well acquainted with Sgt. John Cunningham of the Juneau police, a detective whose duties included working with juveniles. They knew Sgt. Cunningham as a family friend, from whom they sometimes sought advice on family problems. In November of 1967, Sherry Meachem came to Sgt. Cunningham with a problem concerning her then husband, William Meachem, who at that time was in the Army serving in Vietnam. She was concerned over the fact that her husband had become a heavy user of marijuana, and apparently intended to smuggle a large quantity of the drug back with him when he returned to Juneau. Because of her concern with her husband's use of the drug in Vietnam and his apparent plans to continue his involvement with the drug traffic upon his return, she agreed to aid the police in apprehending certain of her husband's friends (specifically George Katzeek and James Hastings) whom she believed to be involved with the marijuana traffic in Juneau. She undertook to "make a buy" for the police, which she did. Although Arthur Fresneda was not one of the persons mentioned in Sherry Meachem's original conversation with Sgt. Cunningham, he did become involved in the subsequent sale, thus precipitating the case at bar. Mrs. Meachem approached James Hastings to see if there was any way that she could buy some marijuana from him or from George Katzeek. She was informed by Hastings that he did not have any marijuana at that time and that he was not as sociating any further with George Katzeek, but that he expected a shipment of marijuana in the future. On December 3, 1967, Hastings, together with Fresneda, knocked on the door of the Meachem apartment at the Gold Lodge. At that time there were present three other people besides Mrs. Meachem: Rodney Pieren, Marcia Sims, and another person who is unidentified in the record. At that time, arrangements were made for Mrs. Meachem to meet with Hastings and Fresneda at the bowling alley at approximately 7:00 p. m. that evening. Mrs. Meachem immediately telephoned Sgt. Cunningham of the Juneau Police Department, informed him of the arrangements and obtained from him money to make the purchase. She went to the bowling alley at approximately 7:00 p. m. and was present there when Hastings and Fresneda arrived. They proceeded outside the bowling alley where Mrs. Meachem received a small pill box full of marijuana and made payment of $10 to Hastings. The package was handed by Fresneda to Hastings, who handed it to Mrs. Meachem. Mrs. Meachem then immediately took the package to Sgt. Cunningham at the Capitol Theater as had previously been agreed upon. James Hastings testified in substantial conformity to the events noted by Sherry Meachem. He testified of going to the Meachem apartment with Fresneda and confirmed the conversation about arrangements for the sale at a later time in the day. Hastings testified that he was also present at the actual sale near the bowling alley and observed the exchange of money and the marijuana between Mrs. Meachem and appellant. Rodney Pieren testified at the first trial but was absent at the second trial and his testimony was replayed in this case. Basically, Pieren testified as to the events at the apartment on December 3, 1967, including identification of the voices of Fresneda and Hastings. Pieren further confirmed the content of the conversation as testified to by Mrs. Meachem and Hastings. Sgt. Cunningham and Police Chief Patrick Wellington of the Juneau Police Department testified as to their activities on the day in question and Sgt. Cunningham confirmed the activities and statements by Sherry Meachem about this particular matter, as well as the arrangements that were made. The defendant did not take the stand himself, nor did he present evidence in his defense in this particular case, except concerning the reputation in the community for veracity of Sherry Meachem and Rodney Pieren. A verdict of guilty was returned against him as to the two counts remaining after the dismissal of the second count by the State of Alaska. In this appeal to the Supreme Court, appellant has raised three specific issues as error: (1) The trial court erred in failing to give an informer instruction concerning the testimony of Sherry Meachem; (2) The trial court erred in admitting into evidence the testimony of Rodney Pieren; and (3) The trial court erred in refusing to allow appellant to waive cross-examination of the witness Pieren at the second trial by excluding that portion of the tape of Pieren's cross-examination which was taken at the first trial. Each of these matters will be considered in turn. A. INFORMER INSTRUCTION At the end of the trial, the appellant requested the following instruction regarding the testimony of Sherry Meachem: The testimony of an informer, or any witness whose self-interest or attitude is shown to be such as might tend to prompt testimony unfavorable to the accused, should always be considered with caution and weighed with great care. The trial court refused to give the requested instruction for the reason that the general instruction as to the credibility of a witness would be more appropriate under the facts and circumstances of this particular case. The "informer instruction" is relatively new to the law. The one proposed by ap pellant's counsel in the instant case is the one normally used by the federal courts, and is taken verbatim from Mathes & De-vitt, Federal Jury Practice and Instructions § 9.02 (1965). The first federal case to require an informer instruction seems to have been Fletcher v. United States. In commenting upon the use of a paid informer to establish a narcotics violation, the court stated: In the circumstances we have detailed we think it apparent that appellant was entitled of right to have the jury cautioned. Granting that the credibility of the testimony of a paid informer is for the jury to decide, it nevertheless follows that where the entire case depends upon his testimony, the jury should be instructed to scrutinize it closely for the purpose of determining whether it is colored in such a way as to place guilt upon a defendant in furtherance of the witness's own interest. Here, admittedly, the usefulness of the witness — and for which he received payment from the agent— depended wholly upon his ability to make out a case. No other motive than his own advantage impelled in all that he did. The rule in this jurisdiction for a quarter of a century has been to require that a jury be warned in the case of evidence given by a detective engaged in the business of spying for hire. The duty is more impelling where, as here, there is not a jot or tittle of other evidence and the criminal record of the witness is shown. The District of Columbia cases cited in support of the 25-year history referred to in the opinion did not support the court's statement. Two of them were not informer but accomplice cases; the other one actually involved an "informer" or "detective spying for hire" in a divorce case. The general use of informer instructions in the federal courts seems to date from Justice Jackson's dictum in On Lee v. United States: The use of informers, accessories, accomplices, false friends, or any of the other betrayals which are 'dirty business' may raise serious questions of credibility. To the extent that they do, a defendant is entitled to broad latitude to probe credibility by cross-examination and to have the issues submitted to the jury with careful instructions. This passage is usually cited in support of the requirement of such instructions. The original basis for the informer instructions seems to have been the fact that an informer is normally an interested witness; he is usually either paid, or hoping for lenient treatment of his own crimes, or both. In this connection, it is interesting to note that the original version of the above-cited Mathes & Devitt instruction read as follows: INTERESTED WITNESS All evidence of a witness whose self-interest or attitude is shown to' be such as might tend to prompt testimony unfavorable to the accused, should be considered with caution and weighed with great care. It was only with the publication of Mathes & Devitt in 1965 that the word "informer" began to be specifically mentioned. The latest published version of the same instruction reads as follows: The testimony of an, informer who provides evidence against a defendant for pay, or for immunity from punishment, or for personal advantage or vindication, must be examined and weighed by the jury with greater care than the testimony of an ordinary witness. The jury must determine whether the informer's testimony has been affected by interest, or by prejudice against the defendant. A review of state authorities does not reveal any case law paralleling the development of federal law on this particular instruction. The reason behind the failure of state courts to give such instructions appears to be based on the belief that the credibility of all witnesses should be judged by the same standard wherever possible, except in those few cases where either a long tradition of judicial decision or separate legislative enactment recognizes the possible unreliability of certain witnesses. The appellant urges that the requirement of a similar instruction in cases where testimony of an accomplice is presented provides a clear analogy to the case at bar. However, the rule in regard to accomplice testimony in this state has a statutory background as does the rule in Oregon from which the Alaska statute was taken. While the federal courts do not have an absolute statutory prohibition concerning conviction on the uncorroborated testimony of an accomplice, they do require cautionary instructions on credibility of accomplices, as noted in § 12.04 of Devitt & Bla'ckmar, Federal Jury Practice and Instructions (1970): An accomplice is one who unites with another person in the commission of a crime, voluntarily and with common intent. An accomplice does not become incompetent as a witness because of participation in the crime charged. On the contrary, the testimony of an accomplice alone, if believed by the jury, may be of sufficient weight to sustain a verdict of guilty, even though not corroborated or supported by other evidence. However, the jury should keep in mind that such testimony is always to be received with caution and weighed with great care. You should never convict a defendant upon the unsupported testimony of an alleged accomplice, unless you believe that unsupported testimony beyond a reasonable doubt. The background of the instruction in each case is a recognition that the testimony of accomplices and certain informers is subject to distrust because of their interest in the outcome of the proceedings. This interest may cause them to weight their testimony and the jury should be informed thereof and should be instructed to use a different standard in viewing their testimony than that applied to the testimony of other witnesses. It would appear appropriate because of the known unreliability of certain types of accomplice and informer testimony to adopt in Alaska the requirement that .the jury be instructed henceforth from the date of this opinion that the testimony of an informer who provides evidence against a defendant for pay, or for immunity from punishment, or for personal advantage or vindication, must be examined and weighed by the jury with greater care than the testimony of an ordinary witness. However, because the law recognizes that some witnesses, such as the accomplice and interested informer, should in some circumstances be the subject of cautionary instructions does not mean that every witness who comes forward to aid in the apprehension of those accused of criminal activity should be singled out for such treatment. It would be a sad commentary on our society to say that when police officers and public-spirited citizens are called to testify in court under oath in criminal cases, their testimony must be viewed with suspicion. This would be tantamount to saying all such witnesses are inherently untrustworthy. At a time when the fullest participation by all segments of society is necessary for the survival of our system of government, we would be paradoxically condemning such participation. This we decline to do. An example of this situation is the case at bar. Sherry Meachem was not a professional informer. She was not paid; the only money provided her by the police was that with which she actually bought the drug. She was under no criminal charges, nor had she ever used marijuana herself. While her concern over her husband's use of drugs might motivate her to attempt to aid in the apprehension and conviction of those who had either supplied him in the past or might supply him in the future, it would not motivate her to lie, or to try to convict the wrong man. While the credibility of Sherry Meachem was a matter for the jury to determine under the facts and the instructions of the court — as was extensively argued by counsel for appellant in closing argument — there appears to be no reason to single out her testimony for a judicial admonition for caution. If one had been given it undoubtedly would have had a significant effect on the jury. Such an instruction would undoubtedly chill future aid to be given by private citizens if the reward for their concern was an instruction by the court that they should be distrusted. It was thus not error for the trial court to refuse to give the requested informer instruction under the facts of this case. B. USE OF TESTIMONY FROM FORMER TRIAL Appellant contends that the state did not show sufficient "due diligence" in its attempt to find and obtain the presence of the witness Pieren, so that his former testimony should not have been admitted at all. The effort to find Pieren which is disclosed by the testimony of the prosecution's witnesses seems less than diligent. Although the District Attorney's secretary made a few limited efforts to locate Pieren earlier in the month before the trial, no systematic search was begun until about the 22nd of December, 1969, with trial scheduled for the 29th. At that time, the chief of the Juneau police checked police records there and in Anchorage for any trace of Pieren, and found nothing. No subpoena for Pieren was ever issued. Michael Biggs, court attache, was assigned to look for Pieren on the 27th. After a few hours on the telephone talking to various people, Biggs turned up several persons who said that they believed that Pieren was then in the Army. He made an attempt to verify this through the Adjutant General's office, Department of Military Affairs, but received no answer and apparently did not follow up on his request. On the date of the trial Mrs. Jones, the prosecutor's secretary, was informed by Major Holmeson of the Army National Guard in Anchorage that Pieren had enlisted on May 16, 1969, and had been sent to Ft. Lewis, Washington, for his eight weeks basic training. Major Holmeson had no knowledge of where he had gone from there, but suggested that he might be in Vietnam. Thus, Pieren's actual physical location was never determined prior to trial. The trial court, apparently assuming that the man was probably in Vietnam, ruled that sufficient diligence had been shown and admitted the former testimony. In McBride v. State, this court held that, although former testimony is inadmissible in such situations unless the state has exercised due diligence in attempting to find the witness, "[t]he question of diligence or lack of it on the part of the state in attempting to find the witness is in the first instance a question of fact for the trial judge to decide, and we shall reverse his decision only if there has been a clear abuse of discretion." The cases decided in other states under this rule seem to indicate that the state is held to a higher standard where it reports that it cannot find the witness, as compared with situations in which the state locates him, but he is found outside its jurisdiction. A typical statement of the standard in the "can't find" cases is found in People v. Redston : The word "diligence" connotes perserver-ing application, untiring efforts in good earnest. There must be evidence of a substantial character to support the conclusion of due diligence. [What is required is] a thorough, painstaking and systematic attempt to locate the witnesses. In the cases in which the witness is located but is outside the state, the traditional rule required no evidence of an attempt to bring him back. It was held in a state which has enacted the Uniform Act to Secure the Attendance of Witnesses From Without the State in Criminal Proceedings that the prosecution need not make use of the Act but could simply show that the witness was outside the state's jurisdiction. However, this is no longer the law. In Barber v. Page, the United States Supreme Court held that, where a witness was incarcerated in a federal prison outside the state, the state could not use his preliminary hearing testimony at the petitioner's trial without making a good faith effort through the federal authorities to bring him back to testify. In this case we adopt the standards of due diligence announced in Barber v. Page, and we modify our holding in McBride v. State accordingly by finding that these standards must be applied to the facts of the case at bar. A review of the facts herein makes it clear that the efforts to locate and return Pieren were not sufficient to be designated as "due diligence" and that the trial court was in error in holding that the state had met the burden required. We, however, hold that the error in admission of the Pieren testimony was harmless error for we conclude that the jury was not substantially influenced or swayed in its verdict by the introduction of the testimony. Love v. State, 457 P.2d 622, 631 (Alaska 1970). The testimony of Sherry Meachem and James Hastings stands unopposed as to the sale of marijuana to her by appellant. Sherry Meachem testified that Arthur Fresneda came to her apartment with Hastings to make arrangements for the sale. She stated that immediately thereafter she phoned Sgt. Cunningham, who gave her money to make the purchase and gave her instructions concerning delivery of the marijuana to him after the sale. Sherry Meachem testified she consummated the sale transaction with Fresneda for $10 near the local bowling alley some hours later in the presence of James Hastings, and immediately delivered the marijuana to Sgt. Cunningham. James Hastings confirmed the time sequence as to the events of the day. He testified that he was present when the arrangements for the sale were made and that later in the day he also observed the actual exchange of the marijuana for money between Sherry Meachem and Fres-neda. Sgt. Cunningham testified as to his part in the transaction and generally confirmed the time sequence and instructions he gave to Sherry Meachem. The defendant elected, as was his right, not to take the stand, but he did submit the testimony of four witnesses who testified that the reputation of Pieren and Sherry Meachem for truth and veracity in the community was bad. While the argument is advanced that any testimony which supported any statement made by Sherry Meachem would affect the outcome of the trial, this is far too restrictive a view of the harmful error doctrine. It appears unlikely that testimony confirming the conversations and arrangements made several hours prior to the sale would substantially affect the decision of the jury as to whether the appellant was guilty of the sale in view of the direct testimony in this case concerning both such arrangements and the actual sale. Our decision that introduction of the testimony of Pieren was at most harmless error makes it unnecessary to consider the final point urged by appellant that the trial court improperly replayed the cross-examination of Pieren at the second trial. Since the entire testimony was at most harmless error, the admission of the cross-examination was also harmless error. The judgment and conviction of the Superior Court is hereby affirmed. . The witness remarried after the first trial and will be referred to as Sherry Meachem. . 81 U.S.App.D.C. 306, 158 F.2d 321 (1946). . Id. at 322. . Egan v. United States, 52 App.D.O. 384, 287 F. 958 (1923) ; Freed v. United States, 49 App.D.O. 392, 266 F. 1012 (1920). . Allen v. Allen, 52 App.D.O. 228, 285 F. 962 (1923). . 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952). . Id. at 757, 72 S.Ct. at 973-974, 96 L.Ed. at 1277. . E. g., United States v. Griffin, 382 F.2d 823, 827-829 (6th Cir. 1967). . W. Mathes, Jury Instructions and Forms for Federal Criminal Cases, 27 F.R.D. 39, 68 (1961) (citing On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952), and Fletcher v. United States, 81 U.S.App.D.C. 306, 158 F.2d 321 (1946)). . W. Mattes & E, Devitt, Federal Jury , Practice and Instructions § 9.02 (1965). . E. Devitt & C. Blackmar, Federal Jury Practice and Instructions § 12.02 (1970). . Of. Batiese v. State, 425 P.2d 606, 609 (Alaska 1967). . AS 12.45.020. . Ore.Comp.Laws Ann. § 2-1001(4) (1940). . For a review of the history of the "accomplice" instruction in the federal courts, see McMillen v. United States, 386 F.2d 29 (1st Cir. 1967), cert. denied 390 U.S. 1031, 88 S.Ot. 1424, 20 L.Ed.2d 288 (1968). . Busli v. United States, 126 U.S.App. D.C. 174, 375 F.2d 602, 604 (1967). . This does not mean the witness cannot be subjected to rigorous cross-examination and corresponding closing argument as to the credibility, as was done in this case. . Instruction No. 18 provided in part as follows: You, as jurors, are the sole judges of the credibility of the witnesses and the weight their testimony deserves. A witness is presumed to speak the truth. But this presumption may be outweighed by the manner in which the witness testifies, by the character of the testimony given, or by contradictory evidence. You should carefully scrutinize the testimony given, the circumstances under which each witness has testified, and every matter in evidence which tends to indicate whether the witness is worthy of belief. Consider each witness's intelligence, motive and state of mind, and demeanor and manner while on the stand, and his or her character as shown by the evidence. Consider also any relation each witness may bear to either side of the case; the manner in which each witness might be affected by the verdict; and the extent to which, if at all, each witness is either supported or contradicted by other evidence. . 368 P.2d 925, 927 (Alaska 1962). . Compare this with the requirement of diligence in civil cases as set forth in Otis Elevator Co. v. McLaney, 406 P.2d 7, 10-11 (Alaska 1965). . 139 Cal.App.2d 485, 293 P.2d 880, 886 (1956). . See, e. g., People v. Green, 152 Cal.App. 2d 886, 313 P.2d 955, 957-958 (1957); People v. Horace, 127 Cal.App.2d 366, 273 P.2d 923, 925 (1954). . State v. Martin, 73 Wash.2d 616, 440 P.2d 429, 434-435 (1968). . 390 U.S. 719, 88 S.Ot. 1318, 20 I,.Ed.2d 255 (196S). . While we recognize that there is a difference between testimony elicited at preliminary hearings and testimony introduced at trial in terms of completeness and depth of cross-examination, we find that this difference should not be the basis for the requirement of a different standard of due diligence in each case. While the efforts of the state to locate a missing witness can logically be judged in light of the advance knowledge it has of the date of trial, we find it inappropriate to encourage any but the best efforts to locate such witnesses in view of the qualitative differences between live and recorded testimony. Compare the following federal cases: In Evans v. Dutton, 400 F.2d 826, 830 (5th Cir. 1968), rev'd on other grounds, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970) there is dictum to the effect that Barber held inadmissible testimony taken at a prior trial. This is probably a mistake on the part of the court. In a few federal cases it has been held that testimony taken at a prior trial was admissible under Barber standards. Mason v. United States, 408 F.2d 903, 906 (10th Cir. 1969) ; O'Connor v. United States, 137 U.S.App.D.C. 76, 420 F.2d 644 (1969). In Lyon v. United States, 413 F.2d 186, 187-189 (5th Cir. 1969), it was held that, in order to make use of testimony obtained at a prior trial (mistrial) the government would have had to show a good faith effort to obtain the missing witness under Barber, except for the fact that defense counsel specifically refused to contest the point at the second trial. In the case of United States v. Mobley, 421 F.2d 345 (5th Oir. 1970), the witness, although produced by the state at the second trial, claimed his Fifth Amendment privilege and refused to testify. The court held that Barber did not prevent the use of his former testimony. In Britton v. Maryland, 298 F.Supp. 641 (D.Md.1969), the court ruled that Barber precluded the use of testimony from a former trial where no effort had been made by the State of Maryland to retrieve the missing witness from Ft. Sill, Oklahoma, where he was stationed in the Army. The court, however, was careful to point out that the testimony of the missing witness, who at the time of the first trial had been only 15 years old, was the only evidence tending to connect Britton with the crime, and that therefore his demeanor and credibility were of extreme importance. . United States Army Reg. 27-45 provides a method for obtaining the return of Army personnel to testify in civil and criminal cases. . The testimony of two of these witnesses, Oliver Marshall and Denny Marchant, was ordered stricken by the trial court after they testified. . It is universally accepted in the common law that a party "against whom a part of an utterance has been put in, may, in his turn, complement it by putting in the remainder, in order to secure for the tribunal a complete understanding of the total tenor and effect of the utterance." VII J. Wigmore, Evidence, n. 26, § 2113 at 523. It would appear the converse would also be true.

10556914

STATE of Alaska, Appellant, v. Susan H. ABBOTT, Guardian of Brenda Vogt, a minor, Appellee; Susan H. ABBOTT, Guardian of Brenda Vogt, a minor, Cross-Appellant, v. STATE of Alaska, Cross-Appellee

State v. Abbott

1972-06-16

Nos. 1463, 1467

712

731

498 P.2d 712

498

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:36.285560+00:00

CAP

Before BONEY, C. J., and RABINO-WITZ, CONNOR and ERWIN, JJ.

STATE of Alaska, Appellant, v. Susan H. ABBOTT, Guardian of Brenda Vogt, a minor, Appellee. Susan H. ABBOTT, Guardian of Brenda Vogt, a minor, Cross-Appellant, v. STATE of Alaska, Cross-Appellee.

STATE of Alaska, Appellant, v. Susan H. ABBOTT, Guardian of Brenda Vogt, a minor, Appellee. Susan H. ABBOTT, Guardian of Brenda Vogt, a minor, Cross-Appellant, v. STATE of Alaska, Cross-Appellee. Nos. 1463, 1467. Supreme Court of Alaska. June 16, 1972. Charles Hagans and Keith E. Brown, Sanford M. Gibbs, Asst. Atty. Gen., Anchorage, for State of Alaska. William H. Fuld and Bernard P. Kelly, of Kay, Miller, Libbey, Kelly, Christie & Fuld, Anchorage, for Susan H. Abbott. Before BONEY, C. J., and RABINO-WITZ, CONNOR and ERWIN, JJ.

10569

64750

OPINION ERWIN, Justice. Cfn Sunday, January 22, 1967, Brenda Vogt, then 13½ years old, was a passenger in the front seat of a 1967 Pontiac driven by her mother, Delores Vogt, in a southerly direction on the Seward Highway. While attempting to negotiate the curve near Girdwood at Mile 90.8 of the highway, one-half mile north of the Alyeska turnoff, Mrs. Vogt lost control of her vehicle which skidded across the center line and collided with an Army National Guard truck that was part of a convoy headed north towards Anchorage. Brenda Vogt was thrown into and partly through the windshield. She remained unconscious for a period of three weeks and suffered extensive permanent injuries, including severe brain damage. Brenda Vogt, acting through her guardian, brought suit against the state under AS 09.50.250 alleging that the state had been negligent in its design, construction and maintenance of the road and in failing to post signs warning of the hazardous condition of the curve. Pursuant to AS 09.-50.290 trial was had before a superior court judge sitting without a jury. Although Brenda Vogt settled a separate negligence claim against her mother out of court prior to trial, considerable testimony was offered concerning Mrs. Vogt's operation of the vehicle to determine the cause of the accident. Estimates of her speed by various witnesses ranged from 30 to 50 miles per hour and a number of witnesses stated that the vehicle was moving too fast for the road conditions. The sharp curve in the road where the accident occurred was clearly visible because of the long straight stretch north of it and because the National Guard convoy was stretched out over a considerable distance, thereby tending to outline its shape. Mrs. Vogt had driven over the road a number of times and was generally familiar with it, but apparently had not made the trip in winter. As will appear below, however, Mrs. Vogt's negligence is not determinative of the state's liability to Brenda Vogt. Regarding the condition of the highway, testimony was offered that the road was covered with ice and very slippery, but conflicting evidence was presented as to whether it had been adequately sanded. Several witnesses testified that the ice on the highway was rutted from the state's maintenance procedures and that the rut ting would cause a car to swerve at certain speeds. There was also testimony that the superelevation — the vertical distance between the inside and outside edges of the curve — -undulated through the turn as a result of faulty maintenance. There had been a number of similar accidents at the same curve, and several state troopers testified that they had had trouble negotiating the curve. The state had been given notice of these problems. The state produced evidence that tended to show that it had followed its usual maintenance practices. Brenda Vogt, however, introduced into evidence the state's S.O.P.s (Standard Operating Procedures) for highway maintenance which require the Department of Highways to (1) maintain super-elevations on curves, (2) eliminate ruts prior to freezeups, and (3) work overtime if necessary to keep sharp curves well sanded. Testimony was presented which tended to show that the state had not complied with these S.O.P.s. At the conclusion of the trial the superior court judge filed an opinion setting out his findings of fact and conclusions of law as required by Civil Rule 52(a). The judge found that the curve was "extremely slippery" and that, although the road had probably been sanded on the morning of the accident, "there was very little, if any sand on the traveled portion of the highway immediately after the collision." The judge stated: I find specifically that under the conditions existing with a slick Highway and rutted ice that whatever sanding had been done was not adequate, and that the State of Alaska, through its employees, did not act as reasonable persons would have acted in properly sanding or salting or otherwise doing something with reference to this curve to make it reasonably safe for travel by the general public. In other words, I find that the State of Alaska, through its agents, was negligent at the time and place in question with reference to the maintenance of this particular curve. The judge ruled that the state was not negligent in its design and construction of the curve, and that the failure to post adequate signs warning of the dangerous curve was not a proximate cause of the accident. The judge found that the state had notice of the dangerous conditions at the curve and that its negligence, combined with the concurrent negligence of Mrs. Vogt, proximately caused Brenda Vogt's injuries. I find that the State of Alaska, through its highway maintenance section, for a considerable time prior to the collision here concerned, had full knowledge of the dangerous condition of the particular curve involved. I find that under the circumstances existing, known to the State of Alaska, that the State of Alaska failed to use reasonable and ordinary care in correcting a known hazard and to properly maintain the Highway, for safe travel by the public, at the place involved in the collision here concerned. Accordingly, I find that the State of Alaska was negligent and that such negligence was a proximate cause of the collision which occurred between the Vogt vehicle and the Army National Guard truck. Furthermore, I find that the negligence of the State, as herein outlined, combined with negligence of Delorise [sic] Vogt, proximately caused the collision and the resulting injuries to the girl Brenda Vogt. He concluded that the acts of the state were not within the discretionary function exception to the waiver of sovereign immunity contained in AS 09.50.250. The court held that Brenda was damaged to the extent of $266,000. Since Brenda had previously settled out of court with Mrs. Vogt for $50,000, judgment against the state was entered for $216,000. On appeal the state raises five basic arguments: (1) The determination of v&at constitutes proper winter maintenance of the state's highway system is a "discretionary function" within the meaning of AS 09.50.250 for which the state is not liable. (2) To hold the state liable for injuries resulting from the natural accumulation of ice and snow on the state's highways would impose an excessive burden on the state. (3) The trial judge's finding that the state's negligence was a proximate cause of the accident is clearly erroneous. (4) The trial judge's findings of fact regarding the condition of the traveled portion of the highway are clearly erroneous. (5) The lower court's memorandum opinion does not contain adequate findings of fact under Civil Rule 52(a) as to Delores Vogt's negligence. In addition, Brenda Vogt filed a cross-appeal challenging as inadequate the court's award of damages and attorney's fees. We have concluded that the lower court's decision should be affirmed in all respects except for the award of damages. We vacate that award and remand to enable the trial judge to make further findings of fact so as to comply with Civil Rule 52(a). I The state argues that the determination of what constitutes proper winter maintenance of the state's highway system is a "discretionary function" of the state highway department within the meaning of AS 09.50.250 for which no action will lie. AS 09.50.250 provides in part: A person or corporation having a claim against the state may bring an action against the state in the superior court. However, no action may be brought under this section if the claim (1) . [is] 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. Although there are no Alaska cases interpreting the discretionary function exception to the waiver of sovereign immunity, the critical statutory language is identical to that contained in the Federal Tort Claims Act, 28 U.S.C.A. § 2680(a), and there exists an abundance of relevant federal case law. The doctrine of sovereign immunity, which sprang from the ancient maxim that the King can do no wrong, has been strongly criticized in legal literature and variously described as a "medieval doctrine", "mistaken and unjust" and "an anachronism, without rational basis, [that] has existed only by the force of inertia." Although the Federal Tort Claims Act of 1946, which provides in part that "[t]he United States shall be liable [in tort] in the same manner and to the same extent as a private individual under like circumstances . . .," was heralded as a comprehensive waiver of governmental immunity, the exception for discretionary functions has been read so broadly on occasion, most notably in Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), as to almost reinstate complete immunity. In Dalehite, which arose out of the Texas City disaster of 1947, the Supreme Court held that the federal government's decision to conduct a fertilizer export program without testing the explosiveness of the ammonium nitrate contained in the fertilizer was within the discretionary function exception. Although the court declined to specify where the discretion concept ended, it held that it included more than the mere initiation of programs: It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable. (emphasis added) (footnote omitted) 346 U.S. 35-36, 73 S.Ct. at 968, 97 L.Ed. 1440-1441. The state relies strongly on the emphasized language and argues that the allocation of maintenance equipment and personnel to the Girdwood area was a discretionary decision of a highway department subordinate and thus within the exception. We have concluded, however, that the state's reliance on Dalehite is misplaced. First, the language in Dalehite that has been given greatest emphasis in subsequent decisions is not the language quoted above but rather the following dictum: In short, the alleged 'negligence' does not subject the government to liability. The decisions held culpable were all responsibly made at a planning rather than operational level . (emphasis added) 346 U.S. 42, 73 S.Ct. 971, 97 L.Ed. 1444. As will appear below, proper application of the planning-operational distinction defeats the state's claim of immunity. Moreover, in light of the almost unanimous adverse reaction of the legal commentators to Dalehite and because of the limitations placed on the decision by subsequent cases, Dalehite is now of questionable authority. Indeed, due to the widespread belief that the Dalehite majority carried the exception too far, Justice Jackson's dissenting opinion is quoted as often as the majority opinion. Justice Jackson conceded that there were many policy decisions of a regulatory or governmental nature which should properly be "controlled solely by the statutory or administrative mandate and not by the added threat of private damage suits." The acts complained of in Dalehite, however, were not in that category, he argued; rather, they dealt with the "housekeeping" side of federal activities. In that area there is no good reason to stretch the legislative text to immunize the Government or its officers from responsibility for their acts, if done without appropriate care for the safety of others. Many official decisions even in this area may involve a nice balancing of various considerations, but this is the same kind of balancing which citizens do at their peril and we think it is not within the exception of the statute. 346 U.S. 60, 73 S.Ct. 980, 97 L.Ed. 1453. Subsequently, in Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955), the Court moved away from the Dalehite majority's restrictive interpretation of the Federal Tort Claims Act's waiver of sovereign immunity and toward Justice Jackson's position. Indian Towing sought recovery for damages caused by the allegedly negligent failure of the Coast Guard to keep a light house in operating order. The Court stated that the alleged negligence occurred at the "operational" level and involved no "discretion" within the meaning of the act. It firmly rejected the government's argument that no liability would exist for the negligent performance of "uniquely governmental functions" and adopted the "good Samaritan" rule: the Coast Guard was not obligated to operate the lighthouse, but having exercised its discretion to do so a duty to exercise due care arose. Indian Towing is significant for its broad reading of the Federal Tort Claims Act. In addition, the Court's adoption of the rule that once discretion is exercised to undertake an activity a duty of reasonable care attaches in its performance obviously limits the language in Dalehite that immunity extends to subordinates executing policies formulated by officials exercising discretion. Similarly, although Rayonier, Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957), did not clarify the scope of the discretionary function exception, the case is notable both for its reaffirmation of Indian Towing and for a liberal attitude toward the Act that seems at odds with the Dalehite majority's approach. In holding that a property owner could recover for the negligence of the United States Forest Service in fighting a forest fire, the Court stated that the Act was founded on the premise that it is preferable to spread the cost of governmental negligence among all those who contribute financially to the government rather than allow the entire risk to fall on the injured party. Further, in Eastern Air Lines, Inc. v. Union Trust Co., 95 U.S.App.D.C. 189, 221 F.2d 62, aff'd. per curiam, United States v. Union Trust Co., 350 U.S. 907, 76 S.Ct. 192, 100 L.Ed. 796 (1955), the circuit court held that air traffic controllers were not performing a "discretionary function" within the meaning of the Act when two airplanes were cleared for landing on the same runway at approximately the same time. The court distinguished between non-actionable planning and actionable negligence in carrying out the plan stating: [Discretion was exercised when it was decided to operate the tower, but the tower personnel had no discretion to operate it negligently. 221 F.2d at 77. The Supreme Court summarily affirmed citing Indian Towing. Professor Reynolds argues that the Supreme Court's disposition of the case indicates "that Dalehite survives, if at all, only in its belief that discretion was involved in each act, not in its indication that discretion 'carries over' into performance." In light of the questionable status of Dalehite, it is hardly surprising that the lower federal courts have not treated discretionary function problems consistently. Professor Reynolds points out, however, that the post-Dalehite federal decisions have generally followed one of three approaches. First, some courts have followed the rule suggested by the Dalehite dictum that planning level decisions fall within the exception while operational ones do not. These courts have tended to read the exception much more narrowly than Dalehite, however. Second, other courts have focused upon the "good Samaritan" rule of Indian Towing holding that once discretion is exercised to do a particular act, the act must be performed with rea sonable care. These two analytic approaches are closely related and will lead to the same result in most cases. Finally, consonant with the majority position in Dalehite, some courts have simply read "discretionary function" very broadly so as to include more than just planning and policy decisions. Most of the extensive law review literature on the discretionary function exception has been critical of Dalehite and has supported some combination of the first two approaches described above. Thus, one article described the proper operation of the exception as follows: Immunity remains if the injury results from a deliberate choice in the formulation of policy. If the injury results from negligent execution of the policy, then the act is ministerial and liability ensues. A number of cases have utilized a similar approach. Thus, in Swanson v. United States, 229 F.Supp. 217, 220 (N.D.Cal.1964), the court stated: The planning level notion refers to decisions involving questions of policy, that is, the evaluation of factors such as the financial, political, economic, and social effects of a given plan or policy. . . . The operations level decision, on the other hand, involves decisions relating to the normal day-by-day operations of the government. Similarly, in California, whose state tort claim's act, like Alaska's, is modeled on the Federal Tort Claims Act, the state supreme court has interpreted "discretionary" acts to include only those made at the planning level, while decisions made at the operational or ministerial level are actionable. Several of the California decisions are particularly instructive and deserving of further discussion. In Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457 (1961), decided prior to California's enactment of its tort claims act, Justice Traynor, with characteristic acumen, explored the common law roots of the sovereign immunity doctrine, noted the many exceptions to the rule, and concluded that the doctrine has no modern-day justification. The basic policy of the law should be that "when there is negligence, the rule is liability, immunity is the exception." Subsequently, in Johnson v. State, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352 (1968), the California court faced the problem whether the failure of a parole officer to warn foster parents of the dangerous propensities of a youth being placed in their home was a "discretionary" act within the meaning of the statute. The court noted that almost any act, even driving a nail, involves some "discretion" and refused to be limited to a simply semantic inquiry into the meaning of the word. Instead, it focused on the policy behind the discretionary immunity doctrine for guidance in determining whether a given act was discretionary or ministerial. In drawing the line between the immune 'discretionary' decision and the unprotected ministerial act we recognize both the difficulty and the limited function of such distinction. As we said in Lipman v. Brisbane Elementary School Dist., supra, 55 Cal.2d 224, 230, 11 Cal.Rptr. 97, 99, 359 P.2d 465, 467, 'it may not be possible to set forth a definite rule which would determine in every instance whether a governmental agency is liable.' A workable definition nevertheless will be one that recognizes that '[m]uch of what is done by officers and employees of the government must remain beyond the range of judicial inquiry' (3 Davis, Administrative Law Treatise (1958) § 25.11, p. 484) ; obviously 'it is not a tort for government to govern' (Dalehite v. United States (1953) 346 U.S. 15, 57, 73 S.Ct. 956, 979, 97 L.Ed. 1427 (Jackson, J., dissenting)). Courts and commentators have therefore centered their attention on an assurance of judicial abstention in areas in which the responsibility for basic policy decisions has been committed to coordinate branches of government. Any wider judicial review, we believe, would place the court in the unseemly position of determining the propriety of decisions expressly entrusted to a coordinate branch of government. Moreover, the potentiality of such review might even in the first instance affect the coordinate body's decision-making process. . . . (emphasis in original) 73 Cal.Rptr. at 248, 447 P.2d at 360. The California court, noting that its proposed distinction is sometimes described as that between "planning" and "operational levels of decision-making, conceded that application of its test in individual cases would entail delicate judgment: [T]he very process of ascertaining whether an official determination rises to the level of insulation from judicial review requires sensitivity to the considerations that enter into it and an appreciation of the limitations on the court's ability to reexamine it. 73 Cal.Rptr. at 248, 447 P.2d at 360. Since this approach has the analytic virtue of focusing on the reasons for granting immunity to the governmental entity, however, we are persuaded that it is a well-reasoned approach to the problem. Other authorities have utilized similar analysis. In Rogers v. State, 51 Haw. 293, 459 P.2d 378, 381 (1969), for example, the court held that such matters as the placing of road signs and center line stripes "did not require evaluation of policies but involved implementation of decisions made in everyday operation of governmental affairs" for which liability would attach. Analogously, Professor Reynolds argues that the planning-operational distinction adequately serves what he regards as the main purposes of the discretionary function exception: (1) the need to preserve separation of powers by limiting judicial reexamination of decisions made by the other branches of government; (2) the fact that courts are not equipped to investigate and balance all the factors that go into an executive or legislative decision; (3) the public interest in preventing the enormous and unpredictable liability that would result from judicial reexamination of the decisions of the other branches of government. Turning then to the specific circumstances of this case, the lower court found the state and its employees negligent in failing to exercise reasonable care to maintain the curve where the accident occurred. We have concluded that the trial court was correct in holding that such maintenance was not within the discretionary function exception. Although it is true, as the state contends, that the district engineer's decision as to how many men and how much equipment were necessary to maintain this particular stretch of highway involved a certain amount of planning and discretion, it is not the kind of broad policy decision at which the exception, as interpreted by the above authorities, is aimed. Once the initial policy determination is made to maintain the highway through the winter by salting, sanding and plowing it, the individual district engineer's decisions as to how that decision should be carried out in terms of men and machinery is made at the operational level; it merely implements the basic policy decision. Once the basic decision to maintain the highway in a safe condition throughout the winter is reached, the state should not be given discretion to do so negligently. The decisions at issue in this case simply do not rise to the level of governmental policy decisions calling for judicial restraint. Under these circumstances the discretionary function exception has no proper application. II The state next argues that it is not liable for injuries which result from the natural accumulation of ice and snow on state highways. It relies on Hale v. City of Anchorage, 389 P.2d 434 (Alaska 1964), which held that the City of Anchorage was not liable for injuries sustained by persons as a result of naturally accumulated ice and snow on the city's sidewalks. The state reasons that "[t]o impose liability upon the State of Alaska for failure to properly sand its highways as the trial court did in this case, is to place an impossible burden upon the State of Alaska. Alaska's climatic extremes, the vast distances covered by its highways, and its low population base, makes the State's maintenance duties extremely arduous." We think the appropriate analytic starting point is not Hale, as the state suggests, but rather State v. Phillips, 470 P.2d 266 (Alaska 1970). In Phillips, this court, under the clearly erroneous test prescribed by Civil Rule 52(a), upheld the trial court's finding that the state had been negligent in failing to take reasonable precautions to protect highway users from the danger caused by extensive rutting in the ice on the Seward Highway after it had been given actual notice that the rutting was causing vehicles to lose control. This court noted: Review of the evidence in the case at bar also leads to the conclusion that the State of Alaska had prior notice of the dangerously defective condition of the Seward Highway in the location of Phillips' accident; that the state failed to undertake appropriate reasonable measures to alleviate existing dangerous conditions; that the state's failure in this regard constituted a breach of the duty of care it owed to decedent . . . ; and that this breach was the proximate cause of the fatal accident. 470 P.2d at 270. In light of Phillips, it is clear that Hale cannot be read to preclude liability in suits brought against the state for negligent winter highway maintenance. Although this court in Phillips did not elaborate on the standard of care owed by the state for high-day maintenance in general, the opinion does indicate that in at least some circumstances the state will be held liable for dangerous highway conditions caused by ice and snow accumulation. While Phillips is adequate authority for upholding the trial court's decision in the instant case, we deem it appropriate to consider here the larger issue as to what duty of care the State of Alaska owes to persons using its highways in general. Title 19 of the Alaska statutes, which deals with the state's highway system, provides that the Department of Highways is responsible for highway maintenance but fails to specify what standard shall be used to measure performance of that duty. For a number of reasons we have concluded that the scope of the state's duty should be defined by ordinary negligence principles. First, although AS 09.S0.2S0 places a number of limitations on the state's liability, it contains no indication that the legislature intended that the state should be held to a lesser standard of care than private individuals. It provides simply 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." The following statement by the United States Supreme Court in refusing to read into the federal statute any limitations not expressly provided for, would seem equally applicable here: Congress was aware that when losses caused by such negligence are charged against the public treasury they are in effect spread among all those who contribute financially to the support of the Government and the resulting burden on each taxpayer is relatively slight. But when the entire burden falls on the injured party it may leave him destitute or grievously harmed. Congress could, and apparently did, decide that this would be unfair when the public as a whole benefits from the services performed by Government employees. The Alaska legislature, in enacting AS 09.-50.250, adopted the same risk-spreading principle. It seems to us that to impose a lesser standard of care upon the state for highway maintenance would substantially diminish the risk-spreading effects of AS 09.50.250 and seriously undermine the sound policy consideration upon which it is based. Further, we are not persuaded by the state's argument that to impose liability on the state for its negligent failure to maintain our highways through the winter would place an "impossible burden" on the state. As Professor Van Alstyne notes: The fear that large unanticipated impositions upon public funds will be required to satisfy tort damage claims is exaggerated ; the ready availability of liability insurance provides adequate protection at moderate cost which may be budgeted in advance. Private corporate enterprises with substantial potential risk exposures have managed to bear the burdens of general tort liabilities without observable detriment to operational success, and there is little reason to believe that public entities would not do likewise. While the negligence standard satisfies the strong public policy favoring compensation of individuals injured by the tortious conduct of the state, it is an extremely flexible standard, and consequently will not inhibit the vigorous and effective performance by the state of its duties in the way that a more rigid standard might. Moreover, when the negligence standard is applied in conjunction with the policy-oriented interpretation of the discretionary function exception outlined in the previous section, the danger of excessive judicial interference with important decisions committed to the coordinate branches of government is avoided. The flexible operation of the negligence standard is easily illustrated. Dean Prosser states the elements of a cause of action for negligence to be: 1. A duty . . . requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks. 2. A failure on his part to' conform to the standard required. . 3. A reasonable close causal connection between the conduct and the resulting injury. . . . [proximate cause] 4. Actual loss or damage resulting to the interests of another. . . . In order for a plaintiff to show that the state exposed him to an unreasonable risk of harm he would have to demonstrate that the likelihood and gravity of the harm threatened outweighed the utility of the state's conduct and the burden on the state for removing the danger. In making that determination in the case at bar, all of the following .factors would be relevant: whether the state had notice of the dangerous condition, the length of time the ice and snow had been on the highway, the availability of men and equipment, and the amount of traffic on the highway. Similarly, the traditional proximate cause foreseeability requirement, in conjunction with the other elements of a negligence cause of action, will operate to prevent the imposition of an excessive burden on the state. This consideration was clearly articulated in a recent law review note: [A]s risks shift from the speculative to the certain, they become increasingly susceptible to reasoned evaluation. In this situation, it is possible for the officer to weigh the risk along with the other factors involved in a particular decision. To require that they do so, just as a private individual must with respect to possible tortious acts, would seem to be a desirable result and would encourage the making of decisions which do not impose unnecessary costs on society as a whole. Moreover, it does not require officials to do that which is impossible and thus does not constitute unreasonable interference with the decision making process. In addition, the government will, presumably, have been aware of the foreseeable potential loss when it undertook to act and the imposition of liability will neither interfere with the original decision nor operate to defeat the decision maker's reasonable expectations. By thus applying traditional concepts of tort liability, the administration is not being told that it may not make a particular decision and act pursuant thereto. It is merely being made to pay the entire foreseeable costs of its activities. Our holding that the state is obligated to exercise reasonable care is in line with the better-reasoned decisions in other jurisdictions. The Second Restatement of Torts § 349, comment b (1965), for example, refers to the duty to maintain a highway safe for travel as including not only a duty to maintain the surface of the highway in a condition reasonably safe for travel, but also a duty of warning the travelling public of any other condition which endangers travel, whether caused by a force of nature, such as snow or ice, or by the act of third persons, such as a ditch dug in the sidewalk or roadway or an obstruction placed upon it. Other jurisdictions, while acknowledging that the state is not an insurer of the safety of motorists, recognize the duty of highway authorities to exercise reasonable care to keep the highway in a safe condition. The court below applied the correct legal standard to measure the state's conduct. In applying the negligence standard to the facts of this case, as will appear in the next section, we have concluded that the trial judge was clearly justified in concluding that the state breached its duty of reasonable care to Brenda Vogt and that this breach was a proximate cause of her injuries. Ill We turn next to the state's argument that the trial court erred in finding that Brenda Vogt's injuries were proximately caused by the negligent acts of the state. In City of Fairbanks v. Nesbett, 432 P.2d 607 (Alaska 1967), this court held that it was proper to find that a defendant's negligent conduct was the "legal cause" of plaintiff's injury if the negligent act "was more likely than not a substantial factor in bringing about [plaintiff's] injury." The court stated further: It is not necessary for the actor's conduct to be 'the' legal cause of an injury for liability to attach to the actor. It is only necessary that such conduct be 'a' legal cause. This is in accordance with the position taken by the Second Restatement of Torts. Normally, in order to satisfy the substantial factor test it must be shown both that the accident would not have happened "but for" the defendant's negligence and that the negligent act was so important in bringing about the injury that reasonable men would regard it as a cause and attach responsibility to it. There is, however, one significant exception to this concurrence requirement: if two forces are operating to cause the injury, one because of the defendant's negligence and the other not, and each force by itself is sufficient to cause the injury, then the defendant's negligence may be found to be a substantial factor in bringing about the harm. In determining whether the trial judge was in error in applying the above tests to the facts of this case, it must be kept in mind that Civil Rule 52(a) provides that the trial court's findings shall not be disturbed unless they are "clearly erroneous". As this court has explained before: A finding is clearly erroneous when, although there may be evidence to support it, we are left with the definite and firm conviction on the entire record that a mistake has been committed. We are left with no such conviction here. It is critical to note that the trial judge did not find that the state's negligence was the exclusive cause of the accident but rather that it was "a proximate cause" which combined with the concurrent negligence of Mrs. Vogt to cause the accident. Applying the "substantial factor" test outlined above, the trial court could have properly held the state liable under one of two theories. First, if the state were negligent in failing reasonably to maintain the road and the accident would have occurred whether or not Mrs. Vogt was driving negligently, Mrs. Vogt's negligence does not affect the state's liability. This is the one situation outlined above where the "but for" test does not have to be satisfied. As Dean Prosser states: 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]. Second, if the accident would have occurred only with the concurrence of the negligence of the state and Mrs. Vogt, but would not have occurred if either party had been exercising reasonable care, it is also proper to impose liability on the state. As Prosser puts it: [A] defendant is not necessarily relieved of liability because the negligence of another person is also a contributing cause, and that person, too, is to be held liable. . . . The law of joint tort-feasors rests very largely upon recognition of the fact that each of two or more causes may be charged with a single result. Although the trial judge did not specify which theory he adopted in finding that the state's negligence was a proximate cause of the accident, we see no point in remanding to require him to choose one or the other. His conclusion is clearly supportable on well-established concurrent causation principles. All of the following facts in the record support a finding that the state was negligent and that this negligence proximately caused Brenda Vogt's injuries: (1) The curve was very icy and extensively rutted. The ruts tended to make a car deviate from a straight line. (2) The curve was very sharp and there was an undulating superelevation resulting from faulty maintenance. (3) Several expert witnesses testified that loss of control is a function of speed, friction and superele-vation. If the coefficient of friction is increased by adding sand, or the superele-vation made constant, the "critical speed" at which an automobile can successfully negotiate the curve is greatly increased. (4) There had been a series of similar accidents in which automobiles proceeding in the same direction as was Mrs. Vogt had skidded across the road into the oncoming lane of traffic. (5) A police officer testified that he had lost control under the same conditions as occurred at the accident. (6) The state had notice of the hazardous nature of the curve. As the Restatement notes: [Plaintiff] is not required to eliminate entirely all possibility that the defendant's conduct was not a cause. It is enough that he introduces evidence from which reasonable men may conclude that it is more probable that the event was caused by the defendant than that it was not. The fact of causation is incapable of mathematical proof, since no man can say with absolute certainty what would have occurred if the defendant had acted otherwise. If, as a matter of ordinary experience, a particular act or omission might be expected to produce a particular result, and if that result has in fact followed, the conclusion may be justified that the causal relation exists. IV The state next argues that the findings of the trial judge with respect to the condition of the highway were clearly erroneous. As noted above, the trial court found that there was "very little, if any sand on the travelled portion of the highway" and that whatever sanding was done was inadequate. The state argues that a series of photographs introduced into evidence and the testimony of several witnesses clearly establish the error in the court's findings. The standard on review, of course, is the clearly erroneous standard discussed in the previous section. Although it is true that in the case of non-testimonial evidence there is no need to give deference to the trial judge's evaluation of the credibility of witnesses, this court, in Alaska Foods, Inc. v. American Manufacturer's Mutual Insurance Co., 482 P.2d 842, 848 (Alaska 1971), rejected the argument that a more rigorous standard of review should be applied to non-demeanor evidence. In the case at bar, there was considerable testimony that little or no sand was on the road at the time of the accident. Moreover, not only was it never established precisely when the photographs were taken, but Trooper Carpenter, one of the investigating officers, testified that the pictures did not accurately represent the condition of the road. We cannot agree with the state's contention that the trial judge's findings were clearly erroneous. Finally, the state argues that the trial court's conclusion that the negligence of the state combined with Mrs. Vogt's negligence to proximately cause the collision made it imperative that the trial court specify with clarity the specific negligent acts of Mrs. Vogt. Failure to do so, the state argues, was a violation of Civil Rule 52(a). This argument is without merit. Civil Rule 52(a) requires that "[i]n all actions tried upon the facts without a jury . . . the court shall find the facts specially and state separately its conclusions of law thereon . . . . " The manifest purpose of the rule is to give this court a clear understanding of the basis of the lower court's decision. The basis for the court's decision here is clear. Mrs. Vogt was not a party and we see no reason to remand for more specific findings as to her negligence. VI Susan Abbott has cross-appealed from the judgment below challenging as inadequate both the $266,000 award of damages and the $16,700 award of attorney's fees. Regarding the adequacy of damages, we have held that [t]he general principle underlying the assessment of damages in tort cases is that an injured person is entitled to be replaced as nearly as possible in the position he would have occupied had it not been for the defendant's tort. In the case at bar the trial court found that as a result of the accident Brenda Vogt suffered severe brain damage and resultant coordinative and personality deteriorization, that she "will never be able to function as a normal member of society," and that she will always need supervision. The court then found that Brenda had received total compensable injuries of $266,-000. Cross-appellant argues that based on the evidence she presented below "an award of no less than $1,060,000.00" would be minimal compensation We have concluded, however, that because of the absence of adequate findings the court's award is unreviewable. In Patrick v. Sedwick, 413 P.2d 169, 174—175 (Alaska 1966), this court emphasized the necessity for strict compliance by the trial court with the requirement of particularized findings, demanded by Civil Rule 52(a), in order to "afford us a clear understanding of the basis of the court's award." In Patrick the lower court had made seemingly inconsistent findings as to past and future physical impairment, and as to loss of time and future impairment of earning capacity. The failure to comply with Rule 52(a) in the case at bar is, if anything, more egregious. The court did not indicate what elements of damages combined to yield the total award of $266,000. Nor were findings made as to lost earning capacity, past or future pain and suffering, past or future medical expenses, or the extent or cost of the future supervision which the court found Brenda would require. Therefore, in order to afford a basis for review, we remand this case to the superior court for further findings on the issue of damages in compliance with Civil Rule 52 (a). Brenda Vogt also contends that the trial court erred in awarding only $16,700 as attorney's fees, an amount considerably less than that which would have been awarded on the basis of the schedule contained in Alaska Civil Rule 82(a). In Patrick this court held that when a party recovers a money judgment in contested litigation the trial judge should indicate on the record his reasons for nonadherence to the fee schedule set forth in Civ.R. 82(a) in determining his award of attorney's fees. 413 P.2d 169, 179 (Alaska 1966). The court below did just that. The trial judge stated that attorney's fees calculated on the basis of the Rule 82(a) schedule would be "totally unreasonable", that the degree of a plaintiff's injuries in a personal injury case resulting in a large damage award is not a proper measure of attorney's fees, and that the court would compute attorney's fees in accordance with the work performed. The court then allowed $400 a day for trial, $100 for each deposition, $1,000 for pleadings and motions, and $7,500 for trial preparation. Cross-appellant also argues that the award was inadequate because of the complexity of the case, the excellent job done by her attorneys as acknowledged by the court, and the fact that over 800 hours were spent in trial preparation as evidenced by affidavits. The court below correctly responded to this assertion by stating that the purpose of Rule 82(a) is only to partially compensate a client for the productive work done by his attorney, and that it is irrelevant that "actual attorney's fees are going to be several times this figure . " Nor is a contrary result compelled by McDonough v. Lee, 420 P.2d 459, 465 (Alaska 1966), where this court upheld an application of the Rule 82(a) schedule to a $300,000 personal injury recovery. In that case we merely held that the schedule's application did not constitute an abuse of discretion. [Ajppellant urges this court, under Supreme Ct.R. 51(b), to review the damage aspect of this case 'tie novo and to enter corrective findings determining an adequate award.' It is not the function of this court to make new independent findings upon evidence which we did not hear. Our province on review is to determine alleged 'errors of law committed by the trial court in reaching its decision, and not to try the issues de novo.' (footnote and citations omitted) The award of attorney's fees is committed to the broad discretion of the trial court. In Palfy v. Rice, 473 P.2d 606, 613 (Alaska 1970), we stated: An abuse of discretion is established where it appears that the trial court's determination as to attorney's fees was manifestly unreasonable, (footnote omitted) In this case "[t]here is a rational connection between the facts considered by the trial judge and his conclusion that the amount of the money judgment was not an accurate criteria for determination of the amount of attorney's fees to be awarded," and that a fee of $16,700 "was commensurate with the amount and value of legal services rendered . . . . " Froelicher v. Hadley, 442 P.2d 51, 53 (Alaska 1968). We find no abuse of discretion in the award of attorney's fees. The trial court's decision is affirmed in all respects except for its award of damages. The award of damages is vacated and the case is remanded to the superior court with orders to make further findings of fact in compliance with Civil Rule 52(a) and to enter a new award of damages in conformity with those findings. BOOCHEVER, J., not participating. . Sisley v. United States, 202 F.Supp. 273 (D.Alaska 1962), is a federal case dealing with the liability of the United States under the Federal Tort Claims Act. In City of Fairbanks v. Schaible, 375 P.2d 201, 206-209 (Alaska 1962), this court refused to give effect to the related doctrine that a municipal corporation could not be held liable in tort for "governmental" as opposed to "proprietary" functions. . See Cesar v. Alaska Workmen's Compensation Board, 383 P.2d 805, 807 (Alaska 1963), where we noted that we would consider federal precedents when a state statute closely resembles a federal statute. . For an excellent discussion of the historic roots of the sovereign immunity doctrine see Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11 Cal.Rptr. 89, 90-91, 359 P.2d 457, 458-459 (1961) (Traynor, ,T.). . Greenhill & Murto, Governmental Immunity, 49 Tex.L.Rev. 462, 465 (1971). . Muskopf v. Corning Hosp. Dist., 55 Cal. 2d 211, 11 Cal.Rptr. 89, 90, 359 P.2d 457, 458 (1961) (Traynor, J.). . Id. 11 Cal.Rptr. at 92, at 460. . 28 U.S.C.A. § 2674. . E. ()., Rogers v. State, 51 Haw. 293, 459 P.2d 378, 381 (1969). Hee Reynolds, The Discretionary Function Exception of the Federal Tort Claims Act, 57 Geo.L.J. 81, 103-107 (1968). . See Reynolds, note 8 supra at 106-111, 126 (1968). See also Peck, The Federal Tort Claims Act: A Proposed Construction of the Discretionary Function Exception, 31 Wash.L.Rev. 207, 217 (1956). . Reynolds, note 8 supra at 95. . 346 U.S. at 59, 73 S.Ct. at 980, 97 L.Ed. at 1453. . 350 U.S. at 64, 76 S.Ct. 122, 100 L.Ed. at 53. . Id. at 69, 76 S.Ct. 122, 100 L.Ed. at 56. . See Reynolds, note 8 supra at 99-103. . 352 U.S. at 319-320, 77 S.Ct. 374, 1 L.Ed.2d at 358 (1957). . Reynolds, note 8 supra at 104. . Reynolds, note 8 supra at 103-110. . E. g., American Exch. Bank v. United States, 257 F.2d 938 (7th Cir. 1968) ; Eastern Air Lines, Inc. v. Union Trust Co., 95 U.S.App.D.C. 189, 221 E.2d 62, aff'd per curiam 350 U.S. 907, 76 S.Ct. 192, 100 L.Ed. 796 (1955). . E. g., United States v. Lawter, 219 F.2d 559 (5th Cir. 1955) ; Fair v. United States, 234 F.2d 288 (5th Cir. 1956). . This similarity is illustrated by Eastern Air Lines where the court of appeals held the government liable using a planning-operational rationale and the Supreme Court summarily affirmed citing Indian Towing. See discussion of Eastern Air Lines at page 12, supra. . E. g., Harris v. United States, 205 F.2d 765 (10th Cir. 1953) ; Goddard v. District of Columbia Redev. Land Agency, 109 U.S.App.D.C. 304, 287 F.2d 343 (1961). . Greenhill & Murto, Governmental Immunity, 49 Tex.L.Rev. 462, 472 (1971). See also Reynolds, note 8 supra at 128-132; Note, The Discretionary Exception and Municipal Tort Liability: A Reappraisal, 52 Minn.L.Rev. 1047, 1060-64 (1968). . See also United Airlines, Inc. v. Wiener, 335 F.2d 379, 393 (9th Cir.), cert. dismissed 379 U.S. 951, 85 S.Ct. 452, 13 L.Ed.2d 549 (1964) ; Harrigan v. City of Reno, 86 Nev. 678, 475 P.2d 94, 95-96 (1970). . See W. Prosser, Torts § 131 at 987 (4th ed. 1971). . 11 Cal.Rptr. at 94, 359 P.2d at 462. . See Elton v. County of Orange, 3 Cal.App.3d 1053, 84 Cal.Rptr. 27 (1970) for a subsequent California case using the same mode of analysis. . The distinction between planning and operational functions as applied to highway design and maintenance can be illustrated by comparing Sisley v. United States, 202 P.Supp. 273 (D.Alaska 1962), with Rodrigues v. State, 472 P.2d 509 (Hawaii 1970). In Sisley the court held that culvert design was a planning function and within the discretionary function exception to the Federal Tort Claims Act. In Rodrigues the court distinguished Sisley, holding that since the alleged negligence was in the state's maintenance of the culvert, not in culvert design, the acts were not within the exception. But see Baldwin v. State, 6 Cal.3d 424, 99 Cal.Rptr. 145, 491 P.2d 1121 (1972), holding that design immunity is not perpetual but evaporates after the governmental entity receives notice that due to changed circumstances a dangerous condition exists. . Reynolds, note 8 supra at 121-23, 128-31. See also Note, 41 Wash.L.Rev. 340, 344 (1966) ; Smith v. United States, 375 F.2d 243, 248 (5th Cir.), cert. denied 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106 (1967). . This application of the rule is consistent with the better reasoned federal cases as summarized by the court in United Airlines, Inc. v. Wiener, 335 F.2d 379, 393 (9th Cir.), cert. dismissed 379 U.S. 951, 85 S.Ct. 452, 13 L.Ed.2d 549 (1964) : Discretionary to undertake fire-fighting, light-house, rescue, or wrecked-ship marking services, but not discretionary to conduct such operations negligently, discretionary to admit a patient to an Army hospital, but not discretionary to treat the patient in a negligent manner; discretionary to establish a post office at a particular location, but not to negligently fail to establish handrails ; discretionary to establish control towers at airports and to undertake air traffic separation, but not to conduct the same negligently ; discretionary to reactivate an air base, but not to construct a drainage and disposal system thereon in a negligent fashion: and discretionary for CAA to conduct a survey in low flying, twin engine airplane, but not for pilot thereof to fly negligently, (footnotes omitted) See also W. Prosser, Torts § 131 (4th ed. 1971). . Our conclusion that the basic policy decision had already been made is buttressed by the fact that the state had drawn up detailed S.O.P.s outlining maintenance procedures throughout the state. Failure to comply with the S.O.P.s would seem to be operational negligence rather than policy-making discretion. S.O.P. 4301-06, page 13 of 13, for example, provides in part: Sanding crews must be dispatched at the first indication that traffic is having difficulty, with particular attention given to intersections and grades. Maintenance crews in outlying areas must keep steep grades and sharp curves well sanded, working overtime and at night if conditions warrant. Maintenance foremen must be alert to this condition and plan accordingly, and employees should be instructed to report for duty when inclement weather threatens. Sanding operations must continue as long as conditions warrant. First, priorities should be given to hills, intersections and curves. Although the S.O.P. quoted above did not become effective until February 1, 1967, nine days after the date of the accident, there is no indication in the record that the portion quoted was any different than the superseded S.O.P. which had been promulgated four years earlier. Consequently, we feel that Brenda Vogt's characterization is accurate: The policy decision that the state should maintain a reasonably safe highway had already been made; the negligence alleged in this case is in the failure to effectuate that policy in the most rudimentary ways. . líale is not necessarily inconsistent with either Phillips or our opinion in the case at bar. In Hale this court was influenced not only by what it termed the "impossible burden" of clearing all the city's sidewalks of ice and snow, but also by the belief that snow removal activities probably would make the sidewalks more dangerous : [W]e know from the evidence, and also from our own experience, that the most diligent effort to clean off such an area would leave a smooth surface of ice, more dangerous than the original condition because of the sloping sidewalk caused by the curbcut and because of the removal of the uneven surfaces of ice that could provide footing. 389 P.2d 434, 437. See also Kremer v. Carr's Food Center, Inc., 462 P.2d 747, 751 (Alaska 1969). In contrast, there is no reason to believe that proper maintenance of state highways would fail to make them reasonably safe for travel or that such maintenance would render highways more dangerous. The risks attendant to travel by automobile on an ice-covered highway are of a different order than those accompanying pedestrian traffic on an icy sidewalk. However, we need not now determine Hale's continued validity, but leave that question to future adjudication. . The case at bar is similar to Phillips in a number of particulars. First, as in Phillips, there was extensive rutting in the road which the trial court found had contributed to the accident. The lower court "[found] specifically that under the conditions existing with a slick Highway and rutted ice that whatever sanding had been done was not adequate, and that the State of Alaska, through its employees, did not act as reasonable persons would have acted . . . . " In explaining his findings, Judge Davis said: Also the defendants here have overlooked the fact, I think that the claim was made and not disputed anywhere that the ice was not only slick but was rutted at the time and place in question. All this went into the matter of a very very hazardous condition. There was testimony below that the rutting was caused by the state's maintenance procedures and that the ruts tended to induce lateral skidding. In addition, the trial judge found that the highway department had notice of the dangerous condition of the curve. There had been a number of accidents at the curve in the past several years and a number of complaints from the State Troopers. Thus, like Phillips, there was a particular "non-natural" hazard of which the state had notice. .AS 19.05.010 provides : The [Department of Highways] is responsible for the planning, construction, maintenance, protection and control of the state highway system. AS 19.05.030 provides in part: The [Department of Highways] has the following duties: (1) direct approved highway planning and construction and maintenance, protection and control of highways . . That section provides that no action may be brought for an act or omission of an employee using due care in executing a statute or regulation or for the performance or non-performance of a discretionary function. AS 09.50.250(1). The statute also prohibits recovery for various intentional torts, AS 09.50.250(3), and provides that no punitive damages may be recovered. AS 09.50.280. . Rayonier, Inc. v. United States, 352 U.S. 315, 320, 77 S.Ct. 374, 377, 1 L.Ed. 2d 354, 358 (1957). . See Van Alstyne, Governmental Tort Diability: A Decade of Change, 1966 U.Ill.L.F. 919, 921 (1966) ; Note, the Discretionary Exception and Municipal Tort Liability: A Reappraisal, 52 Minn.L. Rev. 1047, 1057 (1966). . Yan Alstyne, note 36 supra at 921. . W. Prosser, Torts § 30 at 143 (4th Ed. 1971). . See generally id. § 31-33 at 145-180. The fact that the Department of Highways has already adopted S.O.P.s designed to "provide highway users witli a safe, well kept highway" (S.O.P. 4001-01, page 1 of 2), and which outline sanding and / snow removal procedures and which require the snow removal crews to work "continuously throughout the storm" (S.O.P. 4301-06, page 1 of 13), and "overtime and at night if conditions warrant" (S.O.P. 4301-06, page 13 of 13), is a strong indication that this burden is not excessive. . Note, The Discretionary Exception and Municipal Tort Liability: A Reappraisal, 52 Minn.L.Rev. 1047, 1066 (1968). . E. g., Donnelly v. Ives, 150 Conn. 163, 268 A.2d 406 (1970) ; Smith v. Commonwealth, Department of Highways, 468 S.W.2d 790 (Ky.1971) ; Commonwealth, Dep't of Highways v. Begley, 376 S.W.2d 205 (Ky.1964) ; McCullin v. State Dep't of Highways, 216 So.2d 832 (La.App.1968), cert. denied, 253 La. 645, 210 So.2d 177 (1969) ; County Commissioners of Carroll County v. Staubitz, 231 Md. 300, 190 A.2d 70 (1963) ; McKinney v. County of Cass, 180 Neb. 685, 144 N.W.2d 416 (1966) ; Meabon v. State, 1 Wash. App. 824, 463 P.2d 789 (1970). See also 4 Blashfield, Automobile Law and Practice § 161.9-161.10 at 317-20 (3d ed. 1965) ; Bennett and Sather, State Tort Liability — The Design, Construction and Maintenance of Public Highways — Vehicular Accidents, 19 Drake L.Rev. 33, 35 (1969). The following cases have applied ordinary negligence principles to suits against public authorities arising out of accidents on ice and snow-covered streets and highways : Walker v. County of Coconino, 12 Ariz.App. 547, 473 P.2d 472 (1970) ; City of South Bend v. Pink, 139 Ind.App. 282, 219 N.E.2d 441 (1966) ; Ewald v. City of South Bend, 104 Ind.App. 679, 12 N.E.2d 995 (1938) ; Tetreault v. State, 50 Misc.2d 170, 269 N.Y.S.2d 812 (1966) ; Bird v. State, 2 Misc.2d 244, 152 N.Y.S.2d 65 (1956) ; McCracken v. Curwensville Borough, 309 Pa. 98, 163 A. 217 (1932). See also 4 Blashfield Automobile Law and Practice § 163.11 at 380-83 (3d ed. 1965). . Our disposition of the case makes it unnecessary to consider whether the trial judge was in error in concluding that the state was not negligent in its design of the highway. Por a recent and highly significant case on design liability see Baldwin v. State, 6 Cal.3d 424, 99 Cal.Rptr. 145, 491 P.2d 1121 (1972). . 432 P.2d at 610. . Id. at 610-611 (footnote omitted). . Restatement (Second) of Torts § 430, comment cl at 428 (1965). . Id. at § 431, comment a at 426-427 (1965). . Id. at § 432(2). . Alaska Foods, Inc. v. American Mfrs. Mut. Ins. Co., 482 P.2d 842, 848 (Alaska 1971). . W. Prosser, Torts § 41 at 239-40 (4th ed. 1971). See also Restatement (Second) of Torts § 432 (1965). . W. Prosser, Torts § 41 at 241 (4th ed. 1971). See also City of Fairbanks v. Nesbett, 432 P.2d 607, 610 (Alaska 1967). . These same principles have been held to apply in a number of cases involving suits against states for negligent highway maintenance. See 4 Blashfield, Automobile Law and Practice § 161.14 at 325-26 (1965), and oases cited therein. . Restatement (Second) of Torts § 433 B, comment b at 443 (1965). . Por a similar holding see Witek v. Town of Southbury, 132 Conn. 104, 42 A.2d 843, 845 (1945), where the court stated: Numerous other witnesses testified to the existence and depth of the ruts, and we cannot say that the evidence presented by the photograph was so conclusive of their non-existence as to discredit the oral testimony that they, in fact, existed, [citation omitted] 'If . the accuracy of the representation is questioned, this is a question for the determination of the jury like other questions of fact; and it is well known that even photographs may convey erroneous impressions.' (citation omitted) . See Bohm v. State, 453 P.2d 410, 411 (Alaska 1969) ; Merrill v. Merrill, 368 P.2d 546, 548 (Alaska 1962). See also Fairbanks Builders, Inc. v. Morton De-Lima, Ino., 483 P.2d 194 (Alaska 1971). . A preliminary issue concerns the failure of Brenda Vogt to include specification of errors in lier brief as required by Sup.Ct. R. 11(a) (6). The state has urged that we dismiss the cross-appeal because of this infraction. However, since cross-appellant's statement and supplemental statement of points on appeal, along with her brief itself, clearly notified the state as to the claims of error, no prejudice would appear to have resulted. . Beaulieu v. Elliott, 434 P.2d 665, 672 (Alaska 1967). . The court's specific findings were as follows : As a result of the collision here concerned Brenda Vogt received, among other injuries, very severe brain damage. This brain damage resulted in a change of personality of Brenda Vogt from a well adjusted, vivacious, lively, likeable youngster to an apathetic, dull and inactive, largely untrainable, sometimes disobedient and rebellious, physically uncoordinated individual. In addition to the brain injuries Brenda Vogt received other injuries to her body, including an injury to her jaw and scars on various portions of her body. The brain injury is by far the most serious of the injuries received, and because of its nature and the permanent impairment resulting from sucli injury, largely overrides the other injuries, which in themselves would have been serious without the brain injury. I find that as a direct and proximate result of the collision here involved that Brenda Vogt will never be able to function as a normal member of society. I find that she does not need custodial care as such, but will aways need someone to look after her personal needs and to guard her against unsavory contacts, and generally to care for and to protect her. .Based on the cost of either three full-time nurse's aides or an analogous cost at the Valdez facilities, and Brenda's 59.5-year life expectancy, Brenda Vogt estimates that $694,960 would have been a reasonable award for future care costs. Reasonable compensation for impaired earning capacity is then estimated to be $350,000 based on the average life time earnings of all employed women in Alaska who are Brenda's age. In this regard, Brenda Vogt asserts that the court should have found that she is permanently unemployable. Finally, based on this court's affirmance of a $20 per day award for pain an<l suffering: in Beaulieu v. Elliott, 434 P.2d 065, 674-675 (Alaska 1967), she claims that $434,350 would have been minimal compensation for this element of damages. When combined with the stipulated cost of past medical care ($15,-711), the total estimated damage figure is just under $1,500,000.00. . See also Fairbanks Builders, Inc. v. Morton DeLima, Inc., 483 P.2d 194, 196-197 (Alaska 1971) ; Beaulieu v. Elliott, 434 P.2d 665, 670 (Alaska 1967). . Brenda Vogt argues that this court has a sufficient basis for "laying down determinations with respect to the amount of damages to be awarded so that this case would not need to be remanded other than to enter judgment in accordance therewith." Just such a procedure was rejected in Patrick v. Sedwick, 413 P.2d 169, 174 (Alaska 1966) : .The schedule contained in Civ.R. 82(a) would dictate attorney's fees of $27,450 or $22,450 depending on whether the fees are calculated on the basis of the total award of $266,000 or that award as reduced by the $50,000 settlement between Brenda and her mother. Since it appears that the court committed no error in departing from the Rule 82(a) schedule, it is unnecessary to decide which figure would have been the proper basis for a Rule 82(a) computation. . See Preferred General Agency of Alaska, Inc. v. Raffetto, 391 P.2d 951, 954 (Alaska 1964).

10556883

Ralph G. BELON, Appellant, v. Oleo Q. BELON, Appellee

Belon v. Belon

1972-06-26

No. 1506

711

712

498 P.2d 711

498

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:36.285560+00:00

CAP

Before BONEY, C. J., and RABINO-WITZ, CONNOR, ERWIN and BOOCH-EVER, JJ.

Ralph G. BELON, Appellant, v. Oleo Q. BELON, Appellee.

Ralph G. BELON, Appellant, v. Oleo Q. BELON, Appellee. No. 1506. Supreme Court of Alaska. June 26, 1972. Warren A. Taylor, Fairbanks, for appellant. Dallas L. Phillips, Fairbanks, for appel-lee. Before BONEY, C. J., and RABINO-WITZ, CONNOR, ERWIN and BOOCH-EVER, JJ.

380

2364

OPINION PER CURIAM. A California court granted Cleo Q. Belon, plaintiff below, a judgment of separate maintenance against the defendant awarding her $600.00 monthly support and maintenance payments, $150.00 per month as child support, plus attorney's fees and court costs. She brought this action in Alaska alleging that defendant had failed to make the payments required and that as of October 1, 1969, there was $8,638.50 due and owing. Defendant moved to dismiss on the grounds that he was a resident of the State of Florida and had not submitted himself to the jurisdiction of the California court. The motion referred to matters outside the pleading and was properly regarded by the trial court as a motion for summary judgment. The court proceeded to deny the motion and to award a summary judgment in favor of the plaintiff, the nonmov-ing party, for the amount demanded in the complaint plus costs and attorney's fees. Within 10 days from the date of the entry of the summary judgment defendant filed an answer denying the material allegations of the complaint and raising numerous defenses to the plaintiff's claim, in addition to the jurisdictional question which was the basis for the motion to dismiss. Defendant then moved to strike the summary judgment and when this motion was denied defendant appealed from the summary judgment. While under our rules "[s]um-mary judgment, when appropriate, may be rendered against the moving party" (emphasis ours) we find that in this case the summary judgment was improvidently granted. Without passing on the merits of the issues raised, we hold that while the court procedurally had the power to grant a partial summary judgment against the moving party, such judgment, however, should have been limited to the issue coming before the court on defendant's motion. It was error, therefore, to award plaintiff a monetary judgment, which in effect prevented the defendant from being heard on his various additional defenses to plaintiff's claim. The summary judgment accordingly is reversed and the case remanded. . Civ.K. 12(b). . Civ.K. 56(c).

10548686

Alton and Alice MALVO, on behalf of Paula Malvo, a minor, Appellants, v. J. C. PENNEY COMPANY, INC., Appellee

Malvo ex rel. Malvo v. J. C. Penney Co.

1973-07-13

No. 1630

575

588

512 P.2d 575

512

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:47.680553+00:00

CAP

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

Alton and Alice MALVO, on behalf of Paula Malvo, a minor, Appellants, v. J. C. PENNEY COMPANY, INC., Appellee.

Alton and Alice MALVO, on behalf of Paula Malvo, a minor, Appellants, v. J. C. PENNEY COMPANY, INC., Appellee. No. 1630. Supreme Court of Alaska. July 13, 1973. M. Ashley Dickerson and Sylvia L. Short, Anchorage, for appellants. Kenneth P. Jacobus, of Hughes, Thorsness, Lowe, Gantz & Clark, Anchorage, for appellee.

7982

47364

OPINION Before RABINOWITZ, C. J., and CONNOR and BOOCHEVER, JJ. BOOCHEVER, Justice. This case arises from a civil action for false imprisonment and slander. The precipitating incident was the detention and questioning of three black teenage girls by a security employee of O'Neill Investigations who suspected them of shoplifting at the J. C. Penney Company's Anchorage store on December 17, 1969. Appellant, Paula Malvo, was a member of that group. It appears that Paula, three teenage friends, and the mother of one of the girls entered the store to shop. Three of the teenagers were shopping for identical ensembles in the sportswear department where Susan Baxter, a security employee with O'Neill Investigations, was on duty. Although sales personnel were on duty, none assisted the teenagers. Paula and her friends made several trips into the dressing rooms at the same time that two other persons were using the rooms. After the girls had made purchases, the security guard, Baxter, who alleges she was keeping notes on a piece of paper, later lost, notified a clerk that she suspected she would need her help. Susan Baxter then found two empty hangers in the dressing room, notified the three girls that she was "security" and could not account for two blouses, and asked the three girls and the mother to go upstairs. The guard motioned for the clerk to follow her and the group proceeded to the elevator with the guard and the clerk at the rear. Although there is some dispute as to the presence of other patrons in the immediate vicinity, it is undisputed that on the way to the elevator they encountered some teenage boys and when they arrived upstairs, the boys were there and chided them. Hillier, a store manager, was also upstairs and stood at the door of the office where the girls were searched. After the office door was closed, the guard asked the girls to drop their blouses and found no concealed merchandise. No effort was made to search or apprehend the other shoppers alleged to have been in the dressing rooms. After the incident, rumors of the girls having been stopped for shoplifting reached the pastor of their church and the girls' schoolmates. A complaint was filed setting forth claims of slander and false imprisonment. An initial jury trial resulted in a defense verdict as to the slander claim and a divided jury as to false imprisonment. Upon retrial the jury rendered a defense verdict as to the remaining claim of false imprisonment. The trial judge awarded J. C. Penney $10,504.20, the full amount of attorney's fees requested under Civil Rule 82, announcing that as a matter of policy a successful defendant should be granted his actual attorney's fees incurred to the extent that they are reasonable. Paula Malvo, in appealing from the judgment rendered on both verdicts, alleges eight specifications of error. Three of those issues are dispositve of this appeal, and we reach only those additional points which must be resolved to avoid possible errors on remand. I. CHALLENGES OF JURORS FOR CAUSE BASED ON DEBTOR-CREDITOR RELATIONSHIP BETWEEN JURORS AND J. C. PENNEY A number of issues have been raised with reference to the selection of the juries. Challenges based on debtor-creditor relationship between jurors and J. C. Penney were overruled. Rule 47(c) sets forth 13 different paragraphs containing grounds for challenges for cause. Many of those grounds involve value judgments on the part of the trial judge. Thus, sub-paragraph (2) pertains to bias, (3) deals with the person's state of mind which will prevent him from rendering a just verdict, and (4) refers to opinions or conscientious scruples which would improperly influence his verdict. It is well settled that challenges for cause under Rule 47(c), based on such grounds, are within the sound discretion of the trial judge, with which we are most reluctant to interfere. In Mitchell v. Knight, 394 P.2d 892, 897 (Alaska 1964), with reference to a challenge that a juror's state of mind would prevent him from rendering a just verdict, we stated: Civil Rule 47(c) places the determination of challenges for cause in the discretion of the trial judge. We shall interfere with the exercise of that discretion only in exceptional circumstances and tO' prevent a miscarriage of justice. Other grounds for challenge set forth in Rule 47(c) are based solely on a determination as to whether certain factual situations exist. In those instances, once the facts are established there is no'basis for discretion to be exercised by the trial judge. Thus, Rule 47(c)(1), (5), (6), (7) and (8) establish grounds for challenges for cause if it is shown that a person is not qualified by law to be a juror, has been subpoenaed as a witness in the case, that the person has already sat upon a trial of the same issue, that a person has served as a grand or petit juror in a criminal case based on the same transaction, or was previously called as a juror and excused at a previous trial of the same action. Similarly, other subsections specify grounds for challenges based on the existence of certain relationships (Rule 47 (c) (9) and (10)). Where one of those relationships clearly exists, the trial judge must grant the challenge. In each trial one or more jurors who had outstanding balances on their J. C. Penney charge accounts were challenged for cause. Rule 47(c) (10) of the Civil Rules provides in pertinent part: The following are grounds for challenge for cause: (10) That the person is the guardian, ward, landlord, tenant, employer, employee, partner, client, principal, agent, debtor, creditor, or member of the family of a party or attorney. (Emphasis added.) Once facts have been presented establishing such a relationship between the juror and a party, the grounds for challenge have been met. Accordingly, the failure of the trial judge to grant the challenge for those jurors who had a debtor-creditor relationship with J. C. Penney was error. Moreover, we cannot say that this was "harmless error" within the rule of City of Kotzebue v. Ipalook, 462 P.2d 75 (Alaska 1969). Malvo used all of her peremptory challenges under Civil Rule 47(d) and the denial of the challenges for cause under Civil Rule 47(c) (10) allowed those jurors to sit. Thus, we must remand for a new trial. II. ALLEGED RACIAL DISCRIMINATION IN JURY SELECTION Neither jury contained a black person. Malvo argues on appeal that this is a "pri-ma facie" case of "systematic and intentional exclusion" of her peers so as to be a violation of the constitutional right to a jury trial. It is well established that the right to an impartial jury trial guaranteed in criminal proceedings by the sixth amendment to the United States Constitution and article 1, section 11, of the Alaska Constitution embraces the concept of trial by a jury constituting' a fair "cross-section of the community". If prospective jurors are not drawn from that fair "cross-section", the constitutional standard of impartiality is not met. Alvarado v. State, 486 P.2d 891, 898 (Alaska 1971). See also Green v. State, 462 P.2d 994 (Alaska 1969). Although the "contours of a fair cross section of the community are elusive and, indeed . . . may not be susceptible of precise definition", Alvarado, supra, 486 P.2d at 898-899, any method of jury selection which is "in reality a subterfuge to exclude from juries systematically and intentionally some cognizable group or class of citizens in the community" is clearly invalid. Green v. State, 462 P.2d 994, 998 (Alaska 1969), citing Chance v. United States, 322 F.2d 201, 203 (5th Cir. 1963). Malvo rests her argument solely on the fact that there were no blacks on either jury. While neither this court nor the United States Supreme Court has clearly held that the "fair cross-section" standard is constitutionally compelled in civil trials, in the instant case, Malvo has not met her burden of proving a "systematic and intentional exclusion" even under the strict criminal trial standards of impartiality. Under such standards for a constitutional defect to exist in a jury, it is well settled that the method of choosing the jury must be one that purposefully and systematically excludes an identifiable portion of the community, and it is not sufficient to show simply that the particular jury in question does not include a representative from all segments of the local population. In Swain v. Alabama, 380 U.S. 202, 205, 85 S.Ct. 824, 827, 13 L.Ed.2d 759, 764 (1965), the United States Supreme Court held: [Pjurposeful discrimination may not be assumed or merely asserted. . . It must be proven, . . . the quantum of proof necessarily being a matter of federal law. (Citations omitted.) The court went on to note at 380 U.S. 208, 85 S.Ct. 829, 13 L.Ed.2d 766: [A] defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his race on the jury which tries him nor on the venire or jury roll from which petit jurors are drawn. . . . '[Sjince there can be no exclusion of Negroes as a race and no discrimination because of color, proportional limitation is not permissible.' (Citations omitted.) While the courts have recognized that the only practical way a litigant may prove systematic and intentional discrimination is by showing a consistent lack of proportional representation through proof of objective results of the jury selection process, these cases all involved proof of objective results over a long period of time and with reference to a large number of juries. Under Malvo's argument the mere fact that there were no blacks on either jury in her case would establish a prima facie case of unconstitutional discrimination. Such a result would be directly contra to the well-established principle that ". . . the constitutional fair- and impartial-jury guaranty does not require that every economic, racial, or ethnic class shall be represented on every jury venire or panel." Nolan v. United States, 423 F. 2d 1031, 1035 (10th Cir. 1969). See also Swain v. Alabama, supra at 380 U.S. 208, 85 S.Ct. 829, 13 L.Ed.2d 766. Thus, Malvo has failed to sustain her burden of proving that the method by which the jury was selected was one that "is in reality a subterfuge to exclude from juries systematically and intentionally some cognizable group or class of citizens in the community." Green v. State, 462 P.2d 994/998 (Alaska 1969). III. JURORS' MEMBERSHIPS IN EXCLUSIVE FRATERNAL ORGANIZATIONS A more difficult question is presented by Malvo's argument that it was an abuse of discretion for the trial judge to refuse to disqualify for cause those prospective jurors who were members of the Elks, Moose, or Shrine lodges since these organizations allegedly adhere to a Caucasian-only admission criterion. Civil Rule 47 (c) (2) provides for a challenge based on bias. Civil Rule 47 (c) (4) provides that a person may be disqualified where the trial judge finds that he has "opinions or conscientious scruples which would improperly influence his verdict" and Civil Rule 47(c)(3) provides as a ground for challenge for cause "That the person shows a state of mind which will prevent him from rendering a just verdict . . . ." In the first trial, Malvo was forced to use two of her peremptory challenges to disqualify prospective jurors who were members of the Elks or Moose lodges; and in the second trial, was forced to use peremptory challenges with respect to a member of the Shrine and a juror married to a member of the Elks. In addition, she alleges in her brief that "on the jury were persons who were members of organizations which systematically exclude and discriminate against members of the race . of Plaintiff" although it is not clear from the record what members of the jury were referred to. We recognize that mere membership in an organization which adheres to a Caucasian-only membership policy is not per se grounds for challenge for cause. For example, a person might very well be a member of such an organization with the sole intent of changing its membership criteria, and thus harbor no prejudice towards the classes of persons exclud ed by that policy. However, membership in such an organization is some indication that the challenged juror may be incapable of discharging his duties free from improper influences or bias, where one of the parties in the case is a member of a class excluded by such a restrictive criterion. Where such a prospective juror is challenged for cause, it is incumbent on the trial judge to satisfy himself by appropriate questions and by observing the juror's demeanor, that the person is in fact capable of rendering an impartial and just verdict. Such a determination is then within the discretion we spoke of in Mitchell v. Knight, supra, and where there is sufficient evidence in the record to show that the trial judge has adequately performed this duty, we will not interfere. In the instant case, there is evidence that in the first trial the judge had a rational and factual basis for denying the challenges. One of the challenged jurors stated that although he was a member of the Elks, he was in specific disagreement with its Caucasian-only policy. The other testified that he was an inactive member of the Moose, was unaware of any racially restrictive policy, and that he himself has been married to a non-Caucasian for 18 years. In the second trial, however, there is no such reflection in the record. The juror who was a member of the Shrine refused to describe the type of oaths he had taken when he joined the organization and stated that he considered blacks as "an equal, in some aspects, but not as far as the Masonic belief, . . ." Although he testified that he felt that he would be impartial in a trial involving a member of the black race, he also testified that if he was a black plaintiff and knew that there was someone on the jury with his state of mind, that he would be concerned. On further questioning, he was evasive as to the racial nature of the membership oath he had taken. People do not readily admit to bias, states of mind that prevent the rendering of a just verdict or opinions which would improperly influence their verdicts. Generally it is only from nuances derived from the jurors' testimony that a judge may ascertain whether grounds for such challenges for cause exist. Particularly when a prospective juror belongs to an organization which systematically excludes members of the race of a party to the suit, the trial judge must be sensitive to sometimes subtle inferences indicating bias, opinions or states of mind which could affect the juror's ability to render the just verdict. In this light we hold that it was an abuse of discretion to deny the challenge for cause as to the juror to whom we last referred. IV. THE FAILURE TO INSTRUCT ON AGENCY During the first trial, in the presence of the jury, the court below stated correctly that J. C. Penney would be vicariously liable for the acts of Susan Baxter, the security guard, whether she was merely an employee of an independent contractor, O'Neill Investigations, or an agent of J. C. Penney. However, at both trials the judge gave thé following instruction: No. 9 J. C. Penney Company is a corporation and as such can act only through its officers and employees. Any act or omis sion of an officer or employee within the scope of his authority or employment is, in law, the act or omission of such corporation. There were many references during the trial pertaining to Susan Baxter's employment status. She testified twice that she was employed solely by O'Neill Investigations, and this was stressed by J. C. Penney. The trial judge asked questions distinguishing employment by J. C. Penney and O'Neill Investigations. Although there was some effort to clear up the matter when the trial judge stated: Mrs. Dickerson, the Court has ruled that even if O'Neill Investigation was an independent contractor that nevertheless the acts of their employee would be — or rather J. C. Penney's would be vicariously liable for- the act of their employee. this statement is still confusing and apt to be misleading due to ambiguity as to the employee referred to. Since the instruction that J. C. Penney could act only through their employees or officers implies that agents or employees of independent contractors are not included, it is a misstatement of the law and prejudicial error. We hold that on remand the trial judge should instruct the jury with reference to liability imposed for acts of an agent or employee of an independent contractor. V. THE INSTRUCTION ON REASONABLE CAUSE AS A DEFENSE TO FALSE IMPRISONMENT On the issue of reasonable cause as a defense against false imprisonment by a shopkeeper, the trial court instructed the jury: Instruction No. 26 The owner of property may, for the purpose of protecting it, restrain, for a reasonable time and in a reasonable manner, for the purpose of investigation, one whom he has reasonable and probable cause to believe is stealing his property. Instmction No. 27 To constitute reasonable grounds for the detention of the plaintiffs in this case, the evidence must establish that the conduct of plaintiffs as observed by defendant, through its employees, agents and servants, was such as to give defendant reasonable belief that plaintiffs had concealed merchandise upon their persons that had not been paid for. If you find from all of the evidence that the foregoing facts are true, you must find that there was [sic] reasonable grounds to detain the plaintiffs. If you find that such facts are not true, you must find that there was [sic] not reasonable grounds to detain them. Malvo argues that this was error since (1) the trial judge should have submitted special interrogatories to the jury asking them to determine if the facts establishing reasonable cause were proved so as to give the jury explicit guidance as to what constitutes reasonable cause, and (2) the instructions do not place any burden on the store owner to take reasonable measures to ascertain that merchandise is missing or concealed on the suspect before initiating a detention and search. While there is strong authority that the best method of instructing the jury in this situation is to submit special interrogatories asking them to determine if the facts constituting reasonable cause exist so as to avoid the possibility that the jury will invade the province of the court and make a legal decision as to reasonable cause, it is well established that: [T]he number and form of issues submitted by way of special interrogatories, if they, along with the instructions to the jury fairly present the ultimate questions of fact to be determined, is a matter resting in the sound discretion of the trial judge. Patterson v. Cushman, 394 P.2d 657, 665 n. 26 (Alaska 1964). (Citations omitted.) Thus we are to determine not what we might or might not choose as the best instruction, but if the instructions given adequately presented the fact issues to the jury. In that regard, we believe that the instruction was adequate. We recognize the tremendous problem that shoplifting presents to the contemporary merchant. In the modern store, patrons have ready access to hundreds of items, often with little supervision or contact by store personnel until a purchase is made. Thus the store owner must strike a reasonable balance between feasible surveillance of customers, inventory control and the threat to a suspect's privacy. The instruction, which placed on the store owner the necessity of having a ". . . reasonable belief that the plaintiffs had concealed merchandise upon their persons", adequately conveyed the duty of the store owner to take reasonable detection measures before acting. This "reasonable man" standard is a familiar one in tort law, and juries have historically been asked to make similar factual determinations. While it might well be possible to write an instruction that would better delineate the boundaries of reasonable conduct by a store owner, we do not find that the instruction was erroneous. VI. THE AWARD OF ATTORNEY'S FEES The trial judge awarded the full amount of attorney's fees requested by defendant including compensation for all activities listed from the inception of the case, announcing this as a matter of policy provided that the fees are reasonable in terms of the charges normally made for comparable services within the community. The fees were in an amount of $10,504.20 and included such activities as a motion by J. C. Penney for nonresident bond (denied), motion for costs of the intermediate judgment (denied) and a motion by defendant for summary judgment (denied). While it is clear that a successful defendant may be a "prevailing party" within the meaning of Civil Rule 82, Owen Jones & Sons, Inc. v. C. R. Lewis Co., 497 P.2d 312 (Alaska 1972), and a party does not have to prevail on all of the issues in the case to be a "prevailing party", Buza v. Columbia Lumber Co., 395 P.2d 511 (Alaska 1964); DeWitt v. Liberty Leasing Co., 499 P.2d 599 (Alaska 1972); we reject the proposition that the prevailing party in each case should automatically be awarded the full amount of the attorney fees incurred. We have recognized in several cases that the trial judge has wide discretion in the award of attorney's fees. Albritton v. Estate of Larson, 428 P.2d 379 (Alaska 1967); M-B Contracting Co., Inc. v. Davis, 399 P.2d 433 (Alaska 1965). In Palfy v. Rice, 473 P.2d 606, 613 (Alaska 1970), we stated: [T]he matter of awarding attorney's fees is committed to the discretion of the trial court. We shall interfere with the exercise of that discretion only where it has been abused. An abuse of discretion is established where it appears that the trial court's determination as to attorney's fees was manifestly unreasonable. (Footnotes omitted.) Under this standard we feel that it is "manifestly unreasonable" automatically to award the full amount of attorneys' fees incurred by the prevailing- party. In Preferred General Agency of Alaska, Inc. v. Raffetto, 391 P.2d 951, 954 (Alaska 1964), this court announced its policy that: The purpose of Civil Rule 82 in providing for the allowance of attorney's fees is to partially compensate a prevailing party for the costs to which he has been put in the litigation in which he was involved. The rule was not designed to be used capriciously or arbitrarily, or as a vehicle for accomplishing any purpose other than providing compensation where it is justified. (Footnote omitted, emphasis added.) If a successful litigant were to receive full reimbursement for all expenses incurred in the case with no requirement of justification and no consideration of the "good faith" nature of the unsuccessful party's claim or defense, there would be a serious detriment to the judicial system. For where in order to seek judicial remedies, a plaintiff must risk liability for the full amount of attorney's fees the other side sees fit to incur, it takes little imagination to foresee that the size of a party's bank account will have a major impact on his access to the courts. In Boddie v. Connecticut, 401 U.S. 371, 380, 91 S.Ct. 780, 787, 28 L.Ed.2d 113, 120 (1971), the United States Supreme Court held: . a cost requirement, valid on its face, may offend due process because it operates to foreclose a particular party's opportunity to be heard. The State's obligations under the Fourteenth Amendment are not simply generalized ones; rather, the State owes to each individual that process which, in light of the values of a free society, can be characterized as due. We do not have to reach the constitutional issue since it is "manifestly unreasonable" to establish a policy under Civil Rule 82 that would enable a store owner to receive such a sizeable allowance for attorney's fees against a party who has brought suit in good faith. Nor did the suit involve such complicated factual and legal issues or such substantial sums of money as to justify such a fee to be awarded against an unsuccessful litigant. This danger was described by Benjamin N. Cardozo in a letter stating: I am not prepared yet to advocate costs that would compensate for the expenses of a lawsuit. I have seen enough of the judicial process to know its imperfections. I would not lay too heavy a burden upon the unsuccessful litigant. Some of the losses that are incidental to the establishment of rights and the -redress of wrongs through the processes of courts should be allowed, as a matter of social engineering, to lie where they fall. Very likely, heavier burdens should be imposed where there is evidence of bad faith or mere dogged perversity. Benjamin N. Cardozo, by George S. Heilman, McGraw-Hill Pub. Co. (1940). While we recognize that where there is evidence that a losing party did not have a good faith claim or defense and all of the fees incurred by the prevailing party were justified, a judge might well choose to award the full amount of fees requested; we hold that it was an abuse of discretion, to award J. C. Penney the full amount of of the legal fees here incurred. There is no indication from the record that Malvo did not have a good faith claim or was guilty of any reprehensible conduct that led to the suit. The purpose of Civil Rule 82 is to partially compensate a prevailing party for the costs and fees incurred where such compensation is justified and not to penalize a party for litigating a good faith claim. The case is reversed and remanded for a new trial not inconsistent with this decision on both the slander and false imprisonment claims. ERWIN and FITZGERALD, JJ., did not participate. . Alaska Civil Rule 47 (c) states : Challenges for Cause. After the examination of prospective jurors is completed and before any juror is sworn, the parties may challenge any juror for cause. A juror challenged for cause may be directed to answer' every question pertinent to the inquiry. Every' challenge for cause shall be determined by the court. The following are grounds for challenge for cause: (1) That the person is not qualified by law to be a juror. (2) That the person is biased for or against a party or attorney. (3) That the person shows a state of mind which will prevent him from rendering a just verdict, or has formed a positive opinion on the facts of the case or as to what the outcome should be, and cannot disregard such opinion and try the issue impartially. (4) That the person has opinions or conscientious scruples which would improperly influence his verdict. (5) That the person has been subpoenaed as a witness in the case. (6) That the person has already sat upon a trial of the same issue. (7) That the person has served as a grand or petit juror in a criminal case based on the same transaction. (8) That the person was called as a juror and excused either for cause or peremptorily on a previous trial of the same action, or in another action by the same parties for the same cause of action. (9) That the person is related within the fourth decree (civil law) of consanguinity or affinity to one of the parties or attorneys. (10) That the person is the guardian, ward, landlord, tenant, employer, employee, partner, client, principal, agent, debtor, creditor, or member of the family of a party or attorney. (11) That the person is or has been a party adverse to the challenging party or attorney in a civil action, or has complained of or been accused by him in a criminal prosecution. (12) That the person has a financial interest other than that of a taxpayer in the outcome of the case. (13) That the person was a member of the grand jury returning an indictment in the cause. . In Mitchell the appellant had challenged a juror for cause on two grounds: (1) that a debtor-creditor relationship existed between the juror and the ap-pellee's counsel, because of the sale of the insurance policy from which the juror was receiving commissions based on the premiums paid by the counsel's law-partnership [challenge based on Civil Rule 47 (c) (10), supra] ; and (2) on the ground that the juror's statement that he would be more conservative than the normal juror revealed a state of mind which would prevent him from rendering a just verdict. (Footnotes omitted.) Mitchell at 394 P.2d 897. With regard to the first ground, we held that there was clearly no debtor-creditor relationship within the meaning of the rule since the "juror was owed no money by appellee's counsel." The second challenge was based on Civil Rule 47(c)(3) which provides as a ground for challenge of a prospective juror for cause: " (3) That the person shows a state of mind which will prevent him from rendering a just verdict . . . .''It was to this challenge that we addressed our language concerning the discretion to be given to the trial judge; and we held that since the juror had clearly stated that lie "felt he could be fair and impartial, would allow a justifiable award, and that he would follow the instructions of the court", there was no showing of an abuse of discretion by the court in denying the challenge, especially in light of the trial judge's opportunity to listen to the juror and observe his demeanor. . In that case we held that it was harmless error to deny a challenge for cause where appellant had failed to exhaust the peremptory challenges granted under Civil Rule 47(d). . The sixth amendment to the United States Constitution provides: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been eommited, which district shall have been previously ascertained by law. . Article 1, section 11, of the Alaska Constitution provides: In all criminal prosecutions, the accused shall have the right to a speedy and public trial, by an impartial jury . In Alvarado we held that a failure to provide a criminal defendant with an impartial jury was in addition to a violation of the sixth amendment of the United States Constitution and article 1, section 11, of the Alaska Constitution, a denial of the constitutional right to due process of law. (See n. 20 in Alvarado.) . The right to a jury trial in certain civil trials is guaranteed by the seventh amendment to the United States Constitution and article 1, section 10, of the Alaska Constitution. The seventh amendment to the United States Constitution provides: Trial l>!/ jury in civil eases. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law. Article 1, section 10, of the Alaska Constitution provides: Civil Suits; Trial by Jury. In civil cases where the amount in controversy exceeds two hundred fifty dollars, the right of trial by a jury of twelve is preserved to the same extent as it existed at common law. The legislature may make provision for a verdict by not less than three-fourths of the jury and, in courts not of record, may provide for a jury of not less than six or more than twelve. While those two guarantees do not specify that the juries must be "impartial" in tire explicit manner adopted by the sixth amendment and article 1, section 11, of the Alaska Constitution, we indicated in Bachner v. Pearson, 479 P.2d 319, 333-334 (Alaska 1970) (dicta) that the constitutional test for both civil and criminal trials embraces the "fair cross-section" standard, and that the failure to meet that standard would be a denial of due process in a civil as well as a criminal action. Moreover, since Malvo argues that she has made out a prima facie case of the intentional exclusion of blacks from the jury, if she were correct in her contentions, a denial of equal protection under the fourteenth amendment to the United States Constitution and article 1, section 1, of the Alaska Constitution would bo shown without the necessity of applying the broad "fair cross-section" due process standards of Alvarado and Green. See Baehner v. Pearson, supra, text at n. 29 and Eubanks v. Louisiana, 356 U.S. 584, 585-589, 78 S.Ct. 970, 2 L.Ed.2d 991-995 (1958). Thus if Malvo had been successful in meeting her burden of proof on the issue of intentional and systematic exclusion of blacks from the jury venire, she might have prevailed on an equal protection argument without the necessity of establishing that the same due process standards apply to both civil and criminal jury selections. .Although the United States Supreme Court indicated in Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181, 1184 (1946) that: The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community. Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84 [86] ; Glasser v. United States, 315 U.S. 60, 85, 62 S.Ct. 457, 471, 86 L.Ed. 680 [707]. (Emphasis added.) they rested their decision on their administrative powers over the federal court system and did not specifically reach the constitutional issue with regard to both civil and criminal jury trials. However, both the Smith and Glasser decisions cited as authority for the "cross-section" concept were based on constitutional grounds lending support to the proposition that a civil jury must also be drawn from a "fair cross-section" to meet constitutional standards. . In Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954), the United States Supreme Court summarized its holding in Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935) as stating that a "prima facie" case of denial of equal protection was established by . proof that Negroes constituted a substantial segment of the population of the jurisdiction, that some Negroes were qualified to serve as jurors, and that none had been called for jury service over an extended period of time. This holding, sometimes called the "rule of exclusion", has been applied in other cases, and it is available in supplying proof of discrimination against any delineated class. Hernandez, supra at 347 U.S. 480, 74 S.Ct. 671, 98 L.Ed. 871. Such a showing shifts the burden of going forward on the discrimination issue to the state. It is to be noted at once that the indisputable fact that no Negro had served on a criminal court grand or petit jury for a period of thirty years created a very strong showing that during that period Negroes were systematically excluded from jury service because of race. When such a showing was made, it became a duty of the State to try to justify such an exclusion as having been brought about for some reason other than racial discrimination. Patton v. Mississippi, 332 U.S. 463, 466, 68 S.Ct. 184, 186, 92 L.Ed. 76, 79 (1947). (Citation omitted.) But see Swain v. Alabama, supra, where the court held that a showing that no blacks had served on a petit jury for 13 years did not establish a prima facie case where the objective results could be explained by the existence of peremptory challenges at the trial level, and there was no evidence of discrimination in the selection process by which prospective jurors were called. . Judge Singleton, the trial judge, fully recognized this point and gave Mrs. Dickerson, Malvo's attorney, an opportunity to provide sufficient proof of discrimination. I might point out that I am not ruling today on any challenge to the array, to the panel as a panel. I'm going to allow you, Mrs. Dickerson, to have an additional 60 days but only limited to that issue, to further investigate the methods used by the court system in choosing the entire panel. Now, of course, implicit in that is the specific panel that was used in this case. You may have sufficient time and you may utilize all the discovery devices normally available to a litigant. I will assure you that you will have the full cooperation of all of the employees of the court system in making your investigation. I am assurming 60 clays would be sufficient. Should anything come to your attention that in your opinion merits further and additional investigation, you may bring that to the attention of the court and such additional time as is necessary will he granted. The record is devoid of any response to this opportunity by Mrs. Dickerson. . For cases lidding that mere membership in a particular organization is not grounds for disqualification per se, see 50 O.J.S. Juries § 229 and 47 Am.Jur. 2d, Jury § 323, 324. See also Annot., 72 A.D.R.2d 905 (1958). . . In a similar context, the United States Supreme Court has recognized in Scales v. United States, 367 U.S. 203, 229, 81 S.Ct. 1469, 1486, 6 L.Ed.2d 782, 802 (1961) that although a person may be a member of an organization dedicated to the violent overthrow of the United States government, there still must be "clear proof that a defendant 'specifically intend [s] to accomplish [the aims of the organization] by resort to violence.' " Noto v. United States, 367 U.S. 290, 81 S.Ct. 1517, 6 L.Ed.2d 836 (1961) ; cf. Whitney v. California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095 (1927). . It is well recognized that a store owner is liable for the acts of employees or agents acting within the scope of their authority to protect the owner's property or merchandise. See Annot., Principal's Liability for False Arrest or Imprisonment Caused by Agent or Servant, 92 A.L.R.2d 15 (1959). See also Annot., Liability of Master or Principal for Servant's or Agent's Libel or Slander of One Other Than Servant or Agent or Former Servant or Agent, 150 A.L.R. 1338 (1943). The same rule applies to intentional torts of employees of independent contractors performing similar functions. False imprisonment is an intentional tort, and while courts have held that an employer may not be liable for certain negligent acts of an employee of a private security agency under the "independent contractor" or doctrine, they have also recognized that the duty owed to the public by a store owner seeking to protect his property may be nondelegable in certain circumstances. See Annot., Liability of One Contracting for Private Police or Security Service for Acts of Personnel Supplied, 38 A.L.R.3d 1332 (1970). See also Annot. 92 A.L.R.2d § 19 [b] (1959). There is no question but that J. C. Penney is responsible for acts of O'Neill Investigations' employees allegedly involving the intentional tort of false imprisonment. The alleged slander presents a more difficult issue, since slander is not necessarily an intentional tort. The acts which it is contended constituted the slander consisted of escorting the plaintiffs to the manager's office through areas open to the public. These acts were so inextricably entwined with the protective functions for which the agency's services were secured that it is not permissible to insulate J. C. Penney from liability. The duty of a store owner not to slander customers by attempts to protect his property is not delegable to an independent contractor where the acts alleged to violate that duty are within the scope of the usual services to be performed. Thus, J. C. Penney could not avail itself of the "independent contractor" defense with respect to either the alleged intentional tort of false imprisonment or the alleged breach of its duty not to slander Paula Malvo. . J. 0. Penney argues that since no formal objection was made by Malvo to the instruction other than the submission of an alternate instruction in the first trial, that the issue is not preserved on appeal. Civil Rule 51(a) provides in part: No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider the verdict, stating distinctly the matter to which he objects and the grounds for this objection. Since the case must be remanded in any event, we need not rule on the question of whether the error is so substantial as to result in injustice requiring reversal notwithstanding Rule 51(a). Contrast Bolden v. City of Kodiak, 439 P.2d 796 (Alaska 1968) ; Saxton v. Harris, 395 P.2d 71 (Alaska 1964) ; Mitchell v. Knight, 394 P.2d 892, 897 n. 10 (Alaska 1964) ; Novick v. Gouldsbery, 9 Cir., 173 F.2d 496, 12 Alaska 267, 275-276 (1949) with Merrill v. Faltin, 430 P.2d 913, 917 (Alaska 1967). . Stienbaugh v. Payless Drug Store, Inc., 75 N.M. 118, 401 P.2d 104, 106 (1965) and Lukas v. J. C. Penney, 233 Or. 345, 378 P.2d 717 (1963) state that the function of the jury is to decide "which of the conflicting stories are true". In Miller v. Lee, 66 Cal.App.2d 778, 786, 153 P.2d 190, 195 (Cal.Ct.App.1944), the court stated: The approved method is for the court to instruct the jury that if they find and determine certain questions of fact properly submitted to them to be true or untrue, their verdict must be for plaintiff, or for the defendant, as the case may be. See also California Jury Instructions, Civil, Instr. No. 6.86, at 240 (West, 5th ed. 1969) and cases cited therein. . It is significant that since the events which led to the instant case, the Alaska Legislature has enacted AS 11.20.277 which provides a defense to false imprisonment actions against shopkeepers. The statute provides: Reasonable detention as defense. (a) In a civil or criminal action brought by a person having been detained on. or in the immediate vicinity of the premises of a mercantile establishment for the purpose of investigation or questioning as to the ownership of merchandise, it is a defense that the person was detained in a reasonable manner and for not more than a reasonable time to permit investigation or questioning by a peace officer or by the owner of the mercantile establishment, his authorized employee or agent, and that the peace officer, owner, employee or agent had reasonable grounds to believe that the person detained was committing or attempting to commit a crime as defined in § 275 of this chapter. (b) In this section "reasonable grounds" includes hnowledge that a person has concealed upon or about his person unpv/rchased merchandise of the mercantile establishment, and reason-sonable time means the time necessary to permit the person detained to make a statement or to refuse to make a statement, and also the time necessary to examine employees and records of the merchantile establishment relative to the ownership of the merchandise. (§1 ch. Ill S.L.A.1971) (Emphasis added.) With this guidance from the legislature, the problem of framing future instructions should be greatly alleviated. Since we consider the statute to be consistent with our view of the common law, it maj' be utilized upon the retrial of this case. . Civil Rule 82 provides for the allowance of attorney's fees as costs to "the party recovering any money judgment", to "the prevailing party," or "to the prevailing side." Alaska Civil Rule 54(d) provides: Except when express provision therefore is made either in a statute of the state or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs. The procedure for the taxing of costs by the clerk and review of his action by the court shall be governed by Rule 79. AS 09.60.010 provides: Except as otherwise provided by statute, the supreme court shall determine by rule or order what costs, if any, including attorneys fees, shall be allowed the prevailing party in any case. . Bee also DeWitt v. Liberty Leasing Co., 499 P.2d 599, 601-602 (Alaska 1972) where the same language was applied to the award of costs under Civil Rule 54(d). . We have cited this language on other occasions in DeWitt v. Liberty Leasing Co., 499 P.2d 599, 602 (Alaska 1972) ; Connelly v. Peede, 459 P.2d 362 n. 2 (Alaska 1969) ; Froelicher v. Hadley, 442 P.2d 51, 53 (Alaska 1968) ; McDonough v. Lee, 420 P.2d 459, 465 (Alaska 1966) ; Patrick v. Sedwick, 413 P.2d 169, 178-179 (Alaska 1966). .The court in Boddie left open the possibility that states could condition access to civil courts for "non-fundamental rights" on monetary requirements. Part of the decision rested on the fact that the right to a divorce could only be exercised through the court system, and the fees in question had to be paid before a litigant could get a hearing. However, the fees dealt with in Boddie were much less burdensome than the result in the instant case. . In M-B Contracting Co., Inc. v. Davis, 399 P.2d 433, 437 (Alaska 1965), a case involving special considerations under the Alaska Workmen's Compensation Act (AS 23.30.145), we stated: This is not a situation in which it might have been said that the injured employee has appealed on frivolous grounds and should therefore be penalized by the taxation of an attorney's fee against him. . In DeWitt, supra,, we said: We do not decide whether a denial of all costs would be justified in an extreme case of a vexatious prevailing party unreasonably prolonging the litigation and substantially increasing the costs. The trial judge in such a case would at least be justified in disallowing particular items on the costs bill as unnecessary to the litigation. (Citations omitted.) 499 P.2d, n. 13 at 602.

10548570

Paul Dennis NEWSOM, Appellant, v. STATE of Alaska, Appellee

Newsom v. State

1973-07-20

No. 1726

557

563

512 P.2d 557

512

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:47.680553+00:00

CAP

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

Paul Dennis NEWSOM, Appellant, v. STATE of Alaska, Appellee.

Paul Dennis NEWSOM, Appellant, v. STATE of Alaska, Appellee. No. 1726. Supreme Court of Alaska. July 20, 1973. Herbert D. Soli, Public Defender, John. W. Abbott, Susan Burke, Asst. Public Defenders, Anchorage, for appellant. John E. Havelock, Atty. Gen., Juneau, Seaborn J. Buckalew, Jr., Dist. Atty., J. Randall Luffberry, Asst. Dist. Atty., Anchorage, for appellee. Before RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER, and FITZGERALD, JJ.

3468

21269

OPINION FITZGERALD, Justice. Appellant, Paul Dennis Newsom, was convicted after trial by jury on four separate counts including the crime of rape. The trial judge sentenced him only on the rape conviction to fifteen years, without eligibility for parole until one-third of the sentence is completed. Newsom now appeals from the judgment of conviction and from the sentence. I Appellant advances two contentions of error in his appeal from the judgment of conviction. He claims the State was erroneously allowed to introduce evidence of appellant's bad character including specific acts of misconduct. Second, he claims the trial court permitted the district attorney to conduct an improper cross examination and subsequent pursuit of collateral evidence impeaching appellant, who testified on his own behalf. According to the testimony of Mrs. B, the complainant, she and appellant had become acquainted before October 30, 1971, the time when the offense is said to have occurred. She was also acquainted at that time with appellant's father, Warren Thomas Newsom. About two weeks before the 30th of October, Mrs. B was having coffee at Flapjack Jim's, an Anchorage restaurant. Her brother-in-law, an employee of the restaurant, came to her table to visit with her. They were later joined by Dennis Newsom and his friend and by Warren Newsom, who, as it turned out, was also employed at Flapjack Jim's. The complainant and appellant left the restaurant in Mrs. B's car to look for a party. After considerable driving about, they returned to Flapjack Jim's. Arrangements were made to meet at Flapjack Jim's on Friday evening, October 29, 1971. When the complainant arrived at Flapjack Jim's that Friday night, she found her husband in the restaurant. Appellant had not yet appeared so she departed shortly thereafter in her husband's company to visit at her brother-in-law's residence. She arrived at her own residence about 1:00 a. m. on the morning of October 30. At about 7:00 a. m. she was awakened by a knock on the door. Thinking it was one of her friends or her husband, she shouted out to the visitor to enter. Appellant entered the housetrailer. He explained that he had arrived at Flapjack Jim's about 9:30 p. m. the previous evening and so missed the appointment. There ensued a conversation between Mrs. B and appellant. At this point the accounts of what followed reach sharp and irreconcilable conflict. According to Mrs. B, appellant told her he had quit his job but strangely enough, he offered to give her a substantial sum of money. Because of the turn of the conversation, the complainant became concerned and, she says, tried to give appellant the idea that she wished him to leave. Finally, he did tell her that he was leaving, but before departing he went to the bathroom. When he returned to the living room, he held a knife in his hand. Appellant disclosed to Mrs. B that he intended to rape her. He took her by the shoulder, pulled her from the couch in the living room to the kitchen, and pushed her into the bedroom of the trailer. There he forced her down on the bed and put the knife to her throat. He said, "I'm gonna slash you." Mrs. B rolled to her side and covered her face with her arm saying, "Go ahead and slash me, I don't want to make love with you." Appellant slapped her violently across the face with his right hand. Her clothing was removed and she was raped. Police officers obtained a statement from appellant shortly after the time of his arrest. According to his statement, at the time he arrived at Mrs. B's residence at about 7:00 a. m., he was invited in. When appellant entered the trailer, the complainant was not in sight, and he began searching the premises for her. As he entered the bedroom, she came out of the bathroom and threw her arms around him and started to cry, saying, "Where's my baby, where's my baby?" Her face was swollen and she had a cut on the side of her mouth. She was hysterical. At this point, according to appellant's statement, he undertook to render her assistance to calm her down. After helping her, as he could, he left the trailer and returned home. The first defense witness to testify at the trial was Warren Newsom, the father of appellant. He said that on the morning of October 30, 1971, he drove appellant to Mrs. B's trailer. After leaving appellant, he continued to his home where he went to bed. At about 9:30 a. m. he was awakened by appellant, who had entered his father's bedroom. He told his father that Mrs. B was in trouble, that she had been beaten up. The senior Newsom further testified that he then got up from bed, followed his son to his room and questioned him about the matter. He asked appellant why he had not called the police or taken some action of that sort. Appellant responded that he was afraid he would get in trouble. During direct examination, Warren Newsom was questioned extensively about appellant's out of court, self-serving statements to him. His testimony provided the jury with the appellant's exculpatory version of the facts, and was offered to establish that appellant had, upon his arrival at Mrs. B's trailer, found her to have been beaten up. This hearsay testimony contradicted Mrs. B's testimony that she had in fact been raped by appellant. In cross examination, the State pursued three lines of questioning which appellant now argues were improper and prejudicial. At one point, the prosecutor asked the father, "Would you characterize your son as a truthful person?" Mr. Newsom replied, "No, sir." No objection was entered by defense counsel until the prosecutor followed that answer with the question, "So you really don't know whether he raped [Mrs. B] or not?" At this point, the defense objected that the question called for a conclusion on the part of the witness, and conceded, "If the question is rephrased to ask him if he believes his son committed the rape, I'll withdraw my objection." The court overruled the objection and the prosecutor continued, first eliciting a concession from the witness that he did not know whether the appellant's story was true, and then obtaining an affirmative response to the question, "He very well could have raped her, couldn't he ?" A second question was then asked by the prosecutor, "Along the same lines, didn't you tell the policeman afterwards that Dennis had a problem?" Defense counsel immediately objected that the question was irrelevant. The jury was dismissed and defense counsel noted to the judge that a preclusion order had been entered stipulating that no reference was to be made to any juvenile matters in appellant's personal history. A lengthy discussion ensued con cerning whether the question was directed toward the juvenile record or toward a general opinion by the father. The prosecution agreed not to pursue the line of questioning any further. On recross examination the prosecutor asked appellant's father, "Isn't it also correct though that you know that he [appellant] tells an untruth on occasion ?" The defense objected on grounds that the question had been asked and answered previously. This objection was overruled and the witness answered, "Yes, he's told untruths before, yes." The prosecutor then asked if these untruths had been told in "[e]xtreme serious matters." Objection was taken to the phrasing of the question. It was then restated as "the things in the more important affairs of life?" The witness then answered in the affirmative. Appellant urges on appeal that the above cross examination was character evidence impeaching the truth and veracity of appellant prior to his having taken the stand in his own defense, putting pressure on him to take the stand to reconstruct his good character, and hence violating his Fifth Amendment right not to incriminate himself. The State responds that appellant waived his right to appeal on this ground by failing to so object at the trial. Defense counsel did object at trial. However, the grounds for objection differ from those arguments presently made on appeal. While Alaska R.Crim.P. 46 provides that under most circumstances, the objecting party should state his objection and the grounds for this objection at the time of the ruling or order, Alaska R. Crim.P. 47(b) provides that "[pjlain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." In Hammonds v. State, 442 P.2d 39, 43 (Alaska 1968) we said, The meaning of Crim.R. 47(b) is that we may consider questions raised for the first time on appeal if necessary to effect substantial justice or prevent the denial of fundamental rights. In Hammonds we also distinguished between "a technical failure to object" and an intelligent waiver of a substantial right. We view the failure to specify the exact grounds for objection in this case as having been such a "technical failure." The argument on appeal, that appellant was deprived of his right not to incriminate himself, raises a question of a "substantial right" under Rule 47(b) which cannot be ignored for the mere technical failure to raise that exact objection below. If the evidence introduced by the prosecution was in error, the appellant's freedom to choose whether he wished to take the stand may have been improperly influenced. We, therefore, reach the merits of the issue of whether the cross examination of the witness prematurely brought the character of the appellant into question, thus compelling him to take the stand in his own defense. We find, however, that the line of questioning by the State was properly directed at impeachment of the witness rather than at character evidence challenging the truth and veracity of appellant. The father of the appellant took the stand as a defense witness and offered appellant's exculpatory version of the facts, directly contradicting the testimony of the prosecutrix. The testimony elicited from him on direct examination by defense counsel amounted to hearsay statements of appellant's declarations shortly after the alleged commission of the crime. On cross examination the prosecutor challenged that testimony by showing that while the father was prepared to believe his son's statement the morning of the crime, he would admit his son's general lack of truthfulness on other important matters. In Smith v. State, 431 P.2d 507 (Alaska 1967), we were confronted with a similar issue where cross examination properly intended to impeach the witness touched precariously on the verge of impermissible testimony. We applied the test that the permissibility of such questioning "depends upon an advised judgment as to which of the two objectives is the primary one sought to be accomplished." When a situation arises where evidence is relevant to one issue but not admissible for policy reasons on another issue, the test of admissibility will require a balancing of the probative value against the possible prejudicial effect. The prejudicial effect, however, may largely depend upon the form and manner of the examination. Where alternative forms of questioning are available, that alternative form which minimizes the prejudicial effect should be chosen. On such occasion the trial judge should exercise his close supervision. We find that the questions in the instant case were designed to impeach the testimony of the witness, and that these questions were phrased in a sufficiently moderate fashion which would accomplish the legitimate purpose of impeachment without lapsing into premature and improper impugning of the character of appellant. While some incidental evidence of appellant's character may have emerged from the impeachment, we do not find that factor to be error under circumstances where the witness was called by the defense, and where direct examination brought appellant's credibility into issue. The impeachment of the father's general confidence in appellant's veracity was carefully fashioned by the prosecution in a manner which avoided undue prejudice and was, under such circumstances, permissible. With regard to the cross examination asking whether appellant "had a problem," we observe that the prosecution withdrew the question, and no further testimony on this subject was elicited. Moreover, the question was not so specifically directed toward any juvenile record which appellant may have had so as to violate the pretrial stipulation. The question, so far as it went, was not an inquiry into a specific act of misconduct, nor was it a protracted inquiry designed to discredit the character of the appellant. In a second issue raised on this appeal, appellant urges that two lines of questioning developed by the State on cross examination of appellant and in rebuttal testimony were an improper pursuit of collateral proof which prejudiced the jury by confusing the relevant issues at trial. During direct examination of appellant, his own counsel asked him to relate the series of events that took place between 7:30 a. m. and about 3:00 p. m. the day of October 30, 1971. Appellant included in his testimony the fact that he was arrested, taken to the police station, and interrogated. On cross examination the prosecutor focused on the arrest and subsequent questioning at the police station. He brought out claims by appellant that an officer displayed a gun at the time of arrest, and that two statements waiving constitutional rights may have been signed that day by appellant. While neither the circumstances of the arrest nor the waiver of constitutional rights were issues at the trial, we do not find that in this case they were improper lines of cross examination. Appellant had testified on direct examination concerning the circumstances of his arrest and the subsequent interrogation. Alaska R.Civ.P. 43(g)(7) made applicable to criminal trials by Alaska R.Crim.P. 26(a) provides that "[a]n adverse party may cross examine a witness as to any matter stated in the direct examination or connected therewith With regard to the call of rebuttal witnesses to impeach appellant's testimony on possible collateral matters, we note the fact that no objection was made by appellant during the examination. We cannot find a potential impingement of such a substantial right under Alaska R.Crim.P. 47(b), which would require this court to take notice of a possible inadmissible proof not objected to below. We, therefore, do not reach the merits of the argument of appellant. II Relying upon our decision in State v. Chaney, 477 P.2d 441, 443 (Alaska 1970) that this court will consider "the sufficiency and accuracy of the information upon which [sentencing] was based," appellant urges that sentencing occurred without an adequate psychiatric evaluation of the defendant. Appellant argues that the only psychiatric report in the case was made prior to trial for the limited purpose of determining his competency to stand trial; that the evaluation contains little information not found in the presentencing report; that the psychiatric portrayal of appellant is found in other psychiatric evaluations of other clients of the Public Defender's Office in almost exactly the same form; and that the court did not inquire into appellant's potential for rehabilitation. An adequate psychiatric evaluation at the time of sentencing is extremely helpful to the sentencing judge. That is not to say, however, that a psychiatric evaluation is indispensible or necessary. More important than any single form of information about the convicted defendant is the general sufficiency and accuracy of that information in terms of the objectives of sentencing review. In Robinson v. State, 484 P.2d 686 (Alaska 1971), we reversed a sentence not only because the trial judge did not have a psychiatric evaluation at the time of sentencing, but also because "the trial judge entertained the firm conviction that [appellant] was beyond the reach of any rehabilitative efforts." The instant case is quite distinguishable. The absence of a psychiatric evaluation in aid of sentencing is more than compensated for by the exhaustive pre-sentence report, the clearly articulated awareness of the judge of the rehabilitative function of the law, and the strong concern of the judge that appellant receive psychiatric treatment. Immediately following sentencing, the court noted, The one thing I am sure of, and that is that he certainly needs treat ment, some psychiatric treatment. . I am concerned. I don't want him to just lie around in jail. The judge then issued an order requiring the Division of Corrections to advise him on the program they find for appellant. He further elaborated, And I expect them to have some program that will lead to an improvement of the situation, not to a breakdown of this man's future. A subsequent report to the sentencing judge two months after sentencing indicates a unanimous recommendation by the classification committee -of the Southcen-tral Regional Correctional Institution that appellant be placed in a federal institution which can ensure the psychiatric treatment and rehabilitation which he requires. Appellant has since been transferred to the federal penitentiary at McNeil Island, Washington. This measure of concern for the rehabilitative treatment of appellant sufficiently distinguishes the Robinson case, and sufficiently ensures the proper objectives of sentencing. We do not find the absence of a psychiatric evaluation in aid of sentencing to be in every case grounds to set aside the sentence. Finally, appellant urges that the trial court erred by imposing sentence before his counsel had sufficient time to review the presentence report for inaccuracies. Appellant's counsel noted in his argument to the court that he had only a few minutes to read the presentence report before the beginning of the sentencing hearing. Nonetheless, he told the trial judge at the commencement of the proceedings that the defense was ready, and he did not object at any time to the hearing going forward. We find no "plain error" depriving the appellant of a substantial right, which would cause us to notice the issue on appeal. While a sentence of fifteen years without eligibility for parole until one-third of the sentence is completed, is an unusually long period of incarceration, we do not find it excessive in this case. Appellant has a history of sex offenses, and has served lesser periods of incarceration as a juvenile apparently without measurable rehabilitation being accomplished. The judgment of conviction is affirmed. . AS 83.15.230(1) provides for fixing eligibility for parole at time of sentencing. . Mrs. B was living apart from her husband, having separated from him at an earlier date. . See, United States v. Modern Reed & Rattan Co. et al., 159 F.2d 656, 658 (2d Cir. 1947). A prior conviction was introduced by the prosecution before the defendant took the stand. With reference to the fact that the defendant subsequently testified on his own behalf, the court observed, "[AJbsent the initial error, it is not clear that the defense would have followed this pattern." The court concluded, "His freedom of choice as to such issues may not be taken from him by error previously committed in the trial." . Smith v. State, 431 P.2d 507, 509 (Alaska 1907). . See, Freeman v. State, 486 P.2d 967, 981 (Alaska 1971) where we found that details of a prior conviction were erroneously admitted. We noted in the context of a finding of plain error that "the error . . . was not limited to an isolated question or to an improper reference made in passing by the state. Rather, it took the form of a protracted and insistent cross-examination which brought to the surface numerous alleged details of [appellant's] prior offense." Contrary to the argument of appellant, the Freeman case is quite distinguishable from the case presently before us. . See, Kugzruk v. State, 436 P.2d 962, 963-964 (Alaska 1968) ; Gilley v. City of Anchorage, 376 P.2d 484, 485 (Alaska 1962) ; Rank v. State, 373 P.2d 734, 736 (Alaska 1962). . In State v. Chaney, 477 P.2d 441, 443 (Alaska 1970) we noted the following objections of sentencing review: (i) to correct the sentence which is excessive in length, having regard to the nature of the offense, the character of the offender, and the protection of the public interest; in) to facilitate the rehabilitation of the offender by affording him an opportunity to assert grievances he may have regarding his sentence; (iii) to promote respect for law by correcting abuses of the sentencing power and by increasing the fairness of the sentencing process; and (iv) to promote the development and application of criteria for sentencing which are both rational and just. (Footnote omitted). .Robinson v. State, 484 P.2d 686, 689 (Alaska 1971). . Robinson v. State, 492 P.2d 106, 107 (Alaska 1971).

10562567

Joseph McGALLIARD, Appellant, v. STATE of Alaska, Appellee

McGalliard v. State

1970-06-05

No. 1085

275

280

470 P.2d 275

470

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:39:55.338471+00:00

CAP

Before DIMOND, RABINOWITZ, and CONNOR, JJ., and FITZGERALD and BUTCHER, Superior Court Judges.

Joseph McGALLIARD, Appellant, v. STATE of Alaska, Appellee.

Joseph McGALLIARD, Appellant, v. STATE of Alaska, Appellee. No. 1085. Supreme Court of Alaska. June 5, 1970. Raymond A. Nesbett, Nesbett & John-stone, Donald A. Burr, Burr, Pease & Kurtz, Anchorage, for appellant. Douglas B. Baily, Dist. Atty., Richard R. Felton, Asst. Dist. Atty., Anchorage, G. Kent Edwards, Atty. Gen., Juneau, for appellee. Before DIMOND, RABINOWITZ, and CONNOR, JJ., and FITZGERALD and BUTCHER, Superior Court Judges.

3316

20158

RABINOWITZ, Justice. Appellant was indicted on three separate counts of receiving and concealing stolen property. After trial by jury, appellant was found innocent of two counts and guilty as to one count of knowingly receiving and concealing brass fittings, screws, and valves which had allegedly been stolen from Urban Plumbing and Heating. Before this court the sole specification of error asserted is that the trial court committed error in failing to grant appellant's motion to suppress on the ground that the evidence in question was obtained as a result of an antecedent unlawful search and seizure. Appellant Joseph McGalliard was a dealer in scrap metals. Sometime prior to March 4, 1968, he loaded a Sea-Land van which was spotted on the latter's premises, with scrap for shipment to a buyer in Seattle. On March 4, the van was sealed and a bill of lading issued to appellant. For some two or three months prior to March 4, the Anchorage Police Department had suspected appellant was involved in shipping goods which had been stolen from various local businesses. During this period, the police had on one occasion searched a shipment of scrap made by appellant while the van was still on Sea-Land's premises. At various times the police had also watched appellant's scrap yard and loading sites. As part of this surveillance, they persuaded Ernest Webb, Sea-Land's terminal manager, to call them whenever appellant loaded a van for shipment. On the morning of March 5, 1968, Webb telephoned Investigator Fred Taylor of the Anchorage Police Department and told him that appellant was "loading a van of scrap" in Sea-Land's yard. Webb, Investigator Taylor, and Police Sergeant Anderson, then proceeded to the location of the Sea-Land van in question. Webb broke the seal. The three entered and once inside walked on top of the scrap. At the time the seal was broken and entry made, the police had not as yet obtained a search warrant. While in the van, Investigator Taylor noticed a brass propeller which furnished the sole basis for the search warrant the police obtained later that day. In an affidavit filed in support of his application for a search warrant, Investigator Taylor described a propeller he had observed in the Sea-Land van, and averred it fit the description of a propeller which had been stolen from the Anchorage Marina. On the basis of these statements, a search warrant was issued authorizing a search of Sea-Land's van No. 44088 for certain property described as one (1) 30 inch diameter four (4) blade, brass propeller, damaged and corroded, sleeved with a 2-2½ taper, and keyed for a shaft; one (1) brass nut with 1 ½ inch thread, and Coolidge three (3) blade brass propeller, 18 inches in diameter stolen or embezzled from Anchorage Marina, Terminal yards, Anchorage, Alaska, on or about Feb. 2, 1968. In a search of the van conducted under the authority of this search warrant, the police opened one or more barrels and discovered miscellaneous brass fittings, screws, and valves. These items furnished a substantial portion of the evidence pertaining to the Urban Plumbing and Heating count of the indictment upon which appellant was convicted. At trial, appellant moved to suppress the fittings, screws, and other items described in the inventory made of the items which were seized from the interior of the Sea-Land van. In denying the suppression motion, the trial court noted that the motion should have been made prior to trial but exercised its discretion to decide the matter on its merits. Appellant argues that the evidence in question was seized under a warrant which constituted the "fruits of the poisonous tree" of the warrantless search conducted by Investigator Taylor and Officer Anderson of the Sea-Land van. In appellant's view, this initial entry of the van by Taylor and Anderson constituted a search which was not conducted incident to an arrest, pursuant to a search warrant, or otherwise constitutionally permissible. We hold that the warrantless search which provided probable cause for issuance of the search warrant was lawful because on the particular facts of this record Sea-Land possessed a general, unrestricted independent right of access to the van. We reach this conclusion primarily on the basis of the testimony of Sea-Land's terminal manager, Ernest Webb. This witness testified that during the times in question Sea-Lands' van No. 44088 was parked in Sea-Land's terminal yard. Concerning Sea-Land's rights of access to the van, Webb testified that in general Sea-Land had the authority to enter any of its vans to inspect freight, and also possessed the "right and privilege" to add additional freight. According to Webb, a shipper could specify in the bill of lading that he desired the exclusive use of a van. When such a request was made, the carrier could not add additional freight to the particular van. According to Webb, such exclusive use status would not prohibit Sea-Land from opening the van for inspection purposes. In regard to the shipment in question, Webb testified that Sea-Land could have removed all of appellant's freight from van No. 44088 and shipped it to Seattle in a different van. This possibility existed because all that Sea-Land had contracted for was to move the freight. It had not contracted "for any given amount of space or in other words we do not guarantee space in any particular container." Webb further explained that seals on vans (such as the one he broke to gain access to van No. 44088) were used as devices to protect the carrier against claims for shortages. Sea-Land's terminal manager also stated that his company had inspection rights under its own tariff No. 116 and under certain regulations contained in the National Motor Freight classifications. Unfortunately, the applicable regulations and tariff under which Sea-Land claims rights of inspection were not made part of this record on appeal. Nevertheless, we think Webb's testimony provides a sufficient basis for the conclusion that the warrantless entry and observation of the interior of Sea-Land's van No. 44088 by Investigator Taylor and Officer Anderson was not violative of appellant's constitutional protection against unlawful searches and seizures. For it can be reasonably concluded from Webb's testimony that Sea-Land enjoyed an independent unrestricted right of access to van No. 44088 which was equal to or greater than appellant's rights in the matter. From this independent right of access on Sea-Land's part, it follows that Webb, on behalf of Sea-Land, had authority to consent to the police accompanying him when he entered the interior of van No. 44088. This follows from the well established rule in searches and seizures that given joint-right-of-access, the consent of one holding such rights is held sufficient justification for a warrantless search by government officers. Typical of cases embracing this rule are those where a wife has consented to a search of premises which she occupies jointly with her husband. There the power to consent to search does not rest on agency for a joint occupant generally has no authority to waive the rights of the other. The underlying theory of these consent cases is that it would deny the consentor's own equal or superior right of access were he unable to lead police through the area over which his property rights extended. In short, Webb's testimony establishes that Sea-Land possessed an independent unrestricted right of access into the interior of the van, which right encompassed the right to lead others into it, including the police. In support of his position that the initial warrantless search of the van by the police required suppression of the evidence in question, appellant relies on Corngold v. United States. In Corngold, government agents and employees of the carrier, TWA, together opened defendant's sealed package and found unlawfully imported watches. This search occurred after government agents had detected radioactivity emanating from the package and had informed the carrier that defendant has used a false name on the waybill. The court in Corngold held that this was an unlawful search and seizure. The gist of the court's holding was that although in form, this was an authorized carrier inspection; in substance it was a search aided by the carrier solely for the government's benefit. The court further held that even if the carrier acted for its own benefit as well, the search was unlawful because government agents participated, and such participation turned the inspection into a government search. The court reasoned! that the inspection clause authorized only inspection by the carrier itself, and did not constitute consent by the carrier to a search conducted by government officials. But for Sea-Land's general unrestricted right of access to the interior of the van, and certain distinguishing factual circumstances in the record in the case at bar, we would follow Corngold and hold the war-rantless search could not be sustained on the basis of any inspection rights Sea-Land possessed by virtue of any tariff provisions or applicable governmental regulations. For in the case at bar the government's nexus with the warrantless inspection of the van was as significantly close as that of the government's influence and participation in Corngold, On the other hand unlike Corngold, here Sea-Land possessed a general independent unrestricted right of access to the van. Of further importance is the fact that once inside the van the police did not open any of appellant's closed barrels which were stored there. As indicated previously, the police obtained a search warrant on the basis of a propeller which was not concealed inside any container but was visible to the officers after they had gained access to the interior of the van. In this regard, Corngold points out that the contents of appellant's package were not observed during a search of TWA's loading area. They were disclosed by a search of the package itself. TWA and its employees had no right of access to appellant's package independent of appel lant's consent. The right of the customs agents to search appellant's package must rest upon a showing that appellant himself waived his personal right of privacy 'by word or deed, either directly or through an agent.' We think the interior of Sea-Land's van No. 44088 stands on the same footing as TWA's loading area in Corngold. In reasoning that TWA could grant access to its own loading area without regard to appellant's wishes, the Ninth Circuit distinguished cases holding that the rights of the owner of personal property was not violated where the property is observed during a search made with the consent of another who has an equal and independent access to the place searched. See, e. g., Nelson v. People of State of California, 346 F.2d 73, 77 (9th Cir.1965); Burge v. United States, 342 F.2d 408 (9th Cir. 1965); Von Eichelberger v. United States, 252 F.2d 184, 186 (9th Cir. 1958); Woodard v. United States, 102 U.S.App. D.C. 393, 254 F.2d 312 (1958). The independent right to authorize entry does not depend upon the wishes of the owner of personal property which may be on the premises. Here Sea-Land had "an equal and independent right of access" to the interior of the van, had consented to the presence of Officers Taylor and Anderson inside the van, and the actual scope of the officers' warrantless search did not reach into any of the sealed barrels or containers appellant had placed in the van. Thus, we hold that Investigator Taylor's warrantless observation of the propeller did not taint the search warrant subsequently obtained or require the suppression of any evidence seized under the warrant. Under the circumstances, the interior of Sea-Land's van was not a constitutionally protected area, nor were any reasonable expectations of privacy appellant might have entertained regarding the uncrated propeller unlawfully impinged upon. The judgment and commitment entered below is affirmed. BONEY, C. J., not participating. . Count X of the indictment itemized approximately 172 brass fittings, screws, and valves which were alleged to have been stolen from Urban Plumbing and Heating, and subsequently received and concealed by appellant. As to the counts upon which McGal-liard was acquitted, Count II alleged that he received and concealed "approximately 2180 pounds of copper wire, which had been stolen from Ralph Bailey, knowing it to have been stolen." Count III charged that appellant received and concealed "a 30 inch" diameter brass propeller which had been stolen from Elias Tout, knowing it to have been stolen." . In his affidavit, Investigator Taylor stated in part: That he investigated a burglary which occurred on February 2, 1968 at Anchorage Marina, Terminal Yards and determined that approximately 10 brass propellers, including an 18 inch four-bladed brass propeller, damaged and corroded, keyed for a shaft and sleeved with a 2 to 2½ inch taper; two brass stuffing boxes; fifteen dollars ($15.00) in coin; and one (1) brass nut with a 1½ inch thread were missing; That on March 5, 1968, while in the company of Ernie Webb, an employee of Sea Land, Inc. and authorized to inspect vans consigned for shipment, he observed a 30 inch four-bladed brass propeller, damaged and corroded, keyed for a shaft and sleeved with a 2 to 2½ inch taper in Sea Land Van 44-088 located at 1717 Tidewater Street, Anchorage, Alaska, and consigned to Sea Land, Inc. for shipment to Federated Metals, Seattle, Washington; That said propeller fits the description of one stolen from said Anchorage Marina, Terminal Yard, Anchorage, Alaska; That therefore I believe that additional items stolen from said Anchorage Marina may be located in said van. . In the inventory filed by the police in conjunction with this search warrant, it is stated that the following items were obtained: One 30 Blade Brass Propeller with double Sleeve 2½ to 2 in taper and keyed for Shaft. (also included 1240 lbs. of Brass fittings, Valves.) Case # 68-2578. (also include 2180 lbs. of copper wire. A.S.T. Case Valdez.) . In People v. Schwartz, 54 Misc.2d 34, 281 N.Y.S.2d 246 (Sup.Ct.1967), the court held that the owner and joint occupant of a two-car, unpartitioned garage may open its door and permit police to enter. In Nelson v. People, 346 F.2d 73 (9th Cir.1965), it was held that a defendant's mistress with keys to their jointly occupied apartment may consent to a police search of jointly occupied parts of the apartment. United States v. Eldridge, 302 F.2d 463 (4th Cir.1962), held that where a defendant lends his car to a friend, giving him the trunk key, as well as the ignition key, the friend may consent to a search of the trunk. In Spencer v. People, 429 P.2d 266, 163 Colo. 182 (Colo.1967), it was held that the owner of a house may consent to a search of a bedroom to which her access is unlimited though defendant had been occupying it as a guest. See Sleziak v. State, 454 P.2d 252 (Alaska 1969). In Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684, 693-694 (1969), the court held that a joint user of a duffle bag had authority to consent to its search. . Stoner v. California, 376 U.S. 483, 488, 84 S.Ct. 889, 11 L.Ed.2d 856, 860 (1964) ; Anderson v. United States, 399 F.2d 753 (10th Cir. 1968) ; Roberts v. United States, 332 F.2d 892, 896-897 (8th Cir. 1964). Stoner held that a hotel night clerk cannot, by his consent for a police search of a room, bind the defendant who was using that room. The court reasoned the defendant's implied permission for maids, janitors, and repairmen to enter for performance of their duties did not embrace entry for other purposes such as a search. In Stoner, the court said: [T]he rights protected by the Fourth Amendment are not to be eroded by strained applications of the law of agency or by unrealistic doctrines of 'apparent authority.' 376 U.S. at 488, 84 S.Ct. at 892, 11 L.Ed.2d at 860. . 367 F.2d 1 (9th Cir. 1966). . In Corngold v. United States, 367 F.2d 1 (9th Cir. 1966), the court held: It would be difficult to justify any conclusion other than that the TWA employee participated in the search solely to serve the purposes of the government. No doubt both the customs agents and the TWA transportation agent relied upon the inspection clause in TWA's tariff and the act of TWA's agent in cutting open the outside package to furnish technical legal justification for the search. But as we have noted, the TWA employee himself testified that he opened appellant's package only because the government agents asked him to, and there is nothing else in the record which would indicate that the package was in fact opened for any purpose of the carrier — it does not appear, for example, that the rate for carrying furniture and watches differed, or that the carrier took any action on its own behalf when the mislabeling was revealed. 367 F.2d at 5. * ⅜ Appellant did not abandon his package ; and mere surrender of custody to a carrier did not forfeit appellant's right to privacy. See Ex parte Jackson, 96 U.S. 727, 733, 24 L.Ed. 877 (1878); Santana v. United States, 329 F.2d 854, 856 (1st Cir. 1964) ; Oliver v. United States, 239 F.2d 818, 820-821, 61 A.L.R.2d 1273 (8th Cir. 1957). He did not expressly authorize TWA to consent to search of his package by customs agents. Therefore, unless appellant impliedly authorized TWA to acquiesce in such a search, TWA's consent could not bind appellant. The facts negate any intention to grant TWA such broad authority. Appellant's package, securely wrapped and tied, was delivered to the airline solely for transportation from Los Angeles to New York, and the inspection clause in TWA's tariff authorized examination only by the carrier itself. 367 F.2d at 7-8. . On this inspection issue we believe that Corngold is the better reasoned of the circuit court decisions pertaining to in-pection-searches and seizures. In United States v. Blum, 329 F.2d 49, 52 (2d Cir. 1964), government agents with the permission of R.E.A. opened the package in question and found 2,149 Swiss watch movements whicli did not have any required importer's symbol. There the court disposed of the appellant's suppression contentions saying: We find no merit in the claim of unreasonable search and seizure. R.E.A. had a right to open the carton and examine the contents, which were mis-declared on the waybill. The electronic devices had indicated that the contents were other than the declared cutlery, justifying inspection under the right reserved in R.E.A.'s Express Classification. 329 F.2d at 52. Gold v. United States, 378 F.2d 588 (9th Cir. 1967), holds that evidence turned up by an airline's search of defendants' package may be admitted where a federal agent merely informed the airliner of mislabelling of the packages, then left. The inspection was an airline inspection to discover mislabelling, permitted under the waybill, and the government participation was too slight to make it a government search. See also People v. McGrew, 1 Cal.3d 404, 82 Cal.Rptr. 473, 462 P.2d 1 (1969). . Webb testified that under its inspection rights, Sea-Land could inspect to determine if the shipment was properly loaded, if any additional space was available, and to determine what items were actually shipped. . Corngold v. United States, 367 F.2d 1, 7 (9th Cir. 1966). . Id. at 7. . Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). .In this appeal, we are not asked to decide whether the search warrant sufficiently particularized the items to be seized or whether the seizure of the items in question was proper under the wording of the warrant.

10559920

Gladys M. MAXWELL, Appellant, v. Kenneth OLSEN, d/b/a Sportsman's Lodge, et al., Appellee

Maxwell v. Olsen

1970-04-15

No. 1150

48

55

468 P.2d 48

468

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:39:59.543332+00:00

CAP

Before DIMOND, RABINOWITZ, BONEY, and CONNOR, JJ., and BUTCHER, Superior Court Judge.

Gladys M. MAXWELL, Appellant, v. Kenneth OLSEN, d/b/a Sportsman’s Lodge, et al., Appellee.

Gladys M. MAXWELL, Appellant, v. Kenneth OLSEN, d/b/a Sportsman’s Lodge, et al., Appellee. No. 1150. Supreme Court of Alaska. April 15, 1970. William H. Fuld and Robert M. Libbey, of Kay, Miller & Libbey, Anchorage, for appellant. Daniel A. Moore, Jr., of Delaney, Wiles, Moore, Hayes & Reitman, Inc., Anchorage, for appellee. Before DIMOND, RABINOWITZ, BONEY, and CONNOR, JJ., and BUTCHER, Superior Court Judge.

4523

26845

OPINION RABINOWITZ, Justice. This appeal arises out of an accident which occurred on June 28, 1966, near the confluence of the Kenai and Russian Rivers. Appellant Gladys Maxwell alleged that at the time in question she was a passenger for hire aboard a ferry which was maintained and operated by appellee on the Ke-nai River which was "among the navigable waters of the United States of America." On the basis of these allegations, appellant further asserted the right to pursue her maritime remedies in the lower court. Thus, under the "saving to suitors" clause of the Judiciary Act of 1789, the case at bar was tried as a maritime tort before a superior court jury. On the basis of extraordinarily divergent versions concerning the circumstances leading up to and surrounding appellant's accident, the jury returned a verdict in favor of appellee. Appellant then moved for a judgment n. o. v. and in the alternative for a new trial. These motions were denied and this appeal followed. Appellant's first three specifications of error relate to the question of the sufficiency of the evidence. This court, in reviewing denials of motions for judgments n. o. v., "views the evidence in its strongest light in favor of the party against whom the motions were made" to determine if fair-minded jurors could differ as to the reasonable inferences of fact that might be drawn from the evidence. Concerning the granting or refusing of new trials, in Ahlstrom v. Cummings we said that such decisions rest in the sound discretion of the trial judge and that: We shall not interfere with the exercise of his discretion except in the most exceptional circumstances and to prevent a miscarriage of justice. The trial court's denial of a motion for new trial will be upheld where "there was clearly an evidentiary basis for the jury's decision" and we cannot say that evidence to support the verdict was completely lacking or was so slight and unconvincing as to make the verdict plainly unreasonable and unjust. Guided by these criteria, we hold that fair-minded jurors could have differed on the question of appellee's negligence. We further hold that such a jury could reason ably have concluded appellee did not breach any duty of care he owed to appellant. A state court under the "saving to suitors" clause of the Judicial Act of 1789, discussed below, must apply the doctrine of comparative, rather than contributory negligence. In the case at bar, instructions on comparative negligence were given. Under the evidence, the jury could have concluded that appellee was not at all negligent. The evidence pertaining to almost every facet of the events which preceded appellant's attempt to disembark from appellee's ferry, as well as the method employed by appellant to disembark was in sharp conflict. Resolution of such conflict was within the jury's province. Based upon our review of the record, we cannot conclude that evidence tending to support the jury's verdict was so slight and unconvincing as to require corrective intervention on our part. We therefore hold that the trial judge did not abuse his discretion in failing- to grant a new trial on the asserted grounds of insufficiency of evidence. We further hold that the trial court was correct in its refusal to grant appellant's motion for judgment n. o. v. In reaching these holdings, we have rejected appellant's arguments to the effect that the maritime aspects of this negligence suit require us to exercise a much broader' scope of review than normally would be employed in non-maritime negligence actions. As we understand appellant's argument, this court should review the issue of liability de novo. The case at bar was tried as a maritime tort. Appellant alleged that maritime law governed. Appellee did not dispute this contention, admitting that the Kenai River was "among the navigable waters of the United States of America." Article III, section 2 of the United States Constitution extends the "judicial power to all cases of admiralty and maritime jurisdiction." Congressional implementation of this constitutional provision followed. Section 9 of the Judiciary Act of 1789 provided that: [T]he district courts shall also have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it. Admiralty jurisdiction has traditionally encompassed tort causes of actions for personal injuries to passengers aboard ships on navigable waters. Many of these suits are brought under the "saving to suitors" clause in order to obtain jury trials. Generally, the "saving to suitors" clause means that a suitor asserting an in per-sonam admiralty claim may elect to sue in a "common law" state court through an ordinary civil action In such suits, state courts are required to apply the same substantive law as would be applied had the suit been brought in admiralty in a federal court. In the case at bar, the parties differ on the question of what standard of appellate review is to be applied in maritime suits tried by juries in state courts under the "saving to suitors" clause. We are of the opinion that questions pertaining to scope of appellate review are procedural in character. In regard to procedural matters, state courts under the "saving to suitors" proviso are free to apply their own rules. That is precisely what we have done in the case at bar in reviewing the merits of appellant's first three specifications of error. Under the "saving to suitors" clause, we are not precluded from applying our own established rules governing the scope of review of jury verdicts in civil actions. Appellant next specifies as error the following damage instruction which was given by the court. In this charge, the jury was informed that they had been instructed on the subject of the measure of damages in this action because it is my duty to instruct you as to all the law that may become pertinent in your deliberations. I, of course, do not know whether you will need the instructions on damages, and the fact that they have been given to you must not be considered as intimating any view of my own on the issue of liability or as to which party is entitled to your verdict. Appellant argues this instruction unduly emphasized that the jury should not reach issues of damages unless convinced of liability; that appellant's proposed instruction was preferable ; and that the charge given was repetitious and amounted to an apology by the trial court for giving instructions on damages. We find no merit in appellant's contentions. The questioned instruction contained a correct statement of law and was -neither apologetic or repetitious. During the rebuttal portion of counsel for appellant's final argument, counsel for appellee stated: And I also object that he's already gone about 35 minutes. If I'd known he was going to take this long for rebuttal, I would have taken longer myself. I tried to hurry mine through so we could finish at 12:00. The trial court then stated: "The objection is noted," and counsel for appellant resumed his final argument. We can discern no error on the trial judge's part in regard to this assertion of error, nor can we perceive that any serious prejudice to appellant's counsel's effectiveness resulted from this exchange. During his closing argument, counsel for appellant sought to persuade the jury that Ronnie Slay, who had not been present at the trial but whose deposition had been very detrimental to appellant's case, was not a credible witness. In the course of his final argument, the following took place: MR. LIBBEY (appellant's counsel): And then he says, why shouldn't you just — just believe Slay. Well, I'll tell you one of the reasons is that he was a defendant in this case; still is. If he— if he could come back to Alaska, he could be served today and — and required himself to appear as a defendant in this action. MR. MOORE (appellee's counsel); Your Honor, I object to that. Mr. Slay is not a defendant in this case. THE COURT: I think the objection is well taken. It's my understanding Mr. — Mr. Slay is dead, isn't that correct? MR. MOORE: That's correct. MR. LIBBEY: As far as I know, but he's still a defendant. THE COURT: And— MR. MOORE: He's not a defendant in this action. MR. LIBBEY: (Indiscernible-interrupted) against him. THE COURT: Can't — can't bring him back to Alaska if he's dead, sir. MR. LIBBEY: Well, I apologize to the Court, to Mr. Moore and to the jury, but that's— MR. MOORE: He's not a defendant in this lawsuit and the Court so stated at the time that we initially started this case. THE COURT: Now wait a minute. He was a defendant. He was never— MR. MOORE: Yes. THE COURT: —served and he's not here. MR. MOORE: He was never a party to this lawsuit, let's put it that way, Your Honor. Under the— THE COURT: He was— MR. MOORE: —rules he was never a party to this lawsuit. THE COURT: He — he was never served with papers. MR. MOORE: That's correct, and— THE COURT: Go ahead. MR. MOORE: —so therefore, he was never a party. THE COURT: Let's move on. MR. LIBBEY: Thank you. MR. MOORE: So I object to the statement of counsel on it. THE COURT: Objection (Indiscernible-interrupted) . MR. MOORE: And I also.object that he's already gone about 35 minutes. If I'd known he was going to take this long for rebuttal, I would have taken longer myself. I tried to hurry mine through so we could finish at 12:00. THE COURT: The objection is noted. MR. LIBBEY: All right. Ladies and Gentlemen, I'm sorry for the remark I made about him not being able to come back. I think there has been sufficient reason to question him without that remark — Appellant argues that the jury "could very well have been shocked" by his counsel's attack on Slay's credibility once they learned that Slay was dead, thus preventing counsel from proceeding effectively along these lines. It is unclear what ultimate ruling the trial court made in regard to counsel for appellee's objection to this attempted attack upon Slay's credibility. Assuming that the trial court sustained ap-pellee's objection, we cannot find that this ruling constituted prejudicial error. Concerning credibility, it was permissible for appellant's counsel to focus upon Slay's bias at the time his deposition was taken, regardless of whether Slay was dead at the time of trial or was technically a party or defendant. Nothing in the court's ruling precluded counsel for . appellant from arguing the existence of bias at the time Slay's deposition was taken. We therefore conclude that no prejudicial error resulted from the trial court's ruling. The trial court, over objection, gave the following instruction: You are instructed, however, that merely because an accident occurred to plaintiff that this will not, of itself, make the defendant liable. In the context of this case, appellant contends- that the giving of this "mere accident" instruction confused and misled the jury. This specification of error presents the fourth occasion in which this court has been called upon to review the propriety of giving an unavoidable accident, or mere accident instruction. In three prior cases, Harrison v. Garner; Mitchell v. Knight, and Alaska Brick Company v. McCoy, this court voiced its disapproval of the use of such instructions. In the first of these cases, Harrison v. Garner, we held it was reversible error to have given instructions on "mere accident" or "unavoidable accident." In reaching this conclusion, we said: The evidence was such that the jury could have found that defendant's own lack of care created or brought about the situation where the accident became inevitable or unavoidable. In these circumstances the instructions on unavoidable accident were not warranted. It was reversible error to give those instructions because their probable effect was to confuse and mislead the jury to plaintiffs prejudice. Harrison was followed by Mitchell v. Knight where we again held that it was error to have given a mere accident instruction, but further held such error harmless. Alaska Brick Company v. Mc Coy contains our most recent statement on the subject. There we held that the giving of a mere accident instruction was error, but that the error was harmless because it did not appear that the jury was misled or confused to the prejudice of appellant. In Alaska Brick, in regard to mere accident or unavoidable accident instructions, we stated that in our experience and repeated consideration of authorities on this subject, we are unable to conceive of any situation in the typical negligence action where such an instruction would be appropriate. Such a situation might develop in the future; we do not foreclose that possibility. But as of this time we are convinced that in the ordinary negligence action an instruction on unavoidable accident is unnecessary and has a tendency to complicate the task that the jury has to perform. We express our disapproval of the continued use by the trial courts of such an instruction as a standard instruction in negligence actions. Despite our admonition to trial courts to eschew unavoidable accident or mere accident instructions, the trial court in the case at bar inexplicably gave the mere accident instruction which is now at issue in this appeal. We adhere to our previous conclusion that an instruction of this type should not be given because of its tendency to confuse and mislead juries in ordinary negligence actions. We therefore hold that the giving of a mere accident instruction in the case at bar was error. We further hold that on the facts of the case at bar this error constituted reversible error, Here the evidence was in stark conflict as to almost every aspect of the liability issue Given as close a question of liability as appears from study of this record, we conclude that the mere accident instruction prejudiced appellant's substantial right to a fair trial. Reversed and remanded for a new trial. NESBETT, C. J., not participating. . In her second amended complaint appellant alleged, in part, that she had a cause of action within the jurisdiction of the Maritime Law of the United States of America, as reserved to the Federal Judiciary under the Constitution of the United States of America, and under federal statute (28 U.S.C. § 1333), plaintiff has the right to pursue her maritime remedy in this court. . 1 Stat. 76-77 (1789) presently codified as 28 U.S.C. § 1333. This statute now reads as follows: The district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all eases all other remedies to which they are otherwise entitled. . Appellant contends that the trial court erred in its refusal to grant her motion for judgment n. o. v., committed further error in denying her motion for a new trial and also asserts that the verdict "was contrary to the evidence and law of the case." . Otis Elevator Co. v. McLaney, 406 P.2d 7, 9-10 (Alaska 1965). . 388 P.2d 261, 262 (Alaska 1964) (footnote omitted.) . Ahlstrom v. Cummings, 388 P.2d 261, 262 (Alaska 1964) (footnote omitted). See also City of Kotzebue v. Ipalook, Opinion No. 588, at 14 n. 13, 462 P.2d 75 (Alaska, December 5, 1969) ; West v. Adm'x of Estate of Nershak, 440 P.2d 119, 121 (Alaska 1968). . 28 U.S.C. § 1333; G. Gilmore & C. Black, The Law of Admiralty 45 (1957) ; Chelentis v. Luckenbach S.S. Co., 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1171 (1918) ; Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409, 74 S.Ct. 202, 98 L.Ed. 143, 150 (1953) ; Kermarec v. Campagnie Generate Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959). . The accident occurred at the situs of ap-pellee's small wilderness ferry boat operation which was located on the Kenai River downstream from the confluence of the Kenai and Russian Rivers. The primary purpose of this ferry was to convey fishermen from a campground located next to appellee's Sportsman's Lodge to the opposite shore for fishing. For $1.50 a passenger was entitled to ride back and forth as many times in one day as desired. On busy days as many as 350 to 400 people would use the services of the ferry. The ferry was located on government land, operated through a use permit issued by the Kenai National Moose Range, and inspected and licensed by the United States Coast Guard. In regard to the issue of liability, five witnesses testified in appellant's behalf. Of this testimony, two witnesses' testimony came in by way of deposition. Three witnesses testified in appellee's behalf. Of the three witnesses, two were by deposition. According to Ronnie Slay's version, he instructed the passengers, including appellant who was 50 years old and fairly heavy, during the crossing that they were to remain seated until he had stopped the ferry, and had come to the front of the boat to assist passengers off. Slay said that once they reached the other side he helped appellant off the boat and onto a three-foot dock, then as he was assisting her from the dock to the ground (a distance of approximately two feet) appellant lost her balance and fell. Appellant and her witnesses contravert-ed Slay's version in its entirety. According to appellant and her witnesses, no instructions were given, Slay did not offer .any assistance, there was no dock or platform in existence when she attempted to disembark, and the only way to dis-bark was to jump down from a height of three and one-half to four feet onto the rocky, slippery river bed which was covered with about one inch of water at the time. .In regard to the scope of review in federal admiralty litigation, the Supreme Court of the United States in McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 8, 99 L.Ed. 20, 24 (1954), said: In reviewing a judgment of a trial court sitting without a jury in admiralty, the Court of Appeals may not set aside the judgment below unless it is clearly erroneous. No greater scope of review is exercised by appellate tribunals in admiralty cases than they exercise under Rule 52(a) of the Federal Rules of Civil Procedure. McAllister was followed by a 1966 amendment to the Federal Rules of Civil Procedure which made the Federal Rules of Civil Procedure applicable to all admiralty eases with the exception of prize cases. Lloyd v. Gill, 406 F.2d 585 (5th Cir. 1969), is typical of the employment of rule 52(a)'s clearly erroneous standard to a lower federal court's findings in admiralty. In arguing for a broader type of admiralty review, appellant cites San Pedro Compania Armadoras, S. A. v. Yannacopoulos, 357 F.2d 737 (5th Cir. 1966). There the court said: [Ajlthough we are bound by the clearly erroneous doctrine of McAllister v. United States it does not apply with equal force, where, as here, the appellate court is in as good a position as the lower court to evaluate the testimony that is crucial to the case. Appellant also relies on the following portion of the court's opinion in Caradelis v. Refineria Panama, S. A., 384 F.2d 589, 593-594 (5th Cir. 1967) (footnotes omitted): [T]his circuit as well as others has now fully accepted the proposition that the 'clearly erroneous' standard set out in Fed.R.Civ.P. 52 applies to admiralty actions. We have also consistently recognized that when some or all of the evidence upon which the findings are based was not testimony of 'live' witnesses produced before the district court, the 'clearly erroneous' standard is somewhat modified. We feel that while we may not consider the evidence de novo and must give considerable weight to the findings of the district court, we may reexamine the evidence more closely than if the clearly erroneous rule was fully applicable * ⅜ *. The Yannaoopoulos and Cardelis cases are in accord with the decisions this court has made in construing our Civil Rule 52(a), which is identical with the federal rule. But such decisions are not pertinent here, because the "clearly erroneous" doctrine is applicable only in civil actions tried by the court without a jury. Paskavan v. Mesich, 455 P.2d 229, 246 (Alaska 1969) ; Fairbanks Publishing Co. v. Pitka, 445 P.2d 685, 687-688 (Alaska 1968). . 1 Stat. 76-77 (1789). For the present form of the "saving to suitors" clause, see supra note 2. See also Admiralty Jurisdiction Extension Act, 46 U.S.C. § 740. . The Admiral Peoples, 295 U.S. 649, 55 S.Ct. 885, 79 L.Ed. 1633 (1935). There the injured woman fell from the gangplank while disembarking. The Supreme Court held it was within admiralty jurisdiction on the ground that the gangplank was part of the vessel. . G. Gilmore & C. Black, The Law of Admiralty at 21-22 n. 77 (1957). . Id. at 33. . Id. at 45-46; see Stevens, Erie R.R. v. Tompkins and the Uniform General Maritime Law, 64 Harv.L.Rev. 246 (1950). . In Madruga v. Superior Court, 346 U.S. 556, 561, 74 S.Ct. 298, 98 L.Ed. 290, 296 (1954), Mr. Justice Black said: Aside from its inability to provide a remedy in rem for a maritime cause of action, this Court has said that a state, 'having concurrent jurisdiction, is free to adopt such remedies, and to attach to them such incidents, as it sees fit' so long as it does not attempt to make changes in the 'substantive maritime law.' Bed Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 124, 44 S.Ct. 274, 68 L.Ed. 582, 587. . Appellant submitted the following requested instruction: The Court has endeavored to give you instructions embodying all rules of law that may become necessary in guiding you to a just and lawful verdict. The applicability of some of these instructions will depend upon the conclusions you reach as to what the facts are. As to any such instruction, the fact that it has been given must not be taken as indicating an opinion of the court that the instructions will be necessary or as to what the facts are. If an instruction applies only to a state of facts which you find does not exist, you will disregard the instruction. . In a previous instruction, the court told the jury: Neither by these instructions nor by any ruling or remark which I have made do I or have I meant to indicate any opinion as to the facts. . Orr v. Los Angeles Metropolitan Transit Authority, 213 Cal.App.2d 699, 29 Cal.Rptr. 355 (1963); Rasich v. Gladding McBean & Co., 90 Cal.App.2d 241, 202 P.2d 576 (1949). . Appellant's position here is that the exchange left "Appellant's counsel in a much less favorable light than Appellee's counsel at the conclusion of the case. The result was the serious impairment of the effectiveness of the argument urged on Appellant's behalf." . As we read the record, the jury had learned at a prior point during the trial that Slay was dead. In the presence of the jury, and just before Slay's deposition was read into evidence the record reflects the following colloquy: MR. MOORE: [the deposition] Of Mr. Ronnie Slay. THE COURT: It's understood that Ronnie Slay is now dead. MR. MOORE: That's right, Your Honor, he — he was killed in the war here, some— THE COURT: The deposition of Ronnie Slay may be read. . 379 P.2d 948, 949 (Alaska 1963). . 394 P.2d 892, 895-896 (Alaska 1964). . 400 P.2d 454, 455 (Alaska 1965). . 379 P.2d 948, 949 (Alaska 1963). . The instructions in Harrison read in part as follows: The mere fact that an accident happened, considered alone, does not as a rule permit the jury to draw the inference that the accident was caused by someone's negligence. Also the mere fact, if it is a fact, that it was possible for a person to avoid an accident he did not avoid, does not, of itself, justify a finding that he was negligent. ⅜ ⅜ * The mere fact that an accident happened, considered alone, would not support a verdict for any particular sum. 379 P.2d at 949. . Id. at 949 (footnotes omitted) (emphasis added). Cited in support of the text is the Supreme Court of California's decision in Butigan v. Yellow Cab Co., 49 Cal.2d 652, 320 P.2d 500, 505-506 (1958). Butigan's disapproval of "unavoidable" or "inevitable" accident instructions has been followed in Vespe v. DiMarco, 43 N.J. 430, 204 A.2d 874, 881-882 (1984) ; Fenton v. Aleshire, 238 Or. 24, 393 P.2d 217, 223 (1964) ; Lewis v. Buckskin Joe's, Inc., 156 Colo. 46, 396 P.2d 933, 941-942 (1964). . 394 P.2d 892, 895-896 (Alaska 1964). . In the Mitchell case, the instruction in question read in part as follows: The fact that an accident occurred and that the plaintiff sustained injuries therefrom, raises no presumption that the accident and the resulting injuries were caused by the negligence of the defendants, or any one of them. Accidents may and do occur in the absence of negligence. 394 P.2d at 895 n. 5. . In holding the giving of a mere accident instruction harmless error, we said in Mitchell that: It was improper to give that instruction because the jury could have found from the evidence that lack of care on Knight's part brought about the situation where the collision between his car and appellant's motorbike became inevitable or unavoidable. However, every error committed in the course of a trial does not call for reversal. Appellant does not point out in his brief, nor do we perceive in the light of all of the evidence in this case and the instructions as a whole, how [the] instruction ⅜ could have confused or misled the jury to appellant's prejudice. The error in giving [the] instruction was harmless. 394 P.2d at 896 (footnotes omitted). . 400 P.2d 454, 455-456 (Alaska 1965). . In the Alaska Brick case, the questioned instruction read in part: [T]he mere fact that an accident happened wherein the plaintiff was injured does not, in and of itself, entitle the plaintiff to a verdict against the defendant, nor serve as actual proof that the plaintiff was guilty of contributory negligence. ⅜ * ⅝ * » The fact that an accident occurred and that the plaintiff sustained injuries therefrom, raises no presumption that the accident and the resulting injuries were caused by the negligence of the defendant. Accidents may and do occur in the absence of negligence and in order to fix liability upon the defendant, it is necessary for the plaintiff to prove by a preponderance of the evidence that the defendant was negligent and that such negligence was the proximate cause of plaintiff's injuries. 400 P.2d at 455 n. 2. . 400 P.2d at 456.

10556690

Vernon Percy HOWARD, Appellant, v. STATE of Alaska, Appellee

Howard v. State

1971-11-30

No. 1210

154

157

491 P.2d 154

491

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:13.332373+00:00

CAP

Before BONEY, C. J, and DIMOND, RABINO WITZ, CONNOR and ERWIN, JJ-

Vernon Percy HOWARD, Appellant, v. STATE of Alaska, Appellee.

Vernon Percy HOWARD, Appellant, v. STATE of Alaska, Appellee. No. 1210. Supreme Court of Alaska. Nov. 30, 1971. Herbert D. Soli, Public Defender, R. Collin Middleton, Meredith A. Wagstaff, Asst. Public Defenders, Anchorage, for appellant. John Havelock, Atty. Gen., Juneau, Sea-born J. Buckalew, Dist. Atty., Charles M. Merriner, Asst. Dist. Atty., Anchorage, for appellee. Before BONEY, C. J, and DIMOND, RABINO WITZ, CONNOR and ERWIN, JJ-

1539

9341

RABINOWITZ, Justice. After trial by jury Vernon Percy Howard was found guilty of receiving and concealing stolen property in violation of AS 11.20.350. Thereafter a judgment and commitment was entered under which Howard was sentenced to three years' imprisonment. On June 3, 1969, approximately 26 leather coats were stolen from the premises of Leather Imports, Inc., in Anchorage. Howard was convicted of receiving and concealing 12 of these coats. The prosecution's chief witness, Tom Mingione, admitted participating in the burglary of the premises of Leather Imports, Inc., and the larceny of the coats. Mingione further admitted to three prior felony convictions, and to the fact that in order to better his lot he agreed to cooperate with the Anchorage City Police. Mingione told the police that he and two accomplices had sold the coats to Howard for $700. Pursuant to a plan worked out with police officials, Mingione agreed to repurchase the coats for the Anchorage City Police Department. In order to carry out this objective, Mingione was given $325 in bills, the serial numbers of which were recorded. Mingione testified that he gave Howard $325 and received the coats in exchange. Officer George Weaver testified that he had the Howard residence under surveillance at the time this transaction took place, and that he arrested Howard shortly after Mingione departed from Howard's residence with a suitcase and a bag. Officer Weaver searched Howard contemporaneously to the arrest and recovered the $325 which had been furnished to Min-gione by the police. The coats which were recovered from the suitcase and bag were subsequently identified as some of the coats which were taken in the Leather Imports burglary. Testifying in his own defense, Howard admitted that he had given Mingione the suitcase and bag, but denied any knowledge of the contents of the suitcase or bag. According to Howard, Mingione had left the suitcase and bag at his residence for storage. Howard stated that he knew Min-gione and in the past had loaned him small sums. In this regard Howard said that in October of 1967 he lent Mingione $400 to purchase a truck. Howard further testified that Mingione gave him $325 when he picked up his belongings, telling him that it was for partial payment of the loan he had received to purchase the truck. In his first specification of error Howard contends that the trial court erroneously refused to give the following instruction: The court instructs the jury that the recent possession of stolen property alone is not evidence of knowledge that the property was stolen. In light of our study of the record in this case, we conclude that no error was committed by tne trial court by virtue of its refusal to give this requested instruction. In its charge the superior court informed the jury that Alaska's statute making it a crime to receive and conceal stolen property requires that the person must receive and conceal the property "knowing it to have been taken or stolen." In defining the essential elements of the crime, the trial court further instructed in' part that the prosecution was required to prove beyond a reasonable doubt that on or about the time and place alleged in the indictment, the defendant, Vernon Percy Howard, did unlawfully and feloniously, buy, receive or conceal property which had been stolen ; that defendant knew at the time that such property had been stolen. Finally, in defining the term "conceal" the court in part stated that [i]f you find that he was in possession of the property, and knew he was in possession of it, and knew that the property was stolen, and that he had no intent to return it to the owner, this was concealing the property within the meaning of the statute. From the foregoing portions of the court's charge, it is clear that the prosecution had the burden of proving guilty knowledge on Howard's part. More particularly, the state had to prove beyond a reasonable doubt that at the time Howard received and concealed the coats in ques tion he knew these items had been stolen. In the evidentiary context of this case, proof of Howard's knowledge of the stolen character of the coats did not turn upon his recent possession of stolen property. Basically, if the jury believed Mingione, there was ample evidence, other than recent possession of stolen goods, to show Howard's guilty knowledge. In this context, we hold that it was not error to refuse Howard's requested instruction. In his second specification of error Howard asserts that the trial court erred in failing to grant a mistrial sua sponte and in failing to grant appellant's motion for a new trial. These alleged errors are based on the prosecuting attorney's cross-examination of Howard "concerning improper acts constituting evidence of other crimes" of which Howard had not been convicted and on the prosecutor's references in final argument to this same subject matter. We hold that the prosecutor's conduct in the case at bar did not deprive Howard of a fair trial. Howard testified in his own defense. In the course of the direct examination of Howard, his counsel, by way of anticipation, brought out the fact that Howard gambles and was cohabiting with a woman who was not his wife. In cross-examining Howard, the prosecuting attorney questioned Howard about his gambling and cohabitation. Counsel for Howard objected to this line of questioning, but did not lodge any objection to the prosecutor's questions of Howard regarding a scheme on Howard's part to deceive the Internal Revenue. Civil Rule 43(g) (7) which is made applicable to criminal prosecutions by Criminal Rule 26(a) provides that: An adverse party may cross examine a witness as to any matter stated in the direct examination or connected therewith, and in so doing may interrogate the witness by leading questions. Here the matters that were inquired into on cross-examination by counsel for the government were related to and connected with matters Howard had testified to during his direct examination, and were thus authorized under Civil Rule 43(g) (7). Although we find some of the phraseology employed by the prosecutor less than artful, we cannot find that his cross-examination of Howard worked a substantial interference on the accused's right to a fair trial. We reach a similar conclusion regarding Howard's assertion that he is entitled to a new trial on the basis of the prosecutor's remarks made during final argument concerning Howard's gambling, cohabitation, and deception of the Internal Revenue Service. We think the prosecutor's comments were limited to reasonable inferences from the record, and therefore do not provide the basis for an award of a new trial. Howard's final specification of error is to the effect that the trial court erred in failing to grant him an eviden-tiary hearing concerning an allegedly im proper statement made by the bailiff to the jury during the course of their deliberations. We find that the record furnished us does not permit intelligent review of this question. As far as we can discern, Howard's counsel never explicitly moved for an evidentiary hearing or bottomed his motion for new trial on the grounds of misconduct on the bailiff's part. Thus we find that the issue is not properly before this court and therefore decline to pass on the question. The judgment and commitment entered below is affirmed. . Howard first brought this subject up in his direct examination. . We also note that the trial court in the case at bar cautioned the jury that Howard was charged only with the crime of receiving and concealing stolen property and that evidence of other crimes "isn't important here at all." See Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314, 1321 (1935), for a discussion by the Supreme Court of the United States of the role the prosecutor should play in federal prosecutions. We think the views expressed there are fully applicable to state prosecutors. This was recognized in the adoption of the ABA Code of Professional Responsibility by Supreme Court Order 128. See ABA Code of Professional Responsibility, Canon 7, EC 7-13 (1969). See generally ABA Project on Standards for Criminal Justice, The Prosecution Function and The Defense Function, 43-134 (1970). .Even if we were to view the questioned remarks as unjustified in the context of the' entire trial, we think any error flowing from the prosecutor's conduct was in the nature of harmless error under the standard of Love v. State, 457 P.2d 622, 631-632 (Alaska 1969). . Howard is not precluded from raising this issue in future proceedings. Under Crim. R. 33 and 53, it is possible that Howard's allegations of the bailiff's misconduct could provide the basis for a motion for new trial. Additionally, Howard can advance this ground as a basis for post-conviction relief under Crim.R. 35(b).

10559441

LABORERS AND HOD CARRIERS UNION, LOCAL NO. 341, Appellant, v. Lillian GROOTHUIS et al., Appellees; Lillian GROOTHUIS, Appellant, v. EMPLOYERS LIABILITY ASSURANCE CORPORATION, a foreign corporation, et al., Appellees

Laborers & Hod Carriers Union, Local No. 341 v. Groothuis

1972-03-17

Nos. 1435, 1459

808

814

494 P.2d 808

494

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:29.676845+00:00

CAP

Before BONEY, C. J., and RABINO-WITZ and CONNOR, JJ.

LABORERS AND HOD CARRIERS UNION, LOCAL NO. 341, Appellant, v. Lillian GROOTHUIS et al., Appellees. Lillian GROOTHUIS, Appellant, v. EMPLOYERS LIABILITY ASSURANCE CORPORATION, a foreign corporation, et al., Appellees.

LABORERS AND HOD CARRIERS UNION, LOCAL NO. 341, Appellant, v. Lillian GROOTHUIS et al., Appellees. Lillian GROOTHUIS, Appellant, v. EMPLOYERS LIABILITY ASSURANCE CORPORATION, a foreign corporation, et al., Appellees. Nos. 1435, 1459. Supreme Court of Alaska. March 17, 1972. Douglas D. Lottridge and David H. Thorsness, of Hughes, Thorsness, Lowe, Gantz & Clark, Anchorage, for appellant. Karl L. Walter, Jr. and Clark S. Gruen-ing, of Groh, Benkert & Greene, Anchorage, for Lillian Groothuis. Keith E. Brown and Charles Hagans, Anchorage, for Employers Liability Assurance Corp. and State of Alaska. Before BONEY, C. J., and RABINO-WITZ and CONNOR, JJ.

2923

17694

OPINION CONNOR, Justice. An unfortunate airplane crash of November 21, 1968, provides the background for this case. The plane crashed while carrying the members of the Governor's Employment Advisory Commission from Barrow, Alaska, to Inuvik, N. T., Canada, to inspect a model native town. Among those killed in the crash was Harold Groothuis who was chairman of the commission and business manager of Laborers & Hod Carriers Union, Local #341. After the death of Harold Groothuis, his widow, Mrs. Lillian Groothuis, made application seeking workmen's compensation benefits for herself and a minor child. It was Mrs. Groothuis' contention that her husband was an employee of both the state and Local #341 at the time of his death. The Alaska Workmen's Compensation Board reached a decision in which it found that the deceased was an employee of the State of Alaska but was not acting within the course and scope of his employment for Local #341 at the time of the crash. Thus, the board rejected the notion of joint or dual employment. Both the state and Mrs, Groothuis appealed to the superior court from those parts of the board's decision that were ad verse to them. Acting on the state's motion for summary judgment, the superior court reversed the holding of the board and found that there was no joint employment because Mr. Groothuis was an employee acting in the course and scope of his employment with Local #341 and was not an employee of the State of Alaska. We reverse and hold that, at the time of the fatal crash, Mr. Groothuis was a dual employee of both the state and of Local #341. First, we will consider the decision as it relates to the question of Mr. Groothuis' employment by the state. After evaluating the many factors, especially the relevant statutes, the board determined that there was a contract of employment between the decedent and the state, and that his death arose out of and in the course of such employment for the state. In finding the existence of the employment contract the board held that AS 44.19.490 made the subject matter of the contract sufficiently definite and certain, that a letter from the Governor showed the existence of an offer, and that the filing of the oath of office by the decedent constituted an acceptance of the offer. There was also evidence tending to show the presence of the consideration element and the element of control which is sometimes necessary to find an employment contract. Thus, there was substantial evidence upon which the board could have found the existence of a contract of employment either express or implied, a factor we have found necessary to the award of workmen's compensation benefits. In addition to the employment contract there is also substantial evidence to find the existence of an employment relationship between Mr. Groothuis and the State of Alaska under the "relative nature of the work" test employed by this court in Searfus v. Northern Gas Co., 472 P.2d 966, 969 (Alaska 1970). We rejected the use of the common law definition of "servant" as a definition of "employee" in Searfus because we felt that this was too narrow an approach to effectuate the purposes of the workmen's.compensation statute. "Professor Larson states that the theory of compensation legislation is that the costs of all industrial accidents should be borne by the consumer as a part of the cost of the product. "From this principle, Professor Larson infers that 'the nature of the claimant's work in relation to the regular business of the employer' should be the test for applicability of workmen's compensation, rather than the master-servant test of control which has been developed to delimit the scope of a master's vicarious liability to third persons for torts committed by his servants." Searfus v. Northern Gas Co., supra, at 969. Although the Searfas decision was cast in business terms, it is applicable in the instant case. The work engaged in by Mr. Groothuis was of a type which furthered the interests of the state. The costs of the accident should be borne, at least in part, by the state, for it has received the benefit of Mr. Groothuis' services. While the evidence, as viewed by the board, was capable of varied interpretations, there was a rational basis to reach the decision that an employment relation existed between Mr. Groothuis and the State of Alaska. The crux of the problem presented in this part of the appeal can be found in the memorandum decision issued by the superior court where it is stated: "I do not find that the actual relationship between the state and the members of the Commission compels the conclusion reached by the Alaska Workmen's Compensation Board . . . . " (emphasis added). As we have emphasized before, it is only necessary that the board's decision be supported by substantial evidence, not that it be compelled under the facts as the only possible solution to the problem. Keiner v. City of Anchorage, 378 P.2d 406, 411 (Alaska 1963). Our adherence to this rule has been consistent. The superior court accepted the state's assertion that the addition of AS 23.30.-242 demonstrates an intent to change rather than clarify the preexisting law. This statute provides that members of state boards and commissions are to be considered employees for the purposes of the Workmen's Compensation Act. It was adopted almost immediately after the accident from which this case arose. If we were to accept this assertion, it is conceivable that we would discourage the legislature from making necessary clarifying changes in statutes for fear that such changes might prejudice the rights of persons engaged in litigation over the statute as it read prior to amendment. This would be an undesirable result. Although there may be a presumption that an amendment is intended to change legal rights rather than to interpret the preexisting law, the fact of amendment itself does not indicate whether the change is one of substance or of form. Since the amendment was enacted during the controversy which arose as to the interpretation of the original act, it is just as logical to regard the amendment as a legislative clarification of the original language and not a substantial change. We now come to the question of Mr. Groothuis' relation to Local #341 at the time of the fatal crash. As we stated above, the board found that Mr. Groothuis' death did not arise out of and in the course of his employment with Local #341, and the superior court reversed this determination. The local is correct in noting that the reviewing court is not to "weigh the evidence or choose between competing inferences reasonably to be drawn from the evidence". But when the decision "rest[s] on erroneous legal foundations," it cannot be supported on appeal to this court. If the question of whether Mr. Grooth-uis was acting in the course and scope of his employment with Local #341 is viewed narrowly, that is, to see if the decedent was performing specific tasks that could be traced to his union employment, we would rationally conclude that no compensation should be awarded. However, we feel it is necessary to construe the evidence in light of the presumption found in AS 23.30.-120(1), that in the absence of substantial evidence to the contrary a claim comes within the provisions of the statute. Cook v. Alaska Workmen's Compensation Board, 476 P.2d 29 (Alaska 1970). The superior court reversed the board because it felt that there was no substantial evidence to show that the death of Mrs. Groothuis' husband did not arise from his employment with Local #341. We are in agreement with that portion of the court's decision. At the hearing before the board Mr. Robert McFarland, Secretary/Treasurer and Business Manager of Local #341, testified that Mr. Groothuis, at the time of his death, was an employee of Local #341. Mr. McFarland also testified that the labor movement supported legislation establishing the commission because the union felt that an improved employment picture in the native villages would tend to increase union membership. There was a "general con-census" that Mr. Groothuis' membership on the commission would be beneficial to Local #341. During the testimony of Mr. McFarland it was developed that Mr. Groothuis conducted union business while on commission business by discussing "with various native leaders how native people could get into the union." Finally the testimony of Mr. McFarland established that Mr. Groothuis continued to receive union pay while on commission business, and that the time he spent on commission business was not considered vacation or leave time. Relying on the presumption of coverage in AS 23.30.120(1), the superior court felt it was required to take a broader view of the question to determine if the death was compensable. The court did not feel that the test should be limited to specific or required duties of the employment but should include duties reasonably incidental to the employment. We agree that the law requires a broader view of the question than was taken by the board. As we have stated previously, death is compensable if it is connected with any of the incidents of the decedent's employment. Northern Corporation v. Saari, 409 P.2d 845, 846 (Alaska 1966). When the question is placed in terms of "any of the incidents of employment", it is clear that the board's decision cannot be sustained. Because the duties of decedent's position were broadly defined and included "anything that would inure to the benefit of the country", it would be difficult to find a rational basis upon which it could be asserted that he was not acting within the scope of his employment at the time of the crash. Mrs. Groothuis urges in this appeal that her husband was either a joint or dual employee of the state and Local #341 at the time of his death. Before this issue can be decided it is necessary to determine what is meant by the terms "joint" or "dual" employment. An employee can be said to be a joint employee when he simultaneously engages in work for more than one employer and the work performed for each employer is identical or nearly identical to that performed for the other employer. While both employers are clearly liable when there is joint employment, the case we are confronted with does not involve joint employment. There is no obvious identity between the work performed for the local and the work performed for the state by the decedent. The dual employment situation arises when an employee of two employers who is under the separate control of each performs services which are more closely related to the business of one than of the other. When dual employment is found the employers will be liable for compensation either jointly or separately, depending upon whether it is possible to ascribe the service of the employee at the time of his injury or death to a particular employer or to several employers. The more difficult it is to determine whose interests the employee was furthering at the time of his injury, the greater is the likelihood of joint liability. If both employers are to be held jointly liable in the instant case, their liability must rest on ' a dual employment basis. While some cases have used a hairsplitting approach to uphold the liability of one employer when a dual employment relationship exists, the better view is more flexible and provides for joint liability when there are only incidental services being performed for one of the employers while the employee is primarily on the business of the other employer. The case of Vance v. Hut Neckwear Co., 281 App.Div. 151, 118 N.Y.S.2d 327 (1952), illustrates the more flexible view. In Vance a salesman who worked for both a necktie company and a sportswear company was injured while traveling between customers to sell ties during the sportswear off-season. The claimant did not cease to be an employee of the sportswear company because sportswear was out of season, "so long as in traveling through his territory, he continued to keep in contact with the customers from whom he expected to obtain orders for sportswear in the appropriate season." 118 N.Y.S.2d at 334. The case before us presents an even stronger argument for the application of the dual employment theory. While the evidence did not show that Mr. Groothuis was engaged in union business on the fatal trip, there was evidence presented to the board that he had engaged in union business on previous commission trips, that his union salary was continued while on commission business, that the union defined his duties as business manager very broadly, and that he often traveled around the state on union business. Thus, from the factual picture presented, it would be difficult to find that Mr. Groothuis was not conferring at least an incidental benefit on the local at the time of his death. We hold, therefore, that the appellant's husband was a dual employee of both the state and Local #341 at the time of his death, and that both employers are responsible for compensation in this case. While Professor Larson advocates apportionment according to each employer's interest in the employee's services when possible, he feels that when no reason is found for varying the fraction, an equal sharing may be appropriate. Because it would be impossible to fairly apportion the benefit to each employer attributable to the labors of the decedent, it would also be impossible to apportion the burden under the circumstances of this case. An equal sharing is appropriate. The liability of both employers is primary, and as joint obligors they should share the obligation equally. This case is remanded to the superior court with instructions to remand it to the board for disposition in accordance with this opinion. Reversed and remanded. ERWIN, J., not participating. . The board relied on AS 44.19.460-.560 (Repealed by Executive Order No. 32, 1968) to show the statutory basis for the Employment Advisory Commission; AS 39.20.110, .180 relating to per diem to show compensation; and AS 23.30.020, .265, and .220 to demonstrate respectively that the Workmen's Compensation Act was relevant as part of every contract of employment, that Groothuis fell within the Act's definition of employee, and that the Act had a special provision for the computation of average weekly wage in situations similar to that facing the decedent's widow. . AS 44.19.490 enumerates the powers of the Employment Advisory Commission. . The parties briefed extensively the question of whether the per diem provided under AS 39.20.180 constituted wages under AS 23.30.265. However, we find that the definitions of the words per diem and wages are sufficiently similar that to make the existence of the employment relationship turn on this point would be unrealistic. See Blacks Law Dictionary (4th ed. 1968) 1293, 1750. . The board in its findings of fact stated that the Department of Labor exercised control "over the commission's budget, general direction, general supply of services and policy matters." . City of Seward v. Wisdom, 413 P.2d 931, 936-937 (Alaska 1966); Selid Construction Co. v. Guarantee Ins. Co., 355 P.2d 389 (Alaska 1960). . The control rationale for determining the employment relationship was developed by the courts as an aid to determining questions of tort liability under the doctrine of respondeat superior. Note, "The Test for the Employment Relationship Under Wbrkmen's Compensation", 1 UCLA-Alaska L.Rev. 40 (1971). While the social policy of Alaska's Workmen's Compensation Act has dictated our use of a different test in that context, we still apply the control test along with other factors found in Restatement 2d, Agency, to determine the nature of the employment relationship in common law tort actions. Reader v. Ghemm Co., Inc., 490 P.2d 1200, 1203 (Alaska 1971). . Brown v. Northwest Airlines, Inc., 444 P.2d 529 (Alaska 1968); State Dept. of Highways v. Johns, 422 P.2d 855 (Alaska 1967); Alaska Redi-Mix, Inc. v. Alaska Workmen's Compensation Board, 417 P.2d 595 (Alaska 1966); Morrison-Knudsen Co. v. Vereen, 414 P.2d 536 (Alaska 1966); Thornton v. Alaska Workmen's Compensation Board, 411 P.2d 209 (Alaska 1966). . § 1 ch. 105 SLA 1969. . Sutherland, Statutes and Statutory Construction (Horack ed. 1943) § 1930 at 414. . Id. § 1931 at 418; Kaiser Cement and Gypsum Corp. v. State Tax Comm'n, 250 Or. 374, 443 P.2d 233, 235-236 (1968); see Hintz v. Zion Evangelical United Brethren Church, 13 Wis.2d 439, 109 N.W.26 61, 64 (1961). . Wilson v. Erickson, 477 P.2d 998, 999 (Alaska 1970). . N.L.R.B. v. Babcock & Wilcox Co., 351 U.S. 105, 112, 76 S.Ct. 679, 100 L.Ed. 975 (1956). .Id.; Van Boy v. Industrial Comm'n, 5 Wis.2d 416, 92 N.W.2d 818, 823 (Wis.1958). . 1A. Larson, The Law of Workmen's Compensation § 48.40 at 837. . Id. . Id. . Id. at 844-851. . Id. § 48.50 at 845; Hacker v. City of Potosi, 351 S.W.2d 760 (Mo.1961). . Ocean Accident & Guarantee Corp. v. United States Fidelity & Guaranty Go., 63 Ariz. 352, 162 P.2d 609 (1945); Larson § 48.50 at 850-51.

10575163

ALASKA TRANSPORTATION COMMISSION and State of Alaska, Appellants, v. Donald HANCOCK et al., Appellees

Alaska Transportation Commission v. Hancock

1969-10-01

No. 1044

1012

1016

458 P.2d 1012

458

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:39:47.581165+00:00

CAP

Before NESBETT, C. J., and DIMOND, RABINOWITZ, BONEY, and CONNOR, JJ-

ALASKA TRANSPORTATION COMMISSION and State of Alaska, Appellants, v. Donald HANCOCK et al., Appellees.

ALASKA TRANSPORTATION COMMISSION and State of Alaska, Appellants, v. Donald HANCOCK et al., Appellees. No. 1044. Supreme Court of Alaska. Oct. 1, 1969. Roger X. McShea III, Asst. Atty. Gen., Anchorage, G. Kent Edwards, Atty. Gen., Juneau, for appellants. Eugene V. Miller, Fairbanks, for ap-pellees. Before NESBETT, C. J., and DIMOND, RABINOWITZ, BONEY, and CONNOR, JJ-

2259

14577

OPINION RABINOWITZ, Justice. In the lower court the Alaska Transportation Commission instituted an action seeking injunctive relief against appellees. There the Commission alleged appellees were operating as contract carriers in violation of the Alaska Motor Freight Carrier Act "since they have neither sought nor have been granted operating permits." Relief in the nature of both preliminary and permanent injunctions against appel-lees' operating as contract carriers by motor vehicle without requisite operating permits was requested. Upon filing the complaint, the Commissioner moved for a preliminary injunction. Appellees thereafter sought to dismiss both the complaint and motion for preliminary injunction. After hearing oral argument, the superior court granted appellees' motion and this appeal followed. Study of the transcript of the hearing shows that counsel for the appellees argued that the issue was one of jurisdiction. The superior court itself characterized the question raised by the motion as one pertaining to its jurisdiction to grant the requested injunctive relief. Further, in granting appellees' motion to dismiss, the record reflects that the superior court grounded its decision on lack of jurisdiction. We hold that the superior court erroneously dismissed appellants' complaint and motion for preliminary injunction. In the lower court, appellees successfully argued that the Alaska Transportation Commission was required to hold classification hearings pursuant to AS 42.10.260 of the Alaska Motor Freight Carrier Act; that such hearings were necessary to determine whether or not appellees were "contract carriers"; and that such hearings, which were never held in the case at bar, were a condition precedent to the Commission's instituting an action for injunctive relief. The superior court found this line of reasoning persuasive, for in articulating the basis of its decision the court held that it could not usurp the Commission's functions by conducting a classification hearing to determine which category of carrier appellees' operations came within, nor could it make a determination as to whether appellees were complying with the Alaska Motor Freight Carrier Act. In the Commission's complaint, it was alleged in part that appellees were operating as contract carriers in performing truck services for various contractors and shippers and that they are thus in violation of AS 42.10.130 since they have neither sought nor been granted operating permits, and that by unlawfully engaging in such contract carrier activities they are unlawfully competing with other carriers who do have permits and are lawfully operating. As indicated previously, appellees contended that before a determination could be made that they were operating as contract carriers they must have previously received such a classification from the Alaska Transportation Commission through a classification proceeding, pursuant to AS 42.10.260. Study of the text of this portion of the Alaska Motor Freight Carrier Act reveals that the purpose of the statutory classification proceeding is different from that asserted by appellees. AS 42.-10.250 provides: The commission may from time to time establish just and reasonable classifications of the groups of carriers included in the terms common carrier and contract carrier as the special nature of the services performed by them requires, and just and reasonable rules, regulations, and requirements to be observed by the carriers classified or grouped, as the commissioner considers necessary or advisable in the public interest. It is apparent that the object of the classification hearing contemplated by AS 42.10.250 is not one of classification into common carrier or contract carrier categories. These classifications have been previously determined by the legislature. The purpose of the classification hearing contemplated by AS 42.10.250 is to ascertain whether or not a particular operation falls within a subclass of the legislatively established categories of common carrier, contract carrier, or private carrier. Additionally, study of the entire Alaska Motor Freight Carrier Act has led us to the conclusion that the superior court misconstrued the act. AS 42.10.130(a) of the Alaska Motor Freight Carrier Act provides in part that: After January 1, 1961, no common carrier, contract carrier, or temporary carrier may operate for the transportation of property for compensation in the state without a permit. AS 42.10.020 establishes what types of motor vehicles are exempt from regulation under the Alaska Motor Freight Carrier Act. The act also defines the terms "common carrier," "contract carrier," and "private carrier" amongst others. Of par ticular significance are the provisions as AS 42.10.120(a). Study of this portion of the Alaska Motor Freight Carrier Act clearly indicates that it was intended that the Alaska Transportation Commission was to have the duty of enforcing the act. AS 42.10.120(a) reads as follows: The commission may administer and enforce all provisions of this chapter and inspect the vehicles, books, and documents of motor carriers and the books, documents, and records of persons using the service of the carriers for the purpose of discovering discrimination, rebates, and other information pertaining to this chapter. The commission shall prosecute violations of this chapter. Of parallel importance to the resolution of the issues in the case at bar is the provision of subsection (b) of AS 42.10.-120. Here it is provided that: (b) If a person fails to comply with (1) this chapter, except provisions as to the reasonableness of rates or charges, and the discriminatory character of rates or charges, or (2) a rule, regulation, requirement, or order under this chapter, except an order for the payment of money, or (3) a term or condition of a permit, the commission or, in case of an order for the payment of money a party injured by the failure to comply, may apply to the superior court for the enforcement of the provision of this chapter or of the rule, regulation, requirement, order, term, or condition. The court may enforce obedience by process restraining further violation and enjoining obedience, (emphasis added) Thus, under the act it is settled that no one may act as a common carrier for the transportation of property for compensation in the State of Alaska without having previously obtained an operating permit from the Alaska Transportation Commission. Subsection (a) of AS 42.10.-120 provides that the Commission shall have the duty and authority to prosecute violations of the act. AS 42.10.120(b) further determines that if a person fails to comply with any but certain excepted requirements of the act, then the Commission may apply to the superior court for enforcement of the particular requirement of the act. This same subsection specifi cally states that the superior court "may enforce obedience by process restraining further violation and enjoining obedience." Relating the foregoing to the facts of the case at bar, the record demonstrates that the Commission's attempt to enjoin appel-lees from operating as contract carriers without appropriate operating permits was fully in accordance with the intent and specific provisions of the Alaska Motor Freight Carrier Act. Given what we believe to be the purpose of the classification provisions of AS 42.10.250, we hold that the Commission was authorized to seek injunctive relief against appellees' operating as permitless contract carriers. We cannot read this act as requiring that the Alaska Transportation Commission must first conduct classification hearings as to any individual's operations as a precondition to the attainment of injunctive relief against an individual's unauthorized motor carrier operations, as appellee suggests, because such a construction would emasculate the Alaska Motor Freight Carrier Act. The superior court's dismissal of appellants' complaint and motion for preliminary injunction is reversed and the case remanded to the superior court for further proceedings not inconsistent with the foregoing. . Appellants will hereinafter be referred to as the Alaska Transportation Commission or Commission. . In its complaint the Commissioner further alleged that "by unlawfully engaging in such contract carrier activities they are unlawfully competing with other carriers who do have permits and are lawfully operating." . The basis of these motions was stated as follows: "[F]or the reason that plaintiffs do not have an adequate remedy at law and have not exhausted administrative remedies." . Typical of counsel for appellees' contentions are the following statements made at the hearing before the superior court: "The cases indicate that the administrative remedies have to be followed before the Court has jurisdiction. The issue is whether or not this Court has jurisdiction to decide the question that's presented." At the outset of the hearing, the court itself stated: "I'd like to first take up the question of the jurisdiction of this Court which was raised by Mr. Hodges [then counsel for most of the appellees] in his motion. " . In the course of his oral opinion, the superior court judge stated in part that the Commission is obliged to follow its rules and regulations and conduct its hearing on the level that is set forth in the applicable statutes. But that is, there should be a hearing in the — set up by the administrative procedures act. I don't believe that this Court can usurp the function of the Alaska Transportation Commission and conduct a hearing to determine if there are or are not classifications of these particular carriers and whether or not they are — if they are or are not complying with the law. . In regard to this last contention, appel-lees asserted that failure to hold such classification hearings was tantamount to lack of exhaustion of administrative remedies. . See note 5 stipra. . Related statutory provisions are found in AS 42.10.260(a) which provides: Whether or not a motor vehicle is operated upon the highways within its proper classification is a question of fact for the commissioner. If the commission believes that a person operating motor vehicles on the highways is not operating within the proper classification, but is in fact a carrier of a different classification, it may institute a special proceeding, upon 10 days' notice requiring the person to appear before the commission at a location convenient for witnesses and the production of evidence, and bring with him books, records, accounts, and other memoranda, and give testimony under oath as to his operations. The burden is on the person to prove that his operations are properly classified. . This section provides: This chapter, except where specifically otherwise provided, does not apply to (1) motor vehicles operated exclusively in the transportation of United States mail or in the transportation of newspapers or periodicals; (2) motor vehicles owned and operated by the United States, the state, or a borough, city, town, or municipality in the state or by a department of any of them, except when the vehicles are used to transport property of the general public for compensation in competition with other common carriers subject to the chapter and to the extent regulation of vehicles operated by the United States is permitted by the laws of the United States; (8) motor vehicles operated in connection with a business or activity in which the transportation of property in competition with established common carriers, contract carriers, or private carriers is not a regular or frequently recurring use, and in which the cost of transportation of the property is not included in a charge or fee made for the service given or products sold by the business or activity. .AS 42.10.420 provides in part: In this chapter ⅝ (2) "common carrier" includes (A) a person who undertakes to transport property for the general pub- lie by motor vehicle for compensation, over regular or irregular routes, on regular or irregular schedules, including motor vehicle operations of other carriers by rail or water and of express or forwarding companies; (B) a person who leases, rents or provides a motor vehicle for the use of another in transporting property, and who provides, procures or arranges for, directly, indirectly, or by course of dealing, a driver or operator for the motor vehicle or the necessary authority for the use of it on a public highway; (C) á person engaged in the business of providing, contracting for or undertaking to provide transportation of property for compensation over the public highways as a broker or forwarder; (3) "contract carrier" includes all motor vehicle operators not included under the term "common carrier" or "private carrier" and includes any person who under special and individual contracts or agreements transports property by motor vehicle for compensation; contract carrier includes a person engaged in the business of providing, contracting for, or undertaking to provide transportation of property for compensation over the public highways as a broker or forwarder; ⅜ :¡: ⅜ ⅜ * (7) "private carrier" is a person who, in his own vehicle, transports only property owned or being bought or sold by him in good faith when the transportation is an incidental adjunct to some other established private business owned or operated by him in good faith * ⅝ *_ . Pursuant to authority granted in AS 42.10.110 of the Alaska Motor Freight Carrier Act, the Commission enacted the following regulations: The Commission or Director may proceed to enforce any non-compliance or violation of provisions of the Alaska Motor Freight Carrier Act and of the regulations, requirements, orders, terms or conditions required by the Commission by: (a) charging the alleged violator with a misdemeanor under the terms of the Act; (b) obtaining an injunction from the Superior Court; (c) initiating proceedings for suspension, modification or revocation of the permit held by the alleged violator; (d) or by obtaining any relief as otherwise provided by law. 3 Alaska Adm.Oode § 3592 (1965).

10575043

Robert SEMLEK and Rebecca D. Semlek, husband and wife, Appellants, v. NATIONAL BANK OF ALASKA, a corporation, and Roy K. Stigum and Vernon L. DeBoer, co-partners, d/b/a Stigum and DeBoer, Appellees

Semlek v. National Bank of Alaska

1969-10-01

No. 1052

1003

1007

458 P.2d 1003

458

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:39:47.581165+00:00

CAP

Before NESBETT, C. J., and DIMOND, RABINO WITZ, BONEY, and CONNOR, JJ-

Robert SEMLEK and Rebecca D. Semlek, husband and wife, Appellants, v. NATIONAL BANK OF ALASKA, a corporation, and Roy K. Stigum and Vernon L. DeBoer, co-partners, d/b/a Stigum and DeBoer, Appellees.

Robert SEMLEK and Rebecca D. Semlek, husband and wife, Appellants, v. NATIONAL BANK OF ALASKA, a corporation, and Roy K. Stigum and Vernon L. DeBoer, co-partners, d/b/a Stigum and DeBoer, Appellees. No. 1052. Supreme Court of Alaska. Oct. 1, 1969. James K. Tallman, Anchorage, for appellants. Ronald G. Benkert, Lynn P. Bartlett, McCutcheon, Groh & Benkert, Anchorage, for appellee National Bank of Alaska. John K. Brubaker, Delaney, Wiles, Moore & Hayes, Anchorage, for appel-lees Stigum and DeBoer. Before NESBETT, C. J., and DIMOND, RABINO WITZ, BONEY, and CONNOR, JJ-

2693

15837

OPINION CONNOR, Justice. Robert Semlek and his wife Rebecca appeal from a summary judgment entered against them by the superior court. The facts as they appeared before the superior court judge ruling on the motion for summary judgment are as follows: On April 25, 1963, the appellants executed a note in the amount of $6,700.00 payable to the National Bank of Alaska, one of the appellees. To secure payment of the note, on May 25 of the same year the appellants executed a deed of trust on two lots of real property in which the Title Insurance and Trust Company was named trustee and the National Bank of Alaska was named beneficiary. The deed was properly recorded on August 15, 1963. The payments on the note were to be $200.00 a month, including 8% interest per annum, and were to commence on September 16, 1963. An additional loan had been granted by the National Bank of Alaska to the appellants who executed a note therefor on January 31, 1963, in the amount of $4,-213.50. This loan was in the form of an unsecured home improvement loan to be paid in monthly installments of $140.45 each and to be paid off by August 1, 1965. The payments on the deed of trust note were extended by written agreement on two occasions after failure by appellants to make regular payments. These extension /agreements were signed by appellant Robert Semlek and appellee Roy Stigum, then an officer of the bank. The first extension was executed on June 16, 1964, and extended the June 16, 1964, payment to the maturity date of the contract. At this time the appellants were one month in default. The second extension agreement was executed on February 25, 1965, and provided that only interest was to be paid for the months of September through December of 1964 and the first two months of 1965. Payments for March through August of 1965 were to be $100.00 each, and thereafter the regular $200.00 monthly payments were to resume. The note on the home improvement loan was also extended on two occasions by written agreement executed by Robert Semlek and Roy Stigum. The first extension, entered into on June 16, 1964, extended the June 1964 payment to the maturity of the contract. The second extension was executed on February 25, 1965, and extended the January and February 1965 payments to the maturity of the contract. The appellants allege that an oral extension agreement was entered into between them and Roy Stigum, the bank officer, on or about July or August 1965. The terms of this oral agreement are said to have been that payments on the real estate loan would be stayed until such time as payments on the home improvement loan were paid off, oven if there might be minor defaults in the payment of the home improvement loan. The only record of the appellants' payments on these loans is contained in the bank's ledgers which were made exhibits for the hearing on the motion for summary judgment. According to these records the appellants made no payments on the trust deed note after June 1965, and no payments were made on the home improvement loan after February 28, 1966. After a number of requests by the bank for payments, a notice of default on the trust deed note was executed and recorded on October 12, 1966. The appellees included the $787.45 balance due on the home improvement loan in the documents effecting the foreclosure in addition to the $4,-978.04 principal due on the trust deed note. The proceeds of the foreclosure sale were applied to this unsecured debt. The foreclosure sale occurred on January 19, 1967, and the buyers were Roy Stigum and Vernon L. DeBoer, d/b/a Stigum and DeBoer, who bid $6,994.00. Stigum had resigned his position at the bank in May 1966 to enter a partnership with DeBoer. Sometime before the foreclosure sale, Robert Semlek attempted to secure funds from the USARAL Credit Union in order to pay off the trust deed note. The loan was not granted, although an officer of the credit union testified on deposition that it probably would have been had the title search been completed before the sale. Approximately one-half hour before the foreclosure sale the appellants recorded a deed conveying the property subject to the trust deed to one William Semlek, the brother of the appellant Robert Semlek. The appellants did not attend the sale and stated that they were confused as to the location. After the foreclosure sale and during the month of February 1967 appellants unsuccessfully attempted to purchase the property from Stigum and De-Boer. The appellants filed their first complaint on March 23, 1967, in which they alleged the oral extension agreement and that foreclosure was the result of a conspiracy to deprive the appellants of their property. The appellees each filed an answer denying the allegations and counterclaimed for malicious prosecution. The counterclaims were lated dismissed. The appellees later moved for summary judgment, which was denied. On April 19, 1968, the appellees moved to dismiss the complaint on the grounds that the appellants lacked capacity because they had transferred their title prior to the foreclosure sale. The motion was granted with leave to amend. An amended complaint was filed which again alleged the oral agreement and the wrongful foreclosure and additionally alleged fraud. A new motion to dismiss was submitted on the same grounds as the first, and an additional ground stated that the complaint failed to allege fraud with particularity as required by Rule 9(b) of the Rules of Civil Procedure. The amended complaint was dismissed. The appellants' third amended complaint was filed on July 1, 1968, which was answered by the appellees. A motion for summary judgment was again filed by the appellees. The hearing was held on July 23, 1968, and the motion was granted. The appellants have appealed from the entry of the summary judgment. At the hearing on the motion for summary judgment the appellees stipulated, for purposes of the motion, that the oral extension agreement alleged by the appellants was true, to-wit, that the National Bank of Alaska would forbear any payments on the trust deed note until such time as the Semleks paid off the unsecured home improvement loan, even if there might be minor defaults in the payment of the latter loan. The court inquired of appellants' counsel the following: (1) whether the appellants admitted the existence of the notes for the two loans; (2). whether the appellants failed to make payments on the trust deed note after the date of the alleged oral agreement until the time of the notice of default; and (3) whether the appellants failed to make payments on the home improvement loan after February 1966. Appellants' counsel stated that there was no evidence to show that these statements were not true, even though Mr. Semlek felt that he might have made other payments on the home improvement loan. The court then ruled that there existed no genuine issue of material fact, made findings of fact, and then ruled that the appellants had breached the oral agreement which gave rise to the bank's right to declare the loans in default and to proceed with foreclosure. He further ruled that the appellants failed to establish a basis for their claim in tort. Appellants claim that there are several issues of fact which should have precluded summary judgment. Certainly the summary judgment procedure under Civil Rule 56(c) cannot be used to deprive the appellants of a jury trial where there are genuine issues of fact. However, the procedure is proper where the pleadings, affidavits, depositions, and admissions on file show that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law. The appellants' assertion that there is an issue of fact as to the existence of the alleged oral agreement and the representations made thereunder by Stigum is without merit. Both the existence and the terms of the oral agreement were established by the appellees' stipulation at the hearing on the motion. The stipulation was a proper basis for the judge's finding that there was no factual issue as to this matter. 6 J. Moore, Federal Practice ¶[ 56.11 [1.-8 (2d ed. 1966).]. Once the oral agreement had been established, the judge co,rrectly found, as a matter of law, that the appellants had breached the agreement and that the National Bank of Alaska was then entitled to foreclosure. Under this agreement made in July or August, 1965, the payments on the secured loan would be stayed until such time as payments on the home improvement loan had been paid off, even if there might be minor defaults in the payment of the home improvement loan. The oral agreement was entered into sometime in July or August of 1965. Thereafter the appellants made no payments on the secured loan, and made only four payments on the unsecured loan, the last payment being in February 1966. The notice of default was executed in October 1966. Clearly, the failure to make any payments after February 1966 was more than a "minor default" under the oral extension agreement. Beagan v. Citizens Savings Bank, 68 R.I. 509, 30 A.2d 105, 108 (1943). Appellants claim that there is a factual issue as to whether, prior to the foreclosure sale, there were funds available through the US ARAL Credit Union to pay off the trust deed note and that the appellee bank was notified of this by an officer of the credit union. This claim is also without merit. As stated above, the facts before the judge showed that although the loan probably would have been granted, the funds had not been made available before the foreclosure sale. We need not discuss the effect of a tender prior to the sale, because it is clear that there was no tender here. A mere expression of hope and possibility of future payment is not tender. Willingness to pay must be accompanied by ability to pay. Ewing v. Miller, 335 S.W.2d 154, 158 (Mo.1960). A more difficult question to dispose of is appellants' claim that there is an issue as to whether the foreclosure was "wrongful" because the bank included in the notice of default and the publication of the foreclosure sale the amount due on the unsecured loan with the amount due on the secured loan. It was indeed established that the $787.45 balance due on the unsecured loan was included as a separate item in the notice of default and the public notice of sale along with the $4,978.04 balance due on the trust deed note. In their third amended complaint the appellants allege that this overstatement of the amount due on the secured debt was made in furtherance of a scheme between the National Bank of Alaska and the individual appel-lees to deprive appellants of their property. It is generally held that where the amount due is grossly overstated or so excessive that it might deter bidders, it will render the foreclosure sale invalid. Peterson v. Johnson, 46 Wyo. 473, 28 P.2d 487, 91 A.L.R. 723 (1934). While noncompliance with the statutory provisions regarding foreclosure by the power under a mortgage or trust deed is not to be favored, the remedy of setting aside the sale will be applied only in cases which reach unjust extremes. In Peterson the notice stated the amount due as $1,892.10 plus fees, whereas the actual amount due was $229.10 plus fees. The court held the overstatement to be grossly excessive and set aside the sale. In Grace v. Noel Mill Co., 63 S.W. 246 (Tenn.1901), the court held the sale invalid where the notice of the lien stated the amount as $50,000, whereas the actual amount due was only $500.00. The United States Supreme Court set aside a sale in James v. Milwaukee & Minn. R. R., 6 Wall. 752, 73 U.S. 752, 18 L.Ed. 885 (1868), where the amount due to bondholders was $200,000 and the notice set forth the amount as $2,000,000 plus $70,000 interest. Other cases have held that' where the overstatement was not so excessive that it might have deterred bidders, and where there was no other evidence of fraud or bad faith, the sale would not be set aside. In Butterfield v. Farnham, 19 Minn. 85 (1872), where the excess was $7,000.00 over the $27,000 actually due, the court refused to set aside the sale. In Kerfoot v. Billings, 160 Ill. 563, 43 N.E. 804 (1896), the court held that overstating the indebtedness would not invalidate the sale where there was nothing to show that the defect resulted from a fraudulent design or operated to deter bidders from the sale. In Mowry v. Sanborn, 62 Barb. (N.Y.) 223 (1872), the court refused to set aside the sale where the secured debt of $3,000.00 was overstated by $1,845.35. The court said at page 227: "The defendant's counsel insisted, at the trial, that the claiming of too much, by $1845.35, in the notice of sale in this case, was a fraud upon the mortgagors, and rendered the foreclosure void. But no fraud was proved, and the excess in the notice, over the amount of the mortgage, may have been inserted therein by a mistake as to the legal rights of the owner of the mortgage; and because the mortgagor was in fact owing the full amount of money, claimed in the notice, on notes, drafts and other commerical paper held by the owner of the mortgage." We find that the overstatement of the amount due on the secured debt was not so excessive that it might have deterred bidders. On the contrary, the price paid by Stigum and DeBoer was $6,994.00, an amount greater than both the debts together. Nor did appellants show at the hearing on the motion for summary judgment that they had any evidence that the overstatement either actually did deter bidders or that the overstatement was part of a fraudulent design. Once the appellees had made a clear showing in support of their motion for summary judgment, it was incumbent upon the appellants to set forth facts showing that they could produce admissible evidence which reasonably would tend to dispute the appellees' evidence and demonstrate that a triable issue existed. McKean v. Hammond, 445 P.2d 679 (Alaska 1968); Alaska-Canadian Corp. v. Ancow Corp., 434 P.2d 534 (Alaska 1964); Isler v. Jensen, 382 P.2d 901 (Alaska 1963); Gilbertson v. City of Fairbanks, 368 P.2d 214 (Alaska 1962). Finally, appellants claim that the summary judgment against them on their count alleging misrepresentation was error. The appellants alleged that Stigum, with the purpose of depriving appellants of their property, "falsely and negligently" represented, with the knowledge that the representations were false, that the bank would forego payments on the secured loan until the unsecured loan was paid off, even if there might be minor defaults. We think the court below correctly granted judgment for appellees on this count. Once the undisputed facts before the court established that the bank had done exactly what it had promised under the oral agreement and that the appellants had breached the oral agreement, it became clear that there was no misrepresentation and that the appellants therefore could not sustain their allegations of misrepresentation. The judgment is affirmed. . Whaley v. State, 438 P.2d 718 (Alaska 1968); Ransom v. Haner, 362 P.2d 282 (Alaska 1961). . AS 34.20.070(b) and AS 34.20.080(a) provide that the notice of default and the public notice shall state the amount of the obligation.

10562935

Arthur FRESNEDA, Appellant, v. STATE of Alaska, Appellee

Fresneda v. State

1969-08-27

No. 1045

134

150

458 P.2d 134

458

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:39:47.581165+00:00

CAP

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

Arthur FRESNEDA, Appellant, v. STATE of Alaska, Appellee.

Arthur FRESNEDA, Appellant, v. STATE of Alaska, Appellee. No. 1045. Supreme Court of Alaska. Aug. 27, 1969. W. G. Ruddy, Juneau, for appellant. Harold Tobey, Dist. Atty., Juneau, for appellee.

9962

59433

OPINION Before NESBETT, C. J., and DIMOND, RABINOWITZ, BONEY and CONNOR, JJ. BONEY, Justice. Appellant was arraigned by the superior court at Juneau, Alaska, on a three-count indictment charging him with possession of marijuana on December 3, 1967, sale of marijuana to a minor on December 3, 1967, and possession of marijuana on December 10, 1967 (the day of appellant's arrest)., all in violation of AS 17.10.010, which makes it a crime to possess or sell in an unauthorized manner any narcotic drug. At the time of indictment, AS 17.10.230(13) included marijuana in the definition of "narcotic drug". On April 12, 1968, the superior court heard argument on appellant's motion to dismiss which was based on appellant's claim that the statute in question, AS 17.10.200, which prescribed the penalties for violations of the laws concerning narcotic drugs, would inflict cruel and unusual punishment on appellant. In determining the motion it was assumed that appellant had two prior narcotic convictions and that the mandatory minimum sentence he could receive would be 20 years imprisonment for each count of possession and life imprisonment for sale to a minor. The statute also forbids suspension, probation and parole until the minimum sentence is served. Thus appellant believed he was faced with mandatory life imprisonment without possibility of parole or suspension. Appellant argued that since it was the mandatory minimum sentence he was attacking, he did not have to wait until sentence was actually imposed. He contended that he was being prosecuted under a law which could only result in a cruel and unusual punishment. At a later hearing, June 3, 1968, the court denied the motion to dismiss, finding that appellant lacked standing to attack the statute. The court reasoned that the only way appellant could attack the statute be fore trial was if the mandatory minimum sentence were unconstitutional. The court further noted that the provision of AS 17.-10.200 concerning' minimum sentences is in conflict with a later statute, AS 12.55.085 (a) which purports to allow the court to suspend a portion of any sentence and to place the person on probation. The court stated that as a matter of practice it relied on the later statute as authority for disregarding mandatory minimum sentences imposed by statutes enacted prior to AS 12.55.085(a). The court reasoned that if appellant was not faced with a minimum sentence, then there was no way in which appellant could attack the statute as imposing a cruel and unusual punishment. Appellant could wait until conviction and sentence and then attack his actual sentence as cruel and unusual punishment. Appellant filed a second motion on May 20, 1968, attacking the constitutionality of the laws relating to marijuana for reasons apart from the issue of cruel and unusual punishment. Appellant contended that the statute improperly classified marijuana with hard narcotics, exceeded the police power of the state, was violative of due process, and denied appellant equal protection of the laws. Appellant also moved for an order directing the state to pay for the transportation and fees of an expert witness to testify in support of the second motion to dismiss. This motion was denied because the court could find no authority that required it to provide such funds, and the court did not have sufficient funds allocated to it for this purpose. Additionally, the court stated that a single witness would not really be sufficient to provide the factual background for a "test case" on the constitutionality of the laws concerning marijuana. The second motion to dismiss was taken under advisement and denied at trial after the defense rested. A jury returned a verdict on June 20, 1968, finding appellant guilty of two counts of possession of marijuana and one count of illegal sale of marijuana to a minor. The court noted that after the trial but before sentencing and final judgment a new law had taken effect which defined marijuana not as a narcotic but as a dangerous drug, AS 17.12.150(3) (A) According to AS 17.12.110 possession of marijuana became a misdemeanor and although sale was still a felony, there were no minimum sentences required. These statutes and the corresponding amendment of AS 17.10.230(13) (delating marijuana as a narcotic) became effective August 4, 1968. Appellant was sentenced on August 12, 1968, and judgment was entered formally on August 14, 1968. The court after considering the memoranda of counsel, sentenced appellant according to the newly enacted statutes, to a total of 8 years with 3 years suspended. Reviewing the events preceding appellant's arrest, it appears that in November of 1967, Sherri Dawn Meachem, age 16, went to Sergeant Cunningham of the Juneau police department and offered to help stop the traffic in marijuana in the Juneau area. She told Sergeant Cunningham that Jim Hastings, the roommate of appellant, had in the past sold marijuana to her husband ; she did not mention the name of appellant at this time. Sergeant Cunningham did not direct Sherri Meachem to approach Hastings for the purpose of buying marijuana, but he did offer to cooperate with Sherri Meachem and told her that he would supply the money to make a purchase if she needed it. A few days later Sherri Meachem approached Jim Hastings and requested that he sell her some marijuana. He stated that he did not have any of it at that time but would be getting some in the near future. According to Hastings' testimony he actually did have marijuana at that time, but wished to be cautious and investigate Sherri Meachem before making a sale. On December 3, 1967, Jim Hastings and appellant went to the apartment of Sherri Meachem, evidently to make a sale to her; however, because she did not have any money they agreed to meet later at a bowling alley. It was appellant's testimony that he was not a party to any of the transactions between Hastings and Sherri Mea-chem. According to the testimony of Mea-chem and Hastings, appellant took part in the transaction of December 3 by wrapping the marijuana to be sold, and by suggesting that Sherri Meachem bring ten dollars to the bowling alley that night. Hastings testified that appellant had not made any sales other than his participation in the sale of December 3, 1967. After appellant and Hastings left her apartment on December 3, 1967, Sherri Meachem obtained two five dollar bills from Sergeant Cunningham, who noted the serial numbers of the bills. That evening, December 3, appellant, Hastings and Sherri Meachem met at the bowling alley and according to Sherri Meachem and Hastings, appellant handed three marijuana cigarettes to Hastings, who in turn gave them to Sherri Meachem. Sherri Meachem paid the ten dollars to Hastings. The money was immediately spent by appellant and Hastings. It is undisputed that the marijuana belonged to Hastings and not to appellant. Later, on the evening of December 3, Sherri Meachem turned the three marijuana cigarettes over to Sergeant Cunningham. No arrests were made at this time, because Chief Wellington of the Juneau police department wished to get at the source of supply of marijuana. On December 10, 1967, Sherri Meachem again went to the police and informed them that another sale had been made to her by Hastings. There was no evidence linking appellant with the sale made on December 10, 1967. As a result of this sale the police decided to arrest appellant and Hastings. On December 10, 1967, Chief Wellington, Lieutenant Ciraulo, Sergeant Cunningham, of the Juneau city police department, and an attorney from the Juneau district at torney's office proceeded without arrest or search warrants to the apartment where appellant and Jim Hastings lived. The officers knocked and entered the apartment. The apartment consisted of a bedroom, kitchen, bathroom and possibly another room. When the officers entered they found Hastings and appellant. Hastings had opened the door for the police after delaying a minute or two, enabling appellant to throw a quantity of marijuana into an oil stove. Appellant denied having done this. The police officers proceeded to search the apartment thoroughly. Sergeant Cunningham testified that they were not looking for the two five dollar bills whose serial numbers had been noted. These bills were never recovered. Lieutenant Ciraulo stated that the search was a "matter of routine". Chief Wellington stated that they were looking for weapons which could be used to effect an escape and for any evidence which could be used "in a criminal case". There is no direct evidence that the police were looking for anything specifically related to the events of December 3,1967. During the search, Lieutenant Ciraulo opened a cabinet in the kitchen area. According to the police officer, appellant admitted at the time that he kept his things in the cabinet. The officer found in the cabinet some letters addressed to appellant and a toothbrush container. Upon opening the toothbrush container, the police officer discovered three marijuana cigarettes. Hastings testified that all the marijuana in the apartment belonged to him but that the three cigarettes in the toothbrush container were not his and had never been seen before by him. These three marijuana cigarettes were introduced at trial over the objection of appellant, and formed the basis of the charge of possession of marijuana on December 10, 1967. Appellant and Jim Hastings were arrested at their apartment. Although it was never brought out exactly at what point the arrests were made, the arrests may have occurred before the search. Appellant raises the point that the search conducted at the time of arrest in the apartment which he shared with Jim Hastings was unreasonable and illegal. Appellant claims that a warrant to search could have been issued in the week preceding the arrest, yet the police officers chose to proceed without one. If the search were found to be unreasonable, then the evidence resulting from the search, the three marijuana cigarettes, would be inadmissible under both the Constitution of the United States and the Alaska Constitution. The fourth amendment of the United States Constitution insures "[T]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The comparable provision of the Alaska Constitution article I, § 14 provides: The right of the people to be secure in their persons, houses and other property, papers, and effects, against unreasonable searches and seizures, shall not be violated. No warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. It is' generally agreed that the right to privacy is the foundation of the fourth amendment guarantees. Although the framers of the Constitution did not mention searches incidental to an arrest, the courts began some time ago to carve out an exception to the fourth amendment based on the necessity of an immediate search upon arrest. Although there is wide agreement that a warrantless search incidental to an arrest is not unreasonable, there has been much confusion con cerning what kind of search is truly incidental in character. Some courts have acknowledged that the decisions in this area are not altogether harmonious. In dealing with a matter which affects the very essence of constitutional liberty, history becomes of more than academic importance. Our political ancestors forged our constitution on the anvil of their experience and with a view toward what they regarded as certain governmental evils. The matters that concerned them can provide valuable insight into the intentions and the underlying principles embodied in the Bill of Rights. The use we want to make of this material will vary, of course, with one's outlook. Much depends in these cases "on whether one gives- that Amendment a place second to none in the Bill of Rights, or considers it on the whole a kind of nuisance, a serious impediment in the war against crime." The historic struggle which gave birth to the fourth amendment is discussed thoroughly in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), and in the scholarly and detailed dissents of Mr. Justice Frankfurter in Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947), and in United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950) One of the major grievances which contributed to the American Revolution was the practice of the Crown, through its colonial officials, of issuing general warrants and writs of assistance. These were described by the colonist James Otis, in a celebrated debate in 1761, as "the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that has ever been found in an English law book." He noted that such writs placed "the liberty of every man in the hands of every petty officer." In the meantime, before the American Revolution the English courts themselves had started to restrain the power of the Crown to issue and execute such writs to the detriment of the fundamental rights of Englishmen. Lord Camden, in Entick v. Carrington, 19 Howell, St.Tr., 1029, declared illegal and void a general warrant issued by the Secretary of State, finding that the pretended power of the Crown to issue such writs had no valid legal basis. This case was decided in 1765, and in the following year the House of Commons passed resolutions condemnatory of general warrants, whether for the seizure of persons or papers. Thus general warrants, which had their origin in the notorious Star Chamber of earlier times, had largely been declared invalid before the American Revolution. This may well be the reason that general warrants were not expressly prohibited by the fourth amendment. As Mr. Justice Bradley noted in Boyd v. United States, concerning the intention of the framers, it was probably so obvious to them that general warrants were invalid that they did not trouble to prohibit them expressly in the framing of the Bill of Rights. As he put it: The struggles against arbitrary power in which they had been engaged for more than twenty years, would have been too deeply engraved in their memories to allow them to approve of such insidious disguises of the old grievance which they had so deeply abhorred. Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746, 751 (1886). The earlier interpretations of the fourth amendment by the United States Supreme Court were restrictive as to the search which might be performed incidental to an arrest. To the courts of an earlier time the reason was quite obvious. If searches under a valid search warrant were limited in purpose and scope, and if such warrants, issued by a magistrate, were required in order to justify even a limited search, then it followed logically that a search incidental to an arrest must, if anything, be more limited. For this reason the earlier decisions speak about searching the person of the one placed under arrest, and of being able to seize those things which were immediately under his physical control, meaning things under his control in the sense that they were virtually extensions of his body. Additionally, it was determined that contraband or fruits or instruments of the crime which were in plain view in the presence of the officer at the time of arrest might also be seized without a search warrant. General exploratory searches were universally condemned ; however, the location of the dividing line between exploratory searches and incidental searches was soon blurred beyond recognition. In Harris v. United States, 331 U.S. 145 67 S.Ct. 1098, 91 L.Ed. 1399 (1947), an expansion of the permissible scope and purpose of a search incidental to an arrest took place at the hands of a divided court. The majority in Harris proceeded under the theory that because a man's apartment or dwelling house is under his constructive possession, all parts of it may be searched incident to a valid arrest, but without a search warrant. There were four dissenters to the decision. In Harris, police officers made a five hour search of defendant's living room, bedroom, bathroom and kitchen. The officers had obtained valid arrest warrants for check forgery, but had not obtained search warrants. The officers testified that they were specifically searching for two forged checks, and due to the physical dimensions of checks they were required to search through defendant's papers and drawers. During the search, forged draft documents were fourid and seized, and became the basis of the subsequent prosecution. The Supreme Court held that the entire apartment was under the "immediate control" of defendant, who had been arrested in the living room, and that the search was incidental and not a general exploratory one. The importation of the property law notion of constructive possession and control was reaffirmed in United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950). Mr. Justice Frankfurter, in his dissent, after first discussing the history of the fourth amendment, reviewed the doctrine of search incident to arrest and observed : Its basic roots, however, lie in necessity. What is the necessity ? Why is search of the arrested person permitted? For two reasons: first, in order to protect the arresting officer and to deprive the prisoner of potential means of escape, Closson v. Morrison, 47 N.H. 482, 93 Am.Dec. 459, and, secondly, to avoid destruction of evidence by the arrested per son. See Reifsnyder v. Lee, 44 Iowa 101, 103, 24 Am.Rep. 733; Holker v. Hennessey, 141 Mo. 527, 540, 42 S.W. 1090, 1093, 39 L.R.A. 165, 64 Am.St.Rep. 524. From this it follows that officers may search and seize not only the things physically on the person arrested, but those within his immediate physical control. What a farce it makes of the whole Fourth Amendment to say that because for many legal purposes everything in a man's house is under his control therefore his house — his rooms — may be searched. Apart from such instances of loose use of language, the doctrine of search incidental to arrest has, until very recently, been strictly confined to the necessities of the situation, i. e., the search of the person and those immediate physical surroundings which may fairly be deemed to be an extension of his person. Id. at 72-73, 70 S.Ct., at 437-438, 94 L.Ed. at 663-664. As Judge Hand noted, it is one thing to search a man's pockets and something else to ransack his entire house for everything which may incriminate him, having gained lawful entry in order to effect an arrest. While general exploratory searches, even under a search warrant, are universally condemned, there is the danger that war-rantless searches incident to arrest will be used to subvert the prohibitions of the fourth amendment. It is not adequate to make the cautionary statement that the police must not purposely arrest one in his home in order to perform a search incident to arrest. If the privilege of search attaches at all, it is the validity of the arrest which justifies it, not the motivations which may lie behind the timing of the arrest. To permit a general search incidental to an arrest in one's dwelling is to make crucial an element which is irrelevant to the right to privacy protected by the fourth amendment. [I]t is small consolation to know that one's papers are safe only so long as one is not at home. United States v. Kirschenblatt, 16 F.2d 202, 203, 51 A.L.R. 416 (2d Cir. 1926) (L. Hand, J.). The reasons for performing an arrest at a given time and place can be so numerous and interwined that it is not possible in most cases to demonstrate one way or the other that the officers sought, through'arrest in one's home, to execute a general search which would be prohibited even under a valid search warrant. After the Harris and Rabinowitz, decisions, for a warrantless search to be justified as incidental to a lawful arrest many tests had to be met. The search could not be too remote in time or place from the arrest. The necessity and purpose of the search had to be justifiable independently from the arrest, and it was the purpose that set the limits for the permissible scope, intensity, and duration of the search. A lawful arrest did not give the police the absolute "right" to search the arrested person and the place of arrest. However, it was and still is true that in most arrest situations there is a need to search the arrested person for weapons in order to insure the safety of the arresting officer. It was the need, not the arrest that justified the search. It was also clear that a search to be incidental and reasonable had to be one in which the officers were looking for specific articles, and it had to be conducted in a manner reasonably calculated to uncover such articles. The difficulty of courts in creating a workable criterion from the notions of reasonableness based on a consideration of all the circumstances is illustrated by even a brief look at the factual situations in which courts have attempted to juggle such terms as "intensity", "specificity", "purpose", and "duration". In Hernandez v. People, 153 Colo. 316, 385 P.2d 996 (1963) defendant was arrested in his apartment for assault to murder, and the arresting officers searched the apartment and found keys to the defendant's automobile. The officers took the keys, went downstairs, searched the car, and found a stolen dictating machine. This was held an illegal search. There was no mention of what the officers could have been looking for. In United States v. Marrese, 336 F.2d 501 (3d Cir. 1964) the arrest was on the first floor of a rooming house. The police went upstairs to defendant's room, searched it and found an illegal shotgun. The arrest had been for desertion. This was held a general exploratory search. However, in State v. Cook, 70 Wash.2d 715, 424 P.2d 1006 (1967) defendant was arrested downstairs in the kitchen of his* house. Officers searched for two hours after defendant had been taken to police headquarters, and in defendant's brother's bedroom upstairs, hidden in a panel of the ceiling, the police found a .45 automatic evidently used in a holdup by defendant. The court found a valid search incidental to an arrest. In State v. Dodd, 28 Wis. 643, 137 N.W. 2d 465 (1965), three narcotics officers went to Dodd's apartment to arrest him on a charge of assault and battery. Upon being admitted into the apartment by Dodd, they found him and his female companion in their night clothes. Upon ascertaining that the couple were unmarried and had been cohabiting, the officers arrested Dodd for lewd and lascivious conduct. The three narcotic officers, who made the arrest, then proceeded to search the apartment. The "incidental" search revealed two seeds of marijuana in the pocket of a shirt found in a small closet off the living room. This evidence was held inadmissible. However, the same court in Jackson v. State, 29 Wis. 225, 138 N.W.2d 260 (1965) held a search valid in the following circumstances : Officers entered the apartment of defendant at night to arrest her for parole violation and to arrest her boy friend for encouraging the violation. Once inside, the officers observed needle marks on defendant's arms; she admitted using heroin the day before at the-apartment. The officers then arrested her for illegal use of heroin and searched the apartment finding heroin paraphernalia underneath papers on the floor of a closet. The court held the search valid. While the lower courts have been endeavoring to cope with the application of the standard of reasonableness to incidental searches, the United States Supreme Court, in a series of recent decisions, has made clear that the fourth amendment protects people in their right to privacy, not simply places or things. The right is now measured by the reasonable expectations of privacy which are necessary to a civilized way of life. Property law distinctions have been abandoned as a determinant of the right to privacy. The Supreme Court has abandoned the necessity of finding a trespass, under property law principles, as a prerequisite to obtaining suppression of evidence gathered by violating the privacy of the one seeking its suppression. The court has refused to import the subtle property law distinctions between lessee, licensee and invitee into the law of search and seizure. The Court has abolished the distinction between seizure of items of "mere evidence" and seizure of instrumentalities, fruits of the crime, and contraband, and the court has found no reason to distinguish between the suppression of tangible and intangible evidence which is the product of an illegal search and seizure. Thus the court has recognized that property interests do not control the government's privilege of making reasonable searches and seizures; rather, it is the right to privacy which is controlling. In line with these decisions, the Supreme Court has recently reviewed the subject of search and seizure, and has overruled the Harris and Rabinowitz cases. In Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, 694 (1969) the Supreme Court decided to return to its earlier precedents by adopting the rule that incidental searches may extend only to the person of the suspect in order to remove any weapons that the suspect may have in order to prevent the concealment or destruction of any evidence on the suspect's person. "And the area into which an ar-restee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule." Thus "immediate control" has resumed its original meaning. The Court reasoned that there is no justification for searching rooms other than that in which an arrest occurs, or for that matter, for searching through all the drawers or concealed areas in that room itself. Turning to the case at hand, we find that in light of Chimel v. California, we must reverse and remand for a new trial. The search conducted on December 10 at the time of arrest went beyond the limits set forth in Chimel. The officers searched the entire apartment which was occupied by appellant and his roommate. The only explanation for the search in the record is found in the testimony of Lieutenant Ciraulo, who stated the search was "routine" and Chief Wellington, who stated they were looking for weapons and evidence to be used in a criminal case. The results of the search were three marijuana cigarettes found in a toothbrush container which was inside a kitchen cab inet. Appellant was arrested in the living room not within reach of the kitchen cabinet. These three marijuana cigarettes were admitted at trial over the objection of counsel, and formed the basis for the charge of possession of marijuana on December 10. Because the extent of the search violated the provisions of the fourth amendment, the admission of this evidence was error, and requires the reversal of the count of possession on December 10. We believe that the marijuana in the toothbrush container, which had been obtained by a prohibited search and seizure, was material evidence which might have led to appellant's conviction on the counts of possession and sale of marijuana on December 3. The thrust of the prosecution's case against appellant was to link him with the activities of his roommate. During the trial much of the testimony was in substantial conflict. Sherri Meachem testified on direct examination that on the sixth of December Hastings and appellant came to her apartment and smoked some marijuana. However, on cross-examination she admitted that in her police statement she had stated that she didn't know if they had marijuana that night or not. On direct examination Meachem said that appellant had set the price of the marijuana to be sold on the 3rd; yet on cross-examination she said that Hastings set the price at $10. Then on redirect she again reversed her story. She was further impeached as to the time they met at the bowling alley, and was also impeached as to whether appellant said anything to her at the time of the sale or whether Hastings did the talking. She admitted that Hastings handed her the package but claimed appellant handed the package to Hastings first. The testimony of Jim Hastings, appellant's roommate and accomplice, was denied by appellant, who claimed that Hastings was solely responsible for the sale. It was admitted that appellant owned no marijuana other than the three cigarettes in the toothbrush container. It was also admitted that appellant made no sales of marijuana other than his participation in the sale of December 3. It is curious that the state in the exercise of its prosecutive discretion allowed Hastings, an admitted marijuana dealer in Juneau, to plead guilty and serve 60 days in jail. On the other hand, the state sought a life sentence for appellant, whose involvement in the marijuana traffic in Juneau was minimal. From the record it is obvious that Hastings was the prime mover in the transaction of December 3. An accomplice's testimony is viewed with distrust, because the accomplice usually believes he has a personal interest in aiding the prosecution. Mere presence at the place of a crime is not usually a criminal act. Because in this case evidence of appellant's participation in the sale was in conflict, a jury sitting on the case could have been influenced by the fact that the police found marijuana in appellant's apartment which evidently belonged to him. This was the first evidence that appellant owned any marijuana. The fact that he owned marijuana at the time of these transactions and kept it in his apartment could have made his participation in the sale of December 3 more believable. His ownership of marijuana would tend to connect him more with the dealings of his roommate. Because the introduction into evidence of the three marijuana cigarettes violated appellant's rights under the fourth amendment of the United States Constitution, we are hound to apply the harmless error test enunciated in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705, 710-711 (1967). In cases involving federal constitutional errors state courts have no choice or discretion in deciding what standard will be applied to judge the effect of the erroneously admitted evidence. The United States Supreme Court in Chapman required state courts to find a federal constitutional error harmless, only if the court was convinced beyond a reasonable doubt that the error did not affect the jury's determination. Applying this test to the present case we cannot say beyond a reasonable doubt that the erroneously admitted evidence did not affect the jury's determination on all three of the counts. Throughout the dissent of Chief Justice Nesbett, there lies implicit the assumption that the appellant is guilty. In a recent United States Supreme Court case, where the evidence of guilt was virtually uncon-tradicted, a similar dissenting view was expressed about the application of the Chapman test. Mr. Justice Stewart replying for the maj ority states: It is suggested in dissent that "[ejven assuming that there was no consent to search and that the rifle should not have been admitted into evidence, the conviction should stand." This suggestion seems to rest on the "horrible" facts of the case, and the assumption that the petitioner was guilty. But it is not the function of this Court to determine innocence or guilt, much less to apply our own subjective notions of justice. Our duty is to uphold the Constitution of the United States. Id. at 550, 88 S.Ct., at 1792, 20 L.Ed.2d at 803 n. 16. Unlike the Bumper case, in the present case, as we have indicated, there were substantial conflicts in the testimony at trial. Appellant took the stand and offered an explanation for the events which was consistent with his innocence. For these reasons we find we must reverse appellant's convictions on all three counts and remand for a new trjal. By virtue of our holding that reversible error was committed by the trial court, it is now unnecessary to discuss the other issues raised by appellant. The judgment below is reversed and remanded. . AS 17.10.010 states as follows: It is unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, give, barter, supply or distribute in any manner, or compound any narcotic drug except as authorized in this chapter. . AS 17.10.230(13) in pertinent part states as follows: "[Njareotic drugs" means coca leaves, opium, cannabis [marijuana], isonipe-eaine, amidone, isoamidone, ketobemi-done, and every other substance neither chemically nor physically distinguishable from them * ⅜ *. . AS 17.10.200 in pertinent parts states as follows: (a) A person who violates any provision of this chapter except a provision relating to the keeping of records, upon conviction, is punishable by a fine of not more than $5,000 and by imprisonment for not less than two nor more than 10 years. For a second offense, or for a first offense where the offender has previously been convicted of a violation of the laws of the United States or of any other state, territory or district relating to narcotic drugs, the offender is punishable by a fine of not more than $7,500 and by imprisonment for not less than 10 nor more than 20 years. For a third or subsequent offense, or if the offender has previously been convicted two or more times of a violation of the laws of the United States or of any other state, territory or district relating to narcotic drugs, the offender is punishable by a fine of not more than $10,000 and by imprisonment for not less than 20 nor more than 40 years. * (c) A person convicted of illegally selling, giving or supplying narcotic drugs to a person under the age of 21 years is punishable (3) if the offense is a third violation or if the offense is a first or second violation and the offender has previously been convicted two or more times of any violation of this chapter or of the laws of the United States, or of any other state, territory or district relating to narcotic drugs, by imprisonment for the remainder of his natural life. (d) The imposition or execution of sentence shall not be suspended and probation or parole shall not be granted until the minimum imprisonment provided in this section for the offense is served. . AS 17.10.200(a), supra n. 3 at 2-3; AS 17.10.200(e)(3), supra n. 3 at 3. . AS 17.10.200(d), supra n. 3 at 3. . AS 12.55.085(a) states as follows: If it appears that there are circumstances in mitigation of the punishment, or that the ends of justice will be served, the court may, in its discretion, suspend the imposition of sentence and may direct that the suspension continue for a period of time, not exceeding the maximum term of sentence which may be imposed, and upon the terms and conditions which the court determines, and shall place the person on probation, under the charge and supervision of the probation officer of the court during the suspension. . AS 17.12.150(3) (A) states as follows: " [Djepressant, hallucinogenic or stimulant drug" means: (A) cannabis [marijuana], psilocybin, dimethyltryptamine, lysergic acid die-thylamide, and every other substance having similar physiological effects . AS 17.12.110 states as follows: (a)A person who violates a provision of this chapter relating to the possession or control of depressant, hallu-einogenic and stimulant drugs, when his possession or control is for his own use, is guilty of a misdemeanor and upon conviction is punishable by imprisonment for not more than one year, or by a fine of not more than $1,000, or by both. (b) A person who violates a provision of this chapter other than one mentioned in (a) of this section, or a person who violates a provision of this chapter relating to the possession or control of depressant, hallucinogenic and stimulant drugs, when his possession or control is for the purpose of sale or other disposal to another person, is guilty of a felony and upon conviction is punishable as follows: (1) for the first offense, by imprisonment for not more than 25 years, or by a fine of not more than $20,000, or by both; (2) for the second and subsequent offenses, by imprisonment for any term of years or life, or by a fine of not more than $25,000, or by both. (c) A person who violates a provision of this chapter by selling or otherwise disposing of a depressant, hallucinogenic or stimulant drug to a person less than 19 years of age is guilty of a felony and upon conviction is punishable by imprisonment for any term of years or life, or by a fine of not more than $25,000, or by both. . AS 17.10.230(13) states as follows: "[N]arcotic drugs" moans coca leaves, opium, isonipecaine, amidone, isoamidone, ketobemidone, and every other substance having similar physiological effects ⅜ _ . Goss v. State, 390 P.2d 220, 223 (Alaska 1964). . Warden v. Hayden, 387 U.S. 294, 301, 87 S.Ct. 1642, 18 L.Ed.2d 782, 788-789 (1967); Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746, 751 (1886). . Although this court has applied the doctrine of incidental searches in Merrill v. State, 423 P.2d 686, 700 (Alaska 1967); Maze v. State, 425 P.2d 235, 238 (Alaska 1967); and Goss v. State, 390 P.2d 220, 223 (Alaska 1964) ; only in Ellison v. State, 383 P.2d 716, 719 (Alaska 1963) has there been occasion to discuss some of the limits of the doctrine. . Hernandez v. People, 153 Colo. 316, 385 P.2d 996, 1000 (1963); State v. Chinn, 231 Or. 259, 373 P.2d 392, 397 (1962). . Harris v. United States, 331 U.S. 145, 157, 67 S.Ct. 1098, 1104, 91 L.Ed. 1399, 1409 (1947) (Frankfurter, J., dissenting). . See also Lasson, The History and Development of the Fourth Amendment to the United States Constitution (1937). . Boyd v. United States, 116 U.S. 616, 625, 6 S.Ct. 524, 29 L.Ed. 746, 749 (1886). . Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652, 655 (1914). . United States v. Lefkowitz, 285 U.S. 452, 465, 52 S.Ct. 420, 76 L.Ed. 877, 883 (1932) ; Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 75 L.Ed. 374, 382 (1931). For a vivid example of an over intensive, exploratory search made incidental to an arrest see Kremen v. United States, 231 F.2d 155 (9th Cir. 1956), rev'd per curiam 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed.2d 876 (1957). .For an outline of the United States Supreme Court's decisions in this area,, see Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). . It is true that when one has been arrested in his home or his office, his privacy has already been invaded; but that interest, though lost, is altogether separate from the interest in protecting his papers . United States v. Rabinowitz, 176 F.2d 732, 735 (2d Cir. 1949) (L. Hand, J.). . Merrill v. State, 423 P.2d 686, 700 (Alaska 1967). .Terry v. Ohio, 392 U.S. 1, 17-18, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889, 903-904 (1968) : This Court has held in the past that a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope. [Cites omitted] The scope of the search must be "strictly tied to and justified by" the circumstances which rendered its initiation permissible. . Mr. Justice Jackson commented in his dissent to Harris v. United States, 331 U.S. 145, 197, 67 S.Ct. 1098, 1120, 91 U.Ed. 1399, 1431 (1947) : The difficulty with this problem for me is that once the search is allowed to go beyond the person arrested and the objects upon him or in his immediate physical control, I see no practical limit short of that set in the opinion of the Court — and that means to me no limit at all. . Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576, 583 (1967); Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734, 739 (1961). . Jones v. United States, 362 U.S. 257, 266, 80 S.Ct. 725, 4 L.Ed.2d 697, 705 (1960). . Warden v. Hayden, 387 U.S. 294, 300-301, 87 S.Ct. 1642, 18 L.Ed.2d 782, 788 (1967). . Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 9 L.Ed.2d 441, 454 (1963). . We are not deciding whether Chimel should be given only prospective effect according to the analysis of the relevant factors listed in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). We do decide that we will apply Chimel to cases pending on direct review in this court as of the date of the Chimel decision. Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248, 259-261 (1969) (J. Harlan, dissenting); Linkletter v. Walker, Id. at 627, 85 S.Ct. 1731, 14 L.Ed.2d at 607; H. Schwartz, Retroactivity, Reliability, and Due Process : A Reply to Professor Mishkin, 33 U.Chi.L.Rev. 719, 762-64 (1966). As pointed out in Note, Prospective Overruling and Retroactive Application in the Federal Courts, 71 Yale L.J. 907, 912-15 (1962), this view dates back to Chief Justice Marshall's opinion in United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 2 L.Ed. 49 (1801). . Certain other evidence found in appellant's apartment was seized at the time of arrest. These items were properly admitted, because they were in plain view as the officers walked into the room; they were not the product of a search. . This policy is embodied in AS 12.45.-020: A conviction shall not be had on the testimony of an accomplice unless it is corroborated by other evidence which tends to connect the defendant with the commission of the crime; and the corroboration is not sufficient if it merely shows the commission of the crime or the circumstances of the commission. . See Love v. State, 457 P.2d 622 (Alaska, Aug. 8, 1969). . Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). In Bumper the prosecution's case rested on the testimony of the two victims both of whom positively identified the defendant as the perpetrator of the rape and armed assault. The defendant offered no evidence at all.

10562436

In the Matter of Disciplinary Proceedings Against Neil S. MACKAY, an Attorney-at-Law

In re Disciplinary Proceedings Against Mackay

1970-01-26

No. ABA 8

304

305

464 P.2d 304

464

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:39:53.289157+00:00

CAP

Before DIMOND, RABINOWITZ, BONEY and CONNOR, JJ.

In the Matter of Disciplinary Proceedings Against Neil S. MACKAY, an Attorney-at-Law.

In the Matter of Disciplinary Proceedings Against Neil S. MACKAY, an Attorney-at-Law. No. ABA 8. Supreme Court of Alaska. Jan. 26, 1970. Before DIMOND, RABINOWITZ, BONEY and CONNOR, JJ.

746

4554

OPINION DIMOND, Justice. On December 1, 1961, the Board of Governors of the Alaska Bar Association determined that Neil S. Mackay was not guilty of professional misconduct concerning certain transactions with his client, Mary Hill Keno. Under a section of the Integrated Bar Act (AS 08.08.220) then in effect, the determination of the Board of Governors was final. In 1964 the Supreme Court of Alaska, acting on its own motion, issued a written opinion disagreeing with the determination of the Board of Governors, holding that AS 08.08.220 was unconstitutional in attempting to impose upon the court the mandatory duty of issuing an order in full accordance with the recommendation of the Board of Governors, and holding that Mackay was guilty of professional misconduct and should be disbarred. In re Mackay, 416 P.2d 823 (Alaska 1964). In accordance with this opinion, the court entered an order disbarring Mackay from the practice of law on October 26, 1964. On January 30, 1965 the court modified its previous decision. It set aside the order of disbarment and ordered Mackay suspended from the practice of law for one year, provided that he pay the sum of $7,500 in restitution. In re Mackay, 416 P.2d 823, 835-840 (Alaska 1965). An order to this effect was issued on February 8, 1965, but was stayed while Mackay pursued his remedies in the federal courts. The order finally became effective in September 1968. The Alaska Bar Association has consistently supported Mackay's position that the action of this court in suspending him from the practice of law was not justified. Since 1965 Mackay has been restored to membership in the American Bar Association by action of its Board of Governors. In April 1969 the United States District Court for the District of Alaska held that Mackay's conduct was not sufficient to warrant suspension from the practice of law before that court. In re Mackay, 298 F.Supp. 170 (D. Alaska 1969). In reaching this decision, United States District Judge Robert C. Belloni, of the District of Oregon, sitting by assignment on this case, reviewed the record that had been considered by the Supreme Court of Alaska. He also considered the testimony of 14 witnesses and numerous documents, and noted that much of that evidence was not heard by the Supreme Court of Alaska. Judge Belloni concluded: Based upon the record I find that the conduct of respondent, standing alone, is not sufficient to warrant suspension from the practice of law before this court. Although there is evidence that Mary Hill Keno was not too conversant in the English language, in all her dealings with respondent relative to this matter she was accompanied by Herman Keno who was fully aware of the transactions and their consequences. Herman Keno has filed an affidavit stating that respondent made full disclosure and did not misrepresent any facts. Mary Hill Keno has filed an affidavit stating that she has no complaint against the respondent. The evidence is insufficient to show overreaching or misconduct by the respondent warranting suspension from the practice of law before this court. In re Mackay, 298 F.Supp. 170, 172 (D.Alaska 1969) (footnote omitted). The affidavits of Mary Hill Keno and Herman Keno dated October 29, 1959 and March 8, 1961 respectively, referred to in Judge Belloni's decision, were first brought to the attention of this court when Mackay's petition for rehearing was filed in November 1964, following the court's decision of October 26, 1964. These affidavits were not referred to in the court's opinion on the petition for rehearing. They are significant as tending to support Mackay's position that in his dealings with Mary Hill Keno he had not been guilty of improper conduct. In light of the circumstances related in the preceding two paragraphs, we are of the opinion that the Board of Governors could have reasonably concluded that Mackay was not guilty of professional misconduct, and that the Board's determination should not have been disturbed by this court. Mackay has not asked for reinstatement. But such action on his part is unnecessary. This court has the power on its own motion to correct mistakes, and resulting injustices, which have occurred concerning regulation of the legal profession. Neil S. Mackay is reinstated to the practice of law in the state of Alaska. NESBETT, C. J., not participating.

10565620

Joe Darryl SIMMS, Appellant, v. STATE of Alaska, Appellee

Simms v. State

1970-01-30

No. 1038

527

528

464 P.2d 527

464

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:39:53.289157+00:00

CAP

Before DIMOND, RABINOWITZ, BONEY and CONNOR, JJ.

Joe Darryl SIMMS, Appellant, v. STATE of Alaska, Appellee.

Joe Darryl SIMMS, Appellant, v. STATE of Alaska, Appellee. No. 1038. Supreme Court of Alaska. Jan. 30, 1970. Thomas E. Curran, Jr., Savage, Erwin & Curran, Fairbanks, for appellant. Gerald J. Van Hoomissen, Dist. Atty., Fairbanks, G. Kent Edwards, Atty. Gen., Juneau, for appellee. Before DIMOND, RABINOWITZ, BONEY and CONNOR, JJ.

668

4083

OPINION DIMOND, Justice. In the district court at Fairbanks a jury found appellant guilty of assault and battery. Appellant was sentenced to four months in jail. The conviction was affirmed by the superior court. Execution of the sentence was stayed pending appeal to this court. Appellant says that the jury was required to deliberate in a storage room which contained two file cabinets marked "Criminal Cases Commenced", 28 volumes entitled "Case Dockets" of which 20 were marked "Criminal Docket", eight file cases of assorted miscellaneous records, 15 volumes of criminal dockets from 1950 through 1954, and assorted miscellaneous newspapers and magazines. Appellant contends that because of the presence of these items in the room where the jury deliberated, the conviction should be reversed. Appellant acknowledges that there is no evidence per se that the criminal case dockets in the jury room prejudiced appellant's trial, and that the newspapers and magazines were not directly concerned with appellant's trial. What appellant contends is that the mere presence of the material mentioned prejudiced appellant by "creating an adverse atmosphere in which to determine his guilt or innocence." In determining the innocence or guilt of an accused in a criminal case, it is the jury's duty to consider only the evidence introduced at the trial. Where extraneous matter, not admitted in evidence and prejudicial to a defendant, has been considered by the jury, the verdict will be set aside if the defendant's substantial rights have been prejudiced and he has been deprived of a fair trial. Appellant's suggestion of prejudice by means of an "adverse atmosphere" is too tenuous a basis for concluding that his substantial rights have been prejudiced. It requires us to assume that the mere presence in the jury room of the material mentioned in some way or other influenced the jury to find appellant guilty of the crime with which he was charged. We cannot make such an assumption. From experience with human nature, it can be fairly inferred that most men and women qualified by law for jury service will be responsible to the admonitions and directions of the trial judge, and that their official duty of determining a defendant's guilt or innocence based on the evidence presented at the trial will be regularly performed. Such an inference will prevail in the absence of a showing of facts giving rise to a different inference that the jury did not perform its function as it should and had given consideration to extraneous material in reaching its verdict. There was no such showing here. In these circumstances we shall not reverse the conviction. But in the exercise of our supervisory power to formulate standards for the enforcement of criminal law in the courts of this state, we express our disapproval of what was done in this case. When a jury retires for deliberation, it should have before it in the jury room only those things permitted by rule. The trial judges have a particular obligation to guard against a jury being exposed to extraneous material, because of the danger that a jury might be influenced to reach its verdict by matters not presented in evidence at the trial. The judgment of the superior court affirming the judgment of the district court is affirmed. NESBETT, C. J., not participating. . Watson v. State, 413 P.2d 22, 24-26 (Alaska 1966). . See, e. g., United Bonding Ins. Co. v. Castle, 444 P.2d 454, 458 (Alaska 1968). . Watson v. State, 413 P.2d 22, 26 (Alaska 1966). . Crim.R. 27 (f) provides: Items Which May Be Taken Into the Jury Room. Upon retiring for deliberation the jury shall take with it any exhibits, except depositions, that have been introduced into evidence which the court deems proper.

10565680

Robert WECKMAN, Appellant, v. Gary HOUGER, Appellee

Weckman v. Houger

1970-01-30

No. 1132

528

530

464 P.2d 528

464

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:39:53.289157+00:00

CAP

Before DIMOND, RABINOWITZ, BONEY and CONNOR, JJ., and STEWART, Superior Court Judge.

Robert WECKMAN, Appellant, v. Gary HOUGER, Appellee.

Robert WECKMAN, Appellant, v. Gary HOUGER, Appellee. No. 1132. Supreme Court of Alaska. Jan. 30, 1970. Howard Staley, of Merdes, Schaible, Staley & DeLisio, Fairbanks, for appellant. Robert A. Parrish, Fairbanks, for appel-lee. Before DIMOND, RABINOWITZ, BONEY and CONNOR, JJ., and STEWART, Superior Court Judge.

731

4431

OPINION PER CURIAM. This case arose out of an accident which occurred on December 13, 1965, on the Richardson Highway, in which an automobile being operated by appellant crossed into the oncoming lane of traffic, colliding with appellee's automobile. A suit was commenced in which the jury returned a judgment of $300,000. Pursuant to Civil Rule of Procedure 82(a) (1), an attorney's fee was determined and awarded by the trial court in the amount of $30,850. At the time of the accident appellant was insured by the National Emblem Insurance Company. The policy limit was $10,000, and provided that the insurance company would pay "all expenses" incurred by the company in any defense and "all costs" levied against the' insured in an action under the policy. Settlement negotiations were had in which appellee offered to settle the case for $12,025. Later this offer was withdrawn. Still later, appellant offered the policy limit of $10,000, plus costs and an attorney's fees based on that limit. This offer was rejected. There is also some evidence to indicate that appellant offered $20,000 sometime during the trial, which offer was also apparently rejected. Appellant argues that the trial court abused its discretion in awarding an attorney's fee because the trial court based its award on the judgment of $300,000 instead of the policy limit of $10,000. Appellant, in effect, is arguing that under the policy the insurance carrier is required to pay only that portion of the $30,850 as $10,000 bears to $300,000; that is, a prora-ta share based on the policy limits. This argument has already been rejected by us in Liberty National Insurance Company v. Eberhart. Appellant argues that since he is a person of somewhat limited means, a judgment of $300,000 is uncollectible except as to the insurance policy limits and payment of attorney's fees thereunder. He contends that the trial court should have awarded attorney's fees taking into consideration the unlikelihood that any recovery will actually be had beyond the policy limits. However, in McDonough v. Lee the same argument was made and also rejected by us. The judgment in excess of policy limits is a potentially valuable property right which might be realized through supplementary proceedings in the event that the appellee discovers any assets of appellant unknown to appellee at the time of suit, at the time of judgment, or thereafter. Appellant does not claim that his insurance carrier was unaware of the applicable law when it wrote the policy or when it entered into defense of the case. He merely asserts that the company should be relieved of its obligations under the policy as to the payment of an attorney's fee. We will not relieve the insurance company of that obligation, which has already been established by our previous decisions. This case does not, in our opinion, raise any new questions of law which have not already been determined by those previous decisions. The judgment below is affirmed. NESBETT, C. J., not participating. . Civ.R. 82 (a) (1) reads as follows: "Unless the court, in its discretion, otherwise directs, the following schedule of attorney's fees will be adhered to in fixing such fees for the party recovering any money judgment therein, as part of the costs of the action allowed by law: ATTORNEY'S PEES IN AVERAGE CASES Contested Without Trial Non-Contested First $2,000 25% 20% 15% Next $3,000 20% 15% 12.5% Next $5,000 15% 12.5% 10% Over $10,000 10% 7.5% 5% "Should no recovery be had, attorney's fees for the prevailing party may be fixed by the court as a part of the costs of the action, in its discretion, in a reasonable amount." . " * ⅜ * and the company shall defend any suit alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy even if any of the allegations of the suit are groundless, false, or fraudulent. To pay in addition to the applicable limits of liability (a) all expenses incurred by the company, all costs taxed against the insurer in any such suit ⅜ ⅜ . 398 P.2d 997 (Alaska 1965). . 420 P.2d 459 (Alaska 1965).

10566293

A. J. INDUSTRIES, INC., Petitioner, v. ALASKA PUBLIC SERVICE COMMISSION, Respondent, City of Juneau, City of Douglas, Greater Juneau Borough and Alaska Electric Light and Power Company, Admitted Parties

A. J. Industries, Inc. v. Alaska Public Service Commission

1970-06-15

No. 1173

537

543

470 P.2d 537

470

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:39:55.338471+00:00

CAP

Before BONEY, Chief Justice, DIMOND and RABINOWITZ, Justices, and LEWIS and FITZGERALD, Judges.

A. J. INDUSTRIES, INC., Petitioner, v. ALASKA PUBLIC SERVICE COMMISSION, Respondent, City of Juneau, City of Douglas, Greater Juneau Borough and Alaska Electric Light and Power Company, Admitted Parties.

A. J. INDUSTRIES, INC., Petitioner, v. ALASKA PUBLIC SERVICE COMMISSION, Respondent, City of Juneau, City of Douglas, Greater Juneau Borough and Alaska Electric Light and Power Company, Admitted Parties. No. 1173. Supreme Court of Alaska. June 15, 1970. Lester W. Miller and Milton Souter Kay, Miller & Libbey, Anchorage, for petitioner. G. Kent Edwards, Atty. Gen., Juneau, Shirle A. Debenham, Asst. Atty. Gen., Anchorage, for respondent. Billy G. Berrier, Borough Atty., Juneau, for admitted parties. Before BONEY, Chief Justice, DIMOND and RABINOWITZ, Justices, and LEWIS and FITZGERALD, Judges.

3417

20781

OPINION BONEY, Chief Justice. This case involves a petition for review of a superior court judgment denying the petitioner's request for a preliminary injunction. The petitioner, A. J. Industries, Inc., is a public utility furnishing wholesale electricity in the Juneau area. The respondent is the Alaska Public Service Commission. Parties admitted on the side of the respondent are the Alaska Electric Light and Power Company — immediate consumer of electricity produced by A. J. Industries — and three local government units — the City of Juneau, the City of Douglas and the Greater Juneau Borough —all representing the ultimate consumers of electricity in the area supplied by A. J. Industries. The background of this case is complicated, extends over a period of several years, and involves the intricate progress of a request for a rate increase through the judicial structure of an administrative agency. However, for the purposes of the present case, a cursory review of the facts will suffice. In February 1965, the petitioner filed with the Public Service Commission a proposal for increasing its rates. The proposal was opposed, and hearings were subsequently held on the matter. As a result of the hearings it was determined that more information was needed to set a final rate; an interim rate was established based on the petitioner's book figures for net plant and depreciation. On June 3, 1968, after additional hearings and briefs, a hearing officer issued a decision on the petitioner's proposed increase. On December 24, 1968, the Public Service Commission approved and supplemented the substance of the hearing officer's decision. This order of the Commission was not final because it required the petitioner to file statements of certain additions and expenses. However, on April 8, 1969, the Commission issued its "First Supplemental Order", which is for the purposes of this petition the final order of the Commission. The order explained in greater detail — but did not otherwise substantially alter — the previous order. A. J. Industries commenced an action in superior court for review of the Commission's action; it also sought a preliminary injunction to prevent enforcement of the rate set by the Commission's "First Supplemental Order". In both actions the petitioner specified four errors allegedly committed by the Public Service Commission in setting the new rate. It was first charged that the Commission was mistaken in basing its final rate on the petitioner's book figures as to value instead of on offered evidence of original cost. It was next contended that error was committed in the ordering of a $50,000 disallowance from operating expenses as a penalty for inefficiency. Also charged as error was the setting of a rate of return of 5.75% on the petitioner's debt (although the petitioner later conceded that this was its actual debt cost), and 10% on its equity. It was additionally charged that the Commission wrongfully disallowed an amount for the 10% income tax surcharge to be added to the petitioner's revenue requirements. The petitioner alleged that these errors resulted in great losses to it and amounted to an unconstitutional confiscation of funds. After conducting hearings on the request for a preliminary injunction, the superior court, on June 3, 1969, signed an order denying the request for preliminary relief. A. J. Industries immediately petitioned to this court for review of the superior court's decision. After hearing oral argument and considering the extensive briefs of the parties we have decided to grant review in this matter. It is first contended by respondent that, by virtue of Alaska's statutory law, the superior court had no jurisdiction to allow preliminary relief of the type sought by the petitioner. In support of its contention, the respondent has cited Farmer's Educational and Cooperative Union v. Circuit Court, 73 S.D. 203, 40 N.W.2d 402 (1949). Although that case appears to be in point with the present case, we are not persuaded that it should be followed in Alaska. AS 44.62.560(e) provides: 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. We read this provision as allowing the superior court to assert jurisdiction and grant preliminary relief in a case such as the present one, where an agency has established a permanent rate. The statutes cited by the respondent in support of its position may serve to delimit the relationship between an agency and a utility; they may, further, go the proper weight to be accorded a rate set by an agency. However, we cannot agree with the respondent that these provisions deprive the courts of Alaska of jurisdiction. Accordingly, we hold that the superior court did not commit error in finding that it had jurisdiction in this matter. The question we must now decide is whether the superior court erred in refusing to grant preliminary injunctive relief to the petitioner. Upon a reading of the order denying the request for a preliminary injunction it is evident that the superior court grounded its conclusion in a finding that the petitioner would not succeed on the ultimate adjudication of the merits of its claims. A good deal of the discussion in the parties' briefs to this court has also centered upon the issue of the probability of the petitioner succeeding in the final adjudication of this matter. In ruling on requests for preliminary relief pending final adjudication, it is of considerable importance that the court avoid extensive involvement in the merits of the issues between the parties. The necessity of avoiding litigation of the merits at this early stage stems from two factors. First a ruling on the merits in an action for preliminary relief would be premature, since it would usually be based on an incomplete record and made with an insufficient amount of time. Second, a ruling at this early stage would ultimately result in forcing the court to rule on the merits of the case twice — once at the preliminary stage and once in the final adjudication. The necessity to avoid premature consideration of the merits of a controversy has been recognized and consequently it is usually held that a clear showing of probable success on the merits must be made before preliminary injunctive relief will be accorded. But we do not think a showing of probable success on the merits should have been required for the petitioner to succeed in the present case. While the rule requiring a clear showing of probable success applies in situations where the party asking for relief does not stand to suffer irreparable harm, or where the party against whom the injunction is sought will suffer injury if the injunction is issued, a different rule applies where the party seeking the injunction stands to suffer irreparable harm and where, at the same time, the opposing party can be protected from injury. This latter rule was set out by the United States Supreme Court as early as 1929: Where the questions presented by an application for an interlocutory injunction are grave, and the injury to the moving party will be certain and irreparable, if the application be denied and the final decree be in his favor, while if the injunction be granted the injury to the opposing party, even if the final decree be in his favor, will be inconsiderable, or may be adequately indemnified by a bond, the injunction usually will be granted. (Citations omitted.) This approach is termed the "balance of hardships" approach. The balance of hardships is determined by weighing the harm that will be suffered by the plaintiff if an injunction is not granted, against the harm that will be imposed upon the defendant by the granting of an injunction. The effect of the balance of hardships approach on the usual standard of probable success has more recently been stated in Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir. 1953): To justify a temporary injunction it is not necessary that the plaintiff's right to a final decision, after a trial, be absolutely certain, wholly without doubt; if the other elements are present (i. e., the balance of hardships tips decidedly toward plaintiff), it will ordinarily be enough that the plaintff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more deliberate investigation. In the present case, it is clear that if the allegations of the petitioner are ultimately determined to be correct, the petitioner will have suffered great harm. Furthermore, the harm suffered by the petitioner will be irreparable, since it appears to be well settled that a public utility cannot recoup past losses. As for the respondent and the admitted parties, the granting of an injunction would result in a higher rate charged by the petitioner and would work to their detriment. However, he possibility of injury from the injunction can be adequatley insured against by the creation of a trust into which funds equalling the difference between the higher rate charged by the petitioner and the permanent rate set by the commission would be deposited pending litigation of the merits. In the event that the petitioner's claim is defeated at trial, the trust funds would be refunded to the consumers. It appears to be well settled that in utility cases involving requests for preliminary injunctions the establishment of such trusts or the posting of bonds will adequately protect the interests of the consumers. The matter of creating a trust for the protection of the consumer is complicated in the present case by the fact that the petitioner sells power primarily at wholesale, and thus does not usually sell electricity to the ultimate consumers. In such a case it is likely that any rate increase effected by the petitioner will simply be passed along to the ultimate consumer. Clearly, the ultimate as well as the intermediate consumer of electrical power must be adequately protected by any trust established in conjunction with the granting of a preliminary injunction. In order to afford the ultimate consumer the greatest possible amount of protection, it would be necessary to keep accurate records tracing any rate increases attributable to the preliminary injunction through the petitioner's immediate customers to the ultimate consumer of electricity. Thus, in the event that the petitioner's claims on the merits are rejected, any money released from trust could be refunded to the parties who actually bore the cost. From the foregoing discussion it is clear that in this case the balance of hardships is tipped toward the petitioner. Under these circumstances, the only question that remains to be answered is whether the petitioner has "raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them fair ground for litigation and thus for more deliberate investigation." Hamilton Watch Co. v. Benrus Watch Co., supra, 206 F.2d at 740. The inquiry in this respect is directed only to insuring that the issues raised are not frivolous or obviously without merit. We need not go deeply into the merits of this case to be convinced that the questions raised by the petitioner are sufficiently serious and substantial to allow an injunction to issue. The petitioner's argument on the merits alleges four basic errors in the ruling of the Public Service Commission: (1) that the Commission improperly rejected the petitioner's offered showing of original cost, using instead the current book value of the petitioner's plant in calculating its rate base; (2) that the Commission could not properly have declared a disallowance of expenses as a penalty for its operating inefficiencies; (3) that the overall rate of return provided for by the Commission was insufficient; and (4) that the 10% Federal Income Tax Surcharge was incorrectly disallowed as a component of the petitioner's revenue requirements. It can fairly be stated that, as to each of these points, complicated factual problems are raised and broad issues of law are placed in dispute. The length of the parties' briefs on review and the diverging views of the authorities cited therein attest to the substance of the issues raised on the merits by the petitioner. Accordingly, we hold that the' superior court committed error in basing its conclusions on a finding that the petitioner would not probably succeed on the merits of its case. We further hold that the showing made by the petitioner was sufficient to have required the issuance of a preliminary injunction in its favor. The matter is therefore remanded to the superior court with directions to that court to remand the case to the Public Service Commission with the following instructions : The Public Service Commission shall set an interim rate pending the final adjudication of the petitioner's case in this state. The rate set by the Commission shall use as a rate base for the petitioner a value of $856,712.00; it shall not include any disallowance of expenses for inefficiency; it shall allow for an overall rate of return of 11.25%; and it shall allow the 10% Federal Income Tax Surcharge as one of the components of the petitioner's revenue requirements. The Public Service Commission shall further be instructed by the superior court to establish a trust fund in which will be deposited funds equaling the difference between the interim rate established pursuant to the instructions set out above and the permanent rate set by the commission. If the petitioner fails in the litigation of its claims, the monies held in trust shall be refunded to the consumers. If the petitioner fails in part and succeeds in part, the monies in the trust shall be prorated and paid over to the petitioner and the consumers in accordance with a proper proration formula. All monies held in trust pursuant to this decision shall be invested in a legal investment or investments pending final adjudication; and if the final decision rendered is favorable to the respondent, the petitioner shall make up any difference between the legal rate of interest and interest actually realized on the trust funds. The Public Service Commission shall also be instructed to insure, to the extent reasonably possible, that accurate records are kept of rate increases attributable to this injunction, as those increases are passed along from the petitioner's immediate consumer to the ultimate consumers of electricity. The issuance of the preliminary injunction by the superior court shall be conditioned upon the keeping of such records. Accordingly, in the event that the petitioner fails in whole or in part on the merits of its litigation, money issuing from the trust shall be repaid to the consumers who actually bore the costs of the petitioner's temporary rate increases. It is further ordered by this court that the petitioner pursue the adjudication of the merits of its claim through the courts in good faith and with all possible diligence and expedition. . Review is granted pursuant to Sup.Ct.R. 23 and 24. Sup.Ct.R. 23 provides in relevant part: An aggrieved party may petition this court for review of any order or decision of the superior court, not otherwise appealable under Rule 6, in any action or proceeding, civil or criminal, as follows: (a) From interlocutory orders refusing or dissolving injunctions ⅜_ Sup.Ct.R. 24 provides in part: A review shall not be a matter of right, but will be granted only: (2) where the sound policy behind the general rule of requiring appeals to be taken only from final judgments is outweighed by the claim of the individual ease that justice demands a present and immediate review of a particular non-appealable order or decision . . The respondent's position is taken from two statutes. AS 42.05.240 provides: Rates, tolls, charges, schedules and joint rates fixed by the commission shall be in force and are prima facie lawful. Regulations, practices and services prescribed by the commission shall be in force and are prima facie reasonable unless finally found otherwise in an action brought for that purpose under this chapter. AS 42.05.2(50 provides: Pending judicial review as provided in the Administrative Procedure Act (AS 44.62), the. utility affected by an order or judgment of the commission may collect the rate as fixed by the order or judgment or at the old rate, whichever is higher in amount, and shall refund the difference between the old rate and the rate fixed by the order or judgment to the consumer if the difference is not sustained finally. From these two sections the respondent argues it is clear that rates set by the commission may be altered by the courts only through the normal course of adjudication on the merits, and not through preliminary actions. The respondent contends that, in providing that an aggrieved party could continue to charge its preexisting rate pending final adjudication in the court, the legislature meant to preclude all other avenues of relief outside the normal course of judicial review. . See, e. g., Yakus v. United States, 321 U.S. 414, 440-441, 64 S.Ct. 660, 88 L.Ed. 834, 857 (1944) ; H. E. Fletcher Co. v. Rock of Ages Corp., 326 F.2d 13, 17 (2d Cir. 1963). . In Miller v. Atkinson, 365 P.2d 550 (Alaska 1961), we held that preliminary injunctive relief was inappropriate where there was no showing of irreparable harm. See also H. E. Fletcher Co. v. Rock of Ages Corp., supra n. 3. . Yakus v. United States, supra n. 3. . Ohio Oil Co. v. Conway, 279 U.S. 813, 815, 49 S.Ct. 256, 73 L.Ed. 972, 973 (1929). . Accord, Unicon Management Corp. v. Koppers Co., 366 F.2d 199 (2d Cir. 1966). . See, e. g., Ohio Pub. Util. Comm'n v. United Fuel Gas Co., 317 U.S. 456, 63 S.Ct. 369, 87 L.Ed. 396 (1943). The parties to this ease have conceded that if the petitioner prevails on the merits of its case, any losses it has suffered as a result of an unreasonably low rate would not be recoverable. Although the respondent has argued that the petitioner could conceivably recover past losses by increasing rates after final adjudication, no federal or state cases support this argument. . See, e. g., Prendergast v. New York Tel. Co., 262 U.S. 43, 43 S.Ct. 466, 67 L.Ed. 853 (1923); Arizona Corp. Comm'n v. Mountain States Tel. & Tel. Co., 71 Ariz. 404, 228 P.2d 749 (1951); Joy v. Winstead, 70 Idaho 232, 215 P.2d 291 (1950); Northern States Power Co. v. City of Saint Paul, 256 Minn. 489, 99 N.W.2d 207 (1959) ; City of Baytown v. Gen. Tel. Co. of Southwest, 256 S.W.2d 187 (Tex.Civ.App.1951). . In so holding, we should point out that this is not the first time a "balance of hardships" approach has been employed in the context of a utility rate case. Northern States Power Co. v. City of Saint Paul, 256 Minn. 489, 99 N.W.2d 207, 212-213 (1959), involved an action for a preliminary injunction under circumstances very similar to those of the present case. In Northern States, it was held that a preliminary injunction should issue in favor of the utility. The following language indicates that a "balance of hardships" approach was used by the court in arriving at its conclusion : The granting or denial of a temporary injunction involves a balancing of the harm which will result to the parties involved if the injunction is granted or denied. In this case, the consumer is protected by a bond conditioned upon repayment to it of charges collected in excess of those established under [the prior rate] if it is ultimately determined that such rates are reasonable. On the other hand, if the injunction were to be denied, the company would have no way of recouping its losses if it is finally determined that established rates were unreasonable or confiscatory. Under the showing made to the trial court, the equities clearly are in favor of the company, and it would seem that no appreciable harm can result to the consumer inasmuch as he is fully protected by the injunction. (Footnote omitted)

10570509

Allen Carl SIDNEY, Appellant, v. STATE of Alaska, Appellee

Sidney v. State

1970-05-06

No. 1146

960

965

468 P.2d 960

468

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:39:59.543332+00:00

CAP

Before DIMOND, RABINOWITZ, BONEY, and CONNOR, JJ.

Allen Carl SIDNEY, Appellant, v. STATE of Alaska, Appellee.

Allen Carl SIDNEY, Appellant, v. STATE of Alaska, Appellee. No. 1146. Supreme Court of Alaska. May 6, 1970. Mark C. Rowland of Hendrickson & Rowland, Anchorage, for appellant. G. Kent Edwards, Atty. Gen., Harold W. Tobey, Dist. Atty., and Edmund W. Burke, Asst. Dist. Atty., Anchorage, for appellee. Before DIMOND, RABINOWITZ, BONEY, and CONNOR, JJ.

2939

18127

RABINOWITZ, Justice. Appellant Allen Carl Sidney and Raymond Mack were jointly indicted and tried for the crime of larceny in a building. Appellant Sidney was found guilty and sentenced to three years' imprisonment. The crux of Sidney's appeal concerns certain extrajudicial statements made by Raymond Mack which implicated appellant in the commission of the crime charged. Sidney contends that the Supreme Court of the United States' decision in Bruton v. United States requires reversal of his conviction. We disagree and affirm appellant Sidney's conviction. In Bruton, the extrajudicial confession of Bruton's co-defendant, Evans, that they had committed armed robbery, was admitted in evidence at their joint trial. Co-defendant Evans did not testify at trial, and thus was not subject to cross-examination by Bruton. Relying upon the Supreme Court's opinion in Delli Paoli v. United States, the trial court instructed the jury that Evans' confession inculpating Bruton should be disregarded in deciding the latter's guilt or innocence. The Supreme Court in Bruton overruled Delli Paoli, holding that in such circumstances the trial court's limiting instructions could not be accepted as an adequate substitute for Bruton's right of cross-examination secured by the Confrontation Clause of the Sixth Amendment. In writing for a majority of the Court, Mr. Justice Brennan said: We hold that, because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner's guilt, admission of Evans' confession in this joint trial violated petitioner's right of cross-examination secured by the Confrontation Clause of the Sixth Amendment. We therefore overrule Delli Paoli and reverse. After emphasizing that Evans' hearsay statement inculpating Bruton was clearly inadmissible against the latter under traditional rules of evidence, the Court said that the practical and human limitations of the jury system cannot be ignored where the powerfully incriminating extrajudicial statements of a codefend-ant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others. The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed. On the record before us, we believe Bruton is distinguishable, and therefore hold that the admission of co-defendant Mack's inculpatory extrajudicial statements does not require reversal of appellant Sidney's conviction. Appellant Sidney and co-defendant Mack were charged with having stolen groceries from the S & F. Foodland store building located in Anchorage. At trial, Charles Bade, then assistant manager of S & F Foodland, testified that one of his checkers informed him that "groceries had just gone out the door without being paid for and that she's noticed Sidney had been shopping with this other fellow Mack, and that nobody had paid for 'em." Bade then approached Sidney, who was standing alongside one of the check stands, and asked him if he had paid for the groceries. Sidney said he had not paid for them, that Mack had paid for the groceries or was supposed to pay for the groceries, and that if Mack had not paid for the groceries, Bade ought to go after him since Mack had just left the premises. Bade then went outside of the store, located Mack sitting in a station wagon and at the same time observed unbagged groceries strewn on the back seat of the vehicle. Bade then asked Mack if he had paid for the groceries. Mack's reply was that he had not, and that Sidney was supposed to pay for the groceries. Appellant Sidney's counsel did not offer any objection to Bade's testimony relating Mack's extrajudicial statements. Felix J. Martinez, manager of the S & F Foodland store, next testified for the prosecution. After receiving notification from one of his employees that he was wanted, Martinez went to the parking area in front of the store. In regard to what then transpired, Martinez was asked whether Mack had said anything to him concerning "Sidney's participation in the situation." Martinez' response was, "Yes, well, when— he actually admitted taking the groceries at the one time and then I asked At this point, counsel for Sidney interposed an objection "to any references made to Mr. Sidney as being hearsay with regard to Mr. Sidney." The jury was then excused and the court heard the government's offer of proof. At the conclusion of this proceeding, the jury was recalled and instructed that the testimony they were about to hear from Martinez was to be considered for its probative value against the — as it may have against the defendant, Mack. It is not to be con sidered as — as any connection, as either tending to establish guilt or innocence of the defendant, Sidney. Martinez then resumed his testimony and said that the following occurred during his conversation with co-defendant Mack: Then I asked him, did you voluntarily take this groceries out of the store or did you steal this grocery and he admitted to the fact that he had taken the groceries, but he was not in it by himself. At this time he pointed directly to Mr. Sidney and he says, he helped me take the groceries. At this time Mr. Sidney turned around and punched Mr. Mack, struck him in the face, of course, and called him a dirty liar. The prosecution's last witness was Frederick S. Cornelius, an officer with the Anchorage Police Department. Officer Cornelius testified that he was called to investigate the situation in question at the S & F Foodland. After an on-the-scene investigation, Officer Cornelius arrested co-defendant Mack and requested appellant Sidney to accompany him to police headquarters. Officer Cornelius was asked if he had a conversation with Mack at police headquarters, and answered, "Yes, sir. I spoke to Mr. Mack and Mr. Mack advised me that Sidney had ad — asked him * Counsel for Sidney then objected to any reference by Mack to Sidney on the grounds of hearsay. The trial court instructed the jury that the statements made are admissible only against the defendant Mack and will be considered in — as probative value and given such weight that may be entitled to against that defendant. Officer Cornelius then related that: I can't recall where he said that he had been picked up by Mr. Sidney and that Mr. Sidney had asked him to go with him to the grocery store to get some groceries and that he was just accompanying Mr. Sidney and that it was Mr. Sidney's idea to take the groceries, not his; that's basically what it was. I can't recall exactly. The trial judge immediately instructed the jury to disregard all of this testimony. Out of the presence of the jury, Sidney's counsel moved for a mistrial which motion was denied. The jury was then recalled and given the following oral instruction: Members of the jury, as you recall just immediately before the adjournment, I advised you that there was a statement made by Mack that you should disregard and I was going to strike it from the evidence. I want you to refrain in your consideration of this evidence from considering that statement for any purpose. I have excluded the evidence; I found that it should not have come in and that it should be stricken from the record. After the government rested its case, co-defendant Mack testified in his own behalf and was cross-examined by appellant Sidney's counsel. Assuming that the extrajudicial statement of Mack which was testified to by the witness Martinez was inadmissible against appellant under the traditional rules of evidence, we still do not consider Bruton controlling. For in the case at bar, admission of this incriminating extrajudicial statement was riot violative of Sidney's right of cross-examination secured by both the Confrontation Clause of the Sixth Amendment and Article I, Section 11 of the Alaska Constitution. In Bruton, the co-defendant whose extrajudicial statement incriminated the defendant-appellant did not testify, but in the case at bar, the co-defendant testified. Appellant was afforded the opportunity to confront and cross-examine the very person whose extrajudicial statements inculpated him. In such circumstances, the confrontation cross-examination rationale of Bruton is absent. We decline to extend Bruton to the situation where at a joint trial the co-defendant testifies, and thus, the defendant is not deprived of his right to confront and cross-examine his co-defendant as to the latter's extrajudicial statement. Our conclusion that Bruton should not be extended to the factual situation presented by this record is in accord with judicial developments since Bruton was decided. In short, the confrontation rationale of Bruton is not applicable in the present case. Additionally, we are of the view that in the context of this record it is not unreasonable to conclude that the jury could have followed the trial court's limiting instructions. The Supreme Court of the United States said in Bruton that: Not every admission of inadmissible-hearsay or other evidence can be considered to be reversible error unavoidable through limiting instructions: instances-occur in almost every trial where inadmissible evidence creeps in,' usually inadvertently. 'A defendant is entitled to a, fair trial but not a perfect one.' It is not unreasonable to conclude that in many such cases the jury can and will follow the trial judge's instructions to disregard such information. Thus, assuming that co-defendant Mack's extrajudicial statements made to and related by Martinez were inadmissible hearsay, we believe that the trial judge's limit ing instructions protected appellant Sidney's right to a fair trial. In addition to Sidney having had the opportunity to cross-examine co-defendant Mack, the jury was made aware at the outset of the trial through the testimony of the witness Bade of the contradictory positions of Sidney and Mack regarding who was to have paid for the groceries. This conflict was reiterated in the testimony of each of the prosecution's witnesses and was further highlighted in the direct and cross-examinations of co-defendant Mack. We believe the foregoing to be largely dispositive of appellant's contention that the trial court committed reversible error in not granting his motion for mistrial. This motion was made during Officer Cornelius' testimony and was occasioned by Cornelius' reference to an extrajudicial statement by Mack which incriminated Sidney. The trial judge specifically instructed the jury to disregard this testimony in its entirety, and that it was not part of the evidence in the case. Study of the record has not left us with the firm conviction that the trial judge abused his discretion in refusing to grant a mistrial. The record reflects the careful consideration given by the trial court to appellant's contentions and the appropriate safeguards adopted by the trial court in order to insure that appellant received a fair trial. Appellant's final point on this appeal concerns AS 11.20.150 which defines the crime of larceny in a building, and its relation to AS 11.20.140, Alaska's general larceny statute. Appellant argues these statutes when read together constitute an unlawful delegation of legislative and judicial power to the district attorney, and further, since persons similarly situated can receive unequal treatment under the two statutes, they constitute a denial of due process. We find no merit in appellant's contentions. In Widermyre v. State, appellant argued in part that his conviction of larceny in a building should be reversed because the value of the property he stole was less than $100, and that Alaska's larceny in a building statute should be construed as applying only to larcenies which were classed as felonies under the common law. In regard to these arguments, we said: Our simple larceny statute (now AS 11.-20.140) became the law of Alaska at the same time [AS 11.20.150] became effective. Both statutes were enacted to serve separate purposes. [AS 11.20.150] has the purpose of treating any larceny committed.in any dwelling house, banking house, office, store, shop, etc., as aggravated. The value of goods taken is not intended to be a factor by which to determine whether a particular theft is a felony or a misdemeanor. All larcenies committed on the premises mentioned are classified as serious offenses against society and as felonies. We therefore hold that AS 11.20.150 embodies a rational basis for distinguishing acts which would otherwise be encompassed within our general larceny statute. The judgment and commitment entered below is affirmed. NESBETT, C. J., not participating. . 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). . 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957). . 391 U.S. 123, 126, 88 S.Ct. 1620, 1622, 20 L.Ed.2d 476, 479 (1968). . Id. at 135-136, 88 S.Ct. at 1627-1628, 20 L.Ed.2d at 485 (footnotes omitted). .At the time Bade's conversation with Mack took place, Sidney was standing on the sidewalk area immediately in front of the station wagon. . In his instructions to the jury at the close of the case, the trial judge said in part: Out of court statements or admissions constitute evidence only against the person making it. Such must not be considered as evidence against a co-defendant and must be disregarded by the jury in determining the guilt or innocence of a co-defendant. The jurors were also told that they must give separate consideration to each individual defendant, and to each separate charge against him. Each defendant is entitled to have his case determined from his own conduct and from the evidence which may be applicable to him. . In articulating his reasons for denying appellant's motion for mistrial, the trial judge in part stated: In response to the State's position that the evidence is not prejudicial in any respect, I view the Mack's statement as exculpatory to him and incriminating the defendant, Sidney, and that it tends to be prejudicial to Sidney and that in fact such a statement is prejudicial on the balance, however, I do not feel that the statement is so prejudicial as to require me granting a mistrial. The testimony to this point indicates that while Mack has made efforts to — in statements prior to the time that he was taken into custody by the store manager and after that time, tending to incriminate the defendant, Sidney, that at all times the defendants — and at all opportunities the defendant, Sidney, has denied his culpability and responsibility. Moreover I feel that the admissions which is — or that the statement which is questioned now is contrary to prior statements made by the defendant, Mack; that this con — this conflict in his statements is readily apparent to the jury. They're taken in this connection together with the instruction given to the jury, I do not feel that the prejudicial effect of the statement is such that we should now discontinue the prosecution. I'm going to let the trial continue. I will instruct the jury that they must carefully refrain from considering the statement for any purpose . . See, e. g., United States v. Boone, 401 F.2d 659, 663 n. 12 (3d Cir. 1968), cert. denied, Jackson v. United States, 394 U.S. 933, 89 S.Ct. 1205, 22 L.Ed.2d 463 (1969); Rios-Ramirez v. United States, 403 F.2d 1016, 1017 (9th Cir. 1968), cert. denied, 394 U.S. 951, 89 S.Ct. 1292, 22 L.Ed.2d 486 (1969) ; State v. Gardner, 54 N.J. 37, 252 A.2d 726, 730 (1969). . Appellant further argues that we should adopt the reasoning of Townsend v. Henderson, 405 F.2d 324, 329 (6th Cir. 1968), where the court said: The only possible distinction between the present case and Bruton is that in Bruton the co-defendant did not take the witness stand, whereas here Terry did testify in his own behalf. But, this distinction is unimportant since, although Terry was called as a witness, he denied making the confession. Townsend therefore had no effective right of cross-examination in regard to the confession. We need not on this record decide whether we will adopt the Townsend rule. It is sufficient to note that the case at bar does not present a comparable factual situation. . Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 1627, 20 L.Ed.2d 476, 484-485 (1968). . Anderson v. State, 438 P.2d 228, 233 (Alaska 1968) ; Pedersen v. State, 420 P.2d 327, 333 (Alaska 1966). . AS 11.20.160 provides in part as follows : A person who commits the crime of larceny in a store is punishable by imprisonment in the penitentiary for not less than one nor more than seven years. AS 11.20.140, the general larceny statute, provides in part: A person who steals goods which is the property of another, is guilty of larceny. If the property stolen does not exceed $100 in value, the person, upon conviction, is punishable by imprisonment in a jail for not less than one month nor more than one year, or by a fine of not less than $25 nor more than $100. . Appellant also argues that AS 11.20.150 is unconstitutional on its face and as applied to him in the instant case. . 377 P.2d 536 (Alaska 1963). . Id. at 537. See Fosse v. United States, 44 F.2d 915, 916 (9th Cir. 1930) ; State v. Savage, 36 Or. 191, 60 P. 610, 611 (1900) ; State v. Reyner, 50 Or. 224, 91 P. 301, 302-303 (1907).

10561638

Neal WRIGHT, Appellant, v. CITY OF PALMER, Municipal Corporation, State of Alaska, Theodore Schmidtke, Mayor, Emilie St. Pierre, City Clerk, and Members of the City Council of the City of Palmer, Appellees

Wright v. City of Palmer

1970-04-27

No. 1192

326

331

468 P.2d 326

468

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:39:59.543332+00:00

CAP

Before DIMOND, Acting Chief Justice, and RABINOWITZ, BONEY, and CON-NOR, Justices.

Neal WRIGHT, Appellant, v. CITY OF PALMER, Municipal Corporation, State of Alaska, Theodore Schmidtke, Mayor, Emilie St. Pierre, City Clerk, and Members of the City Council of the City of Palmer, Appellees.

Neal WRIGHT, Appellant, v. CITY OF PALMER, Municipal Corporation, State of Alaska, Theodore Schmidtke, Mayor, Emilie St. Pierre, City Clerk, and Members of the City Council of the City of Palmer, Appellees. No. 1192. Supreme Court of Alaska. April 27, 1970. Eric E. Wohlforth, of McGrath & Wohl-forth, Anchorage, for appellant. Burton C. Biss, Anchorage, for appellees.

3301

19732

OPINION Before DIMOND, Acting Chief Justice, and RABINOWITZ, BONEY, and CON-NOR, Justices. CONNOR, Justice. This case questions the validity of a general obligation bond issue for the purpose of encouraging industrial development within a municipality. This is a declaratory judgment action in which appellant, in his capacity as a resident of and owner of real and personal property in the City of Palmer, seeks to have declared invalid the issuance of bonds by the city. These bonds were authorized at a special election at which the proposition carried by a vote of 248 in the affirmative and 7 in the negative. The proposition submitted to the voters was as follows: PROPOSITION NO. 1 Shall the City of Palmer, Alaska, issue general obligation bonds in an amount not to exceed Four Hundred Fifty Thousand Dollars ($450,000.00) for the following purpose: Under a 20-year improvement program providing for the purchase of a site and the construction of a manufacturing and processing facility within the City of Palmer. All said general obligation bonds shall mature within twenty years from the date of issue and bear interest at a legal rate. After the proposition was approved by the voters, the city entered into an agreement with Huskey Manufacturing Corporation, a manufacturer or assembler of industrial housing, low-cost residential housing and mobile homes, by which the corporation agreed that it would in the future enter into a lease and occupy the building to be constructed, for a period of not less than 20 years, to keep its raw materials within the city limits in order to render it subject to personal property taxation, to employ not less than 80% of its personnel from the Palmer area, to maintain training facilities for its employees, and to maintain on-the-job training programs under federal and state auspices. It also agreed, as a condition to entering into a lease, that it would use the public utilities owned by the city, as far as they are available. The company agreed that the paved parking lot adjacent to the building should be available at all reasonable times for public recreational uses. The agreement also provides that the rental shall be fixed in such an amount that the total cost of the project, including the sums necessary to amortize the bonds sold to finance the project, shall be payable over a 20-year period under a reasonably uniform schedule through the term of the lease. In short, the city would procure or make available land and a structure for the use of the lessee, using the bond proceeds to accomplish this end. This case obviously has been brought for the purpose of testing the validity of the bond issue and to determine whether the bonds are marketable. The record is somewhat one-sided in that all' of the evidence was presented by the city, although the witnesses for the city were cross-examined by counsel for appellant. On the other hand, the legal questions have been thoroughly argued and briefed. Unlike the situation in Ault v. Alaska State Mortgage Association, 387 P.2d 698 (Alaska 1963), we do find the record sufficient for determining the legal issues presented in this case. Unlike Ault, where a summary judgment was entered, this case went to a trial on the merits under the provisions of Rule 57(a), Rules of Civil Procedure. The testimony and evidence presented show a pattern of serious economic problems which the City of Palmer is seeking to overcome. The City Council in the agreement to lease makes a recital of its findings about the economic plight of the City of Palmer and its environs. The pattern which emerges from the evidence is that over the course of the last several years the economic growth of Palmer has been nil. The Palmer Comprehensive Development Plan of 1967, prepared by the city, discloses a high year-round rate of unemployment. Virtually no manufacturing exists in the City of Palmer. At one time coal mines were operated in the Palmer area, but these have been shut down because Elmendorf Air Force Base and Fort Richardson, the prime consumers of coal, now utilize natural gas for heating and the generation of electricity. The closure of the mines has resulted in a loss of payroll for the Palmer area estimated at something over one million dollars per annum. Lumber processing has ceased in the Palmer area, with a loss of about 20 jobs. Various other business activities have moved out of the Palmer area recently, including the Matanuska Valley Cooperative Association, the Sears & Roebuck store, and other businesses. Palmer has recently been declared a depressed area by the federal government. It is in an effort to combat this declining economy that the city has proposed the issuance of bonds, the erection of a manufacturing building, and its lease to a private corporation. It is estimated that the proposed project, when fully operational, would employ approximately 65 to 110 persons on a full-time basis. IS THERE AN UNLAWFUL LENDING OF CREDIT? It is asserted that the bond issue and plan of action violates AS 37.10.085, which prohibits either the state or a political subdivision to lend its credit for the use of a private corporation, or to borrow money for the use of a private corporation. We note at the outset that the city is not handing money directly to a private corporation. Nor is it pledging that its credit or taxing powers may be used to make good th,e indebtedness of a private person in contravention of the Alaska Constitution.- It is within the statutory power of a city to make available industrial sites which may be of benefit to the municipality and to lease them on terms which are advantageous to the public welfare of the city. AS 29.10.132(e). Since significant restrictions and controls are retained by the City of Palmer over Huskey Manufacturing Corporation's operations, the bond issue in question is not violative of AS 37.10.085. These controls and restrictions were imposed upon the corporation to insure the effectuation of the public purpose objective of this bond issue. Roe v. Kervick, 42 N.J. 191, 199 A.2d 834 (1964). We think that the question of whether the public credit is being pledged for a private purpose is also comprehended under the broader question of whether a public purpose is served by the bond issue and plan for its expenditure, which is discussed below. IS THE PROJECT A CAPITAL IMPROVEMENT? The contention is made that the indebtedness would violate Article IX, § 9, of the Alaska constitution which requires that such debt can be incurred only for capital improvements. It is argued that in City of Juneau v. Hixson, 373 P.2d 743 (Alaska 1962), this court laid down a strict test of what constitutes a "capital improvement," rendering that term synonymous with "public works of a permanent character." Because an industrial development project is not clearly within that category, it is said that the plan before us must fail. We do not read the Hixson case so narrowly. There we struck down a bond issue because no capital improvement would have resulted from the expenditure of the proceeds. The vice in the Hixson case was that raw land would have been acquired with the proceeds and would then have been donated to the State of Alaska as a proposed capítol site. As a result of the plan, the City of Juneau would have been left with no tangible asset in place of the indebtedness. Furthermore, the State of Alaska had entered into no agreement for and had not otherwise shown an interest in the acquisition or use of any capítol site. By contrast, in the case before us the City of Palmer will own a tangible asset. The plan is that the indebtedness shall be retired out of the rental money received over the life of the bond issue. The land and building fulfill the definition of "capital improvements" which was stated in the Hixson case as being "associated with value represented by real or personal property in some form and with relative permanency." 373 P.2d, at 747. There is here no giving away of the asset. On the contrary, the city's real ownership of the structure should increase as the years of rental payment go by. Even if the tenants should default, the building probably would be susceptible to a number of other beneficial uses. We conclude, therefore, that the bond issue and the plan of expenditure does not violate the capital improvement requirement of our constitution. IS THERE A FULFILLMENT OF PUBLIC PURPOSE? Article IX, § 6, of the Alaska constitution provides that "[n]o tax shall be levied, or appropriation of public money made, or public property transferred, nor shall the public credit be used, except for a public purpose." It is asserted that the bond issue and the plan for its expenditure violates this provision. In DeArmond v. Alaska State Development Corporation, 376 P.2d 717 (Alaska 1962), this court noted that the term "public purpose" is one of great imprecision. As we said there, "We believe that it would be a disservice to future generations for this court to attempt to define it. It is a concept which will change as changing conditions create changing public needs. Whether a public purpose is being served must be decided as each case arises and in the light of the particular facts and circumstances of each case." 376 P.2d at 721. The technique used by most courts is that of looking to the entire factual' and governmental context to determine whether a particular plan of action serves a public purpose. In the area of industrial development bond issues, numerous decisions have upheld such plans. There is much criticism which can be leveled against a community using' its public borrowing capacity to sponsor or induce the location of private industry within its boundaries. Many of these plans have been attacked on grounds of public policy, but they have been sustained frequently by the courts. It is true that such plans are susceptible to abuse. Municipalities have been known to go bankrupt after having induced an industry to come to them under such a plan. There are dangers that an industry locating in a community may end up dominating the political and economic processes. On the other hand, it is recognized that the location of an industry in a particular community may have widespread economic benefits and that these do fulfill the public purpose and the general welfare of the community, broadly conceived. The tendency in most of the modern case law is to broaden the notion of public purpose to include such projects as the one contemplated by the City of Palmer. In Walker v. Alaska State Mortgage Association, 416 P.2d 245 (Alaska 1966), and in Suber v. Alaska State Bond Committee, 414 P.2d 546 (Alaska 1966), such broad notions of public purpose were applied. As we observed in the Súber case, "The basic objective of government is to protect and promote the health, safety and general welfare of the people. When a condition of affairs appears in the state which presents a threat to the accomplishment of that objective, the government has the right, and the obligation, to cope with such threat by whatever measures, within constitutional limits, that are necessary or appropriate." 414 P.2d, at 551-552. The role of the courts in matters of this kind is relatively limited. Our function is not to determine whether, as prudent burghers, we might think this plan wise. City of Juneau v. Hixson, supra. The test which we must apply is whether the plan is so unreasonable as to transgress the limitations of our constitution. If the plan of action were plainly foolhardy, or if it amounted to the pledging of credit or the giving away of assets without any corresponding discernible benefit, we might be persuaded to strike down the plan. But that is not the case here. The benefits from the plan of the City of Palmer may be enjoyed in part by some individuals more than by others. But collective advantages to the community at large can be perceived quite readily. Although the development of industry is not always an unmixed blessing, as it may impose burdens upon other public facilities, it is hard to see how the City of Palmer could be hurt by the location of an industry within its boundaries. Its plight at the moment is that of an eroding economic community. If the city fathers and the voters of the community feel that this plan of action is necessary, it is not for us to retard them. It is within their legislative province to determine whether the advantages outweigh the risks. Because we think the public purpose of the project has been demonstrated, we find the bond issue valid. Affirmed. . In Jefferson v. Asplund, 458 P.2d 995, 998 (Alaska 1969), this court held that • an actual controversy is a prerequisite to the granting of declaratory relief under the Alaska statute permitting declaratory judgment actions. We further cited with approval the definition of "controversy" found in the opinion by Chief Justice Hughes in Aetna Life Insurance Company of Hartford, Conn. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617 (1937) : "A 'controversy' in this sense must be one that is appropriate for judicial determination. A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character; from one that is academic or moot. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests." (Citations omitted.) . "Rule 57. Declaratory Judgments— Judgments by Confession, (a) Declaratory Judgments. The procedure for obtaining a declaratory judgment pursuant to statute shall be in accordance with these 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." Many actions such as the one in the instant case have been entertained by other state courts. "Municipal financing legislation and projects have frequently been questioned in taxpayer suits, on the ground that they violate state constitutional provisions prohibiting the use of public funds or credit for purposes which are not 'public.' Often such suits are brought by industrialists and others who seek prior judicial approval of a project. [Footnotes omitted.] In most cases, the projects and legislation have been upheld. [Newberry v. City of Andalusia, 257 Ala. 49, 57 So.2d 629 (1952); Wayland v. Snapp, [232 Ark. 57], 334 S.W.2d 633 (Ark.1960) ; Dycke [sic] v. City of London, 288 S.W.2d 648 (1956); Miller v. Police Jury, 226 La. 8, 74 So.2d 394 (1954) ; City of Frostberg [Frostburg] v. Jenkins, 215 Md. 9, 136 A.2d 852 (1957) ; Village of Deming v. Hosdreg Co., 62 N.M. 18, 303 P.2d 920 (1956) ; Holly v. City of Elizabethton, 193 Tenn. 46, 241 S.W.2d 1001 (1951); McConnell v. City of Lebanon, 203 Tenn. 498, 314 S.W. 2d 12 (1958). Contra, State v. Town of No. Miami, 59 So.2d 779 (Fla.1952) ; State ex rel. Beck v. City of New York, 164 Neb. 223, 82 N.W.2d 269 (1957).]" 70 Yale Law J. 789, at 791 and n. 15, "The 'Public Purpose' of Municipal Financing for Industrial Development." . "Financial aid to corporations by state or political subdivision. Neither the state nor a political subdivision of the state may (1) make a subscription to the capital stock of a corporation; (2) lend its credit for the use of a corporation; or (3) borrow money for the use of a corporation." . Alaska Const., art. XX, § 6: "Public Purpose. No tax shall be levied, or appropriation of public money made, or public property transferred, nor shall the public credit be used, except for a public purpose." The courts which have upheld bonding projects as a legitimate exercise of power by the political subdivisions have held that a statute which pledges only project revenues does not pledge the public credit, and, therefore does not lend the public credit in aid of anyone. Newberry v. City of Andalusia, 257 Ala. 49, 57 So.2d 629 (1952); Wayland v. Snapp, 232 Ark. 57, 334 S.W.2d 633 (1960) ; Bennett v. City of Mayfield, 323 S.W.2d 573 (Ky.1959). . "City properties. (e) The council, in order to make sites available for new industries which will benefit the muneipality, may likewise acquire, own and hold such sites, including real property, either inside or outside the corporate limits and may sell, lease or dispose of them upon the terms and conditions as it considers advantageous to the civic welfare of the city, to persons who will agree to install, maintain and operate a beneficial new industry. Sites acquired under this paragraph and any right, equity, claim or title acquired by the municipality to real property sold to it for delinquent taxes are not 'property acquired, owned or held for or devoted to a public use' as used herein." .Alaska Const., art. IX, § 9: "Local Debts. No debt shall be contracted by any political subdivision of the State, unless authorized for capital improvements by its governing body and ratified by a majority vote of those qualified to vote and voting on the question." . In City of Juneau v. Hixson, 373 P.2d 743 (Alaska 1962), this court defined "capital improvement" as follows: "The trial court was correct in holding that the bond issue herein was not for a capital improvement. Assuming for the moment that the expenditure of the money could accomplish the desired objective, the end product would lack most of the attributes usually associated with the completed public project for which general obligation bonds have been sold. No permanent asset in the form of real or personal property would accrue to the city. The property acquired by the proceeds would be donated to the state. No thing of value would remain the property of the city. No improvement of general- use or service to the taxpayers of the city would have been created by the expenditure. No tangible security for the bonded indebtedness would have been created — in fact, the total security would have been reduced by the removal of some seven acres of downtown property from the city's tax rolls." 373 P.2d, at 748. . See Note, "Legal Limitations on Public Inducements to Industrial Location," 59 Colum.L.Rev. 618 (1959). . Newberry v. City of Andalusia, 257 Ala. 49, 57 So.2d 629 (1952) ; Wayland v. Snapp, 232 Ark. 57, 334 S.W.2d 633 (1960) ; Dyche v. City of London, 288 S.W.2d 648 (Ky.1956). . Although courts have split on the validity of revenue bond plans, the weight of authority is in their favor. Pinsky, "State Constitutional Limitations on Public Industrial Financing: An Historical and Economic Approach," 111 U. of Pa.L.Rev. 265, 276 n. 63 (1963). . Long-run economic and social changes are ever present sources of financial risk. Population shifts or widespread economic recession may render unworkable fiscal policies that were once considered sound. These risks, however, are inevitable concomitants of public decision making. . In the cases applying the public purpose doctrine and the public aid limitations to the fields of transportation, recreation, and parking, courts have placed considerable emphasis on the public importance of the project and the urgency of the need for public financing. Pinsky, supra note 10.

10558649

FAIRVIEW DEVELOPMENT, INC., Appellant, v. CITY OF FAIRBANKS, Appellee

Fairview Development, Inc. v. City of Fairbanks

1970-10-09

No. 1118

35

37

475 P.2d 35

475

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:11.912033+00:00

CAP

Before BONEY, C. J., and DIMOND, RABINOWITZ, and CONNOR, JJ.

FAIRVIEW DEVELOPMENT, INC., Appellant, v. CITY OF FAIRBANKS, Appellee.

FAIRVIEW DEVELOPMENT, INC., Appellant, v. CITY OF FAIRBANKS, Appellee. No. 1118. Supreme Court of Alaska. Oct. 9, 1970. Walter Sczudlo, Fairbanks, Lyle L. Iver-sen, of Lycette, Diamond & Sylvester, Seattle, Wash., for appellant. Grace Berg Schaible, of Merdes, Schaible, Staley & .DeLisio, Ben T. Delahay, City Atty., Fairbanks, for appellee. Before BONEY, C. J., and DIMOND, RABINOWITZ, and CONNOR, JJ.

901

5478

RABINOWITZ, Justice. Appellant Fairview Development, Inc. sued appellee City of Fairbanks to recover taxes paid under protest. After a trial by the court without a jury, the action was dismissed with prejudice. Fairview appeals from the superior court's judgment. We affirm. In 1950, Fairview leased a parcel of land of about 12 acres from the city for 75 years at an annual ground rental of $1,800. Paragraph 8 of the lease provides: It is specifically agreed that during the life of this lease as between City and Fairview the buildings placed upon the above described land shall, for the purpose of taxation only, be treated as personalty; and that the full value thereof can and will be carried on the personal property tax rolls of City, and Fairview undertakes and agrees to pay taxes thereon. Should there be any pe riod during the life of this lease when said property shall not be within the taxing limits of City, Fairview shall nevertheless pay to City annually an amount in lieu of taxes equal to that which would have been charged as taxes based upon City's millage rate for general taxation for that year, (emphasis added) When negotiations began between Fair-view and the city, part of the land lay outside the city limits, but by the time the lease at issue was executed, that portion of the land had been annexed. In 1951, Fairview completed construction of a multimillion dollar apartment complex on the land. The city abolished personal property taxes in 1961 by Ordinance 1068, which included these sections: Section 6. Savings Clause. That the amendment or repeal of sections of the Code of Ordinances effectuated by the enactment of this ordinance shall not be construed to affect or limit the city in the collection of taxes heretofore levied, or as abating any actions now pending under or by virtue of such sections or as discontinuance, abating, modifying, or altering any penalties or interest accruing or to accrue or accrued tax liability or as affecting the liability of any person, firm or corporation or as waiving any right of the city under any section or provision existing at the time of passage of this ordinance. Section 7. That leasehold interests and other interests in real property, including improvements, property [sic] taxable as real property, which may have been included on the personal property tax rolls, shall be transferred to the real property tax rolls and shall continue to be taxed. Beginning in 1961, the city each year listed the value of Fairview's buildings on its real property tax roll and assessed taxes which Fairview paid under protest. Fairview sued to recover taxes so paid through 1964. The case seems to have been tried on the theory that the payments by Fairview were payments in lieu of taxes under paragraph 8 of the lease rather than real property taxes under Section 7 of Ordinance 1068. Fairview argued that the phrase "taxing limits" in the lease meant the geographic limits of the city, so no payments in lieu of taxes had become due because the land and buildings had remained inside the geographic city limits. The trial court found that the phrase "taxing limits" was ambiguous and, after hearing testimony on the actual intent of the parties, concluded that the parties had intended the city to obtain tax revenues on the buildings for the entire term of the lease. The superior court construed the phrase "taxing limits" as meaning "any restriction or limitation on the City's taxing power and not merely a geographical limitation." Fairview specified as error the trial court's construction of the phrase "taxing limits" and its failure to apply in its favor the Equal Protection Clause of the United States Constitution and the Contract Clause of the United States and Alaska Constitutions. The Contract Clause specification is not argued, so we take this point to be' abandoned; the single con-clusory paragraph without citation of any authority which Fairview devotes to its Equal Protection specification is not adequate to put the issue before the court. The sole issue properly raised in this appeal, then, is whether the trial court erred in its construction of the phrase "taxing limits." Study of the record including the trial court's memorandum opinion and order, which furnished the bases for the formal findings of fact and conclusions of law which were subsequently entered, convinces us that the judgment below should be affirmed. More particularly, we hold that the trial court's findings of fact underlying its construction of the lease phrase "taxing limits" were not clearly erroneous. In light of these findings of fact, we further hold that the superior court's construction of the phrase "taxing limits" and its conclusions of law entered in conformity with this construction should be affirmed. The judgment entered below is affirmed. . See Port Valdez Co. v. City of Valdez, 437 P.2d 768 (Alaska 1968) ; Pepsi Cola Bottling Co. v. New Hampshire Ins. Co., 407 P.2d 1009, 1013 (Alaska 1965). . Supreme Ct.R. 11(a) (8) ; Lewis v. State, 469 P.2d 689, 691 (Alaska 1970).

10567229

Lawrence R. McCUBBINS, Appellant, v. Joe KEENAN, Division of Lands, Walter Hickel, Governor, and/or parties real or unreal, known or unknown, Appellees

McCubbins v. Keenan

1970-10-23

No. 1165

696

696

475 P.2d 696

475

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:11.912033+00:00

CAP

Before BONEY, C. J., and DIMOND, RABINO WITZ and CONNOR, JJ.

Lawrence R. McCUBBINS, Appellant, v. Joe KEENAN, Division of Lands, Walter Hickel, Governor, and/or parties real or unreal, known or unknown, Appellees.

Lawrence R. McCUBBINS, Appellant, v. Joe KEENAN, Division of Lands, Walter Hickel, Governor, and/or parties real or unreal, known or unknown, Appellees. No. 1165. Supreme Court of Alaska. Oct. 23, 1970. Lawrence R. McCubbins, in pro. per. G. Kent Edwards, Atty. Gen., Juneau, James D. Rhodes, Asst. Atty. Gen., Anchorage, for appellees. Before BONEY, C. J., and DIMOND, RABINO WITZ and CONNOR, JJ.

260

1566

OPINION PER CURIAM. By this action appellant sought to have declared void the state's selection of certain public lands of the United States in Alaska, which selection was made under Section 6(b) of the Alaska Statehood Act. Appellant claimed the same lands based upon notices of location of settlement or occupancy for homestead purposes. The superior court dismissed appellant's action with prejudice. The superior court was correct. The identical issue presented here was litigated and decided adversely to appellant and in favor of the state in the United States Court of Appeals for the Ninth Circuit in the case of Udall v. Kalerak. Appellant and the State of Alaska were parties to that litigation. Appellant's present action is barred by principles of res judi-cata. The judgment of the superior court is affirmed. . Act of July 7, 1958, 72 Stat. 339, 48 U.S.C., ch. 2, § 6(b) (1964). . 396 F.2d 746 (9th Cir.), cert. denied, Kalerak v. Hickel, 393 U.S. 1118, 89 S.Ct. 990, 22 L.Ed.2d 123 (1968). . Palfy v. First Bank of Valdez, 471 P.2d 379 (Alaska 1970) ; Pennington v. Snow, 471 P.2d 370 (Alaska 1970); State v. Baker, 393 P.2d 893, 896-901 (Alaska 1964).

10567296

David V. RASCO and Sarah E. Rasco, Appellants, v. Myron Stanley MORAN and Helen E. Moran, Appellees

Rasco v. Moran

1970-10-23

No. 1228

696

699

475 P.2d 696

475

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:11.912033+00:00

CAP

Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR, and ERWIN, JJ-

David V. RASCO and Sarah E. Rasco, Appellants, v. Myron Stanley MORAN and Helen E. Moran, Appellees.

David V. RASCO and Sarah E. Rasco, Appellants, v. Myron Stanley MORAN and Helen E. Moran, Appellees. No. 1228. Supreme Court of Alaska. Oct. 23, 1970. Edward J. Reasor, Anchorage, for appellants. John M. Stern, Jr., Anchorage, for ap-pellees. Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR, and ERWIN, JJ-

843

5149

OPINION RABINOWITZ, Justice. R. D. Rasco and his wife Patricia were killed in a plane crash. Two children survive them, Jeffery, born in 1965, and Robert, born of R. D. Rasco and a previous wife in 1961 and adopted by Patricia Ras-co. Patricia's parents, Myron and Helen Moran of Dillingham, Alaska, and R. D.'s parents, David and Sarah Rasco of California, petitioned the Superior Court of Alaska to appoint them guardians of the persons and estates of Jeffery and Robert. A master held hearings and prepared a report summarizing the testimony and recommending that the Morans' petition be granted and the Ráseos' petition denied. The court adopted the master's report, denied the Ráseos' petition, and appointed the Morans guardians of the persons and estates of Jeffery and Robert. The Ráseos appeal. The Ráseos specify four errors. The first is that the master erred in admitting into evidence the statement of a witness that R. D. Rasco had told him, [W]ell, at least I know that if anything happened to Pat or R. D.. — -Pat and I that Helen and Myron [Moran] would take good care of the children. Appellants claim that this testimony was inadmissible hearsay. Since appellants failed to raise this point below in their objections to the master's report or their objections to the proposed order confirming the master's report, they cannot raise it now. The second specification of error is that the superior court erred in not allowing the paternal grandparents visitation rights. Since the court below did not rule on this matter, there is nothing to appeal, and the Ráseos may petition the superior court for visitation rights without showing change of circumstances. The third specification of error is that the superior court committed error in adopting the master's report because the report is not sufficiently comprehensive, is contrary to the great weight of the evidence, and is clearly erroneous. Our study of the record has left us with the conviction that the master's report was sufficiently comprehensive, supported by substantial evidence, and no material finding of fact contained in the report was clearly erroneous. Appellants' fourth specification of error is that the superior court erred in failing to accord appellants, as closest relatives, preference in regard to the custody of the older child, Robert. They argue from AS 20.05.010, which provides that [i]n selection of a guardian the court shall give precedence to the closest relative who is of good moral character and competent to discharge his duties. Appellants argue that "relative" in this guardianship statute means blood relative, and since appellants' son was Robert's natural father but appellees' daughter was merely Robert's adoptive mother, appellees are not relatives of Robert; alternatively, appellants are closer relatives to Robert than appellees because of the blood tie. Appellees argue that they are as much Robert's grandparents as appellants by virtue of the adoption statute, AS 20.10.-120(b), providing that [a]n adopter and the spouse of an adopted child, and their respective kin, have the rights, of inheritance from the child as prescribed by the statutes of descent and distribution for natural parents, spouse and their respective kin to the exclusion of the adopted child's natural parents and kin, and any prior adopter and his kin. Where a natural parent is the spouse of an adopter, the natural and adopted parent and kin inherit the same as natural parents and their kin. The above adoption statute cited by ap-pellees governs inheritance rights rather than guardianship, so could only apply by analogy. We rely instead on AS 20.10.-120(a), also cited by appellees, which provides that [b]y a decree of adoption, the natural parents, other than a spouse of an adopter, are divested of all legal rights and obligations in respect to the child, and the child shall be free from all legal ob ligations of obedience and maintenance in respect to them, and is, as to all legal incidents, the child, legal heir, and lawful issue of his adopter, entitled to all rights and privileges, including the right of inheritance and the right to take testamentary disposition, and subject to all the obligations of a child of the adopter. If, as this statute provides, an adopted child "is, as to all legal incidents," the adopter's child, then consonant with the clear legislative intent of the statute, he must be the adopter's child for purposes of applying the guardianship statute. We fail to perceive any persuasive reasons militau ing against a literal reading of AS 20.10.-120(a). Affirmed. . State v. 7.536 Acres, 431 P.2d 897 (Alaska 1967). Assuming the questioned testimony can be characterized as hearsay, in light of the entire record we fail to see how its admission was other than harm-, less error. . Supreme Ct.R. 6.

10556673

KETCHIKAN COLD STORAGE COMPANY, 9,533 Square Feet of Land, More or Less, Citizens' Utilities Company, a Connecticut Corporation, successor in interest to Ketchikan Cold Storage Company, Appellants, v. STATE of Alaska, Appellee

Ketchikan Cold Storage Co. v. State

1971-11-30

No. 1198

143

153

491 P.2d 143

491

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:13.332373+00:00

CAP

Before BONEY, C. J., and DIMOND, RABINOWITZ, and ERWIN, JJ.

KETCHIKAN COLD STORAGE COMPANY, 9,533 Square Feet of Land, More or Less, Citizens' Utilities Company, a Connecticut Corporation, successor in interest to Ketchikan Cold Storage Company, Appellants, v. STATE of Alaska, Appellee.

KETCHIKAN COLD STORAGE COMPANY, 9,533 Square Feet of Land, More or Less, Citizens' Utilities Company, a Connecticut Corporation, successor in interest to Ketchikan Cold Storage Company, Appellants, v. STATE of Alaska, Appellee. No. 1198. Supreme Court of Alaska. Nov. 30, 1971. Jeremiah M. Long of Long, Mikkelborg, Wells & Fryer, Seattle, Wash., Avrum Gross of Faulkner, Banfield, Boochever & Doogan, Juneau, and Robert H. Ziegler of Ziegler, Ziegler & Cloudy, Ketchikan, for appellant. Richard Richards of Richards, Watson & Hemmerling, Los Angeles, Cal., W. C. Stump of Stump & Stump, Ketchikan, and G. Kent Edwards, Atty. Gen., Juneau, for appellee. Before BONEY, C. J., and DIMOND, RABINOWITZ, and ERWIN, JJ.

5839

35334

OPINION ERWIN, Justice. The state took certain land in Ketchikan, Alaska, by eminent domain for a street widening project. The property in question consisted of a 25-foot wide strip, which included a portion of a five-story cold storage building. The state deposited $191,725 with the superior court as estimated just compensation for the taking which occurred on December 15, 1966. The case was tried at Ketchikan in July of 1969. Prior to trial the property owner failed to comply with a discovery order concerning the income history of its operations. The court therefore sanctioned the appellant by entering an establishment-preclusion order stating that the plant had an overall declining economic history and had recently been operating at a loss. Over the objection of the owner, the case was submitted to the jury solely on the question of the highest and best use of the property. The trial court allowed no evidence to be submitted to the jury concerning monetary valuation of the property. The witnesses were not permitted to testify about the property in monetary terms. Rather the court instructed the jury that in determining the highest and best use of the property they should consider as a fact established by court order that the cold storage plant was operating at a loss. Therefore, included prominently in the evidence before the jury concerning the highest and best use of the taken property were the facts established by the court as a discovery sanction. The jury returned a special verdict stating that the highest and best use of the property on the date of taking was not as a fish cold storage and processing plant, but some other commercial use. Following the special verdict, counsel for both parties stipulated that the value of the underlying land was $30,000. A judgment reflecting that award was thereafter entered. No compensation was awarded for the five-story cold storage plant. The final award was satisfied out of the $191,725 deposit, most of which was repaid to the state. In addition, $17,909.66 as costs of the state in seeking discovery was assessed against the property owner for his failure to make discovery. In this appeal the owner contends that the trial court erred (1) in entering a certain establishment-preclusion order, (2) in assessing certain expenses and attorney's fees in connection with the establishment-preclusion order, (3) in requiring a special verdict on the question of highest and best use of the property, while excluding all evidence of its dollar value, (4) in disallowing certain evidence concerning the impact of the pendency of the condemnation proceedings upon the property, and (5) in instructing the jury on the burden of proof. I. THE ESTABLISHMENT-PRECLUSION ORDER In July of 1968 the state served two interrogatories on the owner. These asked the owner to state in detail, for the years 1954 to 1967, inclusive, its revenues and income from the operation at the property, and its operating, maintenance, and depreciation expenses. The owner was also asked to supply the description, nature, custody, and location of all records reflecting such information. On September 23, 1968, the state moved to compel answers to the interrogatories. An opposition to the interrogatories was filed October 2, 1968, in which the owner objected to the discovery on the grounds that evidence of profits of a business is inadmissible in a condemnation action, and that the information requested by the interrogatories could not reasonably lead to admissible evidence. After a hearing, the court ordered that the interrogatories be answered within 30 days after service of the order. The order of the court was dated October 15, 1968. Appellant did not comply with the order of the court. On February 25, 1969, the state moved for an order which would establish as proven that from 1954 to 1962 the income from the owner's operations followed a declining trend, while expenses did not proportionately decline; that from 1963 to 1967 expenses exceeded income, resulting in a net loss for each year; and that the aggregate operating expenses related to operating revenues and income over the entire period from 1954 to 1967 showed a total net loss. The state also moved for an order requiring the owner to pay the expenses incurred in obtaining the discovery orders. On March 14, 1969, the court denied the motion to establish facts, because the owner was about to file answers to the interrogatories. At the same time the court ordered payment of certain costs and attorney's fees. It also found that the refusal by the owner to answer the interrogatories was initially without substantial justification, and that the owner failed and refused to comply within a reasonable time with the court's order of October 15, 1968. Answers to the interrogatories were filed March 19, 1969. On April 4, 1969, the state again moved that certain facts concerning operating revenues and income, set out above, be considered established. The state claimed that the answers to the interrogatories filed by the owner were inadequate. Although the answers disclose the gross revenues received from sale of fish, and detail the operating expenses of the plant, they omit the cost of procuring the fish. Therefore, it is not possible to determine profit or loss from an examination of the answers to the interrogatories. After a hearing, the court on April 24, 1969, modified its previous order and held that the facts requested by the state should be considered established and that the owner should be precluded from introducing evidence controverting such facts. The question presented is whether, absent a finding of wilful failure by appellant to comply with the initial discovery order of October 15, 1968, the establishment-preclusion order should be upheld. We have concluded that it should not. When a party refuses to comply with a discovery order, Civil Rule 37(b) provides the court with a flexible list of sanctions. One of the most severe sanctions is the establishment-preclusion order When facts at issue in a controversy are established against one of the parties, he is precluded from introducing testimony to refute the points taken to be established. Thus, in effect, the party has been denied his right to trial on the merits to the extent that matters of fact have been rendered incontestable. The sanction is especially severe when the establishment-preclusion order goes to an issue which is central to the determination of the case. In the present case the jury was instructed that it could consider the cold storage plant's history of declining profits, established by court order, in determining the highest and best use of the condemned property.' All other valuation evidence was excluded from the jury's consideration. It is difficult to conceive how the jury had any choice other than to find that the highest and best use of the condemned property was not as a cold storage plant when the only evidence of valuation before them was the declining economic history of the plant as established by court order. Thus, the establishment-preclusion order had a direct bearing on the critical issue determined by the jury: the highest and best use of the property. Even if the court had allowed into evidence all the indicia of valuation commonly utilized in determining property values in a condemnation proceeding, the establishment-preclusion order would still have had a direct impact upon the ultimate issue in the case: the just compensation for the condemned property. Although income from property is not a decisive factor in determining the value of property, it is a factor to be considered. This is especially true in the case of special use properties where the factor of comparable sales is often not available. It is a serious step m any condemnation proceeding for a court to preclude the property owner from entering into evidence proof of any valuation factor which will aid the trier of fact in determining the just compensation of the property taken. The purpose of the Rule 37 sanctions is to effectuate the discovery process. The discovery rules have replaced common law pleading as the means of clarifying issues prior to trial. This permits the factual and legal issues to be brought into specific focus at an early time. It also may lead to settlement or early termination of lawsuits. Discovery has been quite successful in achieving these goals, and we must not condone any attempt to avoid the process. We cannot, however, allow a procedural rule to frustrate the major purpose of Rule 37, and in fact all the rules of civil procedure, which is to ensure that an individual may have a just determination of his case upon the merits. The United States Supreme Court has stated that federal provisions similar to those of Civil Rule 37 must be read in light of the fifth amendment's guarantee that no person shall be deprived of property without due process of law. Societc Internationale Pour Participations Industrielles Et Commerciales, S. A. v. Rogers, 357 U.S. 197, 209, 78 S.Ct. 1087, 2 L.Ed.2d 1255, 1262 (1958). See also Oaks v. Rojcewicz, 409 P.2d 839, 843 (Alaska 1966). We have concluded that an establishment-preclusion order which prevents full adjudication of a case on its merits is so drastic a sanction that it should be employed only upon the clearest showing that such a course is required. Although Rule 37 does not in terms require a showing of wilfulness before any of its sanctions come into play, we will not sustain an establishment-preclusion order relating to a central issue in a case absent a showing of wilful failure to comply. In Oaks v. Rojcewicz, supra, we held that a showing of wilfulness was a prerequisite to a dismissal as a sanction under Civil Rule 37(b) (2) (c). Our approach is in line with a number of cases which have found that the establishment-preclusion order is only appropriate in exceptional situations. In our opinion the record does not show a wilful refusal on appellant's part to comply with the lower court's production order of October 15, 1968. The only evidence of wilful nondisclosure was appellant's delay in making discovery, and the unsupported allegations of opposing counsel that the purpose of the delay was to thwart the discovery process. Lacking the element of wilful noncompliance, the trial court under Rule 37 should not have entered an establishment-preclusion order in this case. In addition to the establishment-preclusion order, the lower court assessed against appellant $17,909.66 which represented ap-pellee's costs in obtaining and pursuing the discovery order. We feel that this assessment when modified, as we will direct, is an ample sanction under Rule 37 for appellant's tardy and inadequate response to the state's interrogatories. This ruling does not, of course, affect the state's right to seek further discovery in this case. II. THE COST BILL The court assessed against appellant the state's costs of $7,238.37 in obtaining the discovery order and the subsequent costs of $10,671.29 in enforcing that order. We find the lower court's assessment of the state's costs in obtaining the discovery order improper under Rule 37(a). The assessment of the state's costs in enforcing the order is, however, a proper sanction under Rule 37(b) for appellant's failure to comply with the discovery order. A. Costs in Obtaining the Discovery Order. A court can only require a refusing party to pay for the other party's costs in obtaining a discovery order when the former's refusal is "without substantial justification." It is not the purpose of Rule 37 to punish a party who innocently and reasonably resists discovery. Thus this sanction is only applied against a party who entirely disregards the discovery request, who has been unreasonable or recalcitrant in his conduct, or whose refusal has been captious. After reviewing the record in this case we have concluded that the appellant's initial refusal of discovery was not without substantial justification. Appellant made a timely objection to the interrogatories on the ground that evidence of the profits of a business is inadmissible in a condemnation action, and on the further ground that the information requested by interrogatory could not reasonably lead to admissible evidence. Under Civil Rule 26(b), governing the scope of discovery, one may object to an interrogatory on the grounds that the answer would be inadmissible at trial and would not lead to the discovery of admissible evidence. There is substantial authority that "evidence of the profits of a business conducted upon land taken for the public use is not admissible in proceedings for the determination of the compensation which the owner of the land shall receive." However, the trial court apparently found, and we agree, that this cold storage facility comes within an exception to this general rule permitting evidence of income from unique commercial property. Therefore, the lower court was entirely correct in granting the state's motion for a discovery order. In light of the great weight of authority disallowing evidence of business income from a commercial property in an eminent domain proceeding, however, we find that appellant's initial resistance of the state's efforts to discover the profits of the cold storage plant had substantial justification. Therefore, to tax appellants with the state's costs in obtaining the discovery order constituted a clear abuse of discretion. B. Costs as a Sanction for Failure to Comply with the Discovery Order. We uphold the trial court's assessment of the state's costs in seeking enforcement of the October 15 discovery order. After the October court order, appellant was no longer entitled to resist the state's discovery efforts. However, appellant did not provide appellee with the requested information. The state was forced to bring appellant into court once again on March 14, 1969, to demand compliance with the discovery order. Appellant offered no excuse for the lengthy delay but promised to provide the answers to the state's interrogatories immediately. When the long-awaited answers were examined, they were incomplete and the state appeared in court once again to protest on April 18, 1969. We have held that the severe sanction of an establishment-preclusion order was not justified in this case. But this type of costly tardiness and lack of cooperation with the discovery process does justify the imposition of sanctions under Rule 37 (b). That rule permits the court, in its discretion, to enter "such orders in regard to the refusal as are just." The court chose in this instance to make appellant bear the full brunt of the state's costs in enforcing the October 15 discovery order. Absent a clear abuse, we will not interfere with the court's broad discretion in this area. The $7,238.37 awarded appellee as costs in obtaining the discovery order is disallowed. The award of $10,671.29 related to the enforcement of that order is affirmed. III. SPECIAL VERDICT ON HIGHEST AND BEST USE. The property owner next contends that it was error for the court to submit to the jury for a special verdict the question of highest and best use of the subject property, and to disallow any other evidence of valuation prior to the finding that the highest and best use of the property was as a cold storage plant. At the outset of the trial the state sought to prevent the property owner from introducing any evidence as to the value of the cold storage plant. Since it had already been established that the plant had an overall history of declining profits during the last 13 years of its operation, and was operating at a net loss during its final four years, the state contended that it was improper to allow the property to be valued as a cold storage plant. The court ruled, sua sponte, that unless the jury found pursuant to a special verdict that the highest and best use of the condemned property was as a cold storage plant, the owner would not be allowed to introduce any evidence as to the value of the plant. The court instructed the jury that in determining the highest and best use of the property, it could consider the declining economic picture of the plant as described in the establishment-preclusion order. The jury thereafter returned the following special verdict: "We the jury do find the Highest and Best Use of the subject property on December IS, 1966, was not its use at that time as a fish cold storage processing plant, but rather another commercial use." We have concluded that the court's isolation of the factor of highest and best use from the other indicia traditionally used in valuing properties taken by eminent domain constitutes reversible error. We think that the submission of the special verdict on highest and best use,' coupled with the suppression of other evidence of value, would necessarily confuse the jury and thwart the purpose of the eminent domain proceeding — to provide the property owner with a just compensation for his lost property. In eminent domain proceedings the basic issues are whether property is being condemned for a public use and the amount of just compensation to be paid to the owner. Because public use is rarely contested, just compensation is usually the only issue to be litigated. The term just compensation implies full indemnification to the owner for the property taken. In other words the property owner should be placed as fully as possible in the same position as he was in prior to the taking of his property. Just compensation has long been equated with the fair market value of the property taken. Among the major factors used to determine the fair market value of real estate are: net income from the land; reproduction cost of improvements which enhance the value of the land; comparable sales; and other uses for which the property is suited. The procedure utilized by the trial court, which required a special verdict as to whether the property was currently being used for its highest and best use, and which barred other evidence of value, is unprecedented. It should be noted that counsel for each party could find no authority for this artificial bifurcation of valuation factors in an eminent domain proceeding. This is understandable. The appraisal of property is not an exact science. It requires a complex balancing of the various principles and techniques which are utilized in reaching the final estimate of value. The factors entering into the appraisal process must be considered in their interrelationship. For this reason the prevailing rule in most jurisdictions is to allow the property owner to present proof of all the various elements which are probative of the value of the condemned property. Under the trial court's procedure, once the jury found that the highest and best use of the condemned property was not as a cold storage plant, the property owner could receive no compensation for the structural improvement on the land. In effect the court was saying that unless property is being used for its highest and best use, structures on the property do not add to its value. This application of the principle of highest and best use is, however, incorrect. A prospéctive purchaser might not view a special purpose structure as representing the highest and best use of the property, yet he might still find the structure to have value. Value might exist for several reasons. The structure might, through additional investment and alteration, be capable of achieving the highest and best use of the property. Therefore, one might be willing to offer something for the structure, discounting its reproduction cost by the amount of its obsolescence and by the amount necessary to bring it to a condition where it can be used profitably. What is at work is the principle of substitution: that the cost of obtaining an effective substitute for the property will influence its market value. Furthermore, the structure may be adaptable to some profitable use other than the highest and best use of the land. An additional observation must be made. The state argued below that since, under the establishment-preclusion order, the unprofitable character of the cold storage business had been made clear, the plant was valueless. However, the fact that the business conducted on the property is unprofitable, or even fails, does not necessarily render the building valueless. In re Chrystie St., etc., In City of New York, 236 App.Div. 321, 258 N.Y.S. 243, 248-249 (App. Div.1932), aff'd, 260 N.Y. 583, 184 N.E. 102 (1932). The business may be unprofitable for a number of reasons such as bad management, faulty financing, or temporary market conditions. Where the property is of a type rented out to tenants, it may be easier to correlate the extent of rental income to the question of whether the building is suitable to the land. Even then appraisers often ignore the actual income to the owner and reconstruct the income and expense statement to project it into a probable future. S. Kahn, F. Case, A. Schimmel, Real Estate Appraisal and Investment, 116-118 (N.Y. 1963). But when the owner himself occupies the property to conduct his business, and the property is used as an integral part of his business operations, it becomes most difficult, if not impossible, to segregate the income or loss attributable to the property as distinct from the business enterprise. In such cases the vital question is not whether the business is losing money. It is whether the property is capable of being used profitably. We think this distinction is vital in Alaska. The fishing industry entails a high risk enterprise. It also offers rewards for the skillful and diligent. Beyond that a considerable element of chance comes into play. Market fluctuations, biological conditions, and other impersonal factors can determine profit or loss in this field even for shrewd entrepreneurs. It is understandable, then, that one might lose money in a fish processing operation and yet keep on with the enterprise. Nor does lack of profit necessarily render the property valueless. A more plucky or more knowledgeable operator may be able to make the plant turn a profit and provide an adequate return on investment. The trier of fact may take business losses into account in determining the value of the condemned property, just as a prospective purchaser will consider the losses when deciding whether to buy the property intending to devote it to its present business. But the mere fact that an operation conducted on a property has lost money does not render the operation's plant valueless. In conclusion, how much value should be assigned to the condemned property is a challenging problem, both for appraisers and triers of fact. We think the owner is entitled to put on his proof as to the various elements probative of property values as best he can. Therefore, submission of this case to the jury for a special verdict on highest and best use of the property was prejudicial to the owner and an abuse of discretion by the court. IV. EVIDENCE CONCERNING THE EFFECT OF THE PENDENCY OF THE CONDEMNATION ACTION. Appellant next contends that it was error for the trial court to disallow appellant's offers of proof concerning the deleterious effect of the pendency of the condemnation action upon the property. The issue here is not whether the pendency of condemnation should be considered because of the depressant effect on market value. The question, more precisely, is whether the owner may show that only minimal maintenance was performed on the property because it was expected that the property would be condemned. Under one view, a management decision to forego maintenance or improvements should not be admitted into evidence. The argument is that any diminution in the value of the property is not the fault of the condemnor, but is a matter exclusively within the control of the owner. Appellee quite properly points out that a condemnee cannot recover for a value that his property would have had if improvements had been mad. It is also the rule that a condemnee will not be penalized for improving his property prior to condemnation, if this is done in good faith. State ex rel. State Highway Commission v. Fenix, 311 S.W.2d 61, 63-64 (Mo.App.1958). However, if condemnation is a real potentiality, an owner might well be afraid to expend money on maintenance or improvement. He has no means of knowing with any certainty whether the expenditure will be fully compensated in an ultimate condemnation award. The trier of fact may find that the improvement did not enhance the total value of the property to the extent of the cost of the improvement. Nevertheless, in many cases the reasons for a lack of maintenance or improvement are of little importance. For while the owner is compensated for the property in its condition at the time of condemnation, this is to an extent counterbalanced by the fact that he has not expended money which he might have done if condemnation were not in the offing. But in this case we think the offered testimony was relevant. The thrust of the state's case was that the cold storage structure was totally obsolete. That portions of the property' were poorly maintained or dilapidated support an inference that the owner regarded the property as lacking permanent economic value as a cold storage plant. In these circumstances we think that the owner was entitled to present the offered proof in order to counteract the inference which the state sought to draw. Certainly the refusal of the city to allow building permits in the area had an important bearing on this issue. We hold that it was reversible error to sustain the state's objection to the offered testimony. The state, of course, must be allowed ample cross-examination of the witness on the subject matter of his testimony. V. BURDEN OF PROOF. Appellant's final specification of error concerns the trial court's jury instruction that the burden of proof in a condemnation proceeding is upon the property owner to establish the highest and best use of the condemned property. In State v. 45,621 Square Feet of Land, 475 P.2d 553, 555 (Alaska 1970), we held that "instructions on burden of proof are inappropriate in condemnation actions." On retrial of the case at bar that decision will be controlling. We note here only that the instruction given below on burden of proof exacerbated the injury done appellant's case by the trial court's improper severance of the concept of highest and best use from the other indicia of property value. The case is reversed and remanded for further proceedings in accordance with this opinion. CONNOR, J., not participating. . The precise terms of the order were: "1. For each of the years 1954-1062 inclusive, operating revenues and income received by Ketchikan Cold Storage Co. showed a generally declining trend, while expenses of Ketchikan Cold Storage Co. did not proportionately decline; and "2. For each of the years 1963-1967, inclusive, operating expenses exceeded operating revenues and income, resulting in a net loss to Ketchikan Cold Storage Co. from each said year; and further "3. The aggregate operating expenses of Ketchikan Cold Storage Co., related to its operating revenues and income over the entire period of 1954-1967, inclusive, showed a total net loss." . Civ.R. 37(b) (2) provides in relevant part : "If a party or an officer or managing agent of a party refuses to obey an order made under subdivision (a) of this rule requiring him to answer designated questions, the court may make such orders in regard to the refusal as are just, and among others the following: "[a] An order that the matters regarding which the questions were asked, shall he taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; "[b] An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing in evidence items of testimony . Gf. Gill v. Stolow, 240 F.2d 669, 670 (2d Cir. 1957). This holding is consistent with our decision to uphold an establishment-preclusion order in Bachner v. Pearson, 432 P.2d 525 (Alaska 1967). We emphasized in Bachner that the trial court "could well have concluded that petitioner was recalcitrant and was not in good faith attempting to comply with what was required of him." Id. at 528. In his dissent, Justice Rabinowitz disagreed not with the standard utilized by the majority, but with the application of that standard to the case then at bar. . Campbell v. Johnson, 101 F.Supp. 705, 707 (S.D.N.Y.1951) ; 4A Moore's Federal Practice ¶ 37.03 [2.-4], at 37-62 n. 5 (2d ed. 1971). . $4084 of the latter amount is attributable to expenses connected with the hearing of March 14, 1969, and $6587.29 to expenses connected with the hearing of April IS, 1969. . Civ.R. 37(a) reads in part: "If a party or other deponent refuses to answer any questions propounded upon oral examination, the examination shall be completed on other matters or adjourned, as the proponent of the question may prefer. Thereafter, on reasonable notice to all persons affected thereby, he may apply to the court in the judicial district where the deposition is taken for an order compelling an answer. Upon the refusal of a deponent to answer any interrogatory submitted under Rule 31 or upon the refusal of a party to answer any interrogatory submitted under Rule 33, the proponent of the question may on like notice make like application for such an order. If the motion is granted and if the court finds that the refusal was without substantial justification the court shall require the refusing party or deponent and the party or attorney advising the refusal or either of them to pay to the examining party the amount of the reasonable expenses incurred in obtaining the order, including reasonable attorney's fees." (emphasis added.) . 4A Moore's Federal Practice ¶ 37.02 [10. — 1], at 37-43 to 37-44 nn. 2-5 (2d ed. 1971) ; 2A Barron & Holtzoff, Federal Practice and Procedure § 852, at 534— 36 (1961) ; Willys Motors v. Northwest Kaiser-Willys, 18 F.R.D. 473, 474 (D.Minn.1956) ; Grimmett v. Atchison, Topeka & Santa Fe Ry. Co., 11 F.R.D. 335, 336 (N.D.Ohio 1951). . Rule 26(b) reads in part: "[T]he deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action ⅜. It is not ground for objection that the testimony will be inadmissible at the'trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence." . 5 Nichols, Eminent Domain § 19.3 [1], at 19-49 (Sackman, 3d rev. ed. 1969). . Id. § 19.3 [5] at 19-66. . The state hired a recognized eminent domain attorney to litigate the case. He presented the court with a detailed itemization of his time sheets in connection with the state's motion to tax appellant with its costs in making discovery. The costs were those which he was charging the state for his work in enforcing the discovery order. We do not feel that ¡in-position of the full costs of opposing counsel in pursuing a discovery order would be an appropriate or a just sanction in every case. In the present case the sanction, though onerous, was justified by appellant's lengthy delay in making discovery and the handicap placed upon the state in the preparation of its case. . Reproduction cost is increasingly disfavored by appraisers in eases where the property is of a type ordinarily bought and sold in a ready market. But where a special purpose property is being valued, reproduction cost is often resorted to as a guide. The question to be asked in such eases is whether the special use of the property is suited to the land. In re Blackwell's Island Bridge Approach, 198 N.Y. 84, 91 N.E. 278 (1910). For reproduction cost should not be admissible if the special purpose facility does not enhance the value of the land. State, by State Road Commission v. Boyd, 129 W.Va. 715, 41 S.E.2d 665 (1947). . It is not clear from the record, but it is possible that the court based its action on an interpretation of Alaska State Housing Authority v. DuPont, 439 P.2d 427 (Alaska 1968). There we recognized one aspect of the "unit rule", holding that the structure is well adapted to the land an owner is not entitled in all cases to have buildings valued separately in addition to the market value of the land. But we also held that a summation of land and building values is permissible when on which it is situated. In DuPont there was evidence of building replacement value entered before evidence of suitability of the building to the land. However, the missing evidence was later supplied. We concluded that it was not error to admit testimony of value of buildings separate and apart from that of the site. It is possible that the court in the case before us was attempting to apply the DuPont principle in reverse. .4 Nichols, supra note 9, § 12.2 [3], at 12-83 to 12-85. . The exact offer of proof made by appellant's counsel was this: "MR. LONG: If permitted to so testify Mr. Thompson would state that in his consideration of the Ketchikan Cold Storage Company property lie considered that there liad been a pendency of condemnation, a threat of condemnation since the mid 1950's, that from 1956 until 1966 the only maintenance which had been performed on the Ketchikan Cold Storage Company property had been absolutely necessary maintenance; "That prior, to 1956 capital expenditures were made in installing two flake ice machines on the roof of the building, that a row of piling had been removed and new piling had been substituted therefor, that a new compressor was installed in the engine room ; and "That prior to 1950 whatever expenditures were necessary to make this plant competitive with other plants in the industry were made on the property, that after 1956 the only maintenance that was done was that which was absolutely necessary, and that the reason for the lack of the maintenance on this property, the principal reason, was that the property was going to be condemned eminently [sic] ; "That the property owner was informed from 1950 on that the property would be condemned eminently [sic], at any day, "And that the subject property contained vacant land which was unimproved which had contained a structure which was destroyed in a fire, and that the city would issue no building permits for any property that was within the proposed right-of-way."

10560855

Daniel JOHANSEN, Appellant, v. STATE of Alaska, Appellee

Johansen v. State

1971-11-30

No. 1309

759

770

491 P.2d 759

491

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:13.332373+00:00

CAP

Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, JJ-

Daniel JOHANSEN, Appellant, v. STATE of Alaska, Appellee.

Daniel JOHANSEN, Appellant, v. STATE of Alaska, Appellee. No. 1309. Supreme Court of Alaska. Nov. 30, 1971. Robert J. Doyle, John S. Hedland, Meredith A. Wagstaff, and Robert Kocsis, Alaska Legal Services, Anchorage, for appellant. G. Kent Edwards, Atty. Gen., Juneau, Sanford M. Gibbs, Asst. Atty. Gen., Wayne A. Ross, Court Trustee, Anchorage, for appellee. Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, JJ-

6398

38198

OPINION DIMOND, Justice. Appellant's wife divorced him in May 1966. The divorce decree required appellant to pay $100 a month for the support of his two children. Between the date of the divorce and April 1970, appellant paid only $148 in child support. A bench warrant was issued by the superior court, and appellant was arrested and brought before the court to show cause why he should not be held in contempt of court for failure to pay child support as required by the divorce decree. Following the hearing in May 1970, the superior court entered an order finding that appellant was in arrears in his child support obligation in the amount of $4,876. The court further found appellant in "civil contempt" and sentenced him to serve 60 day in jail. Commencement of the sentence was deferred until October 1, 1970. The court also provided that the sentence "may be further deferred if a payment on child support obligation herein is made by Daniel Johansen commensurate with his income or if, at that time, it can be shown that Daniel- Johansen has no money to pay child support through no fault of his own." From this contempt order an appeal has been taken. Appellant argues (1) that the contempt proceeding, although denominated as civil in nature, was in reality criminal, and that he was denied the constitutional safeguards guaranteed to him by the Alaska Constitution in criminal proceedings; (2) that there was no evidence before the superior court upon which to base a finding of contempt; and (3) that the court's denial of appellant's motion for a change of venue from Anchorage to Dil-lingham was an abuse of discretion. The case raises two additional points which we shall pass upon. They concern the possibility that this appeal has been rendered moot by events occurring after the entry of judgment in the superior court and the procedure to be utilized by a court to bring a similarly situated defendant before it. Mootness The circumstances which might be thought to render this case moot arose after the briefs were filed. Hence, appel-lee's failure to raise the issue will not preclude our consideration of it. Courts have the power, as a matter of sound judicial policy, to dismiss moot appeals. See, e. g., Moore v. Smith, 160 Kan. 167, 160 P.2d 675 (1945). This rule should apply even when the mootness issue is not raised by the appellee, if the reason is because the events causing the appeal to be mooted occur after the briefs were filed. The appellant was not imprisoned on October 1, 1970, or at any time thereafter as a result of the order quoted above. Further, on October 6, 1970, the appellant made a payment of $750 to the court trustee. The court trustee has taken no further action in connection with this case. Under these circumstances, it may be thought that the appellant has satisfied the decree and the case is moot. We decline to reach this result for two reasons. First, a careful reading of the lower court's order indicates that the events described above have not necessarily relieved the defendant of the threat of incarceration based on the order itself. The key clause says only that "commencement of said sentence may be further deferred if a payment on child support obligation herein is made by Daniel Johansen commensurate with his income." (emphasis added.) That appellant's sentence apparently has been deferred to this date does not necessarily mean that at some future time the appellant might not be incarcerated on the basis of this order alone. Second, this case presents an issue which is "capable of repetition yet evading review"; that is, an issue which falls within the public interests exception to the mootness doctrine. In re G.M.B., 483 P.2d 1006, 1008 (Alaska 1971); quoting Southern Pacific Terminal Company v. I. C. C., 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911). See also Deaconess Hospital v. Washington State Highway Commission, 66 Wash.2d 378, 403 P.2d 54, 67-68 (1965). The imposition of conditional jail sentence in child support contempt cases is a question of broad public interest because of the great number and the importance of such cases, and it is likely to recur. In these circumstances we have discretion to entertain such cases so that important public questions may be decided without delay by this court. Procedural Safeguards in Contempt Proceedings in Nonsupport Cases. Appellant argued at trial that the proceedings contained criminal elements and that he was entitled to various criminal procedural safeguards. The court ruled that the proceedings were for civil contempt and therefore the criminal rules were inapplicable. The issue presented — whether a contempt hearing to compel compli-anee with the child support order is a civil or criminal proceeding — is one of first impression in this state. Recourse to statutory law is helpful but not dispositive of the issue. However, the statutes do furnish some guidance. AS 09.50.010 speaks of the acts or omissions which constitute contempt. Subdivision (5) of that section, with which we are concerned here, provides that it is a contempt of the authority of the court to disobey a lawful judgment, order, or process of the court. AS 09.50.030 further provides: A person who is charged with contempt of court not committed in the presence of the court, where the act or thing so charged as a contempt is of such nature as to constitute also a criminal offense under a statute of the United States or a law of this state, has a right to jury trial. AS 11.35.010 makes wilful failure without lawful excuse to support a child a crime. Thus, it is clear that, for purposes of the right to a jury trial, our statutes classify indirect contempts for nonsupport, such as that alleged in the case at bar, as a crime and a jury trial is available. Appellant was not afforded the right to jury trial in the case at bar. On this basis alone, the superior court's order of contempt must be reversed. Our conclusion concerning 'appellant's right to a jury trial, however, does not dispose of this appeal, for here appellant seeks the full panoply of criminal procedural protections, and we must decide whether he and others in his position should receive them. Our statutes speak no further on this subject. It is necessary, therefore, to consider in some detail the contours of contempt doctrine to determine the proper scope of courts' powers and defendants' rights in contempt proceedings for nonsupport. As we noted recently in State v. Brow-der, contempt was originally regarded as a crime, punishable by criminal sanctions. Whether this was because "[t]he original law of contempt embraced only what is now known of as criminal contempt," or because every contempt inevitably contains an element of disrespect for the authority of government (one of the hallmarks of criminal contempt) is not clear. It is certain, however, that "the genesis of modern day contempt was a crime." The common law soon began to categorize contempts, and one of the earliest distinctions was between criminal and civil contempt. The exact development of the distinction is not clear, although it has been traced at least as far back as the 18th century. Significantly, the earliest explications of civil contempt evidence little agreement as to exactly what distinguished it from criminal contempt. Halsbury reported that older English law distinguished criminal contempts by their procedural implementation as much as by any innate substantive differences which might have existed between them and other offenses. Nonetheless, that there is a distinction between civil and criminal contempt appears to have become firmly established, both in England and in this country, by the late 19th century. It now remains to explore what that distinction is, and whether it is based on sound reasoning. The leading case is Gompers v. Buck's Stove & Range Company, where the United States Supreme Court held: It is not the fact of punishment, but rather its character and purpose, that often serve to distinguish between the two classes of cases. If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court. These polar concepts — "remedial" (or "coercive") v. "punitive" — seem clear enough, and, indeed, this distinction has been "widely accepted." Yet even Gompers noted that the distinction was far from absolute: Contempts are neither wholly civil nor altogether criminal. . . . It is true that punishment by imprisonment may be remedial as well as punitive . . . It is true that either form of imprisonment has also an incidental effect. For if the case is civil and the punishment is purely remedial, there is also a vindiction of the court's authority. On the other hand, if the proceeding is for criminal contempt and the imprisonment is solely punitive, to vindicate the authority of the law, the complainant may also derive some incidental benefit from the fact that such punishment tends to prevent repetition of the disobedience. Despite this weakness, the main test remains that suggested by the Gompers case: The character and purpose of the punishment serve to distinguish civil from criminal contempt. This remedial-punitive distinction is not perfectly sharp. We must now decide whether, whatever its faults, the remedial-punitive distinction is sharp enough to justify complete procedural cleavage between civil and criminal contempt. Elements of punitive as well as remedial punishment are almost invariably present in every civil contempt. If coercive imprisonment is imposed in order to effectu- ate compliance with a court order and thus aid a private litigant (remedial punishment), it nonetheless also has the effect of deterring contemptuous conduct in the future and of punishing the contemnor for his act of noncompliance — both of which are clearly attributes of criminal sanctions. This overlapping is tolerable if in civil contempt cases the court provides that imprisonment is conditional upon the defendant's continued refusal to comply with the court's order. This step, which insures that the defendant indeed does "carry the keys of [his] prison in [his] own pockets," assuming he has the ability to comply, would be sufficient to establish the coercive aspect of the imprisonment as its dominant one. Theoretically, once confronted with the reality and imminence of a stay in jail as a result of his noncompliance, the contemnor could immediately purge himself and avoid incarceration completely. If he did this, punishment would not be present at all, and deterrence would not be nearly as significant as the coercive (hence remedial) aspects of the proceedings. Under these circumstances, the characterization of the action as civil is not doctrinally objectionable, and the civil-criminal distinction is reasonably clear. There is a more serious problem inherent in the civil contempt doctrine. Although imprisonment — indeed, potentially unlimited incarceration — is at stake, the civil contempt defendant is afforded no more procedural protection than the ordinary civil litigant. This is because of the belief that civil contemnors do not need criminal procedural safeguards since they are not placed under the criminal sanction of a fixed sentence; that is, they "carry the keys of their prison in their own pockets." However, this may not be true: Both compliance and inability to comply are complete defenses to coercive imprisonment proceedings. The contemnor may have already complied or be incapable of doing so, yet the determination of these facts is made without criminal safeguards even though imprisonment hinges on the outcome of that determination. A better rationale for denying procedural safeguards rests on the position of the plaintiff. In criminal contempt, where the government initiates the action, the granting of procedural safeguards does not conflict with the rights of any individual. "But granting additional safeguards to the defendant in a civil contempt proceeding is directly opposed to the interests of the complainant to whom the defendant owes a duty by reason of a prior judicial decree." If this is so, where should the balance be struck ? The competing interests are strong in the instant case. Defendant, faced with incarceration, has an interest in receiving those procedural protections which insure that he has been accorded a fair trial. Defendant's children have an interest in receiving support for the sustenance of life. Defendant's former wife, now charged with the responsibility of raising the children, needs contributions from the children's father in order to meet her responsibility. Further, the interests of both children and wife are heightened in that they seek enforcement of a prior judicial decree. The state has an interest in the welfare of the children as the ultimate source of their support in the event that their parents fail them. In these circumstances we find it appropriate to delineate the rights of the parties in such a way that all legitimate interests will be protected as fully as possible, departing from traditional contempt doctrine in those areas where we have' found it to be deficient or where strict adherence to it would not lead to the soundest rule of law in terms of all the parties' interests. The purpose of contempt proceedings for nonpayment of child support decrees is to coerce the defendant to pay money. It is not to punish him for his past failure to pay. What we are dealing with here is the question of imprisonment to compel performance of an act. In this regard AS 09.50.050 states: When the contempt consists of the omission or refusal to perform an act which is yet in the power of the defendant to perform, he may be imprisoned until he has performed it. Thus, it is necessary to determine whether defendant has the resources with which to satisfy the court order, that is, whether he has the ability to comply with an order of support. Should this determination be made without all criminal safeguards — with the exception of jury trial — even though incarceration hangs on the outcome? We believe that it should, subject to the following guidelines, because of the relative positions of the parties. At the outset, it should be determined by the trial judge whether the alleged contemnor contests the assertion that he has the ability to comply with the court's order of child support. In the event the defendant makes no issue of his ability to comply, then the defendant can be imprisoned in order to compel compliance without the intervention of a jury trial. On the other hand, if the defendant asserts that he lacks the ability to comply with the court's order of child support, then he is entitled to a jury trial on this issue. At the contempt trial, the burden of proving noncompliance, by a preponderance of the evidence, with the court's order should be on the plaintiff, who initiates the action. Since all payments in child support cases in Alaska are made through the office of the court trustee, pursuant to AS 09.55.210(5) and Civil Rule 67(b), proof of noncompliance should be a simple matter. In almost all child support contempt cases, the crucial issue will concern the defendant's ability to comply. This was the situation in the instant case. The burden of proof in this respect should remain with the defendant. This is where it presently rests, in this state and in other jurisdictions; such allocation of the burden of proof is appropriate. Defendant is already under a court order to pay a certain amount of money; presumably the prior adjudication was based on evidence that the amount fixed was fair and in proportion to defendant's ability to pay. Further, putting the burden on the plaintiff (of proying defendant's ability to pay) seems unfair. Defendant, as a father, is under a general duty to support his children. AS 11.35.010. He is further under a specific obligation to pay a certain sum by virtue of the court order. By the time these cases reach trial stage, the father usually has failed to fulfill these obligations for a considerable period of time. He should be required to present the rea sons, if there are any, for his failure to meet his legal obligation to support his children. Further, the particular facts regarding his inability to pay will be known to him, whereas his former wife and his children generally will know little of his financial situation or earning capacity. The shifting of the burden of proof entails a partial change of the ordinary standard employed in criminal cases. But this is still advantageous to both parties. The defendant's protection increases as the burden of proof is shifted. He needs only to show by a preponderance of the evidence that he is unable to pay. Once he has met this burden, incarceration, as a coercive method, serves no useful purpose. At the same time the interest of the complainants in receiving money which defendant is able to pay, is protected under this approach. It is now evident that traditional contempt doctrine cannot satisfactorily answer whether child support contempt hearings are "criminal" or "civil" in nature. We have, instead, looked to a balancing of the parties' interests to determine what procedure should be followed in such cases. We have drawn from both sides of the law. We have found a jury trial not only mandated by our statutes but warranted as a procedural protection to the defendant facing incarceration. On the other hand, we have left inability to comply as an affirmative defense, thereby keeping the burden of proof on the central issue on defendant. Doubtless, further procedural questions will arise in future cases. We shall continue to weigh the interests as we have done here. All we do today is attempt to delineate the procedural aspects of contempt proceedings in nonsupport cases where the purpose is to coerce the defendant's performance of his obligation. Sufficiency of the Evidence AS 09.50.010(5) provides that it is a contempt of the authority of the court to disobey a lawful judgment, order, or process of the court. Under this statute, the purpose of the contempt proceeding in this case and a resulting sentence of imprisonment was either to coerce the appellant into paying support money for his children or to punish him for his past failure to pay, or both. The question is whether the evidence was sufficient to justify finding appellant in contempt and sentencing him to a term of imprisonment. Disobedience of a lawful order of the court connotes more than the mere failure to comply with such order. The word "disobey" has the connotation of wilfully failing to comply, without some lawful or reasonable excuse for not complying. If such an excuse does exist and it is established, there can be no contempt of the authority of the court. Appellant is an Alaskan Native born in the Native village of Ekuk and raised in the nearby Native fishing village of Dil-lingham. In appellant's brief, it is stated that he is uneducated. Appellant's experience is sharply limited. His whole life, with the exception of four years in the military, has been spent in the village. His only occupation has been fishing, except for some very limited experience as a waiter in Dillingham working a few nights a month as work was available. He has been trained for no other occupation but fishing. Appellant's last good fishing season, when he cleared $3,200, was in 1965, before his divorce. Since that time he has cleared no more than $700 in any year because of poor fishing conditions. Appellant has been and is heavily in debt to a local cannery in Dillingham. In addition to other sums owed the cannery, appellant owes about $7,200 on his fishing vessel. Appellant has made attempts to find other employment. But he was unsuccessful, principally, it appears, because prospective employers would not hire fishermen. Appellant testified that he could not quit fishing because he owes so much money to the cannery. He did not know of any way of making more money than as operator of a fishing vessel. In the 1969 fishing season, the year prior to the hearing on this matter, appellant testified that he had gone "in the red." In that year he went deeper in debt to the cannery. Appellant testified that he might have gotten a full time job with Wien Consolidated Airlines in Dil-lingham if he had given up fishing as his occupation, but that he could not be certain of this. From his testimony, it appears that appellant was continuing his occupation as a fisherman while waiting for a good fishing season to make up his losses and make a profit. At the conclusion of the hearing, the judge stated that he could not contemplate issuing a judgment which would in effect order the appellant to go somewhere else to live and work at another job. But then the judge reversed his position by stating that appellant had remained in a depressed area year after year hoping for the big strike that had never come, that he ought not to stay in Dillingham, and that he was in contempt of court. The question here is whether one may be required to change his place of residence as a condition of not being held in contempt in a case of this type. In these circumstances, we cannot agree with the trial judge's suggestion that appellant leave his home in Dillingham and seek employment in an urban community, such as the city of Anchorage. There is no indication from the record that such a move would hold a promise of success within appellant's inherent but unexercised capabilities. Rather, it seems that it would be a gamble, based on little more than hope, that an untrained person could earn more in an urban environment doing an undetermined job than he could in his home locality at his life-long occupation. We need not close our eyes to the serious problem of unemployment in the city of Anchorage which is more serious for the unskilled. Further, our recent decision in Alvarado v. State, 486 P.2d 891 (Alaska 1971), discusses in detail the wide ranges of difference between life in rural Alaska and life in the city. We found them to be "vastly dissimilar," noting an "order of differences which distinguishes one culture from another." We hesitate now to adopt a rule allowing a superior court to force a man to move from one community to another, in the process renouncing his life-long occupation to seek an undetermined one, on the penalty of being found in contempt for failure to do so. In short, leaving Dillingham to seek employment elsewhere would be outside the reasonable effort we require of a father in such cases. We are remanding this case for a trial before a jury. We recognize it is within the function of the jury to make a factual determination as to whether appellant has presented a sufficient excuse for not complying with the order of child support. But we are determining as a matter of law, rather than leaving the question to the jury, that in the circumstances of this case, it is not contempt for a father to refuse to leave his village and seek more promising work in the city. On the other hand, we hold there is a jury question as to the existence of a lawful excuse for non-compliance with the child support order while the appellant resides in Dillingham. In Houger v. Houger we spoke of a father's primary and continuing obligation to support his children and of the fact that the inability of a father to engage in his chosen trade may not excuse him from that obligation. We said: But there may be other kinds of work which appellee could engage in despite any disability he may have. He should be required to seek such other work with respect to his obligation to support his children even though such work may not appeal to him, because there is no room for professional or occupational pride where the duty of child support is involved. We adhere to Houger and hold that in a contempt action such as we have here, the father will not be permitted to succeed on the defense of having a legitimate reason or excuse for not complying with an order of child support where he has not made a reasonable effort to employ his earning capacity in directions other than the one he has chosen as his chief means of livelihood. In this situation a jury question is involved. Considering the evidence of appellant's life-long vocation of being a fisherman, his indebtedness to the local cannery, the existence of other type of employment in Dillingham, and his attempts to seek other such employment, we find there can be a difference of opinion among reasonable men as to whether appellant did establish by preponderance of the evidence a legitimate and reasonable excuse for failure to comply with the order of child support. Change of Venue Appellant's final point on appeal is that the superior court erred in refusing to grant a motion for a change of venue from Anchorage to Dillingham. We need not reach the merits of this argument. Even assuming, arguendo, that error was committed, it could have been no more than harmless error. See Love v. State, 457 P.2d 622, 631 (Alaska 1969). Appellant sought a change of venue to Dillingham for purposes of calling witnesses who could testify to "the employment potential, the fishing season, and the conduct and good faith of the defendant." Appellant's defense to the contempt charge was that he had no money with which to make support payments, that he had worked hard to earn money, and that conditions in Dillingham were such that he could earn very little money. Appellant sought the change of venue to Dillingham so that he could introduce witnesses to testify to these facts. There was, however, no controversy regarding these facts. The court accepted them fully as to appellant's financial condition, as to his good faith attempts to earn money, and as to the adverse economic conditions in Dillingham. In short, the trial judge appears to have been fully convinced by appellant's testimony on these matters. Further testimony would have been at best cumulative.. In these circumstances an incorrect ruling that such testi mony is inadmissible will be found to be harmless error under Alaska Civil Rule 61. See Palfy v. Hepp, 448 P.2d 310, 311 (Alaska 1968) ; Mallonee v. Finch, 413 P.2d 159, 164 (Alaska 1966). The court's denial of change of venue, which appellant claims had the effect of keeping out certain testimony, is exactly analogous here to a ruling on admissibility of testimony at trial. It should be treated in the same way. Thus, even if error was committed, it must be viewed as harmless. We note under this issue, however, the recent enactment of SLA 1971, Chapter 126 (effective September 2, 1971), which relaxes Alaska's venue statutes and is bottomed on an "intent . to make the administration of justice more accessible to people of the rural areas of the state." Id., section 3. It can be expected that courts hearing nonsupport contempt cases in the future may choose in some cases to make use of the discretionary authority vested in them by the new law and will grant changes of venue, and thereby obviate claims of error such as the present one. Use of Bench Warrant The present action was initiated by the court trustee who, after notifying Johansen of his noncompliance, obtained simultaneously a show cause order and a bench warrant for appellant's arrest. While such methods may have been appropriate at the time the court trustee acted, we note that recent amendments to the Criminal Rules would preclude the use of bench warrant and arrest as a means of bringing child support contempt defendants into court, absent a showing that they have refused to appear and answer. Civil Rule 90(b), which deals with indirect contempts, provides that upon a proper showing by ex parte motion supported by affidavits, "the court shall either order the accused party to show cause at some reasonable time . . . why he should not be punished for the alleged contempt, or shall issue a bench warrant for the arrest of such party." (emphasis added.) In determining which of these approaches should be used, Criminal Rule 4 is helpful. Subdivision (1) of Criminal Rule 4(a) now provides in part: (a) . a warrant for the arrest of the defendant shall issue . if the person taking the complaint has reason to believe that the defendant will not appear in response to a summons. And Rule 4(a) (2) specifies that (a) summons instead of a warrant should issue if the person taking the complaint has reason to believe that the defendant will appear in response thereto This specific criminal rule controls the court's authority under Civil Rule 90(b) to use either a show cause order or a bench warrant, and, moreover, makes it clear that Civil Rule 90(b) authorizes the use of a bench warrant for contempt only if there is a reason to believe that the defendant will not appear in response to the show cause order. The judgment of contempt is reversed and the case is remanded to the superior court for further proceedings not inconsistent with this opinion. . Even the location of the contempt laws in the- state statutes permits ambiguous inferences. The contempt provisions are founcl in AS 09.50.010-09.50.060, part of the Code of Civil Procedure, but these sections are specifically made applicable to "criminal actions" by AS 12.80.010, part of the Code of Criminal Procedure. . Although AS 11.35.010 does not specifically concern the duty to support minor children after divorce, we find that AS 11.35.010 includes a person's post-divorce obligation to support as well as the obligation which exists during marriage. . 486 P.2d 925 (Alaska 1971). . Id. at 933, quoting R. Goldfarb, The Contempt Power 11-12 (1963). . 486 P.2d at 938. . R. Goldfarb, The Contempt Power 49 (1963) ; Wright, Byrne, Haakh, West-brook and Wheat, Civil and Criminal Contempt in the Federal Courts, 17 F.R.D. 167 (1955). . Beale, Contempt of Court, Criminal and Civil, 21 Harv.L.Rev. 161, 169 (1908), indicates that civil contempt was utilized as early as the time of Richard III. See also Comment, The Coercive Function of Civil Contempt, 33 U.Chi.L .Rev. 120, 120-21 & n. 3 (1965). . Comment, Civil and Criminal Contempt in the Federal Courts, 57 Yale L.J. 83, 90 & n. 49 (1947). . In attempting to enforce his decrees, the chancellor could commit a recalcitrant party "to prison till he obey." 27 Henry VIII 15. "This imprisonment was by no means a punishment, but was merely to secure obedience to the writ of the king." Beale, note 7 supra, at 170. This is now referred to as the "classic example" of civil contempt: imprisonment for purposes of coercion, not punishment. See Comment, note 7 supra, at 120-22. . Goldfarb, note 6 supra, at 49. See 7 Halsbury⅛ Laws of England (Contempt of Court) (2d ed.). . Beale, note 7, supra, at 168-69. The federal courts in this country were somewhat slower to accept it than the state courts. Comment, note 8 supra, at n. 49. . Beale, note 7 supra, at 168-69. . 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911). . Id. at 441, 31 S.Ct. at 498, 55 L.Ed. at 806. . Moscovitz, Contempt of Injunctions, Civil and Criminal, 43 Colum.L.Rev. 780, 786 (1943), citing cases from 31 jurisdictions. . 221 U.S. at 441 and 443, 31 S.Ct. at 498, 55 L.Ed. at 806. An earlier commentator saw the blurred line between civil and criminal incarceration perhaps more clearly: I venture to say that every 'civil' contempt whose contumacy is carried to the point at which the contemnor may be committed is a 'criminal' contempt as well. . Nelles, The Summary Power to Punish for Contempt, 31 Colum.L.Rev. 956, 961 (1931). . See Gompers v. Buck's Stove & Range Co., 221 Ü.S. 418, 443, 31 S.Ct. 492, 55 L.Ed. 797, 806 (1911) ; Comment, note 7 supra, at 124. . Cf. Comment, note 7 supra, at 124. . [T]he possibility that coercive relief may become actual punishment is necessarily present in every civil contempt proceeding. Comment, note 8 supra, at 105. See also Goldfarb, note 6 supra, at 61. . In re Nevitt, 117 E. 448, 461 (8th Cir. 1902). For a scathing criticism of this "rationalization [which] has since become a staple in the rhetoric of contempt," see Goldfarb, note 6 stipra, at 58-61. . See text accompanying notes 25-26 infra. . There are two disadvantages to the eharacter-of-the punishment test which affect primarily the trial courts and to which we call attention here. The first is that punishment is not determined until the end of the proceeding, whereas the need for classification exists from the beginning. Trial courts may overcome this in most instances by announcing at the outset the goal of the contempt action, specifying whether the action is designed primarily to vindicate the court's authority or to coerce compliance with one of its orders for the benefit of a third party. The second is that the alleged contemnor, at the time of his wrongful act, has no way of knowing whether lie has committed a civil or criminal contempt or what his sanction will be. Goldfarb, note 7 supra, at 66. We deem this disadvantage outweighed by the benefits of an otherwise workable nlassificatory scheme and mitigated, for purposes of due process notice requirements, by the trial court's announcement, at the beginning of the proceedings, of the purpose of any punishment imposed. .See Uphaus v. Wyman, 364 U.S. 388, 397-400, 81 S.Ct. 153, 5 B.Ed.2d 148, 154-156 (1960) (Black, J., dissenting) ; Goldfarb, note 6 supra, at 61. The duration of civil incarceration (e. g., to compel testimony "on occasion has lasted much longer than punishment in more grievious criminal contempt cases." Id. Justice Black, in Uphaus, supra, cites one example, "of many" where a civil contempt defendant in England died in prison after a period of years, having been jailed for refusing to testify. AS 09.50.050 is potentially open-ended. It provides: When the contempt consists of the omission or refusal to perform an act which is yet in the power of the defendant to perform, he may be imprisoned until he has performed it. (emphasis added.) . In re Nevitt, 117 F. 448, 461 (8th Cir. 1902). See also Uphaus v. Wyman, 364 U.S. 388, 403-404, SI S.Ct. 153, 5 L.Ed.2d 148, 157 (1960) (Douglas, J., dissenting on other grounds). . Comment, note 7 supra, at 125 (footnote omitted) (emphasis added). See also Comment, note 8 supra, at 105: Unless his refusal to obey an order of the court is based upon sheer stubbornness in which event the metaphor is probably appropriate, he may not actually possess the 'keys to his prison.' . Comment, note 7 supra, at 125. . Of course, the prosecuting authority can always seek conviction for violation of AS 11.35.010, or initiate proceedings for criminal contempt under AS 09.-50.010(5) for past wilful flouting of tire court's authority, but either of these occurrences would initiate a criminal proceeding in which defendant would have to be afforded full criminal procedural safeguards. This distinction should be made clear at the outset of the contempt nonsupport proceedings. . That is, defendant must prove his inability to comply with the court order. Put in procedural terms, inability to comply is an affirmative defense. . E. g., Houger v. Houger, 449 P.2d 766, 770 (Alaska 1069). . E. g., Bailey v. Bailey, 77 S.D. 546, 95 N.W.2d 533 (1959); Roper v. Roper, 242 Ky. 658, 47 S.W.2d 517 (1932). 2 W. Nelson, Divorce and Annulment § 16.25a, at 440-41 (2d ed. 1961 rev.). . It is no answer that the prior adjudication was then or is now incorrect. Defendant has already had one day in court on this issue; that he did not contest the divorce or the amount of support requested cannot bo charged against 1ns children. Further, he can always seek modification of the support order. AS 09.55.220. . Although the United States Supreme Court has held that the "comparative convenience" test is insufficient by itself to justify shifting the burden of proof in criminal cases, Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943), leaving inability to comply as an affirmative defense is justified by our finding that child support contempt is not wholly a criminal proceeding and by tbe strong policy reasons discussed above in the text. . This is not unlike the -situation in a criminal case where we have held that conduct cannot be criminal unless it is shown that the one charged with criminal conduct had criminal intent, that is, an awareness or consciousness of some wrongdoing. Speidel v. State, 460 P.2d 77, 78, 80 (Alaska 1969). . 486 P.2d 891, 900 (Alaska 1971). . 449 P.2d 766, 770 (Alaska 1969). . Id. . See Hopp v. Hopp, 279 Minn. 170, 156 N.W.2d 212, 217-218 (1968) ; 2 W. Nelson, Divorce and Annulment § 16.25, at 436-87 (2d ed. 1961 rev.). . Taylor v. Interior Enterprises, 471 P.2d 405, 407 (Alaska 1970). . The motion was made pursuant to AS 22.10.040, which provides: Change of venue. The superior court in which the action is pending may eliange the place of trial in an action from one place to another place in the same judicial district or to a designated place in another judicial district for any of the following reasons : (2) when the convenience of witnesses and the ends of justice would be promoted by the change; . SLA 1971, ch. 126, § 1 provides in relevant part: [A] trial and any precedent or antecedent hearings in an action shall be conducted in an election district within the judicial district at a location which would best serve the convenience of the parties and witnesses. . The criminal rules are applicable here for a number of reasons. A criminal sanction, incarceration, is a possible outcome of these proceedings. A criminal procedural device, arrest, is being used. See generally discussion at 766-767 supra.

10556852

Arthur AUSTIN, Appellant, v. FULTON INSURANCE COMPANY, a foreign corporation, and Robert Pfeifer, d/b/a Robert Pfeifer Insurance, Appellees. FULTON INSURANCE COMPANY, a foreign corporation, Cross-Appellant, v. Arthur AUSTIN, and Robert Pfeifer, d/b/a Robert Pfeifer Insurance, Cross-Appellees

Austin v. Fulton Insurance Co.

1972-06-26

Nos. 1250, 1207

702

705

498 P.2d 702

498

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:36.285560+00:00

CAP

Before BONEY, C. J., and RABINOW-ITZ, CONNOR and BOOCHEVER, JJ.

Arthur AUSTIN, Appellant, v. FULTON INSURANCE COMPANY, a foreign corporation, and Robert Pfeifer, d/b/a Robert Pfeifer Insurance, Appellees. FULTON INSURANCE COMPANY, a foreign corporation, Cross-Appellant, v. Arthur AUSTIN, and Robert Pfeifer, d/b/a Robert Pfeifer Insurance, Cross-Appellees.

Arthur AUSTIN, Appellant, v. FULTON INSURANCE COMPANY, a foreign corporation, and Robert Pfeifer, d/b/a Robert Pfeifer Insurance, Appellees. FULTON INSURANCE COMPANY, a foreign corporation, Cross-Appellant, v. Arthur AUSTIN, and Robert Pfeifer, d/b/a Robert Pfeifer Insurance, Cross-Appellees. Nos. 1250, 1207. Supreme Court of Alaska. June 26, 1972. Edgar Paul Boyko, of Boyko & Walton, Anchorage, for Arthur Austin. Kenneth P. Jacobus, of Hughes, Thorsness, Lowe, Gantz & Clark, Anchorage, for Fulton Insurance Co. Eugene F. Wiles and Raymond E. Plum-mer, Jr., of Delaney, Wiles, Moore, Hayes & Reitman, Inc., Anchorage, for Robert Pfeifer. Before BONEY, C. J., and RABINOW-ITZ, CONNOR and BOOCHEVER, JJ.

1702

10175

OPINION BOOCHEVER, Justice. This is one of many cases spawned by the 1964 Alaskan earthquake. Eight years after that catastrophic event, this case still winds along its tortuous course with the merits of the conflict unresolved. The basic facts giving rise to the present dispute are set forth in our opinion in Austin v. Fulton Insurance Company, 444 P.2d 536 (Alaska 1968). Insofar as material to the present appeals, the facts may be summarized as follows. Austin claims that Pfeifer, the agent for Fulton Insurance Company (Fulton), had negligently failed to obtain insurance covering his property against earthquake loss and that Fulton had negligently failed to issue such a policy. Austin further contends that both defendants had expressly warranted that the policy provide complete coverage against all risk of loss. The defendants secured a summary judgment based on the internal provisions of the policy requiring suit to be filed within 12 months from inception of the loss. Insofar as claims were based on the alleged negligence and misrepresentations of the defendants, we held that the internal policy provisions did not bar suit and that the action had been commenced within the applicable two-year limitation period for bringing a tort action. In addition to the policy provision defense, the agent Pfeifer contended that he was a disclosed agent of Fulton acting within the scope of his authority and thus could not personally be liable to Austin. The summary judgment was construed as being based on this point of law as well as on the internal policy provisions. On the original appeal Austin set forth in his statement of points on appeal that the ruling in Pfeifer's favor based on the nonlia-bility of a disclosed agent was in error. Austin, however, did not brief this point on appeal and accordingly it was not decided by us, resulting in a dismissal of Austin's appeal as to Pfeiffer. This left in effect the summary judgment in Pfeifer's favor. Upon remand Fulton again moved for a summary judgment. It contended that the claims against it were based on Pfeifer's conduct and accordingly derivative in nature. Since its agent, Pfeifer, had been held not to be liable in tort to Austin, Fulton alleges that no liability could be imposed upon it, the principal. In the alternative, Fulton moved to bring Pfeifer back into the suit as a third party defendant to indemnify Fulton in the event that Austin should succeed in his claims of negligence or misrepresentation. On September 9, 1969, the trial court issued a memorandum decision granting the summary judgment in favor of Fulton against Austin, and denying Fulton's motion to bring in Pfeifer as a third party defendant. Austin has again appealed from the summary judgment and in the event that the claim should be remanded for further proceedings, Fulton has cross-appealed from the denial of its motion to bring in Pfeifer as a third party defendant. Although the procedural history of this litigation is complicated, the principal issue to be resolved on this appeal is a relatively simple one. At no time has there been a ruling on the merits of Austin's contention that Pfeifer had negligently failed to obtain insurance coverage or had misrepresented to Austin that the policy provided complete coverage against all risk of loss. Pfeifer secured dismissal of his claim on the theory that if a disclosed agent was acting within the scope of his authority he could not be personally liable to Austin. As indicated above, this implied holding of the trial court was not disputed by Austin on appeal and thus as between Austin and Pfeifer became the law of this case. The summary judgment was in favor of Pfeifer and against Austin. Fulton at that time was not involved in this issue between Pfeifer and Austin, and thus had no standing to appeal from the original summary judgment. Fulton is therefore not bound by that holding. Accordingly, we must now for the first time in this case determine whether a disclosed agent, acting within the scope of his authority, may be held liable to a third party. The law is well established that in the event of negligence by a disclosed agent acting within the scope of his authority the agent may be held personally liable to a third party. Austin, however, is barred from proceeding against Pfeifer by the law of this case applicable between them, even though we hold such rule of law to be erroneous. Nevertheless, Austin may proceed against Fulton on the basis of the alleged negligence or misrepresentation of its agent. The holding in the prior appeal absolving Pfeifer of direct liability to Austin did not reach the issue of whether Pfeifer was negligent or had made misrep- reservations. If Pfeifer was negligent or made misrepresentations while acting within the scope of his apparent authority Fulton may be held liable to Austin, as it is hornbook law that a principal may be held liable for such acts of an agent. Under these circumstances a principal may obtain indemnification from an agent when the principal is adjudged liable for the negligence or misrepresentation of the agent. The Restatement of the Law, Agency (Second), sets forth the applicable rule at Section 399 as follows: A principal whose agent has violated his duties has an appropriate remedy for such violation. Such remedy may be: (h) causing the agent to be made party to an action brought by a third party against the principal. . And Section 401 specifies that: [a]n agent is subject to liability for loss caused to the principal by any breach of duty. A comment on this section expressly refers to situations where the agent acts negligently so as to cause the principal to be liable to a third person. Pfeifer cites cases wherein the agent has acted on express authority from the principal and does not exceed that authority. In that situation the agent has been held not to be liable to the principal. In the subject case, however, Fulton denies that Pfeifer was authorized to act in the manner alleged, i. e., negligently or by making misrepresentations. This may present a factual issue which will have to be resolved by a trial on the merits. But at this posture of the case Fulton has recourse against Pfeifer for any possible vicarious liability imposed on the insurance company as a result of the agent's negligence or misrepresentations. Pfeifer raises two additional points against his being brought in as a third party defendant. He states that the cross-appeal is untimely in that Fulton should have appealed from the summary judgment of August 26, 1967 granted to Pfeifer. But as we have previously indicated, that judgment applied only to Austin and Pfeifer, leaving Fulton no right to appeal from it. The judgment of September 9, 1969 was the first ruling from which Fulton had a right of appeal and the cross-appeal filed herein by Fulton is timely. Pfeifer's further argument to the effect that a third party impleader remedy is available only against a person "not a party to the action" has no merit. Rule 14(a), Alaska Rules of Civil Procedure, provides for a defendant securing "leave as a third-party plaintiff to serve a summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him." [Emphasis added.] The fact that Pfeifer had been a party to the action does not bar utilization of Rule 14(a) as he was not a party to the action at the time that the motion was made. The denial of Fulton's motion to bring in Pfeifer as a third party defendant is overruled and the summary judgment in favor of Fulton against Austin is reversed. ERWIN, J., not participating. . The complaint contained additional claims which are no longer applicable. . The loss occurred in March 1964 and suit was not commenced until February 1966. .Austin v. Fulton Ins. Co., 444 P.2d 536, 538-540 (Alaska 1968). . Id. at 540. . Subsequent to the entry of the summary judgment on September 19, 1969, Austin successfully petitioned for a writ of review to overcome his untimely filing of appeal. On May 7, 1971 this court granted the petition under Supreme Court Rule 7(a) (2). . Gheen v. Construction Equip. Co., 49 Wash.2d 140, 298 P.2d 852, 854 (1956). . The doctrines of res judicata and collateral estoppel are not applicable to a party who has not had the opportunity to litigate a matter. F. .Tames, Civil Procedure § 11.24, at 586 (1965) ; Restatement of Judgments § 82 (1942). . Russel v. American Rock Crusher Co., 181 Kan. 891, 317 P.2d 847, 849-850 (Kan.1957) ; W.Seavey, Law of Agencias 129-130, at 220-224 (1964) ; Restatement (Second) of Agency § 343 (1958) ; 3 Am.Jur.2d, Agency § 300, at 660 (1962). . Although the complaint sets forth direct allegations of negligence and misrepresentation against Fulton as well as derivative ones, it is now undisputed that the claims are based on vicarious liability, only. . E. g., Gleason v. Seaboard Air Line Ry., 278 U.S. 349, 49 S.Ct. 101, 73 L.Ed. 415 (1929) ; Thomas v. Colorado Trust Deed Funds, Inc., 366 F.2d 140 (10th Cir.1966) ; W. Seavey, Law of Agency § 92, at 162 (1964) ; 3 Am..Tur.2d, Agency § 267 (1962). . Restatement of the Law, Agency (Second), § 401, comment d, at 239, 240. .W. C. Humphreys, Inc. v. Zurich Ins. Co., 54 Misc.2d 659, 283 N.Y.S.2d 240 (Sup.Ct.1967) ; Lippert v. Bailey, 241 Cal.Rptr. 376, 50 Cal.Rptr. 478 (1966) ; Gibbs v. Home Ins. Co., 252 App.Div. 805, 298 N.Y.S. 856 (Sup.Ct. 1937).

10560270

HOPKINS CONSTRUCTION CO., Inc., Appellant, v. RELIANCE INSURANCE CO., Inc., and Inlet Company, Inc., Appellees

Hopkins Construction Co. v. Reliance Insurance Co.

1970-09-21

No. 1088

223

228

475 P.2d 223

475

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:11.912033+00:00

CAP

Before DIMOND, RABINOWITZ, and CONNOR, JJ., and MOODY and OCCHI-PINTI, Superior Court Judges.

HOPKINS CONSTRUCTION CO., Inc., Appellant, v. RELIANCE INSURANCE CO., Inc., and Inlet Company, Inc., Appellees.

HOPKINS CONSTRUCTION CO., Inc., Appellant, v. RELIANCE INSURANCE CO., Inc., and Inlet Company, Inc., Appellees. No. 1088. Supreme Court of Alaska. Sept. 21, 1970. David B. Ruskin, Anchorage, for appellant. H. Russel Holland, Anchorage, for ap-pellees. Before DIMOND, RABINOWITZ, and CONNOR, JJ., and MOODY and OCCHI-PINTI, Superior Court Judges.

3365

20340

OPINION CONNOR, Justice. In May, 1964, Hopkins Construction Co., plaintiff-appellant, entered into a contract with Inlet Co., Inc., defendant-appellee, to do the major portion of construction work on the Kodiak Inn, in Kodiak, Alaska. The building was completed March 27, 1965. Reliance Insurance Co. is a surety of Inlet to secure payment for material and labor. Suit was commenced by Hopkins Construction Co. September 15, 1965, to recover from Reliance $89,980.30 claimed to be due under the surety bond. In an amended complaint, defendant Inlet was also named and the amount prayed for was increased to $133,437.22. In its answer to the amend ed complaint Reliance stated as a defense that: "Defendants allege that plaintiff has failed and neglected to perform its subcontract with Inlet Company, Inc. in accordance with the terms thereof, and that by reason of said neglect and failure, there is no obligation on the part of this defendant to pay any sum of money to plaintiff." In its third-party complaint against Frank Irick, owner of Kodiak Inn, filed September 1, 1966, Inlet alleged that certain changes ordered by the owner, Irick, had caused delay whereby Inlet was damaged and that Irick had failed to tender progress payments, which failure caused Inlet in turn to default in tendering its payments to Hopkins, thus precipitating this suit. To this third-party complaint Irick answered that some changes in the original plan had been made by Irick and his architect. Irick counterclaimed against Inlet alleging that Inlet had failed to perform certain of its obligations under the contract with Irick. Among other defaults and deficiencies in performance, Irick alleged that the "corridor floors on both the second and third floors are squeaky." Inlet answered this counterclaim by alleging that the changes and modifications instigated by Irick caused delays which increased the cost of performance; that Frank Irick was to perform the earth work and failed to do it in a timely and workmanlike manner and that portions of the work left unperformed were because of failure by Irick to provide sufficient funds. That portion of the suit involving Inlet and Irick was severed. The proceedings in question here concern only Hopkins, Inlet and Reliance. Trial to the judge without jury commenced November 22, 1966, and on November 30, 1966, was continued until February 27, 1967. In the interim certain interrogatories to defendants were propounded by Hopkins: "Interrogatory No. One: Do the Defendants claim that the construction of the Kodiak Inn so far as applicable to the subcontract between HOPKINS CONSTRUCTION COMPANY and the Defendant, INLET COMPANY, INC. was in any way deficient? "Interrogatory No. Two: If the answer to the above Interrogatory is in the affirmative please state the specific deficiency or deficiencies and the estimated cost to correct or cure said deficiency or deficiencies." To Interrogatory No. One, Inlet answered "Yes." To Interrogatory No. Two, Inlet answered in part: "Defendant alleges deficiencies as follows : (1) Improper nailing and installation of floor plywood. Estimated cost of correction' is $18,000.00, plus or minus, dependent upon the extent of carpet installation and replacement." Judgment was entered on November 12, 1968, under which Hopkins Construction Co. was awarded $39,801.50 less the sum of $15,164.80 as a set-off, plus interest from July 2, 1965. Hopkins was also awarded $21,789.81 for allowable extras, including overhead and profit, plus interest from December 29, 1964. Hopkins Construction Co. has appealed, claiming that the trial court erred in allowing a set-off to Inlet. We agree with Hopkins that the set-off should not have been allowed. The case before us raises two important issues: As between Hopkins and Inlet, who has the burden of establishing the facts upon which the set-off is based; and, resolving this, has that burden been met? BURDEN OF PROOF It is generally agreed that once substantial performance has been shown, a construction contractor is entitled to recover the contract price, less reasonable costs of remedying the defects in work or materials. This rule is designed to avoid forfeitures on the part of a contractor or subcontractor who has substantially, if not perfectly, performed his contractual obligations. The rule prevents unjust enrichment by the one procuring the work, who might otherwise point to slight deficiencies, the causes of which are difficult to prove, to avoid payment of the contract price. Application of this rule is consonant with placing the burden of proof on either party. While there is general agreement as to the soundness of the substantial performance rule, consensus as to which party must sustain the burden of proving the recoupment as well as the amount is not so readily available. We realize that there is ample authority to sustain Inlet's claim that Hopkins must bear the burden. We are convinced, however, that the better of the available rules is that which places upon Inlet the burden of establishing its recoupment. In United States for Use of Acme Maintenance Engineering Co. v. Wunderlich Contracting Co., 228 F.2d 66 (10th Cir.1955), the court, in a factual setting similar to this one, stated the general rule as follows: '¾ js a settled rule that in a subcontractor's action against the contractor, where a substantial performance of the contract is shown, the contractor, in order to avail himself of a set-off, has the burden of proving damages sustained 0n account of defective work done by the subcontractor." (Citations omitted.) 228 F.2d, at 68. The practical performance of building contracts can be fraught with some complexity. It may involve various interrelated duties and performances. The determination of whether recoupment should be allowed in a given case may turn on establishing an underlying performance on the part of a person other than the subcontractor or contractor who is seeking recovery. For example, the squeaky floors in the instant case may or may not have been caused by defects in performance of the work which was supervised by Hopkins. The squeaking may have been caused by faults in the earth-moving work attributable to the owner, Irick. These defects may either have caused the under mining of the foundation, or have necessitated the structural alteration of the building which in turn may have weakened it, or allowed the flooring to become damp, in turn causing warping, shrinkage and attendant squeaking. There are practical considerations which persuade that the burden should rest with Inlet. It was Inlet's responsibility to establish the terms of the project as a whole. Inlet was in a position to inspect and supervise the construction as it progressed. It was within its power to guard against performance which deviated from the plans and specifications. Accordingly, it is not unfair to place on Inlet the burden of proving the cause of particular defects which it claims exist. Other compelling reasons argue strongly that the burden should fall upon Inlet. Ultimately it is the dissatisfied party who knows best what particular phase of the construction is unsatisfactory to it. It is within its discretion to set forth and explain the defects claimed. It is a much heavier burden for the party claiming a right to the contract price not only to demonstrate substantial performance, but to prove negatively that all defects asserted on defense are attributable to other causes than his own workmanship. Such a burden would, in the instant case and in many similar cases, result in a waste of trial time. There might be cases in which the facts and contractual relationships require a different allocation of the burden of proof. But we find no reason in this case for departing from the aforementioned rule. SUFFICIENCY OF THE EVIDENCE In order to recover its claim, Inlet had the burden to show (1) that the floors in Kodiak Inn squeaked, (2) that the squeaking was caused by defects in construction attributable to Hopkins, and (3) the extent of damage thereby caused. The parties are in accord that the floors squeak. They do not agree as to the cause of the squeaking. In order to determine whether Inlet has sustained its burden of proof, it is necessary to assemble certain of the facts concerning the construction of the building. Kodiak Island Improvement Co. was the owner of Kodiak Inn. This company was essentially the alter ego of Frank Irick. Frank Irick was in charge of excavation for the building. Apparently, during the course of excavation, Irick came upon solid rock and was unable to excavate to the level originally called for in the plans. As a result, certain changes were made in the plans. For instance, two rooms in the motel unit were deleted. There was some testimony that a considerable amount of water ran or stood under the building while it was being constructed. This was described by one witness as a "trout stream." There was also testimony that certain of the piers or plinths under the building had to be made longer because of the change in elevation which was caused by the failure in excavation or by changes made in the elevation of the street following the 1964 earthquake. Certain of these piers were made of wood rather than concrete, possibly to compensate for the additional length made necessary by the previously described condition. There is considerable divergence of opinion as to the cause of the squeaking. Bergstrom, project manager and estimator for Inlet at the time of construction, was of the opinion that the squeaking was most likely caused by use of the wrong type of nail in the flooring. He was uncertain as to whether use of wet plywood would produce a similar result. However, at another point, Bergstrom, commenting on one of several deficiencies in construction, refers to the squeaking floors as follows: " 'Plyboard floor squeaks throughout.' This is a failure of Frank Irick to take care of the moisture in there, because that had water setting under the floor. It was two feet deep, continually, all the time, causing a vapor to rise and continually keeping it wet." Mr. James Ingram, project manager for Inlet, testified that "lack of proper nailing" is usually the cause of squeaking in sub-flooring; that it would require removing some carpet to discover whether this was the cause in the instant case, and admitted that he had not done this. Furthermore, Ingram was not aware of the actual composition of the sub-flooring on the Kodiak Inn project. He did not know how thick the plywood was and did not know how widely spanned the joists were. Mr. Charles Kuenster, a surveyor called to testify by Inlet, testified that the squeaking could be from any of "a half a dozen" sources. He suggested that defective or improper materials and designs, subsequent earthquakes, settling and shrinkage of wood and foundation work— including the wooden piers — and water running under the foundation, as possible sources of the problem. He also testified that there was some evidence that some nailing had been omitted in the flooring, paneling and carpeting, but indicated that he had only checked a six-inch portion of the flooring in the corner of the lobby and would not conclude from this that nailing of the flooring had been improperly done throughout. Rod Cherrier, general contractor and an officer of Inlet, testified that the squeaking could be caused by "improper nailing" of the sub-flooring or by the footings under the wooden piers. Wayne Cherrier, of Inlet, testified that the squeaking was caused by lack of nailing. He indicated, however, that he had never seen the sub-flooring, and that his investigation was made without removing the carpeting. Joseph Cooksey, a floor covering contractor called by plaintiff, testified that it was his opinion that the floor had not been properly nailed either because the wrong type of nail was used or because it was not driven correctly and that this caused the squeaking. But he indicated that it was possible for other deficiencies in material or construction to cause squeaking, and that it was not his usual business to be acquainted with problems of renail-ing flooring. Cooksey did not check the bare floor in those rooms which had no carpeting and so far as the record discloses also never inspected under the carpeting to see how the nailing had actually been done. He had only been sent to Kodiak Inn to inspect the condition of the carpeting — not the condition of the sub-flooring. According to Wayne Cher-rier, no person has ever torn up' a substantial amount of carpet to inspect the condition of the sub-flooring. The findings of fact below will be reviewed only for a determination as to whether they are clearly erroneous. The trial court's finding of fact is clearly erroneous within the meaning of Civil Rule 52(a) when the reviewing court is con vinced that the trial court was plainly mistaken. Inlet has failed in several ways to establish its claim against Hopkins. The materials for the project, including nails and plywood for the floor, were supplied by Inlet. The type of nail with which to nail the flooring was specified in the plans. There was no evidence that these nails were not used. There was some testimony to the effect that other types of nails would have been more effective to prevent squeaks, but those types of nails were not called for in the specifications and Hopkins was under no duty to use them. There was some testimony that driving the nails in at a slant might have prevented the squeaking, even considering the type of nail used. However, no witness was able to testify that the nails were not driven at a slant. No witness bothered to notice the manner in which the nails were driven. Assuming that the nails were not driven in this manner, there is insufficient testimony to establish that failure to drive the nails at a slant constituted an unworkman-like way of doing the job. We are not saying that there is no custom or usage among carpenters to slant-drive 10-penny nails when doing flooring work, to prevent squeaks. We are merely indicating that if any such industry standard exists, Inlet failed to establish it. There is a lack of evidence to show that the squeaking was caused by defects in portions of the construction which were under the supervision of Hopkins. Without inspecting the floor, the witnesses were only assuming that the squeaking was a result of the carpentry itself. On the other hand, there was evidence to show that the original excavation by Irick had been done improperly; that water stood or ran under the building during and after construction; that the major structural changes took place as a result thereof; that as a result longer piers were used and certain portions of the building were deleted entirely; that water and mud undermined these piers; and that the plywood used for the sub-flooring was subjected to the dampening influence of the "trout stream" under the building. We are convinced that the trial court's findings of fact were clearly erroneous in attributing the cause of the squeaking to the flooring rather than to other causes which were almost uniformly brought to the court's attention by the various witnesses as possible causes of the squeaking. We are not saying that the squeaking was not caused by the flooring rather than by the foundation, or changes in structure, or the "trout stream" caused by Irick's earthmoving work. We are holding that the evidence was insufficient to show that the squeaking was caused by a portion of work attributable to Hopkins rather than some defect caused by acts of Irick as had been alleged by Inlet in its answer to Irick's counterclaim. In view of the foregoing the damages issue is not reached. The judgment is reversed. We remand for the entry of a judgment reflecting an award to Hopkins which is increased by the amount of the recoupment. . 5 S. Williston, Contracts § 805 at 838 et seq. (3d ed. 1961) ; 3A A. Corbin, Contracts § 700-711 (1960). Although the parties and the trial court have referred to Inlet's claim against Hopkins on account of squeaky floors as a "set off," it could more properly be termed a "recoupment." This result follows from the fact that the claim arises out of the same contract as the claim of Hopkins giving rise to this suit, rather than out of some independent dealings with Hopkins. See Restatement of Judgments, ch. 3, Title C, Counterclaim, Recoupment and Set-off, Introductory Note at 217-18 (1942) ; Gordon v. Great Lakes Bowling Corp., 18 Mich.App. 358, 171 N.W.2d 225 (Mich.App.1969). . 5 S. Williston, Contracts § 805 (3d ed. 1961). . Todd Shipyards Corp. v. Jasper Elec. Service Co., 414 F.2d 8 (5th Cir.1969) ; Graham Const. Co. v. Robert H. Pyle, Inc., 422 S.W.2d 485, 487 (Tex.Civ.App. 1967) ; Pacific Coast Engineering Co. v. Trinity Const. Co., 410 S.W.2d 797, 800 (Tex.Civ.App.1967) ; Spence v. Ham, 163 N.Y. 220, 57 N.E. 412 (1900) ; cf. Fair v. Uhr, 310 S.W.2d 125 (Tex.Civ.App.1958). .3A A. Corbin, Contracts § 710 at 340-41 (1960) ; Nathan Const. Co. v. Fenestra, Inc., 409 F.2d 134 (8th Cir. 1969) ; United States for Use of Maintenance Engineering Co. v. Wunderlich Contracting Co., 228 F.2d 66 (10th Cir. 1955) ; United States for the Use and Benefit of Browne & Bryan Lumber Co., v. Massachusetts Bonding and Ins. Co., 195 F.Supp. 26 (E.D.N.Y.1961) ; Burger v. Wood, 446 S.W.2d 436 (Mo.Ct.App.1969) ; Maloney v. Oak Builders, Inc., 224 So. 2d 161 (La.Ct.App.1969) ; A. A. Home Improvement Co. v. Irwin, 203 So.2d 888 (La.Ct.App.1967) ; Silos v. Prindle, 127 Vt. 91, 237 A.2d 694 (1967) ; Vermont Structural Steel Corp. v. Brickman, 126 Vt. 520, 236 A.2d 658 (1967) ; De Blasio v. Town of Kittitas, 57 Wash.2d 208, 356 P.2d 606 (1960) ; Charles A. Burton, Inc. v. Durkee, 162 Ohio St. 433, 123 N. E.2d 432 (1954). . It is insufficient to merely show that the floors squeak. In Burger v. Wood, 446 S.W.2d 436 (Mo.Ct.App.1969), concerning cracks in a driveway, it was held: " a mere showing of the existence of fractured areas did not suffice, in and of itself, to establish the affirmative defense of recoupment [citation omitted] ; and that, absent any indication that by reason of education or specialized experience either defendant possessed special skill or knowledge with respect to the matter involved so superior as to make his opinion a fact of probative value [citations omitted], neither defendant was qualified to offer opinion evidence as to what had caused the fractured areas." [Citations omitted.] 446 S.W. 2d, at 441. . Civ.E. of Proe. 52(a) recites in part: "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." See Ayers v. Day & Night Fuel Co., 451 P.2d 579 (Alaska 1969) ; Associated Engineers & Contractors, Inc. v. H & W Const. Co., 438 P.2d 224 (Alaska 1968). . Alaska Placer Co. v. Lee, 445 P.2d 218 (Alaska 1969) ; Paskvan v. Mesich, 455 P.2d 229 (Alaska 1969) ; Perkins v. Willacy, 431 P.2d 141 (Alaska 1967). . As was said in United States v. Spearin, 248 U.S. 132, 136, 39 S.Ct. 59, 61, 63 L. Ed. 166, 169 (1918) : " [I]f the contractor is bound to build according to plans and specifications prepared by the owner, the contractor will not be responsible for the consequences of defects in the plans and specifications." See Home Furniture, Inc. v. Brunzell Const. Co., 84 Nev. 309, 440 P.2d 398 (1968) ; Gates v. Pickett & Nelson Const. Co., 91 Idaho 836, 432 P.2d 780 (Idaho 1967) ; cf. Helm v. Speith, 298 Ky. 225, 182 S.W.2d 635, 637 (1944), where the contract in question indicated how certain damp proofing was to be done unless it was to be done "in some other manner" to accomplish the intended result. . Cf. Soderhamn Mach. Mfg. Co. v. Martin Bros. Con. & T. Pr. Corp., 415 F.2d 1058 (9th Cir. 1969) ; Stanley v. Onetta Boat Works, Inc., 303 F.Supp. 99 (D.Ore.1969).

10558678

Noe Q. FLORES, Appellant, v. STATE of Alaska, Appellee

Flores v. State

1970-10-05

No. 1199

37

39

475 P.2d 37

475

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:11.912033+00:00

CAP

Before BONEY, C. J., and DIMOND, RABINOWITZ, and CONNOR, JJ.

Noe Q. FLORES, Appellant, v. STATE of Alaska, Appellee.

Noe Q. FLORES, Appellant, v. STATE of Alaska, Appellee. No. 1199. Supreme Court of Alaska. Oct. 5, 1970. Victor Carlson, Public Defender, Michael L. Rubinstein, Asst. Public Defender, Anchorage, R. Collin Middleton, Asst. Public Defender, Ketchikan, for appellant. G. Kent Edwards, Atty. Gen., Juneau, Harold W. Tobey, Dist. Atty., Anchorage, Robert L. Eastaugh, Asst. Dist. Atty., Anchorage, for appellee. Before BONEY, C. J., and DIMOND, RABINOWITZ, and CONNOR, JJ.

1349

8005

OPINION CONNOR, Justice. Appellant was convicted in 1967 of first degree murder and manslaughter. Those convictions were affirmed by this court in Flores v. State, 443 P.2d 73 (Alaska 1968). Appellant, while incarcerated at Leavenworth, Kansas, brought a motion for post-conviction relief under the provisions of the then Criminal Rule 35(b) in which he alleged (1) that his trial defense counsel had inadequately represented him, (2) that there was improper tampering with the petit jury which heard his case, and (3) that he was deprived of his constitutional right to a public trial. The motion was filed with this court but we remanded it to the superior court for a hearing in accordance with Thompson v. State, 412 P.2d 628 (Alaska 1966). Various hearings were held on this motion, after which it was-denied. This appeal is now brought from the denial of the motion. At one of the hearings on the motion, appellant's trial counsel was called as a witness on the question of adequacy of his representation of appellant but, in the absence of express consent from appellant, trial counsel quite properly refused to testify. After being given an opportunity, by communications from both the trial court and his post-conviction relief counsel, Mil ton J. Souter, to voluntarily waive the attorney-client privilege, appellant refused to do so, stating that he wanted to proceed solely on the question of whether he had been denied his right to a public trial. Appellant thus forestalled further inquiry into this ground for relief. We regard this as a voluntary abandonment of the claim that he was inadequately represented by his trial counsel. Appellant's post-conviction relief counsel made a diligent investigation of the jury tampering claim, found that the alleged witnesses as to that claim had no information which could substantiate it, so advised appellant and the court, and was permitted by the court to abandon that issue. On the record before us it is clear that the trial court correctly permitted this claim to be dismissed. On the question of public trial, it appears that during its deliberations on Saturday afternoon, April 29, 1967, the trial jury requested that certain trial testimony be played back to it. That same afternoon a newspaper reporter tried to enter the state court and office building at Fairbanks. He found all the doors locked, and he waited approximately an hour before someone came along who let him in. When he arrived at the courtroom, the jury was listening to a replay of certain recorded testimony. The judge, jury, trial counsel, appellant, and at least one spectator were present when he entered the courtroom. From the record it appears that appellant's case was submitted to the jury at about 1:00 p. m. on the day in question. At about 4:42 p. m. the jury asked to listen to a playback of the testimony, and this commenced at 4:45 p. m. and ended at 5:25 p. m. The period during which the newspaper reporter was not able to reach the courtroom was, thus, quite brief and it occurred after the case was submitted to the jury. No purposeful exclusion of the public is claimed. It is not known who, of the various persons possessing keys, locked the doors to the courthouse on this occasion. Nor is it shown how the trial judge could have known the building was locked or prevented it from being locked while he was presiding in court. But these matters, in the context of this case, border on the immaterial. We hold that under the circumstances presented here, appellant was not denied his constitutional right to a public trial. For a similar holding based on a comparable fact situation, see State v. Von Reeden, 104 Ariz. 404, 454 P.2d 149, 150 (1969). Lastly, appellant contends that he should have been present in person at the hearings on his post-conviction relief motion. As to two of his claims he was not a witness to or a participant in the matters alleged. We have found that his claim of inadequate representation by counsel, on which he might possibly have been a witness, was abandoned. We perceive no basis on which his presence at these hearings would have advanced his position or would have assisted his post-conviction relief counsel in litigating the motion on appellant's behalf. As we pointed out in Rivett v. State, 395 P.2d 264, 270 (Alaska 1964): "Criminal Rule 35(b) is not mandatory in its provision regarding the presence of the defendant at a hearing on his motion ." We have examined carefully the record, the briefs, and the authorities cited by appellant. The trial court went to considerable lengths to see that appellant and his post-conviction relief counsel were given both time and procedural latitude to develop evidence and argument in support of the motion. We are satisfied that the motion was determined fairly and without error. Affirmed. . Appellant's application was filed before Crim.R. 35 was changed to its present form. Crim.R. 35(b) at the relevant time read as follows: "(b) Motion Attacking Sentence. A prisoner in custody under sentence of the District Court for the District (Territory) of Alaska or the superior court of the State of Alaska claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States or the Constitution or laws of Alaska, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence or its successor, to vacate, set aside or correct the sentence. "A motion for such relief may be made at any time. "Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the State District Attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate. "A court may entertain and determine such motion without requiring the production of the prisoner at the hearing. "The sentencing court, or its successor, shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner. "An appeal may be taken to the supreme court from the order entered on the motion as from a final judgment on application for a writ of habeas corpus. "An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this subdivision, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or it successor, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention." . It could be held that the replay of testimony was not, for constitutional purposes, part of his "trial," but we need not decide the case on that ground.

10556596

Gabriel SINKA, individually and as Administrator of the Estate of Christine Hamilton Sinka, deceased, and as Administrator of the Estate of Frederick Simon Sinka, deceased, Appellant, v. NORTHERN COMMERCIAL COMPANY, Appellee. Jimmy TUCKER, individually and as Administrator of the Estate of Josephine Tucker, deceased, Appellant, v. NORTHERN COMMERCIAL COMPANY, Appellee

Sinka v. Northern Commercial Co.

1971-11-30

Nos. 1360, 1361

116

120

491 P.2d 116

491

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:13.332373+00:00

CAP

Before BONEY, C. J., and DIMOND, RABINO WITZ, and CONNOR, JJ.

Gabriel SINKA, individually and as Administrator of the Estate of Christine Hamilton Sinka, deceased, and as Administrator of the Estate of Frederick Simon Sinka, deceased, Appellant, v. NORTHERN COMMERCIAL COMPANY, Appellee. Jimmy TUCKER, individually and as Administrator of the Estate of Josephine Tucker, deceased, Appellant, v. NORTHERN COMMERCIAL COMPANY, Appellee.

Gabriel SINKA, individually and as Administrator of the Estate of Christine Hamilton Sinka, deceased, and as Administrator of the Estate of Frederick Simon Sinka, deceased, Appellant, v. NORTHERN COMMERCIAL COMPANY, Appellee. Jimmy TUCKER, individually and as Administrator of the Estate of Josephine Tucker, deceased, Appellant, v. NORTHERN COMMERCIAL COMPANY, Appellee. Nos. 1360, 1361. Supreme Court of Alaska. Nov. 30, 1971. William G. Azar, Savage, Curran & Hodges, Anchorage, for appellants. Jerry E. Melcher and James M. Powell, Hughes, Thorsness, Lowe, Gantz & Clark, Anchorage, for appellee. Before BONEY, C. J., and DIMOND, RABINO WITZ, and CONNOR, JJ.

2023

12512

OPINION CONNOR, Justice. These are actions to recover damages for personal injuries resulting from an alleged breach of warranty in the sale of goods. The sole question before us is whether the two-year statute of limitations for personal injury actions applies. If so, the plaintiffs are barred, as these actions were brought more than two years after the sale. Plaintiffs assert a right to bring suit under the four-year period of limitation contained in the Uniform Commercial Code. In one complaint it is alleged that Josephine Tucker, of Emmonak, Alaska, purchased what she believed to be pearl kerosene from Northern Commercial Company on October 28, 1967. On that same date, upon lighting a burner lamp in which she had placed the fuel, there was an explosion and fire which inflicted burns on Josephine Tucker and her husband Jimmy Tucker, and destroyed their dwelling. Josephine died as a result of those burns on December 8, 1967. Similar events are stated in a complaint filed by Gabriel Sinka. It is alleged that pearl kerosene purchased from Northern Commercial Company in March 1967 exploded on April 4, 1967, causing the deaths of Christine and Frederick Sinka and injury to Gabriel Sinka. Complaints were filed in both cases on November 14, 1969, charging Northern Commercial Company with a breach of the express and implied warranties which attached to the sale of the pearl kerosene, namely: the fuel was "pearl kerosene"; the pearl kerosene was of merchantable quality; and the pearl kerosene was fit for the particular purpose for which purchased. Both complaints, however, were filed more than two years after the date of the explosions. On the basis of this fact, appellee moved for summary judgment. It was argued that despite the phrasing of warranty, these actions were essentially based on negligence and that they were barred by the two-year statute of limitations generally governing tort actions. The superior court granted the motion for summary judgment and appellants bring the question here for review. As the facts are similar and identical questions of law are presented, the appeals are considered together. Appellants contend that their causes of action are squarely based on the provisions of the Uniform Commercial Code, which provides a four-year period in which to bring suit. They urge that the four-year period be applied to a breach of warranty although personal injury resulted from the breach. Resolution of these conflicting claims is dependent primarily on a proper characterization of the pleaded facts. The pleadings in these cases demonstrate a transfer of title in the pearl kerosene from Northern Commercial Company to appellants, for a price. Stated in other terms, the transaction was a typical sale of goods by a merchant. This being true, the sale necessarily was subject to the Uniform Commercial Code. Normally such a transaction will give rise to express and implied warranties concerning the goods sold. It is alleged by appellants that these warranties came into effect and that they were breached. Accepting this state of facts, our inquiry turns to the remedies and damages provided by the code for a breach of warranty. AS 4S.0S.220 provides that a buyer who has accepted goods may recover damages for loss resulting from nonconformity of the goods. The measure of damages for breach of warranty is the difference in value of the goods, plus, in a proper case, incidental and consequential damages. AS 45.05.222 defines consequential damages resulting from the seller's breach as including "injury to person or property proximately resulting from a breach of warranty." It is plain that the sale of pearl kerosene was a sale of goods within the contemplation of the Uniform Commercial Code, that in the normal course of events express and implied warranties would attach, that it is alleged that these warranties did attach and were breached, and that the code provides for recovery of damages proximately resulting from a breach, including damages for injury to the person. Thus the code provides a comprehensive scheme for recovery of damages for injuries to the person resulting from a breach of a warranty. A period of four years is provided in which to bring suit for such damages. We hold that where an action is correctly brought within the framework of the Uniform Commercial Code, the applicable statute of limitations is that provided by the code, although the damages sought are for personal injuries. Our decision is buttressed by cases from other courts holding the four-year period of limitations applicable, and by the re-pealer section provided by the Alaska Legislature in enacting the Uniform Commercial Code. SLA 1962, chapter 114, section 10.103 provides in part that " all acts and parts of acts inconsistent with this Act are hereby repealed." Thus the general two-year statute of limitations was repealed to the extent that it might otherwise control recovery for personal injuries resulting from breach of warranty under the code. Appellee further contends that the survival actions brought on behalf of Josephine Tucker and Frederick and Christine Sinka are barred by AS 09.10.1S0, which provides in part: "If a person entitled to bring an action dies before the expiration of the time limited for its commencement and the cause of action survives, an action may be commenced by his personal representatives after the expiration of that time and within one year from his death." Appellee claims that the purpose of this statute is to require that all survival actions be brought within one year after the death. We find that interpretation of AS 09.10.150 untenable. If the decedents had lived, they would have had four years to pursue their claims under AS 45.05.442. In our view, the sur-vivorship statute, AS 09.10.150, was not intended to shorten the specific statutory provisions governing a cause of action but to extend the statutory period where it otherwise would have expired within a year after the death. The executor or administrator has the full statutory period which the decedent if living would have had, but if the decedent dies in the last year of the statutory period the survivorship statute gives his representative an additional year from the death to bring the claim. The representatives of the deceased, Josephine Tucker and Christine and Frederick Sinka, brought their claims well within the four-year statute of limitations governing this action. Appellee argues that the cases of Silverton v. Marler, 389 P.2d 3 (Alaska 1964), and Austin v. Fulton Ins. Co., 444 P.2d 536 (Alaska 1968), treated breach of warranty claims as being in reality actions in tort and that the principles expounded there should control. In Silverton a guest at a lodge sued to recover for injuries caused by alleged defect in the premises. We held that the action was one for negligence, not for a breach of an implied contractual duty to keep the premises in safe condition. In Austin v. Fulton Ins. Co. we held that an alleged negligent failure to procure insurance sounded in tort for negligence, and that it was not a contractual breach of warranty. In each of these cases the two-year statute of limitations was applied. Neither of them concerned a cause of action arising out of a sale of goods under the Uniform Commercial Code, as does the case before us. But in any event a particular statutory provision relating to the subject matter in litigation should control over a general statutory provision which might otherwise apply. The four-year statute of limitations is, therefore, the correct measure of time for bringing suit. The superior court was in error in granting summary judgment on the basis that the actions were barred by the two-year statute of limitations. Appellee next urges that this court not consider any argument concerning the Uniform Commercial Code, as the point was not raised below. Our reading of the transcript indicates that the Uniform Commercial Code was never explicitly mentioned. However, the discussions of counsel and the court indicate, at the very least, an implicit understanding that the issue at hand was the applicability of a tort or warranty statute of limitations. The applicability of the Uniform Commercial Code was sufficiently put in issue below to permit consideration on appeal. Appellee further points out that the statement of points on appeal was deficient in that it did not specifically mention the Uniform Commercial Code. Granting that appellants could have been more specific, the statement that was filed did give notice that the appeal would be concerned with the applicable statute of limitations. Notice was also given that appellants objected to the use of the tort statute of limitations. We think that in the context of this case it is sufficient. Other defects in appellants' briefs, while not condoned, are not grievous enough to require dismissal of the appeals. Reversed and remanded for further proceedings. . See generally AS 45.05.094-.098. In its appellate brief Northern Commercial Company contends that: "The accident in question was not caused by warranty defects in 'pearl kerosene' as appellants contend but by the use of the same pump to pump out all products, namely kerosene, blazo, gasoline and stove oil." . AS 09.10.070 provides in part: "No person may bring an action for any injury to the person or rights of another not arising on contract and not specifically provided otherwise unless commenced within two years." . AS 45.05.242 provides in part: "(a) An action for breach of a contract for sale must be commenced within four years after the cause of action has accrued." . AS 45.05.046(a) provides in part: "A 'sale' consists in the passing of title from the seller to the buyer for a price ft AS 45.05.044 (a) provides in part: " 'Goods' means all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities and things in action. " AS 45.05.042(a) provides: " 'Merchant' means a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom this knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having this knowledge or skill." . AS 45.05.038 provides in part: "Scope * ⅜ * Unless the context otherwise requires, § 36-242 of this chapter apply to transactions in goods . Whether the warranties attached to the sale of pearl kerosene and whether they were breached are questions of fact which must be answered at a subsequent trial. For purposes of this appeal from summary judgment such questions of fact are resolved in appellants' favor. Ranson v. Haner, 362 P.2d 282, 290 n. 24 (Alaska 1961). . AS 45.05.242. . Gardiner v. Philadelphia Gas Works, 413 Pa. 415, 197 A.2d 612, 614 (Pa.1964) ; Val. Decker Packing Co. v. Corn Prod. Sales Co., 411 F.2d 850 (6th Cir. 1969) ; Mendel v. Pittsburgh Plate Glass Co., 25 N.Y.2d 340, 253 N.E.2d 207 (N.Y.1969). Contra, Abate v. Barkers of Wallingford, Inc., 27 Conn.Sup. 46, 229 A.2d 366 (Conn.1967). . The California courts construing a sur-vivorship statute with language substantially analogous to that of AS 09.10.150 hold that "[t]he provision is applicable only when necessary to extend the general statute of limitations and cannot be used to curtail it." Department of Mental Hygiene v. Lucas, 52 Cal.Rptr. 552, 555 (Cal.App.1966). See also Triplett v. United States, 213 F.Supp. 887, 888-89 (D.C.Miss.1963) ; Leahy v. Cheney, 90 Conn. 611, 98 A. 132, 133 (1916) ; Berger v. O'Hearn, 264 P.2d 10, 12 (Cal.1953).

10548634

Edward M. BABINEC and Martha Babinec, Appellants, v. STATE of Alaska, Appellee

Babinec v. State

1973-07-20

No. 1539

563

574

512 P.2d 563

512

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:47.680553+00:00

CAP

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

Edward M. BABINEC and Martha Babinec, Appellants, v. STATE of Alaska, Appellee.

Edward M. BABINEC and Martha Babinec, Appellants, v. STATE of Alaska, Appellee. No. 1539. Supreme Court of Alaska. July 20, 1973. Kenneth D. Jensen, Jensen & Harris, Anchorage, for appellants. John E. Havelock, Atty. Gen., Juneau, Dennis L. Marvin, Richard P. Kerns, Asst. Attys. Gen., Anchorage, Donald J. Beighle, Asst. Atty. Gen., Juneau, Richard Richards, Sp. Counsel for the State of Alaska, Los Angeles, Cal., for appellee. Before RABINOWITZ, C. J., and CONNOR and BOOCHEVER, JJ.

5546

33813

OPINION BOOCHEVER, Justice. The instant appeal arises out of an eminent domain proceeding in which the State of Alaska condemned and acquired a fee simple interest in certain private property belonging to Edward M. Babinec and Martha L. Babinec for the purpose of realigning and improving a highway. On this appeal the Babinecs claim as error various superior court orders, rulings and instructions, in particular, the manner in which the court regulated valuation testimony. Ultimately, the Babinecs challenge the amount of compensation awarded them by the jury. Prior to the condemnation, the Babinecs owned approximately 65 acres of contiguous land, bordered by the Old Seward Highway on the west, 36th Avenue on the south, LaTouche Street on the east, and a 10-acre leasehold estate, now the site of the Valu-Mart discount store, on the north. Most of the westerly property of the Ba-binec ownership was zoned for commercial use while the eastern, LaTouche Street frontage was generally zoned for residential use. Prior to the condemnation, the Babinecs had made certain improvements to their property. A subdivision, "Southridge Subdivision", was platted. The plat divided their property into one large tract, Tract 1, to the north and two smaller tracts, Blocks 1 and 2, running along 36th Avenue to the south. Tract 1 consisted of about 54 acres of undivided property. Blocks 1 and 2 were subdivided into six lots, five of which fronted onto 36th Avenue with a sixth fronting onto Southridge Drive, an interior street separating the two blocks and running perpendicular to 36th Avenue. Certain utilities had been installed and South-ridge Drive was developed to subgrade. One lot was sold while another was leased. Exhibit I of the appendix to this opinion depicts the property prior to the filing of the Declaration of Taking. The original action to condemn and take for public use a portion of the Babinecs' property was commenced on August 2, 1968 when the State filed its Complaint and Declaration of Taking with the superi- or court, as authorized by AS 09.55.420. The property condemned by the State, described in the Complaint and Declaration of Taking as "Parcel No. A-348" and "Parcel No. A-345", consists of approximately 9.09 acres of land. Specifically, Parcel No. A-348 was taken from Tract 1, and Parcel No. A-345 was taken from Block 2. The total take comprised one long strip of land running roughly north to south across the western edge of the Ba-binecs' 65 acres. Exhibit II of the appendix to this opinion depicts the property taken. On the same day that the State filed its declaration, it deposited a sum of money, estimated to be just compensation for the property taken, with the registry of court. An Amended Complaint and Declaration of Taking were filed by the State which altered the description of Parcel No. A-345 slightly by expanding the size of the take so as to seal off the south end of South-ridge Drive. The estimated compensation for the entire take, however, was not increased. The superior court ordered that the funds deposited with the registry as estimated just compensation for Parcels No. A-345 and No. A-348 be disbursed to the Babinecs pursuant to AS 09.55.440 and Alaska Civil Rule 72. At the hearing for a determination of the authority and necessity for the condemnation of the property, the superior court issued an order of condemnation and possession. The order confirmed the condemnation and vesting of a fee simple interest in Parcels No. A-345 and No. A-348 in the State. Pursuant to timely objection, and in accordance with Civil Rule 72(h)(2), the issue of just compensation was not referred to a master's hearing, but rather was tried before a jury. A series of pretrial conferences was held and a month-long trial ensued. At the conclusion of the trial, the Babinecs moved for a mistrial. The motion, however, was denied by the court. After deliberating for an hour and one-half, the jury returned a verdict in favor of the Babinecs in the amount of $110,000 as just compensation for Parcels No. A-345 and No. A-348. Judgment was entered giving the State a fee simple interest in the property taken and requiring the Babinecs to pay the State $80,750, the difference between the initial estimated compensation deposited by the state with the registry of court ($190,-750) and the amount of the verdict ($110,-000). The Babinecs' oral and written motions for new trial were denied by the superior court. The Babinecs now appeal from the final judgment of the superior court, claiming as error numerous evidentiary rulings, orders and instructions of the lower court, including the court's denial of their motions for new trial. More precisely, they claim that the superior court erred by denying their objections to and motions to strike the value conclusions of the State's expert witnesses as lacking proper foundational support and as being based upon invalid legal assumptions; by issuing its instruction to the jury on the subject of special and general benefits and further, denying their objections to and motions to strike the State's expert witnesses' conclusions regarding the "special benefits" conferred upon the remaining, noncondemned property by the highway realignment project; by prohibiting them from further examining one of their expert witnesses either on redirect or reopened direct examination, while allowing the State on another occasion to continue to examine one of its expert witnesses upon redirect examination; and by excluding their evidence of the State's prior purchases of property, pretrial offers to purchase, and estimates of just compensation deposited with the registry of court. After thoroughly examining the record and carefully considering the parties' briefs, we conclude that each of the above-mentioned contentions is without merit. We find more substantial, however, the Babinecs' claims that the superior court erred in its use of the so-called "unit rule" and in issuing an instruction which prohibited the jury from considering certain valuation evidence offered by expert witnesses who had assigned separate values to individual subunits of property and then added such values together in order to reach their appraisal conclusions. Another substantial issue was raised by the court's allowing the State to introduce into evidence certain exhibits and to present final argument to the effect that the Babinecs possessed "prior knowledge" of the highway realignment and undertook, in bad faith, various property improvements before the condemnation. From the earliest stages of the proceedings below, the State attempted to have the superior court rule that all of the property owned by the Babinecs constituted one large parcel. The arguments presented were somewhat confusing in failing to distinguish between parcelization problems involving severance damages and issues pertaining to units of valuation not necessarily related to severance damages. Severance damages result from "diminution in value of the remainder area by reason of the severance therefrom of the parcel appropriated. . . . Such damage has been held to be an inescapable sequel to the 'taking' and, therefore, compensable." Turning first to the question of severance damages, a property owner is entitled to such damages if it is determined that the property taken is part of a larger parcel which has been adversely affected by the taking. The principal test utilized for defining the "larger parcel" for severance damage purposes is often referred to as the "three unities" theory. According to this doctrine, three factors are employed in ascertaining whether property in which the take occurs constitutes a single larger parcel. The factors are: physical contiguity between the several parcels, unity of ownership, and unity of use. Where the various units of property are physically contiguous with others, owned by the same party or parties, and used for the same purpose, the property is said to comprise one single parcel of land. While the "three unities" theory is helpful in ascertaining the "larger parcel" to be considered for severance damage purposes, we do not hold that the theory is controlling. If competent evidence is presented indicating that by reason of condemnation of a portion of his property, remaining property owned by the property owner is diminished in value, the issue of severance damages should be presented to the jury, regardless of whether slavish adherence to the "three unities" theory might lead to a contrary result. In the case at bar the parties had no substantial argument with reference to the entire 65-acre Ba-binec ownership constituting one "larger parcel" for the purpose of ascertaining severance damages. Confusion arose, however, by rigidly applying the "three unities" criteria so as to restrict consideration of expert testimony as to evaluation. Despite the fact that the State by its Complaint and Declaration of Taking separately described two takes, Parcel No. A-348 from Tract 1 and Parcel No. A-345 from Block 2, and separately evaluated the amount estimated to be just compensation for each in depositing funds in the registry of the court, it strenuously argued that for evaluation purposes the entire take must be regarded as one parcel. Quite often use of one larger parcel for evaluation purposes results in a lower value than evaluating smaller component parts and adding their total. For example, in the subject case the Babinecs owned 65 acres of which the subdivided portion (Blocks 1 and 2) constituted but 11 acres. The Babinecs' expert witness, Cook, evaluated the subdivided property in Block 2 at $56,733 an acre, whereas he evaluated the 54 acres of Tract 1 at $10,152 an acre. Since the proportion of the property taken in the subdivided section to the total property taken was much higher than the proportion of the entire subdivided acreage to the total acreage, an evaluation based on an average acreage value for the entire property taken results in a substantially lower sum than if the parcels are evaluated separately. Both of the Babinecs' expert witnesses utilized formulas whereby the two parcels taken were separately evaluated and then added together for the purpose of obtaining a total value for the property taken. The State's experts on the other hand evaluated both tracts taken as one larger parcel. The court quite properly admitted into evidence all of the testimony presented by the experts. This was in accord with our holding in Dash v. State wherein, with reference to an expert testifying as to the value of property for subdivision purposes by discounting proceeds from future sales, we stated: Finally, for this court to apply the restrictive rules judicially adopted elsewhere to limit expert testimony would invade the traditional province of the jury as trier of fact to weigh the credibility of the expert witness; it would be inappropriate for this- court to do so under the guise of a ruling on the admissibility of evidence of properly discovered anticipated proceeds from a proposed subdivision. (Footnote omitted.) The Babinec trial court, however, ruled at the conclusion of the trial that the jury would be instructed that there was but one take and one parcel involved. The court then issued Instruction No. 2 to the jury which stated in part: The evidence discloses that at the time of the take, August 2, 1968, the entire subject property was in one ownership, was contiguous and enjoyed a unity of use. Although Parcels A-345 and A-348 were designated, I have determined that Tract 1, Block 1, and Block 2, of the subject property were all parts of a larger parcel making up the Southridge Subdivision. Hence, there was on August 2, 1968 a single take by the State of Alaska from a larger parcel known as South-ridge Subdivision. . This instruction when combined with Instruction No. 5, in effect eliminated the Babinecs' expert witnesses' conclusions from consideration by the jury. Instruction No. 5 stated in part: An expert appraiser may consider the highest and best uses of the property or portion thereof and take into consideration any factors which enhance the value of the property such as the availability of utilities, subdivision, access and the like. But it is not proper for an expert appraiser to ascribe individual evaluations to individual lots or parcels within the total ownership being evaluated, and to then add up these separate evaluation figures of the separate lots or parcels, in order to determine his appraisal conclusions, including benefits, damages or just compensation. (Emphasis added.) At the very least, the effect of Instruction No. 5 was to foreclose jury consideration of the Babinecs' experts', Cook's and Gebhart's, value conclusions. The references to "parcels", and the prohibition against addition of separate evaluation figures, in effect instructed the jury to discount the testimony of Babinecs' witnesses, who had separately evaluated the two parcels and then added the figures together. If there were no adequate evidentiary-basis for separately valuing the lots and the two parcels it would be the court's duty to give an instruction such as Instruction No. 5. The problem is analogous to that considered in State v. 7.026 Acres wherein it was contended that evidence should not have been admitted pertaining to the intention of a property owner to subdivide his property into about 55 lots and sell them as recreational cabin sites. In discussing the admission of testimony as to the adaptability of the condemned property to development of a subdivision we stated: Such adaptability, merely within the realm of possibility, is not sufficient. It must be shown that the use for which the property is claimed to be adaptable is reasonably probable. If this cannot be shown, evidence of prospective use must be excluded because it would allow mere conjecture and speculation to become a guide for ascertainment of value, and this is not a permissible method for the judicial ascertainment of truth. (Footnotes omitted.) We are here confronted with the question of whether there was sufficient evidence presented as to a difference in character of the subdivided property of Block 1 and Block 2 from the remainder of the Southridge Subdivision to permit the jury's consideration of separate evaluations for the two parcels taken (one parcel, A-345, being within Block 2, a portion subdivided into lots; and the remaining parcel, A-348, being located in Tract 1, not similarly subdivided). We do not believe the facts pertaining to the use of the Babinec property are so unequivocal as to justify a determination by the court rather than the jury. In short, the State essentially argues that Southridge Subdivision was a mere "paper subdivision" and that in reality, the Babinec ownership was entirely vacant, undeveloped property. The superior court agreed with the State's conclusion, and found " . . . the land in question was in one ownership entirely and enjoyed a unity of use. . . . " We are, however, persuaded that jury issues were presented as to whether the Babinecs had made certain substantial improvements to their property; whether Southridge Subdivision was more than a paper scheme; and whether the entire 65-acre ownership should be regarded as constituting more than one parcel for evaluation purposes. Specifically, a plat of the subdivision was certified on January 26, 1967 and was accepted and filed in the Anchorage Recording District on March 31, 1967. The plat having been accepted and filed could not be revised without a public hearing and permission of the platting authority. One of the subdivided lots was sold in July 1967, but was subsequently repurchased and exchanged for another lot sometime after the taking. Another lot, in the southwest corner of the property, was leased and a service station was later erected thereon. Pursuant to an agreement with the City of Anchorage, the Ba-binecs dedicated the rights of way adjacent to 36th Avenue and LaTouche Street to the City. Certain storm drains and utility easements were similarly dedicated. Thereafter, the City installed various utilities and two "catch basins" along an east-west easement running entirely across the northern portion of Blocks 1 and 2 (between them and Tract 1). Sewer, storm and water lines were also laid in South-ridge Drive, which had been excavated by Babinec but not yet raised to grade level. To our minds, these facts clearly raise a substantial question of fact as to whether Parcel A-345 located in the subdivided section could be separately evaluated from Parcel A-348, located in Tract l. The central objective in eminent domain proceedings such as the one before us is the determination of just compensation for the property condemned. Achievement of this goal must not be deterred by rigid evidentiary rules or technical formulas. As the Supreme Court of Hawaii observed in Territory of Hawaii v. Adelmeyer: [I]n partial taking cases, no rigid rules can be prescribed. The facts and circumstances of each case must be considered to determine the applicable formula. 'The rules for determining value of land taken by condemnation cannot, from the nature of the case, be inflexible. In each case just compensation is the goal; and where rigid application of even a settled rule will produce injustice it must be departed from so far as made necessary by the circumstances of the case. . . . ' (Citation omitted.) We note with approval that court's interpretation of the jury's responsibility for evaluating condemned property in partial-take cases: Where, as here, the parcels taken approach such size and character as to assume proportions of independent economic use, in the light of the highest and best use of the land, the rationale of the rule of valuing "the whole first, then on that basis, assign a value to the part condemned" dissolves into meaninglessness. The method of valuation of the parcels taken, whether as a separate entity or in relationship to the whole tract, then becomes a matter of opinion of the appraisers to be weighed by the jury. (Citations omitted.) While we decline to fashion a rigid eviden-tiary rule regarding the admission of appraisal testimony or to precisely define the scope and nature of the jury's province in all eminent domain proceedings, we hold that in the case at bar, the superior court erred by issuing Instruction No. 5. A contrary conclusion is not compelled by the authorities cited by the State. We do not take issue with the State's legal proposition that expert appraisals of a large parcel of land may not be "based upon a simple aggregate of retail sale values of individual lots carved from that parcel." We do, however, disagree with the State's contention insofar as it would prohibit the jury's consideration of evidence regarding retail sales values of parcels or lots where such property is immediately and readily marketable. Expert testimony was presented at the trial to the effect that the six subdivided lots of Blocks 1 and 2 were immediately and readily marketable. In In re Appropriation for Highway Purposes of Lands, a case with a factual context similar to the one at bar, the court concluded that the jury could properly consider evidence of individual lot values. There the court stated: In this case the land was not merely suitable for subdivision purposes. The process of subdivision, platting, recording and development had progressed to the point where the individual lots were available as separate units for sale. One lot had been sold. Two others had had homes built or partially built upon them for sale. There were available, as testified to by the appraisers, lots, the sales of which were comparable to these in that there were no sewers and no centralized water system. In short, a valuation of each lot was practical and available. To insist that the land must be appraised as a whole without reference to individual lot values would, in effect, deprive the owner of a valuation of the highest and best use of the land as individual residence lots and force him to value the land merely as land available for subdivision purposes. Land which is thus divided and presently suitable for sale as individual lots to many buyers would have a higher market value than land which is merely currently suitable for sale as one tract to a single person who would in turn subdivide or develop the land for sale to others. Such a single buyer would have to consider factors of risk which individual lot buyers would not have to recognize. Therefore, although the question for the jury is the fair market value of the tract as a whole, evidence as to the individual lot values would be both pertinent and necessary to a consideration of the highest and best use of the land. In the case before us, Blocks 1 and 2 of the Babinec property had been subdivided into six smaller lots. Indication that a market for such lots existed was demonstrated by the sale of one lot prior to the date of taking. Valuation evidence based in part upon the ascription of retail values to individual lots and comparable sales data should properly have been admitted for the jury to consider. Here, however, Instruction No. 5 prevented jury consideration of appraisals in which the expert assigned "individual evaluations to individual lots or parcels . . . " which were added in order to determine conclusions. To the extent that the appraisals were permissibly based in part upon individual lot values, the instruction erroneously excluded admissible evidence. The jury should have been allowed to consider all of the experts' testimony, including their value conclusions. We do not believe that our decision today leaves the State helpless against a property owners's appraisers who seek artificially to inflate the value of the condemned property through the use of undis-counted retail sales values of subdivided lots, or unreliable comparable sales data. Retail sales values must be properly adjusted, and the State is always safe guarded by the opportunity to discredit such experts during cross-examination. With reference to the procedure followed by the Babinecs' experts in appraising the two parcels separately, rather than as one larger parcel, we are further persuaded by the facts that the State so designated the property in its complaint and in making its initial deposits with the registry of the court. Having taken the position that there were two parcels being condemned, the State will not be permitted to eliminate conclusions of the property owners' experts based on just such a classification. At the least the State should have sought to amend its complaint before seeking to have adopted a rule of single parcel-ization. In the event of such an amendment, a continuance might well have been required. Although we believe that the case was generally well tried by the parties and fairly conducted by the trial court, for the reasons mentioned above we are obliged to reverse the judgment of the superior court and remand the case for a new trial. One other claim of error requires comment since on retrial the issue will doubtlessly be again presented to the trial court. In specific regard to the Babinecs' claim of error concerning the State's references, both at trial and during final argument, to their "prior knowledge" of the highway realignment project and their alleged precondemnation "bad faith" property improvements, we find that the superior court's instruction on the "prior knowledge" issue, Instruction No. 8 was a correct statement of the law. Property owners who are aware of proposed condemnation nevertheless may make reasonable improvements to their property and are entitled to the value of the improvements made with such knowledge before the taking. The evidence of prior knowledge is ordinarily irrelevant and inadmissible. See Ketchikan Cold Storage Co. v. State, 491 P.2d 143, 153 (Alaska 1971). On the other hand, the property owner is not entitled to the value of improvements made solely in bad faith for the purpose of enhancing an award. Upon retrial, evidence of "prior knowledge" should not be admitted unless its relevance is established for some purpose other than to show that the property owner made reasonable improvements to the property after acquiring knowledge of the proposed condemnation. The judgment is reversed and the case remanded for a new trial. ERWIN and FTTZGERALD, JJ., not participating. APPENDIX . Edward M. Babinec and Martha L. Babi-nec are the only parties claiming a right to just compensation in this action. All other defendants were severed from the case by a series of motions, disclaimers and stipulations. . Tlie Department of Highways of the State may acquire real property for the purpose of constructing a highway through the exercise of eminent domain power, under the authority of AS 19.05.040, AS 19.05.080-120 and AS 19.20.040. AS 09.55.420 specifically authorizes the State to use a Declaration of Taking. . The amount of money estimated to be just compensation for the property taken and deposited with the registry of court was as follows: Parcel No. A-345 — $ 65,000.00 Parcel No. A-348 — 1125,750.00 Total $190,750.00 . AS 09.55.440 provides : Vesting of title and compensation, (a) Upon the filing of the declaration of taking and the deposit with the court of the amount of the estimated compensation stated in the declaration, title to the estate as specified in the declaration vests in the plaintiff, and that property is condemned and taken for the use of the plaintiff, and the right to just compensation for it vests in the persons entitled to it. The compensation shall be ascertained and awarded in the proceeding and established by judgment. The judgment shall include interest at the rate of six per cent per year on the amount finally awarded which exceeds the amount paid into court under the declaration of taking. The interest runs from the date title vests to the date of payment of the judgment. (b) 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. '. Civ.R. 72(j) provides: Deposit and Its Distribution. The plaintiff shall deposit with the court any money required by law as a condition to the exercise of the power of eminent domain, and although not so required, may make such deposit. In such case the court and attorneys shall expedite the proceedings for the distribution of the money so deposited and for the ascertainment and payment of just compensation. If the compensation finally awarded to any defendant exceeds the amount which has been paid to him on distribution of the deposit, the court shall enter judgment against the plaintiff and in favor of that defendant for the deficiency. If the compensation finally awarded to any defendant is less than the amount which has been paid to him, the court shall enter judgment against him and in favor of the plaintiff for the overpayment. . Civ.R. 72(h)(2) provides: Hearing Before Master. A master appointed by the court to ascertain the amount to be paid by the plaintiff to each owner or other person interested in the property shall report to the court pursuant to Rule 53(d) (1). If all parties object to the appointment of a master, they may have a trial by jury or, if the jury is waived by all parties to the action, a trial without a jury, by filing a demand for it within the time allowed for answer or within the additional time which the court may set. .4A Xicliols on Eminent Domain § 14.31 [3], at 14-33 (rev. 3d eel. 1971). See numerous cases cited in id. n. 38. Severance damages are specifically authorized in Alaska by AS 09.55.330. . Id. § 14.31 [1], at IT-393. . Id. § 14.31 [2], at ⅛-416. . Id. % 14.31 [1], at 14-394. . 491 P.2d 1069, 1076 (Alaska 1971). . Counsel for the State conceded in both his appellate brief and oral argument that the effect of Instruction No. 5 was to prohibit jury consideration of the property owners' expert witnesses' value conclusions. . 466 P.2d 364, 366 (Alaska 1970). . AS 40.15.140 through 40.15.180 (repealed by § 1, ch. 118, SLA 1972) set forth the procedure for vacation and change of plats and streets. .On the following facts, similar to those applicable to Tract A-345, the court in State v. Boyer, 130 So.2d 738, 743 (La. App.1961) concluded that "the property was properly classified as a subdivision": The record discloses that roads and ditches had been cut; the boundaries had been set out; the streets were laid out and staked; that two streets had been dedicated ; that estimates as to the cost of bringing in utilities, i. e. water, electricity and gas had been obtained; cost of shell for the streets had been obtained; an engineering firm had been employed and a work order actually given for completion of surveying and measuring out of the lots. The evidence further discloses that when defendants learned that part of the property was going to be expropriated they discontinued their preparations for finishing the subdivision. . 45 Haw. 144, 363 P.2d 979, 985 (1961). . Id. at 986. . Appraisals may not be based upon the aggregate of unadjusted retail sales values of lots or hypothetical divisions. As Nichols observes: It is well settled that if land is so situated that it is actually available for building purposes, its value for such purposes may be considered, even if it is used as a farm or is covered with brush and boulders. The measure of compensation is not, however, the aggregate of the prices of the lots into which the tract could be best divided, since the expense of clearing off and improving the land, laying out streets, dividing it into lots, advertising and selling the same, holding it and paying taxes and interest until all the lots are disposed of cannot be ignored.4 Nichols on Eminent Domain § 12.3142 [1], at 12-245, 12-248 (rev. 3d ed. 1971). (Footnote omitted.) .15 Ohio App.2d 131, 239 N.E.2d 110, 113-114 (1968). . To the same effect is State, Dept. of Highways v. Cobb, 169 So.2d 419, 421 (Ln.App.1964), where the court concluded that "the trial judge correctly held that the value of the property expropriated should be on a lot basis rather than on an acreage basis." See also Commonwealth, Dept. of Highways v. Caudill, 388 S.W.2d 376, 378 (Ky.1965). . In In re Appropriation for Highway-Purposes of Lands, 15 Ohio App.2d 131, 239 N.E.2d 110, 134 (1968), the court prescribed one acceptable means of evaluating the parcel on the basis of individual lots: However, the value of the whole parcel would not be the simple mathematical total of tlio individual lot values Except in the event of a rave and highly promoted auction sale taking place in a single day, a subdivision is ordinarily-sold to a multiplicity of buyers over a period of years. This factor of time must be considered, to arrive at the fair market value on the single day of taking. How may this be done? One way is exemplified by the present case. Experts render an educated opinion based on comparable sales of similarly sized and improved tracts to individual purchasers to arrive at the aggregate price which the lots would sell for if willingly sold to individual willing purchasers irrespective of the time factor —i. e., what all lots would sell for to individual purchasers. Then a discount factor based upon the expert's opinion as to the anticipated period it would take to effect such individual sales would be applied, which would on the average correct for the difference between present and deferred receipt of purchase price and for costs of sale not expended. .Instruction No. 8 stated: Knowledge of the fact by the property owner that a public improvement, such as a highway, is proposed which will result in taking from his land does not deprive the owner from recovering for the full market value of the property taken and for damages, if any, to the remainder resulting from the take. This is so even though if after learning of the proposed improvement, the property owner reasonably undertakes to improve his land resulting in enhancement of its value. Even though preliminary announcement has been made by public authority, the making of the contemplated highway improvement may not take place and it would bo unjust to deprive the property owner of the right . to make in good faith the best use of his property. . 4 Nichols on Eminent Domain § 13.14, at 13-16 (Rev.3d ed. 1971). . Plats of the property owner which depicted the proposed right of way by means of dotted lines, and which were prepared prior to the taking, were introduced into evidence by the State. On retrial, if such plats are introduced copies should be obtained with the proposed highway lines eliminated, unless relevancy of the property owner's prior knowledge is established for a proper purpose.

10545128

STATE of Alaska, Petitioner, v. Tyrone DAVENPORT, Respondent

State v. Davenport

1973-05-14

No. 1639

78

87

510 P.2d 78

510

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:45.113322+00:00

CAP

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

STATE of Alaska, Petitioner, v. Tyrone DAVENPORT, Respondent.

STATE of Alaska, Petitioner, v. Tyrone DAVENPORT, Respondent. No. 1639. Supreme Court of Alaska. May 14, 1973. John E. Havelock, Atty. Gen., Juneau, Seaborn J. Buckalew, Jr., Dist. Atty.,. W. H. Hawley and Charles M. Merriner, Asst. Dist. Attys., Anchorage, for petitioner. Herbert D. Soli, Public Defender, Bruce A. Bookman, Asst. Public Defender, Anchorage, for respondent. Before RABINOWITZ, C. J., and CONNOR, ERWIN and BOOCHEVER, JJ-

5020

30166

OPINION RABINOWITZ, Chief Justice. Respondent Tyrone Davenport was indicted on November 1, 1971 for the crime of receiving and concealing stolen property. The indictment charged Davenport with the unlawful possession of six fur garments which were allegedly stolen from the Fur Traders, an Anchorage merchant. Prior to trial, Davenport filed a motion to suppress the several fur pieces which he claimed the state had illegally seized. The superior court granted his motion and the state has petitioned this court to review that decision. The facts developed at the suppression hearing are as follows: On September 22, 1971, Investigator Robert Gray of the Anchorage Police Department obtained a warrant based upon his own affidavit to search the Davenport residence for "eight or nine handguns" which were stolen from Howard's Gun Shop in Anchorage. Gray's affidavit related that on September 22, 1971, the Anchorage police arrested Davenport in connection with a shooting incident at the Davenport home; and that shortly following the arrest, the police seized two handguns. The serial number of one of the handguns matched the serial number of a gun reported stolen from Howard's Gun Shop. The affidavit further alleged that . later in the afternoon of September 22, 1971 your affiant was approached by inmate, Matthew Harris, and it was related to your affiant that he, Matthew Harris, had been in the Tyrone Davenport residence at 512 E. 12th Avenue, Apt. #9, approximately on the 16th day of September, 1971 and while there saw eight or nine handguns, which Davenport stated came from Howard's Gun Shop. From testimony brought out at the suppression hearing, it appears that Harris also informed Gray that while at the Davenport residence on September 22, he had seen a number of fur garments; and moreover, he had seen Davenport place them in the attic above the kitchen. Harris was unable to tell Gray how Davenport came to acquire the furs, but Gray suspected that the furs might be among those which had been taken in a recent burglary of Fur Traders. Gray did not seek a warrant to search the Davenport residence for the furs, apparently because an assistant district attorney informed Gray that he had insufficient probable cause to obtain the warrant. Investigator Rice of the Anchorage police was assigned to execute the search warrant which was issued for "eight or nine handguns, the property of Howard's Gun Shop". Gray indicated to Rice that he might discover some furs in the course of the search for the handguns and that the furs probably belonged to Fur Traders. Rice and two other officers went to Davenport's residence to execute the warrant. They knocked at the door, and receiving no answer, they admitted themselves. Once inside, they found Davenport's father sleeping in a bedroom. They woke him and informed him of the purpose of the intrusion. After a search of the first floor, the officers asked the elder Davenport to show them to the attic. One of the three, Officer Smith, climbed up. Once inside the attic, Smith noticed three or four boxes of .38 caliber ammunition and a recess in the roofing material. Smith crawled over to the recess and observed three bundles inside. He .withdrew one of the packages, a brown shopping bag, looked in it, and discovered that it contained furs. Smith examined the other parcels and found furs in them as well. Rice had told Smith that the search might uncover stolen furs in addition to the handguns, and so Smith handed the parcels containing the furs to his comrades below. The furs had no labels and appeared to Rice to be both brand new and expensive. Recalling the Fur Traders' burglary, Rice concluded that the furs were probably stolen and seized them. On the return of the warrant, Rice listed seven fur garments. No handguns were seized or discovered in the course of the search of the Davenport residence. At the suppression hearing Davenport argued that the furs were illegally seized since (a) they were not among the items listed on the warrant and were not reasonably related to the purpose of the search as required by Bell v. State, 482 P.2d 854 (Alaska 1971); (b) that the affidavit for the search warrant was insufficient and defective; and (c) that even assuming Bell permits seizure of items not enumerated in the warrant and unrelated to the purpose of the warrant, there was insufficient probable cause upon which to base the seizure of the furs. The superior court concluded that since the furs were not described in the warrant, nor were they related to the offense upon which the warrant was based, under Bell v. State, the seizure of the furs was illegal. The superior court did, however, find that the affidavit in support of the warrant was neither insufficient nor defective, and that the warrant was therefore valid. I Davenport challenges the superior court's finding that the search warrant for the handguns was valid. He claims that the affidavit was defective in that (a) it contained misstatements of fact and that (b) the statements in the affidavit were insufficient to establish probable cause to search. In his affidavit, Investigator Gray claimed that Tyrone Davenport was observed by a neighbor, Andrew Nelson, 512 E. 12th, Apt. 3, entering a storage area in the apartment complex at 512 E. 12th Avenue, remain a moment and then hurriedly left the storage area and entered his apartment. The affidavit also asserts that the informant Matthew Harris "approached" Gray and revealed that he had seen the handguns at the Davenport residence. Davenport claims that these statements are false. Apparently, Gray did not know that the figure he described to the police was Davenport. Moreover, it seems that Gray contacted Harris, contrary to the assertion in the affidavit that Harris approached Gray. Davenport argues that these misstatements in the affidavit vitiate the validity of the warrant. There is much disarray in the law on the question of whether, and to what extent, the validity of statements in an affidavit may be challenged. A number of courts have indicated that a defendant may attack a search warrant on the grounds that the affidavit presents material misstatements of fact. The state and federal constitutional requirement that warrants issue only upon a showing of probable cause, in our opinion contains the implied mandate that the factual representations in the affidavit be truthful. We believe that since search warrants issue ex parte, the courts must be willing to investigate the truthfulness of the material allegations of the underlying affidavit in order to protect against the issuance of search warrants based on conjured assertions of probable cause. Thus, we believe that challenges to the search warrant and affidavit may be properly entertained during the suppression hearing. However, in order for a misstatement of fact in an affidavit to fatally impair the validity of a search warrant, the misstatement must be material to the showing of probable cause upon which the warrant is based. In the case before us, it does not appear that the district judge was influenced by the misstatements in the affidavit to issue a search warrant which he would otherwise have denied. Even assuming the falsity of Gray's statements, we cannot conclude that they were material to a finding of probable cause to search. Davenport also contends that the affidavit was insufficient because the af-fiant Gray relied on hearsay, and the affidavit fails to establish the reliability of the informant. Specifically, Davenport contends that the reliability of the informant Harris was not sufficiently established by the affidavit. As the Supreme Court noted in Aguilar v. State of Texas, 378 U.S. 108 at 114, 84 S.Ct. 1509 at 1514, 12 L.Ed.2d 723 (1964): An affidavit may be based on hearsay and need not reflect the direct personal observations of the affiant [but] the magistrate must be informed of some of the underlying circumstances from which the officer [the affiant] concluded that the informant was "credible" or his information reliable. We believe that in the instant case, there were substantial bases for crediting the informant's story. The affidavit avers that Harris' information was acquired by his personal and recent observation. Moreover, his story was corroborated in the affidavit by the fact that one of the handguns discovered in connection with Davenport's arrest possessed a serial number which matched the serial number of a handgun taken from Howard's Gun Shop. This corroboration significantly reduced the possibility that Harris' story was nothing more than a "reckless or prevaricating tale." Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697, 708 (1960). We do not agree with Davenport's claim that the affidavit failed to show that the informant was credible or reliable, and that consequently, under Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the statement of the informant could not support a showing of probable cause. Unlike the present case, the affidavit in Spinelli relied on observations of an vmidentified infor mant, and did not explain how the informant came by his information. See, United States v. Harris, 403 U.S. 573, 579, 91 S.Ct. 2075, 29 L.Ed.2d 723, 731 (1971). An affidavit may rely on the observations of a third party, "so long as a substantial basis for crediting the hearsay is presented." Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 735, 4 L.Ed.2d 697, 707 (1960). Accord, United States v. Harris, supra, (Opinion of Chief Justice Burger joined by Black, J., and Blackmun, J.). Since the hearsay in the instant case was based on the information of an identified informant, and that information was acquired by the informant's own observation, and furthermore, since the independent discovery of the handgun at the time of Davenport's arrest tended to corroborate Harris' story, we believe that there was a substantial basis for crediting the hearsay. We are therefore unable to agree that Gray's affidavit failed to establish sufficient probable cause for the issuance of a search warrant. II The state contends that the suppression of the furs was error. The superior court held that since the furs were neither described in the warrant nor related to the offense for which the warrant issued — the burglary of Howard's Gun Shop — the rule of Bell v. State, supra, prohibited the seizure even though the furs were discovered in the course of a valid search. In Bell v. State, supra, we said that an officer may seize evidence of a crime even though such property is not particularly described in the search warrant when the objects discovered and seized are reasonably related to the offense in question, when the searching officer at the time of the seizure has a reasonable basis for drawing a connection between the observed objects and the crime which furnished a basis for the search warrant, and the discovery of such property is made in the course of a good faith search conducted within the authorized perimeters of the search warrant. (Footnote omitted.) By describing in Bell this limited exception to the Fourth Amendment's requirement that items to be seized be described in the warrant, we did not intend to suggest that other exceptions might not exist. Indeed, only last year in Davis v. State, 499 P.2d 1025 (Alaska 1972) we recognized another exception to the particularity requirement. In Davis we upheld the seizure of an item that had not been described in the search warrant, but which the executing officer had probable cause to believe was related to another crime being conducted in his presence. Thus, the items seized need not necessarily be connected to the crime which served as the basis for the search warrant. The Fourth Amendment to the United States Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated. No warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (Emphasis added.) In Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564, 583 (1971) Justice Stewart pointed out that two constitutional protections are served by the warrant requirement. First, independent judicial scrutiny protects against searches not justified by a prior determination of probable cause. See, e. g. McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948), Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Secondly, the "particular description" requirement protects against the evil of the general warrant. See, e. g. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, 748-751 (1886); Marron v. United States, 275 U.S. 192, 195-196, 48 S.Ct. 74, 72 L.Ed. 231, 236, 237 (1927). As we noted in Bell v. State, supra, the Supreme Court in Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927) gave a strict and uncompromising reading to the "particularity" requirement. The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant. The requirement that warrants particularly describe the things to be seized was designed to prevent general exploratory searches of a person's belongings. The Fourth Amendment operates to secure "the sanctity of a man's home and the privacies of life" from indiscriminate searches by officials of the state. The Supreme Court loosened the Marron rule in Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947). There the Court upheld the seizure of property discovered in the course of a lawful search, even though the property seized was unrelated to the crime for which the search was undertaken, and was not described in the search warrant. The search was conducted incident to an arrest and produced a collection of draft registration material, the possession of which was a federal offense. The Court seemed to conclude that the officers had sufficient cause to believe an offense was being committed, and that they were, therefore, justified in seizing the evidence. Later the Supreme Court noted in Harris v. United States, 390 U.S. 234, 235, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067, 1069 (1968): . objects falling in the plain view of an officer who has the right to be in the position to have that view are subject to seizure and may be introduced into evidence. Ker v. California, 374 U.S. 23, 42-43, 83 S.Ct. 1623, 1634, 1635, 10 L.Ed.2d 726, 743 (1963); United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927); Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924). It is not enough that the objects seized in the course of a search simply be in "plain-view." "There must, of course, be a nexus — automatically provided in the case of fruits, instrumentalities or contraband — between the item to be seized and criminal behavior." Warden v. Hayden, 387 U.S. 294, 307, 87 S.Ct. 1642, 1650, 18 L.Ed.2d 782, 792 (1967). The officers must have probable cause to believe that the article not named in the warrant, but found during the search, will aid in a particular conviction for an offense. Probable cause under these circumstances exists only when, the information the officers possess immediately following discovery is sufficient to warrant a reasonable man of reasonable caution in the belief that an offense has been or is being committed. Cf. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879, 1889 (1949); United States v. Rich, 407 F.2d 434 (5th Cir. 1969); Chin Kay v. United States, 311 F.2d 317 (9th Cir. 1962). Accordingly, we hold that when an officer has probable cause to believe that objects he discovers in the course of a valid search conducted under a valid warrant are the fruits of a particular theft, that officer may seize those items even though they are neither listed on the search warrant nor related to the crime which served as the basis for the warrant. Officer Smith was well within the proper scope of the search for the handguns listed in the warrant when he uncovered the fur pieces. Handguns of the description set out in the warrant might easily have been concealed in the recess of the attic. On the basis of the record we can discover no reason for finding that the search was improperly extended, and thus we conclude that Officer Smith had a right to be in a position to view the furs which were discovered. We find that the officers had probable cause to believe the furs were the fruits of the Fur Trader's burglary. Officer Rice knew that certain furs had recently been stolen from Fur Traders. The numerous fur pieces which the officers uncovered appeared to be new, there were no retail labels attached to the garments, and they appeared to have been carefully hidden. Taken together, these facts presented the police with a reasonable basis to believe the furs were stolen, and that the crime of possessing stolen goods was being committed in their presence. Ill Finally, Davenport contends that the seizure was invalid because prior to the search, the police had probable cause to believe they would find the furs in his attic, but failed to describe the furs in the warrant. He claims that under these circumstances : a) the seizure was not made pursuant to a good faith search, b) the seizure was not inadvertent, and therefore, the seizure was invalid. In Davis v. State, 499 P.2d 1025 (Alaska 1972), and in Bell v. State, 482 P.2d 854 (Alaska 1970), we upheld the sei zure of items which were not described in the search warrant. Essential to the validity of such a seizure is that the search which leads to the discovery of the unlisted material be conducted in good faith. This court will not countenance the use of an otherwise valid warrant for the purpose of conducting a generalized search for incriminating evidence, nor will we look with favor upon any search undertaken with the undeclared intention of seizing property which has not been described in the warrant. Davenport's argument is that since the police had reason to believe they might find the furs in the attic, the search lacked good faith. There is no evidence in the record to suggest that the search for the guns was a pretext to conduct a search for the furs. The search for the handguns was undertaken pursuant to a valid warrant and conducted within the scope of the objectives of that warrant. The warrant was not employed as a means for exercising a general search. There was no evidence produced to suggest that the search would have been less extensive or in any way conducted differently had the police not received information relating to the furs. We cannot agree that simply because the police had reason to believe that they might find certain furs in the course of their search, that the search was therefore tainted with bad faith. The underlying basis for the intrusion into the Davenport home was legitimate, and the search was conducted in a lawful manner. Thus, we conclude that the search was conducted in good faith. The other prong of Davenport's argument is that the discovery of the furs could not have been inadvertent, and that, therefore, under Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) the seizure was illegal. In Coolidge, Justice Stewart, speaking for only four of the nine members of the Court, ruled that the "plain-view" exception to the warrant requirement applies only where the discovery is inadvertent, In Coolidge the police arrested the defendant in front of his home. One of his automobiles, which was parked in the driveway, was seized by the police at the time of the arrest, towed away and later searched for evidence of the crime. Justice Stewart noted, "[the police] knew the automobile's exact description and location well in advance; they intended to seize it when they came upon Coolidge's property." Justice Stewart argued that the plain-view exception would not apply under those circumstances. The rationale of the [plain-view] exception to the warrant requirement is that a plain-view seizure will not turn an initially valid (and therefore limited) search into a "general" one, while the inconvenience of procuring a warrant to cover an inadvertent discovery is great. But where the discovery is anticipated, where the police know in advance the lo cation of the evidence and intend to seize it, the situation is altogether different. Unlike the circumstances in Coolidge, the police in the case at bar neither knew the exact description of the property to be seized nor possessed any intent formed prior to discovery of the furs to seize them. The police in Coolidge could have easily obtained a warrant to seize the automobile. But having no idea prior to the search whether the furs spotted by the informant Harris were stolen, the police in the case at bar lacked sufficient probable cause upon which to base a warrant for the furs. The plurality in Coolidge made clear that the plain-view doctrine does serve certain defensible purposes. As against the minor peril to Fourth Amendment protections, there is a major gain in effective law enforcement. Where, once an otherwise lawful search is in progress, the police inadvertently come upon a piece of evidence, it would often be a needless inconvenience, and sometimes dangerous — to the evidence or to the police themselves — to require them to ignore it until they have obtained a warrant particularly describing it. It seems to us unreasonable to deny the police the right to seize, simply because the police had some idea they might find the material which they later discovered. Under a wide variety of situations, the police will lack probable cause sufficient to secure a warrant to search for items later discovered in the course of a search. In the case at hand, the police knew only that some furs might be found. Prior to the search, the police lacked probable cause to believe that they would find furs which were the fruits of a crime. The police had probable cause to search for handguns, were conducting their search under a proper warrant, and the search was properly limited to the perimeters of the warrant. The seizure of the fur garments was lawful. Thus we find the superior court's suppression of the fur garments erroneous. The case is remanded for further proceedings consistent with this opinion. FITZGERALD, J., not participating. . AS 11.20.350 defines the crime of receiving and concealing stolen property as follows : A person who buys, receives, or conceals money, goods, bank notes, or other thing which may be the subject of larceny and which has been taken, embezzled or stolen from another person, knowing it to have been taken, embezzled, or stolen, is punishable by a fine of not more than $1,000 and by imprisonment for not less than one year nor more than three years. . 482 P.2d 854 (Alaska 1971). . See, Kipperman, Inaccurate Search Warrant Affidavits as a Ground for Suppressing Evidence, 84 Harv.L.Rev. 825 (1971); Mascolo, Impeaching the Credibility of Affidavits for Search Warrants: Piercing the Presumption of Validity, 44 Conn.B.J. 9 (1970); 15 Buff.L.Rev. 712 (1966); Note, Testing the Factual Basis for a Search Warrant, 67 Colum.L.Rev. 1529 (1967); 51 Cornell L.Q. 822 (1900); 34 Fordham L.Rev. 740 (1966); Comment, The Outwardly Sufficient Search Warrant Affidavit: What if it's False?, 19 U.C.L.A.L.Rev. 96 (1971). . See, United States v. Bozza, 365 F.2d 206, 223-224 (2nd Cir. 1966); King v. United States, 282 F.2d 398 (4th Cir. 1960); United States v. Pearce, 275 F.2d 318, 321-322 (7th Cir. 1960); People v. Alfinito, 16 N.Y.2d 181, 264 N.Y.S.2d 243, 211 N.E.2d 644 (1965); Lerner v. United States, 151 A.2d 184 (D.C.Mun.Ct.App.1959). But see, contra, United States v. Gianaris, 25 F.R.D. 194 (D.C.D.C.1960); People v. Bak, 45 Ill.2d 140, 258 N.E.2d 341 (1970). In Rugendorf v. United States, 376 U.S. 528, 532, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964), the Supreme Court, without passing on the question seemed to approve the policy of permitting challenges to the veracity of the underlying affidavit. . U.S.Const. amend. IV; Alaska Const. art. 1, § 14. . There was no showing at the suppression hearing that Gray intentionally distorted the facts as he knew them in an effort to obtain the warrant. We, therefore, do not now decide whether an intentionally falsified statement of nonmaterial fact in an affidavit will affect the validity of a search warrant. . Excluding the questioned statements of fact from consideration, the affidavit still asserts that a) while at the Davenport residence, Harris saw eight or nine handguns which Davenport informed him were taken from Howard's Gun Shop; b) one of the handguns stolen from Howard's was found in the storage area following the shooting incident which led to Davenport's arrest, and c) shortly after the shooting incident someone, though perhaps not Davenport, was seen entering the storage area where the gun was found, and then after a moment proceeding hastily into the Davenport residence. It is our view that these allegations were sufficient to establish probable cause for the issuance of the search warrant. .AVe simply note Davenport's argument that Gray's failure to name the source of his information a) that Howard's Gun Shop had been burglarized, and b) that a gun had been discovered at Davenport's residence following his arrest invalidates the warrant. We do not agree. It is not necessary that every assertion of fact be traced to its ultimate source. The Fourth Amendment's requirements are practical and not abstract, and affidavits "must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. . . . Technical requirements of elaborate specificity . have no proper place in this area." United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965). . Quoted in Morris v. State, 473 P.2d 603, 605 (Alaska 1970). . 482 P.2d 854, 860. . Davis was concerned with the discovery of a concealable firearm in the possession of a felon. The court held that under the circumstances the officer had probable cause to believe that the crime was being committed in his presence. . Article I, section 14 of the Constitution of the State of Alaska is identical except for the addition of the term "and other property" in the catalogue of protected zones. . 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231, 236. Accord Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948). . Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, 583 (1971); Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, 751 (1886). . Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746, 751 (1886). . 331 U.S. at 154-155, 67 S.Ct. 1098, 91 L.Ed. 1407-1408. . See Aron v. United States, 382 F.2d 965 (8th Cir. 1967); Seymour v. United States, 369 F.2d 825 (10th Cir. 1966); United States v. Eisner, 297 F.2d 595 (6th Cir. 1962); United States v. McDonnell, 315 F.Supp. 152 (D.Neb.1970); People v. Christeson, 122 Ill.App.2d 192, 258 N.E.2d 142 (1970); Commonwealth v. Wojcik, 266 N.E.2d 645 (Mass.1971). Contra, United States v. Dzialak, 441 F.2d 212 (2nd Cir. 1971), Nickens v. LaVallee, 391 F.2d 123 (2nd Cir. 1968). . Davis v. State, 499 P.2d 1025, 1037 (Alaska 1972); Bell v. State, 482 P.2d 854, 859 (Alaska 1970). . 403 U.S. 443, 469, 91 S.Ct. 2022, 29 L.Ed.2d 585. Substantial controversy surrounds this portion of the opinion, especially since Justice Stewart left ambiguous the limits of expectation which the police may possess prior to discovery. See Note, The Supreme Court, 1970 Term, 85 Harv.L.Rev. 40, 244. The California Supreme Court recently declined to follow the Ooolidge plurality's inadvertence rule, on the grounds that only four members of the Court (Stewart, J., Douglas, J., Brennan, J., and Marshall, J.) joined in that portion of the opinion. Four others specifically disagreed with it (Dis. Opin. by Black, J., joined by Burger, C. J., and Blackmun, J.; and Dis. Opin. by White, J., 403 U.S. 505-510, 522, 91 S.Ct. 2022), and Justice Harlan concurred only in the plurality's judgment but not its reasoning. 403 U.S. 491, 91 S.Ct. 2022. North v. Superior Court of Riverside County, 8 Cal.3d 301, 104 Cal.Rptr. 833, 502 P.2d 1305, 1308 (Cal.1972). . 403 U.S. 443, 472, 91 S.Ct. 2022, 2041, 29 L.Ed.2d 564, 586-587, There is a hint in Stewart's opinion that had the property been "contraband or stolen goods or objects dangerous in themselves," a different rule might have applied. . 403 U.S. 443, 469-470, 91 S.Ct. 2022, 2040, 29 L.Ed.2d 585. . 403 U.S. 443, 467-468, 90 S.Ct. 2022, 2039, 29 L.Ed.2d 564, 584. . It has been suggested that Justice Stewart's concern was really with the use of the j)lain-view doctrine as a supplement to the search incident to arrest exception to the warrant requirement. The fear is that the authorities will time arrests so that the police may have the benefit of a "view" at the time of the arrest. "This use of the arrest power for the ulterior purpose of gaining access to a person's house amounts to a planned warrantless search and seems at the heart of Justice Stewart's concern." Note, The Supreme Court, 1970 Term, 85 Harv.L.Rev. 40, 245 (1972).

10556606

Hugh MACAULEY et al., Appellants, v. Edward S. HILDEBRAND, Treasurer of the City & Borough of Juneau, Alaska, Appellee

Macauley v. Hildebrand

1971-11-30

No. 1550

120

122

491 P.2d 120

491

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:13.332373+00:00

CAP

Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, JJ.

Hugh MACAULEY et al., Appellants, v. Edward S. HILDEBRAND, Treasurer of the City & Borough of Juneau, Alaska, Appellee.

Hugh MACAULEY et al., Appellants, v. Edward S. HILDEBRAND, Treasurer of the City & Borough of Juneau, Alaska, Appellee. No. 1550. Supreme Court of Alaska. Nov. 30, 1971. Avrum M. Gross, of Faulkner, Banfield, Boochever & Doogan, Juneau, for appellants. Billy G. Berrier, City & Borough Atty., Juneau, for appellee. Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, JJ.

1180

7416

OPINION ERWIN, Justice. This appeal concerns a dispute between the Juneau School Board and the unified City and Borough of Juneau regarding which of those two bodies should have accounting control over funds appropri-áted for the operation of schools. In early 1970 a home rule charter was adopted for the borough which directed the borough assembly to make provision for centralized accounting for all borough functions, "including the education function". Acting under this authority, the assembly enacted Ordinance 70-6 which provides that "[a] 11 accounting functions for all departments, offices, agencies, including the education function are centralized in the Department of Administration and Finance." The accounting function, which apparently allows some control over the expenditure of school money, had previously been performed by the school district. The borough made demand on the school board to comply with the ordinance and the board refused, relying on AS 07.15.-330(c) which provides in part: When the borough school board by resolution consents, the borough assembly may by ordinance provide a centralized accounting system for school and all other borough operations, (emphasis added) The school board has never adopted a resolution consenting to centralized accounting. Subsequently, the school board was advised by the clerk of the borough that after September 1, 1970, no further vouchers prepared by the school district accounting staff would be honored. On September 3, 1970, the school board initiated this action seeking a permanent injunction prohibiting the borough from rejecting properly verified vouchers received from the school board. On June 29, 1971, the superior court, by summary judgment, denied the claim for relief We reverse. The sole issue both at trial and on appeal can be simply stated: May a home rule borough require its school system to participate in centralized accounting without the statutorily required approval of the school board? We are thus presented with an issue as to the validity of a home rule borough ordinance which conflicts with a state statute. In Lien v. City of Ketchikan, 383 P.2d 721 (Alaska 1963), we recognized that under the Alaska Constitution home rule municipalities have broad governmental powers and refused to void a lease of municipal property even though the city had not complied with a general state statute regarding such leases. Lien, however, dealt with a matter of purely local concern, the leasing of municipal property. That the scope of home rule power to act in conflict with state legislation is not without limit was shown by our recent decision in Chugach Electric Ass'n v. City of Anchorage, 476 P.2d 115 (Alaska 1970). There we held that a building permit ordi nance under which the City of Anchorage, a home rule municipality, denied an electric cooperative a permit to extend its services would have to yield to the State Public Service Commission's determination that electric cooperatives could operate within the area. In Chugach we adopted the "local activity rule" as "an expedient method for resolving an impasse between state statutes which seek to further a specific policy and municipal ordinances which either directly or collaterally impede this implementation." 476 P.2d at 122. Thus, the determination of whether a home rule municipality can enforce an ordinance which conflicts with a state statute depends on whether the matter regulated is of statewide or local concern. The distinction is exemplified by Chugach and Lien. In Chugach we found that the denomination of service areas where a public utility could operate was a matter of statewide concern; in Lien, on the other hand, we were dealing with a city's power to lease municipal property, clearly a matter of local concern. The outcome of the local activity test in the case at bar is dictated by Article VII, Section 1 of the Alaska Constitution : The legislature shall by general law establish and maintain a system of public schools open to all children of the State This constitutional mandate for pervasive state authority in the field of education could not be more clear. First, the language is mandatory, not permissive. Second, the section not only requires that the legislature "establish" a school system, but also gives to that body the continuing obligation to "maintain" the system. Finally, the provision is unqualified; no other unit of government shares responsibility or authority. That the legislature has seen fit to delegate certain educational functions to local school boards in order that Alaska schools might be adapted to meet the varying conditions of different localities does not diminish this constitutionally mandated state control over education. This case is reversed and remanded to the superior court with instructions to enter judgment for appellants. . The relationship between the borough and the school board is set out in AS 07.15.330 (a) as follows: Each organized borough constitutes a borough school district and the first and second class borough shall establish, maintain, and operate a system of public schools on an areawide basis. The statute also provides that the borough assembly may require that all school money be deposited in a centralized treasury with other borough money, to be managed by the borough chairman. AS 07.15.330(b). This action has been taken in Juneau. . The superior court judge reasoned that since the state legislature had delegated so much of the education function to local units of government, the traditional local-statewide activity dichotomy employed in Chugach Electric Ass'n v. City of Anchorage, 476 P.2d 115 (Alaska 1970), was not controlling. Moreover, he stated that it would be "inherently divisive and frustrating" to recognize autonomous powers over accounting in a subordinate .branch of government. He therefore ruled that the limiting language of AS 07.15.330(c) should only apply to general law municipalities. .Art. X, § 11, provides: A home rule borough or city may exercise all legislative powers not prohibited by law or by charter. . The borough's arguments that Art. X, § 11 of the Alaska Constitution gives home rule municipalities broad powers in areas not strictly of local concern and that any legislation restricting the power of home rule cities must be specifically labeled as doing so, were both considered and rejected in Chugach. 476 P.2d 120, 122-123. . Although we need not analyze whether education is a matter of statewide or local concern, we note that the more persuasive authority holds that education is a matter of statewide concern. See, e. g., Board of Educ. of City of Minneapolis v. Houghton, 181 Minn. 576, 233 N.W. 834 (1930): Carlberg v. Metcalfe, 120 Neb. 481, 234 N.W. 87 (1930); State ex rel. Harbach v. Mayor etc. of City of Milwaukee, 189 Wis. 84, 206 N.W. 210 (1925) ; 16 McQuillan, Municipal Corporations § 46.-02, at 688-89 (3d ed. 1963). .The state supplies a minimum of 90% of school operating funds. AS 14.17.021 (c) (5).

10564127

George Raymond DASH and Delores Viola Dash, Appellants, v. STATE of Alaska, Appellee

Dash v. State

1971-12-17

No. 1405

1069

1078

491 P.2d 1069

491

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:13.332373+00:00

CAP

Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, JJ-

George Raymond DASH and Delores Viola Dash, Appellants, v. STATE of Alaska, Appellee.

George Raymond DASH and Delores Viola Dash, Appellants, v. STATE of Alaska, Appellee. No. 1405. Supreme Court of Alaska. Dec. 17, 1971. Richard F. Lytle, of Houston & Lytle, Anchorage, for appellants. John E. Havelock, Atty. Gen., Juneau, Richard P. Kerns, Asst. Atty. Gen., Anchorage, for appellee. Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, JJ-

5464

33637

OPINION ERWIN, Justice. This appeal arose out of an action in eminent domain brought by the State of Alaska on April 16, 1968, to condemn property owned by appellants, Mr. and Mrs. Dash, near Anchorage. The land was condemned in order for the State Highway Department to extend C Street south to International Airport Road as part of the state's secondary highway system. The property in question is a parcel containing 38.46 acres located on the north side of International Airport Road at C Street extended. The right-of-way condemned is a strip running north-south containing about 5.841 acres, which bisects the Dash property. The property was zoned "unclassified" and except for a small house was unimproved. A good deal of commercial and industrial development was taking place in the neighborhood. At trial both parties presented expert testimony on the just compensation for the property taken. Using the "market data" approach (sales of similar property), appellants' witnesses testified respectively that just compensation would amount to $115,700 ($76,068 for the portion taken, plus damages to the remainder) and $129,104 ($76,184 for the portion taken, plus damages to the remainder). In addition, appellants introduced evidence of sales of a neighbor's property which was made subject to an approved subdivision plan being filed. Appellants argue that these sales fix the fair market value of the land taken at $72,611. The state presented expert testimony by a civil engineer on the cost of a proposed industrial subdivision plan alleged to be the highest and best use of the land. A real estate appraiser called by the state gave his opinion as to the just compensation based on both the "market data" and "anticipated use" or "development" methods of appraisal. This latter witness testified using the market data approach that the difference in market value of the entire parcel before and after the taking was $21,000, that there were benefits but no damages to the remainder, and that the market value of the part taken was $39,692. This same witness, using the anticipated use or development method, and relying on the discounted proceeds expected from future sales, testified over an objection based on the "speculative nature" of the evidence that the difference in market value of the full parcel before and after the taking was $12,000, and that there were benefits but no damages to the remainder. He indicated that the value of the part taken was $29,769. Giving greater weight to the market data approach, the witness arrived at a final estimate of just compensation of $40,000. The jury was apparently impressed with the expert's testimony, arriving as it did at a verdict of $40,000. The verdict was a lump-sum verdict, however, and it is therefore impossible to discover whether the jury agreed with the state's expert that there was no injury to the remainder of the land. Appellants moved for judgment notwithstanding the verdict and for a new trial. Both motions were denied by the trial court. This appeal followed. Appellants raise, in one fashion or another, four basic claims: (1) The admission into evidence of expert testimony by the state's witnesses regarding the cost of developing an industrial subdivision alleged by the state to be the "highest and best use" of the condemned land, and relative to the "capitalization" of future proceeds to be derived from the sales of the subdivided land was error. (2) The admission of evidence of a sale of property that took place 15 months after the taking of appellant's property on the issue of market value was error. (3) Instruction No. 14A which placed the burden of proof as to fair market value on the defendant landowner was improper. (4) The denial of appellants' motion for judgment notwithstanding the verdict based on evidence of a sale of neighboring land of similar acreage at almost double the amount of the verdict, and the denial of the motion for a new trial were an abuse of discretion. 1. Admission of Expert Testimony on Market Value Based on the Development Costs and Income Capitalization of a Potential Subdivision. Although there is substantial case authority either entirely excluding evidence of a possible subdivision of condemned land or disallowing consideration of the capitalization of future profits on the issue of market value, we think the sounder view favors admission for several reasons: (1) Such evidence is highly relevant on the issue of market value; (2) it is accepted practice among professional real estate appraisers to consider the above as indicators of market value; and (3) it is undesirable for this court to severely restrict the role of the expert witness in eminent domain cases by delineating strict testimonial boundaries. Real estate appraisers usually approach land valuation problems by utilizing three approaches to "value" either singly or in combination. They are the cost approach, the market data approach, and the income approach. The cost approach, which arrives at value by determining the current cost of reproducing a property less depreciation, is used only when the property is improved. The market data approach measures value by comparison to recent sales of similar property. The income approach, which is concerned with the present worth of future benefits from the property, arrives at present value by discounting or "capitalizing" the future income which could be derived from the property. The income capitalization method involves three steps: (1) an estimate of the income which the property is capable of producing, including both periodic income and the income to be derived from future sale of the property; (2) an estimate of the rate of return (capitalization rate) an investor would require in order to induce him to make an investment with the risk and lack of liquidity of an equity interest in the particular property; (3) an application of this capitalization rate to the estimated income to derive the present value of the estimated income. (Footnotes omitted) The estimate of the state's expert in this case was based on the discount of proceeds from future sales, an approach usually referred to as the "anticipated use" or "development" method of appraisal. Although technically the anticipated use method may be regarded as distinct from income capitalization since sale proceeds are "discounted" rather than "capitalized", the two approaches are closely related; both methods involve a reduction of anticipated future receipts to their present worth. We note that several legal authorities have used the term "income capitalization" to include the discounting of sale proceeds, and we will use the term in this broader sense in this opinion. Briefly, the nature of the testimony objected to was as follows: Mr. Chapman, a civil engineer and expert in land development, testified in detail as to the layout and development costs of industrial subdivisions on the Dash property before and after the taking. Mr. Potts, an eminently qualified expert in real estate appraisal, then testified as to the value of the property using the market data and anticipated use approaches. As noted above, using the market data approach he found the difference in the before and after market value of the whole parcel to be $21,000, and the value of the part actually taken to be $39,629; the anticipated use approach, dn the other hand, yielded figures of $12,000 and $29,769, respectively. He found nondeductible benefits but no severance damages to the remainder under both approaches. Mr. Potts' anticipated use methodology was as follows: Based on his analysis of the Anchorage real estate market and the neighborhood, he determined that it would take approximately five years for the Anchorage market to absorb all the lots when subdivided into their most marketable size. He then estimated the market value of each of the individual lots from appropriately adjusted market data,, and determined the order in which they would probably sell over the five-year period. Next, using cost data supplied by Mr. Chapman, he subtracted development costs for each of the five years to arrive at the net income for each year. The total net income was then "capitalized" into its present value by estimating the rate of return anticipated by Anchorage-area investors. Mr. Potts determined that real estate investors in the area expect a minimum return of 20% per year so that over a five-year interval an investor would double his investment. Since the lots would take an estimated five years to be sold, an investor would pay only one-half the anticipated net income; the net income was therefore "capitalized" into present market value by dividing it in half. This was done in both the "before" and "after" situations. Appellant argues that this evidence was "speculative", that it was prejudicial since it "presented a picture to the jury that the land taken had done [sic] no damage to the remainder and. that appellants had only suffered a loss of $12,000", that legal authority forbids consideration of estimates based on the profits of a speculative enterprise, and that it was improper to discount anticipated profits to their present value. Although it is standard economic theory that the present value of any asset may be measured by capitalizing the net income which it can be expected to yield through its most profitable use, the courts have displayed considerable reluctance to admit this type of evidence. Nichols, for example, states: A valuation based upon an estimate of the potential income which might be realized from a utilization by the owner of the property in a manner of which it is capable, but of which he has not yet availed himself, has been generally rejected on the ground that such income is too uncertain and conjectural to be acceptable. (Citing cases) The following passage, again from Nichols, is illustrative of the attitude of many courts: [Although the owner may introduce evidence of the highest and best use of the land he] cannot, however, go further and describe in detail to the jury a speculative enterprise for which in his opinion (or that of some expert) the land might be used, and base his estimate of value upon the profits which he would expect to derive from the enterprise. In other words, he cannot capitalize the projected earnings of a nonexistent enterprise or projected use. The owner cannot, for example, introduce evidence of the return that he would derive from cutting up a vacant tract of land into building lots, since this would involve pure conjecture as to how fast the lots would be sold, and the price that each would bring. . . . The trial court cannot be too careful in excluding evidence of this character, as witnesses can always be found who will, in their imagination, cover the most hopelessly unmarketable vacant land in the neighborhood with apartment houses. . . (footnotes omitted) It is widely accepted, however, that in determining just compensation, usually measured by the "market value" of the property, the highest and most profitable use for which the land is adaptable may be considered to the extent that the prospective demand for such use affects the property's present market value. Thus, many courts, including Alaska's, have allowed evidence of a reasonably probable subdivision to be admitted to prove the adaptability of the land for subdivision use. Several cases have also held it is proper for condemning authorities to introduce such evidence in order to reduce damages by showing the increased adaptability for subdivision purposes. Many cases, however, have held that evidence of a subdivision, even if admissible to prove the adaptability of the land for subdivision purposes, is not admissible to show the value of individual lots on the ground that this would give the jury a false sense of value and lead to excessive damages. A truly speculative or imagined use should not be considered, however, and the courts are much more liberal in admitting evidence of a potential subdivision when some preliminary steps have been taken to develop the land. Still, a number of cases take the extreme position that even when no steps have been taken to develop a subdivision, evidence of the number and value of the individual lots may be shown. Thus, in summary, while there is a considerable split of authority, the majority of courts allow evidence of a potential subdivision only for the limited purpose of showing the adaptability of the land for subdivision purposes. One court, however, has concluded that much of the authority against the admission of best use income capitalization evidence can be distinguished on the ground that in those cases the only showing was that the property could have been so subdivided, not that such development was reasonably probable. The state places considerable reliance on the case of Iske v. Metropolitan Utilities District of Omaha, 157 N.W.2d 887 (Neb.1968), which held that an expert's testimony which capitalized the anticipated rentals from a proposed recreational subdivision to arrive at an estimate of fair market value was properly admitted. We cited this case with approval in State v. 7.026 Acres, 466 P.2d 364 (1970), as authority for admitting a proposed subdivision plat.* The holding in Iske is not in any way restrictive because the plan the expert introduced required that a large amount of gravel be removed and a lake created before the recreational lots could be platted. We find Iske persuasive. Since there was testimony below that the highest and best use of the property was as an industrial subdivision, and evidence that other property in the immediate area was subdivided for industrial purposes, the proposed subdivision was not purely conjectural or speculative. If the land were adaptable for subdivision purposes, it would seem that the potential income to be derived from sales of the subdivided lots would be highly relevant to a determination of the "market value", especially to the extent that sophisticated investors who make decisions on the basis of income capitalization take part in market transactions.* Moreover, the estimates of sale prices for individual lots were properly discounted to show present value as affected by their development potential. Finally, two important factors tended to increase the reliability of the "best use" evidence as introduced at the trial below. First, the evidence concerned proceeds from a future sale of the land itself, and not the impact the income from a non-related business venture conducted on the land might have on the market value — the latter necessarily being much more speculative in nature. Second, the evidence was not presented to the jury for its uninstructed consideration, but was part of an expert's appraisal prepared pursuant to accepted appraisal practices and carefully explained to the jury. We note that capitalization of income, in contexts other than proposed subdivisions, has been recognized as an accepted method of valuation by a number of jurisdictions. Although capitalization of anticipated proceeds from a proposed subdivision necessarily has a speculative element, it still has a direct impact on the property's market value since it will influence investment decisions and thereby affect supply and demand. Further, to the extent that the "just compensation" guarantee in article I, section 18, of the Alaska Constitution com prises a notion of fair market value rather than merely the price the property will bring in an imperfect market, income capitalization must be considered particularly apposite. One authority expressed the difference between value and price as follows: The essential difference between market price and market value . . . lies in the premises of intelligence, knowledge and willingness, all of which are contemplated in market value but not in market price. Stated differently, at any given moment of time, market value connotes what a property is actually worth and market price what it may be sold for. Thus, even in a market where a parcel's price is unaffected by its income potential, income capitalization must be considered to have a bearing on "market value". The danger that market price will not closely reflect market value is enhanced when the property is not currently generating income. It is significant that the method of valuation used by Potts has been recognized by the American Institute of Real Estate Appraisers. Indeed, income capitalization in general and the anticipated use or development method in particular are standard appraisal practices. It would be unwise for us to require exclusion of such a widely-recognized method of valuation through unduly rigid evidentiary rules. This leads us to a further consideration: the role of the expert witness in eminent domain proceedings. The passages quoted earlier from Nichols are illustrative of a judicial attitude which led one commentator to remark: [Tjhe thrust of the rules of evidence has been towards exclusion, with the result that most of the economic factors normally considered in valuation by both experts and nonexperts, is [sic] not admissible evidence. This is unfortunate, for though the field is indeed a complicated one, the exclusion of relevant facts does not enable the trier of fact to reach a just or sensible result. ; The Pennsylvania Legislature, reacting against this exclusionary tendency, enacted the 1964 Eminent Domain Code which significantly modified the evidentiary rules in eminent domain proceedings: (1) A qualified valuation expert may, on direct or cross-examination, state any or all facts and data which he considered in arriving at his opinion, whether or not he has personal knowledge thereof, and his statement of such facts and data and the sources of his information shall be subject to impeachment and rebuttal. (2) A qualified valuation expert may testify on direct or cross-examination in detail as to the valuation of the property on a comparable market value, reproduction cost or capitalization basis. . (Emphasis added) As stated by the Joint State Government Commission's 1964 Report, the main pur pose of the Pennsylvania legislation was to: [Cjhange and broaden existing law which unduly limits the examination and cross-examination of an expert witness, so as to permit the expert witness to testify on direct as well as cross-examination, to any and all matters which he considered (not necessarily 'relied on') in arriving at his opinion of damages. Under existing law . . . the expert is unduly limited as to what he may testify to, and as a consequence, he cannot show his competence or what perhaps is more important, his lack of competence. We feel that the Pennsylvania statute evidences a much sounder view of the expert's role in eminent domain proceedings than does the "majority rule" as articulated by Nichols. A comment in the Washington Law Review describes the appraisal profession as dynamic, developing and the chief contributor to value determinations made by courts. The comment recommended that the courts permit expert witnesses to testify about all matters considered by them in arriving at their valuation opinions because: (1) The trier of fact must rely on the experts' analyses of the valuation problem in order to identify and analyze the data required to make a fully considered determination of market values; (2) The court cannot assure the trier of fact that an expert valuation witness is competent and honest by use of restricted rules of qualification of experts or admissibility of testimony; and (3) Thorough and knowledgeable examination and cross-examination would better provide the trier of fact with adequate information to weigh the opinions of opposing experts. Regarding the last factor, it is interesting to note that appellants' cross-examination of the state's witness Potts covered 76 pages of the transcript. As the Washington Law Review Comment points out, a liberal and flexible consideration of expert appraisal testimony will both encourage the development of expertise among the expert witnesses and make possible the full utilization of that expertise by the courts in determining just compensation. Finally, for this court to apply the restrictive rules judicially adopted elsewhere to limit expert testimony would invade the traditional province of the jury as trier of fact to weigh the credibility of the expert witness; it would be inappropriate for this court to do so under the guise of a ruling on the admissibility of evidence of properly discovered anticipated proceeds from a proposed subdivision. One other related matter was raised by appellants which deserves brief mention at this point. The appellants make the following argument: The state's testimony by applying the interest rate to the development costs and management costs and then reducing them to what a purchaser would pay at the date the state took the property has in reality reduced the profits that a prospective purchaser could expect in five years to their present worth. The reduction to present worth has been rejected by the Alaska court in Beaulieu v. Elliott, 434 P.2d 665 [(1967)], [Leavitt v. Gillaspie, 443 P.2d 61 (1968)], in recognition of their continuing inflation. Both Beatdieu and Leavitt involved a reduction to present worth of future earn ings in personal injury actions and are in no way relevant to the case before the court. Further, it is clear that a failure to discount future proceeds in eminent domain cases would lead to a grossly exaggerated valuation. 2. Admission Into Evidence of a Sale Taking Place Fifteen Months After The Date of the Taking by the State. Appellants argue that evidence of a sale of property which took place one year and three months after the date the Dash's property was condemned was improperly admitted because in effect the trial court is holding that a reasonable person in April, 1968, would know and take into consideration what property was going to sell for in July, 1969. This would then give the theoretical reasonable man the power to see the future. . . . The allowance of such a rule will tend to prolong the time of trial, since one side or the other, depending on the real estate market, will be trying to forestall the trial to allow their position to be improved. One authority states the rule to be that whether there is sufficient similarity between the property taken and the comparable sale property is generally left to the sound discretion of the trial judge. A sale within a year is usually admitted as a matter of course, and the courts, generally make no distinction between. sales occurring before and sales occurring after the taking. In State Kobayashi v. Heirs of Kapahi, 48 Hawaii 101, 147, 395 P.2d 932, 939 (Hawaii 1964), the court said: From the foregoing authorities emerge the following applicable principles: Where evidence of a comparable sale or lease is offered, the trial judge may, in his discretion, admit or' exclude it considering such factors as time of the transaction, size, shape and character of the comparable land, and whether there has been any enhancement or depression in value. It makes no difference whether the transaction occurred before or after the date of condemnation so long as it is not too remote a period of time and the land is reasonably comparable, having been neither enhanced or decreased in value by the project or improvement occasioned in the taking. The weight to be given such evidence is for the jury. The trial judge's determination as to admissibility or nonadmissibility of such evidence will not be upset on appeal unless it is a clear abuse of discretion. Within fairly broad limits any dissimilarities between the properties should go to the weight of the evidence rather than to its admissibility. Although the sale of Parcel 5A took place fifteen months after the date of the taking, it was located next to the condemned parcel, had similar topography, and also fronted on International Airport Road. Under these circumstances, the trial judge did not abuse his discretion in ruling that the sale was admissible as a comparable sale. 3. Instruction 14A Regarding Burden of Proof. The court instructed the jury that: [T]he burden of proof in this case rests upon the defendants, the landowners, to prove the compensation and damages to which they may be entitled. This instruction was not objected to by the appellants at trial. Although State v. 45,621 Sq. Feet of Land, 475 P.2d 553 (Alaska 1970), decided after the trial below, overturned the old burden of proof rule, appellants' failure to object precludes consideration of this matter on appeal. 4. Denial of Appellants' Motion for Judgment Notwithstanding the Verdict and for a New Trial. Appellants argue on the basis of the sale of a neighbor's property that the fair market value of the land taken was $72,611, and that they are entitled to judgment notwithstanding the verdict in that amount. This contention is without merit. In Long v. Newby, 488 P.2d 719, 722 (Alaska 1971), this court reaffirmed the rule of Snipes v. March, 378 P.2d 827, 828-829 (Alaska 1963), that where the evidence is such that fair-minded men in the exercise of reasonable judgment could differ on the question of fact to be determined, then the matter should be submitted to the jury and it would be error to grant judgment notwithstanding the verdict. Here, there was substantial evidence which, considered in the best light for appellee, supported the jury verdict of $40,000. Regarding the motion for a new trial, the rule stated in Ahlstrom v. Cummings, 388 P.2d 261, 262 (Alaska 1964), and approved in State v. 45,621 Sq. Feet of Land, supra, is: The matter of granting or refusing a new trial rests in the sound discretion of the trial judge. We shall not interfere with the exercise of his discretion except in the most exceptional circumstances and to prevent a miscarriage of justice. Here, the jury verdict was not clearly unjust and was within the range of testimony offered. It was not error for the trial judge to deny the motion. Finally, appellants make the following cursory argument: Thus, in addition, the Appellants are entitled to receive any damages to the remaining portion of the property, less special benefits. Since the jury made no determination as to this point, the court can decide on this point or remit for a new trial. There is no indication in appellants' brief that an objection was made to the form of the verdict, no authority is cited, and there is no error assigned in the points on appeal. We deem the point waived. The judgment of the trial court is affirmed. . American Institute of Real Estate Appraisers, The Appraisal of Real Estate, 60-67 (5th ed. 1967) ; 7 Nichols, Eminent Domain § 4.08(4) at 4-31 to 4-35 (Rohan & Ruskin ed., 3d ed. 1971). . Comment, Valuation of Real Property — • Role of the Expert Witness, 44 Wash.L. Rev. 687, 698 (1969) (paraphrasing a number of appraisal texts). See also Schmutz, Condemnation Appraisal Handbook 42-47 (1963). . Appraisal of Real Estate, n. 1, supra, at 119, 126-28. . See Comment, 44 Wasli.L.Rev. 687, 698, quoted in text at note 2, supra; 5 Nichols, Eminent Domain § 18.11 [a] at 18-54 through 18-57 (Sackman ed. 3d ed. 1969), quoted in text at note 8, infra. . As will appear below, the sale proceeds were anticipated by the expert to come in over a five-year period; consequently these. proceeds might well be regarded as a flow of periodic income. Thus, the expert used the phrase, "the resulting cash flow or net income from sales is capitalized into value . . .", in his report to describe his "anticipated use" approach. . The rule in Alaska is that special benefits to the remainder can only be used to offset severance damages to the remainder. In the event that special benefits exceed severance damages, the landowner is still entitled to receive the full market value of the portion actually taken. AS 09.55.310. . Although this case has an unusual twist in that it is the condemning authority rather than the landowner who is seeking to introduce evidence of income eap-italization, the basic issue and arguments involved remain the same in either situation. . See 1 Orgel, Valuation Under Eminent Domain § 155 (2nd ed. 1953). . 4 Nichols, Eminent Domain § 12.512 [2] at 112 (Saekman ed., 3d ed. 1962). See also id. at § 12.3121 [3], 122-26. . 5 Nichols, Eminent Domain § 18.11 [2] at 18-54 through 18-57 (Saekman ed., 3d ed. 1969). . This court in State v. 7.026 Acres, 466 P.2d 364 (Alaska 1970), determined that fair market value was an appropriate measure of the just compensation guaranteed by Alaska Const. Art. I, § 18. . Id. at 366; Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 78 L.Ed. 1236 at 1244 (1934) ; 26 A.L.R.3d 780-847 (1969). . State v. 7.026 Acres, 466 P.2d 364, 367 (Alaska 1970), (citing Iske v. Metropolitan Utilities District of Omaha, 183 Neb. 34, 157 N.W.2d 887 at 892 (Neb.1968)). In that case the introduction of a plat of a proposed subdivision by the landowner was held proper. . People ex rel. Dept. of Public Works v. Silveira, 236 Cal.App.2d 604, 46 Cal.Rptr. 260, 276-277 (1965) ; Flynn v. Commonwealth, Dept. of Highways, 428 S.W.2d 24, 26 (Ky.1968) ; 26 A.L.R.3d 780, 780-792 (collecting cases). . State By and Throughout State Highway Commission v. Bailey, 212 Or. 261, 319 P.2d 906 (1957) ; Aycock v. Houston Lighting & Power Co., 175 S.W.2d 710, 715 (Tex.Civ.App.1943). . See, e. g., Northern Indiana Public Service Co. v. McCoy, 239 Ind. 301, 157 N.E.2d 181 (Ind.1959). . It has been held error, for example, to allow testimony that "it might be possible that it would be a subdivision out there." Georgia Power Co. v. Livingston, 103 Ga.App. 512, 119 S.E.2d 802 (Ga.App.1961). . See cases collected in Annot., 26 A.L.R. 3d 780 at 811-827 (1969). . United States v. Waterhouse, 132 F.2d 699 (9th Cir. 1943), aff'd without opinion by an equally divided court, 321 U.S. 743, 64 S.Ct. 484, 88 L.Ed. 1047 (1943) ; State Highway Dept. v. Wells, 102 Ga.App. 152, 115 S.E.2d 585, 586- 587 (1960) ; State Through Dept. of Highways v. Riley, 148 So.2d 396, 398 (La.App.1962) ; Tulsa v. Biles, 360 P. 2d 723 (Okla.1961). . Iske v. Metropolitan Utilities Dist. of Omaha, 157 N.W.2d 887 (Neb.1968). . Id. at 900-901. . See Hodges, Income Capitalization for Investor Clients, 36 Appraisal J. 175 (1968), cited in, Comment, Valuation of Real Property — Role of the Expert Witness, 44 Wash.L.Rev. 687, 699 (1969). .Burritt Mut. Savings Bank of New Britain v. City of New Britain, 20 Conn. Sup. 476, 140 A.2d 324, 326 (1958) (tax appraisal case containing detailed description of income capitalization method) ; Golden Gate Corp. v. Providence Redevelopment Agency, 260 A.2d 152, 154 (R.I.1969) ; State v. Heltborg, 140 Mont. 196, 369 P.2d 521, 523 (1962) ; Salt Lake County v. Kazura, 22 Utah 2d 313, 452 P.2d 869, 870-871 (Utah 1969). . American Institute of Real Estate Appraisers, Appraisal Terminology & Handbook, 131 (5th ed. 1967). . In State v. 7.026 Acres, 466 P.2d 364 (Alaska 1970), this Court said "[o]ne criterion for determining value is what the property is worth on the market— its fair market value, and this is to be determined by a just consideration of all the uses for which the property is suitable." Other courts have recognized that just compensation may involve more than mere market price, however. See Comment, Valuation of Real Property — Role of the Expert Witness, 44 Wash.L.Rev. 687, 689-90 (1969). . See American Institute of Real Estate Appraisers, Appraiser of Real Estate 60-67, 119, 126-28 (5th ed. 1967). Extensive sections of this work are quoted verbatim in the state's brief at 24-26 and we will not elaborate further. . See generally Comment, Valuation of Real Property — Role of the Expert Witness, 44 Wash.L.Rev. 687 (1969). . Snitzer, Valuation Evidence in Pennsylvania Eminent Domain Cases, 35 Temple L.Q. 386, 400 (1962). . Pa.Stat.Annot. Title 26, § 1-705 (Pur-don Supp. 1969), quoted in 44 Wash. L.Rev. 686, 700. . Pa.Stat.Annot. Title 26, § 1-705, Comment, Joint State Government Commission, 1964 Report (Purdon Supp.1969), quoted in 44 Wash.L.Rev. 687, 701. . Comment, Valuation of Real Property — Role of the Expert Witness, 44 Wash.L.Rev. 687, 715 (1969). The profession has extensive basic literature, several well-established periodicals, and seems to be moving toward a greater utilization of modern data processing techniques and computer systems. Id. at 699-700, n. 58. . Id. at 715. . Id. . See State v. Phillips, 470 P.2d 266, 272 (Alaska 1970). . See text accompanying note 2, supra; American Institute of Real Estate Appraisers, Appraisal of Real Estate, 126-28 (5th ed. 1967). . 1 Orgel, Valuation Under Eminent Domain, § 138-139 (2nd ed. 1953). . See also 5 Nichols, Eminent Domain, § 21.31 [2] at 21-70 to 21-81 (Sackman ed., 3d ed. 1969). . See, e. </., Ramming Real Estate v. United States, 122 F.2d 892 at 895 (8th Cir. 1941). . See Alaska State Housing Authority v. Vincent, 396 P.2d 531 (Alaska 1964). . Otis Elevator Co. v. McLaney, 406 P.2d 7, 9 (Alaska 1965). . See Alaska State Housing Authority v. Vincent, 396 P.2d 531, 535-536 (Alaska 1964). . Supr.Ct.R. 11(a).

10556701

STATE of Alaska, Appellant, v. Colleen REDMAN, Appellee

State v. Redman

1971-11-30

No. 1431

157

159

491 P.2d 157

491

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:13.332373+00:00

CAP

Before BONEY, C. J., and RABINO-WITZ, CONNOR and ERWIN, JJ.

STATE of Alaska, Appellant, v. Colleen REDMAN, Appellee.

STATE of Alaska, Appellant, v. Colleen REDMAN, Appellee. No. 1431. Supreme Court of Alaska. Nov. 30, 1971. John E. Havelock, Atty. Gen., Juneau, Stephen Cooper, Dist. Atty., Lyle R. Carlson and William Christian, Asst. Dist. Attys., Fairbanks, for appellant. Joseph W. Sheehan, Rice, Hoppner, Blair & Associates, Fairbanks, for appel-lee. Before BONEY, C. J., and RABINO-WITZ, CONNOR and ERWIN, JJ.

1209

7402

OPINION RABINOWITZ, Justice. Colleen Redman brought a declaratory judgment action in which she also sought compensatory damages from the State of Alaska. Redman prevailed below where a partial summary judgment was entered in which the trial court held that Redman was a tenured teacher who had been improperly dismissed. We affirm. Alaska's Education Code provides that a teacher acquires tenure rights when he: (a) (1) possesses a standard teaching certificate; (2) has been employed as a teacher in the same district continuously for two full school years and is re-employed for the school year immediately following the two full school years. (b) The tenure rights acquired under (a) of this section become effective on the first day the teacher performs teaching services in the district during the school year immediately following the two full school years. In July of 1967 Colleen Redman was hired by Alaska's Department of Education as a Home-School Coordinator under the Boarding Home Program in Fairbanks. Memoranda of Agreements were initially used to hire Redman for the period covering August 1, 1967, to October 31, 1967, on a half-time basis. Then on November 1, 1967, the Department of Education and Redman entered into a contract in which it was agreed that she would work the remainder of the school year on a halftime basis. Pursuant to this latter contract, Redman was considered a teacher and was given a provisional teaching certificate retroactively dated to September 1, 1967. Subsequently Redman was hired on a full-time basis as a Home-School Coordinator for the 1968-69 and 1969-70 school years. During this period Redman obtained a standard teaching certificate. The state concedes that Redman's employment during the 1968-69 and 1969-70 school years qualifies towards attainment of tenure rights, but disputes Redman's contention that her employment for the 1967-68 school year can be counted towards fulfillment of the two full school years prerequisite established by AS 14.-20.150(a) (2). The crux of the position of the state Board of Education is that Colleen Redman was not continuously employed for two full years as required by subsection 2 of AS 14.20.150(a) because she only worked half days during the school year 1967-68. We fail to find any provision of our statutes concerning education which requires, or to perceive of any persuasive policy reasons why, a teacher must work full days throughout the school year in order to attain tenure rights. No legislative intent to exclude a teacher who works less than full days is manifest from our study of the applicable statutes. We think the reasoning of the court in Sherrod v. Lawrenceburg School City, 213 Ind. 392, 12 N.E.2d 944 (1938), is persuasive and dispositive of the state's argument that a teacher must be a full-time teacher in order to attain tenure under AS 14.20.-150(a) (2). In that case it was contended that tenure was not achieved because the teacher was a part-time teacher who did not teach classes every day, but only taught twelve school days in each month. In rejecting this position, the court in Sherrod said: There can be no merit in this contention. She was not an occasional teacher, who taught intermittently as a substitute or otherwise. She was a regular teacher. The law does not require that teachers shall teach every day, or every hour of every day. Such subjects as art or music may require fewer hours of teaching. This is in the discretion of the school authorities. But appellant was undoubtedly regularly employed, teaching the same subject a given number of days per month, over a period of years, and must be considered a regular teacher. Since Colleen Redman worked continuously throughout the full 1967-68 school year, we hold that the fact that she was employed half time did not make that year's employment incompetent for purposes of acquisition of tenure rights. Tenure laws are intended to give job security to experienced teachers and to ensure that they will not be discharged for inadequate reasons. A system of tenure has as its objective the retention of able personnel after they have undergone an adequate period of probation with the concomitant result that more talented personnel will be attracted to enter the teaching profession. McSherry v. City of St. Paul, 202 Minn. 102, 277 N.W. 541 (1938). In the case at bar Redman fulfilled, her duties during the 1967-68 school year on a regular basis. Her employment during this first school year and her full-time employment during the ensuing full 1968-69 school year afforded the Board of Education an adequate opportunity to observe the quality of her performance. Redman's situation is analogous to that of a music or art teacher who, because of the specialized nature of his skills, may teach less than a full school day. When such a teacher's duties are regular and substantial enough to afford intelligent evaluation, we perceive little in the way of persuasive policy considerations for excluding such service from the ambit of our tenure laws. We therefore hold that by virtue of her employment during the full school years 1967-68, 1968-69, Colleen Redman attained tenure rights, and that the Department of Education's attempt to dismiss her in June of 1970 was ineffectual under our statutes. The declaratory judgment of the superior court is affirmed and the case remanded for determination of the damages issues.' . AS 14.20.150. . Tlie Department of Education required that anyone holding the position of Home-School Coordinator have a teaching certificate. .AS 14.20.207 broadly defines the term "teacher" as a person serving in a teaching, counseling, or administrative capacity and required to be certificated in order to hold the position. . 12 N.E.2d at 944-945. See also State ex rel. Saxtorph v. District Court, Fergus County, 128 Mont. 353, 275 P.2d 209, 215-216 (1954). . AS 14.20.140(a) provides: If a teacher who has acquired tenure rights is not to be retained for the following school year, the employer shall notify the teacher of the nonretention by writing, delivered before March 16, or by registered mail postmarked before March 16. Regarding the failure to give notice in accord with the foregoing, AS 14.20.145 provides: If notification of nonretention is not given according to § 140 of this chapter a teacher is entitled to be reemployed in the same district for the following school year on the contract terms the teacher and the employer may agree upon, or if no terms are agreed upon, the provisions of the previous contract are continued for the following school year, subject to § 158 of this chapter. The right to be re-employed according to this section expires if the teacher does not accept re-employment within 30 days after the date on which the teacher receives his contract of re-employment. .This appeal is not from a final order or judgment. We have decided to review the matter under the authority of Braund, Inc. v. White, 486 P.2d 50, 53 (Alaska 1971).

10562178

Steven Eugene PETERSON, Appellant, v. STATE of Alaska, Appellee

Peterson v. State

1971-07-29

No. 1432

682

683

487 P.2d 682

487

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:16.911957+00:00

CAP

Before BONEY, C. J., and RABINO-WITZ, CONNOR and ERWIN, JJ.

Steven Eugene PETERSON, Appellant, v. STATE of Alaska, Appellee.

Steven Eugene PETERSON, Appellant, v. STATE of Alaska, Appellee. No. 1432. Supreme Court of Alaska. July 29, 1971. Herbert D. Soli, Public Defender, Meredith A. Wagstaff, Asst. Public Defender, Anchorage, for appellant. John E. Havelock, Atty. Gen., Juneau, Harold W. Tobey, Dist. Atty., Charles M. Merriner, Asst. Dist. Atty., Anchorage, for appellee. Before BONEY, C. J., and RABINO-WITZ, CONNOR and ERWIN, JJ.

333

2086

OPINION PER CURIAM. On September 29, 1970, appellant plead guilty to the charge of burglary in a dwelling at nighttime in violation of AS 11.20.-080, which is punishable under the facts of this case by imprisonment for not less than one nor more than IS years. From a sentence imposed by the trial court of five years with two years' probation, appellant makes this appeal. A review of the appellant's background as shown in the pre-sentence report and at the hearing for entry of plea and sentencing shows that appellant, in previous encounters with the law, was convicted of operating a motor vehicle without the owner's consent and several driving offenses. Additionally, appellant stated at the time of entry of plea of guilty that he had been using drugs at the time of this offense. While appellant's home background appears good and he possesses above-normal intelligence, his employment history is erratic and his willingness to satisfactorily conform to the requirements of society appears somewhat speculative. Under these circumstances, we cannot say the sentence was outside the zone of reasonableness set forth in State v. Chaney, 477 P.2d 441 (Alaska 1970), and therefore the sentence is affirmed. DIMOND, J., not participating. . In our opinions in Waters v. State, 483 P.2d 199 (Alaska 1971) and Robinson v. State, 484 P.2d 686 (Alaska 1971), which were decided after the date of this sentencing, we cautioned against placing reliance on previous "contacts" with the police. We feel constrained herein to note again that mention was made of "contacts" by the trial court and again caution against the reliance on such information in the sentencing process.

10556731

RLR, a Minor, Appellant, v. STATE of Alaska, Appellee

RLR v. State

1971-07-09

No. 1156

27

46

487 P.2d 27

487

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:16.911957+00:00

CAP

Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, JJ-

RLR, a Minor, Appellant, v. STATE of Alaska, Appellee.

RLR, a Minor, Appellant, v. STATE of Alaska, Appellee. No. 1156. Supreme Court of Alaska. July 9, 1971. R. Collin Middleton, Asst. Public Defender, Ketchikan, for appellant. G. Kent Edwards, Atty. Gen., Juneau, Robert Mahoney, Asst. Atty. Gen., Anchorage, Stephen Cooper, Dist. Atty., Fairbanks, for appellee.

11512

69486

OPINION Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, JJ- RABINOWITZ, Justice. This appeal raises significant issues regarding the constitutional rights of a child to a public jury trial, as well as the application and proper construction of several of our Rules of Children's Procedure. A probation officer for the Division of Corrections, Department of Health and Welfare, filed a petition alleging that RLR, a person under 18 years old, had unlawfully sold lysergic acid diethylamide (LSD) to Joseph Want on or about December 11, 1968, and praying that RLR be adjudicated a delinquent. RLR denied the allegations. Initially, a hearing was held to perpetuate the testimony of one William J. Gowans, a chemist employed by the United States Department of Justice. RLR was not present at this proceeding, although his attorney was present. Gowans testified that a substance he had received from the Fairbanks police department was, in his opinion, LSD. At a full adjudicative hearing with RLR present, Joseph W. Want, apparently a part-time secret informer for the Fairbanks police department, testified that he had purchased "a hit" from RLR at a pool hall on December 11 or 12, 1968, and had given the tablet to a police officer. Paul W. Tan-nenbaum, a Fairbanks police officer, testified that he had given Want money to buy drugs and several hours later Want had given him the tablet Gowans identified as LSD. RLR testified that he had been in school at the time the alleged sale was made, and did not sell LSD to Want. The court found that the allegations of the petition had been proved and adjudicated RLR a delinquent. At the disposition hearing, which was presided over by a judge other than the one who presided at the adjudicative hearing, the court decided to continue custody in the Division of Corrections, Department of Health and Welfare, for an indefinite time up to RLR's 21st birthday, on the understanding that he was to be boarded at a ranch south of Fairbanks on a trial basis. One week later a formal disposition order was entered in which it was ordered that the Department of Health and Welfare have custody of RLR and authority to place him in a foster home, detention home, or other facility without further application to the court. This appeal followed. CHILD'S RIGHT TO A JURY TRIAL Appellant argues that he was denied his constitutional right to jury trial. This contention presents important and difficult problems. Under AS 47.10.070, all children's hearings are without a jury. The central issue is whether this statute is unconstitutional in the context of this case. The United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury The Alaska Constitution provides that "[i]n all criminal prosecutions, the accused shall have the right to a speedy and public trial, by an impartial jury Both constitutions also provide that no person shall be deprived of liberty "without due process of law." The United States Constitution further provides that "[n]o State shall deny to any person within its jurisdiction the equal protection of the laws," and the Alaska Constitution provides that "all persons are equal and entitled to equal rights, opportunities, and protection under the law » Until recently, the United States Supreme Court has avoided deciding the federal constitutional issue. Several courts have found denial of jury trial for juveniles unconstitutional. Nieves v. United States holds the Federal Juvenile Delinquency Act unconstitutional insofar as it bars jury trial, reasoning that In re Gault treated juvenile delinquency proceedings as criminal prosecutions for purposes of the privilege against self-incrimination, so they must be criminal prosecutions for purposes of the right to jury trial. In re Rindell holds that denial of jury trial violates the Sixth Amendment because a delinquency proceeding metes out punishment on account of crime, regardless of labels, so amounts to a criminal prosecution. Other courts have upheld the constitutionality of denial of jury trial. In re D holds that the federal constitution does not require jury trial, apparently because Gault did not say so and jury trial would be undesirable. State v. Turner holds against jury trial, apparently on the ground that the issue in a juvenile proceeding is the child's best interest rather than his guilt. Dryden v. Commonwealth holds that, although "mere logic" applied to Gault and the consequences of a delinquency adjudication would seem to require jury trial, jury trial may be dispensed with because it would be poor social policy so it is not constitutionally required. In re Fucini upholds denial of jury trial because the elements of procedural protection essential for achieving justice for the child without unduly impairing the juvenile court's distinctive values do not include it. This list of cases is far from complete, and many more jurisdictions have upheld denial of jury trial than have treated denial of jury trial as unconstitutional. The cases denying a right to jury trial generally were based on two premises which we think are inadequate. One premise was that the Supreme Court of the United States had not yet ruled upon the subject. The second premise was that the benevolent social theory supposedly underlying juvenile court acts justifies dispensing with constitutional safeguards. This theory, based on the assumption that the special features of juvenile court procedure lead to less recidivism than ordinary adult criminal proceedings, has not been support ed with empirical evidence, but even if it is true, this theory does not justify deprivation of constitutional rights. Earlier in this century Justice Holmes criticized the view that a then popular theory of economics justified ruling much state regulation unconstitutional. Today social theory again seems to be displacing the Constitution in some courts, this time to justify excessive rather than insufficient deference to legislation concerning juvenile procedure. We agree with Justice Douglas that [w]hether a jury trial is in conflict with the juvenile court's underlying philosophy is irrelevant, for the Constitution is the Supreme Law of the land. The balancing of the rehabila-tive purpose of the juvenile proceeding and the due process requirement of a jury trial is a matter for a future Constitutional Convention. If an honest analysis of constitutional requirements leads us to believe that they apply to children, we lack authority to withhold their application in deference to a popular social theory. In re Gault holds that the Due Process Clause of the Fourteenth Amendment applies when a child is charged with misconduct for which he may be incarcerated in an institution, regardless of the labels of the adjudication and institution, so the child is entitled to notice of charges, counsel, confrontation and cross-examination, and the privilege against self-incrimination. Duncan v. Louisiana and Bloom v. Illinois hold that the Fourteenth Amendment Due Process Clause guarantees the right to jury trial in serious criminal prosecutions in the states. Bloom holds that criminal contempt is a crime for this purpose because it is "a public wrong which is punishable by fine or imprisonment or both," and because the dangers of trial without jury apply in criminal contempt cases. An adjudication of delinquency could result in RLR's incarceration. Gault holds that regardless of benevolent-sounding labels, incarceration, when applied to children, is a taking of liberty under the Fourteenth Amendment. Our society uses in carceration for rehabilitative purposes with adult criminals as well as juvenile delinquents yet none suggest that our benevolent purposes justify deprivation of rights applicable to adult prosecutions. The sale of LSD, with which RLR was charged, is clearly "a public wrong which is punishable by fine or imprisonment," the definition of crime used by Bloom for purposes of determining the scope of the right to jury trial. The purposes of the right to jury trial, discussed in Duncan, such as protection "against the corrupt or overzealous prosecutor and against the complaint, biased, or eccentric judge," apply as much in children's cases as in adults' cases. Bloom suggests that where the reasons for the right to jury trial apply, the right inheres. Just as Bloom holds in a contempt case that "considerations of efficiency must give way to the more fundamental interest of ensuring the even-handed exercise of judicial power," so we must hold with respect to children's cases. Because RLR could be incarcerated for many years for sale of LSD, and the sale of LSD is regarded with a high degree of moral opprobrium, his alleged conduct was sufficiently serious to require the right to jury trial under Duncan and Bloom. Since we conclude that RLR was entitled to a public jury trial under Alaska's constitutional guarantee, we need not pass upon the federal constitutional question. We think that the state constitutional question is answered by Baker v. City of Fairbanks. There we held that the right to jury trial is coextensive with the right to counsel, and the right to counsel extends to children charged with delinquency. Since that case expressly holds that contemporary social values rather than historical categorizations determine whether a prosecution is criminal for purposes of the right to jury trial, the Alaska constitutional guarantee does not exclude delinquency proceedings because they were carried on without juries at the time the Alaska Constitution was ratified. Baker defines the category of "criminal" prosecutions under the Alaska constitutional jury trial guarantee to include "any offense a direct penalty for which may be incarceration in a jail or penal institution." RLR's conduct was certainly an "offenáe"; RLR is a "delinquent minor" under AS 47.10.290(2) because the sale of LSD is a crime under AS 17.12.010. The moral opprobrium attached to sale of LSD is shown by the penalty, up to 25 years imprisonment and a $20,000 fine for the first offense, and up to life imprisonment and a $25,000 fine for subsequent offenses or for the first offense if the sale is to a person under 19. A child adjudicated delinquent for selling LSD may be incarcerated until age 19, which may be many years, possibly even in a city jail. Considering the stigma and penalties attached and the purposes of the constitutional guarantee, treating the adjudicative phase of a delinquency proceeding for sale of LSD differently from an ordinary adult criminal prosecution for purposes of the right to jury trial would be a cynical and unprincipled refusal to obey the Alaska constitution. We hold that whenever a child in a delinquency proceeding is charged with acts which would be a crime, subject to incarceration if committed by an adult, the Alaska Constitution guarantees him the right to jury trial. Our holding on the right to jury trial leaves several questions open. One question is whether the jury list must include persons at least as young as the child. It could be argued that young persons are a distinct class and may not be excluded from jury service without depriving young persons charged with misconduct equal protection or due process of law; such an argument might compare young persons to racial minorities. On the other hand, it could be argued that the constitutional right to an "impartial" jury requires, and that due process and equal protection requirements permit, states to impose age requirements for jury service to guarantee sufficient maturity and freedom from parental and other pressure for fairness and impartiality. Since this issue is not argued in the case at bar, we do not decide this point. A second lurking issue is whether the right to jury trial should be retroactive. Considerations in favor of retroac-tivity include the fundamental character of the right and the purpose to be served by it, primarily avoiding convicting the innocent rather than, as in search and seizure cases, deterrence of police misconduct. Considerations against retroactivity include reliance of children's court judges on the statute rejected in this case. This issue, too, we leave for a future case in which it is necessary to decide it. A third and exceedingly complicated issue is whether, and how, a child may waive his right to trial by jury. Gault seems to assume that a child may waive his rights to notice, counsel, and the privilege against self-incrimination, but does not examine these matters in any depth. In Ham-monds v. State, we held that "[a] waiver is an intentional relinquishment of a known right or privilege," which is "knowingly and intelligently" made. One view treats infants as incompetent to waive rights, and requires that a guardian ad litem make all waivers, or at least that they be on the advice of some "friendly adult." Another view treats youth as one of many factors to be considered in determining whether, in the "totality of circumstances," the right was known and the decision not to assert it was intentional and intelligently made. In this opinion we treat only waiver of a right at trial when the child is represented by an attorney, not waiver of the right to counsel or pretrial waivers. We must first dispose of the argument that infancy renders all waivers automatically void. Our statute governing the age of majority, AS 25.20.010, provides that upon reaching majority a person has control of his own actions and business and has all the rights and is subject to all the liabilities of citizens of full age, except as otherwise provided by statute. This statute does not carry a broad negative implication. An infant is liable civilly for his torts and in children's court for his crimes; he may hold property, exercise constitutional rights, if he is at least 14 years old, nominate his general guardian and consent to his adoption, and make contracts binding on his promisee though voidable by the infant. The age of majority can be reduced to sixteen for a girl if she lawfully marries, or to an earlier age if she is pregnant when she marries. The age of majority statute does not imply a legislative judgment that infants are incompetent in all things; it means only that persons above the statutory age minimum are competent in all things except as otherwise provided. No statute prohibits waivers by infants of procedural rights in children's court, so the issue is one of common law and constitutional law. We think the Hammonds tests of waiver, quoted above, apply to infants as well as adults. The consequences of application will differ for infants, because some decisions can be "knowingly and intelligently" made only by persons of fuller knowledge and maturity. An infant not advised by an attorney could make few knowledgeable and intelligent decisions about whether to waive rights in judicial proceedings. On the other hand, in areas where an adult ordinarily delegates to his attorney decision-making authority, as in deciding whether to object to introduction of evidence, the competence of the attorney rather than of the client generally determines whether waivers satisfy the Ham-monds criteria. Waiver of the right to jury trial is more complicated than, say, waiver of a hearsay objection because an attorney will generally consult with his client on whether to have a jury, and in some cases an infant may express desires conflicting with his interests on jury trial. Some commentators suggest that an infant might prefer a jury out of a desire to display his importance without sufficient attention to the possibility of future harm through notoriety or the relative likelihood of winning before judge and jury. Where this danger seems substantial, the court should appoint a guardian ad litem pursuant to Children's Rule 11(a) and AS 47.10.050, who should consult with the child and his attorney and make a decision based solely on the interests of the child. The guardian ad litem procedure also has its dangers, and should not be used unnecessarily. If the child's attorney is appointed, he may be unsure where his advocate's role ends and his role of judging his ward's best interests begins. If a parent is considered for appointment, careful judicial scrutiny is needed to assure no conflict of interest between the parent's duty to advance his child's interests and his own desire to use the court in order to discipline the child, and to assure adequate knowledge of the consequences of his decisions. We therefore hold that children are constitutionally entitled to jury trial in the adjudicative stage of a delinquency proceeding. However, due to the uniqueness of some facets of the procedures governing children's court proceedings and the potential damage which may accrue to the child by a public trial, we think the child should first consult with his counsel and his parents or guardian when appropriate, and then affirmatively assert the right to a trial by jury before it is finally granted. Accordingly, we think that Children's Rule 1(d) incorporates Civil Rule 38 insofar as it is applicable rather than Criminal Rule 23(a). This means that if the child waives jury trial, the state may not require it, but jury trial shall be provided only on demand. Since we find that the case must be reversed on other grounds, we do not decide whether the denial of a jury trial in the adjudicative stage in the case at bar was plain error. PUBLIC TRIAL The Federal and Alaska's Constitutions provide that "[i]n all criminal prosecutions, the accused shall enjoy ["have" in Alaska's Constitution] the right to a public trial The sentence guaranteeing the right also guarantees the rights to speedy trial and an impartial jury. The leading case on public trial, Re Oliver, holds that the Due Process Clause of the Fourteenth Amendment prohibits secret trials in criminal proceedings. Oliver says that the traditional Anglo-American distrust for secret trials has been attributed to the despotism of the Spanish Inquisition, the English Court of Star Chamber, and the French lettre de cachet, and quotes Bentham's charge that secret proceedings produce "indolent and arbitrary" judges, un checked no matter how "corrupt" by recordation and appeal. The court cites as values of a public trial that it safeguards against attempts to employ the courts as instruments of persecution, restrains abuse of judicial power, brings the proceedings to the attention of key witnesses not known to the parties, and teaches the spectators about their government and gives them confidence in their judicial remedies. In a concurring opinion in Estes v. Texas, Justice Harlan says that [ejssentially, the public-trial guarantee embodies a view of human nature, true as a general rule, that judges, lawyers, witnesses, and jurors will perform their respective functions more responsibly in an open court than in secret proceedings. A fair trial is the objective, and 'public trial' is an institutional safeguard for attaining it. Thus the right of 'public trial' is not one belonging to the public, but one belonging to the accused, and inhering in the institutional process by which justice is administered. Appellant argues that he was denied his constitutional right to a public trial by AS 47.10.070. That statute provides in relevant part that [t]he public shall be excluded from the hearing, but the court, in its discretion, may permit individuals to attend a hearing, if their attendance is compatible with the best interest of the minor. Rules of Children's Procedure 12(d) (2) provides that [cjhild hearings shall not be open to the general public. The court may, however, in its discretion after due consideration for the welfare of the child and of the public interest, admit particular individuals to the hearing. The federal constitutional guarantee has not been construed to mean that all judicial proceedings must be open to any interested member of the public at any time. Some authorities hold that the right to public trial belongs to the public as well as the defendant so public trial is not subject to defendant's waiver, while others hold that the guarantee is for the benefit of the accused, and may be asserted or waived only by him. In both the federal and Alaska's constitutions, the right to public trial is part of a list of rights explicitly stated to be rights of the accused. Some jurisdictions hold that the general public may be excluded consistently with the public trial guarantee so long as the defendant has an opportunity to designate those whom he desires to have present. Others take the view that the general public cannot be excluded in this way. Where the right has been denied, no prejudice need be shown, since such a showing would be almost impossible to make. The right may be waived. We held in Flores v. State that unintentional brief exclusion of a newspaper reporter from part of the reading back to the jury of a section of testimony previously given, when at least one other spectator was present, did not deny the right to public trial. In re Burrus holds that despite Gault, juveniles are not constitutionally entitled to public trial. It is weak authority, however, since it so concludes merely by labeling delinquency proceedings non-criminal, rather than by analyzing the purposes of the public trial requirement to see whether they would be served by applying the right to delinquency proceedings. Many authorities favor a policy in delinquency proceedings of avoiding total secrecy by admitting persons with a special interest in the case or the work of the court, including perhaps the press, but prohibiting disclosure of juveniles' names and excluding the general public. Various reasons are given for this policy. It is said that permitting an audience to attend the hearing would interfere with the "case work relationship" between the judge and the child. Publicity is condemned on the grounds that it is an additional and excessive punishment to that prescribed by the court, or in the alternative that it encourages delinquency by permitting a youngster to "flaunt his unregeneracy." Publication of names of juvenile delinquents is condemned on the ground that it confirms the child in his delinquent identity and impedes his integration into law-abiding society by reducing his ability to obtain legitimate employment, qualify for licenses and bonds, and join the armed services. An important commentator on this subject recommends that the general public be excluded from juvenile hearings, but that the press should be admitted, though prohibited from publishing data which would identify particular juveniles; if he so desires, however, the juvenile should have a public hearing. These social policy considerations are based on empirical propositions which may be false and have not been tested. Some commentary favors open court proceedings for juveniles on the grounds that secrecy and the informality engendered thereby hinders rehabilitation partly by misleading juveniles and their parents into underestimating the seriousness of delinquency. Recent commentary tends to be critical of secrecy because it screens from public view arbitrariness and lawlessness by juvenile courts. Just as alleged, bad motives of the legislature cannot be considered in determining constitutionality and construction of statutes, so we cannot withhold application of federal and state constitutional provisions on the grounds that those who created various systems of governmental activity such as the juvenile court acted from benevolent motives. Nor will constitutional problems be ignored in deference to untested empirical propositions about what sorts of judicial proceedings succeed in rehabilitating persons charged with misconduct; as between these sorts of prescriptions for what is good for society and constitutional prescriptions, the latter are authoritative. The reasons for the constitutional guarantees of public trial apply as much to juvenile delinquency proceedings as to adult criminal proceedings. Delinquency proceedings as much as adult criminal prosecutions can be used as instruments of persecution, and may be subject to judicial abuse. The appellate process is not a sufficient check on juvenile courts, for problems of mootness and the cost of prosecuting an appeal screen most of what goes on from appellate court scrutiny. We cannot help but notice that the children's cases appealed to this court have often shown much more extensive and fundamental error than is generally found in adult criminal cases, and wonder whether secrecy is not fostering a judicial attitude of casualness toward the law in children's proceedings. In any event, civil labels and good intentions do not themselves obviate the need for criminal due process safeguards in juvenile courts, for '[a] proceeding where the issue is whether the child will be found to be "delinquent" and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution.' Therefore, we hold that children are guaranteed the right to a public trial by the Alaska Constitution. One additional facet of the child's right to a public trial remains to be considered. AS 47.10.070, and the similar Children's Rule 12(d) (2), provide for the exclusion of the public from children's hearings. Rules of Children's Procedure 12(d) (2), which governs, provides that, Child hearings shall not be open to the general public. The court may, however, in its discretion after due consideration for the welfare of the child and of the public interest, admit particular individuals to the hearing. This flexible rule must be interpreted and applied in a manner consistent with the child's constitutional right to public trial. The evils of secrecy may be avoided by permitting the child to open the adjudicative and dispositive hearings to any individuals. Where the child's choice may be adverse to his own interests, a guardian ad litem may be appointed under the principles discussed in the preceding section dealing with the right to trial by jury. It is an abuse of discretion for the court to refuse admittance to individuals whose presence is favored by the child, except in special circumstances such as the unavailability of a courtroom sufficiently large to hold all the individuals whose presence is sought. If the child or his guardian ad litem wants the press, friends, or others to be free to attend, then the hearing must be open to them. The area of discretion in the rule, where the court may refuse to open the hearing, involves persons whose presence is not desired by the child. Since we have determined that the case must be reversed on other grounds, we find it unnecessary to decide whether the denial of a public trial in the adjudicative stage in the case at bar was plain error. SERVICE OF PROCESS Appellant specifies as error the failure to serve him with a copy of the petition. Because of this noncompliance with Children's Rule 10, he contends the court lacked jurisdiction over his person. The returns of service show that various persons purported to have served RLR by handing copies of the summons and petition to Ross Ward of the Division of Corrections on March 21, to RLR's mother on March 25, and by handing a copy of the summons to RLR on April 9. The summons was a reproduced form saying that a copy of the petition was attached, but on it was typed "Note Previously Received Petition," indicating that no petition was attached. RLR appeared in court April 1 to be told of the contents of the petition and of his right to counsel, April 3 to deny the charges, and May 2 for a hearing on the merits. Under Children's Rule 10, the summons in a children's matter must have attached a copy of the petition and must be directed to the child as well as his parents or guardian, custodian, and guardian ad litem if appointed. Children's Rule 10 is vague on the manner of personal service; it provides that process should be served "by a person authorized to effect service under [Civil] Rule 4(c), Rules of Civil Procedure," but does not state what that person should do. Appellee argues that under AS 47.10.030 (a), service on RLR's mother sufficed. That section provides in part that: [a]fter a petition is filed and after further investigation which the court directs, if the person having custody or control of the minor has not appeared voluntarily, the court shall issue a summons which (3) directs the person having custody or control of the minor to appear personally in court with the minor at the place and at the time set forth in the summons. The statute does not purport to control the manner of service on children, nor to apply in any case except when "the person having custody or control of the minor has not appeared voluntarily." It requires notice to parents that their rights to custody are at stake, but does not speak to the issue of notice to the child that his liberty is at stake. The Children's Rules provide no specific procedure for the manner of service on children. In such circumstances, Children's Rule 1(d) provides that the court may proceed in any lawful manner, not inconsistent with children's statutes or these rules, which appears most likely to achieve the aims and purposes of such statutes and these rules. Several constitutional requirements for providing notice in a "lawful manner" are delineated in the Gault case. Gault holds that [n]otice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must 'set forth the alleged misconduct with particularity.' The child and his parents must receive notice which would be deemed adequate in a civil or criminal proceeding. These requirements suggest that our civil and criminal rules should be looked to for techniques of service on children. Since the criminal rules have no applicable provision, we are left with Civil Rule 4(d) (2), which provides that personal service may be made on an infant in civil cases by delivering a copy of the summons and complaint to such infant personally, and also to his father, mother or guardian, or if there be none within the state, then to any person having the care or control of such infant, or with whom he resides, or in whose service he is employed ; or if any service cannot be made upon any of them, then as provided by order of the court. This rule means that the required process must be delivered to the child himself, and that jurisdiction over the child cannot be obtained by delivering the summons and petition to his parents. This requirement is not only constitutionally required but is desirable as a matter of policy. Parents may fail to give the petition and summons to the child because they do not understand its seriousness or, especially in the large proportion of cases in which parents are the complainants, because they are hostile or indifferent to the child's interests. Concerned parents might, as a disciplinary measure, refuse to show children the summons and petition and instead tell them an exaggerated, more frightening version of their contents. Even if the children learned of their court dates, they would not have a fair chance to retain counsel and prepare to meet the charges. Of course, personal service of process on extremely young children will be an empty form, but pointless service on a few children does little harm compared to absence of service on many children to whom it would be meaningful. We hold that, since Children's Rule 10 (c) (1) requires that the summons and petition be "directed to" the child as well as his parents, and the Children's Rules are silent on the manner of service of process on children, Children's Rule 1(d) incorporates Civil Rule 4(d) (2). Process was not served on RLR in accord with these rules. Appellee argues that even if process was defectively served, appellant waived the defect by appearing in court and failing to object. In Gault, defective notice was held not to be waived despite the child's appearance and failure to object. The appearance did not waive the defect because "one of the purposes of notice is to clarify the issues to be considered," so it is not enough merely to know that one must appear in court at a particular time. Failure to object did not waive the defect because the child had no counsel and was not advised of his right to counsel. This latter factor distinguishes Gault; RLR was represented by an attorney appointed by the court on April 1. If RLR's attorney had wished to preserve the jurisdictional issue for appeal, he could have moved to dismiss for lack of jurisdiction over the person, insufficiency of process, or insufficiency of service of process. His failure to do so may have been based on a strategic judgment that a dismissal would have led only to delay disadvantageous for his client. The defect in process, therefore, was waived by RLR's failure to raise it below. RLR'S ABSENCE AT THE GOWANS HEARING Children's Rule 12(c) (1) requires that the child be present at both the adjudicative and dispositive phases of his hearing. On April 18, 1969, at 9 a. m. the court held a hearing in which William J. Gowans, a chemist, testified that a tablet sent to him for analysis contained LSD. Counsel for RLR participated, but RLR was absent. RLR's attorney said that he did not know whether or not RLR wished to waive his right to be present, apparently because RLR had not been informed that the hearing was to take place. The prosecuting attorney said that he thought a written waiver of his right to be present by RLR was needed, though he doubted that RLR would actually be prejudiced by his absence. The court nevertheless proceeded to take Gowans' testimony. The record indicates that a summons to appear on April 18 at 10 a. m., an hour after the hearing began, without an attached copy of the petition, was served on RLR on April 9. Appellee argues that the Gowans hearing was in the nature of a deposition under Criminal Rule 15(a), permitted under Children's Rule 1 (d). This argument must fail because there was no notice to RLR under Criminal Rule 15(a) and 15(b) and because the supposed deposition was used as part of the adjudicative phase of the hearing without the showing required in Criminal Rule 15(e). The Criminal Rule 15(e) requirements obviously could not be complied with since the testimony was taken before the judge handling the adjudicative phase of the hearing. Alternatively, appellee argues that the violation of Children's Rule 12(c) (1) was harmless error because RLR was not prejudiced by his absence. The Children's Rules do not contain a harmless error provision, but the ordinary principles of appellate review as well ' as incorporation of Criminal Rule 47 (a) by Children's Rule 1 (d) require that we disregard error not affecting substantial rights. We see no difference in principle between the child's right to be present at his hearing and a criminal defendant's right to be present at his trial. We said in Noffke v. State that violations of Criminal Rule 38, requiring the defendant's presence at all stages of a criminal trial, do not constitute reversible error unless defendant's rights are substantially prejudiced, but found substantial prejudice where a jury instruction was given in the absence of defendant and his attorney. In Kugzruk v. State, this court upheld a criminal conviction despite defendant's claimed absence from several anteroom conferences between his attorney, the prosecutor, and the judge on points of law on the grounds that the record did not show defendant's objection, or that his substantial rights were affected. Egelak v. State held that a defendant was not prejudiced by his and his attorney's absence at a showing of pictures of his victim to the trial judge a few minutes before sentencing, where his attorney interrupted the showing, made no timely objection and had an opportunity to deal with the matter a few minutes after it occurred at the sentencing hearing. Gafford v. State held that a criminal defendant's absence when the trial judge received and denied a request by the jury to clear the courtroom when the verdict was returned was nonprejudicial. In Speidel v. State, we held that a criminal defendant's absence from a presentence conference between his attorney, the prosecutor, a probation officer, and the judge was reversible error. Rather than point to some specific aspect of prejudice, we said: The denial of that right must be assumed to have been prejudicial, since we cannot say with any degree of certainty that the judge may not have been influenced to impose a lesser sentence had appellant been given the opportunity to be heard and participate in the discussion relating to sentencing. We distinguished meetings between court and counsel concerning such matters as scheduling and procedural matters. We held in Brown v. State that federal authorities construing Federal Rule of Criminal Procedure 43 were relevant in construing its Alaskan analogue, Criminal Rule 38, giving a criminal defendant the right to be present at all stages of his trial. There is some federal authority for the proposition that to uphold a conviction despite absence at some stage of the accused, the state must show that "the record affirmatively indicates beyond a reasonable doubt that the error did not affect the verdict," or that on matters where prejudice cannot be assessed, absence can never be treated as harmless error. Proof that the tablet allegedly sold by RLR contained LSD was an essential and contested element in the state's case. The taking of Gowans' testimony was not an anteroom conference on a point of law, but a full-scale factual hearing. RLR's absence was not momentary and inadvertent, but extended throughout a lengthy hearing after explicit refusal by his attorney to waive it. Such a blatant violation of Children's Rule 12(c) (1) requires reversal. In a case of this sort, we will not weigh the possibility of prejudice as we did in Noffke, but will presume it as we did in Speidel. We need not conjure up possibilities of prejudice. Preservation of the fundamental right to be present against clear denials of it should not depend on the imaginative abilities of appellate judges. Children's Rule 12(c) (1) was broken in a clear and substantial manner despite counsel's explicit stated refusal to waive his client's right. That is enough to require reversal. CROSS-EXAMINATION OF JOSEPH WANT. The only evidence that RLR sold the tablet allegedly containing LSD was testimony by a secret informer of the police named Joseph Want. Want's credibility was essential to the state's case. R LR's attorney attempted to ask Want on cross-examination how his employment with the police had come about and how often he had acted as a police secret informer, but the court sustained on grounds of irrelevance objections to these questions. The court offered to permit RLR's attorney to ask Want if he was paid by the police, but counsel chose not to ask this question. Appellant argues that the court abused its discretion in so limiting cross-examination because the unpermitted questions were relevant to explore bias, and the permitted question was not adequate to do so. Since we reverse the adjudication of delinquency because of RLR's absence from the Gowans hearing, we could avoid this issue but the likelihood of recurrence of the issue on retrial and the frequency of appeals of limitations on cross-examinations of police informers suggest that judicial economy militates in favor of ruling on the issue to avoid future errors. We held in Lewis v. State that one test of whether the trial court abused its discretion in ruling on the admissibility of evidence is whether the reasons given for the exercise of discretion are clearly untenable or unreasonable. In the case at at bar, the reason given was irrelevance, clearly an untenable ground since the questions asked could have shown whether Want was biased. Had Want been required to show how his employment came about, he might have been shown to have an incentive to bring about RLR's conviction in order to secure leniency for himself with respect to some past crime, as in Whitton v. State. Limiting RLR's attorney to asking Want if he was paid to act as an informer unduly restricted cross-examination, since money is not the only inducement which might have been offered to Want. "[G]reat liberality should be given defense counsel in cross-examination of a prosecution witness with respect to his motive for testifying." Cross-examination to show bias because of expectation of immunity from prosecutiqn is one of the safeguards essential to a fair trial, and undue limitation on such cross-examination is reversible error without any need for a showing of prejudice. The trial court committed reversible error in unduly limiting cross-examination of Joseph Want. FINDINGS OF FACT Children's Rule 21(b) (2), in effect at the time of RLR's adjudication, required that a judgment of delinquency be "based upon and accompanied by written findings of fact." This provision is unchanged in the recent amendments to Children's Rule 21. Children's Rule 22(d) required that "[i]n all orders of disposition the court shall provide written findings of fact supporting the disposition ordered." The trial court provided no written findings of fact for either the adjudication or disposition. The trial court erred. Findings of fact are extremely important for facilitating review by this court, annual review of children's court orders under Children's Rule 28, evaluation of the child's acts during incarceration or probation for purposes of choosing rehabilitative techniques, evaluation of children's records for purposes of sentencing on subsequent offenses, and perhaps most important, for requiring the trial judge carefully to examine every element of the case before adjudicating or sentencing. Judge Frank said: The correct finding, as near as may be, of the facts of a law suit is fully as important as the application of the correct legal rules to the facts as found. An impeccably 'right' legal rule applied to the 'wrong' facts yields a decision which is as faulty as one which results from the application of the 'wrong' legal rule to the 'right' facts. Chief Justice Hughes once remarked, 'An unscrupulous administrator might be tempted to say "Let me find the facts for the people of my country, and I care little who lays down the general principles." ' It is sometimes said that the requirement that the trial judge file findings of fact is for the convenience of the upper courts. While it does serve that end, it has a far more important purpose — that of evoking care on the part of the trial judge in ascertaining the facts. For, as every judge knows, to set down in precise words the facts as he finds them is the best way to avoid carelessness in the discharge of that duty: Often a strong impression that, on the basis of the evidence, the facts are thus-and-so gives way when it comes to expressing that impression on paper. (footnotes omitted). GENERALITY OF THE DISPOSITION At the disposition hearing, RLR's attorney and the probation officer recommended that RLR be put to work on a ranch near Fairbanks. The judge indicated agreement. The disposition order, however, did not specify this alternative. It said in relevant part: It is hereby ordered that the Department of Health and Welfare, Division of Corrections be given custody of the above-named minor child for an indeterminate period of time not to exceed minor child's 21st birthday; It is further ordered that the Commissioner of Health and Welfare or his des-ignee shall have authority to place the above-named minor in a suitable foster home, group home, detention home, or other suitable facility designated by the Commissioner of Health and Welfare or his designee without further application to this court. Appellant argues that this order was overly broad under AS 47.10.080(b). Ap-pellee does not attempt to defend the breadth of the order, but contends that any error was harmless and the matter is moot. Since the record does not show what was done with RLR by the Department of Health and Welfare, we cannot treat the error as harmless. We do not know whether RLR was put to work on the ranch as the judge wished. Appellee's mootness argument is based on an order by the superior court dated July 14, 1970, releasing RLR from the custody of the Department of Health and Welfare. We have on our own motion supplemented the record to include this order under Supreme Court Rule 9(h). Errors in juvenile dispositions tend to be "capable of repetition, yet evading review" if dispositions are thereafter deemed moot, because juvenile sentences very often do not last as long as the appellate process; therefore this issue falls within the exception of the mootness doctrine noted in Matter of G.M.B., 483 P.2d 1006 (Alaska 1971). An overbroad disposition order may subject a child to harmful collateral consequences by implying to later sentencing judges or others that his misconduct was more serious than a narrower order would have suggested, so a finding of mootness would be inappropriate under E. J. v. State, 471 P.2d 367 (Alaska 1970). Our mootness doctrine, therefore, is a matter of judicial policy, not constitutional law. At the time the disposition order was signed, AS 47.10.080(b) provided that: If the court finds that the minor is delinquent, it shall (1) order the minor committed to the Department of Health and Welfare for an indeterminate period of time and may direct the minor's placement in a juvenile correctional school, detention home, or detention facility designated by the department; the minor may be released from placement or detention and placed on probation on order of the court; or (2) order the minor placed on probation, to be supervised by the department, and release him to his parents, guardian, or a suitable person . Appellant argues that the word "or" between subsections (1) and (2) implies that the court must choose between commitment to the Department of Health and Welfare and probation, and may not delegate the choice to the Department of Health and Welfare. This is a correct textual analysis, especially in light of the provision in subsection (1) for subsequent court order for probation following placement or detention. The legislature has clearly indicated its intent to place this choice in the hands of the court. The order questioned, however, does not leave the department free to place RLR on probation, so it does not violate the statute so construed. The legislature uses the term "may" rather than "shall" in the portion of subsection (1) providing that the court "may direct the minor's placement in a juvenile correctional school, detention home, or detention facility designated by the department." This means that, so far as the legislature is concerned, the court has discretion whether to specify the institution in which the minor is to be placed. Appellant has not argued that the court abused its discretion by failing so to specify in this case. Since the briefs do not cite or discuss the additional requirements of Children's Rule 22(f) and we reverse on other grounds, we do not think it desirable to discuss the impact of that provision. STANDARD OF PROOF At the time RLR was adjudicated a delinquent, Children's Rule 21(a) provided that delinquency was to be proved by a preponderance of the evidence. Subsequently, the Supreme Court of the United States held in In re Winship that under the Due Process Clause of the Fourteenth Amendment this standard of proof was unconstitutional; that delinquency must be proved beyond a reasonable doubt. RLR argues for reversal on the ground that the preponderance of the evidence burden was applied in his case. Since the matter must be reversed on other grounds, we find it unnecessary to reach this issue. Children's Rule 21(a) has been amended to provide for proof beyond a reasonable doubt if a child is charged with any act which may result in his incarceration. The superior court's adjudicative and dispositive orders are vacated and reversed, and the matter remanded for appropriate proceedings. . AS 47.10.070 provides in part: "All hearings under this chapter are without 8. jury . U.S.Const. amend. YI. This proyision applies to state as well as federal prose-rations. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) ; Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968). . Alaska Const. art. I, sec. 11. . U.S.Const. amend. V; U.S.Const. amend. XIV, sec. 1; Alaska Const, art. I, sec. 7. . U.S.Const. amend. XIV, sec. 1. . Alaska Const. art. I, sec. 1. . See McKeiver v. Pennsylvania, 403 U.S. 52S, 91 S.Ct. 1976, 29 L.Ed.2d 647 (June 21, 1971) ; De Backer v. Brainard, 396 U.S. 28, 90 S.Ct. 163, 24 L.Ed.2d 148 (1969) ; In re Whittington, 391 U.S. 341, 88 S.Ct. 1507, 20 L.Ed.2d 625 (1968). . 280 P.Supp. 994, 1003-1006 (S.D.N.Y.1968). . 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). . 36 U.S.L.W. 2468 (R.I.Fam.Ct.1968). See also In re McCloud, 8 Crim.L.Rep. 2340 (R.I.Fam.Ct.1971). See also Arwood v. Tennessee, 463 S.W.2d 943 (Tenn.App.1970). . 27 N.Y.2d 90, 313 N.Y.S.2d 704, 261 N.E.2d 627 (1970). . 253 Or. 235, 453 P.2d 910 (1969). . 435 S.W.2d 457 (Ky.1968). . Id. at 461. . 44 Ill.2d 305, 255 N.E.2d 380 (1970). . In re Gault, 387 U.S. 1, 21-27, 87 S.Ct. 1428, 1440-1444, 18 L.Ed.2d 527, 542-546 (1967) ; Note, Juvenile Delinquents: The Police, State Courts and Individualized Justice, 79 Harv.L.Rev. 775, 807-810 (1966). . Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905). . De Backer v. Brainard, 396 U.S. 28, 35-38, 90 S.Ct. 163, 167-169, 24 L.Ed.2d 148, 156-157 (1969) (Douglas J" dissenting) . . The rhetoric of benevolence favored by juvenile court advocates calls to mind Justice Brandéis' teaching in Olmstead v. United States, 277 U.S. 438, 479, 48 S.Ct. 564, 572, 72 L.Ed. 944, 957 (1928) (dissenting opinion), Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning, but without understanding, (footnote omitted) . 387 U.S. 1, 27-31, 87 S.Ct. 1428, 1443-1446, 18 L.Ed.2d 527, 546-548 (1967). . 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). . 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968). . Id. at 201, 88 S.Ct. at 1481, 20 L.Ed. 2d at 528. . Id. at 202-208, 88 S.Ct. at 1482-1486, 20 L.Ed.2d at 529-532. . Alaska Const. art. I, sec. 12; State v. Chaney, 477 P.2d 441, 444 (Alaska 1970) ; Waters v. State, 483 P.2d 199 (Alaska 1971). . Duncan v. Louisiana, 391 U.S. 145, 156, 88 S.Ct. 1444, 1451, 20 L.Ed.2d 491, 500 (1968). . Bloom v. Illinois, 391 U.S. 194, 209, 88 S.Ct. 1477, 1486, 20 L.Ed.2d 522, 533 (1968) In this regard, one commentator states: (footnotes omitted). The parallel between a criminal contempt proceeding and a delinquency proceeding in which a juvenile is accused of an offense that would entitle his adult counterpart to a trial by jury, creates a compelling analogy. Both charges have all the elements of a criminal offense, yet in each the accused has traditionally been denied access to a jury trial. A conviction of either of the above offenses will result in a substantial deprivation of liberty; this possibility being even greater in a juvenile proceeding where it is rare that the period of incarceration is less than three years. The presence of these two factors in Bloom, (1) a charge having all the indicia of a crime and (2) a possible deprivation of liberty for a substantial period, led the Bloom Court to the conclusion that denial of a jury trial in a criminal contempt proceeding can no longer be justified. This same type reasoning should also apply to juveniles. Therefore, reading Duncan, and Bloom together, it becomes apparent that the right to a jury trial in both delinquency and criminal contempt proceedings, even though traditionally denied, should depend not on the name of the proceeding or the nature of the alleged offense but upon the possibility of a loss of liberty for a substantial period of time. T. Eoley, Juveniles and Their Bight to a Jury Trial, 15 Villanova L.Rev. 972, 984 (1970). . 471 P.2d 386 (Alaska 1970). Compare our recent decision in State v. Browder, 486 P.2d 925 (Alaska, July 1, 1971), where in reliance upon Baker we construed Alaska's constitutional guarantee of the right to jury trial as encompassing eases of direct criminal contempt. In so doing, we rejected Bloom's serious-petty contempt distinction as determinative of whether the contemnor has a right to jury trial. . Id. at 395. . Id. at 396. . SLA 1945, ch. 60, sec. 1, then codified as ACLA sec. 51-3-10 (1949). . Baker v. City of Fairbanks, 471 P.2d 386, 402 (1970). . AS 17.12.110(b). . AS 47.10.080(b) (1). . To the extent In re White, 445 P.2d 813 (Alaska 1968), is inconsistent with this opinion, it is overruled. Implicit in our holding is that AS 47.10.070 is unconstitutional insofar as it denies the right to a jury trial to the child in the adjudicative phase of the delinquency proceeding. . U.S. Const. amend. VI; Alaska Const. art. I, sec. 11. . In re Gault, 387 U.S. 1, 34 n. 54, 41-42, 55, 87 S.Ct. 1428, 1447 n. 54, 1451-1452, 18 L.Ed.2d 527, 550 n. 54, 554, 561 (1967). . 442 P.2d 39, 42 (Alaska 1968). . In re Dobson, 125 Vt. 165, 212 A.2d 620 (1965) ; Note, Waiver in the Juvenile Court, 68 Colum.L.Rev. 1149, 1162 (1968) ; People v. Lara, 67 Cal.2d 365, 62 Cal.Rptr. 586, 607, 432 P.2d 202, 223 (1967) (Peters, J., dissenting) ; United States ex rel. B. v. Shelly, 305 F.Supp. 55 (E.D.N.Y.1969), modified on other grounds, 430 F.2d 215 (2nd Cir. 1970) ; Felder v. State, 463 S.W.2d 272 (Tex.Civ.App.1971) ; State ex rel. Byrnes v. Goldman, 59 Misc.2d 570, 302 N.Y.S.2d 926 (N.Y.Sup.Ct.1969). . People v. Lara, 67 Cal.2d 365, 62 Cal.Rptr. 586, 432 P.2d 202 (1967) ; Williams v. Huff, 79 U.S.App.D.C. 31, 142 F.2d 91 (1944) ; Application of Estrada, 1 Ariz.App. 348, 403 P.2d 1 (1965) ; Bouldin v. Cox, 76 N.M. 93, 412 P.2d 392, 396 (1966) ; In re H.L.R., 269 Cal.App.2d 610, 75 Cal.Rptr. 308, 311-312 (1969) ; Note, Waiver of Constitutional Rights by Minors: A Question of Law or Tort?, 19 Hastings L.J. 223 (1967). . AS 20.05.030. . AS 20.10.020(1). . AS 25.20.020; AS 25.05.171. . Note, Waiver in the Juvenile Court, 68 Colum.L.Rev. 1149, 1165-66 (1968) ; compare Note, Juvenile Delinquents : The Police, State Courts, and Individualized Justice, 79 Harv.L.Rev. 775, 793-794 (1966). . Note, Waiver in the Juvenile Court, 68 Colum.L.Rev. 1149, 1161-1162 (1968). . Id. at 1159. In 1969, more girls were referred to Children's Court in the Third Judicial District for running away from home than for any other reason, and habitual disobedience to parents was the third most frequent cause, after running away and violating probation. These were also among the most frequent bases for referrals among boys. J. Warner, Survey of Children in a Delinquent Setting — Referral and Jurisdiction 1969, at 10-11 (undated) . In such cases, parents are in effect the complainants or "victims" of their children's wrongful conduct. . Note, Waiver in the Juvenile Court, 68 Colum.L.Rev. 1149, 1165 (1968). . Rules of Children's Procedure 1(d) provides : Situations Not Covered by Rule. Where no specific procedure is prescribed by these rules, the court may proceed in any lawful manner, not inconsistent with children's statutes or these rules, which appears most likely to achieve the aims and purposes of such statutes and these rules. Civ.R. 38(b) provides: Demand. Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue. Such demand shall be made in a separate written document signed by the party making the demand or by his attorney. Orim.R. 23(a) provides: Trial by Jury. Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the state. . U.S.Const. amend. VI. . Alaska Const., art. I, sec. 11. . 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948). . Id. at 271, 68 S.Ct. at 506, 92 L.Ed. at 693. . Id. at 270, 68 S.Ct. at 506, 92 L.Ed. at 692. . 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). . Id. at 588, 85 S.Ct. at 1662, 14 L.Ed.2d 583-584. . 2 Cooley, Constitutional Limitations 931-32 (Carrington ed. 1927), quoted with approval in Estes v. Texas, 381 U.S. 532, 542, 85 S.Ct. 1628, 1632, 14 L.Ed. 2d 543, 550 (1965) ; E. W. Scripps Co. v. Eulton, 100 Ohio App. 157, 125 N.E.2d 896, appeal dismissed, 164 Ohio St. 261, 130 N.E.2d 701 (1955) (based in part on state constitutional provisions that "[a]U courts shall be open") ; Kirstowsky v. Superior Court, 143 Cal.App.2d 745, 300 P.2d 163 (1956) ; State v. Keeler, 52 Mont. 205, 156 P. 1080 (1916) ; Annot., 48 A.L.R.2d 1436 (1956). . Estes v. Texas, 381 U.S. 532, 588, 85 S.Ct. 1628, 1662, 14 L.Ed.2d 543, 584 (1965) (Harlan, J., concurring) ; United Press Ass'ns v. Valente, 308 N.Y. 71, 81, 123 N.E.2d 777, 781 (1954) ; Geise v. United States, 265 F.2d 659 (9th Cir.), cert. denied, 361 U.S. 842, 80 S.Ct. 94, 4 L.Ed.2d 80 (1959). . State v. Nyhus, 19 N.D. 326, 124 N.W. 71 (1909). . United States v. Kobli, 172 E.2d 919 (3d Cir.1949) ; Wade v. State, 207 Ala. 1, 92 So. 101 (1921); People v. Jelke, 308 N.Y. 56, 123 N.E.2d 769 (1954) ; Davis v. United States, 247 E. 394 (8th Cir. 1917). . United States v. Kobli, 172 F.2d 919 (3d Cir. 1949) ; Tanksley v. United States, 145 F.2d 58, 10 Alaska 443 (9th Cir. 1944). . Dutton v. State, 123 Md. 373, 91 A. 417 (1914) ; State v. Hensley, 75 Ohio St. 255, 79 N.E. 462 (1906). . 475 P.2d 37, 39 (Alaska 1970). . 275 N.C. 517, 169 S.E.2d 879 (1969). . Children's Bureau, Standards of Juvenile and Family Courts 76-77 (1966) ; Children's Bureau, Legislative Guide for Drafting Family and Juvenile Court Acts sec. 29(c), at 30 (1969) ; New Jersey Juv. & Dom.Rel.Ct. Rule 5:9-l (a) (1969). . President's Commission on Law Enforcement and Administration of Justice, Task Force Report: Juvenile Delinquency and Youth Crime 38 (1967). . Id. at 38-39. . Geis, Publicity and Juvenile Court Proceedings, 30 Rocky Mt. L.Rev. 101, 125-26 (1958) ; see also Geis, In Re: Juvenile Court Publicity, 16 Juv.Ct.Judges J. 12 (1965), reprinted in O. Ketcham & M. Paulsen, Cases and Materials Relating to Juvenile Courts 407 (1967). . Geis, Publicity and Juvenile Court Proceedings, 30 Rocky Mt.L.Rev. 101, 124 (1958). . Parker, Instant Maturation for the Post-Gault "Hood", 4 Fam.L.Q. 113 (1970). See also Handler, The Juvenile Court and the Adversary System: Problems of Function and Form, 1965 Wisc.L. Rev. 7, 19-21 (1965). Handler argues that the high degree of informality in juvenile court interferes with rehabilitation by producing in the juvenile frustration, distrust, contempt, fear, and cynicism. "The word 'help,' coming from such a person in a position of power, is, in the mind of the adolescent, a familiar signal of danger." Handler at 21. . Note, Minnesota Juvenile Court Rules: Brightening One World for Juveniles, 54 Minn.L.Rev. 308, 324-325 (1969) ; Note, Criminal Offenders in the Juvenile Court: More Brickbats and Another Proposal, 114 U.Pa.L.Rev. 1171, 1185-1186 (1966). . Some of these reasons parallel those underlying the constitutional guarantees of jury trial. In one commentator's view, the jury provides the citizenry, in their capacity as jurors, with a vehicle to directly participate in government; that the jury system induces public confidence in the administration of justice; and that the jury system helps to insure the independence and the quality of the judges. Foley, Juveniles and Their Right to a Jury Trial, 15 Villanova L.Rev. 972 (1970). . E. g., the case at bar, In re G. M. B., 483 P.2d 1006 (Alaska 1971), and E. J. v. State, 471 P.2d 367 (Alaska 1970). . In re Winship, 397 U.S. 358, 365-366, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 376 (1970). . AS 47.10.070 provides in part that: The public shall be excluded from the hearing, but the court, in its discretion, may permit individuals to attend a hearing, if their attendance is compatible with the best interests of the minor. The statute providing for exclusion of the public from juvenile hearings is procedural, so is outside the scope of legislative authority unless two-thirds of each house of the legislature votes to change the rule promulgated by the supreme court in this matter. Alaska Const, art. IY, sec. 15. Children's proceedings are among the "civil and criminal cases in all courts" over which this constitutional provision gives this court rule-making authority which is intended to he plenary and not capable of reduction by re-labelling of proceedings. Cf. Silverton v. Marler, 389 P.2d 3 (Alaska 1964). The statute making criminal the publication by newspapers, radio stations, and television stations of juvenile delinquents' names, AS 47.10.090(b), and the similar rule, Rules of Children's Procedure 26, are not challenged in this appeal. . Rules of Children's Procedure 10(b) reads: Contents of the Summons. The summons shall require the person to whom it is directed to appear for hearing at a time and place specified by the court therein. It shall contain a statement that the juvenile, as well as his parents, guardian, or custodian, have the right to be represented by counsel. A copy of the petition shall be attached to and be incorporated by reference in the summons. In cases where the proceedings could result in the termination of parental rights and the juvenile might be committed to the Department of Health and Welfare for adoption, such possibilities shall be stated. If, after service of summons, it shall appear to the court at any stage of the proceedings that termination of parental rights, not previously considered a possibility and so stated in the summons, may become a possibility, the court shall order an appropriate amendment of the petition and re-summon the appropriate party or parties. . Rules of Children's Procedure 10(c) provides : Persons to Whom Directed. The summons shall be directed to the following persons: (1) The juvenile. (2) The parents or guardian of the juvenile. (3) Any actual custodian of the juvenile. (4) A guardian ad litem, where one has been appointed under these rules. . Rules of Children's Procedure 10(f) (1). . In re Gault, 887 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). . Id. at 33, 87 S.Ct. at 1446, 18 L.Ed.2d, at 549 (footnote omitted). . Id. . Hartwell v. Cooper, 380 P.2d 591 (Alaska 1963). . Note, Minnesota Juvenile Court Rules: Brightening One World for Juveniles, 54 Minn.E.Rev. 303, 318 n. 81 (1969). . A survey of children referred in 1969 to Children's Court in the Third Judicial District of Alaska, not including dependent children, found that only 6.6% were under 12 years old. Most were over 15. J. Warner, Survey of Children In a Delinquent Setting — Referral and Jurisdiction 1969, at 7 (no date). . In re Gault, 387 U.S. 1, 34, 87 S.Ct. 1428, 1447, 18 L.Ed.2d 527, 550 (1967). . Id. 387 U.S. at 34 n. 54, 87 S.Ct. at 1447 n. 54, 18 L.Ed.2d at 550 n. 54. . Id. 387 U.S. at 34, 87 S.Ct. at 1447, 18 L.Ed.2d at 550. . Pulakis v. State, 476 P.2d 474, 479-480 (Alaska 1970). While some authorities hold that infants, even when represented by counsel, cannot waive defects in process and consent to jurisdiction over the person, Annot., 90 A.L.R.2d 293, 296-298 (1963), we think such a rule unreasonably restricts the strategic choices open to a child represented by counsel. A no-waiver rule could be used as a delaying tactic by an unprepared prosecutor when process was not entirely correct. A child represented by competent counsel is about as fit as an adult to waive this sort of objection, whch is usually beyond the ken ' of adult laymen as well as children. . Rules of Children's Procedure 12(c) (1) provides: Parties Whose Presence is Required. The presence of the following parties is required at the child hearing: (1) The child. (2) All persons to whom summons are required to be directed under these rules unless the court in its discretion determines that a continuance for the purpose of securing the attendance of such persons will not be productive of their attendance. (3) The guardian ad litem, if one was appointed. (4)Counsel for the child or other parties, if counsel was retained or was appointed. . Crim.R. 15(a) provides: (a) When and Sow Taken. If it appears that a prospective witness may be unable to attend or prevented from attending a trial or hearing, that his testimony is material and that it is necessary to take his deposition in order to prevent a failure of justice, the court at any time after the filing of an indictment or information may upon motion of a defendant and notice to the parties order that his testimony be taken by deposition and that any designated books, papers, documents, or tangible objects, not privileged, be produced at the same time and place. If a witness is committed for failure to give bail to appear to testify at a trial or hearing, the court on written motion of the witness, or on its own motion, and upon notice to the parties, may direct that his deposition be taken. After the deposition has been subscribed the court may discharge the witness. Crim.R. 15(b) provides: (b) Notice of Taking. The party at whose instance a deposition is to be taken shall give to every other party reasonable written notice of the time and place for taking the deposition. The notice shall state the name and address of each person to be examined. On motion of a party upon whom the notice is served, the court for cause shown may extend or shorten the time. Crim.R. 15(e) provides: Use. At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used if it appears: (1) That the witness is dead; (2) That the witness is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition ; or (3) That the witness is unable to attend or testify because of sickness or infirmity; or (4)That the party Offering the deposition has been unable to procure the attendance of the witness by subpoena. Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. If only a part of a deposition is offered in evidence by a party, an adverse party may require him to offer all of it which is competent and relevant to the part offered, and any party may offer other parts. . Crim.R. 47(a) provides: Narmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. . 422 P.2d 102 (Alaska 1967). . 436 P.2d 962 (Alaska 1968). . 438 P.2d 712 (Alaska 1968). . 440 P.2d 405, 417 (Alaska 1968), cert. denied, 393 U.S. 1120, 89 S.Ct. 996, 22 L.Ed.2d 125 (1969). . 460 P.2d 77 (Alaska 1969). . Id. at 84 (footnote omitted). . Id. at 84. . 372 P.2d 785 (Alaska 1962). . United States v. Crutcher, 405 F.2d 239 (2d Cir. 1968), cert. denied, 394 U.S. 908, 89 S.Ct. 1018, 22 L.Ed.2d 219 (1969). See generally 3 C. Wright, Federal Practice & Procedure sec. 721 (1969). The stringency of the test arises from Fifth and Sixth Amendment implications. . 469 P.2d 689, 695 (Alaska 1970). . 479 P.2d 302, 316-318 (Alaska 1970). . State v. Figueroa, 98 Ariz. 146, 402 P.2d 567, 569 (1965). See also People v. Soto, 64 Ill.App.2d 94, 212 N.E.2d 353 (1965). . Alford v. United States, 282 U.S. 687, 692, 51 S.Ct. 218, 219, 75 L.Ed. 624, 628 (1931). . Merrill v. Merrill, 368 P.2d 546, 548 (Alaska 1962). . United States v. Forness, 125 F.2d 928, 942 (2d Cir.), cert. denied, City of Salamanca v. United States, 316 U.S. 694, 62 S.Ct. 1293, 86 L.Ed. 1764 (1942). Fairbanks Builders, Inc. v. Morton De-Lima, Inc., 483 P.2d 194 (Alaska 1971). . Southern Pac. Terminal Oo. v. IOO, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310, 316 (1911). . The subsection has since been altered, but the amendments do not affect the language set forth. SLA 1970, eh. 245 secs. 12 and 13. . Rules of Children's Procedure 22(f) provides: Terms, Conditions, Duration of Placement. Every order of the court placing the physical custody of the juvenile in any person or agency other than his parent, guardian, or custodian shall specifically state the terms, conditions, and duration of such placement. . 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed. 2d 368 (1970).

10570725

June WEST, Appellant, v. NORTHERN PUBLISHING COMPANY, Appellee; Marie TATE and Laura Johnson, Appellants, v. NORTHERN PUBLISHING COMPANY, Appellee

West v. Northern Publishing Co.

1971-08-16

Nos. 1262, 1263

1304

1306

487 P.2d 1304

487

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:16.911957+00:00

CAP

Before BONEY, C. J„ and DIMOND, and RABINO WITZ, JJ.

June WEST, Appellant, v. NORTHERN PUBLISHING COMPANY, Appellee. Marie TATE and Laura Johnson, Appellants, v. NORTHERN PUBLISHING COMPANY, Appellee.

June WEST, Appellant, v. NORTHERN PUBLISHING COMPANY, Appellee. Marie TATE and Laura Johnson, Appellants, v. NORTHERN PUBLISHING COMPANY, Appellee. Nos. 1262, 1263. Supreme Court of Alaska. Aug. 16, 1971. C. R. Kennedy, Nome, for appellants. Robert C. Erwin and David H. Thorsness, Hughes, Thorsness, Lowe, Gantz & Clark, Anchorage, for appellee. Before BONEY, C. J„ and DIMOND, and RABINO WITZ, JJ.

1221

7508

OPINION PER CURIAM. Appellants, being the owners of two different taxi cab companies in the city of Nome, instituted separate libel actions against Northern Publishing Company, publisher of the Anchorage Daily News, for publication of an article which appeared in that paper on December 20, 1968. The article in question was one of a six-part series on "Justice in the Bush," by Robert Zelnick, a reporter for the Anchorage Daily News. The allegedly libelous portion of the article reads in part as follows: • The city of Nome is dominated economically, politically, and socially by the liquor merchants. It is the distribution center for legal and illegal liquor traffic throughout the northwest. Liquor interests control the city council. Some booze is furnished minors by cab companies, which in turn are owned by the liquor interests. Individual proprietors furnish liquor illegally on credit. They sell booze for money, ivory, and even federal food stamps. Appellants claimed that this particular part of the article "placed responsibility for the illegal sale of liquor to minor children squarely" on them and by implication asserted that the cab companies were guilty of criminal conduct. After numerous pre-trial depositions had been taken, appellee Northern Publishing Company moved for summary judgments on the ground that the writing in question was a matter of public interest, and that under the standards of New York Times Company v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), appellants were required, under the First Amendment, to demonstrate that any defamatory statements contained in the article had been made with knowledge of their falsity or with reckless disregard of whether they were false or not. The superior court granted Northern Publishing Company summary judgments in both libel actions. In so doing, the trial court held that the questioned publication embodied comment upon a matter of legitimate public interest, and that the owners of the taxi cab companies were required to show that any defamatory falsehood alleged as libel was uttered with "knowledge that it was false or with reckless disregard of whether it was false or not." We affirm. At the time the summary judgments were rendered and until just recently, it remained undecided whether the New York Times articulation of the limitations upon state libel laws imposed by the constitutional guarantees of freedom of speech and of the press was applicable to a factual situation involving a private individual who is neither a public official nor a public figure but is involved in an event of public or general concern. In a line of cases commencing with New York Times, the Supreme Court has had occasion to hold that various state libel laws conflicted with the guarantees of freedom of speech and press provided for in the First Amendment to the United States Constitution. New York Times held that in a civil libel action by a public official against a newspaper the public official could not recover unless he proved by clear and convincing proof that an asserted defamatory falsehood was uttered with "knowledge that it was false or with reckless disregard of whether it was false or not." The New York Times standard was subsequently held to apply to "public figures." Curtis Publishing Company v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). After the instant appeals had been argued to this court, the Supreme Court of the United States was presented with the question as to whether "the New York Times' knowing or reckless falsity standard applies in a state civil libel action brought not by a 'public official' or a 'public figure' but by a private individual for a defamatory falsehood uttered about the individual's involvement in an event of public or general interest." In Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 52, 91 S.Ct. 1811, 1824, 29 L.Ed.2d 296 (1971), Justice Brennan, writing for a majority of the Supreme Court, answered the question affirmatively, saying: We thus hold that a libel action, as here, by a private individual against a licensed radio station for a defamatory falsehood in a newscast relating to his involvement in an event of public or general concern may be sustained only upon clear and convincing proof that the defamatory falsehood was published with knowledge that it was false or with reckless disregard of whether it was false or not. Under the Supremacy Clause, Rosen-bloom is controlling, and we therefore hold that the superior court was correct in deciding that the owners of the taxi cab companies were required to meet the New York Times standard in order to recover against Northern Publishing Company. We further hold that the trial court correctly determined that no genuine issue as to a material fact was raised under the New York Times criterion. Our study of the records pertaining to the summary judgments has led us to the conclusion "that none of the proofs, considered either singly or cumulatively, satisfies the constitutional standard with the convincing clarity necessary to raise a jury question whether the defamatory falsehoods were [published] with knowledge that they were false or with reckless disregard of whether they were false or not." The superior court's entry of summary judgments in favor of Northern Publishing Company in these consolidated cases is affirmed. CONNOR and ERWIN, JJ., not participating. . The cases have been, consolidated for purposes of this appeal. . New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 11 L.Ed.2d 686, 706 (1964). In his conclusions of law, the trial judge decided in part: 1. That the publication herein concerned a subject of legitimate public interest. 2. That the publication herein comes within the legal standards announced in New York Times Co. v. Sullivan, 376 U.S. 254 [84 S.Ct. 710], 11 L.Ed. 2d 686 (1964) and Pearson v. Fairbanks Publishing Co., 413 P.2d 711 (Alaska 1966). ⅝ * ⅝ # ⅝ 5. Plaintiffs have not presented any evidence nor shown that they could produce any evidence at the trial to indicate that the printing was malicious or was made with reckless disregard of the truth. The mere hope of questioning the credibility of the defendant's witnesses is not sufficient to resist summary judgment, [citation omitted] . For a concise outline and summary of the decisions of the Supreme Court of the United States in which the term "public figures" has been expansively construed, see Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 30, n. 1, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971). . Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 31, 91 S.Ct. 1811, 1814, 29 L.Ed. 2d 296 (1971). . It is apparent that the "Justice in the Bush" series of articles authored by Robert Zelnick concerned matters of public or general concern. Equally apparent is the conclusion that the alleged defamatory falsehood regarding illegal distribution of intoxicating beverages to minors in the city of Nome concerned a matter of public or general concern. . Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 55, 91 S.Ct. 1811, 1825, 29 L.Ed.2d 296 (1971).

10562140

George Ronald ROBINSON, Appellant, v. STATE of Alaska, Appellee

Robinson v. State

1971-07-26

No. 1347

681

682

487 P.2d 681

487

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:16.911957+00:00

CAP

Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, JJ-

George Ronald ROBINSON, Appellant, v. STATE of Alaska, Appellee.

George Ronald ROBINSON, Appellant, v. STATE of Alaska, Appellee. No. 1347. Supreme Court of Alaska. July 26, 1971. Herbert D. Soil, Public Defender, Meredith A. Wagstaff, Asst. Public Defender, Anchorage, for appellant. John E. Havelock, Atty. Gen., Juneau, Seaborn J. Buckalew, Jr., Dist. Atty., Robert L. Eastaugh, Asst. Dist. Atty., Anchorage, for appellee. Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, JJ-

528

3151

OPINION PER CURIAM. On October 27, 1969, appellant was indicted for the crime of robbery. In a pretrial motion, appellant requested production of grand jury notes and/or transcript. At the hearing on the motion before Judge Moody, the court indicated that it examined the grand jury minutes which showed only the number of witnesses that were present before the grand jury and there was no transcript of the testimony. The minutes showed that a sufficient vote for a true bill against the defendant, Robinson, had been made. On January 8, 1970, the indictment was dismissed, but subsequently, on February 24, 1970, appellant was reindicted for the same crime of robbery and a second count of robbery with a firearm. The case was reassigned to a different trial judge, and the appellant asked to renew various motions which had been made before Judge Moody when the case appeared on the first indictment. The court indicated that it did not have the motions in the file, and it is apparent from the record that the court did not know anything about the motions which had been made. The motion for production of grand jury minutes was not specifically mentioned. Appellant argues that the court erred in denying his motion for production of grand jury notes or transcript, but we find that this argument ignores the court's finding. Even granting that the proper motion had been made before the second trial judge, it is obvious that if there is no transcription or official record of testimony which could be produced, there can be no error for failure to produce it. Appellant was indicted on two counts: Count I, robbery; and Count II, use of a firearm in the commission of a felony. At the close of all the evidence at the trial, but before the case went to the jury, appellant moved to dismiss the second count on the basis that Whitton v. State, 479 P.2d 302 (Alaska 1970), required dismissal. Whitton provides specifically that only one sentence may constitutionally be imposed on the two counts charged herein, but says nothing about the submission of both counts to the jury. We find no error in this case in submitting both counts to the jury for their consideration. The decision of the trial court is affirmed. . Both appellant and appellee acknowledge that there was no testimony recorded at either session of the grand jury which returned an indictment and both focus on the original hearing and ruling as being representative of what would have happened at a hearing under the second indictment. We limit our consideration to that state of the facts. . The only specific information available was the name of each testifying witness and these names were endorsed on the indictment as required by Crim.R. 7(c).

10557556

Margaret HORACE, on her own behalf and as parent and next friend of her child, Linda Horace, Evelyn Bailey, on her own behalf and as parent and next friend of her child, Linda Bailey, all on their own behalf and on behalf of all other persons similarly situated, Appellants, v. Frederick P. McGINNIS, Commissioner, Alaska Department of Health and Welfare, and Stanley P. Harris, Director, Alaska Division of Public Welfare, Appellees

Horace v. McGinnis

1972-03-13

No. 1448

534

536

494 P.2d 534

494

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:29.676845+00:00

CAP

Before BONEY, C. J., and RABINO-WITZ, CONNOR and ERWIN, JJ.

Margaret HORACE, on her own behalf and as parent and next friend of her child, Linda Horace, Evelyn Bailey, on her own behalf and as parent and next friend of her child, Linda Bailey, all on their own behalf and on behalf of all other persons similarly situated, Appellants, v. Frederick P. McGINNIS, Commissioner, Alaska Department of Health and Welfare, and Stanley P. Harris, Director, Alaska Division of Public Welfare, Appellees.

Margaret HORACE, on her own behalf and as parent and next friend of her child, Linda Horace, Evelyn Bailey, on her own behalf and as parent and next friend of her child, Linda Bailey, all on their own behalf and on behalf of all other persons similarly situated, Appellants, v. Frederick P. McGINNIS, Commissioner, Alaska Department of Health and Welfare, and Stanley P. Harris, Director, Alaska Division of Public Welfare, Appellees. No. 1448. Supreme Court of Alaska. March 13, 1972. Linn H. Asper, Alaska Legal Services, Fairbanks, Phillip B. Byrne, Alaska Legal Services, Anchorage, for appellants. John E. Havelock, Atty. Gen., Juneau, Monroe N. Clayton, Dist. Atty., Lyle R. Carlson, Asst. Dist. Atty., William Christian, Asst. Atty. Gen., Fairbanks, Richard A. Bradley, Acting Deputy Atty. Gen., Juneau, for appellees. Before BONEY, C. J., and RABINO-WITZ, CONNOR and ERWIN, JJ.

1437

8719

OPINION ERWIN, Justice. This is a class action challenging the validity of AS 47.25.410(3) to the extent that it defines a "dependent child", for purposes of Aid to Families with Dependent Children (hereinafter AFDC) benefits, as "a needy child under 18 years of age . . . ." Appellants unsuccessfully argued below, and assert here, that Alaska's under-the-age-of-18 eligibility requirement is inconsistent with § 406(a) (2) of the Social Security Act, 42 U.S.C. § 606(a) (2), and therefore void under the Supremacy Clause of the United States Constitution. Section 406(a) (2) defines a "dependent child" for purposes of the AFDC program as one who is (A) under the age of eighteen, or (B) under the age of twenty-one and . a student regularly attending a school, college or university, or regularly attending a course of vocational or technical training designed to fit him for gainful employment. Appellants argue that states must adopt this definition. The action was instituted on May 28, 1970, by appellants Margaret Horace and Evelyn Bailey, individually, and on behalf of their daughters, Linda Horace and Linda Bailey. Appellants' action was brought, pursuant to Alaska Rule of Civil Procedure 23, on behalf of all persons similarly situated. The members of the plaintiff class include "all families and children in the State of Alaska otherwise eligible for aid under AFDC, who are denied such benefits as to certain children for the sole reason that said children are over the age of 18 years, despite the fact that said children are still attending school and are under the age of -21 years." The appellees, Frederick P. McGinnis and Stanley P. Harris, are officials responsible for the administration of AFDC benefits in Alaska. The sole issue below and on appeal is whether the federal definition of a dependent child contained in 42 U.S.C. § 606(a) (2) represents a mandatory classification for participation in the federally-funded AFDC welfare program. The federal AFDC program is one of the four "categorical assistance" programs established by the Social Security Act of 1935. Funded by matching federal grants-in-aid, the individual welfare programs are administered by the states. Each participating state must obtain approval of its plan from the Secretary of Health, Education, and Welfare to be eligible for federal funding. The state's plan must conform with the requirements of the Social Security Act, and with the rules and regulations promulgated by H. E. W. One of the statutory requirements is that "aid to families with dependent children shall be furnished with reasonable promptness to all eligible individuals." 42 U.S.C. § 602(a) (10). As noted above, the definition section of the Act defines a "dependent child" as one "who is (A) under the age of eighteen, or (B) under the age of twenty-one and [a student]." 42 U.S.C. § 606(a) (2). Appellants contend that "[w]hen this definition is incorporated in 42 U.S.C. § 602(a) (10), the requirement is that states must provide assistance . to needy children between the ages of 18 and 21 who are still attending school." There has been considerable litigation in recent years over whether the language of the federal statute defining beneficiaries is mandatory or merely sets a maximum limitation on federal participation in state AF DC programs. However, a recent United States Supreme Court case has settled the dispute and dictates the result in the case at bar. In Townsend v. Swank, 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971), the Court held that an Illinois statute under which needy dependent children 18 through 20 years old qualified for AFDC benefits if attending a high school or a vocational training school, but not if attending college, was in conflict with 42 U.S.C. § 606(a) (2) and therefore violative of the Supremacy Clause. However, in so holding the Court distinguished between state participation in a new federally-eligible age group program and state definition of eligibility within such a new age group: [Legislative] history does show that whenever Congress extended AFDC eligibility to older children — from those under 16 to those 16-17, and finally to those 18-20 — Congress left to the individual States the decision whether to participate in the program for the new age group. There is no legislative history, however, to support the proposition that Congress also gave to the individual States an option to tailor eligibility standards within the age group, and thus exclude children eligible under the federal standards. 404 U.S. at 287, 92 S.Ct. at 506, 30 L.Ed.2d at 454. More particularly the Court made the following observation: The first provision for the age group 18-20 came in 1964 when benefits were authorized but limited to children attending high school or vocational school. 78 Stat. 1042. As in the case of the 1939 amendments extending aid to children 16-17 regularly attending school, the States had the choice whether to participate in this new program; S.Rep. No. 1517, 88th Cong., 2d Sess., 2 (1964), expressly stated that 'extension of the program in that manner would be optional with the States.' When in 1965 Congress amended § 406(a) (2) (B) in the form now before us nothing was said to indicate that States which had adopted the 1964 program limited to children attending vocational schools were free to continue that limited program and not extend it to children 18-20 attending a college or university, (emphasis added) 404 U.S. at 289, 92 S.Ct. at 507, 30 L.Ed.2d at 454-455. Since Illinois had elected to participate in the federal program for aid to 18-20 years olds, it was required by the Supremacy Clause to conform its eligibility requirements to the federal standards for that age group in order to obtain federal financial support. In contrast, the Alaska legislature has chosen not to give any aid, under the AFDC program, to children between the ages of 18 and 21. The Townsend opinion makes it clear that Congress expressly left to the states the option not to participate in the program of aid for that age group. The judgment of the superior court is affirmed. . Art. VI. An apparently equivalent theory of contractual conditions could also be used. Appellees concede that if a conflict exists then the state provision is void. . The four include Old Age Assistance (OAA), 42 U.S.C. § 301 et seq; Aid to Families with Dependent Children (AFDC), 42 U.S.C. § 601 et seq; Aid to the Blind (AB), 42 U.S.C. § 1201 et seq; and Aid for the Permanently and Totally Disabled (APTD), 42 U.S.C. § 1351 et seq. . For example, the complex formula for federal funding of the AFDC program is contained in 42 U.S.C. § 603 under which federal payments to a state are computed on the basis of the total estimated quarterly expenditures under the state's program. Since no payments may be made to 18-20 year olds under Alaska's program of assistance, no federal monies are received by the state for such purposes. . 42 U.S.C. § 602. . § 606(a) (2) (B) was added by amendment in 1964 and 1965. AS 47.25.410 (3) was enacted into law in 1949. . The decisions of the United States District Courts directly support the view taken by the trial court herein that the federal statutory definition of a dependent child is not mandatory. Alexander v. Swank, 314 F.Supp. 1078 (N.D.I11.1969) ; McClellon v. Shapiro, 315 F.Supp. 484 (D.Conn.1970) ; Barksdale v. Shea, No. C 1967 (D.C.Colo., decided March 1, 1971) (unreported). However, language in two previous decisions of the United States Supreme Court could be interpreted as supporting the view taken by appellants that the federal statute is binding on all states accepting federal funds. King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968) ; Dandridge v. Williams, 397 U.S. 471, 477, 90 S.Ct. 1153, 25 L.Ed.2d 491, 497 (1970).

10555798

Wesley William HOOD, Appellant, v. Bonnie G. SMEDLEY, Warden, Alaska State Jail, Anchorage, Appellee

Hood v. Smedley

1972-06-12

No. 1406

120

123

498 P.2d 120

498

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:36.285560+00:00

CAP

Before BONEY, C. J., and RABINO-WITZ, CONNOR and ERWIN, JJ.

Wesley William HOOD, Appellant, v. Bonnie G. SMEDLEY, Warden, Alaska State Jail, Anchorage, Appellee.

Wesley William HOOD, Appellant, v. Bonnie G. SMEDLEY, Warden, Alaska State Jail, Anchorage, Appellee. No. 1406. Supreme Court of Alaska. June 12, 1972. Allen McGrath, of McGrath & Flint, Anchorage, for appellant. Charles M. Merriner, Asst. Dist. Atty., Anchorage, John E. Havelock, Atty. Gen., Juneau, Seaborn J. Buckalew, Jr., Dist. Atty., for appellee! Before BONEY, C. J., and RABINO-WITZ, CONNOR and ERWIN, JJ.

1678

10137

OPINION CONNOR, Justice. In this appeal from the denial of a writ of habeas corpus we are asked to decide two questions: whether the appellant's conviction for reckless driving under AS 28.35.040 must be voided because appellant, an indigent, was not afforded counsel at state expense, and whether his incarcera tion because of his inability to pay the $300 fine imposed was a denial of equal protection of the law. Appellant entered'a plea of guilty in district court to the reckless driving charge. He was sentenced to 90 days imprisonment and a fine of $1,000. Seventy-five days and $700 were suspended. At no stage of the proceedings was appellant represented by counsel. According to a stipulated statement of the case, appellant was indigent and unable to hire private counsel to represent him at any stage of the proceedings. Nor did the state provide him with counsel at public expense. On September 17, 1970, appellant filed a writ of habeas corpus in superior court. At that time he had already served the 15 days imprisonment but was being held in custody in lieu of the payment of his $300 fine. It is stipulated that appellant's failure to pay the fine was due solely to his indigency. In our recent decision in Alexander v. City of Anchorage, 490 P.2d 910 (Alaska 1971), we held that indigents are entitled to appointed counsel at public expense in any misdemeanor prosecution where there is a possibility of incarceration, loss of a valuable license, or imposition of a heavy fine upon conviction. In the case before us there was such a possibility, and it was realized when appellant was convicted. Under our holding in Alexander the writ should be granted and the conviction vacated. Because the instant case was on appeal to this court when we decided Alexander, we need not decide whether the holding in that case must be given complete retroactive effect. Fresneda v. State, 458 P.2d 134, 143 n. 28 (Alaska 1969). Because there is a possibility of retrial and conviction upon remanding this case, we must reach the second issue presented on appeal. Defendant asserts that his further imprisonment under AS 12.55.010 is unconstitutional because the incarceration is not imposed for any penological purpose but in lieu of the $300 fine that he is unable to pay because of his indigency. Under Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), and Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), our decision has largely been made for us. In Williams the court struck down a statutory system by which a state prisoner could be held beyond his term of imprisonment in order to "work off" a fine which he was unable to pay because of his indigency. This imposed an impermissible discrimination, resting on ability to pay, and thus violated the Equal Protection Clause of the United States Constitution. In Tate the court was presented with a case in which only fines had been imposed. The defendant, an indigent person, was committed to jail in lieu of payment of the fines. Because imprisonment stemmed solely from the indigency of the defendant, it was held to work the same invidious discrimination which was held unconstitutional in Williams. In contravention of the principles laid down in Williams and Tate, AS 12.55.-010 provides that a defendant who does not pay a fine may be imprisoned until the fine is satisfied, with a credit of $5.00 for each day served and an additional credit of $5.-00 for each day worked. We must, therefore, hold that the statute, when applied to an indigent defendant, is unconstitutional. Similarly, we must hold that AS 12.55.030, which, upon proof of indigency, limits the sentence in lieu of payment of a fine to 30 days, is unconstitutional. We must emphasize that the doctrine of Williams and Tate does not require the total elimination of fines. Such a result would be most undesirable. "To impose imprisonment in every case would leave an indigent's plight unchanged and promote an inverse discrimination, because the employed man with funds would suffer a greater penalty." State v. Tackett, 483 P.2d 191, 192 (Hawaii 1971). The injustice that is to be remedied is not the imposition of the fine itself, but the requirement that it be satisfied immediately or be automatically converted into a jail term. There are methods which the State of Alaska may employ to serve its valid interest in enforcing the payment of fines. The United States Supreme Court has noted that the states are free to choose from a variety of alternatives. Williams v. Illinois, supra, 399 U.S. at 245, 90 S.Ct. 2018. Several states have a statutory procedure for payment of fines in installments. Other suggested procedures are work parole systems to enable the indigent to earn funds to pay his fine, "day fines" (the assessment of fines according to the ability to pay), and deferred payment plans to allow the defendant time to collect sufficient resources to meet his obligation to the state. Note, Fining the Indigent, 71 Col-um.L.Rev. 1281, 1285-88 (1971); Note, Imprisonment for Nonpayment of Fines and Costs: A New Look at the Law and the Constitution, 22 Vand.L.Rev. 611, 627 (1969); ABA Project on Minimum Standards for Criminal Justice, Sentencing Alternatives and Procedures, § 2.7 at 18-20 (1968). Because AS 12.55.010 is unconstitutional as applied to the indigent offender, we should consider whether, in Alaska, constitutionally valid alternatives are available. AS 12.55.100 provides one solution to the problem. Under that statute conditions may be imposed in an order granting probation. Since probation may be ordered even though a fine is the only penalty, this provision allows an alternative to the immediate payment of the fine. This assumes that the court, within its discretion, determines that the case is a proper one for such disposition. We do not mean to imply that conditional probation under AS 12.55.100 should be used invariably for the collection of fines. This alternative should be resorted to only when probation is otherwise justified. The legislature has not enacted a specific statutory method for the enforcement of fines that is not violative of the equal protection rights of indigents. Until this occurs, the trial courts will be required to fashion constitutionally acceptable alternatives under their implicit power in sentencing matters, when the imposition of probation is not appropriate. Some courts, when faced with an appeal from the imposition of a jail term in lieu of a fine for an indigent defendant, have merely vacated the sentence on the constitutional grounds discussed above. We do not approve of this result. The legitimate objective of the sentencing court may be achieved by remanding for resen-tencing under a valid method. While we do not regard it necessary that the trial courts use only one of the constitutionally acceptable alternatives, we believe that the payment of fines by an installment method is a system most likely to assure the achievement of the penological objective in the usual case. We wish to emphasize that we are not determining the validity, in general, of imprisonment as a method of enforcing fines or discharging the obligation to pay fines. Each case presented must be considered upon its particular facts in order to ascertain whether the Equal Protection Clause has been complied with. We are aware that the payment of fines in installments, deferred payment, or the other methods of fine collection necessarily increases the administrative burden of the courts. But we can perceive of no other method which is constitutionally valid. Legislation in this area could materially lessen the administrative problem. Reversed and remanded. BOOCHEVER, J., not participating. . "A judgment that the defendant pay a fine shall also direct that he be imprisoned until the fine is satisfied, specifying the extent of the imprisonment, which cannot exceed one day for every $5 of the fine. In case the entry of judgment should omit to direct the imprisonment and the extent thereof, the judgment to pay the fine shall operate to authorize and require the imprisonment of the defendant until the fine is satisfied at the rate above mentioned. If the defendant chooses to work during the imprisonment, he may be granted an additional reduction of $5 of fine for each day worked. Prisoners may be employed only in undertakings that do not put them in competition with the product of free labor." . E. g., Cal.Penal Code § 1205; Mich.Comp. Laws § 769.3 (1948) ; Pa.Stat.Ann., Tit. 19, § 953-956 (1964), cited in the appendix to Williams v. Illinois, supra. . "(a) While on probation and among the conditions of probation, the defendant may be required (1) to pay a fine in one or several sums; (2) to make restitution or reparation to aggrieved parties for actual damages or loss caused by the crime for which conviction was had ; and (3)to provide for the support of any persons for whose support he is legally responsible. (b) The defendant's liability for a fine or other punishment imposed as to which probation is granted shall be fully discharged by the fulfillment of the terms and conditions of probation." . AS 12.55.090. . E. g., Simms v. United States, 276 A.2d 434 (D.C.App.1971); Booth v. State, 246 So.2d 791 (Fla.App.1971); Gary v. State, 239 So.2d 523, 524 (Fla.App.1970). . E. g., Colocado v. State, 251 So.2d 721, 724 (Fla.App.1971); Spurlock v. Noe, 467 S.W.2d 320, 322 (Ky.App.1971) ; State v. De Bonis, 58 N.J. 182, 276 A.2d 137, 147 (1971). . Other cases wliich have dealt with these problems are State v. De Bonis, 58 N.J. 182, 276 A.2d 137, 147 (1971), and In re Antazo, 3 Cal.3d 100, 89 Cal.Rptr. 255, 265, 473 P.2d 999, 1009 (1970).

10555797

Harley D. WERLEY, Appellant, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellee; UNITED SERVICES AUTOMOBILE ASSOCIATION, Cross-Appellant, v. Harley D. WERLEY, Cross-Appellee

Werley v. United Services Automobile Ass'n

1972-06-12

Nos. 1454, 1455

112

120

498 P.2d 112

498

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:36.285560+00:00

CAP

Before BONEY, C. J., and RABINO-WITZ and CONNOR, JJ.

Harley D. WERLEY, Appellant, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellee. UNITED SERVICES AUTOMOBILE ASSOCIATION, Cross-Appellant, v. Harley D. WERLEY, Cross-Appellee.

Harley D. WERLEY, Appellant, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellee. UNITED SERVICES AUTOMOBILE ASSOCIATION, Cross-Appellant, v. Harley D. WERLEY, Cross-Appellee. Nos. 1454, 1455. Supreme Court of Alaska. June 12, 1972. Bruce E. Gagnon and Joseph L. Young, of Atkinson, Conway, Young & Bell, Anchorage, for appellant-cross-appellee Wer-ley. Catherine S. Krendl and Murphy L. Clark, of Hughes, Thorsness, Lowe, Gantz & Clark, Anchorage, for appellee-cross-ap-pellant, United Services. Before BONEY, C. J., and RABINO-WITZ and CONNOR, JJ.

3931

24418

CONNOR, Justice. In this appeal we are called upon to interpret the meaning of certain "other insurance" clauses contained in three identical insurance policies. Through coincidence the policies were issued by the same company. We must determine what effect the "other insurance" clauses should have upon the uninsured motorist coverage provided by each policy. At issue in this case is whether appellant Werley, a passenger in his own car who had already recovered under the uninsured motorist protection of his own automobile insurance policy, is entitled to recover under identical provisions of two policies which extend coverage to him through the driver of his car. The identical "other insurance" provisions in each of the three policies would on their face prevent recovery. This case squarely presents the issue of whether Alaska should adopt the Oregon or "Lamb-Weston" rule of insurance law concerning conflicting "other insurance" clauses. The insurer, who prevailed below, cross-appeals on only one issue: whether the $400 award of attorney's fees was inadequate. The facts are relatively simple and, for the purpose of the motion for summary judgment, were stipulated between the parties. No issue of fact remains. The only question is which party is entitled to summary judgment as a matter of law. Appellant owned and was a passenger in an automobile driven by a Mrs. Pope. A collision occurred with a second car driven by an uninsured motorist, assumed to be negligent. It is agreed that Mrs. Pope was not negligent. Appellee, United Services Automobile Association, had issued three identical automobile liability policies with uninsured motorist limits of $15,000 per person and $30,000 per accident, one to plaintiff and two to the Popes. Appellant recovered $15,000 on his policy and now seeks an additional $15,000 on each of the two Pope policies. It is agreed that appellant's damages for the injuries received equal or exceed combined policy limits. U.S.A.A. refused payment on both Pope policies because of two "other insurance" clauses applicable to uninsured motorist coverage, found in all three policies: "Other Insurance: With respect to bodily injury to an insured while occupying an automobile not owned by the named insured, the insurance under Part IV shall apply only as excess insurance over any other simi- I lar insurance available to such insured and applicable to such automobile as primary insurance, and this insurance shall then apply only in the amount by which the limit of liability for this coverage exceeds the applicable limit of liability of such other insurance. "Except as provided in the foregoing paragraph, if the insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable II limits of liability of this insurance and such other insurance, and the company shall not be liable for a greater proportion of any loss to which this Coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance." In the settlement on his policy, plaintiff reserved the right to sue on the Pope policies. After suit was brought, both parties moved for summary judgment, appellee raising several additional grounds irrelevant to this appeal. Construing the above provisions, the superior court held that the clauses, "when read as a whole, are not conflicting. (Miller v. Allstate Ins. Co., [66 Wash.2d 871] 405 P.2d 712 [Wash.1965]; Russell v. Paulson, [18 Utah 2d 157] 417 P.2d 658 [Utah 1966]). Therefore, the clauses control the present situation and an additional recovery under the policies must be denied." I Appellant asserts that the "other insurance" clause conflicts with the statutory minimum coverage under AS 21.89.020, the uninsured motorist provisions in the Alaska Statutes, and should be disregarded by this court. While recognizing that the policy was issued before the effective date of AS 21.89.020, appellant urges that, even if we cannot apply AS 21.89.020, the 1966 amendment to AS 28.20.440 should be construed to have required all automobile policies issued after January 1, 1967, to provide minimum uninsured motorist coverage of $15,000 per person and $30,000 per accident. In Hart v. National Indemnity Co. we held that the provisions of AS 28.-20.440 are mandatory only if a policy is certified as proof of financial responsibility or is required by law due to a person's previously having been in an accident. We find no reason to alter this ruling in light of the 19.66 amendment and find it applicable to the instant case where no certification of financial responsibility was required. In conjunction with his claim that the "other insurance" clause is repugnant to the mandatory minimum coverage provision of our uninsured motorist statute, appellant argues that, by virtue of representations made at the time the policy was issued, appellee should be either estopped to deny applicability of the statute or that we should hold that the representation incorporated the statute into the policy by reference. However, even if we are to assume the applicability of AS 21.89.020 to this case, the provision in the statute allowing an individual to reject uninsured motorist coverage removes any conflict between the "other insurance" clause and the uninsured motorist statute. Because the statute permits rejection of uninsured motorist coverage, and appellee's representation included the privilege of rejecting such coverage, a policy provision which "waives" coverage in the event the insured has other available insurance does not directly contravene the statute. Therefore, we decide this issue in favor of the insurance carrier. II Appellant argues that we should disregard the "other insurance" clauses and hold U.S.A.A. liable to the combined policy limits. This argument presents the central issues in this appeal which are: first, whether the "other insurance" clauses create an ambiguity that cannot be resolved by logic or standards of interpretation commonly used by the courts in construing insurance policy provisions; and, second, if we cannot harmonize the clauses through interpretation, what method should be employed to resolve the conflict. Appellee asserts that, from a reading of the language of the policy, it is clear that appellant's policy was intended to provide primary coverage. From this it would follow that the "other insurance" clauses in the two Pope policies would bar further recovery by appellant. Where the terms of the policy are clear and unambiguous, we will, of course, give effect to the language. However, we must first determine whether appellant's policy, by its terms, must be regarded as secondary. Most, perhaps all, automobile liability insurance policies contain "other insurance" clauses providing that in the event of other applicable insurance, (1) this insurance shall not apply (an "escape" clause), or (2) that this insurance shall be excess only (an "excess" clause), or (3) there shall be a proration of the loss (a "proration" clause). Combinations of these are also found. U.S.A.A. argues that the prorata clause of the Werley policy provides that he, as owner of the automobile involved in the accident, can recover to the policy limit unless there is "other insurance" available to him. In U.S.A.A.'s view the Pope policies are available to Werley only for those amounts that exceed the Werley policy limit. U.S.A.A. contends that the Pope policies were not available to Werley for amounts that do not exceed the $15,000 policy limit of the Werley policy. Further, U.S.A.A. asserts that the clauses are clear and hence do not conflict as to amounts in excess of $15,000. U.S.A.A. contends that once the Werley policy had paid to its $15,000 limit, none of the policies could pay more because the excess clauses of the Pope policies apply only to the amount by which the limit of liability of their coverage exceeds the limit of liability of the primary policy. It is asserted that there is no liability under the Pope policies because no liability is created under the language of either policy for amounts exceeding $15,000. Appellant urges another view of the policies. In his analysis the policy clauses are void because each policy attempts to defer liability to the other policies. Werley points out that under paragraph II of his own policy's "other insurance" clause, his recovery on that policy is to be reduced or prorated by other available insurance. Following this language to its logical conclusion, Werley asserts that he is entitled to only $5,000 under his own policy since the two Pope policies are "other insurance" and both have $15,000 limits.' However, Werley feels that in looking to the two Pope policies, where he is not the named insured, no recovery is available since under paragraph I of the "other insurance" clause only excess coverage is available. Paragraph I also seeks to label "other insurance" as "primary" insurance. For this reason Werley contends that the label "primary" cannot be affixed to his policy, as it says nothing of being the primary policy and affirmatively states that it is prorata insurance. From the foregoing Werley concludes that a problem of circularity arises, with each policy deferring to the other two, there being no logical way to resolve the conflict or determine which policy should be given priority. The original reason for "other insurance" clauses was to prevent overinsurance and double recovery under property and fire insurance policies. But since there is a greatly diminished risk of fraudulent claims under an automobile liability insurance policy, this original purpose of "other insurance" clauses is of only slight importance. "It takes far less cunning to burn one's house or barn in order to collect in full from several insurers than it does to conspire with another that he purchase automobile liability and property damage insurance from several insurers and then collide with the first party in such a way as to do damage to both that party's car and person and thus effect a multiple recovery. The possibility of'serious injury or death resulting from such conspiracies should prove a powerful deterrent." Since there is less temptation to deliberately and fraudulently overinsure against automobile liability, these "other insurance" clauses "function solely to reduce or eliminate the insurer's loss in the event of concurrent .coverage of the same risk." Traditionally most courts have reconciled such conflicting policy language by determining which policy is "primary" and then assigning to that policy the entire loss. Several methods of determining this are: (1) the first policy purchased is "primary" ; (2) the policy giving the most specific coverage is "primary"; (3) the policy covering the primary tort-feasor is "primary"; (4) the owner's policy is primary and the driver's is secondary. A rapidly growing number of jurisdictions have followed the lead of Oregon and abandoned the traditional approach. This .new doctrine had its genesis in Oregon Auto Ins. Co. v. United States Fidelity & Guaranty Co., 195 F.2d 958 (9th Cir. 1952), which construed Oregon law absent a state decision on point. Prorata-excess and prorata-escape clauses were contained in the discussed policies. Noting the confusion in case law, the court regarded the reasoning exemplified in the case law as circular. Results were arbitrary and without reason, often depending upon which policy was read first. It was like determining the priority between the chicken and the egg. Since the two clauses were indistinguishable in meaning and intent, the court could not choose between them. If neither policy had contained its "other insurance" clause, under conventional insurance law principles the loss would have been prorated up to the respective policy limits. Therefore, the court held both clauses mutually repugnant and disregarded them. If the loss were less than the policy limits, it should be prorated according to the limits of both policies. If not, both policies would be effective up to their limits. This rule was adopted by the Oregon Supreme Court in Lamb-Weston, Inc. v. Oregon Auto. Ins. Co., 219 Or. 110, 341 P.2d 110, reh. denied, 219 Or. 110, 346 P.2d 643 (1959). One policy contained an excess clause while the other contained a prorata clause. But this was not important. The court found it as impossible to call either policy primary as to capture a "will o' the wisp". It recognized the "absurdity of attempting to assume that where conflicting 'other insurance' provisions exist by reason of overlapping coverages of the same occurrence the provisions of one policy must yield to the provisions of the other." Instead, citing Oregon Auto. Ins. Co., supra, it held "The 'other insurance' clauses of all policies are but methods used by insurers to limit their liability, whether using language that relieves them from all liability (usually referred to as an 'escape clause') or that used by St. Paul [Ins. Co.] (usually referred to as an 'excess clause') or that used by Oregon [Ins. Co.] (usually referred to as a 'prorata clause'). In our opinion, whether one policy uses one clause or another, when any come in conflict with the 'other insurance' clause of another insurer, regardless of the nature of the clause, they are in fact repugnant and each should be rejected in toto." Since the loss in Lamb-Weston was less than the total policy limits, it was prorated. This doctrine has been consistently followed in Oregon. Several cases are of particular importance. Smith v. Pacific Auto. Ins. Co., 240 Or. 167, 400 P.2d 512 (1965), is quite similar to the case at bar. A passenger in a car owned by a third person was injured by an uninsured motorist. His injuries far exceeded all policy limits. He settled with the owner's insurer, then sued his own under its uninsured motorist clause. The owner's policy had a prorata clause and the passenger's had an "excess" clause. The court rejected the insurer's traditional argument which would give effect to the "excess" clause; instead it followed Lamb-Weston. Holding that neither policy was "primary", it rejected both clauses in toto. The court also specifically rejected the insurer's argument that plaintiff should not be permitted to "stack" benefits under several policies. The court saw nothing wrong with stacking benefits. It was persuaded by the argument that both insureds had purchased policies directly benefiting the passenger. Since both companies had collected premiums for this protection, there could be no injustice in permitting recovery to the limits of both policies. Recently the United States district court in Alaska construed two clauses identical to Paragraph I of U.S.A.A.'s in Kackman v. Continental Ins. Co., 319 F.Supp. 540 (D.Alaska 1970). This too was a case concerning two policies, each of which provided uninsured motorist coverage. In the absence of a' determination by this court, the United States district court followed the Smith case, supra, under what it believed to be the better and more reasonable rule. It found the clauses to be circular and mutually repugnant. It held that they should be disregarded, and that the insured should be permitted to recover for his injuries up to the full limits of both policies. U.S.A.A. urges rejection of Lamb-Weston on the ground that it would entitle appellant to a windfall. It is argued that because he did not himself pay premiums on the Pope policies he should he denied recovery. We find the argument unpersuasive. First, there were three separate premiums paid. The fact that Wer-ley only paid one of these does not make recovery on the other two a windfall, as he was clearly an -insured beneficiary of the uninsured motorist coverage in the Pope policies. Second, the fact that Werley had a policy for $15,000 per person and $30,000 per accident does not manifest an intent on his part to limit his recovery from injury by an uninsured motorist in the event that other policies covering an accident could also benefit him. Third, the assertion of U.S.A.A. that Werley would recover three times as much as he would have received had he been hit by an insured motorist is untenable. It is implicit in this assertion that the hypothetical insured motorist would have been insured only for the minimal amount provided in the uninsured motorist coverage of the Werley and Pope policies. This assumption is not required and we cannot accept it. What Wer-ley would have received from an insured motorist is purely a matter of speculation. We hold that Lamb-Weston is the better rule of law and should be applied in all cases where conflicting "other insurance" clauses of the excess, prorata or escape types are found. We believe this to be the better and more reasonable rule on several grounds: "It does not arbitrarily pick one of the conflicting clauses and give effect to it; it does not deprive the insured of any coverage; it is not prejudicial in giving a windfall to one insurer at the expense of another; it does not encourage litigation between insurers; it does not delay settlements. On the other hand, it does enable underwriters to predict the losses of the insurers more accurately; it does preclude the use of illogical rules developed by the courts (e. g., first in time, specific v. general and primary tort-fea-sor doctrines); and it does give a basis for uniformity of result. In addition, prorating the loss among all insurers is a rule that can be applied regardless of the number of insurers involved and regardless of the type of conflicts that are created by the 'other insurance' clauses. Finally, the rule is simpler, more convenient and easier to apply than the majority rule." We cannot accept U.S.A.A.'s assertions that Lamb-Weston is undesirable because it has generated obstructionist litigation in other jurisdictions or that appellant will receive a windfall because the premium collected for the uninsured motorist coverage was small in amount. Any obstructionist litigation following adoption of the doctrine would merely represent an informed litigative choice by those members of the insurance industry who sought to get out from under the principle. When a jurisdiction has formulated a settled rule or principle, each person resisting its application must determine for himself whether the merits of his case warrant an exception to that principle or rule. As far as the small premium is concerned, the issuance of a policy of insurance is always a risk taking venture. Calculation of the premium to be charged for that risk is a matter within the competency of the insurance carrier. In light of the decision for appellant, we find it unnecessary to decide whether the attorney's fees awarded to appellee were inadequate. Since appellee can no longer be regarded as the prevailing party, the point is moot. We reverse and remand with instructions to enter judgment for appellant. Reversed and remanded. ERWIN and BOOCHEVER, JJ., not participating. . Lamb-Weston, Inc. v. Oregon Auto. Ins. Co., 219 Or. 110, 341 P.2d 110, reh. den., 219 Or. 110, 346 P.2d 643 (1959). . Mr. and Mrs. Pope had one policy for each of their two cars. . AS 21.89.020 provides : "(a) An automobile liability policy which insures an owner or operator of a motor vehicle against loss resulting from his liability for bodily injury or death, or for property injury or destruction, or both, which is sold in this state after January 1, 1969, by an insurance carrier authorized to transact business in this state, shall contain limits in at least the amount prescribed for a motor vehicle liability policy in AS 28.20.440(b) (2), and meet the requirements of AS 28.20.440(b) (3) unless waived as provided in that paragraph. "(b) This section may not be construed to apply only to automobile liability policies obtained to satisfy a requirement of AS 28.20." . 422 P.2d 1015 (Alaska 1967). . The 1966 amendment required that policies issued under the financial responsibility act include coverage for accidents in which uninsured motorists were involved. This change is found in § 440(b) (3). However, there has been no change in that part of AS 28.20.440(a) making the policy provisions mandatory only if it is certified as proof of financial responsibility or is required by law due to an individual having been involved in an accident. The Hart decision was based on the limiting effect of § 440(a), the unchanged portion of this statute. See Hart v. National Indem. Co., 422 P.2d at 1021. .Plaintiff's Exhibit A consisting of a page supplied to policy holders entitled "UNINSURED MOTORISTS COVERAGE General Information" states: "UNINSURED MOTORISTS COVERAGE IS REQUIRED BY LAW FOR POLICIES WRITTEN FOR: ALASKA, ARIZONA, ARKANSAS, COLORADO, FLORIDA, HAWAII, IDAHO, INDIANA, LOUISIANA, MICHIGAN, MISSISSIPPI, MISSOURI, NEBRASKA, NEVADA, NORTH CAROLINA, OHIO, PENNSYLVANIA, RHODE ISLAND, SOUTH DAKOTA, TEXAS, UTAH, AND WISCONSIN— . . . with right of rejection by the insured". . Cf. Pepsi Cola Bottling Co. v. New Hampshire Ins. Co., 433 P.2d 670 (Alaska 1967). . Note, Automobile Liability Insurance— Effect of Double Coverage and "Other Insurance" Clauses, 38 Minn.L.Kev. 838, 840 (1954). . Comment, "Other Insurance" Clauses: The Lamb-Weston Doctrine, 47 Ore.L. Rev. 430 (1968). . Note, Concurrent Coverage in Automobile Liability Insurance, 65 Colum.L.Rev. 319, 320 (1965). . Henderson v. Selective Ins. Co., 369 F.2d 143 (6th Cir. 1966); Carolina Cas. Ins. Co. v. Pennsylvania Threshermen & Farmers' Mut. Cas. Ins. Co., 327 F.2d 324 (3d Cir. 1964). See New Amsterdam Cas. Co. v. Fidelity & Cas. Co., 400 F.2d 237 (9th Cir. 1968); United Services Auto. Ass'n v. Russom, 241 F.2d 296 (5th Cir. 1957). . Globe Indem. Co. v. Capital Ins. & Sur. Co., 352 F.2d 236 (9th Cir. 1965) (Guam); Allstate Ins. Co. v. American Underwriters, Inc., 312 F.Supp. 1386 (N.D.Ind.1970); Vance Trucking Co. v. Canal Ins. Co., 251 F.Supp. 93 (D.S.C.1966), aff'd 395 F.2d 391 (4th Cir.), cert. denied, 393 U.S. 845, 89 S.Ct. 129, 21 L.Ed.2d 116 (1968); Continental Cas. Co. v. St. Paul Mercury Fire & Marine Ins. Co., 163 F.Supp. 325 (S.D.Fla.1958); Continental Cas. Co. v. New Amsterdam Cas. Co., 28 Ill.App.2d 489, 171 N.E.2d 406 (1960); Woodrich Constr. Co. v. Indemnity Ins. Co., 252 Minn. 86, 89 N.W.2d 412 (1958); Arditi v. Massachusetts Bonding and Ins. Co., 315 S.W.2d 736 (Mo.1958); Curran v. State Auto. Mut. Ins. Co., 25 Ohio St.2d 33, 266 N.E.2d 566 (1971) (alternative holding); Sparling v. Allstate Ins. Co., 249 Or. 471, 439 P.2d 616 (1968); Liberty Mut. Ins. Co. v. Truck Ins. Exch., 245 Or. 30, 420 P.2d 66 (1966); Firemen's Ins. Co. v. St. Paul Fire and Marine Ins. Co., 243 Or. 10, 411 P.2d 271 (1966). . 341 P.2d at 116. . Id. at 118-119. . Id. at 119. . In Firemen's Ins. Co. v. St. Paul Fire & Marine Ins. Co., 243 Or. 10, 411 P.2d 271, 274 (1966), the court observed: "This court believes it is good public policy not to put an injured plaintiff, or a defendant who is fortunate enough to have duplicate coverage, in a position where there is any possibility one insurer can say, 'After you, my dear Alphonse!' while the other says, 'Oh, no, after you, my dear Gaston.' They must walk arm in arm through the door of responsibility." . Under tlie Pope policies an "Insured" is defined to include, under Part IV, the named insured and any relative, and under sub-paragraph (b), "any other person while occupying an insured automobile." An "insured automobile" is defined to in-dude a "non-owned automobile while being operated by the named insured." . Note, Conflicts Between "Other Insurance" Clauses in Automobile Liability Insurance Policies, 20 Hastings L.J., 1292, 1304 (1969) (footnotes omitted).

10556873

The CONTINENTAL INSURANCE COMPANY, Appellant, v. Charles W. BUSSELL, d/b/a Alaska Bussell Electric Company, Appellee

Continental Insurance Co. v. Bussell

1972-06-26

No. 1517

706

711

498 P.2d 706

498

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:36.285560+00:00

CAP

Before BONEY, C. J., and RABINO-WITZ, CONNOR and BOOCHEVER, JJ.

The CONTINENTAL INSURANCE COMPANY, Appellant, v. Charles W. BUSSELL, d/b/a Alaska Bussell Electric Company, Appellee.

The CONTINENTAL INSURANCE COMPANY, Appellant, v. Charles W. BUSSELL, d/b/a Alaska Bussell Electric Company, Appellee. No. 1517. Supreme Court of Alaska. June 26, 1972. Kenneth P. Jacobus, of Hughes, Thorsness, Lowe, Gantz & Clark, Anchorage, for appellant. William J. Bailey and William M. Bank-ston, of Croft & Bailey, Anchorage, for appellee. Before BONEY, C. J., and RABINO-WITZ, CONNOR and BOOCHEVER, JJ.

2172

13671

BOOCHEVER, Justice. Charles W. Bussell operates an electrical contracting business which is known as Alaska Bussell Electric Company. He entered into an employment agreement with the International Brotherhood of Electrical Workers which required Bussell to provide life insurance coverage for each employee while traveling for the employer in an aircraft in the amount of Twenty-Five Thousand Dollars ($25,000.00), and in the event of employee's death, payable to his estate. After entering into that contract, he purchased a liability insurance policy from the Continental Insurance Company. Dennis Young, an employee of Bussell and a member of the union, was killed in an airplane crash while traveling in the course of his employment. His executrix brought suit against Bussell for recovery of the $25,000 "death benefit" under the union contract. He filed a third party complaint against Continental and its agent, Dawson and Company of Alaska, Inc., alleging inter alia, that Continental had denied that the policy covered the executrix's claim and had refused to defend the action. Bussell sought a declaratory judgment as to the coverage of the policy and Continental's liability thereunder. In its answer Continental denied that the policy in question covered the obligation upon which the executrix's claim was based. Continental moved for summary judgment as to Bussell's first claim which alleged that the policy encompassed his liability for failure to provide life insurance under the terms of the union contract. Bussell opposed Continental's motion and he, himself moved for summary judgment on the same issue. The superior court by Memorandum of Decision and Judgment denied Continental's motion for summary judgment and granted that of Bussell. It is from that judgment that Continental now appeals. The policy contained three "Coverage Parts" entitled respectively: Comprehensive Automobile Liability Insurance, Comprehensive General Liability Insurance and Contractual Liability Insurance. The automobile part obviously does not provide the coverage here in issue. The Comprehensive General Liability part specifies: COVERAGE A — BODILY INJURY LIABILITY COVERAGE B — PROPERTY DAMAGE LIABILITY The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of A. bodily injury or B. property damage to which this insurance applies, caused by an occurrence . Immediately following the above provision there appeared a section entitled "Exclusions" which stated: This insurance does not apply : (a) to liability assumed by the insured under any contract or agreement except an incidental contract . . . , Since the union contract is not an "incidental contract," Bussell's potential liability under that contract is excluded from the coverage afforded by the Comprehensive General Liability part. We therefore must focus on the Contractual Liability Insur-anee provision in order to resolve the issue raised by this appeal. That part specifies: I. COVERAGES — CONTRACTUAL BODILY INJURY LIABILITY CONTRACTUAL PROPERTY DAMAGE LIABILITY The company will pay on behalf of the insured all sums which the insured, by reason of contractual liability assumed by him under any written contract of the type designated in the schedule for this insurance, shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence . [Emphasis added.] Under the heading "Designation of Contracts" in the "schedule" referred to above, there was typewritten : "all written contracts provided under this coverage port[ion]." Before addressing ourselves further to the issue of the policy's coverage, however, we must determine the source of Bussell's anticipated liability to the estate of Dennis Young. The estate's claim for relief is based on the theory that Young was a third party beneficiary of the union-Bussell contract. We must therefore examine the nature of Bussell's obligation under that contract. Bussell has urged upon us a theory of contract construction whereby he may perform his contractual duty to purchase life insurance either by procuring the requisite policy or by responding in damages for his failure to do so. Contrary to the plain meaning of the contract language he would thus have us permit him to become, in effect, a self-insurer. When Bussell convenanted to procure a life insurance policy for the benefit of his employees he undertook a duty which could be discharged only by the purchase of such a policy. The union had the right prior to Young's death to insist upon specific performance by Bussell of the obligation to procure the policy rather than await the eventual result of a damage suit based on the breach of the union contract. The union was not required to rely on Bussell's financial responsibility as opposed to that of a life insurance company. Conversely, had Bussell in good faith secured an appropriate policy from a life insurance company, he would have complied with his duty under the union contract regardless of the financial ability of such company to pay the executrix in accordance with the policy terms. Bussell, under the contract, had no direct obligation to pay the $25,000 as damages. In the event, however, that Bussell failed to discharge his duty to obtain a life insurance policy, the estate of Young would have the right to sue for damages for breach of the covenant to procure the life insurance policy. Any judgment which might be obtained in such a suit would be based on the breach of the duty which Bussell undertook upon entering into the contract with the union. As stated in the RESTATEMENT OF CONTRACTS: A distinction exists between the discharge of a primary duty created by the formation of a contract and that of the duty to make compensation in damages, which is the only remedial duty enforceable for breach of most contractual duties . . . . In this chapter the expression 'contractual duty' is confined to the primary duty, and the term 'duty to make compensation' is used to express the secondary duty. Young, as a third party beneficiary of the union contract, was entitled to performance by Bussell of his contractual duty to secure the life insurance. Bussell's contractual duty was established at the time the contract was made. A breach of that duty would change his relationship with Young and give rise to the obligation to respond in damages for the breach. There is no justification, however, for adopting Bussell's argument that this obligation to respond in damages was contemplated by the parties to be an alternative to the primary obligation. It is our conclusion that any damages for which Bussell may be held liable in the Young-Bussell suit must arise from his breach, if any, of the contract to procure the life insurance. We must next determine whether or not the Contractual Liability Insurance part of the policy which Bussell purchased from Continental covered damage judgments suffered by him due to his breach of contractual duties. The Contractual Liability Insurance portion of the policy must be viewed in conjunction with the other sections, as we are bound by statute to construe the policy by the entirety of its terms. We find it unnecessary to specify in detail all that the contractual liability section may indeed cover, since such coverage is, in any case, limited to bodily injury or property damage liability assumed by the insured. The general purpose for such contractual liability coverage is set forth in 1 Long, The Law of Liability Insurance § 10.19 as follows: Public liability forms and owners and contractors liability forms of insurance generally exclude liability assumed by the insured under any contract or agreement, except incidental contracts defined in the policy. Hence, liability assumed by the insured under a hold harmless agreement is outside the scope of the coverage and must be insured specifically- Coverage for this risk is afforded by the standard contractual liability coverage part which is available for attachment to the basic liability policy jacket. [Emphasis added.] Neither of the coverage portions in issue applies to damages arising from an insured's breach of a contractual duty. There is no language in any section of the policy which even tangentially alludes to coverage protecting against breaches of contract. Nor does the "schedule" which was attached to the policy contain any language expanding its coverage beyond that provided in the body of the policy. It is our conclusion that the language of the policy does not reflect any intention on the part of either Bussell or Continental to include losses due to breach of contractual duties among its coverages. The court below erroneously found the language of the contract alone to be a sufficient basis for awarding summary judgment to Bussell. As discussed above, the language itself does not support that finding. This ruling, however, does not end our analysis. We have held that insurance policies are to be looked upon as contracts of adhesion for the purpose of determining the rights of the parties thereto. In so construing a policy we do not require as a condition precedent that ambiguities be found in the policy language. All that is required is that the parties be of such disproportionate bargaining power that the insured could not have negotiated for variations in the terms of the standard policy. Thus the finding that a policy is a contract of adhesion depends not upon its language, but upon the relationship of the parties. The result of such a finding is that the policy is construed so as to provide that coverage which a layman would reasonably have expected given his lay interpretation of the policy's terms. If such a construction would give rise to a reasonable expectation that the policy now before us would provide life insurance coverage or, in the alternative, coverage for Bussell's breach of contract to procure a life insurance policy, the decision of the trial court must stand undisturbed. At the time Bussell purchased the policy he knew of his obligation under the union contract to procure life insurance. The Continental policy's coverage portions uniformly refer to bodily injury and property damage liability and nowhere use language which a layman could reasonably construe as providing life insurance. The policy itself is entitled "Liability Insurance Policy" as contrasted with the title of a life insurance policy. Equally absent is language which a layman might reasonably expect to provide indemnification should he breach a contractual duty. Bussell may still have recourse against Continental and Dawson under his other claims based on an alleged agreement to procure all insurance required by his business or on an alleged negligent failure to procure such policies; but as to the subject claim founded on the policy, the decision of the trial court is reversed. The case is remanded with instructions that summary judgment be entered in favor of the Continental Insurance Company as to the First Claim of the Third Party Complaint and that further proceedings be held with reference to the remaining claims set forth in the Complaint and Third Party Complaint. ERWIN, J., not participating. . The second and third "claims" stated in the complaint were against Dawson as well as Continental. They are based on alleged agreements to furnish Bussell all insurance required by his business and on negligent failure to secure such policies. These claims are not in issue on this appeal. . Tlie policy defined "incidental contract" as "any written (1) lease of premises, (2) easement agreement . (3) undertaking to indemnify a municipality (4) sidetrack agreement, or (5) elevator maintenance agreement." . The policy defines "contractual liability" as "liability expressly assumed under a written contract or agreement; provided, however, that contractual liability shall not be construed as including liability under a warranty of the fitness or quality of the named insured's products or a warranty that work performed by or on behalf of the named insured will be done in a workmanlike manner . . " . Cf. Allen v. Allen, 201 Okl. 1, 201 P.2d 786 (1948) ; Annot. 12 A.L.R.2d 983 (1950). . Restatement of Contracts § 385, comment a (1932) ; see also 1A A. Corbin, Contracts § 182, at 144 (1963) ; 1 S. Williston, Contracts § 130A, at 538 (3d ed. 1957). . 1A A. Corbin, Contracts § 182, at 144 (1963). .AS 21.42.230 provides : Construction of policies. Each insurance contract shall be construed according to the entirety of its terms and conditions as set out in the policy and as amplified, extended, or modified by a rider, endorsement, or application which is a part of the policy. .Cf. Silva & Hill Constr. Co., Inc. v. Employers Mut. Liability Ins. Co., 12 Cal.App.3d 1086, 91 Cal.Rptr. 365 (1971) (vacated on other grounds, 19 Cal.App.3d 914, 97 Cal.Rptr. 498 (1971)) ; Maryland Cas. Co. v. Waumbec Mills, Inc., 102 N.H. 200, 152 A.2d 619, 623 (1957). . National Indem. Co. v. Flesher, 469 P.2d 360 (Alaska 1970). . See R. Keeton, Insurance Law Rights at Variance With Policy Provisions, 83 Harv.L.Rev. 961, at 963 (1970). . Id. at 969.

10550855

Donald Andrew MORGAN, Appellant, v. STATE of Alaska, Appellee

Morgan v. State

1973-07-27

No. 1527

904

906

512 P.2d 904

512

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:47.680553+00:00

CAP

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

Donald Andrew MORGAN, Appellant, v. STATE of Alaska, Appellee.

Donald Andrew MORGAN, Appellant, v. STATE of Alaska, Appellee. No. 1527. Supreme Court of Alaska. July 27, 1973. James L. Johnston, Anchorage, for appellant. John E. Havelock, Atty. Gen., Juneau, Seaborn J. Buckalew, Jr., Dist. Atty., Robert L. Eastaugh, Asst. Dist. Atty., Anchorage, for appellee. Herbert D. Soli, Public Defender, R. Collin Middleton, Deputy Public Defender, Anchorage, for amicus curiae. Before RABINOWITZ, Chief Justice, and CONNOR, ERWIN and BOOCHEVER, Justices.

1115

6708

OPINION RABINOWITZ, Chief Justice. After a trial by jury, appellant Donald Andrew Morgan was found guilty of robbery in violation of AS 11.15.240. The facts relating to the robbery were essentially undisputed. On September 30,, 1970, in the company of two acquaintances, Morgan entered the Save-More Drugstore at 13th and I Streets in Anchorage. Then, while holding a clerk and druggist at gunpoint, Morgan and his partners demanded that they be given amphetamines. The druggist handed over three bottles of the pills, and the trio departed the store. At trial, Morgan did not deny these facts, and relied principally on a claim of insanity as his defense. Morgan produced expert psychiatric testimony in support of this defense. The psychiatrist testified that in his opinion Morgan knew the nature and quality of his acts, that he knew the difference between right and wrong, but that he lacked the substantial capacity to conform his conduct to the requirements of the law. The jury found Morgan guilty of robbery, and from the judgment entered upon that verdict, this appeal has been taken. Morgan argues that the trial court committed reversible error by instructing the jury on the issue of insanity as it did, and by refusing to instruct the jury on that issue as he requested. The trial court instructed the jury that: A person is accountable for the commission of a crime if at the time of the conduct out of which the crime is alleged to have occurred, he had sufficient mental capacity to appreciate the character and quality of his act, to comprehend the probable or possible consequences and to know and understand what he did was wrong. And if he did not possess such mental capacity at the time, then he must be acquitted by reason of insanity. The court's instruction embodied the insanity test approved in Chase v. State, 369 P. 2d 997 (Alaska 1962) , Morgan, on the other hand, requested the court to instruct the jury that: You are instructed that a person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. Morgan's requested instruction was based on the American Law Institute's Model Penal Code test of insanity. In Schade v. State, 512 P.2d 907 (Alaska, 1973), a companion appeal to the instant case, we overruled the insanity test formulated in Chase v. State, supra, and established in its place the Model Penal Code test. The trial court's failure to instruct the jury according to the Model Penal Code standards compels us to reverse Morgan's conviction, and remand this case for a new trial. FITZGERALD, J., not participating. . AS 11.15.240 provides : A person who, by force or violence, or by putting in fear, steals and takes anything of value from the person of another is guilty of robbery, and is punishable by imprisonment in the penitentiary for not more than 15 years nor less than one year. . The jury instruction on the issue of insanity upheld in Chase was a variation on the M'iNíaghten rule, and provided in pertinent part: Insanity, as the word is used in these instructions, means such a diseased and deranged condition of the mental faculties of a person as to render him incapable of knowing the nature and quality of his act and of distinguishing between right and wrong in relation to the act with which lie is charged. 369 P.2d at 998. . The insanity test approved by the American Law Institute is set forth in § 4.01 of the Model Penal Code: (1) A person is not responsible for criminal conduct if at the time such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law. (2) As used in this Article, the terms "mental disease or defect" do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct. American Law Institute, Model Penal Code (Proposed Official Draft, 1962). After Morgan's trial, the Alaska State Legislature enacted AS 12.45.083 which inter alia defines an insanity test patterned on § 4.01 of the Model Penal Code AS 12.45.083 reads: (a)A person is not responsible for criminal conduct if at the time of the conduct, as a result of mental disease or defect, he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. (b) Reliance on mental disease or defect as excluding responsibility is an affirmative defense. The burden of proof beyond a reasonable doubt does not require the prosecution to disprove an affirmative defense unless and until there is evidence supporting the defense. The requirement of evidence supporting the affirmative defense is not satisfied solely by evidence of an abnormality which is manifested only by repeated criminal or otherwise antisocial conduct. (c) If the defendant is acquitted on the ground of mental disease or defect excluding responsibility, the verdict and the judgment shall so state. (d) When a person offers a defense based on mental disease or defect excluding responsibility for his criminal conduct, he may waive a jury trial without the consent of the state. AS 12.45.083 does not apply to Morgan's trial since there is nothing in the language of the statute to suggest that the legislature intended it to operate retroactively. See AS 01.10.090; Stephens v. Rogers Constr. Co., 411 P.2d 205, 208 (Alaska 1966). .Our disposition makes unnecessary any consideration of Morgan's other specifications of error. However, we briefly note Morgan's argument that the trial court erred by failing to instruct the jury on the consequences of acquittal by reason of insanity. In Schade v. State, 512 P.2d 907 (Alaska, 1973), we held that it was error to refuse to so instruct the jury. We also point out that if Morgan raises the insanity defense when he is retried, the trial court's treatment of that defense will be governed by AS 12.45.083.

10550787

Earl S. KING and R. J. Cherrier, Appellants, v. ALASKA STATE HOUSING AUTHORITY, a public corporation, and J. L. Johnston, Appellees

King v. Alaska State Housing Authority

1973-07-27

No. 1613

887

896

512 P.2d 887

512

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:47.680553+00:00

CAP

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

Earl S. KING and R. J. Cherrier, Appellants, v. ALASKA STATE HOUSING AUTHORITY, a public corporation, and J. L. Johnston, Appellees.

Earl S. KING and R. J. Cherrier, Appellants, v. ALASKA STATE HOUSING AUTHORITY, a public corporation, and J. L. Johnston, Appellees. No. 1613. Supreme Court of Alaska. July 27, 1973. H. Russel Holland, of Holland & Thornton, Anchorage, for appellants. Clifford J. Groh & William A. Greene, of Groh, Benkert & Greene, Anchorage, for appellee Alaska State Housing. Richard L. McVeigh, Anchorage, for ap-pellee J. L. Johnston. Before RABINOWITZ, C. J., and CON-NOR, ERWIN, and BOOCHEVER, JJ.

4546

29262

OPINION RABINOWITZ, Chief Justice. In December of 1970, appellee Alaska State Housing Authority (hereinafter ASHA) issued an Invitation for Proposals for the sale and redevelopment of tracts G-l and G-2 in the Eastchester Urban Renewal Project. Unsuccessful in their competitive proposal to purchase and redevelop tracts G-l and G-2, Earl King and Rod Cherrier appeal from an involuntary dismissal of their suit to enjoin ASHA from conveying their tracts to the "successful" developer, appellee J. L. Johnston, ASHA is a "public corporate authority" empowered to administer the Alaska Slum Clearance and Redevelopment Act. AS 18.55.700 in conjunction with AS 18.55.540 authorizes ASHA to "sell, lease, exchange or otherwise transfer real property" in urban renewal areas, provided such transfer complies with an urban renewal plan approved by the governing body of the municipality in which the project is located. The Anchorage City Council approved an urban renewal plan in 1964 for the project involved in the case at bar. Pursuant to this plan and governing regulations, ASHA invited proposals for the sale and redevelopment of tracts G-l and G-2 according to the "fixed price competition" method. Under this method, $126,000 was the fixed sale price of the land and ASHA's selection criteria emphasized economic feasibility, architectural quality, and planning aspects of redevelopment plans. The Redeveloper's Portfolio, containing materials necessary to submit proposals, advised prospective redevelopers that a good faith deposit equal to 5 percent of the purchase price was to accompany the proposal unless submitted by a non-profit corporation, limited dividend corporation, or cooperative. The Portfolio also advised that ASHA would afford limited preferential consideration to proposals submitted by redevelopers who owned property in the project area at the time the city council approved the urban renewal plan. Appellants were the only former owners among the five redevelopers who submitted proposals, and they notified ASHA of their intent to exercise their preference on tracts G-l and G-2. ASHA received appellants' proposal, accompanied by a good faith deposit, before the March 1, 1971, deadline. However, while ASHA received Johnston's proposal before the deadline, he did not submit the required deposit until March 30. After meeting with each of the proposed redevelopers, the ASHA Board of Directors concurred in the recommendations of the Federal Housing Administration and the ASHA staff, selecting appel-lee Johnston's proposal as the best plan for redevelopment of tracts G-l and G-2. After receiving notification of ASHA's decision, appellants sought to enjoin the housing authority from conveying the property to Johnston and to have themselves declared entitled to purchase and redevelop tracts G-l and G-2. Appellants based their claim on three theories: that they are entitled to the property by virtue of an absolute "preference right" as form er owners; that Johnston's failure to submit a timely good faith deposit invalidated his proposal and required ASHA to reject it; and that ASHA abused its discretion in evaluation of appellants' proposal for redevelopment and purchase of the tracts in question. At trial at the close of appellants' case, the superior court granted ap-pellees' motion for involuntary dismissal of the action "on the ground that upon the facts and the law the plaintiff has shown no right to relief." King and Cherrier appeal from this involuntary dismissal and attack the findings of fact on which it is based. Resolution of the issues in this appeal rests in part upon interpretation of Alaska Civil Rule 41 (b) which parallels Rule 41(b), Federal Rules of Civil Procedure, and which reads where pertinent as follows: After the plaintiff has completed the presentation of his evidence, the defendant . . . may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. In an action tried by the court without a jury the court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). (Emphasis added.) Previous opinions of this court prescribe the standards trial judges should apply to resolve Rule 41(b) motions to dismiss. In Rogge v. Weaver, this court said that Rule 41 (b) motions should not "invariably" be resolved by a weighing of the evidence, but rather where plaintiff has presented a prima facie case based on unimpeached evidence we are of the opinion that the trial judge should not grant the motion even though he is the trier of the facts and may not himself feel at that point in the trial that the plaintiff has sustained his burden of proof. We subsequently held that in deciding Rule 41 (b) motions the plaintiff's evidence should be viewed in its most favorable light. Further in Trusty v. Jones, this court articulated two policy rationales supporting the Rogge prima facie rule; We believe the Rogge rule is more likely to achieve justice and reduce the number of appeals resulting from the application of Rule 41 (b) than an interpretation permitting the judge to dismiss in close cases before he has heard both sides of the issues and has obtained a complete picture of the controversy. Of the states which have adopted rules similar to Federal Rule 41(b), Alaska was the first to adopt the prima facie test. However, the Supreme Courts of Florida and Wyoming have recently adopted the Rogge approach. And commentators have concluded that Rogge is wholly consistent with the language of Rule 41(b). Finally, because we find the policies behind Rogge as valid today as they were in 1962, we decline appellees' request to depart from the Rogge prima facie test in this case. With these principles in mind, we turn to appellants' three basic contentions in this appeal. Employing alternative theories, appellants contend they presented a prima facie case establishing their absolute preference right to purchase and redevelop tracts G-l and G-2 because no other proposed rede-veloper formerly owned property in the project area. We reject each of appellants' alternative theories going to this point. In this regard appellants first contend that ASHA is estopped to deny them an absolute preference because they invested funds to construct a redevelopment proposal in reliance upon representations from William H. Foster, ASHA local Relocation Property Manager. Testimony established that in 1966 and 1968 William Foster informed appellants they would have the right to reacquire property in the project area, provided they offered to pay the price set by ASHA. Foster did not advise them that their preference rights would be contingent upon ASHA's exercise of discretion in "fixed price competition" situations, where criteria other than price determine the successful developer. Foster's representations cannot bind ASHA, even if they "misled" appellants, because ASHA was not empowered to grant an absolute preference right to former owners in the Eastchester Project area. Moreover, it is well established that all persons dealing with a public corporation, such as ASHA, are deemed to know its limitations. ASHA may sell property only in accordance with an approved urban renewal plan With respect to preference' rights, the approved urban renewal plan for the Eastchester project provides: Owners of property within the project area whose property is acquired by the Alaska State Housing Authority will be given preferential consideration as re-developers in the project area, if the Alaska State Housing Authority in its sole discretion determines — all other things being equal — that such owner's proposal for redevelopment is equal to or superior to proposals of other developers. (Emphasis added.) AS 18.55.540(d) also limits ASHA's power to afford preference rights to those situations which the governing body has approved and under "such rules, regulations, conditions and limitations as [ASHA] prescribes." Prior to issuing the Invitation for Proposals involved in this case, ASHA promulgated regulations pursuant to AS 18.55.540(d) applicable to the development of tracts G-l and G-2. Those regulations included a provision identical to that in the urban renewal plan. Rather than grant an absolute preference right, these regulations and the urban renewal plan merely reflect concern that ASHA give some consideration to whether the redeveloper was a property owner in the project area. Under these regulations former owners receive this limited preference only when their proposals equal all others with respect to criteria set forth in the Redevelopers Portfolio. Appellants base their second alter-native theory for an absolute preference upon a claimed denial of equal protection of the laws. They assert that ASHA intended to afford more favorable preference rights to former owners submitting proposals to develop property in the Eastchester project other than tracts G-l and G-2. And, they conclude that the Equal Protection Clauses of the Alaska and federal constitutions mandate that there be only one set of preference rights for the entire Eastchester project. This contention must be rejected because appellants have not demonstrated in what manner they were treated differently from other persons who formerly owned property within the project area. At the time ASHA invited proposals for the redevelopment of tracts G-l and G-2, all former owners received equal treatment under the preference provisions then existing. Thus, appellants were afforded equal protection of the laws. We therefore hold that appellants failed to establish a prima facie case that they were entitled to an absolute preference right to purchase and redevelop tracts G-l and G-2. We next turn to appellants' contention that appellee Johnston's failure to submit the required deposit with his proposal compelled ASHA to reject his proposal as unresponsive. Appellees agree the evidence established: that Johnston was aware of his duty to file a deposit with his proposal unless he qualified as a non-profit corporation, limited dividend corporation, or cooperative; that Johnston did not file a timely deposit because he attempted to qualify for a "limited dividend company" exemption; that Johnston did not qualify for the exemption since he filed the proposal in an individual capacity; and that Johnston delivered the deposit to ASHA on March 30, 1972, prior to the Board's consideration of proposals. According to the prevailing view, proposals for public contracts must substantially comply with all requirements contained in the invitation for proposals. Thus all terms of ASHA's invitation became by implication part of a valid proposal, in order that competition among rede-velopers remain equal. Consistent with this well established principle, courts hold that while a "material" variance from the invitation requires rejection of the proposal, a "minor" variance does not require rejection of the proposal. A variance is said to be material "if it gives the bidder a substantial advantage over other bidders, and thereby restricts or stifles competition." Thus, to satisfy their burden of establishing that Johnston's failure to submit a timely deposit automatically invalidated his proposal, appellants had to prove he thereby gained a competitive advantage. One benefit flowing to Johnston from his tardy filing of the deposit was the right to continue using the $6,300 from March 1 to March 30. But appellants failed to present any evidence that Johnston converted the use of these funds into a more favorable redevelopment proposal. Moreover, ASHA's security interests in the deposit were substantially protected since Johnston filed the $6,300 before the Board considered and accepted any proposal. Therefore, we agree with the superior court that the variance here in question was minor and that ASHA was not required to reject Johnston's proposal merely because the deposit was untimely submitted Our decision in Kelly v. Zamarello does not compel a different result. In Kelly, we held that the Alaska Department of Natural Resources had a "reasonable basis" for rejecting bids to lease certain lands because the bids were nonresponsive to the state's invitation. Applying Kelly's standard of review, we conclude that appellants failed to establish the absence of a "reasonable basis" for ASHA's decision not to reject Johnston's proposal. Indeed, ASHA had a reasonable basis in law for not rejecting Johnston's proposal because the competitive bidding scheme was not impaired and ASHA's security interests were protected by the deposit being filed before the Board considered the proposals. In their third argument, appellants contend they presented a prima facie case of ASHA's abuse of discretion in evaluating their proposal for purchase and redevelopment. They recognize ASHA has broad discretion to evaluate the relative merits of redevelopment proposals pursuant to AS 18.55.540(b), which provides in part that: The authority may accept the redevelopment contract proposal it considers in the public interest and in furtherance of the purposes of [the Slum Clearance and Redevelopment Act] . Exercising its discretion, ASHA devised its criteria for evaluation and selection of redevelopment proposals, stating criteria which would determine the merits of proposals for tracts G-l and G-2. Grouping the specific criteria into broader categories, ASHA staff and Federal Housing Administration personnel evaluated proposals according to planning, architectural quality, and economic feasibility. Numerical totals were assigned to evaluations of each category. And, as we have mentioned, former owners might receive preferential consideration if their proposals were equal to all others. The criteria evaluations were compared and recommendations made by ASHA and FHA. In turn these recommendations formed the basis of the selection ultimately made by the ASHA Board of Directors. Appellants claim that ASHA abused its discretion in failing to evaluate earthquake risk, in judging aspects of the planning category, and in computing the numerical totals for planning and feasibility evaluations. They conclude that since their proposal, after correcting the alleged errors, was at least equal to any other proposal, ASHA should have afforded them preferential consideration as former owners and selected their proposal. The parties agree that ASHA's evaluation and selection of redevelopment proposals can be set aside for abuse of discretion. To establish such abuse, appellants must show that ASHA failed to evaluate each proposal substantially according to the criteria listed in the Rede-veloper's Portfolio or that the objective facts did not reasonably support evaluations of listed criteria. Under this standard of review, this court should not second-guess reasonable evaluations of complex housing criteria with which ASHA is intimately familiar. We believe appellants failed to demonstrate a prima facie case that ASHA abused its discretion in evaluating earthquake risk and most planning elements. On the other hand we conclude that appellants presented a prima facie case of such abuse in ASHA's treatment of one planning element and in ASHA's erroneous computation of the feasibility and planning evaluations. ASHA's architect attempted to consider earthquake risk as an element of the architectural quality evaluation. But since no redeveloper provided sufficient information upon which the architect could base a specific numerical grade, he wrote the following on each proposal: Evaluation of buildings regarding earthquake damage: Appears okay. (Not enough information given for review.) ASHA's inability to assign a specific grade to earthquake risk does not deprive the overall architectural evaluation of a reasonable basis, since earthquake risk was only one of several criteria comprising the overall architectural evaluation. We are convinced that the remaining criteria, which were fairly considered, support the overall evaluation. Moreover, even if ASHA's treatment of earthquake risk were considered to be error, appellants failed to demonstrate that such error prejudiced their proposal in comparison to others, since each proposal received identical treatment. Appellants have also failed to demonstrate the absence of reasonable bases for evaluations of such planning elements as "private outdoor living space"; "adequacy of parking," "variety, size and height of building"; and "least circular raceway." While appellants' brief specifically challenges the assessment of private outdoor living space, they made no attempt at trial to shake ASHA's determination of this factor. With respect to variety of buildings, appellants concede that their plan contemplated all two-story buildings, while ASHA's staff Planner and Technical Director of Urban Renewal testified that appellee Johnston's proposal contained buildings varying in size and height. This difference between the proposals provides a rational basis for ranking Johnston's plan ahead of appellants' on this point. Similarly, ASHA's Planner testified that Johnston provided for 1.25 parking spaces per housing unit while appellants provided for only 1.12 spaces per unit. This additional space justifies the 25 additional evaluation points scored by Johnston. Finally, with respect to least circular raceway, appellants presented no evidence contradicting ASHA's testimony that Johnston's proposal had less such roadway than did appellants' plan. However, we agree with appellants that ASHA's evaluation of "yards and space between buildings" and its incorrect computation of the overall planning evaluation require more justification than was presented during appellants' case in chief. Appellants' witness, a civil engineer, testified that their proposal provided several thousand square feet more yard space and green area than did the Johnston plan. ASHA's planner conceded that appellants might have provided more usable yard space than did Johnston, yet gave no reason for rating the two proposals equal with respect to this factor. Moreover, appellants pointed out during trial that ASHA had incorrectly computed their overall planning evaluation, scoring 1160 points when they should have received 1200 points. Correction of the scoring error and possible reevaluation of "yards and space between building" might not create equality between appellants and Johnston insofar as planning is concerned. But at the involuntary dismissal stage of proceedings, we are unwilling to say that these errors in the planning evaluation did not adversely affect appellants' proposal, espe-dally when considered in combination with evidence of the critical error discussed below. Appellants established that ASHA erroneously listed the economic feasibility ratio for their proposal as 112 percent when it should have been 99.35 percent. It is difficult to overstate the importance of the feasibility ratio, since Harold Grindle, Acting Director of ASHA, testified that any feasibility ratio exceeding 110 percent placed the proposal "outside the realm of feasibility." Grindle's staff evaluation and recommendation, relied upon by the ASHA Board of Directors in selecting Johnston's proposal, contained the erroneous 112 percent ratio and indicated that Johnston's proposal was the most feasible. On the basis of this evidence, the Board might have concluded that appellants' plan was either not feasible or at least not as feasible as Johnston's proposal. In either case, the mathematical error would have adversely affected appellants' chances of being selected, when in fact both proposals were equally feasible. The Board's decision would therefore be based upon considerations not supported by the evidence — an abuse of discretion. In order to avoid an involuntary dismissal, the appellants were not required to demonstrate the precise weight given by the Board to the incorrect feasibility ratio. While they weakened their case by not presenting such evidence, we conclude that appellants have met their prima facie burden by demonstrating that the Board's selection relied on the erroneous evaluation and recommendation prepared by the ASHA staff. The burden now shifts to appellees to show that the erroneous feasibility ratio did not materially affect the Board's decision. The decision of the superior court is vacated and this case remanded for completion of the trial proceedings in accordance with the foregoing. FITZGERALD, J., not participating. . For the full text of the Act, see AS 38.55.480-960. . AS 18.55.700 authorizes ASHA to exercise all redeveloi)ment powers in an urban renewal program, including the power to dispose of land. AS 18.55.540(a) provides in part: The authority may sell, lease, exchange or otherwise transfer real, property or any interest in real property in a redevelopment project area to a re-developer for residential, recreational, commercial, industrial or other uses or for public use in accordance with the redevelopment plan, subject to those covenants, conditions and restrictions it considers in the public interest or to carry out the purposes of § 480-960 of this chapter. However, the sale, lease, exchange or other transfer, or an agreement relating to it, may be made only after, or subject to, the approval of the redevelopment plan by the governing body of the municipality. See also Beirne v. Alaska State Housing Authority, 454 P.2d 262, 265-266 (Alaska 1969). .See AS 18.55.540(b) ; RHA 7214.1, ch. 4, § 2 of the Urban Renewal Handbook of the United States Department of Housing and Urban Development. Federal regulations are pertinent since the redevelopment offer contemplated the construction of housing under the Section 236 program of the National Housing Act, 12 U.S.C. § 3 701 et seq. (1938). . 368 P.2d 810 (Alaska 1962), noted in 38 Wash.L.Rev. 422 (1963). . 368 P.2d at 813. . Correa v. Stephens, 429 P.2d 254, 256 (Alaska 1967). . 369 P.2d 420, 422 (Alaska 1962). . The federal courts unanimously follow the weighing of the evidence standard. See, 9 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2371, at 22T-226 (1971). . Tillman v. Baskin, 260 So.2d 509 (Fla.1972) ; Arbenz v. Bebout, 444 P.2d 317 (Wyo.1968). . See 9 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2371, at 226 (1970). .A public corporation cannot bind itself to any contract which is beyond the scope of its powers. E. g., In the Matter of the Application of Stephenson, 511 P.2d 136 (Alaska 1973). Weil & Assoc, v. Urban Renewal Agency of Wichita, 206 Kan. 405, 479 P.2d 875, 885 (1971) ; Whaly v. State, 438 P.2d 718, 720 (Alaska 1968). 10 E. McQuillin, The Law of Municipal Corporations, § 29.04, at 223 (3d ed. 1966) ; see State v. Clallam Ed. of County Commissioners, 77 Wash.2d 542, 463 P.2d 617, 621 (1970). . E. g., State v. Clallam Bd. of County Commissioners, 77 Wash.2d 542, 463 P. 2d 617, 621 (1970) ; Dyson v. Dixon, 219 Ga. 427, 134 S.E.2d 1, 2 (1963) ; see also 10 E. McQuillin, The Law of Municipal Corporations, § 29.04, at 220-23 (3d ed. 1966). . AS 18.55.540(a) ; AS 18.55.700. See also Beirne v. Alaska State Housing Authority, 454 P.2d 262, 265-266 (Alaska 1969). . U.S.Const., Amend. XIV; Alaska Const., Art. I, § 1. . See, Invitation for Proposals, Redevel-oper's Offer to Purchase, and Oood Faith Deposit Information Sheet. . E. g., Hillside Twp. v. Sternin, 25 N.J. 317, 136 A.2d 265, 269 (1957) ; see Kelly v. Zamarello, 486 P.2d 906, 917-919 (Alaska 1971) ; Gostovich v. City of West Richland, 75 Wash.2d 583, 452 P. 2d 737, 740 (1969). See also 10 E. McQuillin, The Law of Municipal Corporations, § 29.65, 29.78 (3d ed. 1966). . E. g., Parks v. City of Pocatello, 91 Idaho 241, 419 P.2d 683, 687 (1966) ; Gostovich v. City of West Richland, 75 Wash.2d 583, 452 P.2d 737, 740 (1969). . E. g., P. Michelotti & Sons, Inc. v. Fair Lawn, 56 3NT.J. Super. 199, 152 A.2d 369, 371 (1959) ; see also Comment, Competitive Bidding — Public Construction Contracts in the State of Washington, 39 Wash.L.Rev. 796, 799 (1964). . 10 E. McQuillin, The Law of Municipal Corporations, § 29.65, at 397 (3d ed. 1966). . The deposit helps insure that the rede-veloper will build the housing complex if ASHA accepts his proposal, since he forfeits the deposit if he does not enter the contract within 10 days of ASIIA's acceptance. . We note that federal regulations governing the housing program under which ASIIA offered tracts G-l and G-2 advise state housing authorities to exercise sparingly their rights to reject proposals for failure to comply strictly with terms of the invitation. Urban Renewal Handbook RHA 7214.1, ch. 4, § 1. Other courts in similar situations have concluded that public corporations are not required to reject a proposal simply because the security was untimely submitted or perfected. E. g., Murdock Contracting Co. v. Verona, 47 N.J.Super. 102, 135 A.2d 352 (1957) ; Rockland Bus Lines, Inc. v. Board of Educ., 43 Misc.2d 1060, 252 N.Y.S.2d 712, 714 (1964). . 4S6 P.2d 906 (Alaska 1971). . Since we hold that Johnston's late filing of the deposit did not require ASHA's rejection, we find it unnecessary to decide whether the superior court findings of fact 16 and 18 are "clearly erroneous." It is sufficient to note that no evidence indicated that Johnston was acting in bad faith by failing to submit a timely deposit. . To the extent that one may quantify a comparison between the proposals of appellants and Johnston, the following represents ASHA's evaluations before adjustment for alleged errors. Appellants Johnston Feasibility 112% 99% Architectural 26 points 22 points Planning 1160 points 1430 points .See, e. g., Housing Authority of Opelousas v. Pittman Constr. Co., 264 F.2d 695 (5th Cir. 1959) ; North County Dev. Corp. v. Massena Housing Authority, 65 Misc.2d 105, 316 N.Y.S.2d 894 (Sup.Ct.1970). See generally 3A C. Antieau, Local Government Law § 30F.06 (1970). Appellee ASHA lias not objected to the initial review jurisdiction of the superior court, even though such jurisdiction was not predicated on a special statute, such as the Alaska Administrative Procedure Act, AS 44.62.560(a). In light of this record and possible questions as to whether this appeal seeks review of administrative adjudication, we proceed on the basis of AS 22.05.010 giving plenary jurisdiction over appeals from the superior court. Similar treatment was accorded in Kelly v. Zamarello, 486 P.2d 906 (Alaska 1971). . See 10 E. McQuillin, The Law of Municipal Corporations § 29.72 (3d ed. 1966). . This court has held that in certain areas of agency expertise the appropriate standard on review is whether the agency action had a reasonable basis. See Swindel v. Kelly, 499 P.2d 291, 298 (Alaska 1972); Kelly v. Zamarello, 486 P.2d 906, 911 (Alaska 1971) ; Pan Am. Petroleum Corp. v. Shell Oil Co., 455 P.2d 12, 21-22 (Alaska 1969). . Appellants have not challenged the following statement made by ASIIA's architect on each proposal: I might add I've spent approximately 4 to 5 hours total time on each proposal and consider this sufficient to arrive at a thorough architectural review based on the criteria given, and the preliminary proposals submitted. . Appellants presented a civil engineer who testified that appellants provided 10 more parking spaces than Johnston. But the significance of his testimony is decreased by the concession that he did not include driveway or street parking. . Mr. Grindle testified : If my understanding is correct, . . anything above a hundred and ten places it outside the realm of feasibility. Anything below that could be worked— or reworked, I should say, to the point where it could be within the range of economic feasibility, and of course, lower than a hundred would be better than a hundred. . See note 25, supra. . It is well recognized that courts may vacate findings of an administrative body if upon the record as a whole it appears that a mistake lias been made. E. g., Ng Yip Yee v. Barber, 26T F.2d 206, 209 (9th Cir. 1959). . The Board's minutes stated : The Board concurred in FI-IA's recommendation and the ASHA staff's evaluation and recommendation of the best project development plan for the R-16 Eastchester Urban Renewal Low-Income Housing Project under Section 236 of the National Housing Act. The developer selected was J. L. Johnston of Indio, California. . In light of this disposition, we find it unnecessary to discuss appellants' contention that the superior court erred in denying their motion for a new trial.

10550809

Virgil HEWING, Appellant, v. ALASKA WORKMEN'S COMPENSATION BOARD et al., Appellees

Hewing v. Alaska Workmen's Compensation Board

1973-07-27

No. 1625

896

900

512 P.2d 896

512

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:47.680553+00:00

CAP

Before RABINO WITZ, C. J„ and CON-NOR, ERWIN and BOOCHEVER, JJ.

Virgil HEWING, Appellant, v. ALASKA WORKMEN’S COMPENSATION BOARD et al., Appellees.

Virgil HEWING, Appellant, v. ALASKA WORKMEN’S COMPENSATION BOARD et al., Appellees. No. 1625. Supreme Court of Alaska. July 27, 1973. Ernest Z. Rehbock, Anchorage, for appellant. Jesse C. Bell, Atkinson, Conway, Young, & Bell, Anchorage, for appellees. Before RABINO WITZ, C. J„ and CON-NOR, ERWIN and BOOCHEVER, JJ.

2311

14516

OPINION RABINOWITZ, Chief Justice. While working as a cement finisher for Peter ICiewit & Sons, Co. on August 5, 1969, appellant Virgil Hewing injured his back and left forearm when the platform on which he was working collapsed and fell to the ground. Hewing filed a timely application for adjustment of his claim with appellee Alaska Workmen's Compensation Board, seeking an award for permanent partial disability. Thereafter, the Board conducted a hearing on Hewing's claim at which he and his wife were the only witnesses. At the time of the hearing, appellant was 56-years old and had only a first-grade education. Except for a few unskilled, heavy labor jobs, Hewing had worked exclusively as a cement finisher or mason since 1951, having had no special training for any other occupation. With the exception of performing a few household tasks, he had not worked since the accident because he continued to suffer pain as a result of his injuries. .Appellant's physician evaluated his disability at 10 percent of "the whole man," but stated appellant would be unfit to continue his cement masonry profession. Hewing had applied for vocational rehabilitation under an Alaska Labor Department Program on-the-job training in agricultural work, but he had not been accepted for the program at the time of the hearing. Based on the record before it, the Board concluded Hewing had suffered a 25 percent "loss of use of the man as a whole" and directed that compensation be awarded in conformity with this conclusion. Pursuant to AS 23.30.125(c), Hewing sought an injunction against the Board's award, arguing that the award was not supported by substantial evidence nor based upon the proper criteria for determining the degree of disability. The superior court, however, concluded that substantial evidence supported the 25 percent disability award, affirmed the Board's decision, and denied appellant's request for an attorney's fee for legal services rendered in connection with his appeal. In his appeal to this court, Hewing argues that the superior court erred in affirming the Board's decision for the same reasons which make the Board's decision allegedly infirm. He also contends that the superior court abused its discretion in denying his request for attorney's fees relating to his appeal. This court has consistently maintained that while we will not vacate findings of the Workmen's Compensation Board if supported by substantial evidence, our scope of review is not so limited where the Board's decision rests on erroneous legal foundations. Hewing's two-pronged attack on the Board's decision and the superior court's affirmance thereof fits within both of these categories of review. He urges that the Board did not rate his disability according to proper criteria and that the Board's 25 percent disability rating is not supported by substantial evidence. Our review of the record has convinced us that the findings of fact filed by the Board in regard to its disability determination do not permit us to intelligently review the two assertions advanced by appellant. We have often discussed the necessity for, and the character of, findings of fact which the Board is required to make under the Alaska Administrative Procedure Act. In Manthey v. Collier, a case based upon the forerunner of AS 44.-62.510(a), we held: The written decision of the Board contains no such findings. We interpret section 19 of the Administrative Procedure Act to require such findings. The Board abused its discretion in failing to follow the mandate of the act. The superior court should have, in the proper exercise of its review jurisdiction, set aside the Board's order and remanded the case for adequate findings. In not doing so, the court committed reversible error. In the instant case, the Board failed to make any specific findings of fact with respect to the degree of appellant's permanent partial disability, choosing instead to frame its rating in the written decision. We are unable to determine from the language of the Board's decision whether the Board employed the proper criteria in evaluating appellant's permanent partial disability. AS 23.30.190 governs compensation for permanent partial disability. Since Hewing's ailments are not "scheduled" injuries within AS 23.30.190(1)-(19), the formula for determining his disability is prescribed by paragraph (20): [I]n all other cases in this class of disability the compensation is 65 percent of the difference between his average weekly wages and his wage-earning capacity after the injury in the same employment or otherwise, payable during the continuance of , the partial disability And, as we held in Manthey v. Collier, since Hewing's injuries come within the purview of the "other cases" provision, the Board's award must be supported by an ultimate finding that the claimant has suffered . a decrease in his [wage-]earning capacity. In turn, the determination of wage-earning capacity is prescribed by AS 23.30.210(a): In a case of partial disability under § 190(20) . . . the wage-earning capacity of an injured employee is determined by his actual earnings if the actual earnings fairly and reasonably represent his wage-earning capacity. If the employee has no actual earnings or his actual earnings do not fairly and reasonably represent his wage-earning capacity, the board may, in the interest of justice, fix the wage-earning capacity which is reasonable, having due regard to the nature of his injury, the degree of physical impairment, his usual employment, and any other factors or circumstances in the case which may affect his capacity to earn wages in his disabled condition, including the effect of disability as it may naturally extend into the future. (Emphasis added.) The wording of AS 23.30.210(a) is substantially identical with that of 33 U.S.C. § 908(h) of the Federal Longshoremen's and Harbor Workers' Compensation Act. Courts have applied 33 U.S.C. § 908(h) to require compensation boards to consider the employee's age, education, industrial history, trainability, and availability of suitable work in the community as being "other factors" affecting earning capacity. Consideration of these "other factors" will, in our view, ensure a fair determination of wage-earning capacity in those circumstances where the employee has no post-injury earnings or when the Board determines that post-injury earnings do not accurately represent earning capacity. Elaborating on Manthey v. Collier, we hold that the Board in this case should have supported its ultimate finding of decrease in wage-earning capacity with subsidiary findings relating to the other factors and circumstances referred to in AS 23.30.210 (a), since appellant had no post-injury earnings and since the Board implicitly rejected his total lack of earnings as fairly representing earning capacity. In the instant case, the Board failed to make adequate findings relating to the criteria in AS 23.30.190(20) and AS 23.30.210(a). A formal "finding of fact" on the extent of appellant's permanent partial disability was not made. Nor did the Board ever employ the statutory term "wage-earning capacity" in assessing disability. Instead, in the body of the Board's decision, it was stated: [W]e feel [appellant] has incurred permanent partial disability equal to 25 percent loss of use of the man as a whole. (Emphasis added.) Serious conceptual differences exist between the "whole man" and "earning capacity" theories of disability. Under the whole man theory, the primary criteria governing disability awards are physiological and psychiatric. This theory challenges the concept, basic to Alaska's workmen's compensation law, that unscheduled partial disability awards should be made for economic loss, not for physical injury as such. The Board's inadequate consideration, under AS 23.30.210(a) of the availability of work which appellant could perform may indicate that its "whole man" terminology reflects an improper emphasis upon physical injury. The availability of work in the employee's community which he can perform in his injured condition is an important determinant of earning capacity. With regard to appellant's ability to work, the Board noted: (1) that he was a 56-year-old man with no special training and only a first-grade education; (2) that he had performed only cement masonry and heavy, manual labor for 20 years preceding his injuries; (3) that his physician found him unfit to perform cement masonry work; and (4) that his back injury caused him pain even when performing housework. One permissible inference from these notations is that appellant was able to perform only light, unskilled work. No evidence was presented that work suited to appellant's capabilities was regularly and continuously available in his Anchorage community. Further, the Board failed to consider the availability of suitable work or to make a subsidiary finding on this factor. In rating appellant's disability, the Board may have considered the availability of a Labor Department vocational rehabilitation position. Even if an injured employee's rehabilitation potential may be considered, the Board's oblique reference to rehabilitation prospects does not make clear what weight was given to this factor. Moreover, the Board's oblique reference to rehabilitation prospects do not make clear what weight was given to this factor. Since we hold the Board's findings of fact inadequate to permit review, we must remand this case to the superior court with directions to remand to the Board for further proceedings in accordance with this opinion. FITZGERALD, J., not participating. . AS 23.30.125(c) provides in part: If not in accordance with law, a compensation order may be suspended or set aside, in whole or in part, through injunction proceedings in the superior court brought by a party in interest against the board and all other parties to the proceedings before the board. . E. g., Anderson v. Employers Liab. Assurance Corp., 498 P.2d 288, 289-290 (Alaska 1972) ; Wilson v. Erickson, 477 P.2d 998, 999 (Alaska 1970) ; Keiner v. City of Anchorage, 378 P.2d 406, 4.11 (Alaska 1963). . E. g., Anchorage Roofing Co., Inc. v. Gonzales, 507 P.2d 501, 503 (Alaska 1973) ; Laborers & Hod Carriers Union, Local 341 v. Groothius, 494 P.2d 808, 812 (Alaska 1972). . While appellant has not specifically argued that the Board's findings are inadequate, we consider this point because the error is manifest on the face of the record. See Brown v. Northwest Airlines, Inc., 444 P.2d 529, 532 (Alaska 1968) ; Manthey v. Collier, 367 P.2d 884, 889 (Alaska 1962) ; Brown v. Alaska Indus. Bd., 15 Alaska 625, 629, 224 F.2d 680, 682 (9th Cir. 1955). . E. g., Brown v. Northwest Airlines, Inc., 444 P.2d 529 (Alaska 1968) ; Fischback & Moore of Alaska, Inc. v. Lynn, 430 P.2d 909, 912 (Alaska 1967) ; Alaska Redi-Mix, Inc. v. Alaska Workmen's Compensation Bd., 417 P.2d 595, 597-598 (Alaska 1966) ; Morrison-Knudsen Co. v. Vereen, 414 P.2d 536, 539 (Alaska 1966). Findings of fact supporting compensation awards must be made pursuant to AS 44.62.510(a) and 44.62.570(b). . 367 P.2d 884 (Alaska 1962). . Id. at 889. . AS 23.30.265(10) defines "disability" as "incapacity" because of the injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment. . 367 P.2d >888-889 (interpreting ACLA § 43-3-1 (H), a similarly worded forerunner of AS 23.30.190(20)). . E. g., American Mut. Ins. Co. v. Jones, 138 U.S.App.D.C. 269, 426 F.2d 1263, 1265-1266 (1970) ; Watson v. Gulf Stevedore Corp., 400 F.2d 649, 653 (5th Cir. 1968), cert, denied, 394 U.S. 976, 89 S.Ct. 1471, 22 L.Ed.2d 755 (1969) ; Army and Air Force Exeh. Serv. v. Neu-man, 278 F.Supp. 865, 867 (W.D.La. 1967). State cases applying these factors to determine the extent of permanent partial disability include Surratt v. Gunder-son Bros. Eng'r. Corp., 259 Ore. 65, 485 P.2d 410, 415-417 (1971) ; Benedict v. Fox, 192 Pa.Super. 197, 159 A.2d 756, 758 (1960). See also 2 A. Larson, Workmen's Compensation Law § 57.21 (1970). . Witli respect to subsidiary findings in permanent partial disability situations, we required in Manthey that : This ultimate finding [of decrease in earning capacity] must, in turn, be based upon basic fact findings which relate to inability to earn wages, as evidenced by proof of a disparity between wages earned before and after the injury was sustained, and to the claimant's physical condition. 367 P.2d at 889. . See 2 A. Larson, Workmen's Compensation Law § 57.10 (1970) ; Manthey v. Collier, 367 P.2d 884, 888-889 n. 15 (Alaska 1962). Compare, Saslow v. Rexford, 395 P.2d 36, 42-43 (Alaska 1964). . See, e. g., American Mut. Ins. Co. v. .Tones, 138 U.S.App.D.C. 269, 426 F.2d 1263, 1265-1266 (1970) ; Mores v. Bay Ridge Operating Co., 131 F.2d 310 (2d Cir. 1942) ; Eastern S. S. Lines, Inc. v. Monahan, 110 F.2d 840, 842 (1st Cir. 1940) ; Perini Corp. v. IIeyde, 306 F.Supp. 1321 (D.R.I.1969) ; United Fruit Co. v. Cardillo, 104 F.Supp. 81 (S.D.N.Y.1952). See also J. B. Warrack Co. v. Roan, 418 P.2d 986, 988 (Alaska 1966). . We do not decide in this case whether the burden of establishing the availability or unavailability of suitable employment rests upon the claimant or the employer. However, we note that while courts hesitate to impose inflexible burden-of-proof rules on administrative agencies, the law rarely requires a party to prove a negative fact (i. e. the «availability of suitable work). For contrasting views on this issue, see Flores v. Bay Ridge Operating Co., 131 F.2d 310, 311 (2d Cir. 1942) ; Eastern S. S. Lines, Inc. v. Monahan, 110 F.2d 840, 842 (1st Cir. 1940) ; Perini Corp. v. Heyde, 306 F. Supp. 1321, 1325-1326 (D.R.I.1969) ; Army and Air Force Exch. Serv. v. Neu-man, 278 F.Supp. 865, 867 (E.D.La.1967) ; 2 A. Larson, Workmen's Compensation law § 57.61, at 88.16-17 (1970). . See 2 A. Larson, Workmen's Compensation Law § 57.33 (1970). . In light of our holding we also remand the case to the superior court for determination of a reasonable attorney's fee to be awarded appellant for legal services rendered in connection with his appeal to the superior court.

10550709

Judith SMITH, Appellant, v. STATE of Alaska, Appellee

Smith v. State

1973-05-25

No. 1587

793

805

510 P.2d 793

510

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:45.113322+00:00

CAP

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

Judith SMITH, Appellant, v. STATE of Alaska, Appellee.

Judith SMITH, Appellant, v. STATE of Alaska, Appellee. No. 1587. Supreme Court of Alaska. May 25, 1973. Lawrence J. Kulik, Asst. Public Defender, Herbert Soli, Public Defender, Anchorage, for appellant. Stephen G. Dunning, Asst. Dist. Atty., Seaborn J. Buckalew, Dist. Atty., Anchorage, John E. Havelock, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C. J., and CONNOR, ERWIN and BOOCHEVER, JJ-

7729

47973

OPINION CONNOR, Justice. Appellant was convicted by a superior court jury of unlawful and felonious possession of heroin in violation of AS 17.10.-010. Three days prior to trial, appellant moved to suppress as evidence all property seized during execution of a search warrant issued September 4, 1970, by district court Judge Dorothy O. Tyner. In that motion appellant alleged that the search warrant was issued upon information obtained by three illegal searches. This appeal is based on the denial of that motion. On or about August 22, 1970, appellant and one Charles Smith occupied Apt. No. 409 of the Caye Ann Apartments, located at 731 B Street in Anchorage. Having received information that Charles Smith was involved in narcotics activities, Investigator Dean Bivens of the Alaska State Troopers instituted on August 22, 1970, a "stakeout" giving 24-hour coverage of the Caye Ann Apartments. This surveillance lasted approximately 12 days. Investigator Bivens and the state troopers who worked with him operated from a camp trailer across B Street from the Caye Ann Apartments. This vantage point afforded them a view both of the apartment building and of the dumpster garbage receptacle located outside the building, adjacent to the northwest corner of the building, closest to B Street. Bivens specifically assigned the troopers manning the stakeout to remove garbage placed in the dumpster by either Charles Smith or the appellant. In addition to the dumpster located outside the apartment building, the facilities of the Caye Ann Apartments included an indoor garbage room located on the ground floor, equipped with a 20-gallon garbage hand cart. At the time in question, it was the practice of the resident manager of the apartment building to empty the contents of the 20-gallon hand cart into the dumpster whenever the hand cart became filled up. The dumpster itself was slightly sheltered by an overhang of the building. Municipal refuse collection was made exclusively from the dumpster and not from the indoor garbage room. On August 22, 1970, Trooper Wes Taylor removed two ba,gs of garbage which he had seen Charles Smith place in the dumpster. On August '31, Trooper Casper Johnsen removed a tan colored plastic garbage bag, which he had seen appellant place in the dumpster. On September 2, Trooper Taylor again removed items from the dumpster which he had seen Charles Smith, accompanied by appellant, place there. Each of the bags or other containers thus obtained was opened by Investigator Bivens and the contents of each provided evidence that occupants of Apt. No. 409 were involved with unlawful drugs. On the basis of the evidence taken from the dumpster, a search warrant was subsequently issued, and a number of drug-related items were found in the apartment, including marijuana, cigarette papers, hypodermic syringes and, in a paper "slip", approximately one gram of a brownish powder which chemical analysis proved to be unusually pure heroin. In addition, the troopers found and seized a can of "milk sugar", a substance commonly used to dilute heroin before use. Appellant contends that the police activity outlined above constitutes an illegal search. Specifically, she argues that official removal and examination of the contents of various bags and other garbage receptacles placed in the dumpster by herself and Charles Smith violates both the Fourth Amendment of the United States Constitution and Article I, Section 14, of the Alaska Constitution. In short, appellant reads both constitutions to require that the police should have demonstrated probable cause to an • independent magistrate and secured a search warrant before undertaking the search of Smith's garbage. We disagree, and we hold that the trial court's failure to grant appellant's motion to suppress does not constitute error. However, inasmuch as we are profoundly-committed to the preservation of personal privacy and deeply sensitive to the dependence of our most cherished rights upon judicial vindication, we are unwilling to announce a general rule sanctioning official gathering and analysis of an individual's refuse. Accordingly, we limit our holding to the particular facts of the case at bar. We commence our analysis with the observation that the protection of the Fourth Amendment does not extend to abandoned property. Using traditional property law concepts, we find it difficult to avoid the conclusion that any items of garbage placed in a receptable outside the dwelling — and certainly the items removed from the dumpster in the case at bar — are abandoned. In the words of one recent scholar: "In the law of property, it has been recognized that the act of abandonment is demonstrated by an intention to relinquish all title, possession, or claim to property, accompanied by some type of activity or omission by which such intention is manifested. As one court has stated: 'The abandonment of property is the relinquishing of all title, possession, or claim to or of it — a virtual intentional throwing away of it. It is not presumed. Proof supporting it must be direct or affirmative or reasonably beget the exclusive inference of the throwing away.' " [Emphasis added by Mascolo]. We view the sequence of an individual's placing an article in a receptacle, from which routine municipal collections are made, and then withdrawing from the area as activity clearly indicative of "an intention to relinquish all title, possession, or claim to property." A determination that the refuse retrieved by the state troopers in this case was abandoned, however, is not conclusive of the reasonableness of their search. As the United States Supreme Court said in Katz v. United States: "[T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. See Lewis v. United States, 385 U.S. 206, 210, 87 S.Ct. 424, 427, 17 L.Ed.2d 312, 315; United States v. Lee, 274 U.S. 559, 563, 47 S.Ct. 746, 748, 71 L.Ed. 1202, 1204. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. See Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688; Ex parte Jackson, 96 U.S. 727, 733, 24 L.Ed. 877, 879." 389 U.S. at 351-352, 88 S.Ct. at 511, 19 L.Ed.2d at 582. Expanding on this theme in Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed. 2d 889, 899 (1968), the Court added: ". . . and wherever an individual may harbor a reasonable 'expectation of privacy,' [389 U.S.] at 361, 88 S.Ct. at 516 [19 L.Ed.2d at 588] (Mr. Justice Harlan, concurring), he is entitled to be free from unreasonable governmental intrusion." (Citation in brackets added.) The nourishment we derive from these two propositions is this: if appellant can be said to have harbored a "reasonable expectation of privacy" in the dumpster, then the protection afforded by the Fourth Amendment extends to that receptacle and the warrantless search is illegal. The question presented by this case, in short, is how to determine whether a reasonable expectation of privacy exists here. Our touchstone is Justice Harlan's separate concurrence in Katz: "My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable'. Thus a man's home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the 'plain view' of outsiders are not 'protected' because no intention to keep them to himself has been exhibited." 389 U.S. at 361, 88 S.Ct. at 516, 19 L.Ed,2d at 587-588. On the record before us, we are not satisfied that either test has been met. First, appellant's and Charles E. Smith's activities of depositing garbage in the dumpster and withdrawing from the area, described in Investigator Biven's Affidavit for Search Warrant, were clearly exposed to plain view. The dumpster was located outside the building, appurtenant to the corner of the building nearest the street. The trips were made during daylight hours. Any passerby could havé easily observed appellant's or Smith's various trips'. No attempt was made to empty the bags or boxes or to commingle their contents with the collective mass of garbage. Any person later emptying refuse in the dumpster could easily segregate the items placed therein by the Smiths. Had they wished to keep their activities to themselves, the Smiths could easily have left any items of garbage in the 20-gallon hand cart located in the indoor garbage room. On these facts, we are satisfied that appellant harbored no "actual (subjective) expectation of privacy". But even assuming arguendo that the facts overwhelmingly indicated appellant's subjective expectation of privacy, this court is unable to hold that "society is prepared to recognize [such an expectation] as 'reasonable,' " at least in the case at bar. To be sure, the question is very close. A review of several recent garbage can search cases reveals a basic core of factors to be considered in determining whether a reasonable expectation of privacy exists. These factors are: 1. Where the trash is located, 2. Whether the dwelling is multiple or single unit, 3. Who removed the trash, 4. Where the search of the trash takes place. One may readily arrange these factors to form a continuum. At one end of the continuum is trash located close to a single-family dwelling, on the same property as the dwelling, and searched by police officers at that location. We observe, without so deciding, that this would be a strong case for holding the expectation of privacy to be reasonable. At the other end of the continuum is trash located off the premises of a multiple-unit dwelling, and searched by a person authorized to remove it. In such a case we would be unable to hold that the expectation of privacy was reasonable. The instant case presents an on-premises search by police officers of a multiple-dwelling trash receptacle from which municipal collections were made. We note at the outset that almost every human activity ultimately manifests itself in waste products and that any individual may understandably wish to maintain the confidentiality of his refuse. As the California Supreme Court stated in People v. Edwards: "We can readily ascribe many reasons why residents would not want their castaway clothing, letters, medicine bottles or other telltale refuse and trash to be examined by neighbors or others, Half truths leading to rumor and gossip may readily flow from an attempt to 'read' the contents of another's trash." 80 Cal.Rptr. 633, 638, 458 P.2d 713, 718 quoted in, 96 Cal.Rptr. 62, 68, 486 P.2d 1262, 1268. Understandable as this desire for confidentiality may be, it is not conclusive of society's willingness to recognize an expectation of privacy in a garbage receptacle as reasonable. Turning to the dumpster in the case at bar, we are impressed with the combination of several factors. To begin with, this dumpster accommodated several apartments. Therefore many people living in the building — and certainly the superintendent — would conceivably have occasion to look into it and scavenge about in the collective heap. Secondly, all municipal pickups were made from this dumpster. Therefore, any tenant in the Caye Ann Apartments could be sure that periodically a group of third persons would look into the dumpster and possibly scavenge items therefrom. Thirdly, the dumpster was located outside the building in the parking area. Therefore, it would be reasonable to expect trash to be accidentally removed from the dumpster by running children, passing cars, stray dogs, or even a visitor of another tenant in the building. Taking these various factors together, we are unable to conclude that appellant could have harbored an objectively reasonable expectation of privacy in the dumpster. We are urged, however, to adopt a concept of differential expectations of privacy. We are cited to State v. Stanton, 490 P.2d 1274 (Or.App.1971), in which the Court of Appeals of Oregon stated: "We recognize that while it may not be objectively reasonable for a person to expect privacy as to one class of persons or persons with one purpose, he may reasonably expect privacy as to the same or other classes with other purposes. A person may not expect privacy in his open field or backyard as against children at play or parents looking for lost or tardy children. Yet he may subjectively expect and objectively be entitled to expect privacy as against policemen making a 'dragnet' search of a whole group of private fields or a whole neighborhood of backyards in the assumption that if they search long enough and far enough they will find some evidence of some crime." 490 P.2d at 1279. That view we decline to adopt in this case. In our opinion, the reasoning which would openly countenance scavenging in the dumpster by an indeterminate number of third persons, freely admit a constant invitation to the public authorities of the municipality to remove the contents, yet require the police to secure a search warrant before pursuing their investigation is too attenuated. Accordingly, we hold that the trial court's denial of defendant's motion to suppress did not constitute error. Affirmed. FITZGERALD, J., did not participate. . The United States Constitution, Fourth Amendment, provides in part : "The right of the people to be secure in their persons,, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,..." . The Alaska Constitution, Article I, Section 14, provides in part: "The right of the people to be secure in their persons, houses and other property, papers, and effects, against unreasonable searches and seizures, shall not be violated." .See, e. g., Katz v. United States, 389 U.S. 347, 356-357, 88 S.Ct. 507, 514, 19 L.Ed. 2d 576, 585 (1967). "It is apparent that the agents in this case acted with restraint. Yet the inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial officer. They were not required, before commencing the search, to present their estimate of probable cause for detached scrutiny by a neutral magistrate. They were not compelled, during the conduct of the search itself, to observe precise limits established in advance by a specific court order. Nor were they directed, after the search had been completed, to notify the authorizing magistrate in detail of all that had been seized. . . . 'Over and again this Court has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes,' United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59, 64, and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions." [Footnotes omitted]. . Although under Baker v. Fairbanks, 471 P.2d 386, 401-402 (Alaska 1970), we may interpret our own constitution more expansively than the comparable federal constitutional provision, we are not persuaded that such should be done in this case. . United States v. Mustone, 469 F.2d 970, 972 (1st Cir. 1972), Mascolo, The Role of Abandonment in the Law of Search and Seizure: An Application of Misdirected Emphasis, 20 Buff.L.Rev. 399, 400-01 (1970), and cases cited therein [cited hereafter as Mascolo]. . Mascolo at 401-02. . Foulke v. New York Consol. R. R., 228 N.Y. 269, 127 N.E. 237, 238 (1920), quoted xoith approval in United States v. Cowan, 396 F.2d 83, 87 (2d Cir. 1968) (cases cited by Mascolo at 402 n. 14). AVe note in passing that Mascolo would rest a finding of abandonment on federal constitutional law rather than on local property concepts in light of the "con-elusive effect of abandonment under the [F]ourth [A]mendment [being] the termination of an individual's right, or expectation, of privacy in a particular piece of property." Mascolo at 402. AVe take a somewhat different view. In our opinion, the legality of the search turns not on the nature of the refuse but on whether the receptacle lies within the zone of protection afforded by the Fourth Amendment. Thus property which is abandoned but which rests in a receptacle temporarily maintained inside a dwelling could not be searched or seized by the police unless a warrant had issued. See, e. g., State v. Purvis, 249 Or. 404, 438 P.2d 1002 (1968). A police officer suspected the defendant of possession of marijuana. He requested maids working in the hotel where defendant resided to bring him the contents of the defendant's wastebasket, which were emptied as part of the maids' normal duties. Of the objects removed from the wastebasket, the court said: "The objects which defendant deposited in the ash trays and waste baskets can be regarded as abandoned property. During the time the discarded property remained in the room the police were not entitled to seize it, not because defendant claimed a right of privacy in these items, but because the right to the privacy of the room itself would be invaded by such a seizure. However, the removal of the contents of the ash trays and waste baskets into the hallway by the maids, who were privileged to be in the room and were authorized to remove trash in cleaning it, did not constitute an unlawful invasion of defendant's privacy." [Emphasis added]. 438 P.2d at 1005. . Investigator Biven's Affidavit for Search AVarrant reads in part: "That on the 22nd day of August 1970, at approximately 5 :15 p. m., Trooper AAres Taylor informed me of the following: (a) That he had observed Charles E. Smith exit the CayeAnn Apartments located at 731 B Street in Anchorage at approximately 11:59 a. m. on the 22nd day of August, 1970. (b) That Charles E. Smith had in his possession two (2) yellow grocery bags with the name "CARR'S" written on the side. (c) That Charles E. Smith placed the two (2) yellow "CARR'S" grocery bags into the CayeAnn Apartments dumpster located at the northwest corner of the apartment building. (d) That Charles E. Smith entered a black over blue 1970 Cadillac Alaska License ⅝6673 and departed the area. "That on or about the 31st day of August, 1970, at approximately 9:30 p. m., I conferred with Trooper Casper Johnsen and he indicated the following had transpired on the 31st day of August, 1970: (a) That he had observed a person known to him as Judy Leo Smith exit the CayeAnn Apartments, located at 731 B Street, Anchorage, Alaska, at approximately 3 :35 p. m. (b) That at that time Judy Lee Smith iiad in her possession a tan colored plastic garbage bag. (c) That she proceeded to a dumpster which serves the residents of the Caye-Ann Apartments, which is located at the northwest corner of that building. (d) That Judy Lee Smith deposited the tan colored plastic garbage bag in the dumpster and then re-entered the CayeAnn Apartments. (e) That Trooper Casper Johnsen had occasion to observe the CayeAnn Apartments dumpster continuously and without interruption from 3 :34 p. m., when the tan colored plastic garbage bag was deposited by Judy Lee Smith, until 4:10 p. m., when it was personally removed from the dumpster by Trooper Johnsen. (f) That during the above interval between 3:34 p. m. and 4:10 p. m., no one approached nor deposited garbage in the dumjjster which contained the tan colored plastic garbage bag." . Mascolo at 401. It is, of course, possible that variations on this fact pattern might require a different conclusion. Intentional concealment, for instance, is not an act of abandonment. See State v. Chapman, 250 A.2d 203, 212 (Me.1969), cited in Mascolo at 402 n. 14. . See n. 8 supra. . While it is unclear on this record whether the various items, as they rested in the dumpster, were exposed to plain view, that is of no consequence to this analysis. . United States v. Mustone, 469 F.2d 970 (1st Cir. 1972); United States v. Dzialak, 441 F.2d 212 (2d Cir. 1971); People v. Krivda, 5 Cal.3d 357, 96 Cal.Rptr. 62, 486 P.2d 1262 (1971), vacated and remanded for a determination of whether the holding has a state or federal basis, 409 U.S. 33, 93 S.Ct. 32, 34 L.Ed.2d 45 (1972); People v. Edwards, 71 Cal.2d 1096, 80 Cal.Rptr. 633, 458 P.2d 713 (1969); State v. Purvis, 249 Or. 404, 438 P.2d 1002 (1968). . See Work v. United States, 100 U.S. App.D.C. 237, 243 F.2d 660, 663 (1957) (dissenting opinion by Burger, Circuit Judge). . See also People v. Krivda, 5 Cal.3d 357, 96 Cal.Rptr. 62, 69, 486 P.2d 1262, 1269 (1971): "Of course, one must reasonably anticipate that under certain circum stances third persons may invade his privacy to some extent. It is certainly not unforeseen that trash collectors or even vagrants or children may rummage through one's trash barrels and remove some of its contents. However, as stated in People v. McGrew, 1 Cal. 3d 404, 412, 82 Cal.Rptr. 473, 478, 462 P.2d 1, 6, 'The hotel guest may reasonably expect a maid to enter his room to clean up, but absent unusual circumstances he should not be held to expect that a hotel clerk will lead the police on a search of his room.' "

10573515

Kenneth Warren KLOCKENBRINK and Clayton Sprague Copsey, Appellants, v. STATE of Alaska, Appellee

Klockenbrink v. State

1970-07-31

No. 1149

958

966

472 P.2d 958

472

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:08.248875+00:00

CAP

Before BONEY, C. J., DIMOND, RA-BINOWITZ and CONNOR, JJ., and OC-CHIPINTI, Superior Court Judge.

Kenneth Warren KLOCKENBRINK and Clayton Sprague Copsey, Appellants, v. STATE of Alaska, Appellee.

Kenneth Warren KLOCKENBRINK and Clayton Sprague Copsey, Appellants, v. STATE of Alaska, Appellee. No. 1149. Supreme Court of Alaska. July 31, 1970. Robert C. Erwin and Brian J. Brundin, Hughes, Thorsness, Lowe, Gantz & Clark, Anchorage, for appellants. Harold Tobey, Dist. Atty., Benjamin O. Walters, Jr., Asst. Dist. Atty., Anchorage, for appellee. Before BONEY, C. J., DIMOND, RA-BINOWITZ and CONNOR, JJ., and OC-CHIPINTI, Superior Court Judge.

4986

29353

CONNOR, Justice. Appellants were found guilty of commercial fishing for salmon during a closed period, of commercial fishing in closed waters, and of escaping from a peace officer while under lawful arrest. From an af-firmance by the Superior Court, appellants bring this appeal. On the evening of Sunday, July 28, 1968, Fish and Game enforcement officers Stin-son and Chinander, student stream guards hired for the summer, were on stake-out at the Kalsin Bay area near Kodiak, watching for possible violations. At about 8:30 p.m. a gray boat came into view which Stinson observed with binoculars and sketched. Stinson and Chinander observed the activities of the boat for an hour or so, later moving from their position to obtain a better view of the boat. Although the boat was lost to their observation for a short period of time, at about 10:15 p.m. they regained sight of the vessel with net and corks out. Because of the weather, windy and rainy with a low overcast, and the orientation of the boat, the two officers were unable to read the name or official number of the boat. Under the prevailing light conditions, visibility was limited to 300-400 yards. Stinson proceeded to the beach, at the same time shouting to the vessel that he was with the Department of Fish and Game and was placing the crew under arrest. Although he requested that a skiff be sent ashore to pick him up, the crew responded by ignoring his request and preparing to leave. Stinson was thus forced to swim out to the boat to effect an arrest. After he was aboard the crew did not cooperate with him. They threw all of the fish in their nets overboard, ignored his request to return him to where his partner was waiting, refused to let him use the radio, threw away the fish he had been keeping as evidence, and put him ashore at a spot some distance from where Chinander was waiting. Once back on shore, Stinson returned, with the aid of a passing motorist, George Hunt, to the spot where he and Chinander had left their car. Both officers then proceeded to the home of their superior, Officer Wightman, arriving there about 3:00 a.m. After reporting the circumstances and giving the sketch of the vessel to Wightman, Stinson left to initiate an air search for the vessel. He identified the Norman J. from the air as vessel he had sketched and boarded, and reported this to Officer Wightman. Later in the morning, Wightman and Stinson located the boat returning to Kodiak and boarded it. Appellants were positively identified as those who had earlier been arrested, and they were advised of their rights. They were subsequently taken to jail and the Norman J. was seized. Appellants were arraigned on July 29, 1968, at that time being represented by Mr. Roy Madsen for purposes of the arraignment only. A 24-hour continuance was granted to allow entering a plea. At the same time appellants were released on their own recognizance. Because appellant Klockenbrink's boat was under seizure, and because one of the state's witnesses was going to be out of state during the middle part of August, trial was set for the 6th of August. This setting was made in spite of the fact that appellants informed the judge that they would be represented by Wendell P. Kay of Anchorage, and that there might possibly be some difficulty in his preparing for trial on such short notice. The trial judge also stated that he would probably not grant a continuance, even if requested by Mr. Kay. On August 2, 1968, a motion was submitted to the court requesting the release of the vessel. Motion was also made for a continuance, with counsel for the appellants stipulating to the taking of a deposition from the state's witnesses, who would not be available later. At this same special hearing, the district attorney suggested that perhaps a bond could be obtained in lieu of holding the vessel during the pendency of the proceedings. He also stated that he had no objections to the granting of a continuance. The trial judge ruled that he would allow a continuance of the trial date until August 19th, but refused to release the Norman J. As a result, appellants' counsel refused the continuance, not wanting the boat out of operation for that long a period of time during the middle of the fishing season. On August 5, 1968, the court granted appellants a continuance until the 7th in order to secure new counsel, since Mr. Kay was scheduled to defend another case at that time. On August 7th, Mr. Brundin appeared as counsel for appellants and requested a continuance, which was denied. The reason given by the judge for the denial was that the two state's witnesses would be absent from the state at a later date. At trial, the composition of the jury was objected to because no commercial fishermen were available to sit on the jury. The objection was denied. Appellants also moved for a new trial based on newly discovered evidence, which motion was also denied. An appeal was taken to the superior court which affirmed the decision of the district court. Appellants raise four claims of error on appeal. First, they contend that the trial court erroneously permitted the installing of an improperly selected jury; second, that the court had improperly ruled that no illegal search incident to the arrest had been made in violation of AS 16.05.180; third, that the procedure used to identify appellants was violative of their constitutional rights as enunciated in the Wade-Stovall line of cases; and lastly, that the trial court was in error in denying appellants a continuance to allow them representation by the counsel of their choice. THE JURY PANEL In prosecuting their appeal, appellants contend that their constitutional rights were violated when the trial judge allowed the impaneling of a jury which failed to include any commercial fishermen. Because this case is remanded with instructions to grant appellants a new trial, on other grounds, we need not dispose of this issue. THE SEARCH AND SEIZURE ISSUE Appellants claim that the testimony of Stinson about his observations when he boarded the Norman J. should have been suppressed. Their contention, simply stated, is as follows AS 16.05.180 provides that before a search without a warrant can be effected by those empowered to enforce fish and game laws, the person making the arrest must provide the owner of the property or object to be searched with a signed statement setting forth the reasons for the search. The legislative history, according to appellants, makes it clear that the legislature intended to set standards for search and seizure which are more strict than those required by the United States Supreme Court. Because Stinson failed to conform to the statutory requirements, the ensuing search and seizure was illegal and any evidence obtained therefrom is inad-missable. We cannot agree. AS 16.05.180 is not applicable in the instant case because no search was conducted. Stinson was on board effecting a legal arrest after personally observing the commission of a misdemeanor. It is generally held that the mere observation of items which are in plain view or which are open and apparent, is not a search. Consequently, evidence based on such observations is admissible so long as the observing officer was legally in the position where the observations were made. In United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927), the Supreme Court considered a situation similar to the one herein. The Coast Guard came alongside a motor boat, the boatswain looked the boat over with a search light, and found some cans of alcohol on board. The boatswain's testimony was objected to because it was obtained as the result of an illegal search and seizure. In determining that the evidence was admissible, the court stated: "But no search on the high seas is shown. The testimony of the boatswain shows that he used a searchlight. It is not shown that there was any exploration below decks or under hatches." 274 U.S. at 563,47 S.Ct. at 748. Because we have determined that no search occurred, it is unnecessary to deal with appellants' other contentions involving the propriety of the "search". THE IDENTIFICATION QUESTION The appellants argue that their identification by Stinson was made under circumstances so unnecessarily suggestive and conducive to mistake that they were deprived of due process of law. Furthermore, they argue that their identification was a "critical" stage of the proceedings so that they were entitled to counsel or a Miranda warning at the identifying confrontation. In their brief, appellants rely on United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), and related cases in support of their claim. The Wade and Gilbert cases concerned line-up procedures after an accused had been taken into custody. They held that such procedures are a "critical stage" of the accusatory proceedings at which a criminal defendant has the right to the presence of counsel. Stovall concerned the identification of a single suspect by a victim lying critically wounded in a hospital. The majority of the Court decided this case on the ground that the Wade and Gilbert rules should not be applied retroactively. We recognize that the constitutional validity of an identification of a suspect must be determined by the totality of circumstances surrounding it, as the Court in Stovall pointed out. For this reason, we believe that the cases cited .by appellants are inapposite. Similarly, Rivers v. United States, 400 F.2d 935 (5th Cir. 1968), is not on point because it involved identification by a wounded victim of an accused who was in custody and was exhibited to the victim singly. In formulating the "totality of the circumstances" standard, the Court in Stovall explained the rationale as follows: "We turn now to the question whether petitioner, although not entitled to the application of Wade and Gilbert to his case, is entitled to relief on his claim that in any event the confrontation conducted in this case was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law. This is a recognized ground of attack upon a conviction independent of any right to counsel claim. Palmer v. Peyton, 359 F.2d 199 (CA 4th Cir. 1966). The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned. However, a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it. 388 U.S. at $01-302, 87 S.Ct. at 1972. (emphasis supplied) (footnote omitted). The following events occurred which shed some light upon this issue. When Stinson and Wightman first boarded the Norman J., on the morning of July 29th, Wightman asked Stinson whether these were the man he had attempted to arrest the previous evening, to which Stinson replied, "Yes, sir." Wightman then advised appellants that they were still under arrest and proceeded to seize the vessel. Prior to this, Stinson had observed the boat engaging in commercial fishing in violation of the fish and game laws. He was unable to read the name or numbers on the boat, both because of the weather conditions and the position of the boat. Because the vessel appeared to be preparing to depart, Stinson had swum out to the boat and had been pulled aboard by one of the men on the boat. While aboard the boat, Stinson had an almost constant conversation with the captain, requesting him to send a skiff to pick up Chinander or radio the authorities that Stinson was aboard. After Stinson had talked to the captain for about 20 minutes, the vessel began pulling onto the beach. Stinson was then ordered into a small skiff with the captain, and apparently with Mrs. Copsey, the other appellant, and taken ashore. At trial, Stinson identified Mr. Copsey as the man who had pulled him aboard the boat and Mr. Klockenbrink as the captain of the vessel. In the case before us it is the original arresting officer who made the identification of the accused upon their rearrest. He had been aboard the vessel for an appreciable period of time the evening before, so this is not a situation where the victim has had only a momentary or fleeting glimpse of an assailant. The fact that Stinson was inexperienced is, we believe, offset by the fact that he spent some 20 minutes conversing with one of the appellants. Furthermore, it was especially within the province of the jury to determine the accuracy of his observations. We are unable to perceive how a lineup could have been arranged for the crew of the vessel out on the water, in order to determine whether the identification leading to the arrest was proper. Nor do we feel constrained to agree with appellants that such a lineup would have been proper under the circumstances, given the possibility of such a lineup. Our attention has not been directed to any cases in which an arresting officer, after viewing what he reasonably believes is a misdemeanor committed in his presence, has been required to hold a lineup, in order to test the reliability of his perceptions, before effecting a rearrest. Such a rule would be a legal and practical absurdity. Where the original arresting officer is the only one who can identify the accused, there would be no way ever to rearrest an accused in order to arrange a proper lineup, absent the officer's identification. Viewing the totality of the circumstances, we feel that appellants' right to due process of law has not been violated. Stinson's testimony about the arrest was properly before the jury. THE DENIAL OF CONTINUANCE Appellant's final complaint stems from the trial judge's failure to grant a continuance so that appellants might have counsel of their choice represent them at trial. On August 2, 1968, Mr. Kay, appellants' counsel, informed the district court judge that he would be unable to appear for the August 6th trial date, as he had a trial in another court at the same time. The judge denied Mr. Kay's request for a continuance, stating as his reasons that the state's key witnesses were scheduled to leave Alaska shortly and the fishing vessel was under seizure which would prevent appellants from pursuing their livelihood during the fishing season. Appellants suggested tjiat the state's witnesses be deposed and that a bond be furnished so that the vessel could be released. Apparently this would have satisfied the state's attorney. Details of this agreement were communicated to the court in a telegram. At one point it appeared that an agreement had been reached to continue the case until August 19, at which time Mr. Kay could be present. However, when the court ruled that the fishing boat was validly seized and would remain under seizure until the trial, Mr. Kay indicated he would have to withdraw from the case rather than allow his client to be without means to make a living for that long at the height of the salmon season. The court then decided that the trial date should remain August 6th. Because of the August 6th trial date, appellants obtained the services of another attorney, and requested a one-day postponement of the trial, which request was granted. When Mr. Brundin, the new counsel, appeared on the 7th, he again renewed the motion for a continuance in order that he might adequately prepare the defense. This motion was denied, the court stating "In this case it has been consistently the Court's position that it was necessary to set this case down for an early trial for two reasons, the first reason being that the boat was under seizure in this case and that would seem to me to be in favor — or trying to accord the defendant right to an early trial as required by the constitution and the law. The second point here is that it — it's apparent to the Court that two State's witnesses are leaving the area for the states. One of them is being married in Louisiana on the 22nd of August. The request for trial date was the 19th of August by Mr. Kay and I questioned this witness under oath yesterday as to that problem and he testified under oath that he's being married on the 22nd of August in Louisiana that a hundred persons have already been requested to — been invited to the wedding; it's all set. It's totally improbable or it seems — it doesn't seem necessary that the witness should have to miss his wedding in connection with this trial. And the trial could, in any event, not be set on the 19th, I don't think under those circumstances. Both State witnesses are leaving the State shortly. It would require the State to bring back two witnesses from out of State and we would have a situation where the District Attorney and the defense attorney and the witnesses were all out of Kodiak. At the present time, the District Attorney and defense counsel and the witnesses are here ready to go for trial, and I have consistently denied the request for continuance on the basis of all the facts I could see. I think this case needs to go to trial soon. Now, it's been said, it's been noticed, a continuance was denied once, I'm going to deny it again. The general continuance on a basis that counsel is not available or that the particular counsel desired is unable to make it here at this time, on those grounds, it's denied." Later, the court indicated its denial was based on the unavailability of the state's witnesses rather than the boat seizure. Granting or denying a continuance traditionally has been within the discretion of the trial judge, and not every denial of a request for additional time violates due process. Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921; reh. denied, 377 U.S. 925, 84 S.Ct. 1218, 12 L.Ed.2d 217 (1964). To constitute error an abuse of this discretion must be shown. Gregoire v. National Bank of Alaska, 413 P.2d 27 (Alaska 1966); Mead v. State, 445 P.2d 229 (Alaska 1968). It is only an arbitrary refusal that is violative of due process and that question depends upon the circumstances of each case, especially the reasons supporting the request for continuance. Nilva v. United States, 352 U.S. 385, 77 S.Ct. 431, 1 L.Ed.2d 415; reh. denied 353 U.S. 931, 77 S.Ct. 716, 1 L.Ed.2d 724 (1957); United States ex rel. Hyde v. McMann, 263 F.2d 940 (2d Cir. 1959), cert. denied, 360 U.S. 937, 79 S.Ct. 1462, 3 L. Ed.2d 1549 (1959). Although there is no well-established standard for determining when a denial has been arbitrary we are not without guidelines for making such a determination. In People v. Solomon, 24 I11.2d 586, 182 N.E.2d 736 (1962), the court utilized the following approach: "The granting of a continuance to permit preparation for a case, or for the substitution of counsel, necessarily depends upon the particular facts and circumstances surrounding the request, and is a matter resting within the sound judicial discretion of the trial court. Before a judgment of conviction will be reversed because of the denial of such a motion, it must appear that the refusal of additional time in some manner embarrassed the accused in preparing his defense and prejudiced his rights." 182 N.E.2d at 738 (citations omitted). In the memorandum accompanying their motion for a new trial, appellants specifically indicated prejudice to them resulting from the denial of their request for a continuance. It is unquestionable that the right to the assistance of counsel of necessity includes the concommitant right to have a reasonable time in which to prepare for trial. Brooks v. State, 176 So.2d 116 (Fla.App.1965). Furthermore, the mere fact that the state's witnesses would be out of the state at a later time does not persuade us of the correctness of the trial court's denial of the continuance. As the court stated in Creed v. United States, 156 A.2d 676, 678 (D.C. Mun.Ct.App. 1959): "It was not a sufficient excuse for denying the continuance that the Government's witnesses desired to leave town that afternoon, nor is it any answer to say that the Government's willingness to stipulate as to character testimony justified the court in requiring counsel to proceed with the trial without the benefit of the personal testimony of character witnesses." It is imperative that counsel be afforded adequate time in which to prepare his defense, especially when serious charges, such as those involved herein, must be squarely met. Without speculating upon what the defense might have presented on behalf of appellants, we do take notice that an important witness did not testify at trial because he had not been located until trial was completed. We can take guidance from the following: "Justice requires, and it is the universal rule, observed in all courts of this country, it is most sincerely to be hoped, that reasonable time is afforded to all persons accused of crime in which to prepare for their defense. A judicial trial becomes a farce, a mere burlesque, and in serious cases a most gruesome one at that, when a person is hurried into a trial upon an indictment charging him with a high crime, without permitting him the privilege of examining the charge and time for preparing his defense. It is unnecessary to dwell upon the seriousness of such an error; it strikes at the root and base of constitutional liberties; it makes for a deprivation of liberty or life without due process of law; it destroys confidence in the institutions of free America and brings our very government into disrepute." Coker v. State, 82 Fla. 5, 89 So. 222 (1921). Even if a denial of adequate time to prepare a defense were alone insufficient to constitute an abuse of discretion, necessitating the granting of a new trial, appellants urge upon us and we find merit in the argument that they were also denied the right to have counsel of their choice represent them at trial. Appellants originally sought representation by Mr. Kay. When it was learned that the trial court would not allow the release of the Norman J., Mr. Kay, desirous of proceeding as quickly as possible so that the boat could be released for the fishing season, declined to defend appellants because he had a conflicting court schedule. While it will not always be the case that a continuance should be granted to afford an accused the opportunity to secure counsel of his choice, we believe that the trial court should have granted the motion for continuance in the present case. . This issue was recently dealt with in English v. State, 8 Md.App. 330, 259 A.2d 822, 826 (1969) where the son of the accused's counsel appeared at trial in his father's place. The accused personally moved the court for a continuance in order that the father might appear on his behalf. In overturning the denial of the motion, the court reasoned: "We note that there is no valid distinction between appointed counsel and pri- vately employed counsel in determining the adequacy of representation of an accused. But once counsel has been chosen, whether by the court or the accused, the accused is entitled to the assistance of that counsel at trial. The Supreme Court said in Chandler v. Fretag, 348 U.S. 3, at 9, 75 S.Ct. 1, at 5, 99 L.Ed. 4: 'Regardless of whether petitioner would have been entitled to the appointment of counsel, his right to be heard through his own counsel was unqualified.' So the accused ca'nnot be forced to be heard at trial through counsel other than the one employed by him or appointed by the court, as the case may be, to represent him, no matter how competent, experienced and conversant with the case other counsel may be and regardless of the fact that in retrospect the other counsel afforded him a genuine and effective representation." (citation and footnote omitted) (emphasis in original). There is no question but that appellants were adequately represented by Mr. Brun-din to the extent that his abbreviated time for preparation allowed. The fact remains, however, that their first choice was Mr. Kay. Viewing the circumstances surrounding the genesis of this • particular problem, we can only conclude that it was clearly an abuse of discretion for the trial judge to deny appellants' motion for a continuance. Appellants should have been given a reasonable amount of time in which to prepare a defense. We are not unaware of the difficulties faced by the court — the fact that the state's witnesses would shortly leave the state and the seizure of the Norman J. But there are limits upon the use of the argument from expediency as a solution to all close questions. Baker v. City of Fairbanks, 471 P.2d 386 (Alaska June 5, 1970). Accordingly, this case is remanded with instructions to grant appellants a new trial. . "Each person designated in § 150 of this chapter may without a warrant search any thing or place if the search is reasonable or is not protected from searches and seizures without warrant within the meaning of § 14, art. I of the state constitution, which specifically enumerates 'persons, houses and other property, papers and effects.' However, before a search without a warrant is made a signed written statement by the person making the search shall he submitted to the person in control of the property or object to be searched, stating the reason the search is being conducted. A written receipt shall be given by the person conducting the search for property which is taken as a result of the search. The enumeration of specific things does not limit the meaning of words of a general nature." . Because we find that no "search" occurred, it is unnecessary to determine what, if any, effect AS 16.05.180 has upon searches which are conducted incident to a lawful arrest. . Miller v. State, 462 P.2d 421 (Alaska 1969). Appellants make no daim that the arrest was legally defective in any way. . Davis v. United States, 327 F.2d 301 (9th Cir. 1964); Brown v. State, 372 P.2d 785 (Alaska 1962); Thorp v. Department of Alcoholic Beverage Control, 175 Cal.App.2d 489, 346 P.2d 433 (1959); State v. Blood, 190 Kan. 812, 378 P.2d 548 (1963). See also Words & Phrases under "Search" and 4 Anderson, Wharton's Criminal Law & Procedure § 1540 n. 11 (1957). .Harris v. United States, 390. U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927); Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L. Ed. 898 (1924). . Baggett v. State, 41 Ala.App. 342, 133 So.2d 33 (1961) (Accused unable to pay for counsel of his choice refused to allow court to appoint counsel for him; held, no abuse when continuance denied); Daniels v. State, 219 Ga. 381, 133 S.E. 2d 357 (1963) (no abuse since accused had opportunity to obtain counsel of choice and made no objection when other counsel appointed); Davis v. State, 97 Ga.App. 342, 103 S.E.2d 86 (1958) (No abuse even though accused had only five days from arrest to trial); Commonwealth v. Brant, 346 Mass. 202, 190 N.E. 2d 900 (1963) (no abuse of discretion since accused had almost year to obtain counsel); State v. Harvey, 170 S.E.2d 657 (S.C.1969) (no abuse although counsel appointed just four days prior to trial). Creed v. United States, 156 A.2d 676 (D.C.MunCt.App.1959) (abuse to deny continuance when arrest, arraignment and trial occurred on same morning); People v. Ritchie, 66 Ill.App.2d 417, 213 N.E.2d 306 (1966) (accused believed his family would provide counsel; court denied continuance because public defender represented him; held, abuse); People v. Kenzik, 9 I11.2d 204, 137 N.E.2d 270 (1956) (abuse to deny continuance when counsel had less than 30 days to prepare defense and 19 of those days used to actively engage in another trial; not dispositive that public defender refused by accused); English v. State, 8 Md. App. 330, 259 A.2d 822 (1969) (abuse of discretion for court to deny continuance personally requested by accused when son of counsel of accused's choice appeared at trial); Butler v. State, 253 Miss. 760, 179 So.2d 184 (1965) (accused had insufficient time to locate and call witnesses; held, an abuse even though witnesses might not have attended). . Appellants indicated that a new witness, not available at the time of trial because of inadequate time for investigation, would have testified that he saw two boats in the area where the alleged illegal fishing occurred; that he saw the Kloekenbrink boat leave before the other one and that he was sure that the alleged crime had not been committed by Kloekenbrink but by someone else. (At's br. p. 25, n. 1). . Our opinion in no way indicates our belief that a bond in lieu of holding the Norman J. should have been accepted by the trial court. That narrow question is not before us and we do not decide it.

10564936

STATE of Alaska, Appellant, v. 45,621 SQUARE FEET OF LAND, Archie W. Stewart, et al., Appellees

State v. 45,621 Square Feet of Land

1970-09-21

No. 1115

553

558

475 P.2d 553

475

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:11.912033+00:00

CAP

Before BONEY, C. J., DIMOND, RABINOWITZ, and CONNOR, JJ., and FITZGERALD, Superior Court Judge.

STATE of Alaska, Appellant, v. 45,621 SQUARE FEET OF LAND, Archie W. Stewart, et al., Appellees.

STATE of Alaska, Appellant, v. 45,621 SQUARE FEET OF LAND, Archie W. Stewart, et al., Appellees. No. 1115. Supreme Court of Alaska. Sept. 21, 1970. G. Kent Edwards, Atty. Gen., Robert E. Price, Asst. Atty. Gen., Juneau, for appellant. Michael M. Holmes, of Faulkner, Ban-field, Boochever & Doogan, Juneau, Jeremiah M. Long, of Broz, Long, Mikkelborg, Wells & Fryer, Seattle, Wash., for appel-lees. Before BONEY, C. J., DIMOND, RABINOWITZ, and CONNOR, JJ., and FITZGERALD, Superior Court Judge.

3313

19717

OPINION RABINOWITZ, Justice. The property in question was condemned by the State of Alaska for construction of the Juneau Outer Drive. In conjunction with the filing of its declaration of taking, the state deposited $37,250 which represented the state's estimate of just compensation. A hearing was then held before a master who concluded that appellee Stewart should receive $60,200 as just compensation. The state appealed the master's determination and after trial de novo, a superior court jury returned a verdict in the amount of $75,000. In addition, the jury, in answer to two interrogatories, placed the value of the land at $75,000 and found that the site improvements were of no value. Judgment was entered for the Stewarts in the amount of $75,000, plus interest from the date of taking and attorney's fees in the amount of $3,750. Thereafter, the state moved for a new trial on the grounds that the verdict was excessive, contrary to the weight of the evidence and a product of passion and prejudice on the jury's part. It was further alleged that a new trial should be granted due to the court's refusal to give the state's requested instructions pertaining to burden of proof and because of the trial court's refusal to allow into evidence a tax assessment of the subject property. The state's motion for a new trial was denied and this appeal followed. Essentially, three questions are presented in this appeal. In its first specification of error, the state contends that the trial court acted incorrectly when it refused to instruct the jury that in a condemnation case there is a burden on the defendant landowner to establish by a preponderance of the evidence in the case that the fair market value as of the date of taking of his estate or interest in the property which has been taken by the State of Alaska was as much as he alleges. This presents us with a question of first impression as to the burden of proof in condemnation proceedings. It appears that American courts have employed three rules with respect to burden of proof in such cases. These differing approaches were summarized by the Supreme Court of Oregon in the following manner: (1) The taking agency has the burden of proving just compensation. It is the moving party and seeks to change the status quo. The condemnor therefore must prove all parts of its case. (2) Neither party has a burden of proof. The measurement of just compensation involves a question of fact to be determined in rem and without adversary pleadings. This rule is based on the theory that the parties are not adversaries, therefore neither should have a greater burden of proof than the other. (3) When the taking agency is a governmental subdivision, it is presumed to have made a fair offer, and, accordingly, the landowner has the burden of proof that just compensation requires a sum greater than the amount conceded by the government. (So-called majority rule, followed by at least 24 states. ) In the case at bar, the trial judge did not give the jury any instruction on burden of proof. We affirm the trial judge's refusal to instruct that the landowner has the burden of proving by a preponderance of evidence the just compensa tion to which he is entitled in a condemnation proceeding. Section 18 of Article I of the Alaska Constitution establishes that "[p]rivate property shall not be taken or damaged for public use without just compensation." In our view this constitutional guarantee, together with the peculiar in rem nonadver-sary pleadings characteristic of condemnation proceedings, distinguish these proceedings from ordinary civil actions. The differences have led us to the conclusion that instructions on burden of proof, in the sense of allocating the risk of failure to persuade the jury, are inappropriate in condemnation actions. Regarding ordinary civil litigation, Professor McCormick states: There is, then, it seems, no key-principle which governs the apportionment of the burden of persuasion. In ascertaining the party who is to carry this burden, we can only look to the practice which the courts in the light of tradition and of their notions of convenience, fairness and policy, have worked out in the particular type of case, for burden of pleading and thus for the companionate burden of persuasion. In a condemnation proceeding such as the case at bar where the sole issue is determination of just compensation, procedural rules involving the concept of risk of failure to persuade are inapposite. Here the focal point of the trier of fact's inquiry is the ascertainment of just compensation. Thus, regardless of whether the condemning agency or the property owner meets a given burden of persuasion, Alaska's constitutional mandate requires that the owner be awarded just compensation for the property he has lost. In the usual condemnation case, the jury is confronted with conflicting opinions as to value. The jury is not faced with the necessity of finding a particular value or no value at all. As to the issue of fair market value, both the condemning agency and the property owners may produce competent evidence of the fair market value of the condemned property. Absent the production of such evidence by either party, the triers of fact will determine fair market value solely from the other party's evidence. The burden of production facet of burden of proof, rather than the risk of non-persuasion aspect, is the more meaningful concept in the trial of a condemnation proceeding. Other courts have reached similar conclusions regarding the inappropriateness of burden of proof instructions, in the risk of non-persuasion sense for condemnation purposes. Since 1920 the courts of Ohio have held that the doctrine of burden of proof has no application to condemnation proceedings. Martin v. City of Columbus, 101 Ohio St. 1, 127 N.E. 411 (1920); Ellis v. Ohio Turnpike Commission, 70 Ohio Law Abst. 417, 124 N.E.2d 424, 432 (Ct.App.1955); In re Appropriation by Director of Highways, 120 Ohio App. 273, 201 N.E.2d 889, 894 (Ct.App.1963). In reaching this conclusion, the Ohio courts have placed emphasis on the absence of adversary pleadings, and the jury's paramount function of ascertaining just compensation for the property taken. Oregon provides by statute that: Plaintiff and defendant may offer evidence of just compensation, but neither party shall have the burden of proof of just compensation. We hold that the trial court did not err in refusing to instruct the jury on the subject of burden of proof. In the case at bar, the jury was informed that the exercise of the power of eminent domain is subject to the constitutional requirement of payment of just compensation. The jury was further instructed that their only concern was the determination of the just compensation to be awarded. In this regard, the jury was given detailed instructions as to the applicable criteria for determination of just compensation and was specifically charged that: The compensation to be paid by the State of Alaska for an estate or interest in property must be just. In order to be just, the amount of such compensation must be fair, not only to the owner whose property is taken, but also to the public which is to pay for it. If the amount of your verdict is less than the amount you believe to be the defendant's loss, based upon the fair market value of the property taken at the time of the taking, then the compensation is not just to the owner. If it is more than that amount, then the compensation is not just to the State. Study of the court's entire charge to the jury leads to the conclusion that the trial court's instructions were not erroneous. Appellant's next two specifications of error pertain to a 1966 tax assessment which was made by the Greater Juneau Borough. Appellant asserts that the court erred in failing to admit into evidence the 1966 assessment and in failing to instruct the jury that [t]his assessment of property by the assessor is prima facie evidence of the full and true value in money of the property for all legal purposes and proceedings. The majority rule excludes property tax assessments from evidence in condemnation cases on the rationale that such an assessment is res inter alios acta, notoriously unreliable as a criterion of true value or the opinion of persons not called as witnesses and subject to cross-examination. On the other hand, appellant argues that in Alaska, AS 29.10.396 requires "[p]rop-erty shall be assessed at its full and true value." Appellant further relies upon AS 29.10.390 which provides that: The assessor is not bound to accept a return as correct, but if he thinks it necessary or expedient, he may make an independent investigation of property returned. If he suspects that a person who has not made a return has property subject to taxation, the assessor shall make an independent investigation as to the property of that person. In either case, the assessor may make his own valuation and assessment of the taxable amount of the property, which shall be prima facie evidence for all legal purposes and proceedings. Appellant contends that this latter statute authorizes the admission into evidence of tax assessments in condemnation proceedings. Against this interpretation, appellees point out that AS 29.10.390 was enacted into law by Section 9, Chapter 174, SLA 1957. The purpose of this 1957 enactment was "to provide a uniform procedure in taxing, levying, and collecting, including the foreclosure of, taxes by those political subdivisions now authorized and empowered to impose and collect taxes on real and personal property." In view of the special purposes for which tax assessments are made, the fact that there is little likelihood that an owner would contest an underassessment or an assessment which did not reflect the property's full value, the potential unreliability of such assessments due to the varied qualifications of assessors, and the fact that such assessments standing alone embody the opinions of persons not called as witnesses and not subject to cross-examination we remain unpersuaded that departure is warranted from the majority rule which prohibits the admission of property tax assessments as evidence of fair market value in condemnation actions. Nor do we find it reasonable to construe AS 29.10.390 as furnishing the basis for the admissibility of tax assessments in condemnation proceedings. Given the limited purpose of the 1957 act, we can discern no indication that the legislature intended to make tax assessments prima facie evidence of value in condemnation proceedings. Since AS 29.10.390 is an integral part of Alaska's statutes establishing a uniform procedure in taxing, levying, collecting, and foreclosing taxes by political subdivisions of the state, we believe that the phrase "for all legal purposes and proceedings" was intended by the legislature to make tax assessments prima facie evidence only in proceedings relating to the taxing, levying, collecting, and foreclosing of taxes. Appellant's final point on appeal is that the trial court erred in not granting its motion for a new trial. The parties agree that Ahlstrom v. Cummings, 388 P.2d 261, 262 (Alaska 1964) (footnotes omitted), articulates the controlling rule. There we said: The matter of granting or refusing a new trial rests in the sound discretion of the trial judge. We shall not interfere with the exercise of his discretion except in the most exceptional circumstances and to prevent a miscarriage of justice. The circumstances which would require our intervention do not exist here. From a review of the record we cannot say that evidence to support the verdict was completely lacking or was so slight and unconvincing as to make the verdict plainly unreasonable and unjust. Also of significance is pur opinion in Alaska State Housing Authority v. Vincent, 396 P.2d 531, 535-536 (Alaska 1964). In that case, the trial judge in his discretion stated, in part, he believed that the verdict was within the range of the testimony, was not so excessive as to warrant intervention, and it was unnecessary for the jury to accept the valuation of any witness. The trial judge went on to say he believed that the "jury was entitled to sort out the testimony and fix their own valuation on the property, making such allowances as might to them seem appropriate in the light of the testimony." In Vincent at 536, we said: [W]e cannot find any fault with the foregoing remarks of the trial judge and we cannot say that he abused his discretion in denying the motion for a new trial. Guided by the Ahlstrom and Vincent standards, we hold that the trial court did not commit an abuse of discretion in denying appellant's motion for new trial. Here the jury's determination of just compensation is within the range of the testimony, and in our opinion is not reflective of any passion or prejudice on the jury's part. The judgment entered below is affirmed. . In Alaska State Housing Authority v. Vincent, 396 P.2d 531 (Alaska 1964), the question of burden of proof was not briefed in any depth and was not essential to disposition of the case. As to the subject of burden of proof, we said in the Vincent case that: The burden of proof as to value was, of course, upon the owner of the property, the Vincents. Id. at 533 (footnote omitted). . State by and through State Highway Commission v. Nelson, 222 Or. 458, 353 P.2d 616, 617 (1960) ; See 5 L. Sack-man & P. Rohan, Nichols, The Law of Eminent Domain § 18.5 (rev. 3d ed. 1969). . See IX J. Wigmore, Evidence § 2485-86 (3d ed. 1940), for discussion of the risk of non-persuasion — duty of producing evidence meanings of burden of proof. . O. McCormick, Evidence 675-76 (1954) (footnote omitted). Professor Wigmore reaches a similar conclusion as to the allocation of the burden of persuasion. He states: There is, then, no one principle, or set of harmonious principles, which afford a sure and universal test for the solution of a given class of cases. The logic of the situation does not demand such a test — it would be useless to attempt to discover or to invent one; and the state of the law does not justify us in saying that it has accepted any. There are merely specific rules for specific classes of cases, resting for their ultimate basis upon broad reasons of experience and fairness. IX J. Wig-more, Evidence § 2486, at 278 (3d ed. 1940) (footnote omitted). .Civ.R. 72(d) (2) provides in part that the plaintiff's notice should state that regardless of whether the defendant appears or answers, he may present evidence as to the amount of compensation to be paid for his property at the hearing or trial of the issue of just compensation that if neither an appearance nor an answer is filed the court will proceed to hear the action and to fix the compensation without further notice. ⅜ ⅜ ⅜ Civ.R. 72(e) (4) provides in part that: A defendant waives all defenses and objections not presented as provided , but at the hearing or trial of the issue of just compensation, whether or not he has previously appeared or answered, and even though default judgment may have been entered against him, he may present evidence as to the amount of compensation to be paid for his property * ⅜ ⅜. Thus, Alaska's procedural rules pertaining to condemnation actions do not provide a burden of pleading which could be looked to as determinative of the com-panionate burden of persuasion. . State v. Amunsis, 61 Wash.2d 160, 377 P.2d 462, 464 (1963) ; City of Wichita v. Jennings, 199 Kan. 621, 433 P.2d 351, 356 (1967). In Amnnsis, the Supreme Court of Washington referred to Martin v. City of Columbus, 101 Ohio St. 1, 127 N.E. 411 (1920). The court stated that an instruction on burden of proof in condemnation actions was "an inappropriate instruction and we express the hope that the state will cease to ask for it and that trial judges will cease to give it." 377 P.2d at 464. . Ore.Rev.Stat. 35.085(2). In regard to eminent domain proceedings, subsection (1) of Ore.Rev.Stat. provides: Evidence shall be received and the trial conducted in the order and manner prescribed in ORS chapter 17, except that the defendant shall have the option of proceeding first or last in the presentation of the evidence. Unless the ease is submitted by both sides to the jury without argument, the party who presents evidence first shall also open and close the argument to the jury. . Concerning the separate questions of order of proof and order of final arguments of counsel in condemnation proceedings, we believe these are matters that should be left to the discretion of the trial judge. Civ.R. 46(b) provides: Unless otherwise ordered by the court, which may regulate the order of proof in the exercise of sound discretion, the plaintiff shall then introduce evidence on his part, and when he has concluded the defendant shall do the same. See § (a) and (g) of Civ.R. 46 regarding opening statements and final arguments of counsel. . The state's offer of proof was to the effect that a witness in its behalf would have testified that in 1966 the tax evaluation on the property of Dr. and Mrs. Stew art was $27,400.00. The tax assessment on the land was $8,600.00, the tax assessment on the building was $18,-800.00. . It is stated in 5 J. Sackman & P. Rohan, Nichols, The Land of Eminent Domain § 22.1 (rev. 3d ed. 1969) (footnote omitted), that: It is almost everywhere the law that the value placed upon a parcel of land for the purposes of taxation by the assessors of the town in which it is situated is no evidence of its value for other than tax purposes. See also United States v. Certain Parcels of Land in Arlington County, 261 F.2d 287, 290 (4th Cir. 1958) (citations omitted), where the court said : Various reasons have been offered by the courts and by text writers for the exclusion of this evidence of assessed value. Some courts have rested their action on the statement that assessments for taxation are notoriously unreliable as a criterion of true value. Other courts have rejected the evidence on the ground that such a valuation is res inter alios acta. In Cincinnati, H. & I. R. Co. v. McDougall, 108 Ind. 179, 8 N.E. 571, 573, the Court held assessed valuations inadmissible because '(S)uch valuations are to be regarded as having been made for a special purpose and are not competent as original evidence of value for any other than the purpose for which they are made. We think the sound reason for ruling out evidence of the assessed valuation is that it merely represents the opinion of persons who are not called as witnesses and not subject to examination as to the factors on which they based their opinion. To accept it would be to say to the jury: 'Messrs. A., B. and C. (the assessors) were of opinion that this land had a value of $_', without presenting A., B. or C. as a witness. . SLA 1967, ch. 174, § 1. . There may be an exception where a taxing entity assesses at one level of value but later the same entity condemns at a lower value. There is authority for admitting the assessed valuation in evidence in such cases. But that issue is not presented here for decision.

10564157

Eugene P. FIELDS and Joseph P. Bassett, Appellants, v. STATE of Alaska, Appellee

Fields v. State

1971-08-06

Nos. 1137, 1138

831

848

487 P.2d 831

487

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:16.911957+00:00

CAP

Before BONEY, C. J., DIMOND, RABINOWITZ and CONNOR, JJ., and LEWIS, Superior Court Judge.

Eugene P. FIELDS and Joseph P. Bassett, Appellants, v. STATE of Alaska, Appellee.

Eugene P. FIELDS and Joseph P. Bassett, Appellants, v. STATE of Alaska, Appellee. Nos. 1137, 1138. Supreme Court of Alaska. Aug. 6, 1971. Robert C. Erwin, of Hughes, Thorsness, Lowe, Gantz & Clark, Anchorage, for appellant, Fields. B. G. Johnson, Anchorage, for appellant, Bassett. G. Kent Edwards, Atty. Gen., Juneau, Harold W. Tobey, Dist. Atty., Robert L. Eastaugh, Asst. Dist. Atty., Keith E. Brown, Asst. Dist. Atty., Anchorage, for appellee. Before BONEY, C. J., DIMOND, RABINOWITZ and CONNOR, JJ., and LEWIS, Superior Court Judge.

10774

64728

OPINION BONEY, Chief Justice. Fields and Bassett appeal from convictions, after jury verdicts, of the offenses of assault with a dangerous weapon, attempted robbery, robbery, and grand larceny. Their grounds for appeal are nearly identical, and their cases will be considered together. On October 12, 1967, Michael Warbur-ton, Patrice Warburton, Betty Bryson, and her sons David and Michael Bryson were at the Warburton residence at Moose Pass, Alaska, on the Seward Highway. At about 10:30 p. m. two men wearing nylon stockings over their heads burst into the living room and held David Bryson and Michael Warburton at gunpoint, ordering them into the den and striking one of them who was slow to react. One of the assailants shot at the family dog. Betty Bryson, Michael Bryson, and Patrice Warburton appeared, and they were all told to lie down on the floor. At about this time Mr. Leroy Bryson arrived at the residence. The assailants held him at gunpoint, searched him, and bound his hands. The two robbers also opened Mrs. Bryson's purse, dumped its contents on the floor, and went through her wallet. After the robbers had made threats upon the victims, Leroy Bryson finally agreed to open the safe in the nearby jewelry shop belonging to the Warburtons. Mrs. Bryson and the children were left in the basement with the basement door jammed so that they could not get Out. Upon entering the jewelry shop, the robbers took a substantial quantity of gold nuggets, casting gold, some currency, and commemorative coins. The robbers took Mr. Bryson back to the basement of the Warburton house where the other victims were present. According to Leroy Bryson there had been some talk about killing him by one of the robbers, but the other was against such a course of action. When Leroy Bryson was returned to the Warburton residence, all of the victims were tied up once again and the telephone was pulled off the wall. The robbers then left, and it took approximately 10 to 20 minutes before the Brysons and the others were able to free themselves. Leroy Bryson then hastened to a nearby place to call the police. At approximately 1:20 a. m. on October 13th, Bassett and Fields were stopped by the Alaska State Troopers in a roadblock at Milepost 107 on the Seward Highway, about 80 miles from the scene of the robbery. No arrest was made, however, at that time. Bassett was driving a 1963 white Ford automobile which he had bor rowed from a friend. At trial Leroy Bry-son testified that he was able to see the vehicle used by the robbers, and he described it as being white or cream-colored. Fields and Bassett were subsequenly arrested on charges stemming from the jewelry shop robbery, and were brought to trial and convicted. On appeal Fields and Bassett raise the issues (1) whether certain testimony tending to identify the defendant Fields was properly admitted, (2) whether the court erred in giving a supplemental verdict-urging instruction to the jury after it had been deliberating for nearly two days, and (3) whether the court erred in excluding certain testimony offered to impeach the witness Perry as to (a) his use of narcotics and (b) his reputation for truth and veracity. ADMISSION OF IDENTIFICATION TESTIMONY We deal first with the appellants' contention that the trial court erred in admitting certain identification testimony of the witness Michael Warburton. Michael's identification testimony was prefaced by the state's request that the defendants place nylon stockings over their faces. Following this request the jury was excused and a substantial voir dire occurred during which the state atempted to justify its request. During the voir dire, Michael indicated, in response to a question by the court, that he could not identify either of the defendants beyond a reasonable doubt: Q. Well, but the question is, can you identify anyone here now without a stocking over their head relative to the —who was in that house and — and—went through the activities you testified to? A. I cannot do it without a reasonable doubt. After the lengthy voir dire, the court ruled that it would not direct the defendants to wear nylon stockings. The jury was returned and the following testimony was heard: Q. Michael, I ask you whether or not —you can look in the courtroom and whether you see the person or persons that you referred to having been in the Warburton home on October 12, 1967? A. I cannot positively say that I recognize them. Q. Now, you're saying then that there is some — some question in your mind as to exactness? A. Yes. 5fC Q. Based, Michael, on your observation of the men that you have referred to as being in the Warburton home on October 12, 1967, at the time of the robbery, do you see any persons present in the courtroom that you observed on this night ? A. Yes, I think I can recognize somebody here. Q. All right. Would you point that person whom you feel you recognize out please ? A. It is that man on the left (indicating). Q. Can you describe him? A. He is short, dark hair, dark features. Q. I see. He's is sitting — the one sitting to the right of Mr. Brundin (indicating) ? A. Yes. On cross examination, Michael indicated that he could not positively identify the defendants. However, he did state that he was rather certain of his belief that Fields was the man who was in the house when the crime was committed. Appellants claim that this identification testimony was not sufficiently positive to become admissible, and that its admission was prejudicial because of the particular circumstances of this case, in which the assailants wore stockings over their faces. Four of the robbery victims were unable to identify either assailant. But there was other evidence, besides the testimony of Michael Warburton, which pointed to Fields and Bassett as the perpetrators of the offense. The witness Leroy Bryson made a much more positive identification than did Michael Warburton. There was also circumstantial evidence which tended to identify appellants. Appellants ask that we adopt a rule which would render identification testimony inadmissible unless the witness is positive. In support of such a rule appellants cite People v. Bryan, 27 Ill.2d 191, 188 N.E.2d 692 (1963); People v. Gardner, 35 Ill.2d 564, 221 N.E.2d 232 (1966); Ross v. State, 190 So.2d 187 (Fla.Ct.App.1966); People v. Barbosa, 254 Cal.App.2d 581, 62 Cal.Rptr. 212 (1967); United States v. Beigel, 254 F.Supp. 923 (S.D.N.Y.1966), affirmed 370 F.2d 751 (2d Cir. 1967); Peterson v. District of Columbia, 171 A.2d 95 (D.C.Mun.App.1961); and Hendrix v. United States, 327 F.2d 971 (5th Cir. 1964). The state counters this argument with authorities which permit the introduction of testimony less than positive. People v. Cahan, 141 Cal.App.2d 891, 297 P.2d 715 (1956), cert. denied, 352 U.S. 918, 77 S.Ct. 214, 1 L. Ed.2d 124 (1956); State v. Dutton, 83 Ariz. 193, 318 P.2d 667 (1957); State v. Williamson, 78 N.M. 751, 438 P.2d 161 (1968), cert. denied, 393 U.S. 891, 89 S.Ct. 212, 21 L.Ed. 2d 170 (1968); People v. Lewis, 240 Cal.App.2d 546, 49 Cal.Rptr. 579 (1966); People v. Pleasant, 268 Cal.App.2d 28, 73 Cal.Rptr. 648 (1968); State v. Ellingson, 283 Minn. 208, 167 N.W.2d 55 (1969); Mason v. State, 244 Ind. 206, 191 N.E.2d 705 (1963); and Bustos v. People, 158 Colo. 451, 408 P.2d 64 (1965). We find the cases cited by appellants to be distinguishable in one or more respects. In People v. Bryan, supra, and People v. Gardner, supra, there was substantial alibi evidence which had to be weighed against less than adequate eye witness identification. In both cases the issue presented was whether the evidence in its totality was sufficient to support a conviction. It is not contended in the case at bar that there was insufficient evidence for the case to go to the jury, but merely that the testimony of Michael Warburton should not have been admitted. In Ross v. State, supra, there was very little opportunity for the witnesses to even observe the distinguishing characteristics which would tend to identify the perpetrator of a larceny. The victim was unable to make any positive identification from photographs exhibited to him, but selected the pictures of several persons as being possible suspects. It was only at a later lineup that the victim selected a particular person as being the thief. The court employed the salutary rule that in order for the proof to be sufficient there must be an opportunity to observe the features, voice, mannerisms, or demeanor of the assailant so as to be able to isolate that person in the mind and memory of the witness with sufficient clarity to make a subsequent identification. In People v. Barbosa, supra, the victim of the offense was very uncertain about the identity of the assailant, and only hearsay evidence was left with which to connect the accused to the commission of the crime. In Peterson v. District of Columbia, supra, the total evidence established only a possibility and not a probability that the accused was the perpetrator of the offense. Hendrix v. United States, supra, holds that there must be something more than a mere resemblance in order to establish identity of the accused, but that the testimony need not be entirely positive. In United States v. Beigel, supra, there was only one identifying witness. The method by which identification was achieved was fraught with defects. The discrepancies and contradictions in that identification were numerous. Many of the cases dealing with the adequacy of identification testimony or evidence fall within a gray area in which the courts achieve a solution only through an analysis of the particular factual setting in which the issue is presented. In many of these cases the question is not the admissibility of identification testimony as such; it is whether the entire evidence, including the identification testimony, is sufficient to support a conviction. The weight of authority favors the reception of such identification evidence even though it is less than positive in nature. As the ability of the witness to have observed accurately or to recall positively becomes less certain, so does the identification testimony become more like an item of circumstantial evidence, to be weighed with other evidence in determining the identity of the person who committed the crime. At some point the uncertainty of the witness may be so great as to render the testimony immaterial and thus inadmissible. But until that point is reached, the lack of postiveness goes only to the weight of the testimony, and its probative value is to be decided by the trier of fact. Many of the cases cited by the state are instances of this rule. For example, in People v. Cahan, supra, the identifying witness was only able to say that "I believe" that the defendant was one of the robbery assailants. In upholding the conviction, the court observed: When a witness says T believe' he is not necessarily guessing. (Citation omitted.) To sustain a conviction, it is not necessary that identification of the defendant be positive and free of inconsistencies. (Citation omitted.) 'If the testimony of the identifying witnesses is worthy of credence and convinces the jury, the latter's finding is final unless the trial judge should with his intimate knowledge of the witness' behavior upset the verdict. It is not essential that the witness be free from doubt as to one's identity. He may testify that in his belief, opinion or judgment the accused is the person who perpetrated the crime. The want of positiveness goes only to the weight of the testimony.' 297 P.2d at 719. A case similar to the one before us is State v. Williamson, supra. There the perpetrators of the robbery wore nylon stockings and pieces of a towel to conceal their facial identity. The witnesses could testify about the similarity of the felons with that of the accused only as to height, weight, age, quickness of action and movement. One witness observed that one of the robbers had dark bushy hair, which was very similar to that of one of the defendants. In upholding the conviction the court stated: It is not essential for a conviction that a positive identification be made of the accused. It is sufficient if the witnesses testify that in their belief, opinion or judgment the person accused is the person who perpetrated the crime and want of positiveness goes only to the weight of the testimony. 438 P.2d at 164. Another case concerning a masked robber, Bustos v. People, supra, is to like effect. Under these authorities we are persuaded that the admission of the testimony of Michael Warburton was proper. THE ALLEN CHARGE Appellants assert that the trial court erred in giving a supplemental verdict-urging instruction to the jury over objections of both the prosecuting attorney and the counsel for both defendants. The instruction was, with one potent exception, substantially similar to what is commonly known as the Allen Charge. This instruction was delivered on the trial court's own motion after the jury had failed to return a unanimous verdict by the third morning of deliberations. The charge was a relatively long one and is set out fully below. We hold that the traditional Allen type charge, by virtue of emphasizing the duty of the minority jurors to reconsider their views without a like admonition to the majority, is so inherently fraught with coercive tendencies that its use cannot be justified. The contrary holdings in Chase v. State and Gafford v. State are overruled. Moreover, scrutiny reveals that the challenged instruction included additional non-Allen type language which rendered it undeniably and necessarily coercive. Its vice was a serious one soundly condemned by prior authority. Its use should not pass this court unnoticed. The court in concluding its charge instructed : With that admonition you are directed to continue your deliberations until you arrive at a unanimous verdict. You will again retire to your jury room and continue your deliberations. (Emphasis supplied.) It is our view that a jury would naturally conclude that the judge's charge meant exactly what it said, that the jury would be required, as directed, to continue deliberations until they arrived at a unanimous verdict. Such a requirement is clearly contrary to our law. The instruction in effect demanded agreement, and it is not possible for us to see how such a charge may be justified. This is the judge speaking, and these are his final words; they constitute the final impression made upon the jury before deliberations resumed. When this is recognized, it is obvious that the judge subjected the jury to pressure of a degree and of a type never approved in the Allen Charge. The instruction here is not an Allen Charge but a reasonably accurate paraphrase of it followed by a substantial addition not embraced within the more carefully measured language of the Allen Charge. The Allen Charge alone, unaccented and unembellished, is severe enough. The elaboration upsets that delicate balance which has allowed prior Allen Charge approval. Repeatedly, it has been declared that the Allen Charge represents the limit to which a judge may go in urging a verdict. That limit having been exceeded here, error is apparent. The import of the instruction is that a criminal trial must end with either a verdict of guilty or not guilty. Yet, this is not the law for there is no requirement that a jury* agree. A hung jury is a legitimate end of a criminal trial, and is the occasionally inevitable result of requiring a unanimous verdict beyond a reasonable doubt. Here a jury was subjected to the direction to continue deliberations, "until you arrive at a unanimous verdict". A jury member so instructed faces but three choices: (1) to convince all beyond a reasonable doubt, (2) to surrender, without conviction, a view conscientiously held; or (3) to remain together indefinitely in the absence of unanimous agreement. For a minority juror unable to persuade the others and unwilling to surrender a conscientious belief, confinement of all by his belief is the only choice. Can anyone say that such a result does not generate pressures that are coercive? Most assuredly surrender to majority rule must follow for an average juror. Moreover, subjection to pressure of this nature with its total irrelevance to innocence, guilt, or the evi- deuce at trial finds little justification in our law. The jury here was charged with more than a duty to carefully consider; it was in effect forced to reach a unanimous decision. The language of the charge being a basic and coercive misconception of our law transforms what was in all likelihood an innocent attempt at expediency into positive error. For in the face of the plain meaning of this charge it is simply absurd to say that a juror was left free and unfettered to stand by his conviction. Nor can we assume, when dealing with the vital rights of the lay juror and criminal accused, that the judge did not intend to execute his instruction or that the jury would question his sincerity. When the verdict-urging charge was delivered at least one juror was opposed to conviction. Following its pronouncement, any dissenter faced the alternative of surrendering his sincere conviction or compelling his fellows to remain together indefinitely. In our view such a choice is coercive. That juror coercion is error under our law is so clear as to not require elaboration. The United States Supreme Court in Jenkins v. United States, 380 U.S. 445, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965), indicated the proper disposition of the case before us. There the defendant was convicted by jury verdict of robbery. Prior to reaching their verdict the jury had informed the court they were unable to reach a decision. The judge responded stating: Now, I am not going to accept this. You have got to reach a decision in this case. Defendant did not object at trial, but raised the issue for the first time on appeal, where the United States Circuit Court, one judge dissenting, affirmed stating: We see no basis whatever for characterizing these statements as coercive, especially as the jury did not reconvene and resume its deliberation until the following day. The United States Supreme Court granted certiorari, 379 U.S. 944, 85 S.Ct. 442, 13 L.Ed.2d 542, to determine if "the statement was coercive". The court in a per curiam opinion noted that the Solicitor General stated in his brief: Of course, if this Court should conclude that the judge's statement had the coercive effect attributed to it, the judgment should be reversed and the cause remanded for a new trial; the principle that jurors may not be coerced into surrendering views conscientiously held is so clear as to require no elaboration. The court concluded that the statement had a coercive effect and reversed the conviction. Other judicial decisions indicate disapproval of the challenged instruction. In Powell v. United States, 297 F.2d 318, 320 (5th Cir. 1961), the court instructed: 'If you follow the principles of law given you by the Court and if you recall the evidence in this case you ought to be able to agree upon a verdict. ' That instruction was found coercive. In Green v. United States, 309 F.2d 852, 855 (5th Cir. 1962), the following instruction was held to far exceed the permissible limits of the Allen Charge: [I]t is the duty of the minority to listen to the argument of the majority with some distrust of their own judgment because the rule is that the majority will have better judgment than the mere minority The instruction was said to have "prejudiced the right of an accused to a hung jury and a mistrial by tending to stifle the dissenting voices of minority jurors". We hold that reversal is compelled in this case. For a jury to be faced with the prospect of indefinite service is so inherently and invariably coercive as to require reversal. Our holding that the threat of continued indefinite confinement is coercive is amply supported. Even if coercion were not so apparent here, that is, if the coercive nature of this instruction was a close question, we believe that pragmatic considerations and policy require that the doubt be balanced in favor of the defendant and the case reversed. We reach this conclusion because the coercive impact of a questionable charge is almost always difficult to evaluate precisely on appeal. When the coercive impact of a questionable practice cannot be assessed accurately, pragmatic concern for defendants' rights, impartial trial and the integrity of the jury process dictates that the use of a questionable charge be proscribed. There is danger that where proof of prejudice is difficult, a defendant's right to a fair trial by an impartial jury will be violated with a consequent denial of due process. Where practical considerations pose special difficulties of proof in regard to vital rights, policy supports the formation of practices to protect those rights. Therefore, even if we were not convinced that the error here was obvious, we would favor balancing the question of prejudice in favor of defendant. Having considered the specific charge before us, we turn to a general review of Allen-type charges in an effort to provide sufficient guidance to alleviate future error. Since its initial approval in the Allen decision, the Allen charge has become a standard tool of both state and federal judges. However, the descendants of Allen have exhibited numerous variations of the basic theme that the necessities of judicial economy require that when jurors find themselves divided, they must re-examine their convictions in an attempt to reach a verdict. As a result, state and federal courts have repeatedly been faced with determining whether the Allen charge — or something resembling it — constitutes an unwarranted intrusion by the court upon the province of the jury. Federal circuit courts of appeal have frequently upheld a properly limited charge. Recently, however, use of the Allen-type charge has been severely questioned by the courts, the commentators, and the American Bar Association Project on Minimum Standards for Criminal Justice. Much of what was generally accepted in 1896, when Allen, supra, was decided is not good law today. Contemporary criticisms of the Allen charge indicate that it is less an object of commendation than toleration. Recent court opinions and scholarly commentary reveal a growing concern with the potentially coercive effects of the Allen charge upon the minority jurors. Two state appellate courts have used their supervisory power to abolish the practice of instructing potentially hung juries on . their responsibility to reach a verdict. The Fifth Circuit has indicated dissatisfaction with the charge on a number of recent occasions, and two judges on that court have argued that it is unconstitutional. The Seventh Circuit and the District of Columbia Circuit have both proscribed its future use, while the Third Circuit has severely limited if not completely prohibited the giving of the Allen charge. Agreeing with these judicial criticisms, the commentators have recommended that it be modified, infrequently invoked, or abolished. It is obvious from our review of the recent authorities that a new approach to the use of the Allen charge is evolving. Current analysis seriously questions the propriety of giving the instruction in its traditional- form. When the Allen charge is discussed today, common critical themes consistently appear. The most important of these is the fear that the minority jurors will be coerced by the charge and fail to render a verdict truly representing their conscientious convictions. This coercive influence is generally viewed as a function of the context in which the charge is given and of the inherently unbalanced nature of the Allen charge itself. This latter factor results because the charge emphasizes reexamination by the minority of the jurors in light of the fact that the majority who are equally honest and dedicated disagree. At the very least, the Allen charge encourages majority inaction by failing to emphasize any need for reevaluation of the majority's viewpoint. As a result, there is a possibility of substituting a numerical preponderance for the requirement that a verdict not only be unanimous but representative of the honest convictions of each individual juror. The coercive tendency of the Allen charge requires that its use be discontinued in this state. It has been suggested that a mistrial from a deadlocked jury is a safeguard to liberty. It has also been observed that the law generally attempts to protect juries from potentially coercive influences. Instructions which tend to be coercive must, of course, be avoided to prevent unnecessary infringement upon the jury function. We must now consider alternatives more likely to insure the free and unfettered operation of the jury. The use of a properly circumscribed supplemental instruction following a deadlock somewhat similar to the one given in the present case may serve a beneficial purpose in the adjudication of cases. However, having considered the Allen charge, we conclude that it is time to adopt a new and less objectionable instruction. We direct that in the future trial courts comply with the standards recommended by the American Bar Association Project on Minimum Standards of Criminal Justice. The recommended standard, which received the approval of the House of Delegates, is set out below: (a)Before the jury retires for deliberation, the court may give an instruction which informs the jury: (i) that in order to return a verdict, each juror must agree thereto; (ii) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment; (iii) that each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors; (iv) that in the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and (v) that no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict. (b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in subsection (a). The court shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals. (c) The jury may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of agreement. This procedure was recently adopted by the Seventh Circuit in United States v. Brown and the District of Columbia Circuit in United States v. Thomas. This approach impresses the jurors at the outset with the magnitude of their duties while, at the same time, it provides a balanced instruction. It does not tend to place the holders of a minority viewpoint in a vulnerable position and is comparatively free of coercive language. With these benefits in mind, we find it significant that the American Bar Association Project set out in its commentary an illustrative instruction which it considered consistent with the standard. We suggest that when a trial judge is faced with an apparently deadlocked jury the recommended instruction be considered. This approach will yield uniformity and predictability, and should eliminate appeals based upon technical variations in language. For convenience and guidance, the recommended instruction is quoted: The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous. It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. You are not partisans. You are judges — judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case. Our holding that error was committed in submitting to the jury an Allen-type charge is in itself sufficient to require reversal of the appellants' convictions. To avoid the possibility of further error being committed upon retrial of this matter, however we find it appropriate to consider the remaining points of error raised on appeal. ATTEMPTED IMPEACHMENT OF MICHAEL PERRY In the course of the trial below, the prosecution relied primarily on the testimony of Michael A. Perry to establish its case against the appellants. Perry admitted that he had surveyed the Warburton Jewelry Shop at Moose Pass with an eye to burglarizing it, and that he had discussed the project with Bassett and Fields. Perry stated that he concluded that the burglary would be too risky, and thus abandoned the project. According to Perry, several days after the robbery he was contacted by Bassett and Fields, who asked him to assist them in selling some gold. Perry agreed, and actually succeeded in selling a portion of the gold which had been given to him. He returned the proceeds from the sale along with the remaining gold to Fields. Perry further claimed that he learned from Fields that the gold which he sold had been stolen from the jewelry shop at Moose Pass. Defense counsel made concerted efforts to impeach Perry's testimony. On cross-examination, inquiry was made into Perry's motives for testifying. Perry revealed that, in return for his testimony, the district attorney had promised him immunity from prosecution stemming from the alleged incident. He acknowledged the fact that he had given testimony in other criminal cases in return for immunity. Additionally, Perry freely admitted that he had been convicted of felonies on numerous previous occasions. The defense further sought to discredit Perry's testimony by attempting to show, both on cross-examination and through the testimony of witnesses, that Perry had used and was addicted to narcotics. On cross-examination by Bassett's counsel the following exchange occurred: Q. Are you a dope addict? A. No, I'm not. Q. Are you under the influence of any narcotic right now? A. No I'm not. Q. Could I have a look at your arm? A. Yeah, you can look. [PROSECUTOR]: Object as being irrelevant and immaterial, Your Honor. The witness has testified. If counsel wishes to bring forward some evidence to substantiate his inference that this witness at this time is under any type of drug the state has no objection to it, but the question has been asked, it has been answered and I object to any type of inferences being raised by the witness' negative answer. THE COURT: Sustained. This attempted impeachment was temporarily abandoned, and no offer of proof was made by defense counsel. At a later point counsel for Fields probed further into this subject. Perry denied that he was a narcotics addict, either in the past or currently. Although the prosecutor objected to these questions, and most of the objections were sustained, answers in the negative were given. No motion to strike these responses was made by the state. Later in the proceedings, one Donald Chambers was called by the defense. Counsel offered to prove that Chambers observed Perry injecting himself with heroin in July or August of 1968. The court refused to admit this testimony. The defense also sought to introduce testimony by Mildred McGalliard that Perry entered her house in the fall of 1968 with black and blue arms, and that he admitted to "shooting smack". Again the court excluded this testimony. We turn first to the question whether evidence of heroin addiction should be routinely admissible to impeach the testimony of a witness. Some courts have taken this view. State v. Fong Loon, 29 Idaho 248, 158 P. 233 (1916); State v. Prentice, 192 Iowa 207, 183 N.W. 411 (1921); Diblee v. State, 202 Ind. 571, 177 N.E. 261 (1931); Beland v. State, 86 Tex.Cr.R. 285, 217 S.W. 147 (1919). Such cases usually proceed from the premise that heroin addicts become, by virtue of their use of the drug, depraved, pathological liars who are incapable of distinguishing reality from appearance. These cases represent a distinctly minority view. There may, in fact, be justification for introducing evidence of heroin use and addiction to impeach a witness where the evidence pertains either to the time of the occurrences which the witness has observed or to the time of trial. In such instances, use of heroin could potentially affect the capacity of the witness to accurately observe or relate details of the events which he has seen. But we cannot accept a rule under which persons who use or are addicted to heroin are considered necessarily and inherently unreliable as witnesses. The rule thus stated is based upon a "common knowledge" which is scientifically unsound and which has been rejected by the more penetrating judicial opinions on the subject. See, e. g., Kelly v. Maryland Cas. Co., 45 F.2d 782 (W.D.Va.1929); People v. Williams, 6 N.Y.2d 18, 187 N.Y.S.2d 750, 159 N.E.2d 549 (1959); see also People v. Bell, 138 Cal.App.2d 7, 291 P.2d 150, 152-153 (1955). We therefore hold that evidence of narcotics use or addiction will not be admissible where its only purpose would be to impeach a witness by showing that he is, by sole virtue of his addiction, inherently unreliable. Our holding does not mean that evidence of addiction to heroin will never be admissible to impeach a witness. Where evidence of addiction tends to show that the witness was under the influence of narcotics either at the time of trial or at the time of the occurrence to which he testifies, where the evidence proves that his ability to perceive, remember, and testify are substantially affected by his habit, or where such evidence would be independently admissible under some other theory, it should not be excluded. Turning next to a consideration of the circumstances of the present case, we conclude that the evidence proffered by the appellants against Michael Perry should have been admitted. Initially, we feel that the proof excluded by the trial court was at least somewhat probative of the issue of Perry's condition at the time of trial. The very exclusion of that proof makes it impossible to know whether the appellants would have succeeded in establishing that Perry was under the influence of narcotics at the time his testimony was rendered. Yet it would seem that the appellants' efforts at impeachment were more than a random and unfounded fishing expedition; the significant observation is that the appellants might well have proven successful in their efforts had not the trial court so readily excluded the evidence-which they sought to produce. Although we are inclined to think that the evidence offered by the appellants was not wholly irrelevant on the question of Perry's condition on the stand, we believe that there is a compelling, independent reason for the admission of this evidence even assuming that it was not sufficiently probative of Perry's condition at the time of trial. In the circumstances of the present case, the rejected evidence of heroin use by Perry was, in our view, independently relevant apart from its tendency to establish that Perry was unreliable in the sense that all drug addicts are unreliable. To be specific, we hold that Perry's use of narcotics was crucially relevant to show the possibility that his testimony was colored by bias — "the slanting effect upon human testimony of the emotions or feelings of the witness toward the parties or the self-interest of the witness in the outcome of the case." In Whitton v. State, 479 P.2d 302, 316-318 (1970), this court addressed itself to the issue of bias, stating: Because this human tendency is so common and well known, reasonable latitude must be allowed in the cross-examination of a witness, and also in the introduction of extrinsic testimony, to bring out facts and circumstances which, when tested by human experience, tend to show that the witness may be biased. This court further noted in Whitton the particular susceptibility to bias of state informers, quoting with approval the language of Hughes v. United States, 427 F.2d 66, 68 (9th Cir. 1970): [T]he defense should always have the opportunity to show by way of cross-examination or otherwise that the actions of a government informer may have been impelled by an expectation of leniency. Here, like in Whitton, the bearing of the excluded evidence on the issue of bias may be easily perceived. As a witness, Perry was serving in the capacity of a police informer, and had been promised immunity from prosecution on any charges relating to the incident concerned in the case. Given this information alone, a jury might reasonably conclude that Perry's sole motive for testifying was the desire for immunity, and that his testimony could therefore be relied upon as truthful. Yet proof that Perry was a user of narcotics would have revealed additional possible motives for his testimony, and these motives would hardly have been conducive to testimonial accuracy. Users of narcotics regularly engage m behavior deemed reprehensible by society and proscribed by law. Heroin addicts require regular doses of the drug. Given these two facts, it is not difficult to see that pressure to testify can easily be brought to bear on the addict by police. Threatened by prosecution for possession of contraband or faced with the prospect of seeing the source of his supply dried up, a heroin user might in many instances be quite willing, regardless of the truth, to tell a story which he feels will be likely to please the authorities and to work to his advantage. It is just such an inference which proof of Perry's drug use would have tended to raise. Under the well settled rules of evidence, the appellants should have been entitled to prove bias. The ruling of the trial court excluding the testimony of Chambers and McGalliard and preventing Perry from showing the condition of his arms unjustifiably thwarted the appellants' attempts to this end, thereby preventing a full and fair disclosure of Perry's possible motives for testifying. Again, it is relevant to consider that Perry's testimony was vital to the prosecution, and that the issue of his credibility was therefore a crucial one. Because of the plain bearing of the evidence offered by the appellants on the issue of bias, we think that its exclusion was unwarranted. An alternative basis for the admission of the evidence of Perry's heroin use exists and is worthy of mention. Perry testified, in response to questions posed by defense counsel, that he had not previously used narcotics. The evidence offered by the appellants should properly have been admitted to contradict Perry's statements on the stand. If the testimony of witnesses McGalliard and Chambers was not independently admissible, it might be regarded as collateral and therefore inadmissible for the sole purpose of contradicting Perry. However, the established evidenti-ary rule is that contradiction of a witness' testimony is permissible by means of extrinsic evidence when such evidence is not collateral — that is to say when the extrinsic evidence would otherwise be admissible. Because we believe that the testimony of Chambers and McGalliard would have been admissible on the issue of bias, it would not have been collateral. Moreover, the appellants' request to have Perry bare his arms was obviously directed at contradiction of his testimony. This request was part and parcel of the appellants' cross-examination; it was in no sense extrinsic evidence, and should therefore have been admissible for the purpose of contradiction regardless of whether it might otherwise have been collateral. The next claim of error centers around the attempt to impeach Michael Perry by showing that his community reputation for truth and veracity was bad. At trial, the defense called the witnesses Chambers and McGalliard to testify con cerning the reputation of Perry for truth and veracity. After objection, this proffered testimony was excluded by the court for lack of an adequate foundation. Appellant contends a proper foundation had been laid and that the trial court committed prejudicial error in failing to admit the testimony. The state argues that a proper foundation was not laid and that the testimony was correctly excluded. The requirement of a proper foundation before a witness is allowed to testify concerning another witness' reputation in the community is an important one, and must not be wholly disregarded. Yet this is an area which has often proven unnecessarily confusing, and in which technicalities have frequently been permitted to prevail over substance. The ultimate goal of the foundation requirement has been well described in Whiting v. United States, 296 F.2d 512, 517 (1st Cir. 1961) (citations omitted): It is fundamental that to qualify a witness as competent to give testimony concerning a defendant's character and reputation in the community it is usually required that there be a showing that the statements uttered by the witness are representative. In short, there must be some demonstrable basis evincing the competence of the witness to give his opinion. Upon review of the record, we are convinced that an adequate basis for the reputation evidence was presented below. Rejection of this evidence by the trial court resulted, in our view, in an overly restrictive application of the foundation requirement. Were this the only error committed by the trial court, we would be inclined to hold that it was harmless. However, in view of the other errors below, we do not think that the exclusion of the reputation evidence may properly be regarded as insignificant. The appellants' convictions are reversed, and these cases are remanded to the superior court for a new trial to be conducted in conformity with the views expressed in this opinion. ERWIN, J., not participating. . The name "Allen charge" is derived from the Supreme Court's approval of a somewhat similar charge in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). . The charge read: Although the verdict to which a juror agrees must, of course, be his own ver-diet — the result of his own convictions and not a mere acquiescence in the conclusion of his fellows, yet, in order to bring twelve minds to a unanimous result, you must examine the questions submitted to you with candor, and with a proper regard and deference to the opinions of each other. You should consider that the case must at some time be decided; that you are selected in the same manner, and from the same source, from which any future jury must come; and there is no reason to suppose that the case will ever be submitted to twelve persons, twelve men and women more intelligent, more impartial, or more competent to decide it, nor that more or clearer evidence will be produced on one side or the other. With this in view, it is your duty to decide the case if you can conscientiously do so. In order to make a decision more practicable, the law imposes the burden of proof on one party or the other, in all cases. In the present case, the burden of proof —the burden is upon the State to establish the guilt of the defendants beyond a reasonable doubt, and if you are left in doubt as to the guilt of the defendants, or either of them, such defendant or defendants is entitled to the benefit of that doubt and must be acquitted. But, in conferring together you ought to pay proper respect to each other's opinions and reasons, with the disposition to be convinced with each other's arguments. And, on the one hand, if much the larger number of you are for a conviction, the dissenting jurors should consider whether the doubt in their own minds is a reasonable one which makes no impression upon the minds of so many men and women equally honest, and equally intelligent, and who have heard the same evidence, with the same attention, with an equal desire to arrive at the truth, and under the sanction of the same oath. And, on the other hand, if the majority of you are for acquittal, the minority should equally ask themselves whether they may not reasonably and ought to doubt the correctness of the judgment which is not concurred in by a number of those with whom they are associated and distrust the weight or sufficiency of that evidence which fails to carry conviction in the minds of their fellows. With that admonition you are directed to continue your deliberations until you arrive at a unanimous verdict. You will again retire to your jury room and continue your deliberations. . Mangan v. Broderick and Bascom Rope Co., 351 F.2d 24, 30 (7th Cir. 1965), cert. denied, 383 U.S. 926, 86 S.Ct. 930, 15 L.Ed.2d 846 (1966) ; Green v. United States, 309 F.2d 852, 855 (5th Cir. 1962), and see Note, On Instructing Deadlocked Juries, 78 Yale L.J. 100, 139-40; Comment, Deadlocked Juries and Dynamite: A Critical Look at the "Allen Charge", 31 U.Chi.L.Rev. 386 (1964). . 369 P.2d 997, 1004-1005 (Alaska 1962). . 440 P.2.d 405, 415-416 (Alaska 1968). . The American Bar Ass'n Project on Minimum Standards for Criminal Justice, Trial by Jury 148 (Approved Draft 1968) states: [I] t is clear that the trial judge may not tell a disagreeing jury that he will keep them together indefinitely or until they agree upon a verdict. Boyett v. United States, 48 F.2d 482 (5th Cir. 1931) ; State v. Rodman, 208 La. 523, 23 So.2d 204, (1945) ; Character v. State, 212 Miss. 30, 53 So.2d 41 (1951). . United States v. Smith, 303 F.2d 341, 343 (4th Cir. 1962). . It is significant that in those cases in which this court has approved the Allen Charge there was an absence of the additional balance-destroying language found here. In Gafford v. State, 440 P.2d 405, 416 n. 53 (Alaska 1968), the court specifically noted that the supplemental charge was a "balanced one". . United States v. Harris, 391 F.2d 348, 354 (6th Cir. 1968); Green v. United States, 309 F.2d 852, 855 (5th Cir. 1962); United States v. Smith, 303 F.2d 341, 343 (4th Cir. 1962); Powell v. United States, 297 F.2d 318, 321 (5th Cir. 1961); United States v. Rogers, 289 F.2d 433, 435 (4th Cir. 1960). . United States v. Harris, 391 F.2d 348, 355 (6th Cir. 1968); Thaggard v. United States, 354 F.2d 735, 740 (5th Cir. 1965) (Coleman, J., concurring), cert. denied, 383 U.S. 958, 86 S.Ct. 1222, 16 L.Ed.2d 301 (1966); Williams v. United States, 119 U.S.App.D.C. 190, 338 F.2d 530, 533 (1964); Green v. United States, 309 F.2d 852, 856 (5th Cir.1 962); Huffman v. United States, 297 F.2d 754, 759 (5th Cir.) (Brown, J., dissenting), cert. denied, 370 U.S. 955, 82 S.Ct. 1605, 8 L.Ed.2d 820 (1962). As long ago as 1909, the United States Supreme Court said that the Fifth and Fourteenth Amendments invest courts with the authority to discharge a jury without a verdict whenever there is, after due deliberation, "a reasonable probability that the jury could not agree". Keerl v. State of Montana, 213 U.S. 135, 138, 29 S.Ct. 469, 470, 53 L.Ed. 734, 737 (1909). . This conclusion is obvious when one considers the inevitable pressures generated by a dissenting juror's realization that all must remain confined indefinitely because of his individual beliefs. That these pressures are particularly acute where, as here, the jurors are in their third day of deliberations is apparent. Common sense demands recognition of the desire of jurors to return to the life from which they have been uprooted. To presume that an average juror will not recognize and succumb to these pressures in the face of indefinite confinement is to presume the absurd. .In condemning the practice of inquiring into the numerical division of a jury unable to agree, the United States Supreme Court has indicated "every consideration other than that of the evidence and the law as expounded in a proper charge, should be excluded." Brasfield v. United States, 272 U.S. 448, 450, 47 S.Ct. 135, 136, 71 E.Ed. 345, 346 (1926). The court has expressed a similar view in reference to pretrial publicity while quoting Justice Holmes: The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence. Sheppard v. Maxwell, 384 U.S. 333, 351, 86 S.Ct. 1507, 1516, 16 L.Ed.2d 600, 614 (1966). Quoting from Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879, 881 (1907), In view of the pressure created by the threat of indefinite confinement the jury may well have been influenced by irrelevant factors, and there is danger the verdict was not "induced only by evidence and argument in open court". . The thrust of the language condemned by the Court is identical with the 'present case, and while the opinion does not disapprove the Allen Charge, the reason is apparent for the violative language is, as here, not part of the Allen Charge. . Jenkins v. United States, 117 U.S.App.D.C. 346, 330 F.2d 220, 221 (1964), rev'd, 380 U.S. 445, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965). . Id. . Id. at 221. . 380 U.S. 445, 446, 85 S.Ct. 1059, 1060, 13 L.Ed.2d 957, 958 (1957). . Id. at 856. . It lias been held that it is error for a judge to tell a jury that they have a duty to or must agree. Thompson v. Allen, 240 F.2d 266, 269 (10th Cir. 1956) (Dicta that an instruction is coercive if "it gave the jury the impression they must reach a verdict"); State v. Rodman, 208 La. 523, 23 So.2d 204, 205 (1951) ("The Court will not accept a mistrial and you must deliberate further") ; People v. Barmore, 368 Mich. 26, 117 N.W.2d 186 (1962) ("duty to agree"); see also Note, On Instructing Deadlocked Juries, 78 Yale L.J. 100, 136 (1968), where it is stated: It is error for the judge to tell jurors that they have 'got to' or 'must' agree. Since a jury is at perfect liberty to hang, the instruction that it has a duty to decide the case is impermissible. (Footnote omitted.) It has also been held improper for a court to threaten or express an intention to confine a jury indefinitely or until they agree. Boyett v. United States, 48 F.2d 482, 484 (5th Cir. 1931) (Coercive for a judge to tell a jury he intended "keeping them sequestered indefinitely until they reached a verdict"). . Brasfield v. United States, 272 U.S. 448, 450, 47 S.Ct. 135, 71 L.Ed. 345, 346 (1926). See also American Bar Ass'n Project on Minimum Standards for Criminal Justice, Trial by Jury 153 (Approved Draft 1968); Note, Due Process, Judicial Economy, and Hung Jury: A Reexamination of the Allen Charge, 53 Va.L.Rev. 123,135-36 (1967); Comment, Deadlocked Juries and Dynamite: A Critical Look at the "Allen Charge", 31 U.Chi.L.Rev. 386, 391 (1964). . Certain rules propounded by the United States Supreme Court illustrate a pragmatic concern for the preservation of vital rights where the establishment of prejudice is difficult. In Gideon v. Wainright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), for example, the right to counsel in criminal proceedings was held to apply automatically absent a showing of special circumstances as required in Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942). The new rule was grounded in part upon the realization that problems of proof and appellate review had rendered the prior rule ineffective as a method of preserving fair trial. The rule of Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935), that where virtual total exclusion of a group from jury service is shown, the burden of showing it does not stem from discriminatory practices shifts to the state, is equally pragmatic. Also notable is the exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), which while not directly related to problems of proof and prejudice, was premised upon the need for a practical method of discouraging unconstitutional searches and seizures. . See, e. g., cases cited in United States v. Fioravanti, 412 F.2d 407, 415 at n. 19 (3rd Cir.), cert. denied, Panaccione v. United States, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969). . See, e. g., United States v. Thomas, D.C.Cir., Sept. 14, 1971; United States v. Johnson, 139 U.S.App.D.C. 193, 432 F.2d 626 (1970) ; United States v. Brown, 411 F.2d 930 (7th Cir. 1969) ; United States v. Fioravanti, 412 F.2d 407 (3rd Cir.), cert. denied, Panaccione v. United States, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969) ; Thaggard v. United States, 354 F.2d 735, 739 (5th Cir. 1965) (Coleman, J., concurring), cert. denied, 383 U.S. 958, 86 S.Ct. 1222, 16 L. Ed.2d 301 (1966) ; Green v. United States, 309 F.2d 852, 854 (5th Cir. 1962) ; Andrews v. United States, 309 F.2d 127, 129 (5th Cir. 1962) (Wisdom, J., dissenting), cert. denied, 372 U.S. 946, 83 S.Ct. 939, 9 L.Ed.2d 970 (1963) ; Huffman v. United States, 297 F.2d 754, 755 (5th Cir. 1962) (Brown, J., dissenting), cert. denied, 370 U.S. 955, 82 S.Ct. 1605, 8 L.Ed.2d 820 (1962). . Note, On Instructing Deadlocked Juries, 78 Yale L.J. 100 (1968) ; Note, Due Process, Judicial Economy, and the Hung Jury: A Reexamination of the Allen Charge, 53 Va.L.Rev. (1967) ; Comment, Deadlocked Juries and Dynamite : A Critical Look at the "Allen Charge", 31 U.Chi.L.Rev. 386 (1964). . American Bar Ass'n Project on Minimum Standards for Criminal Justice, Trial by Jury 145-156 (Approved Draft 1968). . In 1963, Mr. Justice Clark made the following assessment of the Allen charge: "Nor do we circulate the 'Allen- charge' to new judges as I used to do when heading up the criminal division in the Department of Justice. Allen is dead and we do not believe in dead law." Clark, Progress of Project Effective Justice — -A Report on the Joint Committee, 47 J.Am.Jud. Soe'y 88, 90 (1963). The Fifth Circuit has indicated that "[t]here is small, if any, justification for its use" today. Green v. United States, 309 F.2d 852, 854 (5th Cir. 1962). In concurring in Thaggard v. United States, 354 F.2d 735, 739 (5th Cir. 1965), Judge Coleman asserted that if the Allen charge "were submitted to the Supreme Court today the result might not be the same as it was in 1896." . State v. Randall, 137 Mont. 534, 353 P.2d 1054 (1960) ; State v. Thomas, 86 Ariz. 161, 342 P.2d 197 (1959). . Walker v. United States, 342 F.2d 22 (5th Cir. 1965), cert. denied, 382 U.S. 859, 86 S.Ct. 117, 15 L.Ed.2d 97 (1965) ; Green v. United States, 309 F.2d 852, 854 (5th Cir. 1962). . Thaggard v. United States, 354 F.2d 735, 739 (5th Cir.) (Coleman, J., concurring), cert. denied, 383 U.S. 958, 86 S.Ct. 1222, 16 L.Ed.2d 301 (1966) ; Huffman v. United States, 297 F.2d 754, 755 (5th Cir. 1962) (Brown, J., dissenting), cert. denied, 370 U.S. 955, 82 S.Ct. 1605, 8 L.Ed.2d 820 (1962). . United States v. Brown, 411 F.2d 930 (7th Cir. 1969). . United States v. Thomas, D.C.Cir., Sept. 14, 1971. . United States v. Fioravanti, 412 F.2d 407 (3rd Cir. 1969). . See n. 24, supra. . For the specific wording of the charge under consideration in the present case, see n. 2, supra. . Huffman v. United States, 297 F.2d 754, 755 (5th Cir. 1962) (Brown, J., dissenting), cert. denied, 370 U.S. 955, 82 S.Ct. 1605, 8 L.Ed.2d 820 (1962). . See, e. g., Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966) (pretrial publicity) ; Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 (1923) (Mob dominated trial). . See American Bar Ass'n Project on Minimum Standards for Criminal Justice, Trial by Jury 145-146 (Approved Draft 1968). . 411 F.2d 930 (7th Cir. 1969). . D.C.Cir., Sept. 14, 1971. . It should be emphasized that the instruction is not an Allen charge. The ABA Committee, in fact, specifically concluded that "the instruction commonly referred to as the Allen charge or 'dynamite charge' should not be given to a jury * % American Bar Ass'n Project on Minimum Standards for Criminal Justice, Trial by Jury 146 (Approved Draft 1968). . American Bar Ass'n Project on Minimum Standards for Criminal Justice, Trial by Jury 146-47 (Approved Draft 1968). This instruction is instruction 8.11 of Jury Instructions and Forms for Federal Criminal Cases, 27 F.R.D. 39, 97-98 (1961). . Por a review of cases dealing with this topic, see Annot., 52 A.L.R.2d 848 (1957); People v. Williams, 6 N.Y.2d 18, 187 N.Y.S.2d 750, 159 N.E.2d 549 (1959); Note, Testimonial Reliability of Drug Addicts, 35 N.Y.U.L.Rey. 259 (1960). . Considerable scientific evidence has been amassed to support the view that heroin addicts, as a class, are competent witnesses, absent a particularized showing of drug caused facultative impairment, and assuming the accessibility of a regular supply of the drug. This evidence may be some extent undermined by authorities indicating that drug addiction is frequently symptomatic of deep-seated psychological and emotional disturbances of the type which might render an individual prone to lie on the witness stand. See generally Note, Testimonial Reliability of Drug Addicts, supra n. 42. Presumably, under appropriate circumstances, such psychological disorders could be proven without recourse to evidence of heroin addiction. . Similar attempts at impeachment have been ruled admissible in other jurisdictions. See, e. g., People v. Gonzales, 217 Cal.App.2d 41, 31 Cal.Rptr. 540 (19631; People v. Lewis, 25 Ill.2d 396, 185 N.E.2d 168 (1962). . C. McCormick, The Law of Evidence § 40, at 82-83 (1954). . 479 P.2d at 317. . As the court stated in Kelly v. Maryland Cas. Co., 45 F.2d 782, 786 (W.D.Va.1929) : Practically every intelligent layman has heard of, and many have also read of, the frightful sufferings endured by drug addicts when deprived of a supply of the needed drug. Certainly such fears [fears of being deprived of the drug] supply a powerful motive for deception which does not exist in respect to matters in general. . On appeal, the state has insisted on the point that Perry, on cross-examination, was asked only whether he was addicted to heroin, and not whether he had ever used heroin. Similarly, the state underscores the fact that the testimony of witnesses Chambers and McGal-liard related only instances of use of the drug, and could not be sufficient to prove addiction. We think that in the context of the present case these distinctions are overly technical. The testimony of Chambers and McGalliard, considered together, provides a strong indication of possible addiction. Moreover, the offer of medical testimony rejected by the court might well have strengthened the hearing of this evidence on the issue of actual addiction. . See generally C. McCormick, The Law of Evidence § 34, 47 (1954). . Id. at § 48, p. 102. IIIA J. Wigmore, Evidence § 1005(b), (c) (Chadbourn rev. 1970). . C. McCormick, The Law of Evidence § 47 (1954). . It is further relevant to note that upon retrial of this matter our recent decision in Freeman v. State, 486 P.2d 967 (Alaska, 1971), will apply to make admissible testimony based upon the personal opinion of the witnesses.

10562043

Joan Marie AMES, Appellant, v. William Oliver AMES, Appellee

Ames v. Ames

1971-07-26

No. 1369

680

680

487 P.2d 680

487

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:16.911957+00:00

CAP

Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, JJ-

Joan Marie AMES, Appellant, v. William Oliver AMES, Appellee.

Joan Marie AMES, Appellant, v. William Oliver AMES, Appellee. No. 1369. Supreme Court of Alaska. July 26, 1971. Joan Marie Ames, pro se. David H. Call, Call, Haycraft & Fenton, Fairbanks, for appellee. Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, JJ-

210

1241

OPINION PER CURIAM. This is an appeal from an order of the superior court dated July 24, 1970, establishing arrearages for child support and ordering the appellee to sell certain property to satisfy the total amount of ar-rearages within ninety (90) days. Mrs. Ames appeals, but her brief does not set forth with any clarity what aspect of the July 24, 1970, order she is appealing. A review of the specifications of error presented and the allegations made in her pro-pria persona brief indicates that her main complaints were with the Amended Decree of Divorce dated March 14, 1969, and the property settlement therein, from which no appeal was ever taken. We decline to reopen such proceedings at this time. A complete review of all of the allegations of error and the entire record in this case in an attempt to decipher the position claimed by the appellant convinces us that the trial court did not err herein. Therefore, the decision of July 24, 1970, is affirmed.

10562089

Willie Lee GRAY, Jr., Appellant, v. STATE of Alaska, Appellee

Gray v. State

1971-07-26

No. 1354

680

681

487 P.2d 680

487

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:16.911957+00:00

CAP

Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, JJ-

Willie Lee GRAY, Jr., Appellant, v. STATE of Alaska, Appellee.

Willie Lee GRAY, Jr., Appellant, v. STATE of Alaska, Appellee. No. 1354. Supreme Court of Alaska. July 26, 1971. Victor D. Carlson, Public Defender, Michael L. Rubinstein, Asst. Public Defender, Anchorage, for appellant. John E. Havelock, Atty. Gen., Juneau, Harold W. Tobey, Dist. Atty., Robert L. Eastaugh, Asst. Dist. Atty., Anchorage, for appellee. Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, JJ-

404

2390

OPINION PER CURIAM. Appellant was found guilty of first degree murder and he was sentenced for a period of life imprisonment. He now appeals the sentence imposed. Appellant was convicted at an initial trial on one count of first degree murder and one count of second degree murder for the killing of a police officer in the commission of an armed robbery. These convictions were overturned by this court in Gray v. State, 463 P.2d 897 (Alaska 1970), and a new trial was ordered solely as to appellant herein. Upon retrial, appellant was again found guilty of first'degree murder of Benjamin F. Strong, an Anchorage police officer who was on stake-out duty at a Brown Jug Liquor Store in Anchorage, Alaska. Appellant and his brother, Dewey Gray, who was armed, entered the store where they tied up the clerk and placed her in the back room. During the course of events, Officer Strong attempted to apprehend both parties. In the struggle that ensued Willie Gray was wounded in the leg and Officer Strong was shot and killed by Dewey Gray. Dewey Gray was previously sentenced to life imprisonment upon his conviction, and at the conclusion of the second trial appellant was similarly sentenced to life imprisonment, after asserting that a sentence of ten to fifteen years with five years suspended would be an appropriate punishment herein. In light of the facts presented, we find that the trial court was within the zone of reasonableness in imposing the sentence it did under State v. Chaney, 477 P.2d 441 (Alaska 1970), and State v. Armantrout, 483 P.2d 696 (Alaska 1971), for appellant's participation in the most serious crime proscribed by our law. We find that the trial court was peculiarly in a position to judge the necessity for this punishment in view of the two trials in which he participated and in view of all of the testimony which he had heard during the course of events which led up to the verdict of the jury herein. The sentence is hereby affirmed.

10556749

In re John DOE, Appellant, v. STATE of Alaska, Appellee

Doe v. State

1971-07-09

No. 1240

47

59

487 P.2d 47

487

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:16.911957+00:00

CAP

Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, JJ-

In re John DOE, Appellant, v. STATE of Alaska, Appellee.

In re John DOE, Appellant, v. STATE of Alaska, Appellee. No. 1240. Supreme Court of Alaska. July 9, 1971. Victor D. Carlson, Public Defender, R. Collin Middleton, Asst. Public Defender, Anchorage, Irwin Ravin, Supervising Atty., Alaska Legal Services, Ketchikan, for appellant. G. Kent Edwards, Atty. Gen., Juneau, Robert J. Mahoney, Asst. Atty. Gen., Anchorage, for appellee. Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, JJ-

6695

40039

OPINION CONNOR, Justice. On January 8, 1970, a petition was filed in the superior court asking that John Doe be declared a delinquent child. The petition, signed by a probation-parole officer,' charged John Doe, then a child of sixteen, with having sold, on December 23, 1969, one-half a tablet of lysergic acid diethyla-mide (LSD) to one Fred Lee Williams for three dollars. This act was alleged in the petition to be in violation of AS 17.12.010. A summons was issued on January 8, 1970, directing John Doe to appear before the juvenile judge the following day at 2:30 p. mu, to "assist the Court in rendering a final determination in the above-entitled action." John Doe appeared with his parents at the 2:30 p. m. hearing on January 9, 1970. Mr. Irwin Ravin was appointed as counsel for John Doe at that time. The child denied the petition, and the superior court prepared to commence immediately with the adjudication of the merits of the petition. John Doe's counsel indicated that he was not ready and asked for a continuance so that he could prepare the defense. January 9, 1970, was a Friday. The court continued the hearing until the following Monday morning. With the hearing on the merits now set for Monday, the court inquired of the district attorney whether he wished to be heard on the subject of John Doe's detention over the weekend. The district attorney stated: "This defendant has threatened one of our witnesses and our witnesses have been subject of threats generally and there are threats out in the community and threats against life and I — I would ask for that reason that he be detained." John Doe's attorney denied knowledge of any threats and objected to the district attorney's hearsay statement. He further stated that John Doe had never previously been before the children's court; that there had been no showing under the rules that the child should be detained; that detention would hamper the preparation of the defense; and that the state had had knowledge of John Doe's alleged conduct since December 23, 1969, but had not asked until January 9, 1970, that the boy be placed in custody. The court ordered that "this defendant be committed to the detention home over this weekend so that he'll be present at 9:00 or shortly thereafter for the hearing in this case." A commitment order was issued. On the morning of January 12, 1970, John Doe's adjudication hearing commenced. Another delinquency adjudication hearing had been set for that morning, in the matter of Richard Moe. Richard Moe was also charged with having sold drugs to Fred Lee Williams, although his offense is factually unrelated to John Doe's. Moe, too, was summoned January 8, 1970, to appear January 9, 1970, and Mr. Ravin was appointed January 9, 1970, to represent him also. The two adjudication hearings were interspersed and were conducted over several days between January 12, 1970, and January 17, 1970. At the outset, the state wished to call its chemical expert out of order. Because the witness was from San Francisco and had performed tests on the substances in both children's cases, the state wished to have his testimony presented for both cases that morning. Mr. Ravin objected, stating: "MR. RAVIN: I object to that, your Honor. I asked for a continuance and I got the weekend, and I don't think that's fair to the defendants. After all, these boys were served with a summons on Thursday night, and they're forced to go to trial on Monday morning. [The] state has had since early December to prepare its case. The petition in one case says that the offense took place on December 10, the petition in the other case says it took place on December 23rd. They've had all that time to prepare their case. I've had no time. I think its just another instance of the unfairness, where the state has everything their way and the defendants have everything against them. I think its a denial of due process, up to this point already." The superior court allowed the witness to be called out of order. This witness, John Kirk, was employed as a forensic chemist at the Bureau of Narcotics and Dangerous Drugs in San Francisco. He testified in the John Doe matter that he received a substance in the mail and performed chemical tests upon it. He testified that in his opinion the material was lysergic acid diethyla-mide. On cross-examination he testified that he did not test the material to determine whether the sample was levorota-tory LSD, one of the optical isomers of ly-sergic acid diethylamide. Fred Lee Williams, a police informer, testified that on December 23, 1969, John Doe approached him and asked if he would like to buy half a tablet of LSD for $3.00. Williams said he would, but had to get the money. Williams then went to the police department, obtained $3.00, and went with a witness to an appointed place where the sale took place. The witness, a high school classmate of John Doe, testified that he went with Williams to meet John Doe. He saw Williams give John Doe money and John Doe give Williams a piece of tinfoil. Williams testified on cross-examination that he had, before the alleged sale, approached John Doe many times, asking him if he had any drugs or could obtain some for him. Officer Burnham testified that on December 23, 1969, Williams told him he had a chance to purchase some "Sunshine" (LSD). Burnham testified further than on December 23, 1969, Williams brought him half a tablet of what was believed to be LSD. He also testified that after preliminary tests were performed on the material at the Ketchikan police station, he mailed the material to the Bureau of Narcotics and Dangerous Drugs ,in San Francisco. Counsel for John Doe called two witnesses. One, the boy's girlfriend, testified that on one occasion prior to December 23, 1969, Fred Lee Williams had approached her and John Doe on the street. Williams took John Doe aside so she could not hear what Williams said to him, but she did hear John Doe state to Williams, "Quit bugging me." The other witness for John Doe was a high school student who testified that Williams had a reputation in the community for being a liar. Following argument by both counsel, the superior court found that the allegations in the petition were true and adjudged'the boy a delinquent. A dispositive hearing was conducted three hours later, and John Doe was ordered to be committed to the custody of the Division of Corrections, Department of Health and Welfare, until his eighteenth birthday, and to be placed in either the McLaughlin home or the Wasilla Youth Camp until his seventeenth birthday, at which time probation might be considered. This appeal followed. 1. Right to Release Pending the Adjudication Hearing. Appellant John Doe asks this court to hold that children have a constitutional right to bail under the Alaska Constitution, or in the alternative, that the Alaska Rules of Children's Procedure contravene the bail provision of the Alaska Constitution to the extent that they allow detention of children for reasons other than availability for trial. Children's Rule 7(b) provides: "No juvenile shall be detained nor may any detention be continued prior to a first hearing of the case unless the court finds at a detention inquiry, which must be held not more than 48 hours after the juvenile has been taken into custody, not excluding weekends and holidays, that: (1) Detention is necessary to protect the juvenile from others; or (2) The juvenile will not be available for subsequent court proceedings; or (3) The juvenile will cause harm to himself or to others if he is not detained." While the United States Supreme Court has not held that children must be afforded due process rights in the preadjudication stages of the juvenile process, we believe that due process safeguards are necessary not only at the adjudicative hearing, but at any stage which may result in deprivation of the child's liberty. Under the Alaska Constitution, all persons accused of a criminal offense are entitled to be released on bail except for capital offenses where the proof is evident or the presumption great. In Reeves v. State, 411 P.2d 212, 215 (Alaska 1966), we stated: "The purpose of bail in the administration of criminal justice is to insure the defendant's appearance at trial." We held in that case that while an adult criminal defendant has a constitutional right to be released on bail (except in certain capital cases), he does not have an absolute right to be released on his own recognizance, without bail, if he is financially unable to post the bond. We cited with approval and emphasis, however, the following language from Bandy v. United States, 81 S.Ct. 197, 198, 5 L.Ed.2d 218, 219-220 (1960): " the right to release is heavily favored and the requirement of security for the bond may, in a proper case, be dispensed with. For there may be other deterrents to jumping bail: long residence in a locality, the ties of friends and family, the efficiency of modern police. All these in a given case may offer a deterrent at least equal to that of the threat of forfeiture." Therefore, in adult criminal prosecutions, the central consideration with respect to pretrial release is whether the defendant will appear for trial. This is true for setting the amount of bail and for ruling on applications to. be released on one's own recognizance. ' Society's interest in pretrial freedom for persons accused of crimes is strong. Under both the United States and Alaska Constitutions, excessive bail may not be imposed. Excessive bail has been held to be that which goes beyond the amount reasonably necessary to assure the defendant's presence at trial. Stack v. Boyle, 342 U.S. 1, 5, 72 S.Ct. 1, 96 L.Ed. 3 (1951). The presumption of innocence, central to our system of criminal justice, also dictates in favor of pretrial release. As the United States Supreme Court stated in Stack v. Boyle, supra: "Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning." 342 U.S., at 4, 72 S.Ct. at 3. Certain problems peculiar to children are encountered in children's proceedings, however, which make a blanket application of the right to pre-adjudication release upon adequate assurance of future court appearance unworkable and undesirable from the child's viewpoint. In some cases, a parent whose child has become involved in delinquency proceedings may be unwilling to take the child back into the home pending an adjudication hearing. In other cases, a child may not wish to return to his home, or facts adduced at a detention inquiry may show that he should not return home, because the child fears he will be in danger of abuse at the hands of his parents. But the existence of these problems does not mean that the right to remain free pending an adjudication proceeding should be denied to children. Other courts have found that the children's rules can be construed and applied so that children are provided with an adequate substitute for bail. In the case of RLR v. State, Op. No. 706, 487 P.2d 27 (Alaska, 1971), we held that the fundamental constitutional right of public trial by jury must be afforded children in delinquency adjudication proceedings, in spite of the possible interference with the benevolent motives of the children's court system which have, in the past, justified denial of those rights. We believe, however, because of the peculiarities of children's proceedings, that the present adult bail system would be practically unsuitable as a device for securing the child's future appearance before the court, and would not necessarily result in the child's release. Because contracts entered into by minors have been held to be voidable, a bail bondsman surely would be unwilling to deal directly with a child in providing a bail bond. Unless the child's parents are willing and financially able to secure the bond, the child's right to bail will not result in release. Where the child's parents are not able to assure the bail bondsman of their financial security, the often criticized injustices of the adult bail system as applied to indigents would be visited upon the child. Thus we are faced with conflicting interests. A child who is charged under the children's rules with an act which would be a crime, if committed by an adult, should have no less right to pre-adjudication freedom than an adult criminal defendant has pending trial. On the other hand, a child is in need of some care and supervision. If his parents are not willing to care for the child or if harm will come to the child in his present home situation, the children's court should not allow the child to return or remain at home; yet the child cannot be released entirely on his own responsibility. While these are serious conflicts, we believe they can be reconciled. We hold that a child has the right to remain free pending an adjudication that the child is delinquent, dependent, or in need of supervision, where the facts supporting the petition involve an act which, if committed by an adult, would be a crime, and where the court has been given reasonable assurance that the child will appear at future court proceedings. If the facts produced at the inquiry show that the child cannot return or remain at home, every effort must be made to place the child in a situation where his freedom will not be curtailed. Only if there is clearly no alternative available may the child be committed to a detention facility and deprived of his freedom. In the case at bar, the superior court apparently based its detention order on the statement made by the district attorney that John Doe had threatened prosecution witnesses. Initially it should be noted that due process standards must be observed at a detention inquiry since it may result in the deprivation of the child's liberty. Due process requires at the very least that detention orders be based on competent, sworn testimony, that the child have the right to be represented by counsel at the detention inquiry, and that the detention order state with particularity the facts supporting it. We hold, therefore, that the superior court's detention order in this case was invalid on several grounds: first, because it was based on an unsworn, hearsay statement; second, because it was based upon the court's belief, unsupported by any evidence, that the child would engage in unlawful activity if not detained; and third, because the order did not contain any statement of the facts on which the order was based. The state argues that because review of the detention order was not sought immediately upon its issuance, appellant cannot raise the issue now on appeal. Although the cases cited by the state in its brief in support of this argument do not mention the mootness doctrine as such, we believe that this is the rationale of these decisions which hold that an order denying bail or setting excessive bail must be appealed from immediately. Once the trial is completed, the pretrial detention necessarily ends, and a decision on the question of pretrial bail can have no effect on an appealing defendant. Ordinarily we will refrain from deciding questions where the facts have rendered the legal issues moot. But where the matter is one of grave public concern and is recurrent but is capable of evading review, we have undertaken review even though the question may be technically moot. There is little question that pre-adjudication detention of children is a matter of public concern, and that it is likely to recur. Further, a decision not to seek immediate review of a detention order in a children's proceeding may not be a purely tactical one, but may involve serious considerations of the child's welfare. Therefore, we find this to be an appropriate case in which to apply the exception to the mootness doctrine. 2. The Right to Grand Jury Indictment. Appellant contends that the superior court lacked jurisdiction to make a determination of delinquency in his case because he was not charged by grand jury indictment. He bases his claim on Article 1, Sec. 8, of the Alaska Constitution. In Re Gault, supra, held that states must afford juveniles due process of law in delinquency proceedings that might result in the child's incarceration, and accordingly held that juveniles must be afforded the right to be represented by counsel, must be given proper and timely notice, must be given the right of confrontation and cross-examination of witnesses, and afforded the privilege against self-incrimination. This court in R. L. R. v. State, supra, held that due process requires that children have the right to a public trial by jury where they are charged with acts which would be a crime if committed by an adult. The question, then, is whether due process also requires that the right to grand jury indictment be extended to children's proceedings. The United States Supreme Court has, since 1884, maintained that the right to a grand jury indictment guaranteed by the Fifth Amendment to the United States Constitution is not applicable to the states through the Due Process Clause of the Fourteenth Amendment. In Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed.2d 232 (1884), the Supreme Court held that a California murder conviction was not violative of due process because the defendant had been charged by information rather than by grand jury indictment. Since that decision, state criminal proceedings initiated by information rather than by indictment have been upheld as consistent with due process both by the United States Supreme Court and Circuit Courts of Appeal. The purpose served by grand jury indictment is to give one accused of a serious offense the benefit of having private citizens judge whether there is probable cause to hold the accused for trial. Theoretically this acts as a check upon the district attorney's power to initiate criminal prosecutions, and insures "the protection of the innocent against oppression and unjust prosecution." State v. Shelton, 368 P.2d 817, 819 (Alaska 1962). While we do not retreat from that statement of the grand jury's function, we do not believe that the right to grand jury indictment is so fundamental that due process is offended by alternate methods for instituting children's proceedings where the child is charged with having violated a criminal statute. As the United States Supreme Court stated in Gault, the extension to children of fundamental constitutional rights does not mean a total substitution of the adult criminal model for the present children's court system. The court stated further in this regard: "The problems of pre-adjudication treatment of juveniles are unique to the juvenile process; hence what we hold in this opinion with regard to the procedural requirements at the adjudicatory stage has no necessary applicability to other steps of the juvenile process." 387 U.S., at 31, n. 48, 87 S.Ct., at 1445. Under the Alaska Rules of Children's Procedure, a preliminary investigation must be conducted by an intake officer attached to the court. The purpose of this examination is to determine whether the facts warrant further action and if so, whether the matter should be handled formally or informally. Unlike a grand jury, which has only the alternatives of returning an indictment or not indicting, the intake officer, after talking with the child and his parents may take several courses of action. He may determine that the facts warrant no further action at all, or that the matter is so serious that formal proceedings are indicated. In addition, he may feel the matter should not be completely dropped, but that action short of a formal petition and adjudication is indicated for the child. Children's Rule 4(d) provides: "If the intake officer, after investigation, believes that in the best interest of the child the matter should be handled on an informal basis, he may thereafter refrain from filing a petition and shall thereafter on behalf of the court, counsel with the child and parents, guardian or custodian, and with their consent and cooperation establish such informal supervision or disposition of the child matter as the circumstances may require." It should be noted that Children's Rule 8(a) provides: "Where matters are informally adjusted or disposed of, such disposition precludes any detention, placement, or physical restraint of the juvenile excepting reasonable and sensitive parental supervision and discipline pursuant to the terms of such informal adjustment or disposition." Thus, there is no possibility that the child may be deprived of his liberty as a result of an informal disposition. We believe that this preliminary investigation, should the child and his parents agree to participate, has advantages for the child which the grand jury could not duplicate, in that it enables the child and his parents to focus upon their respective and mutual problems, hopefully with professional guidance. The grand jury proceedings, in contrast, are largely secret. The child does not have the right to participate, nor has he the right to have counsel present. In light of the clear advantages to the child which the Rule 4 procedures have over a grand jury proceeding, and since the right to grand jury indictment does not involve fundamental due process, we hold that children, who are charged with acts which would be chargeable only by grand jury indictment if committed by an adult, need not be indicted by a grand jury. We should add that in this case the record does not indicate that a preliminary investigation was conducted by the probation office or that the child and his parents were notified that they had a right to participate in that investigation. Further, there is no indication in the record that informal proceedings were even considered. Our statement here that the Rule 4 procedures offer a more than adequate substitute for grand jury indictment indicates how important it is that these procedures be followed in every case. 3. Adequacy and Timeliness of the Notice. Appellant argues that the manner of service of the summons was defective in that appellant was not personally served. In R. L. R. v. State, supra, we held that personal service upon the child was required. While it appears from the return of service in this case that the petition and summons were not served personally upon appellant, no objection was made by John Doe's counsel to the jurisdiction of the court. Therefore, we hold that the defect was waived for the reasons stated in RLR v. State, Op. No. 706, 487 P.2d 27 at 41 (Alaska, 1971). A more serious problem exists with respect to the timeliness of the notice. The alleged act occurred on December 23, 1969. A petition was not filed until January 8, 1970. The summons, also issued January 8, 1970, ordered appellant to appear the following day to "assist the Court in rendering a final determination in the above-entitled action." (Emphasis supplied.) The summons stated that appellant had the right to be represented by an attorney, but did not mention that he also had the right to have counsel appointed under the circumstances outlined in Children's Rule 15(a). The hearing commenced on January 9, 1970, and the court appointed Mr. Irwin Ravin of Alaska Legal Services Corporation as counsel for the boy. Immediately following the appointment of counsel, the court proceeded to hear the adjudication of the merits of the petition. Mr. Ravin asked for a continuance so he could prepare the defense. The court continued the hearing until the following Monday morning, January 12, 1970, without inquiring of appellant's counsel as to whether this was sufficient time. The record indicates that Mr. Ravin had been appointed that same afternoon to represent Richard Moe. Moe, like appellant, had been summoned January 8, 1970, to appear January 9, 1970, and his hearing had been continued until Monday, January 12, 1970. Richard Moe's case also involved a sale of drugs. Thus, the court was aware that appellant's counsel had two weekend days in which to prepare the defenses for two serious and apparently factually unrelated cases. Objection was made to the shortness of the continuance on behalf of both children at the Monday morning hearing on Richard Moe's petition. While an adult defendant in a criminal case must be brought to trial within a reasonable time, due process requires that he may not be brought to trial too soon. He must be given a reasonable time to consult with his counsel and to prepare his defense. We stated in Klockenbrink v. State, 472 P.2d 958, 965 (Alaska 1970): "It is unquestionable that the right to the assistance of counsel of necessity includes the concommitant right to have a reasonable time in which to prepare for trial." (citation omitted). Gault held that a juvenile must be afforded the right to be represented by counsel at the delinquency proceeding, and that a denial of that right violated due process. Gault also stated: "Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded 387 U.S., at 33, 87 S.Ct., at 1446. We believe that one day's notice is insufficient to afford a reasonable time to prepare. The next question is whether the two-day continuance cured the constitutional defect of the notice in this case. The reasonableness of a continuance depends on the facts, since the granting of continuances is within the discretion of the court. Two weekend days only were afforded appellant's counsel to prepare the defenses of two children on serious charges. Appellant and the other child were first given notice of these charges January 8, 1970. Further, appellant was in custody over that weekend. Although in the case at bar, unlike the case of Klockenbrink v. State, supra, no particular instance of prejudice was shown to have resulted from the shortness of time between charge and trial, we believe the added circumstance in this case that appellant's counsel had the other case to prepare, distinguishes this case sufficiently from Klockenbrink that we may presume that appellant's case was prejudiced. We hold, therefore, that the superior court abused its discretion in granting so short a continuance and that this abuse requires a reversal of the adjudication order. 4. Right of Cross-Examination. Appellant contends that he was denied his right of cross-examination in that the superior court unduly limited the cross-examination of the police informer, Fred Lee Williams, as to his bias and reliability. In this case, as in the case of R.L.R. v. State, supra, the police informer was a crucial prosecution witness. John Doe's counsel first attempted to cross-examine Williams about the commencement of his relationship with the police, and asked Williams about the first conversation he had with the police regarding commencement of undercover activities. This portion of the cross-examination was as follows: "Q. [by Mr. Ravin] Now what did— what did you say about narcotics? A. I can't remember everything I said. Q. Do you remember anything of what was said? A. That I (pause) I'd help get information — information about narcotics, users —and users. Q. Freddy, didn't you talk about more than just giving information? MR. HAWLEY: Your Honor, I — if I may interpose, I think in the interests of getting to the truth of the matter, I think it would be helpful if counsel would interrogate the witness re — regarding the specific thing he's interested in. I'm sure Mr. Williams doesn't remember this particular incident and this particular conversation because he talked with Officer Burnham so many times. THE COURT: Objection sustained. MR. RAVIN: Your Honor, I wasn't there and the only way we can ever find out what was said was from Freddy. THE COURT: Was any more said to the best of your memory? A. To the best of my memory that's all I can remember." Later in the cross-examination, Williams apparently remembered more of that first conversation and counsel for the child tried to reopen the line of questioning as to the content of that conversation, but the court sustained an objection that his question had been asked and answered. "MR. RAVIN: Now, Your Honor, he said Officer Burnham talked to him about making a buy. He never — never answered any questions about what he said. THE COURT: Oh, he's covered it." Williams testified that there was at the time of the hearing a misdemeanor charge pending against him, arising out of a theft from a liquor store. He testified that the charge was lowered from burglary not in a dwelling to petty larceny on November 26, 1969. There was a conflict in his testimony as to whether he spoke to Officer Burnham about being an undercover agent for the police before or after the charges were dropped. John Doe's counsel tried to question Williams about why the charges were lowered, but was not allowed to continue. The court stated, "I think it calls for speculation." Counsel was, however, permitted to ask Williams whether there was any relation between his working for the police and the fact that the charges were lowered to a misdemeanor. Williams answered, "No." Williams also testified that three to four weeks before the date of the hearing he had taken LSD. That would have been fairly close to the date of the alleged sale of LSD by John Doe. Mr. Ravin asked Williams several questions about the effect the LSD had on his senses. Williams stated it affected his hearing and suggested it distorted his sense of time. He stated, "[I]t seemed like it was always late — after it got dark." Mr. Ravin then attempted to continue examining Williams as to the effects of the drug, but the district attorney objected on the ground that the matter had been covered. The objection was sustained. The right of liberal cross-examination of a witness as to his bias is well established. Appellant's counsel should have been permitted greater latti-tude in questioning Williams as to his possible motives for testifying. It was an abuse of discretion to restrict the cross-examination to the extent done so in this case. Cross-examination is permissible to show that the witness was under the influence of a drug at the time of the events to which he is testifying at trial. Williams here testified that he had taken LSD "three or four weeks" prior to the January 14 hearing at which he was testifying. He also testified to certain sensory distortions which occurred while he was under the influence of the drug. Counsel should have been permitted to question him further as to the effects of the drug and whether this powerful drug was affecting him on December 23, 1969. To limit cross-examination on this matter was reversible error. 5. Other Issues. John Doe has raised several other issues on appeal. First, he argues that because the chemical expert did not determine whether the sample he tested was levorotatory LSD there could be no finding that the sample was hallucinogenic. He argues further that AS 17.12.010 requires a finding that the material is an hallucinogen. Since the case must be reversed on other grounds, we decline to reach this issue. Appellant also argues that we should apply to his case the holding of In Re Win-ship, which requires that a finding of delinquency be made only upon proof beyond a reasonable doubt. As to this issue, Children's Rule 21(a) has been amended to provide for a reasonable doubt standard of proof in a children's case wherein the child is charged with an act which may result in incarceration. In light of this rule change, and since we are reversing on other grounds, we need not decide whether the reasonable doubt standard was applied in this case. Finally, appellant argues he was denied bail pending appeal. This issue has been rendered moot by an order dated September 28, 1970, by which we released John Doe from custody of the detention home to the temporary custody of his parents, pending the final determination of this appeal. Similarly, the issue raised as to the severity of the dispositive order has been rendered moot by our reversal of the adjudication of delinquency. Reversed and remanded. . AS 17.12.010 provides: "Except as otherwise provided in this chapter, it is unlawful for a person to manufacture, compound, counterfeit, possess, have under his control, sell, prescribe, administer, dispense, give, barter, supply or distribute in any manner, a depressant, hallucinogenic or stimulant drug." AS 17.12.150 (3) states : "depressant, hallucinogenic or stimulant drug" means: (A) cannabis, psilocybin, dimethyltrypta-mine, lysergic acid diethylamide, and every other substance having similar physiological effects." . The order itself stated that the grounds for detention were that the boy would harm himself or harm others. . The appeal in the matter of Richard Moe, No. 1239, was consolidated with this appeal by order of the Supreme Court dated January 27, 1970. On May 15, 1970, Richard Moe's appeal was dismissed and the boy released. . Alas.Const. art. I, § 11, states in part: "Section 11. Rights of Accused. In all criminal prosecutions, the accused is entitled to be released on bail, except for capital offenses when the proof is evident or the presumption great . In Re Gault, 387 U.S. 1, 30, n. 48, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). . Alas.Const. art. I, § 11, set out in part in n. 4, supra. . U.S.Const., amend. VIII; Alas.Const. art. I, § 12. . Fulwood v. Stone, 129 U.S.App.D.C. 314, 394 F.2d 939 (1967) ; Baldwin v. Lewis, 300 F.Supp. 1220 (E.D.Wis.1969) ; In Re William M., 3 Cal.3d 16, 89 Cal.Rptr. 33, 473 P.2d 737 (1970). . This court has never ruled on the question of the capacity of minors to contract, and we do not decide that question here. It should be noted, however, that a number of jurisdictions have held that some minors' contracts are voidable. Lakey v. Caldwell, 72 Idaho 52, 237 P.2d 610 (1951); Doenges-Long Motors, Inc. v. Gillen, 138 Colo. 31, 328 P.2d 1077 (1958) ; General Machinery & Supply Co. v. National Acceptance Co., 472 P.2d 735 (Colo.App.1970). . For commentary critical of the adult bail system, see Foote, Compelling Appearance in Court: Administration of Bail in Philadelphia, 102 U.Pa.L.Rev. 1031 (1954) ; Paulsen, Pretrial Release in the United States, 66 Colum.L.Rev. 109 (1966) ; Comment, A Study of the Administration of Bail in New York City, 106 U.Pa.L.Rev. 693 (1958) ; Comment, Bail: An Ancient Practice Reexamined, 70 Yale L.J. 966 (1961) ; Comment, Tinkering with the California Bail System, 56 Calif.L.Rev. 1134 (1968). . Although the superior court at the hearing indicated that he was detaining John Doe "so that he'll be present for the hearing ⅜ * the order itself stated that the child should be detained "for his/her own safety and the safety of others. " . Children's Rule 13 states in part: "All testimony in the juvenile court shall be given under oath or affirmation subject to the following exceptions: (1) In its discretion the court may permit the introduction of a verified statement concerning the existence of a juvenile matter, the jurisdiction of the court to entertain the matter, or the temporary detention or release therefrom of a juvenile." . In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) ; Baldwin v. Lewis, 300 F.Supp. 1220 (E.D.Wis.1969). . In Re G.M.B., 483 P.2d 1006 (Alaska, April 8, 1971) ; Baldwin v. Lewis, 300 F.Supp. 1220 (E.D.Wis.1969). . Stack v. Boyle, 342 U.S. 1, 6, 72 S.Ct. 1, 96 L.Ed. 3 (1951) ; Hemphill v. United States, 392 F.2d 45, 46-47 (8th Cir. 1968) ; United States v. Radford, 361 F. 2d 777, 781 (4th Cir. 1966), cert. denied, 385 U.S. 877, 87 S.Ct. 158, 17 L.Ed.2d 105 (1966) ; United States v. Frascone, 299 F.2d 824, 829 (2d Cir. 1962). . RLR v. State, Op. No. 706, 487 P.2d 27 (Alaska, 1971); In re G.M.B., 483 P. 2d 1006 (Alaska, 1971) ; In Re William M., 3 Cal.3d 16, 89 Cal.Rptr. 33, 473 P. 2d 737 (1970). . Alas.Const. art. I, § 8, states in part: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the armed forces in time of war or public danger." . 887 U.S., at 41, 87 S.Ct. 1428. . Kennedy v. Walker, 337 U.S. 901, 69 S.Ct. 1046, 93 L.Ed. 1715, rehearing denied, 337 U.S. 934, 69 S.Ct. 1493, 93 L.Ed. 1741 (1949) ; Beck v. Washington, 369 U.S. 541, 545, 579, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962) ; Martin v. Beto, 397 F.2d 741, 746 (5th Cir. 1968) ; Morford v. Hocker, 394 F.2d 169 (9th Cir. 1968). . 387 U.S. 1, at 30, 87 S.Ct. 1428, quoting Kent v. United States, 383 U.S. 541, 562, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). See also, In Re Dennis M., 75 Cal.Rptr. 1, 450 P.2d 296, 299 (1969). . Rules of Children's Procedure, Rule 4. . Children's Rule 4(b) provides: "Intake Interview. For the purpose of such investigation, the intake officer shall arrange to interview the child, his parents, guardian, or custodian and any other persons having information as to the facts. Notice to attend the interview shall be given to such parties by letter or telephone and they shall be further informed that their attendance is voluntary." .Children's Rule 15(a) provides: "The court shall appoint couilsel to represent the juvenile, his parents, guardian, or custodian, when the assistance of counsel is desired, as follows: (1) For the juvenile when he and his parents, guardian, or custodian are financially unable to employ counsel to assist him. (2) For the juvenile when his parents, guardian, or custodian are financially able but refuse to employ counsel to assist him and it appears to the court that the interests of justice require such appointment. (3) For his parents, guardian, or custodian when they are financially unable to employ counsel to represent themselves and the issues are complex or have serious consequences. (4)For the juvenile, his parents, guardian, or custodian in any situation where, in the opinion of the court, the interests of justice and the nature of the case warrant providing the assistance of counsel at the taxpayer's expense." . Glasgow v. State, 469 P.2d 682 (Alaska 1970). . Bee also, Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 84 L.Ed. 377 (1940) ; Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932) ; People v. Maddox, 67 Cal.2d 647, 433 P.2d 163 (1967) ; Jennings v. Superior Court, 66 Cal.2d 867, 428 P.2d 304, 310 (1967) ; Lorenz v. People, 159 Colo. 494, 412 P.2d 895 (1966). . 387 U.S., at 41, 87 S.Ct. 1428. . Spight v. State, 450 P.2d 157 (Alaska 1969) ; State v. George, 100 Ariz. 350, 414 P.2d 730 (1966) ; Jennings v. Superior Court, 66 Cal.2d 867, 59 Cal.Rptr. 440, 428 P.2d 304 (1967) ; State v. Poison, 92 Idaho 615, 448 P.2d 229 (1968). . 3A J. Wigmore, Evidence, § 943 (Chadbourn rev. 1970) ; Alford v. United States, 282 U.S. 687, 51 S.Ct. 77, 75 L.Ed. 736 (1931) ; RLR v. State, Op. No. 706, 487 P.2d 27 at 44 (Alaska, 1971). . People v. Webster, 139 N.Y. 73, 34 N.E. 730 (1893) (witness allegedly under influence of opium at time she observed killing) ; Commonwealth v. Morrison, 157 Pa.Super. 366, 43 A.2d 400 (1945) (cross-examination as to whether prosecution witness was "smoking dope cigarettes and drinking stale cider" on evening of alleged crime held proper) ; see also State v. Smith, 103 Wash. 267, 174 P. 9 (1918) ; Annot. 52 A.L.R.2d 848 (1957). . 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed. 2d 368 (1970).

10559392

Albert E. SCHAFER and Willian N. Schafer, Appellants, v. John J. SCHNABEL and Schnabel Lumber Company, Appellees

Schafer v. Schnabel

1972-03-17

No. 1385

802

807

494 P.2d 802

494

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:29.676845+00:00

CAP

Before BONEY, C. J., and RABINO-WITZ, CONNOR and ERWIN, JJ.

Albert E. SCHAFER and Willian N. Schafer, Appellants, v. John J. SCHNABEL and Schnabel Lumber Company, Appellees.

Albert E. SCHAFER and Willian N. Schafer, Appellants, v. John J. SCHNABEL and Schnabel Lumber Company, Appellees. No. 1385. Supreme Court of Alaska. March 17, 1972. Warren C. Christianson, Sitka, for appellants. Michael M. Holmes, of Faulkner, Ban-field, Boochever & Doogan, Juneau, for appellees. Before BONEY, C. J., and RABINO-WITZ, CONNOR and ERWIN, JJ.

3159

18578

OPINION RABINOWITZ, Justice. This appeal arises out of an action for trespass and conversion brought by the Schafers against Schnabel. In their complaint the Schafers alleged that Schnabel had trespassed on their lands and converted raw materials therefrom in the course of Schnabel's relocation of a road which traversed their adjoining lands. The Schafers sought the recovery of compensatory damages for the conversion of timber, gravel and blue clay by Schnabel and for the costs of having to remove quantities of blue clay which Schnabel had taken from the Schafers' lands and then dumped on the seaward border of their lands. Punitive damages were also sought on the basis that Schnabel acted wilfully, intentionally and in utter disregard of their rights. By way of affirmative defense to these allegations Schnabel asserted that he realigned the road in order to allow the public to safely travel over it, and that this work was performed with the consent and permission of the Schafers. More particularly, Schnabel alleged that the road's relocation was carried out in reliance upon a lease agreement with the Schafers authorizing the use of their lands to relocate the road. The matter was tried to the superior court without jury. In its decision, which was filed in lieu of formal findings of fact and conclusions of law, the trial court found that the Schafers and Schnabel had not finalized any lease agreement authorizing Schnabel's entry upon and removal of materials from the Schafers' lands. The trial court further found that there was no factual basis for finding that the Schafers should be estopped from recovering damages from Schnabel, and that Schnabel had failed to prove that the Schafers had in fact consented to his entry upon and removal of materials from their lands. In awarding damages for the removal of materials from the Schafers' land, the trial court noted that the Schafers had "elected to take whatever market value may be assigned to these separable items . in substitution for damages measured by the diminution in value of the land as a whole." In this regard the trial court further found that the Schafers had failed to prove by a preponderance of the evidence that Schnabel had acted in bad faith and concluded that Schngbel was not liable for a higher measure of damages in regard to the materials taken. More specifically, the trial court found that "it appeared from the evidence equally possible that [Schnabel was] fully confident that a satisfactory agreement between the parties [permitting the use of the Schafers' land] was or would be reached and that [Schnabel] acted on the basis of this confidence." The trial court therefore concluded that the Schafers were not entitled to recover the enhanced market value of the materials converted but did award $1,350 for the in-place market value of timber removed by Schnabel and $7,000 for the in-place market value of gravel removed. The trial court further concluded that the removed blue clay had no value. Regarding the damages which the Schafers sought for the costs of removing the blue clay fill materials that Schnabel had placed to the seaward of the Schafers' lands, the court first alluded to the fact that it had earlier determined by partial summary judgment that no award should be allowed the Scha-fers for the removal of fill materials placed upon the actual tidelands lying seaward of their land. The trial court then stated that despite its earlier holding the Schafers urge that by the process of reliction, or retro-cession of the sea, substantial areas seaward of the original meander lines have in fact increased the acreage of their lands and that the offending fill materials are on this new area now lying landward of the present line of mean high tide. In rejecting these contentions, the trial court ruled in part: In my view [the Schafers] have failed to show by a fair preponderance of the evidence that any material movement of the line of mean high tide seaward in front of these two tracts has in fact occurred, or at least not by any other reason than from acts of man from which [the Schafers] can derive no rights of ownership. I therefore conclude that [the Schafers] are not entitled to any damages for removal of the fill materials placed by [Schnabel] seaward of the meander lines of the two tracts as shown in their original surveys. In this appeal the Schafers contend that the trial court erred in failing to find the necessary factual predicate for an award of punitive damages, in failing to find bad faith on Schnabel's part in regard to his removal of gravel, timber, and blue clay, in finding that the blue clay was valueless and in finding that the line of mean high tide had not moved seaward, at least not by any other means than from the acts of man. Disposition of most of the issues raised in this appeal is governed by our well-established "clearly erroneous" standard of appellate review. Under this criterion we cannot say that study of the record in this case has left us with a definite and firm conviction that the trial court was mistaken in any of its essential findings of fact relating to the issues of punitive damages and the amount of damages recoverable for Schnabel's removal of gravel and blue clay. Turning to the Schafers' assertions pertaining to the issues of bad faith and punitive damages, we note that the trial court specifically found that the Schafers had failed in their attempt to show Schnabel acted in bad faith in carrying out the relocation of the road. Rather the trial court viewed the evidence as raising the distinct possibility that Schnabel believed a satisfactory agreement would be entered into with the Schafers, which agreement would have permitted use of their lands, and that Schnabel acted on the basis of this belief. In Bridges v. Alaska Housing Authority, 375 P.2d 696, 702 (Alaska 1962), we said that punitive damages are recoverable where the wrongdoer's conduct can be characterized as outrageous, such as acts done with malice or bad motives or a reckless indifference to the interests of another, (footnote omitted) In Bridges we further adopted the position of the Restatement of Torts that whether punitive damages should be awarded is within the discretion of the trier of fact. It follows that the decision of the trier of fact not to grant, or to grant, punitive damages will be reversed on review only if a clear abuse of discretion is found. As mentioned previously, we are not persuaded that the trial court's findings of fact going to the issue of punitive damages are clearly erroneous. Thus given the trial court's finding that no bad faith on Schnabel's part was shown and that Schnabel acted under the belief that an agreement would be finalized with the Schafers permitting relocation of the road over their lands, we conclude that the trial court did not abuse its discretion in failing to award the Schafers punitive damages. Our conclusions as to the correctness of the trial court's findings relating to Schnabel's lack of bad faith under the punitive damage issue control disposition of the Schafers' specification of error concerning Schnabel's removal of gravel. As to this facet of their appeal, the Schafers argue they should have been awarded dam ages based on a higher range of proved market values because the removals were carried out in bad faith. On this point the trial court found that the Schafers had failed to make the showing that Schnabel had acted in bad faith which might have justified the higher measure of damages. Since this finding is not clearly erroneous, we affirm the trial court's award of damages for gravel. The final question presented in this appeal concerns whether the trial court erred in its finding that the acreage of Schafers' lands had not been increased by the process of accretion. This finding was held by the trial court to be determinative of the Schafers' claim for relief for the removal of blue clay materials which Schnabel placed seaward of the original line of mean high tide adjacent to the Schafers' lands. The Schafers contend that they had produced sufficient evidence to show that the mean high tide line had in fact moved seaward of the U. S. survey's original meander line. In this regard the trial court found that the Schafers had failed to show by a fair preponderance of the evidence that any material movement of the line of mean high tide seaward in front of these two tracts,has in fact occurred, or at least not by any other reason than from acts of man from which [the Schafers] can derive no rights of ownership. We have concluded that this finding of fact is not determinative of the Schafers' claim for relief for removal of the fill materials which Schnabel allegedly placed on their lands. In this finding of fact the superior court did not find that no material seaward movement of the line of mean high tide had occurred; rather the court found that no movement had occurred other than by act of man. We therefore hold that the matter must be remanded to the superior court for the purpose of entering additional findings of fact, and the holding of further proceedings if necessary, in accordance with the following. Upon remand the trial court should determine whether the Schafers proved that the mean high tide had moved seaward of the original U. S. survey's meander line by accretion, regardless of whether such accretion occurred because of acts of man. Accretion is defined as the process by which an area of land along a waterway is expanded by the gradual deposit of soil there due to the action of contiguous waters. The general rule applied to accretion is that it benefits the riparian owner. The basic justification for the rule is that it protects the riparian owner's interest in his land by assuring him continuing access to the water and the advantages consequent thereto. The burden is upon the riparian owner to show that accretion has in fact occurred. More particularly, his proof must demonstrate that a gradual depositing of alluvium by the actions of contiguous waters has taken place. It is generally held that it is immaterial whether the deposits derived from natural causes or had an artificial impetus so long as the deposits were gradual. In this regard the Supreme Court, in County of St. Clair v. Lovingston, 23 Wall. 46, 90 U.S. 46, 66, 23 L.Ed. 59, 63 (1874), rejected the notion that the accretions there in question were not within the rule merely because they were attributable to the erection by third persons of dikes upstream which changed the current and accelerated deposits. The Supreme Court said: "The proximate cause was the deposits made by the water. The law looks no further. Whether the flow of the water was natural or affected by artificial means is immaterial." This position has been adopted in most jurisdictions. Thus, if the accretion is brought about by the acts of a third person in which acts the riparian owner played no part, then the riparian owner is not precluded from acquiring title to the accreted land. There remains for discussion one additional facet of this accretion issue. Schnabel asserts that even if there were some accretion it would inure to the benefit of the state, not to the Schafers, because of the highway that separates Schaf-ers' land from the water. If the rationale of the rule is to protect a riparian owner's access to the water, the doctrine of accretion becomes inapplicable to a case in which the claimant's lot is not contiguous to the water. Thus it is of importance in the instant case, assuming that accretion has occurred, that the trial court determine whether the road was built on the Schaf-ers' properties entirely, pursuant to an easement. Additionally the court should determine whether the road was built on what was then tidelands reserved to the state, since the state's ownership of a strip of land between Schafers' properties and the water would negate any rights the Schafers might have asserted to accretions in front of their land. Affirmed in part and remanded in part for further proceedings in conformity with this opinion. . Prior to trial Schnabel moved for partial summary judgment as to that portion of the Schafers' complaint which alleged trespass to tidelands. In granting this motion the court ruled that this claim for relief should be dismissed "because there could be no trespass by [Schnabel] against the rights of the [Schafers] in this case as a matter of law because the [Schafers] neither owned nor [were] in actual possession of the tidelands at the times referred to in the Complaint . . . ." AS 38.05.365(18) defines tidelands as "those lands which are periodically covered by tidal waters between the elevation of mean high and mean low tides . . . ." . This is permissible under Civ.lt. 52. .There appear to be four rules which have been employed in measuring the damages recoverable for wrongful removal of earth, sand, or gravel. Some courts have allowed recovery only for the difference in the value of the land before and after removal or the cost of restoration; others allow recovery only for the value of the material removed; the position of the Restatement of Torts is that the plaintiff may elect either the difference in the total value of the land, before and after, or the value of the removed materials; and some jurisdictions allow recovery for both under some circumstances. See Annot., 1 A.L.R.3d 801 (1965). In the case at bar the parties agreed that the Restatement rule requiring an election should be followed. See Restatement of Torts § 929 (1939). The trial .court gave effect to the Schafers' election anti awarded damages on the basis of the value of the materials which had been removed. . A corollary to the election rule is that if the removal was done in bad faith the severed market value (i. e., not reduced by the defendant's labor and expenses) is the basis for the award instead of market value of the materials in place (the appropriate measure if the removal was innocent). See Southern Ry. v. Meaher, 238 F. 538 (5th Cir. 1917); Annot., 1 A.L.R.3d 801, 803, 810-12 (1965). . For Alaska's definition of tidelands see note 1, supra. . In conjunction with this last specification of error, the Schafers also argue that error was committed by the trial court when it held that in order to constitute an accretion which would extend the title of the uplands owner to the line of mean high tide such accretion can in no way be by reason of acts of man. . Alaska Civ.R. 52(a). . Prince v. LeVan, 4S6 P.2d 959 (Alaska 1971); Alaska Foods, Inc. v. American Mfr.'s Mut. Ins. Co., 482 P.2d 842, 846-848 (Alaska 1971); Palfy v. Rice, 473 P.2d 606 (Alaska 1970). . Restatement of Torts § 908(2) (1939). . Nissen v. Hobbs, 417 P.2d 250, 251 (Alaska 1966); Bridges v. Alaska Housing Authority, 375 P.2d 696, 702 (Alaska 1962). . Our holding makes it unnecessary to reach Schnabel's further contention that we should reject in its entirety the doctrine of punitive damages. . See note 3, supra, where the various tests for determining recoverable damages for wrongful removal of gravel are set forth. . The proved market values for the gravel ranged from 25 cents to 50 cents per yard. The trial court awarded 35 cents per yard for the gravel that had been removed. . As mentioned previously, the Schafers sought damages for the conversion of the blue clay as an alternative claim to their claim for relief based on the cost of restoration of land upon which the blue clay had been deposited by Schnabel. We perceive no error in the trial court's failure to award the Schafers damages for the blue clay taken from their lands. Review of the record supports Schnabel's position that the Schafers failed to adduce evidence as to the value, if any, of the blue clay. In Dowling Supply & Equip., Inc. v. City of Anchorage, 490 P.2d 907, 909-910 (Alaska 1971), we held in part that some competent evidence as to the amount of damages must be introduced before an award is justified. . At trial Schnabel contended that any accretion to the Schafers' properties was substantially the result of man-made fills, primarily from establishment of the highway roadbed along the original seaward meander lines of these tracts. The trial court in its decision held that "[a]ccretion by this means would give no rights in the underlying lands to [the Schafers] as upland owners." . Upon remand the trial court should also make specific findings regarding the rule of reliction and its application to the facts of this case. Reliction involves an increase in the amount of exposed land beside a body of water, but properly refers only to situations where the water itself has receded. . See 6 R. Powell, Law of Real Property ¶ 983 (rev. ed. 1971). . Some courts have also characterized the doctrine of accretion as compensating the riparian owner for the risk lie runs • of losing some of his land by erosion ; others have called it a fact of natural law; still others employ the doctrine to dispose of small unaccounted-for parcels. Waynor v. Diboff, 9 Alaska 230 (1937); 6 R. Powell, Law of Real Property ¶ 983 (rev. ed. 1971). . In County of St. Clair v. Lovingston, 23 Wall. 46, 90 U.S. 46, 68, 23 L.Ed. 59, 64 (1874), the Supreme Court of the United States explained what "gradual" meant: In the Supreme Court's view the test as to what is gradual and imperceptible under the rule is that, though the witnesses may see from time to time that progress has been made, they could not perceive how much is being added at any one moment of time. The decisions have been careful to distinguish filled lands from accreted lands. See, e. g., City of Newport Beach v. Pager, 39 Cal.App.2d 23, 102 P.2d 438, 442 (Cal.App.1940); Sage v. Mayor of City of New York, 154 N.Y. 61, 47 N.E. 1096, 1103 (N.Y.1897). . Nordale v. Waxberg, 84 F.Supp. 1004 (D.Alaska 1949), aff'd mem., 182 F.2d 1022, 12 Alaska 695 (9th Cir. 1950); State v. 6.0 Acres of Land, 101 N.H. 228, 139 A.2d 75, 77 (1958); Borough of Wildwood Crest v. Masciarella, 51 N.J. 352, 240 A.2d 665, 668-669 (1968). . Earle v. McCarty, 70 So.2d 314 (Fla.1954). . Harrison County v. Guice, 244 Miss. 95, 140 So.2d 838 (1962).

10559345

Horace Melvin BOWIE, Appellant, v. STATE of Alaska, Appellee

Bowie v. State

1972-03-13

No. 1422

800

802

494 P.2d 800

494

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:29.676845+00:00

CAP

Before BONEY, C. J., and RABINO-WITZ, CONNOR and ERWIN, JJ.

Horace Melvin BOWIE, Appellant, v. STATE of Alaska, Appellee.

Horace Melvin BOWIE, Appellant, v. STATE of Alaska, Appellee. No. 1422. Supreme Court of Alaska. March 13, 1972. Herbert D. Soil, Public Defender, Meredith A. Wagstaff, Asst. Public Defender, Anchorage, for appellant. John E. Havelock, Atty. Gen., Juneau, Seaborn J. Buckalew, Jr., Dist. Atty., Charles M. Merriner, Asst. Dist. Atty., Anchorage, for appellee. Before BONEY, C. J., and RABINO-WITZ, CONNOR and ERWIN, JJ.

1136

7003

OPINION ERWIN, Justice. On December 24, 1969, three young men, George Ronald Robinson, Benjamin Smith, and appellant, Melvin Bowie, entered the Hilltop Cut Rate Store on Government Hill in Anchorage; the store was then full with customers. One of the men, Robinson, leaped over the counter and pounded on the cash register, demanding that it be opened and the deposited money given to him. Fortunately for the store's owners, but unfortunately for the would-be bandits, Ronald Dobson, the son of the proprietors, had come home from medical school for the Christmas holidays and was stationed at his post beside the cash register when Robinson leaped over the counter. When Robinson demanded that he open the cash register, Ronald steeled himself, reached toward the depository, but grabbed instead a canister of a product called "On Guard". As Ronald later testified, "On Guard" releases a chemical spray irritant containing, among other things, camphor benzoid, a lacrimator, which causes the eyes to sting and water profusely. Ronald whirled, sprayed Robinson in the face, and turned to spray appellant Bowie, who, accompanied by Smith, had begun to move quickly toward the store's exit. Robinson then jumped back across the counter and tried to run out the door; however, he was pursued by the relentless medical student who grabbed him from behind and, with the as sistance of several customers, subdued him. Although Robinson told the other two men to "get the hell back and help him", his pleas went unanswered. Smith and Bowie, ignoring the car that had been left beside the store with its engine running, traveled very rapidly down the street on foot and were last seen jumping over a fence bordering a nearby Dairy Queen. Bowie's participation in the robbery was passive; he remained throughout on the customer side of the counter. Although he testified that he did not participate in the robbery and did not know that one was planned until Robinson jumped over the counter, several state witnesses testified that Bowie told customers in the store that a robbery was in progress. No weapons were displayed at any time. Robinson plead guilty and was sentenced to five years imprisonment. Smith was not charged. Appellant Bowie plead not guilty to a charge of attempted robbery, his single defense being that he did not know about or intend to participate in the robbery and thus' did not have the requisite criminal intent. However, the jury returned a guilty verdict and Bowie was sentenced to a term of five years in prison. Appellant has asserted three separate errors in the proceedings below: (1) that the lower court abused its discretion in denying his motion for a protective order prohibiting the state from introducing impeachment evidence of two previous convictions; (2) that he was denied due process of law by the failure of the state to transcribe the grand jury proceedings and make the transcription available to defense counsel; and (3) that the sentence imposed is excessive. Each of these issues can be disposed of summarily. In Griggs v. State, 494 P.2d 795 (Alaska, March 13, 1972), we reaffirmed the general discretion of a trial court to permit impeachment of a criminal defendant's . testimony by admitting evidence of prior convictions. That decision is controlling here. In Robinson v. State, 489 P.2d 1271 (Alaska 1971), we held that it is not a denial of due process to fail to transcribe grand jury proceedings. This holding is, of course, dispositive of appellant's second specification of error. In previous sentence appeals we have examined the sentence imposed to determine if it is within the "zone of reasonableness". In this case appellant has had two prior felony convictions, one in 1966 for passing a forged check and one in 1967 for larceny from a building. The larceny occurred while appellant was out on probation for the forged check conviction ; the attempted robbery herein occurred while he was on parole for the larceny conviction. The five-year sentence imposed below is clearly not without the zone of reasonableness. Less stern measures have proven unsuccessful. The judgment and commitment of the trial court is affirmed. . The convictions introduced to impeach Bowie were neither remote in time (1966 and 1967), cf. Spaulding v. State, 481 P.2d 389, 393 (Alaska 1971), nor for crimes (forgery and larceny) identical to- the one now charged. Cf. Parish v. State, 477 P.2d 1005, 1010-1014 (Alaska 1970) (Boney & Rabinowitz, JJ., dissenting). . After Robinson was decided, Alaska R.Crim.P. 6 was amended, effective October 31, 1971, to require recordation of grand jury proceedings and to make a transcrijrt thereof available to defense counsel on request. . Nickerson v. State, 492 P.2d 118 (Alaska, December 30, 1971); Waters v. State, 483 P.2d 199, 202 (Alaska 1971); Gilmore v. State, 479 P.2d 301, 302 (Alaska 1971). . The crime of attempted robbery carries a maximum possible sentence of seven and one-half years. AS 11.15.240; AS 11.05.-020. Because appellant had previous felony convictions, he could have been sentenced to a maximum of thirty years. AS •12.55.050(2).

10557977

FAIRBANKS BUILDERS, INC., Appellant, v. MORTON DeLIMA, INC., Appellee

Fairbanks Builders, Inc. v. Morton DeLima, Inc.

1971-03-30

No. 1104

194

198

483 P.2d 194

483

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:26.771103+00:00

CAP

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

FAIRBANKS BUILDERS, INC., Appellant, v. MORTON DeLIMA, INC., Appellee.

FAIRBANKS BUILDERS, INC., Appellant, v. MORTON DeLIMA, INC., Appellee. No. 1104. Supreme Court of Alaska. March 30, 1971. Charles E. Cole, Fairbanks, for appellant. Eugene V. Miller, Gerald J. Van Hoomissen, of Miller & Van Hoomissen, Fairbanks, for appellee. Before BONEY, C. J., and DIMOND and RABINOWITZ, JJ.

2291

13835

OPINION RABINOWITZ, Justice. Appellant Fairbanks Builders entered into a contract with the United States Army Corps of Engineers for the construction of anti-erosion works along the Yukon River in the vicinity of Galena, Alaska. Appellant subcontracted with appellee Morton DeLima for the earthwork portion of the prime contract. The subcontract obligated Morton DeLima to furnish 600 cubic yards of gravel daily. In light of the total gravel requirements specified in the prime contract, it was anticipated that approximately 27 days would be required for Morton DeLima to complete its performance of the subcontract. Shortly after Morton DeLima commenced work, Fairbanks Builders encountered difficult conditions in the course of driving pilings along the banks of the Yukon. These circumstances caused Fairbanks Builders to change its operating procedures which resulted in delayed performance by Fairbanks Builders of the prime contract, and in turn prevented Morton DeLima from completing its performance of the subcontract until some:*í73 days had elapsed from the time work was initiated. Morton De-Lima then sued Fairbanks Builders for additional labor and equipment expenses it allegedly incurred during the period of time its performance of the subcontract was delayed. After trial to the superior court without jury, Morton DeLima was awarded a judgment of $8,220 with interest from May 1, 1963. Fairbanks Builders argues that the superior court erred in awarding Morton DeLima prejudgment interest. State v. Phillips, 470 P.2d 266, 272-274 (Alaska 1970), is dispositive of this contention. In Phillips, we said in part that: All damages then, whether liquidated or unliquidated, pecuniary or nonpecuniary, should carry interest from the time the cause of action accrues, unless for some reason peculiar to an individual case such an award of interest would do an injustice. [Id. at 274] Since both the prime and subcontracts were completed in May of 1963, we affirm the trial court's award to Morton DeLima of prejudgment interest from May 1, 1963. Fairbanks Builders next contends that the superior court erroneously found that it had breached an implied covenant of fair dealing. In its findings of fact the trial.court in part found: That during the term of the contract the defendant caused the plaintiff to be delayed in the performance of his contractual duties in that the contract required some thirty days for completion under the terms of the contract, and due to the delays and the fact that the defendant failed to allow the plaintiff to complete his work within the required time and at the rate specified by the contract. These findings afford us a clear understanding of the basis for the trial court's resolution of the liability issue. Fairbanks Builders breached the subcontract by preventing Morton DeLima from timely performing its obligations under the subcontract. For implicit in the parties' subcontract was an obligation on the part of Fairbanks Builders not to prevent or hinder performance by Morton DeLima. We therefore find no merit in regard to appellant's second specification of error. Fairbanks Builders' final specification of error is that the trial court's findings of fact pertaining to damages are inadequate. In its complaint Morton DeLima sought $43,522 in damages for equipment rental and labor costs attributable to the delay caused by Fairbanks Builders. After a nonjury trial, the superior court concluded, in a memorandum opinion, that Morton DeLima "suffered $8,220.00 damages." In its opinion the court further stated that "Findings, conclusions, and judgment may be lodged by plaintiff consistent with the foregoing." Thereafter, formal findings of fact and conclusions of law were prepared by counsel for Morton DeLima and subsequently signed by the trial judge. Concerning damages, the lower court's sole finding of fact states "[tjhat the plaintiff suffered damages in the sum of $8,220.00 as a result of the delays attending the completion of contract." Fairbanks Builders now asserts that the trial court committed error "in failing to make adequate findings of fact on each of the items of claimed damages." More particularly, it is argued that the finding was inadequate because it failed to provide this court with a clear understanding of the basis for the trial court's award of damages. Viewed in the context of this record, we agree that the questioned finding of fact is inadequate in that it does not meet the degree of specificity required by Civil Rule 52 and this court's decisions which have interpreted this rule. Patrick v. Sedwick, 413 P.2d 169, 175 (Alaska 1966), is representative of our precedents in this area of procedural law. There we held that the trial court's findings of fact pertaining to damages must be "sufficiently detailed to afford us a clear understanding of the basis of the court's award." Our prior decisions have made clear that the provisions of Civil Rule 78(a) were not intended to delegate to counsel for the litigants the trial judge's primary duty under Civil Rule 52 of finding the facts specially. To accord Civil Rule 78(a) primacy would result in the de-emphasis of one of the purposes of requiring findings, namely, to aid the trial judge's process of adjudication. In this regard we consider it appropriate to reiterate our previous endorsement of Judge Frank's views concerning the role of the trial judge in the fact-finding process. In United States v. Forness, Judge Frank wrote: The trial court is the most important agency of the judicial branch of government precisely because on it rests the responsibility of ascertaining the facts. When a federal trial judge sits without a jury, that responsibility is his. And it is not a light responsibility since, unless his findings are 'clearly erroneous,' no upper court may disturb them. To ascertain the facts is not a mechanical act. It is a difficult art, not a science. It involves skill and judgment. As fact-finding is a human undertaking it can, of course, never be perfect and infallible. For that very reason every effort should he made to render it as adequate as it humanly can be. (footnotes omitted) In the case at bar, the trial court's stark pronouncement that "plaintiff suffered $8,220.00 damages" provides little illumination. Without knowledge of the basis or theory upon which the award of damages is made meaningful, appellate review is frustrated both from the vantage point of the appealing litigant and the appellate court. Nevertheless, we find it unnecessary to set aside the judgment entered below or to remand the case in order to permit the trial court to make adequate findings of fact regarding the award of $8,220 damages. In this appeal Fairbanks Builders has not specified as error that the damages awarded DeLima were excessive, or that DeLima was not entitled to any damages, or that the evidence was insufficient to support the trial court's finding of $8,220 in damages. Appellant Fairbanks Builders' sole claim is that the finding of fact as to damages was inadequate. In such circumstances, we do-,.not believe that it would further the cause of justice in this prolonged litigation to remand the matter to the trial court for additional proceedings. We reach this conclusion because due to the procedural context in which this appeal is presented appellant has not properly-raised any substantive issue which calls for review by this court. Furthermore, based on our own study of the record, we cannot say that the trial court's award of $8,220 in damages was tantamount to plain error. Affirmed. ERWIN and CONNOR, JJ., not participating. . In a separate subsequent finding, it was found: That from a preponderance of the evidence that a covenant of fair dealing should be implied against the defendant and in favor of the plaintiff. Accordingly, the plaintiff is entitled to recover his damages for a breach thereof and defendant has breached the covenant in the delays attending completion of contract. . Restatement of Contracts § 316 (1932) ; 4 A. Corbin, Contracts § 947, at 813 (1951 ed.). At 3 A. Corbin, Contracts § 571, at 349-351 (1960 ed.), it is stated that: In any kind of contract, if the right of one party to compensation is conditional upon the rendition of some service or other performance by him or on his behalf, it is nearly always a breach of conti'act for the other party to act so as to prevent or to hinder and delay or to make more expensive the performance of the condition. It is a breach of duty, only because the court finds a promise by implication not to prevent or hinder. United States v. Behan, 110 U.S. 338, 4 S.Ct. 81, 28 L.Ed. 168 (1884); North east Clackamas County Elec. Co-op v. Continental Cas. Co., 221 F.2d 329 (9th Cir. 1955). See also McGrath v. Electrical Const. Co., 230 Or. 295, 364 P.2d 604, 370 P.2d 231 (1961). . In appellant's brief, it is asserted that "[t]he trial court erred in failing to make adequate findings of fact on each of the items of claimed damages." . Appellant filed a general denial to the complaint. The trial court's pretrial order reflects that appellant was given 30 days to file an amended answer in which its "claims will be stated." No amended answer was filed by appellant. . In his memorandum opinion, the trial judge also said, "I desire to note herein that I have waited two and one half months for defendant's [Fairbanks Builders, Inc.] legal brief and have concluded that he does not intend to file any." . In regard to the preparation and submission of findings, conclusions, and judgments, Civ.R. 78(a) provides: Unless otherwise ordered by the court, counsel for the successful party to an action or proceeding shall prepare in writing and serve on each of the other parties all findings of fact, conclusions of law, judgments and orders. Counsel for each of the parties so served shall promptly endorse on the original of each document either (1) an approval as to form, (2) a disapproval as to form, or (3) an acknowledgment of the date and hour of service. . Civ.R. 52(a) provides in part: In all actions tried upon the facts without a jury the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment. Requests for findings are not necessary for purposes of review. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. Civ.R. 52(b) reads in part: When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the question has made in the court an objection to such findings or has made a motion to amend them or a motion for judgment. Subparagraph (e) of Civ.R. 52 provides: The preparation and submission of findings of fact and conclusions of law shall be governed by Rule 78. . Hamilton v. Lotto, 391 P.2d 948, 949 (Alaska 1964) ; Spenard Plumbing & Heating Co. v. Wright, 370 P.2d 519, 525-526 (Alaska 1962); Merrill v. Merrill, 368 P.2d 546, 548 (Alaska 1962); Dickerson v. Geiermann, 368 P.2d 217, 219 (Alaska 1962). . Unlike the situation in the case at bar, in the Patrick case both parties to the appeal attacked the trial court's award of damages. In Patrick, appellant argued the damages were inadequate while appel-lee took the position they were excessive. . Supra note 6. . Rogge v. Weaver Bros., 368 P.2d 810, 814-815 n. 7 (Alaska 1962). This court said in part: "For a detailed discussion of the trial judge's responsibility to give personal consideration to findings of fact and to avoid the mechanical adoption of findings prepared by counsel, see United States v. Forness, 125 F.2d 928, 942 (2d Cir. 1942), cert. denied 316 U.S. 694, 62 S.Ct. 1293, 86 L.Ed. 1764 (1942)." . In Merrill v. Merrill, 368 P.2d 546, 548 (Alaska 1965), we said: To particularize, the requirement that the trial judge file findings of fact gives assurance that he has exercised care in ascertaining the facts, and has employed both skill and judgment in reducing his thoughts on contested matters to precise and pertinent findings while the evidence is still fresh in his mind, (footnote omitted) . 125 F.2d 928, 942-943 (2d Cir.), cert. denied, 316 U.S. 694, 62 S.Ct. 1293, 86 L.Ed. 1764 (1942). . Patrick v. Sedwick, 413 P.2d 169, 175 (Alaska 1966). . Under the provisions of Civ.R. 52(b), the sufficiency of the evidentiary basis for a particular finding of fact may be asserted on appeal whether or not the party raising the question made an objection to the finding in the trial court. See note 7 supra. . We note that appellant did not object to the adequacy of the finding as to damages in the trial court. In this regard, Civ.R. 78(b) provides: Within 5 days after service of any of the documents mentioned in subdivision (a), a party may serve a written detailed statement of objections to any such document and the reasons therefor. If objections are served within the time specified herein, the court may thereafter require the attorneys interested to appeal before it, or it may sign the document as prepared by counsel for the successful party or as modified by the court. . Merrill v. Faltin, 430 P.2d 913, 917 (Alaska 1967) ; Heacock v. Town, 419 P.2d 622, 623 (Alaska 1966) ; Meyst v. East Fifth Ave. Serv., Inc., 401 P.2d 430, 434 (Alaska 1965).

10559477

Jack MORAN, Appellant, v. Alvin M. POLAND et al., Appellees

Moran v. Poland

1972-03-17

No. 1544

814

816

494 P.2d 814

494

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:29.676845+00:00

CAP

Before RABINOWITZ, CONNOR and ERWIN, JJ.

Jack MORAN, Appellant, v. Alvin M. POLAND et al., Appellees.

Jack MORAN, Appellant, v. Alvin M. POLAND et al., Appellees. No. 1544. Supreme Court of Alaska. March 17, 1972. Edgar Paul Boyko and Donna C. Willard, of Boyko & Walton, Anchorage, for appellant. Stephen DeLisio and Alan Sherry of Merdes, Schaible, Staley & DeLisio, Anchorage, for appellees Alvin M. Poland and Glenn Bozeman. L. S. Kurtz, Jr., of Burr, Pease & Kurtz, Anchorage, for appellee Matanuska Valley Bank. John Conway of Atkinson, Conway, Young & Bell, Anchorage, for appellee Fireman’s Fund Insurance Co., Inc.

756

4540

OPINION Before RABINOWITZ, CONNOR and ERWIN, JJ. ERWIN, Justice. On April 6, 1971, appellant filed a complaint in the superior court seeking equitable relief against the enforcement of a judgment entered March 31, 1966, in the United States District Court for the District of Alaska. This appeal is taken from an order of the superior court dismissing the complaint for failure to state a claim upon which relief can be granted. We affirm. Our disposition does not involve the general power of a state court to give equitable relief against the effects of a judgment rendered by a federal court or a sister state court to the extent that such-relief would be available in the rendering forum. Nor need we decide whether appellant has alleged such facts as might entitle him to relief from the 1966 judgment under applicable federal law. Rather, we hold that the appellant is barred from obtaining the relief sought by the doctrine of res judicata. After the federal district court judgment had become final, appellant, through newly retained counsel, moved in the federal court to have the judgment set aside on the very grounds now being urged. Based upon the parties' affidavits and memoran-da, and certain information obtained sua sponte, the district court entered an order conditionally vacating the judgment and directing appellant to file depositions of six named persons within 120 days. Despite several continuances, appellant failed to file three of the requested depositions. Finally, on June 17, 1969, more than two years after the date of the order reopening the proceedings, the district court denied appellant's motion to vacate the judgment, ruling that the motion was "not supported by facts sufficient to establish any of the reasons set forth in said Rule 60(b)." Res judicata prevents the relitigation in a second suit for relief from judgment of matters which were adjudged or could fairly have been adjudged in a prior proceeding between the same parties raising the same claim for relief. Appellant attempts to avoid the effect of res judicata by characterizing the decision of the federal district court denying his motion for relief from that court's prior judgment as "purely procedural" and "not on the merits". The simple answer to this contention is .found in Federal Rule of Civil Procedure 41(b) which provides in part that a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits. The judgment of the superior court is affirmed. BONEY, C. J., and BOOCHEVER, J., not participating. . The federal district court judgment was against appellant in his capacity as surety on a federal project surety bond. Appellant contends that the judgment was obtained by fraud in that his signature on the bond is not genuine. No similar claim was made in the original federal action; however, the defense was subsequently raised in the federal court by a motion for relief from judgment. . See Restatement of Judgments § 114, comments d & e, at 551-552 (1942). The requirement that full faith and credit be given to a judgment of a court of a sister state (U.S.Const. art. IV § 1) or a federal court (28 U.S.C. § 1738) is not thereby violated since the judgment is given the same effect as it would be entitled to under the laws and usage of the forum of its rendition. . Fed.R.Civ.P. 60(b), providing grounds and procedure for relief from a judgment, is substantially identical with Alaska Civ.R. 60(b). . Cf. Palfy v. First Bank of Valdez, 471 P.2d 379, 383 (Alaska 1970); Pennington v. Snow, 471 P.2d 370, 374 (Alaska 1970); State v. Baker, 393 P.2d 893, 896-897 (Alaska 1964). . An appeal of this decision to the Ninth Circuit Court of Appeals was denied. . American Surety Co. v. Baldwin, 287 U.S. 156, 166-167, 53 S.Ct. 98, 77 L.Ed. 231, 238 (1932); 7 Moore, Federal Practice ¶ 60.28 [3] at 413 (2d ed. 1971).

10555858

HARTFORD ACCIDENT AND INDEMNITY COMPANY and Dravo Corporation, Petitioners, v. STATE of Alaska for the Use and Benefit of CONSOLIDATED CONSTRUCTION COMPANY, and Fireman's Fund American Insurance Company, Respondents

Hartford Accident & Indemnity Co. v. State ex rel. Consolidated Construction Co.

1972-06-16

No. 1693

274

276

498 P.2d 274

498

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:36.285560+00:00

CAP

Before BONEY, C. J., and RABINO-WITZ, CONNOR, ERWIN and BOOCH-EVER, JJ.

HARTFORD ACCIDENT AND INDEMNITY COMPANY and Dravo Corporation, Petitioners, v. STATE of Alaska for the Use and Benefit of CONSOLIDATED CONSTRUCTION COMPANY, and Fireman’s Fund American Insurance Company, Respondents.

HARTFORD ACCIDENT AND INDEMNITY COMPANY and Dravo Corporation, Petitioners, v. STATE of Alaska for the Use and Benefit of CONSOLIDATED CONSTRUCTION COMPANY, and Fireman’s Fund American Insurance Company, Respondents. No. 1693. Supreme Court of Alaska. June 16, 1972. L. R. Carlson of Merdes, Schaible, Staley & DeLisio, Fairbanks, for petitioners. H. Bixler Whiting, Fairbanks, for respondents. Before BONEY, C. J., and RABINO-WITZ, CONNOR, ERWIN and BOOCH-EVER, JJ.

1279

7569

OPINION ERWIN, Justice. Petitioners seek review of a superi- or court order denying as untimely their motion to peremptorily disqualify, under the provisions of AS 22.20.022, Superior Court Judge Warren Wm. Taylor from presiding over the trial of the action below. Review is granted under the provi sions of Supreme Court Rule 23(e) since by that denial "the superior court has so far departed from the accepted and usual course of judicial proceedings . as to call for this court's power of supervision and review." Under AS 22.20.022 the filing of a timely affidavit in compliance with the statute operates to bar the judge from proceeding any further in the matter other than transferring the case to another judge. Channel Flying, Inc. v. Bernhardt, 451 P.2d 570, 574 (Alaska 1969). "[T]he disqualification is peremptory, i.e., it is at once decisive and conclusive and does not admit of any question." Id. (footnote omitted). See also Roberts v. State, 458 P.2d 340, 345-346 (Alaska 1969). Therefore, if petitioners' affidavit was timely filed, the judge involved is without power or jurisdiction to proceed further with the action. The time for filing a proper affidavit is provided for in AS 22.20.022(c) as follows : The affidavit shall be filed within five days after the case is at issue upon a question of fact, or within five days after the issue is assigned to a judge, whichever event occurs later, unless good cause is shown for the failure to file it within that time. Petitioners do not claim that they filed a proper affidavit within five days after the case was at issue upon a question of fact. Rather, petitioners assert that their affidavit and accompanying motion to disqualify were filed prior to the expiration of five days after the issue had been assigned. The motion was denied as untimely on the basis of the practice within the Fourth Judicial District of assigning pending cases jointly to the three superior court judges sitting in that district. We hold that an action is not "assigned to a judge" within the meaning of AS 22.20.022(c) until it has been assigned to a particular judge and a reasonable attempt has been made to notify the parties before the court of that assignment. The assignment of cases in a mul-ti-judge court is an administrative matter committed to the discretion of the presiding judge. As an appellate court it is not normally our function to interfere with the exercise of that discretion. However, because the administrative method of assigning cases affects substantial rights of litigants under AS 22.20.022, we are constrained to again repeat the following language from Roberts v. State, 458 P.2d 340, 346 (Alaska 1969): The obvious purpose of this five day requirement is to avoid a waste of judicial time which would result if an affidavit of disqualification were not filed until the day of the trial, because this would mean that the case would have to be continued until another judge could be assigned, and the disqualified judge would probably not be ready at that time to start the trial of another action. A method should he devised and utilized to make assignments of cases to judges sufficiently in advance of trial or hearing, with notice of the assignment being given to the parties, so that the parties can he afforded their rights under AS 22,20-022 without interfering with scheduled hearing or trial dates, (emphasis added) See also Pope v. State, 478 P.2d 801, 803 n. 1, 804 (Alaska 1970). The order of the superior court denying petitioners' motion to disqualify Judge Warren Wm. Taylor is reversed and the case remanded for further proceedings in conformity with this opinion. . Supreme Ct.R. 23(e) provides for review of a nonappealable order "[wjliere postponement of review until an appeal may be taken from a final judgment will result in injustice because of impairment of a legal right . . . . " In Channel Flying, Inc. v. Bernhardt, 451 P.2d 570, 576 (Alaska 1969), we held that AS 22.20.022 "creates and defines a right — the right to have a fair trial before an impartial judge." . Supreme Ct.R. 24(3). . AS 22.20.022(a) provides: If a party or his attorney in a district court action or a superior court action, civil or criminal, files an affidavit alleging under oath that he believes that he cannot obtain a fair and impartial trial, the presiding district court or superior court judge, respectively, shall at once, and without requiring proof, assign the action to another judge of the appropriate court in that district, or if there is none, the chief justice of the supreme court shall assign a judge for the hearing or trial of the action. The affidavit shall contain a statement that it is made in good faith and not for the purpose of delay. . In Channel Flying, Inc. v. Bernhardt, 451 P.2d 570, 573-574 (Alaska 1969), we had occasion to discuss when a case is "at issue upon a question of fact," the alternative event which, if it occurs after the case is assigned to a judge, will start the running of the five-day period. .For the purpose of determining the timeliness of motions to disqualify filed pursuant to AS 22.20.022, the assignment of cases within the Fourth Judicial District is governed by an order of the presiding judge of that district. The order provides in relevant part: Commencing at 8:00 a. m., February 22, 1971, all pending cases, civil and criminal, not at issue will be assigned jointly to Judges Warren W. Taylor, Everett W. Hepp and Gerald J. Van Hoomissen on the date that the case is at issue. This assignment shall continue for ten (10) days. On the date a ease is first at issue on a question of fact, this order effects an automatic ten-day joint "assignment" to the three superior court judges sitting in the Fourth Judicial District. A litigant then has ten days within which to file a disqualifying affidavit as to one of the three judges who might preside over the action. As indicated by the following statement by the presiding superior court judge of the Fourth Judicial District, any disqualifying affidavits filed after the passage of the ten-day period is deemed untimely.: In relation to the local practice of exercising the right of peremptory disqualification of judges, counsel have ten (10) (lays after the filing of a responsive pleading or the entry of a plea of not guilty to exercise their peremptory challenge. At the time the issues are joined the case is assigned jointly to all three judges of the Fourth Judicial District. In this case the cause was apparently orally assigned to Judge Taylor for a hearing and a motion to disqualify was filed within five days of the oral assignment. No written assignment appears in the record on appeal. . Cf. Marsin v. Udall, 78 Ariz. 309, 279 P.2d 721, 723 (1955); Tarsey v. Dunes Hotel, Inc., 75 Nev. 364, 343 P.2d 910, 911-912 (1959); Wolf v. Marshall, 120 Ohio St. 216, 165 N.E. 848, 849 (1929); State ex rel. Beeler v. Smith, 76 Wash. 460, 136 P. 678 (1913). But cf. State ex rel. Eden v. Schneider, 102 Mont. 286, 57 P.2d 783, 785-786 (1936). . Roberts v. State, 458 P.2d 340, 346 (Alaska 1969).

10555861

James A. CONDON, Appellant, v. STATE of Alaska, Appellee

Condon v. State

1972-06-16

No. 1411

276

288

498 P.2d 276

498

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:36.285560+00:00

CAP

Before BONEY, C. J., and RABINO-WITZ, CONNOR and ERWIN, JJ.

James A. CONDON, Appellant, v. STATE of Alaska, Appellee.

James A. CONDON, Appellant, v. STATE of Alaska, Appellee. No. 1411. Supreme Court of Alaska. June 16, 1972. William H. Fuld, of Kay, Miller, Libbey, Kelly, Christie & Fuld, Anchorage, for appellant. John E. Havelock, Atty. Gen., Juneau, Seaborn J. Buckalew, Dist. Atty., Robert L. Eastaugh, Asst. Dist. Atty., Anchorage, for appellee. Before BONEY, C. J., and RABINO-WITZ, CONNOR and ERWIN, JJ.

6808

40248

RABINOWITZ, Justice. After trial by jury, James Condon was found guilty of the crime of second degree murder and was sentenced to 20 years. Condon now appeals both from the judgment of conviction and from the sentence that was imposed by the superior court. In this appeal Condon advances three grounds for reversal of his conviction: first, that his motion for judgment of acquittal as to the charges of first and second degree murder should have been granted because the state's evidence was insufficient to go to the jury on these charges; second, that the trial court committed reversible error in admitting into evidence photographs of Condon's wife showing bruises she purportedly sustained in a beating administered by him and other evidence of particular wrongful acts committed by him towards his wife; and third, that he was denied effective assistance of counsel. Condon also appeals from the sentence imposed by the superior court on the ground that 20 years is an excessive sentence. We affirm Condon's conviction of the crime of second degree murder and further hold that the sentence imposed by the trial court was not excessive. We turn first to Condon's contention that his motion for judgment of acquittal on the charges of first and second degree murder should have been granted. Our prior decisions have firmly established the standard of review this court will employ in passing upon such assertions of error. We have held that on an appeal from denial of a motion for judgment of acquittal, this court "must view the evidence and the inferences to be drawn therefrom in a light most favorable to the state." DeSacia v. State, 469 P.2d 369, 371 (Alaska 1970) (footnote omitted); Beavers v. State, 492 P.2d 88, 97 (Alaska 1971). Applying this standard to the record in the case at bar, we must determine whether "fair minded men in the exercise of reasonable judgment could differ on the question of whether guilt [had] been established beyond a reasonable doubt." Bush v. State, 397 P.2d 616, 618 (Alaska 1964). The record shows that Condon lived with his wife and daughter in one-half of a quonset hut in Bell Flats near the city of Kodiak. Isidor Cordova and Richard Barnes lived in the other half of the quonset hut. A nearby quonset hut was occupied by Timothy Peter Biehn, his pregnant wife, and two children. On the morning of June 17, 1970, Condon accompanied Cordova and Barnes to Saltery Cove to try to get Barnes' truck out of the mud where it had become stuck. The three left at approximtaely 11 a. m. or noon and returned to the quonset hut occupied by Cordova, Barnes, and the Condons sometime between 2 and 3 p. m. Mr. Biehn and Mrs. Condon were in the quonset hut when Condon, Cordova, and Barnes entered. Cordova and Biehn left almost immediately for Biehn's quonset hut, and Barnes left shortly thereafter. Barnes testified that he left his quonset hut to go over to the Biehn quonset hut because Condon was slapping his wife and Barnes did not want to get involved in a family argument. At this point, the testimony of Cordova, Barnes, and Mrs. Biehn differs sharply from Condon's version of what transpired. Although there were minor discrepancies in the testimony of the three state witnesses, their testimony is substantially the same. Approximately IS or 20 minutes after Barnes left his quonset hut, Condon walked towards the Biehn quonset hut carrying a pistol. Barnes testified that he was standing on the porch and saw Condon coming with his wife. He stated that Mrs. Condon had blood on her and her hair was messed up. Barnes asked Condon where he was going, and Condon looked at him and said, "Dick, he fucked my wife." Mrs. Biehn was also outside near the porch and Condon asked her if Pete Biehn was home. Mrs. Biehn replied that her husband was inside. Cordova testified that after he and Biehn left the Condon quonset hut they went to the Biehn quonset hut where Mrs. Biehn was preparing supper. Biehn was lying face down on two or three cushions in the living room, playing with his children, drinking coffee and smoking a cigarette. Cordova was sitting next to him. Condon then entered the house crying and mad. According to Cordova's testimony, Condon then pointed the gun towards Peter and it was just like you were hypnotized, you know, you just couldn't believe because it happened. He said, Pete, if you fuck around with my wife again I'll kill you and he fired a shot. . . . And about this time, Biehn stood up to get his rifle and made a motion and he — he touched it but [it] never left the rack. At this time another bullet fired and I thought at first he was hit in the shoulder because he threw the shoulder hack, but he wasn't, I heard he was hit in the aorta. After the second shot was fired, Cordova and Barnes struggled with Condon to get possession of the gun. During the struggle, the gun went off again. Barnes hit Condon on the head with a kerosene lamp, and eventually Condon released the gun. Cordova then went over to where Biehn had fallen. Biehn appeared to be unconscious. Cordova instructed Condon to go for help and instructed Barnes to go over to his quonset hut to hide the other guns that were there. Eventually the security police from the nearby naval station arrived in response to Condon's request. The state trooper arrived shortly thereafter. He determined that Biehn was dead. Condon was taken into custody. Condon took the stand to testify in his own behalf. He testified that when he, Barnes, and Cordova returned from Saltery Cove, Biehn was in his part of the quonset hut with Mrs. Condon. After Barnes, Cordova, and Biehn had left the quonset hut, Condon noticed that his wife had a black eye that she did not have when he left for Saltery Cove. He asked her what had happened and she finally told him that Biehn had approached her sexually and when she denied him "he hit her in the eye and took advantage of her." Condon then told his wife that they were going over to Biehn's quonset hut to tell Biehn to stay away from the Condons. Mrs. Con-don did not get ready as fast as Condon would have liked, so he testified that he became angry and slapped her. Condon took a loaded .32 automatic pistol from next to his bed which I felt that I might need due to the fact of Mr. Biehn's temper, violent temper that I had heard about, and can get witnesses to testify about. Condon testified that he followed Barnes, Cordova, and Biehn over to the Biehn's hut within two or three minutes. As he approached the quonset hut, Barnes and Mrs. Biehn were on the porch. Condon asked Mrs. Biehn where her husband was. Condon denied that he spoke to Barnes at that time. He testified that he stopped on the porch to take his shoes off as he did not want to muddy up the floor. He opened the door and took two or three steps into the quonset hut. His pistol was pointing at the floor. Condon stated: I said, Pete, and he immediately looked up and as soon as he saw me he rose and reached for a rifle on the gun rack. I was just standing there. . after I had said Pete and he was reaching for the rifle on the gun rack, I said don't and at that time I fired what — well, a warning shot into the wall which would have been to Mr. Biehn's right — the lower right of the gun rack. Condon testified that after he fired the warning shot, Mrs. Biehn came in and gathered up her children and took them out of the room. During this time Biehn was putting a magazine into the rifle. Mrs. Biehn approached her husband and said, "Don't he's got a gun," and Biehn pushed Mrs. Biehn out of the way and started to turn toward him. At this point Condon testified he fired the fatal shot. Condon further testified that he believed himself to be in danger when Biehn swung around toward him with the rifle. Viewing the evidence in the light most favorable to the state, we conclude that reasonable minds could differ on the question of whether Condon's guilt of first or second degree murder was established beyond a reasonable doubt. Condon delayed approximately 20 minutes after learning that his wife had had sexual intercourse with Biehn before starting out for Biehn's quonset. Condon took with him a loaded automatic pistol. Enroute to the fatal encounter he spoke to two persons. At the threshold of Biehn's quonset, Condon stopped to take off his wet and muddy shoes so he would not "muddy up" Biehn's floor. Once inside Biehn's residence, Condon spoke to Biehn, fired one shot, and then killed Biehn with a second shot. We think that the range of the reasonable inferences which could have been drawn from this evidence permitted the issues of Condon's premeditation and malice to go to the jury under the charges of first and second degree murder. Condon next argues that certain questions asked of him by the prosecutor during cross-examination, together with certain photographs of his wife, were so prejudicial as to deprive him of a fair trial. In the course of his cross-examination of Condon, the prosecutor questioned Condon as follows: Q As a matter of fact, Mr. Condon, isn't it true that what really happened was you went into your bedroom and saw some spots on your bed which caused you to be suspicious ? A No, sir. Q Isn't that true, that's the first indication you had? A No, sir. Q And isn't it true that after that you came out and you demanded of your wife whether or not she had had intercourse and she denied it, isn't that true? A No, sir. Q And isn't it true, Mr. Condon, that from that time forward you beat her with a belt buckle, the hard end of a belt buckle and with your hands Q and with other objects until she admitted to you . [Objection. Overruled.] Q All right. As a matter of fact, you hit her with the pistol, didn't you? A No, sir. The prosecutor then showed Condon a series of photographs which depicted Mrs. Condon with numerous bruises about her face and body. The photographs were admitted into evidence over objection on the ground that they were irrelevant and unduly prejudicial. At another point in Condon's cross-examination, the following transpired: Q And on still other times isn't it true you've determined that the best way to get along with this young girl [Mrs. Condon] is to beat her every once in awhile? A No, sir. Q How old is your wife, now, Mr. Condon? [Objection. Overruled.] A She'll be 18 in December. Q She was 13 when you were married in any event . Q Isn't it a fact that you made a special trip into Virginia in order to marry her, for 4 hours, so that you knew you couldn't — you couldn't marry this young child? [Objection.] THE COURT: Well, I'll — disregard it members of the jury. I'm not going to allow that. I feel it's too remote to have any bearing on the case in question. In regard to the foregoing, Condon argues that the prosecutor's questions as to whether on the day of the shooting he had hit his wife with a pistol or a belt buckle reflect that "[t]he District Attorney was trying the defendant for his conduct towards his wife, instead of murder." Con-don does not specifically argue that this was improper because it was evidence of particular wrongful acts, nor does he discuss Civil Rule 43(g) (11) (b) which provides that a witness may be impeached by contradictory evidence. This court has, in a number of cases, permitted impeachment by particular wrongful acts where the questioning was not protracted and where there was an independent legitimate purpose for süth a line of questioning. McKay v. State, 489 P.2d 145, 148 (Alaska 1971); Whitton v. State, 479 P.2d 302, 316-317 (Alaska 1970); Smith v. State, 431 P.2d 507, 509 (Alaska 1967). These cases involved inquiry into particular wrongful acts which also tended to show that the witness was biased. In Condon's case, the inquiry in question was apparently designed to discount Con-don's story that his wife had been beaten and taken advantage of by Peter Biehn. These same questions also were aimed at impeaching Condon's testimony to the effect that he only "backhanded" his wife just prior to his fatal encounter with Biehn. Thus, this line of inquiry was within the evidentiary rule which permits impeachment by contradictory evidence. We therefore hold that the trial court did not err in permitting these questions to be propounded to Condon on cross-examination. Assuming the issue concerning the photographs is properly before us, we hold that the trial judge did not err in allowing them into evidence. In Stevens v. State, 443 P.2d 600, 603 (Alaska 1968), cert. denied, 393 U.S. 1039, 89 S.Ct. 662, 21 L.Ed.2d 586 (1969), this court held a photograph is admissible in evidence in the discretion of the trial judge, as an aid to the court or jury, after it has been shown to be a faithful representation of whatever it purports to depict, provided it is relevant, and provided its evidentiary value is not outweighed by any prejudice it might create, (footnotes omitted) In our opinion the photographs were relevant and their evidentiary value outweighed any possible prejudice they might have created. Examination of the photographs shows that they were not lurid or inflammatory. On the other hand, they were supportive of the prosecutor's theory that it was Condon who beat his wife prior to the shooting. In this respect, we note Barnes testified that when he returned from Saltery Cove, Mrs. Condon did not have bruises on her face and body. Condon bases his claim of denial of effective assistance of counsel on two separate themes. First, Condon argues that his trial counsel was appointed so close to the commencement of the trial that in a case involving a homicide charge this court must presume that he was denied effective assistance of counsel in the constitutional sense. Second, Condon asserts that he was denied effective assistance of counsel because his trial counsel failed to raise "the only just and obviously proper defense, . . . [that] of diminished responsibility or lack of capacity to commit murder." We will first consider Condon's contention that the closeness of his attorney's appointment to the time of trial denied him effective assistance of counsel. Resolution of this contention requires an examination of the events which preceded the trial, as well as an evaluation of the proceedings at trial. Condon was arrested on June 17, 1970, the day of the shooting. On June 18, 1970, he was brought before a district court judge in Kodiak who advised Condon of his rights, including the right to be represented by appointed counsel if he could not afford to hire a private attorney. The court conducted an inquiry into Condon's financial status and apparently found that Condon was eligible for assistance from the Public Defender. The judge indicated that Herbert Soil of the Anchorage Public Defender's office had been contacted and that he would be coming to Kodiak for Con-don's preliminary hearing. A preliminary hearing was conducted on June 22, 1970. Mr. Soli represented Condon at that hearing. Following the hearing, the judge found that there was probable cause to hold Condon on the charge of manslaughter. Subsequently, a grand jury returned an indictment charging Condon with first degree murder. Condon was thereafter arraigned in superior court on August 14, 1970, and was represented at the arraignment by the Public Defender Agency. On August 20, 1970, Condon entered a plea of not guilty. On September IS, 1970, the superior court ordered a psychiatric examination of Condon to determine whether or not he was mentally competent to stand trial and assist in his defense. On October 7, 1970, a hearing was held on the question of Condon's mental competency to stand trial. The transcript of this hearing contains the first indication in the record that Condon was having problems with his court appointed counsel. In light of this problem, the court set the hearing over for one week to give Condon an opportunity to straighten out his problems with counsel. On October 14, 1970, the competency hearing was held. Victor Carlson of the Public Defender Agency represented Con-don at this hearing. A psychiatrist testified that in his opinion Condon was not suffering from any major mental illness, and was able to understand the nature of the charge against him. The witness further testified that Condon was able to assist counsel in his own defense. On the basis of this testimony, the court found that Condon was competent to stand trial. Condon then entered a plea of not guilty to the charge of first degree murder. The court stated that it wished to give priority to criminal cases in which the defendant was in custody and inquired of the public defender when he might be ready to go to trial. Mr. Soli, who was also present and who was to try the case, indicated that one week would be sufficient. On October 29, 1970, a hearing was held on a motion to continue the trial because Condon had indicated that he no longer wished to be represented by the public defender. Condon told the superior court judge that there had been a great lack of communication between him and his attorney during the preceding two months. He also stated that with the exception of one day, he had not seen his attorney for as much as 15 minutes at a time. Condon stated that he wished to have another attorney appointed for him. The court then appointed James Johnston to represent Condon. In making the appointment, the court stated: [Johnston has] advised me that he will drop everything and proceed to prepare. It will be necessary, of course, for him to confer with Mr. Soli because if the case is largely prepared, Mr. Johnston will have to discuss with Mr. Soil so that he can be brought up to date and be prepared to go to trial. I've indicated to Mr. Johnston and to the district attorney that it is my intention to bring this case on for trial on the 9th [of November] if Mr. Johnston can be ready. Apparently Mr. Johnston indicated to the court that he was ready to proceed on November 9, 1970, for the trial began on that date. During the voir dire of the petit jury panel, the following exchange took place between Condon and the trial judge: MR. CONDON: . . . It's my understanding that my attorney has approached you for a postponement or a continuance of my hearing and you have denied this. May I ask why? THE COURT: I told Mr. Johnston to make every effort to get ready and if he could — that this included my intervention to allow Mr. Johnston to have access to the information in the district attorney's files. He has advised me that he is ready to proceed and under the circumstances we will proceed. MR. CONDON: Well, Your Honor, as far as I am concerned, I have gained nothing by defending through this attorney, Mr. Johnston, and do care to dismiss him at this time and would like for the court, if it pleases the court, for the court to appoint me another attorney. THE COURT: Well, I'm going to deny that application, Mr. Condon. MR. CONDON: Another thing, I've not had the chance to properly discuss the case with this attorney. He went to Kodiak. He talked to witnesses and things of this sort. I asked him to take me with him. He did not do this. I asked him to talk to certain people up there. He did not. He's also an acquaintance with one of the state's witnesses against me, Isi-dor Cordova, who is a homosexual and it's my understanding that when he was up in Kodiak he talked with Mr. Cordo-va but not in regards to my case. He only spoke with the trooper and Mr. Barnes. He didn't attempt to locate my wife or any of the people in my behalf for defense in my behalf. THE COURT: Just a minute. I've kept abreast of Mr. Johnston. I'm aware of what he's done. He's had access . to the information in the district attorney's files. I understand that's been made available, is this correct, Mr. Walters? At my request he's devoted his sole attention to preparing this case since the last time you appeared here and it was necessary to relieve the public defender's office and appoint Mr. Johnston. THE COURT: I've asked Mr. Johnston, and he's assured me that he's given up everything else that he could in order to prepare for this case and he's ready this morning. The question of whether there has been inadequate time to prepare a defense depends largely upon the circumstances of each case. United States ex rel. Mathis v. Rundle, 394 F.2d 748 (3rd Cir. 1968). Weight will be accorded to trial counsel's assertions that he had adequate time to prepare despite a relatively short period of time between appointment and trial. 394 F.2d at 753. In the instant case, the trial judge indicated that he wished to set the trial approximately 10 days from the date he appointed Mr. Johnston, but further indicated that he would consider a request for additional time. Mr. Johnston stated that he was ready for trial and did not request additional time. Prior to trial, he consulted with witnesses in Kodiak, discussed the case with the public defender who for several months had represented Condon, and also discussed the case with Condon personally. Mr. Johnston talked the case over with the prosecutor and pri- or to trial examined the contents of the prosecutor's file. Following the trial, Mr. Johnston averred that he could not "think of anything he might have done, but did not do, which could have aided either the preparation or the trial of this matter." Our analysis of the record of the seven-day trial leads us to the conclusion that Johnston defended Condon vigorously and in a professional manner. In light of the totality of these circumstances, we cannot conclude that Condon was denied effective assistance of counsel because his trial counsel was appointed 10 days prior to the actual commencement of the trial. This leads us to examination of the second facet of Condon's claim that he was denied effective assistance of counsel. Here Condon asserts that he received an inadequate defense because "the only just and obviously proper defense . was one of diminished responsibility or lack of capacity to commit .murder." We have previously dealt with the question of whether due process rights were violated because the incompetence of counsel rendered ineffective the.legal-.assistance guaranteed an accused in a criminal proceeding. In White v. State, 457 P.2d 650, 653 (Alaska 1969), we said: The criterion employed is that if the conduct of counsel was so incompetent as to deprive his client of a trial in the genuine, sense — making that trial a mockery and a farce. — then the defendant is entitled to a new trial. The 'mockery and farce' test is a relatively stringent one. . . . [W]e must consider the entire proceedings and the whole record to decide whether counsel's conduct fell short of the mark. The only workable standard is to determine whether the proceedings as a whole have a judicial character. Particular errors or claimed errors of counsel are not enough. The proceedings must be so tainted that there was an absence of a genuine trial in any reasonable sense. Subsequent to our decision in White, we had further occasion to elaborate upon the constitutional guarantees of effective assistance of counsel. In Dimmick v. State, 473 P.2d 616, 618 (Alaska 1970), Justice Dimond, in speaking for the court, wrote: The right to the effective assistance of counsel requires only that counsel be conscientious and diligent in assisting a defendant in having a genuine trial in a reasonable sense — a trial where the government is put to its burden of proving guilt beyond a reasonable doubt, in accordance with established principles of law and fundamental notions of fair play and substantial justice, (footnote omitted) In this case our study of the whole record leaves us with the conviction that Condon received effective assistance of counsel in the constitutional sense. Through the conscientious and diligent efforts of his trial counsel, Condon was given the benefit of a genuine defensive effort in accordance with established notions of fair play and substantial justice. The entire trial was judicial in character and as such was the very antithesis of the "mockery and farce" standard. More particularly, we hold that trial counsel's reliance on the defense of self defense was tactically justified. The record reveals a sufficient evidentiary basis for a good faith assertion of the defense of self defense. On the other hand, it is not apparent from the facts appearing in this record that the defense of diminished capacity, or temporary insanity, could have reasonably been tendered. The cases generally are in agreement that an attorney's choice of defense theory ordinarily will not be subject to a claim of denial of effective assistance of counsel. In People v. Fain, 70 Cal.2d 588, 75 Cal.Rptr. 633, 639, 451 P.2d 65, 71-72 (1969), the court said: Defendant next challenges the competency of his trial counsel. The very transparency of the alibi testimony, the defendant now asserts with the clarity of hindsight, indicates that an alibi defense should have been abandoned. Specifically, defendant charges that the defense should have been centered on diminished capacity, not alibi. It is noteworthy that defendant initially entered a plea of not guilty by reason of insanity; before trial, he withdrew the insanity plea in favor of a not guilty plea. Pretrial psychiatric reports, defendant concedes, revealed the possible presence of a diminished capacity defense. The fact that an insanity plea was entered suggests that a defense structured on . [diminished capacity] did receive consideration, but counsel ultimately rejected dependence upon that defense. We cannot conjecture, of course, on the reason for this decision. In presenting the defense of alibi, counsel vigorously cross-examined prosecution witnesses, called witnesses on his client's behalf, put defendant on the stand to testify under oath concerning his alibi, and extensively summarized the defense in arguments to the jury. Defendant cannot now be heard to complain because his chosen defense was not successful and his sworn testimony disbelieved. Also of significance is Pamanet v. State, 49 Wis.2d 501, 182 N.W.2d 459 (1971). There the defendant was convicted of caus ing great bodily harm to another human being by conduct imminently dangerous to another and evincing a depraved mind, regardless of human life. On appeal, defendant argued that he was denied effective assistance of counsel in that his trial counsel failed to make intoxication the principal defense, but instead relied on self defense. The court stated: Trial counsel tried the case on the theory of self-defense, electing not to dilute such defense with the claim of the high degree of intoxication necessary to negative the existence of a state of mind required by the offense. He was not required to do so. 182 N.W.2d at 466 (footnote omitted) The facts in the record which Condon has asserted show a mental state that would have supported a defense of temporary insanity or diminished capacity are not of the order of the factual allegations presented to the court in Brubaker v. Dickson, 310 F.2d 30 (9th Cir. 1962). We also note that the prosecution's case against Condon was rather strong. Three eye-witnesses testified that Condon shot Biehn as Biehn was merely reaching for his rifle. Such circumstances are also relevant in determining whether Condon received effective assistance of counsel. The court stated in United States ex rel. Crispin v. Mancusi, 448 F.2d 233, 234 (2d Cir. 1971): In evaluating this contention [denial of effective assistance of counsel], we start by examining the strength of the prosecution's case. If that case is overwhelming, there may be little that defense counsel can do, and counsel will very likely be faulted by the dissatisfied client either for doing too much or too little. In light of the foregoing, we hold that Condon was not denied effective assistance of counsel because his trial counsel did not raise the defense of diminished capacity or temporary insanity. One issue remains to be considered. Condon has also appealed the 20-year sentence he received upon his conviction of the crime of second degree murder. We do not agree with Condon that the sentence imposed is excessive. Under the standards first articulated in State v. Chaney, 477 P.2d 441, 444 (Alaska 1970), we are unable to conclude that the trial court was either clearly mistaken in imposing the 20-year sentence, or that such sentence was beyond the zone of reasonableness considering the gravity of the offense and Condon's background. We believe that the following portions of the trial court's comments made at the sentencing proceedings justify affirmance of the 20-year sentence imposed for second degree murder. In passing sentence upon Condon, the trial judge said in part: The minimum sentence established by law is 15 years. The maximum sentence is of course up to life. . . . First as I understand there's one prior conviction of a violation of the dire [ííc] act. I consider it under the circumstances here there was some provocation prior to the shooting of Mrs. Con-don admitted sexual relationship with the deceased. Thereafter the defendant administered a beating to his wife, armed himself and went to the quonset hut occupied by the deceased and his family. I've reviewed the statements excluding the statement of the defendant and I've reviewed the psychiatric report. The conclusions of the psychiatrist are these: superficial charm, an absence of delusions, may be somewhat paranoid, shows little anxiety. The individual is unreliable, often will convince others of his reliability and then repeat the act. He is unusually untruthful but convinces others of his sincerity. So he lies convincingly, shows a lack of remorse or sha — shame about an act, often will brag about it. Often exhibits anti-social behavior, is inadequately motivated, main excuses are offered for failure, judgment is poor, fails to learn by experience. Often humanistic usually has a limited capacity to love others showing a strong self-love. Often shows the general poverty in sharing major cat — catastrophic situations involving others, has a specific loss of insight with little awareness of the trouble he causes others. Responds poorly in any personal relationship shows other interests and does not want to get too involved, often will get drunk and act out sexual attachments or casual, may be homosexual or heterosexual, often a job jumper, that is gets mad, blows up and quits. . . . I— I don't consider any statement or opinion by the arresting officer as being of any significance and I combine my — the facts and the conclusions upon which I draw for the purpose of sentencing to the psychiatric report, to the statements and what I've heard in the trial in this case. I think the conclusions of the psychiatrist are born out to a considerable degree. During the events that led to the shooting, 2 children and the wife of the deceased and Isidor [Cordova] were present. The manner in which the defendant conducted himself created an extreme danger to those persons as well as the object of his anger. . I take into consideration the seriousness of which— of the act itself. Homicide is always a matter of the utmost gravity. I have taken into consideration the provocation and have indicated the psychiatric report and the statements and the testimony given at the time of the trial. I believe in this instance that the deterrent factor has to be strongly considered, that taking these factors into consideration, it's my judgment that the defendant shall be sentenced to a period of 20 years in the penitentiary. In light of the foregoing, we think that the trial court's sentence was appropriate and warrants affirmance. The judgment and sentence entered below are affirmed. BOOCHEVER, J., not participating. . During this 20 minute period, Condon at the very least slapped his wife, if not striking her harder. .Gafford v. State, 440 P.2d 405, 408 & n. 16 (Alaska 1968), cert. denied, 393 U.S. 1120, 89 S.Ct. 996, 22 L.Ed.2d 125 (1969). There was no specific evidence in the record that Condon had used a pistol or a belt buckle to produce the bruises that his wife sustained. Apparently the prosecutor anticipated that Mrs. Condon would testify as to these matters, but on the claim of marital privilege by Condon, she was not permitted to testify. From our reading of the record, it seems reasonable to infer that the district attorney was acting in good faith in attempting to get Condon to admit that he did more than merely "backhand" his wife, and that the bruises sustained by Mrs. Condon were received from him rather than Peter Biehn. . Although the admission of the photographs into evidence was specified in Condon's Statement of Points on Appeal, this issue was not mentioned at all in the argument portion of his brief. In past decisions this court has refused to consider points that have been inadequately briefed. Lewis v. State, 469 P.2d 689, 691 & n. 2 (Alaska 1970); McIntyre v. State, 379 P.2d 615, 618 (Alaska 1963). . Accord, Sleziak v. State, 454 P.2d 252, 260-261 (Alaska), cert. denied, 396 U.S. 921, 90 S.Ct. 252, 24 L.Ed.2d 202 (1969); Maze v. State, 425 P.2d 235, 239-240 (Alaska 1967); Watson v. State, 387 P.2d 289, 294 (Alaska 1963); McIntyre v. State, 379 P.2d 615, 617-618 (Alaska 1963). . With respect to the question regarding Mrs. Condon's age at the time she married . Condon, Condon's counsel objected to the question and the court overruled the objection. .Assuming the question lacked relevance, the admission of this evidence was harmless error under the criteria of Love v. State, 457 P.2d 622 (Alaska 1969). . We believe Condon's reliance on our decision in Klockenbrink v. State, 472 P.2d 958 (Alaska 1970), is misplaced. There the trial court denied a continuance which had been sought to enable defendants to be represented by counsel of their choice. We held that denial to be an abuse of discretion. In regard to Eloeken-brink's applicability to the case at bar, we think it sufficient to note that there is a significant distinction between denial of counsel of one's choice and the denial of effective assistance of counsel appointed by the state or court. See Anderson v. State, 3 Md.App. 362, 239 A.2d 579 (1968). . Our holding is not to be construed as approving as a matter of general calendar practice the appointment of counsel and scheduling of a trial of a serious offense in such close proximity. All we hold in the instant case is that under the particular factual circumstances of this record we cannot find that the timing of the trial in relation to trial counsel's appointment denied Condon his constitutional right to the effective assistance of counsel in his defense. Doe v. State, 487 P.2d 47 (Alaska 1971), is distinguishable from the instant case. In Doe, we held that it was error to set an adjudication hearing only one day after the delinquency petition was filed. We further held that the trial court abused its discretion in allowing Doe only a two-day continuance, over a weekend, where the court was aware that Doe's counsel had to prepare another children's hearing that was to commence the same day as Doe's. Condon had notice of the charges against him and had been represented by the Public Defender Agency for some four months prior to Mr. Johnston's appointment. Mr. Johnston had the benefit of not only the public 'defender's file in Condon's case but the- district attorney's file as well. Johnston indicated to the court that he was prepared for trial on November 9, 1970, while Doe's counsel insisted at the time of the adjudication hearing that he had not had sufficient time to prepare an adequate defense. Further, Mr. Johnston devoted all of his time to Condon's case between his appointment and the commencement of the trial. • : . See also Johnson v. State, 486 P.2d 379 (Alaska 1971); Thessen v. State, 454 P.2d 341, 352 (Alaska 1969), cert. denied, 396 U.S. 1029, 90 S.Ct. 588, 24 L.Ed.2d 525 (1970); Anderson v. State, 438 P.2d 228 (Alaska 1968). . Prior to trial counsel's appointment, the public defender had employed the theory of self defense at Condon's preliminary hearing. . In Brubaker, the petition for habeas corpus alleged numerous facts gathered primarily after the trial that indicated the existence of a diminished capacity defense. Electroeneephalographie tests showed that the defendant had organic brain damage. Medical opinion indicated that the brain damage made the defendant prone to seizures of a type often associated with abnormal behavior. A psychiatric opinion based on post-trial examinations showed that the defendant was not insane, but had a compulsive personality marked by strong emotional instability. The record indicated that the defendant had been drinking heavily prior to the homicides and that he was hypersensitive to alcohol. At trial, defense counsel called no witnesses as to either the defendant's mental state or any other matter. He did not consult with the defendant during the trial or between court sessions. Defense counsel argued that the defendant did not have the necessary intent for first degree murder, but relied only on the details of the physical evidence of the crime and of the defendant's confessions. During the penalty phase of the trial, counsel offered no evidence in mitigation of the penalty. Based on the post-trial allegations of organic brain damage, the court determined that substantial evidence in mitigation was available and could have been secured by reasonable diligence. The Bru-baker court stated: [Effective assistance of counsel] does not mean that trial counsel's every mistake in judgment, error in trial strategy, or misconception of law would deprive an accused of a constitutional right. . . . Determining whether the demands of due process were met in such a case as this requires a decision as to whether 'upon the whole course of the proceedings,' and in all the attending circumstances, there was a denial of fundamental fairness; it is inevitably a question of judgment and degree. The defense actually tendered was so insubstantial in relation to those not offered as to cast doubt upon the hypothesis that trial counsel made a deliberate informed choice. 310 F.2d at 37-38 (footnotes omitted). The court held that the defendant's allegations, if true, precluded the presentation of his available defenses through no fault of his own, and thus rendered his trial fundamentally unfair; the court ordered a hearing on the petition in the district court. . Compare Mead v. State, 445 P.2d 229, 233 (Alaska 1968), cert. denied, 396 U.S. 855, 90 S.Ct. 117, 24 L.Ed.2d 104 (1969), where in rejecting appellant's contention that he was denied effective assistance of counsel, we said: But the state's evidence against appellant was of an overwhelming nature pointing to appellant's guilt, and we do not perceive anything that counsel might have done differently so that it could be said that his failure to do so resulted in appellant being deprived of a crucial defense, (footnote omitted) . The statutory minimum for second degree murder is 15 years' imprisonment. The maximum punishment is life imprisonment. AS 11.15.030. . In the past we have affirmed sentences that called for lengthy periods of incarceration when the antisocial conduct involved death or great danger to the personal safety of others. E. g., Bowie v. State, 494 P.2d 800 (Alaska 1972) (five years for attempted robbery); Gregory v. State, 492 P.2d 108 (Alaska 1971) (seven years with three suspended for manslaughter); Robinson v. State, 492 P.2d 106 (Alaska 1971) (ten years for robbery); Johnston v. State, 489 P.2d 134 (Alaska 1971) (eight years with three suspended for robbery); Gray v. State, 487 P.2d 680 (Alaska 1971) (life imprisonment for first degree murder).

10556657

Charles Grier McCOY, Appellant, v. STATE of Alaska, Appellee

McCoy v. State

1971-11-30

No. 1316

127

143

491 P.2d 127

491

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:13.332373+00:00

CAP

Before BONEY, C. J., and DIMOND, RABINO WITZ, CONNOR and ERWIN, JJ-

Charles Grier McCOY, Appellant, v. STATE of Alaska, Appellee.

Charles Grier McCOY, Appellant, v. STATE of Alaska, Appellee. No. 1316. Supreme Court of Alaska. Nov. 30, 1971. William H. Fuld, Kay, Miller, Libbey, Kelly, Christie & Fuld, Anchorage, for appellant. G. Kent Edwards, Atty. Gen., Juneau, Harold W. Tobey, Dist. Atty., Charles M. Merriner, Asst. Dist. Atty., Anchorage, for appellee. Before BONEY, C. J., and DIMOND, RABINO WITZ, CONNOR and ERWIN, JJ-

10119

61174

OPINION ERWIN, Justice. Appellant Charles Grier McCoy brings his appeal from his conviction of the crime of unlawful possession of cocaine. After trial by jury McCoy was found guilty and sentenced to four years' imprisonment. Before trial appellant moved to suppress the cocaine which was taken from his person on the ground that its seizure was unlawful. McCoy's suppression motion was denied. In this appeal the only error specified is the superior court's denial of the motion. At the suppression hearing McCoy testified that he went to the Anchorage International Airport to catch a flight to Seattle. When he presented his ticket to a Western Airlines counter employee, the police arrested him for attempting to pass a forged document, handcuffed him, and, while still in the terminal building, searched him, finding nothing. At this same time, the police removed McCoy's two pieces of luggage which were on the conveyor belt at the Western Airlines counter. The police then took him to the Anchorage Police Station. In an interrogation room at the sta-tionhouse his handcuffs were removed and Officer Weaver ordered him to empty the contents of his pockets onto a table. McCoy stated that Officer Weaver also asked him for his jacket, which at the time was draped over the back of the chair on which McCoy was seated. In the pocket of the jacket, Officer Weaver found a package of cocaine which subsequently furnished the basis of McCoy's drug conviction. McCoy further testified that he was not served with an arrest warrant or a search warrant during the period from his arrest up to and including the time Officer Weaver searched the pocket of his jacket. At the suppression hearing the trial court also heard testimony from Officers Ronald Rice and George Weaver of the City of Anchorage Police Department. Officer Rice 'testified that a man named Rund had been rolled in a house of prostitution and his credit card stolen. He further testified that a Western Airlines plane ticket in the name of "R. Jackson" had been purchased with the stolen credit card. The officers stated they went to the Anchorage International Airport and requested a ticket agent at the Western Airlines counter to let them know when the "R. Jackson" ticket was presented. The police were subsequently notified that a reservation for "R. Jackson" had been made for a 10 o'clock flight the next morning. The next morning McCoy presented the "R. Jackson" ticket at the Western Airlines counter and was arrested. Officer Rice told' McCoy he was under arrest for passing a forged instrument. While McCoy was in the interrogation room at the City of Anchorage Police Station, Officer Rice went to the district attorney's office to initiate procedures to obtain search warrants covering McCoy's two pieces of luggage and his Anchorage residence. Rice obtained the warrants and carried out the searches. Officer George Weaver testified to the same facts pertaining to the arrest. Concerning the events which transpired in the interrogation room, Officer Weaver testified that McCoy was taken into the inter rogation room at about 9:30 a. m., his handcuffs were then removed, and he was told to empty his pockets. Weaver then searched the pockets of McCoy's jacket, which had been on the back of McCoy's chair, and found a small packet wrapped in aluminum foil and covered with plastic. Officer Weaver opened the packet and found "a white crystalline substance." Officer Weaver's testimony also disclosed that his search of McCoy was not the standard booking inventory. This was performed later by the jailer. Weaver did not inventory the items he observed, except to list the serial numbers of McCoy's money to check against a list. When he commenced the search, Weaver had no reason to believe that McCoy possessed narcotics. On the other hand, Officer Weaver did testify that his search of McCoy was reflective of standard procedures when prisoners are brought into the interrogation room prior to their being booked into jail. Weaver stated that he returned to McCoy all of his possessions except the cocaine. Weaver further stated that McCoy's possessions were subsequently taken by the jailer when McCoy was booked. In this appeal McCoy urges three points in support of his single specification of error that the trial court ruled incorrectly in refusing to grant his motion to suppress. He first argues that the airport arrest was unlawful because the police did not act pursuant to a warrant for his arrest and lacked probable cause to arrest him without a warrant. Second, he contends that the search in the interrogation room at police headquarters was too remote to qualify as a search incident to his arrest. Finally, he argues that even if the search of his jacket pocket was incident to his arrest, it became impermissibly intense when the officer opened that package that was found to contain the cocaine. I. ARREST AS 12.25.030 provides that a peace officer without a warrant may arrest a person (1) for a crime committed or attempted in his presence; (2) when the person has committed a felony, although not in his presence; (3) when a felony has in fact been committed, and he has reasonable cause for believing the person to have committed it. McCoy contends that since there was no evidence connecting him with the theft of Rund's credit card, or with the subsequent use of this credit card to obtain a ticket from Western Airlines for "R. Jackson", the police lacked probable cause for any belief that he used Rund's credit card to obtain the ticket in question. In Brinegar v. United States, the Supreme Court of the United States defined the term "probable cause" in the following manner: Probable cause exists where 'the facts and circumstances within their [the officers'] knowledge, and of which they had reasonably trustworthy information, [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed. On the basis of the record made at the suppression hearing, we believe that the police had probable cause to arrest McCoy. Officer Rice testified that his superior officer on the evening prior to McCoy's arrest had informed him that a man named Rund had been assaulted at a house of prostitution in Anchorage, and that his credit card had been stolen. Rice was further in formed that someone using Rund's credit card had purchased a ticket from Western Airlines in the name of "R. Jackson". From the foregoing, we conclude that the Anchorage Police had probable cause to believe that the person who was in possession of the "R. Jackson" ticket and who had just presented the ticket at the Western Airlines counter was the same person who had used the stolen Rund credit card to purchase the "R. Jackson" ticket. Thus, McCoy was lawfully arrested pursuant to AS 12.25.030 (3). Furthermore, we think it reasonable for the police to have inferred that in obtaining a ticket from Western Airlines the purchaser of necessity had to sign Rund's name, in order to successfully use the credit card. Given this inference, there appears to have been probable cause for the belief that the person who used the Rund credit card was guilty of forgery or uttering a forged instrument. Admittedly McCoy could have come by the "R. Jackson" ticket in some perfectly innocent manner. It is also possible that there was more than one person who purchased an "R. Jackson" ticket. Yet these possibilities do not negate the facts and circumstances within the officers' knowledge which supplied the probable cause basis for their belief that McCoy had committed a felony. In order to effect a lawful arrest without a warrant under AS 12.25.030(3), it is not necessary that at the time the arrest is made the peace officer have suffi-icient evidence for conviction. We think AS 12.25.030(3) must be given a reasonable construction. Thus, we hold that under AS 12.25.030(3) a peace officer, without a warrant, may arrest a person for a felony when the officer has probable cause to believe that a felony has been committed and probable cause to believe that the person committed it. II. SEARCH IN INTERROGATION ROOM McCoy next raises several complex questions concerning the interrogation room search of the pocket of his jacket. It is clear that Officers Weaver and Rice could have, without a search warrant, lawfully searched the pocket of McCoy's jacket when they arrested McCoy at the airport. McCoy asserts that the interrogation room search was- too remote in time and place to the arrest to qualify as a search incident to an arrest. On this record we hold that the search conducted at the stationhouse was incident to the arrest. In United States v. DeLeo a warrantless search similar to the one carried out in the case at bar was upheld. There an FBI agent arrested appellant in a drug store pur suant to an arrest warrant. The agent searched DeLeo for weapons in the drug store and then transported him to local FBI headquarters where another search was made. DeLeo argued that the second search was too remote in time and place to be incident to his arrest. The First Circuit disagreed holding that the fact that a suspect, arrested in a public place, has been subjected only to a hasty search for obvious weapons has a reasonable nexus with the necessity of conducting a more deliberate search for weapons or evidence just as soon as he is in a place where such a search can be performed with thoroughness and without public embarassment to him. (citation omitted) While the legal arrest of a person should not destroy the privacy of his premises, it does — for at least a reasonable time and to a reasonable extent— take his own privacy out of the realm of protection from police interest in weapons, means of escape, and evidence. Were this not to be so, every person arrested for a serious crime would be subjected to thorough and possibly humiliating search where and when apprehended, (citation omitted) We see no constitutional mandate for such a practice. (footnotes omitted) The view of the First Circuit that a search which is conducted at the station-house within a reasonable time of the arrest qualifies as a search incident to an arrest has wide support in the case law. We find the reasoning of DeLeo persuasive. We therefore adopt the rule that a search of an arrestee remains incident to an arrest when it is conducted shortly thereafter at the.jail or place of detention rather than at the time and place of arrest. On the facts of the case at bar, we conclude that the interrogation room search of McCoy's jacket pocket was incident to his arrest at the airport. III. INTENSITY OF SEARCH McCoy argues that even though a search of his jacket pocket may have been authorized as a search incident to an arrest, the scope of the search became impermissi-bly intensive when Officer Weaver opened the plastic wrapped foil packet which the officer found in the pocket of his jacket. It is contended that once the foil packet was removed from McCoy's control, the police officer was not endangered by any weapons that might have been concealed in the foil packet, and that any evidence in the foil packet was safe from destruction. In such circumstances, McCoy argues that in order to look inside the packet Officer Weaver should have first obtained a search warrant. This argument raises the most troublesome questions presented in this appeal, and has provoked considerable disagreement among the members of this Court. Any attempted answer must, of course, first consider the United States Supreme Court's interpretation of the Fourth Amendment since its decisions are binding upon the respective states. The Fourth Amendment states : The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be • violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. In interpreting this language, the Supreme Court has held that the principle of antecedent justification is so central to the Fourth Amendment that subject only to a few specifically established and well-delineated exceptions "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment. " In this case, however, we deal with a long-recognized exception to the warrant requirement for searches of the person incident to a valid arrest. For a time the exception, which reached its zenith in United States v. Rabinowitz, was read more broadly than the rule. Ra-binowitz upheld a warrantless search of the desk, safe and file cabinets in the office where the defendant was arrested. The Court held that since the items seized were in an area within the defendant's "immediate control" the search was reasonable, the relevant test being not whether it was reasonable to obtain a search warrant beforehand, but rather whether the search itself was reasonable. It is not surprising, given the permissiveness of the Ra-binowitz rule, that police timed their arrests carefully in order to indulge in extensive general searches of the place where defendant was arrested, often his home. This practice was condemned, however, in Chimel v. California which severely limited the permissible scope of the search incident to an arrest exception to the Fourth Amendment warrant requirement and which is consequently the most appropriate point of departure for our analysis of the search of the packet. In Chimel, after the defendant was arrested in his home for burglary pursuant to a valid arrest warrant, the police officers conducted an extensive warrantless search of his home and uncovered various items which were subsequently introduced at defendant's trial over his objection. The United States Supreme Court reversed the California Supreme Court which had held that the warrantless search of defendant's home was justified as incident to a valid arrest. The Court held that since the search went far beyond defendant's person and the area into which he could reach to obtain a weapon to harm the officer or escape or evidence which he might conceal or destroy that it was unreasonable under the Fourth and Fourteenth Amendments. In setting out the boundaries of the area which could be searched under the search incident to an arrest exception, the Court in Chimel relied on the two rationales for the exception suggested by Justice Frankfurter in his dissent in United States v. Rabinowitz. Frankfurter suggested the exception was necessary first, in order to protect the arresting officer and to deprive the prisoner of potential means of escape and, secondly, to avoid destruction of evidence by the arrested person. From this it follows that officers may search and seize not only the things physically on the person arrested, but those within his immediate physical control. Thus, in Chimel the Court said: [I]t is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. There is ample justification, therefore, for a search of the arrestee's person and the area 'within his immediate control' . There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs . Since there was no danger that Chimel would obtain weapons or destructible evidence from areas of the house outside his immediate control, the Court' held the search was "unreasonable" under the Fourth and Fourteenth Amendments. Our dissenting brothers suggest that Frankfurter's twin rationales also supply the analysis for judging the propriety of searches of the arrestee's person as well as his environs. They reason that after the officer had taken possession of the packet there was no danger that McCoy might remove from it a weapon, an implement of escape, or destructible evidence. Consequently, they argue, the exigency justification of the search evaporated and the warrant requirement attached. We do not believe that this is a correct interpretation of Chimel. While it is clear from Chimel that the twin rationales suggested by Frankfurter supply the appropriate analytic scheme to define the area "within [the arrestee's] immediate control", it by no means follows that they also supply the appropriate analysis for limiting searches of the arrestee's person; further, there is language in Chimel which suggests that the court did not intend them to do so. Chimel was concerned not with searches of the person, but with the wide-ranging warrantless searches of dwellings which Rabinowitz had legitimized on the ground that it was the "place" where the arrest occurred. The scope of the problem prior to Chimel is apparent from a reading of Harris v. United States, which upheld the introduction of evidence from a five-hour warrantless search of a four-room apartment as incident to an arrest in the apartment. Thus, while Chimel overruled Rabinowitz and Harris, the Court was careful to distinguish Weeks v. United States, in which Justice Day had stated in dictum that English and American law had always recognized the power "to search the person of the accused when legally arrested, to discover and seize the fruits or evidences of the crime." Moreover, the passage from Chimel quoted above and the following passages support the conclusion that the Court did not intend to limit the intensity of searches of the person incident to a lawful arrest but was concerned instead only with limiting searches of the area surrounding him when he was arrested: The search here went far beyond the petitioner's person and the area from within which he might have obtained either a weapon or something that could have been used as evidence against him. There zvas no constitutional justification, in the absence of a search warrant, for extending the search beyond that area. The scope of the search was, therefore, 'unreasonable' under the Fourth and Fourteenth Amendments, and the petitioner's conviction cannot stand. (emphasis added) No consideration relevant to the Fourth Amendment suggests any point of rational limitation, once the search is allowed to go beyond the area from which the person arrested might obtain weapons or evidentiary items. The only reasoned distinction is one between a search of the person arrested and the area within- his reach on the one hand, and more extensive searches on the other. (emphasis added) The last two sentences are critical. The Court is saying, it seems to us, that once warrantless searches beyond the area of the arrestee's immediate control are allowed, the Fourth Amendment with its "reasonableness" requirement suggests no rational limits to circumscribe the search. Searches of the person, on the other hand, have their own inherent physical limitations. Thus, there is less danger that this exception to the warrant requirement will become unrestrained. We do not mean to suggest that no limitations on incidental searches of the person would be appropriate, but rather that those dangers of unlimited expansion of the scope of the search present in the case of searches of dwellings are not present here. Chimel, however, would not seem to impose the additional restriction that the incidental search be allowed only when there is danger to the police officer or to the evidence; that opinion was simply not directed at the problem now before this court. A similar reading of Chimel is advanced by the United States Court of Appeals for the First Circuit: We read Chimel as being acutely concerned about the increasing legitimation of wide-ranging warrantless searches of lodgings and buildings based on the fortuity of arrest on the premises, which had been ushered in by United States v. Rabinowitz, (citation omitted). That search of the person was not the evil addressed is apparent from the early references in Chimel, distinguishing Weeks v. United States, (citation omitted) and Carroll v. United States [267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543.] (citation omitted), and from the Court's own lan-gUclge ⅝ ⅝ ⅝ A second point requiring discussion is that to accept appellant's argument that a warrant was required to look inside the packet would require us to fashion a distinction between the power to search and the power to seize which has not been recognized by the cases in this area. McCoy concedes that under Chimel the police had the power to seize the packet to prevent the destruction of its contents or their use against the officers, but argues that a warrant was required before it could be searched. The Supreme Court cases, however, have treated the power to search and the power to seize as concomitants although it is debatable whether the Court has focused upon this issue. Appellant argues, and our dissenting brothers imply, that sup port for the purported distinction between search and seizure can be found in the rationale for the stop-and-frisk cases, Terry v. Ohio, and Sibron v. New York. Thus, in Terry the Court in upholding the introduction of a pistol discovered in a frisk for weapons, cautioned that a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope. The scope of the search must be 'strictly tied to and justified by' the circumstances which rendered its initiation permissible. The exigency having disappeared when the officer seized the packet, the argument runs, the quoted language from Terry would invalidate the search. We do not find this reasoning persuasive. While Si-bron and Terry did require that warrantless searches in stop and frisk situations be no more intensive than necessary to uncover weapons endangering the officer, it does not follow that searches of a person incident to arrest should be similarly limited. The stop and frisk doctrine, a limited exception to the rule that officers can detain a person only on probable cause, is designed to aid police officers in street encounters where suspicious circumstances exist not amounting to probable cause. After a proper arrest on probable cause, however, the same reasons for so severely limiting the search are not present. The scope of a protective search for weapons in a stop and frisk situation should be more limited than a search incident to an arrest, for even under the dissent's reading of Ckimel an additional justification is present, namely, the need to prevent the destruction of evidence. Further, although in Chimel the Court approved the application of the Terry-Sibron reasoning to the "search incident to arrest" principle, it did so to define the limits of incidental searches of the area surrounding the arrestee at the time of arrest and not to restrain incidental searches of the person. That Sibron and Terry do not support the suggested distinction between the power to search and the power to seize is also a necessary conclusion of a careful reading of the companion case to the decisions, Peters v. New York. Peters was convicted on the strength of burglary tools uncovered in a search of his person for weapons. The search was conducted after the officer had stopped Peters who had been prowling around in the apartment building where the officer lived. Officer Lasky patted Peters down for weapons, and discovered a hard object in his pocket. He stated at the hearing that the object did not feel like a gun, but that it might have been a knife. He removed the object from Peters' pocket. It was an opaque plastic envelope, containing burglar's tools. (Emphasis added) The Court held that the officer had probable cause to arrest Peters and that the search was valid as incident to the arrest. What is important for our purposes, however, is that the burglar's tools were inside an opaque plastic envelope. The Court therefore held that it was proper not only to seize the packet but to look inside and search it incident to Peters' arrest. What the Court did not require was that the officer get a search warrant before he looked inside the packet. This was so even though the Court stated that the search was justified " 'by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime.' " These, of course, are the twin rationales for the Chimel incidental search exception, upon which appellant's argument is based. Thus, even though the officer's possession of the plastic envelope removed the danger to the officer's person and thereby displaced the exigency justification for the search, the Court held it was proper to look inside without a warrant. Such close facts are highly persuasive; they demonstrate that Frankfurter's twin rationales, crystallized into constitutional doctrine by Chimel, do not compel reversal here. Although Peters preceded Chimel, it contains a strong indication that Sibron and Terry will not support the extension of Chimel claimed by the appellant. Several other Supreme Court decisions construing the Fourth Amendment also merit discussion. The first is Chambers v. Maroney which upheld a warrantless search of the automobile in which defendant was arrested after it had been seized and taken to police headquarters. Chambers is relevant for two reasons. The first is that it contains language which would seem to further undermine any foundation for the purported differentiation between search and seizure: Arguably, because of the preference for a magistrate's judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the 'lesser' intrusion is permissible until the magistrate authorizes the 'greater'. But which is the 'greater and which is the 'lesser intrusion is itself a debatable question and the answer may depend on a variety of circumstances. Fcrr constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment, (emphasis added) The second point is that Chambers, by analogy, subverts McCoy's argument that a search of the person incident to an arrest is permissible only if the exigent circumstances justifying the search are present at the time the search is conducted. In Chambers the Court permitted a warrantless search after the automobile had been taken to police headquarters and the danger that it and any evidence it contained might disappear was no longer a factor. It was the apparent mobility of the automobile, stopped on a highway with its occupants alerted, that had persuaded the Court in Carroll v. United States to fashion an exception to the warrant requirement. That the Court in Chambers permitted a later warrantless search even though the mobility factor was no longer present is a strong indication that the Court would not require the exigency to remain extant when dealing with other exceptions to the warrant requirement. The analogy to McCoy's situation is fairly direct. The exigent circumstances were clearly present when the packet was in McCoy's possession at the time of arrest; the search, once justifiable, does not violate the Fourth Amendment remedy because the exigency is removed at the time the search is conducted. The second case is Katz v. United States, apparently cited by appellant for the proposition that he had a reasonable expectation of privacy as to the contents of the packet. We are not persuaded; the difference between a warrantless "search and seizure" of a conversation in a public telephone booth and a search of a packet in the possession of a person arrested for a crime, evidence of which might well have been contained inside, is readily apparent. The words of the United States Court of Appeals for the First Circuit quoted above are worth repeating here : While the legal arrest of a person should not destroy the privacy of his premises, it does — for at least a reasonable time and to a reasonable extent — take his own privacy out of the realm of protection from police interest in weapons, means of escape, and evidence. As a final consideration, it would appear that to place the magistrate between the police and the arrested person by requiring the police to get a warrant before any closed containers on the arrested person are searched, unnecessarily encumbers police investigations without providing any real additional protection for the arrestee. As a commentator in a 1969 law review note stated: What a lawful arrest does justify is the search for fruits, instrumentalities and evidence of the crime for which the arrest is made, and this is so only because the existence of probable cause for the arrest of a person normally justifies probable cause to believe that the suspect possesses such items, (emphasis in original) That would seem to be true at least for crimes evidence of which can be concealed on the person, such as the one with which McCoy is charged. It is difficult to imagine a reasonable and intelligent magistrate refusing to grant a warrant in McCoy's case, for example. The packet might well have contained evidence of the forgery. Since the magistrate can be expected to issue the warrant as a matter of course whenever there is probable cause to make the arrest for a crime evidence of which could be concealed on the person, it would be meaningless and time-consuming to require the police to get a warrant. In this regard, the dissenters to Camara v. Municipal Court and See v. City of Seattle, made the following comments which would seem applicable here: [The majority] would permit the issuance of paper warrants issued by the rubber stamp of a willing magistrate. In my view, this degrades the Fourth Amendment. I ask: why go through such an exercise, such a pretense P Why the ceremony, the delay, the expense, the abuse of the search warrant? (footnote omitted) To require the police to get a search warrant to search the person of every felony arrestee when it is to be expected that the magistrate will always find probable cause that evidence of the crime is on his person, will inundate the magistrates with warrant petitions which will be granted as a matter of course and run the risk that magistrates will not carefully examine the circumstances in more deserving cases. Certainly the Fourth Amendment guarantee against unreasonable searches and seizures is at the very core of the protections needed to preserve democracy against the excesses of government. Consequently, the mere fact of arrest does not ipso facto justify an unlimited search of the person. In defining the boundaries of incident to the arrest exception, however, the need for the exercise of common sense is apparent. Although this opinion must not be read as a return to the Rabinowitz "reasonableness" approach to Fourth Amendment analysis heartily condemned in Chimel, it would seem that once we find ourselves within a recognized exception to the warrant requirement faced with the task of defining its scope common sense is not an inappropriate tool. We think that to require a warrant in the circumstances of this case would be a futile gesture which could hamstring legitimate police action without offering meaningful protection to the arrestee. Adequate protection for the arrestee's legitimate interests in privacy, however, will be provided by the following restrictions on warrantless incidental searches of the person: (1) The arrest must be valid — probable cause for the arrest must exist or the search is unconstitutional. (2) The search must be roughly contemporaneous with the arrest, at least within the boundaries suggested by United States v. DeLeo, and adopted here. (3) The arrest must not be a pretext for the search; a search incident to a sham arrest is not valid. In Taglavore v. United States, for example, where an arrest for a minor traffic violation was used as a pretext to search for marijuana, the court said, "the search must be incident to the arrest, and not vice versa." '*' (4) Finally, the arrest must be for a crime, evidence of which could be concealed on a person. While we are not bound by the United States Supreme Court's interpretations of the Fourth Amendment in expounding the corresponding section of the Alaska Constitution's Declaration of Rights, article I, section 14, we do not find this case to be an appropriate one to expand those rights in Alaska beyond their federal counterparts. The extent of a valid search of a person charged with a crime is limited under our decision. Where there is probable cause to arrest for a particular crime of a type which can be evidenced by items concealed on the person there is little danger of a pretext arrest. In such circumstances the individual's rights of privacy must give way to the public need to investigate the crime. Since the search herein was incident to a valid arrest for the crime of forgery, and evidence of that crime might well have been concealed on McCoy's person, the search of the packet was valid and the conviction based on such evidence was proper. The conviction is therefore affirmed. . According to appellant lie arrived at the Anchorage Police Station approximately 30 to 45 minutes after he liad been arrested at the airport. . McCoy admits that the police informed him that he was under arrest for "attempting to pass a forged document". .Officer Weaver testified that Officer Rice told McCoy he was under arrest for passing a forged instrument. On cross-examination of this witness, it was brought out that in his report Officer Weaver had stated that McCoy's arrest was for accessory to forgery. . In regard to subsection (1) of AS 12.25.-030, we said in Miller v. State, 462 P.2d 421, 425-426 (Alaska 1969), that an arrest is lawful where the peace officer has perceived facts which would lead a reasonable man to believe that the arrestee has committed or attempted to commit an offense in his presence. . 33S r.S. 100, 175-176, 09 S.Ct. 1302, 93 L.Kd. 1879, 1890 (1949). See also Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142, 145 (1964). In Merrill v. State, 423 P.2d 686, 699, n. 58, (Alaska), cert. denied, 386 U.S. 1040, 87 S.Ct. 1497, 18 L.Ed.2d 607 (1967), we cited with approval the Brinegar formulation of probable cause. . Officer Rice further testified that he had received information "that an affidavit of forgery had been obtained from the victim." . R. Perkins, Criminal Raw 318, 345-46 (2nd ed. 1969). See AS 11.25.010. . AS 11.25.020(2). The effective date of the Alaska Credit Card Crimes Act, AS 11.22.010 et seq., was September 30, 1970. McCoy was arrested on January 30, 1970. Consequently, the Alaska Credit Card Crimes Act has no relevance to the disposition of this appeal. . Compare Miller v. State, 462 P.2d 421, 425-426 (Alaska 1969). See Goss v. State, 390 P.2d 220, 223-224 (Alaska), cert. denied 379 U.S. 859, 85 S.Ct. 118, 13 L.Ed.2d 62 (1964) ; Merrill v. State, 423 P.2d 686, 698-699 (Alaska 1967). In Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, 1890 (1949), the Supreme Court of the United States said : In dealing witli probable cause, however, as the very name implies, we deal with probabilities. These are not technical ; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved. 'The substance of all the definitions' of probable cause 'is a reasonable ground for belief of guilt.' (citations omitted) And this 'means less than evidence which would justify condemnation' or conviction ⅜ * ⅜. .422 F.2d 487 (1st Cir.), cert. denied, 397 U.S. 1037, 90 S.Ct. 1355, 25 L.Ed.2d 648 (1970). . Id. at 493. . United States v. Gonzalez-Perez, 426 F.2d 1283, 1287 (5th Cir. 1970) ; United States v. Robbins, 424 F.2d 57, 59 (6th Cir. 1970) ; Cotton v. United States, 371 F.2d 385 (9th Cir. 1967) ; United States v. Clark, 289 F.Supp. 610 (E.D.Pa.1968) ; Annot., 19 A.L.E.3d 727 § 5 (1968). . The record does not indicate if the contraband nature of the foil and" plastic wrapped packet was apparent from its exterior. For purposes of this appeal, we will assume the wrappings were opaque. . Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) ; Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). . Art. I § 14 of the Alaska Constitution is similar. . Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576, 585 (1967) (footnotes omitted). . E. g., Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652, 655 (1914) (dictum). . 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950). . Id. at 66, 70 S.Ct. at 435, 94 L.Ed. at 660. . Note, Scope Limitations for Searches Incident to Arrest, 78 Yale L..T. 433, 435 (1969). . 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). . 339 U.S. 56, 68, 70 S.Ct. 430, 437, 94 L.Ed. 653, 661 (1950). . Id. at 72, 70 S.Ct. at 438, 94 L.Ed. 663-664. . 395 U.S. at 763, 89 S.Ct. at 2040, 23 L.Ed.2d at 694. . Id. . 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947). . 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). . Id. at 392, 34 S.Ct. at 344, 58 L.Ed. at 655. . 395 U.S. at 768, 89 S.Ct. at 2043, 23 L.Ed.2d at 697. . Id. at 766, 89 S.Ct. at 2041, 23 L.Ed.2d at 695-696 (footnotes omitted). . United States v. DeLeo, 422 F.2d 487 (1st Cir.), cert. denied, 397 U.S. 1037, 90 S.Ct. 1355, 25 L.Ed.2d 648 (1970) (footnotes omitted). See also the quote from DeLeo at n. 10, infra. . See also United States ex rel. Muhammad v. Mancusi, 432 F.2d 1046 (2nd Cir. 1970), cert. denied 402 U.S. 911, 91 S.Ct. 1391, 28 L.Ed.2d 653 (1971), and People v. Bevlin, 275 Cal.App.2d 955, 80 Cal.Rptr. 382 (1969). In Muhammad the court upheld a warrantless search of an arrestee's wallet and briefcase made at FBI headquarters after defendant had been arrested at another location and there subjected to a cursory search. In Bevlin the court argued that Chimel permits searches of such "normal extensions" of a person as a woman's purse or a man's briefcase even though they were not in the arrestee's immediate possession at the time of arrest. It is not necessary here, however, to consider the propriety of such searches. . 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). . 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). . 392 U.S. 1, 18-19, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889, 903-904 (1968). . See generally LaFave, "Street Encounters" and the Constitution: Terry, Sibron, Peters and Beyond, 67 Micli.U. Rev. 39 (1968). . 395 U.S. at 762-763, 89 S.Ct. at 2039-2040, 23 L.Ed.2d at 693-694. . 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). . Id. at 49, 88 S.Ct. at 1895, 20 L.Ed. at 927. . Id. at 67, 88 S.Ct. at 1905, 20 L.Ed.2d at 937, quoting from Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777, 780 (1964). . There was no dissent in Peters, although there was considerable disagreement about the Sibron reversal. . 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). . Id. at 51-52, 90 S.Ct. at 1981, 26 L.Ed.2d at 428. . 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). . The dissenters quote the following passage from Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564, 576 (1971) in support of their argument that there can be no war-rantless incidental search once the exigent circumstances have disappeared: 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.' The exceptions are 'jealously and carefully drawn,' and there must be 'a showing by those who seek exception ⅜ that the exigencies of the situation made that course imperative.' It is clear, however, that the plurality opinion in Ooottdge did not overrule Chambers. In footnote 20 tlie Court took special pains to distinguish Chambers. It is true that the actual search of the automobile in Chambers was made at the police station many hours after the ear had been stopped on the highway, when the car was no longer movable, any 'exigent circumstances' had passed, and, for all the record shows, there was a magistrate easily available. Nonetheless, the analogy to this case is misleading. The rationale of Chambers is that given a justified initial intrusion, there is little difference between a search on the open highway and a later search at the station. Here, we deal with the prior question of xohether tlie initial intrusion is justified. The invalidity of the Coolidge search centered around the fact that there were never any exigent circumstances. McCoy's situation is thus more closely analogous to Chambers than to Coolidge because at the time of arrest, when the packet was in McCoy's possession, the exigency was present. . See also United States v. DeLeo, 422 F.2d 487 (1st Cir.), cert. denied, 897 U.S. 1037, 90 S.Ct. 1355, 25 L.Ed.2d 648 (1970). . 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). . United States v. DeLeo, 422 F.2d 487, 493 (1st Cir.), cert. denied, 397 U.S. 1037, 90 S.Ct. 1355, 25 L.Ed.2d 648 (1970). . Note, Searches of the Person Incident to Lawful Arrest, 69 Colum.L.Rev. 866, 871 (1969). . 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). . 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). . M. at 547-548, 554, 87 S.Ct. at 1742, 1745, 18 L.Ed.2d at 949, 952-953 (1967). . See, e. g., Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960), Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958). . 422 F.2d 487 (1st Cir.), cert. denied, 397 U.S. 1037, 90 S.Ct. 1355, 25 L.Ed.2d 648 (1970). . See Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964) ; cf. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). See also, Vale v. Louisiana, 399 U.S. 30, 33, 90 S.Ct. 1969, 26 L.Ed.2d 409, 413 (1970). . 291 F.2d 262, 265 (9th Cir. 1961) (emphasis in original). . See also, Note, Scope Limitations for Searches Incident to Arrest, 78 Yale L.J. 433, 435 n. 14 (1969) ; Note, Searches of the Person Incident to Lawful Arrest, 69 Colum.L.Rev. 866, 870-S0 (1969). . See State v. Elkins, 245 Or. 279, 422 P. 2d 250 (1966). This will operate to prevent unlimited incidental searches in cases of arrests for minor offenses. As one commentator noted: While in most felony eases the incidental search may well turn out to be reasonable, the nexus between the item to be seized and the criminal behavior involved is more difficult to establish in cases involving arrest for such offenses as traffic violations and vagrancy. Automatic application of the incidental search doctrine in such cases may well result in the sanctioning of unreasonable searches in individual cases, contrary to the requirement of the fourth amendment. 69 Colum.L.Rev. at 871. . See Roberts v. State, 458 P.2d 340, 342 (Alaska 1969). . Our disposition of the case makes unnecessary any decision as to the proper scope of an inventory-booking search of a prisoner immediately prior to his physical incarceration. From the testimony offered at the suppression hearing, it is clear that the interrogation room search by Officer Weaver was not part of the customary inventory-booking search procedures at the jail. . The Fourth Amendment states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

10559313

Marie GRIGGS, Appellant, v. STATE of Alaska, Appellee

Griggs v. State

1972-03-13

No. 1400

795

799

494 P.2d 795

494

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:29.676845+00:00

CAP

Before BONEY, C. J., and RABINO-WITZ, CONNOR and ERWIN, JJ.

Marie GRIGGS, Appellant, v. STATE of Alaska, Appellee.

Marie GRIGGS, Appellant, v. STATE of Alaska, Appellee. No. 1400. Supreme Court of Alaska. March 13, 1972. Meredith A. Wagstaff, Asst. Public Defender, Herbert D. Soil, Public Defender, Anchorage, for appellant. Robert Eastaugh, Asst. Dist. Atty., Sea-born J. Buckalew, Jr., Dist. Atty., Anchorage, John E. Havelock, Atty. Gen., Juneau, for appellee. Before BONEY, C. J., and RABINO-WITZ, CONNOR and ERWIN, JJ.

2316

14176

OPINION CONNOR, Justice. The appellant, Marie Griggs, was convicted of larceny from the person and received a 4-year sentence with 2 years to serve and 2 years on probation. She raises three specifications of error in this appeal: a denial of due process of law in the state's failure to transcribe the grand jury testimony; an abuse of discretion in the court's admission of appellant's prior misdemeanor convictions; and the imposition of an excessive sentence. Appellant's first claim of error is governed by our recent decision in Robinson v. State, 489 P.2d 1271 (Alaska 1971), where we held that failure to record grand jury proceedings does not offend due process of law. Griggs next contends that the court abused its discretion in denying her motion, made before trial, for a protective order to prevent the admission into evidence of her previous misdemeanor convictions. Appellant claims that her prior convictions, which were similar to the crime charged in the present case, had no bearing on her veracity and were likely to have a prejudicial influence on the jury. Griggs was questioned on direct examination by the defense counsel concerning her previous misdemeanor convictions for prostitution and petty theft. The state did not question Griggs on these convictions during its cross-examination. Both the prosecution and defense counsel referred generally to the former convictions again during their summation arguments. However, neither counsel mentioned the nature of the prior convictions at that time. The prosecutor himself advised the jury that they should consider the previous convictions only to the extent they shed light on the defendant's credibility. He told the jury that "under no circumstances" should they convict the defendant because of her previous convictions. The court also instructed the jury that the prior convictions could be used for purposes of impeaching credibility. The fact that the most extensive testimony concerning Griggs' former convictions was elicited by her own counsel should not prejudice appellant's right to claim error in denial of- her motion to prevent admission of these prior convictions. This court noted in Gafford v. State, 440 P.2d 405, 413 (Alaska 1968), the tactic of the defense attorney in examining his own client concerning prior convictions in order to soften the evidentiary weight of such prior convictions when first revealed by the prosecution. When representing a client with a blemished record, defense counsel really has no choice at all. He either must preempt the prosecution by exposing his own client's previous misdeeds or keep the defendant from taking the stand. Thus, defense counsel's tactic in this case was a direct result of the trial judge's failure to grant appellant's motion for a protective order. Under the Alaska Criminal Rules, the trial court has broad discretion whether to permit impeachment of a witness with proof of prior criminal convictions. We will not readily find an abuse of that discretion unless, "a prior conviction negates credibility only slightly, but creates a substantial chance of unfair prejudice. ." The question here is whether it is an abuse of discretion to allow the admission into evidence of prior convictions of a type similar to the crime with which a defendant is charged. This question of impeachment with similar convictions has been before us on two previous occasions. In Scott v. State, 445 P.2d 39 (Alaska 1968) and Parish v. State, 477 P.2d 1005 (Alaska 1970), we upheld the admission of prior convictions which were synonymous with the crime with which the defendant was charged. We see no reason to depart from those previous holdings in the present case. We do not regard the fact that the previous convictions in this case are similar to the crime with which the defendant was charged as creating unfair prejudice. Thus we decline to interfere with the trial court's discretion in this area. It is significant that the prosecutor and the court, in its instructions, stressed to the jury that the previous convictions should be considered only for their bearing upon appellant's veracity. Considering this, and the language of our impeachment rule, we do not find error in the court's ruling. Appellant's final contention of error is that the sentence of two years incarceration followed by two years probation is excessive on the facts of this case. Specifically, appellant contends that the heavy sentence was a result of unfounded and prejudicial inferences derived from police contacts listed in her FBI "rap sheet" and her relationship with her former husband. We have concluded that in the circumstances of this case Marie Griggs' sentence took proper account of the sentence criteria we announced in State v. Chaney, 477 P.2d 441 (Alaska 1970), and was within a "zone of reasonableness". The state mentioned that Griggs had had numerous contacts with the law, seven of which resulted in convictions. The probation officer in his oral report was more specific. He told the court that Griggs had 38 police contacts listed on her "rap sheet". Over the defense counsel's objection, the state briefly discussed a 1964 contact with the police for grand theft, although it was unclear whether this charge resulted in a conviction. What is most interesting, however, is the stated assumption of the prosecuting attorney that he was free to discuss anything on a defendant's "rap sheet" at the sentencing hearing. This sentencing took place prior to our decision in Waters v. State, 483 P.2d 199, 202-203 (Alaska 1971), where we urged the court not to place undue weight in the sentencing process upon unexplained police contacts on a defendant's "rap sheet." We would take this occasion to reiterate our holding in Waters and subsequent cases that the state is not free to refer to a defendant's prior police contacts during the sentencing process. An undue emphasis placed on prior police contacts may make it necessary to remand a case for a new sentencing hearing. In the present case, although it was error to mention Griggs' prior contacts with the police, we have concluded the error was harmless. Griggs had admitted during the course of trial to numerous contacts with the police. In addition it was proper for the court to consider her seven prior convictions when rendering sentence. Since the court already had before it considerable evidence of Griggs' previous encounters with the police, the additional information concerning her police contacts introduced at the sentencing hearing must be deemed harmless. Concerning the references to Mrs. Griggs' former husband, we noted very recently in Robinson v. State, 492 P.2d 106 (Alaska 1971), that we will not consider errors in a presentence report in the absence of an objection by the defendant. No objection was made and thus we find any error waived. Affirmed. . We recently issued Order No. 146, effective October 31, 1971, amending Alaska R.Crim.P. 6 governing grand jury proceedings. The amended Rule 6 requires that all proceedings before the grand jury be recorded. The amendment was not in effect at the time of appellant's grand jury hearing and does not affect the disposition of this case. . Appellant's prior convictions were for petty larceny and prostitution. The circumstances surrounding the larceny in the present case, as described by the victim and the arresting officer, suggest the actions of a prostitute. Griggs first solicited the victim of the larceny. She then sought to distract him by toying with the zipper on his trousers as she reached for his wallet. .Alaska Civ.R. 43(g) (11) (b), Alaska R.Crim.P. 26(a), provides in relevant part: "[A witness may] not be impeached by evidence of particular wrongful acts, except that it may be shown by the examination of the witness or the record of a judgment that he has been convicted of a crime." . Spaulding v. State, 481 P 2d 389, 393 (Alaska 1971). . In Scott the court upheld the admission of prior convictions for prostitution to impeach the veracity of a defendant charged with a prostitution offense. In Parish the court was again faced with a defendant whose veracity was impeached by convictions which were synonymous with the offense charged, in that ease joyriding. . In Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936, 939 (1967), cited with approval in Spaulding v. State at 481 P.2d 389, 393 (Alaska 1971), the court noted that the trial judge's actions in admitting evidence of a defendant's prior convictions "would be reviewable only for an abuse of discretion, and that once the exercise of discretion appeared, the trial court's action be 'accorded a respect appropriately reflective of the inescapable remoteness of appellate review.' This is a recognition that the cold record on appeal cannot present all facets and elements which the trial judge must weigh in striking the balance." (footnotes omitted). . See also Robinson v. State, 484 P.2d 686 (Alaska 1971); Waters v. State, 483 P.2d 199 (Alaska 1971); Gilmore v. State, 479 P.2d 301 (Alaska 1971); Nicholas v. State, 477 P.2d 447 (Alaska 1970). . See also Robinson v. State, 484 P.2d 686, 690 (Alaska 1971); Peterson v. State, 487 P.2d 682, 683 n. 1 (Alaska 1971); Robinson v. State, 492 P.2d 106 (Alaska 1971).

10550954

Michael Allen TARNEF, Appellant, v. STATE of Alaska, Appellee

Tarnef v. State

1973-07-25

No. 1486

923

937

512 P.2d 923

512

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:47.680553+00:00

CAP

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

Michael Allen TARNEF, Appellant, v. STATE of Alaska, Appellee.

Michael Allen TARNEF, Appellant, v. STATE of Alaska, Appellee. No. 1486. Supreme Court of Alaska. July 25, 1973. Herbert D. Soil, Public Defender, Lawrence J. Kulik, Asst. Public Defender, Anchorage, for appellant. John E. Havelock, Atty. Gen., Juneau, Monroe N. Clayton, Dist. Atty., Fairbanks, for appellee. Before RABINOWITZ, C. J., CON-NOR, ERWIN and BOOCHEVER, JJ.

8230

48833

OPINION BOOCHEVER, Justice. On the morning of April 25, 1969, there was an apparent arson at the White Swan, a commercial laundry located in Fairbanks. However, because of an effective sprinkler system in the building, little damage was done. Mr. Alvin Martin, who was then owner of the White Swan, had been an arson victim a year earlier when a laundromat he had owned had been totally destroyed by fire. Martin suspected that John R. Eberhard, a competitor of his, had been involved in both fires. Consequently, Martin published a $5,000 reward offer for information leading to the arrest and conviction of the persons responsible for the fire. In June 1969 the defendant, Michael Allen Tarnef, responded to Martin's ad by calling the listed number and agreed to meet Martin and one William Hagar, manager of the White Swan at the time of the fire. Later that day, Tarnef met Martin and Hagar at the Cushman Street Bridge. Tarnef, using the pseudonym Michael Reily [phonetic] drove around with Martin and Hagar for a period of time and discussed the White Swan fire. Accounts of this conversation offered at trial by the three participants varied considerably. Martin testified that Tarnef stated that Sam Kelly actually set the fire and that a boy named Stretch was also involved. Tarnef testified that he implicated Sam Kelly, Floyd Stretch and Eberhard as well as a Mr. Sims and Mr. Chisolm, but not himself. Hager, however, testified that Tarnef implicated himself as well as the other persons mentioned above. Martin paid Tarnef $380 for this information. Martin related the above to the Fairbanks Police Department and to Mr. Robert Tim-lin, a professional arson investigator from Seattle who had been in Fairbanks on the day of the fire at Martin's request. Martin also contacted Thomas Fenton, a Fairbanks attorney and former district attorney, and asked that he visit Tarnef, who was then incarcerated at Northern Regional Correction Institute on another unrelated charge, and attempt to get a statement from him about the fire. Fenton visited Tarnef at NRCI in July. Fenton testified that in his presence, Martin offered Tar-nef legal counsel to represent him, bail, and additional reward money if Tarnef would make a statement. In addition, Fen-ton testified that he made the following statement to Tarnef: Well I said that it was ah — very doubtful whether they would file any kind of case against Tarnef, that the case — that the people that everybody was interested in would be the people who did the hiring of Tarnef to set the fire. And that if they did file a case ah — they—it'd just be a formality I mean there wouldn't be any kind of trial or any prosecution, just to have a case filed against him. However, Fenton did not succeed in inducing Tarnef to make a statement. Subsequently, Martin and Hagar visited Tarnef at NRCI several times over the next several months. Then, on February 13, 1970, Timlin, the arson investigator from Seattle, went to NRCI with Hagar and succeeded in obtaining a five-page statement from Tarnef. Tarnef's statement was reduced to writing by Timlin, witnessed by Hagar, and signed by Tarnef. Tarnef s statement indicated that he was approached by Eberhard, Chisolm and Sims and offered $2,500 to set the White Swan fire. Tarnef admitted making substantial preparations including hiding a number of cannisters of inflammable liquids near the White Swan, but told his employers at the last minute that he wouldn't do the job. The critical admission made by Tarnef was as follows: The next night, I was talking with Sam Kelly and asked him if he was interested in making some easy money, and when he said yes, we went over to the Polaris lounge and got a hold of Joe Sims — Joe told him what he had to do and they agreed on terms — at this time I left. Timlin testified that although Tarnef apparently wanted to bargain that he made Tarnef no promise of leniency and told him that it "was strictly up to the district attorney" whether he would be granted immunity for "turning so called state's evidence." Timlin also stated that he advised Tarnef of his constitutional rights: A: After the interview with Mr. Tar-nef and prior to the time that the statement was reduced to writing, I informed Mr. Tarnef of his — constitutional rights. Q. What do you mean by his constitutional rights? A: That he had a right not to say anything and that if he did say something it could be used against him, that he had a right to an attorney, that if an attorney — if he did not have an attorney one could be provided. Ah — at this point in time Mr. Tarnef said ah — 'hold' or 'whoa' or something like that, 'that kind of talk scares me' or 'bothers me'. And I told him that even though I was no longer connected with law enforcement, I still felt that because of my past connection that I should so advise him on this stuff, and we went on with the statement. Tarnef's account of his conversation with Timlin was considerably different. He testified that Timlin told him that no charges would be brought against him, he would get a $5,000 reward, and that his bond would be furnished by Martin. Tar-nef stated that much of the wording of the statement was not his own, but was furnished by Timlin. Tarnef further testified that he knew nothing about the fire except what was related to him by Sam Kelly and, moreover, the only reason he gave the "false" statement was because he thought it could not be used against him since Tim-lin had not advised him of his rights: A. When he — after he said that he was working for the ah — this insurance company as a private investigator, he said before we get started on any ah — business, he said I have something I'd like to read to you and I said — before he said anything else I said that if that has something to do about warning me or something, I said I — you know, we'll just forget the whole thing right now. And Mr. Martin who was present with Mr. Hagar and Mr. Timlin that morning because he had to fly out —he flew out later on that afternoon. And Mr. Martin just said yeah that's all right and Mr. Timlin said well, he said I — I don't have to read 'em to you then everything's all right. But he never did, he never advised me of anything. Q. Well, what did you mean about that if you were gonna get involved, then advise you of your rights, you'd forget the whole thing? A. Well, sure because then he could turn around you know, regardless, that would be the only thing that would scare me into giving it, you know, in other words, if I — if I did give the statement even though he did give me all those promises and everything I figured that the man never did advise me of anything and that if he did try to turn me around I wouldn't have anything to lose by it. In other words, they still wouldn't be able to, you know, to use it. Tarnef moved to suppress the statement and a suppression hearing was held in February 1971. The motion was denied and Tarnef was tried by a jury beginning later that same month and found guilty of second degree arson. On March 31, 1971, he was sentenced to five years, the sentence to run concurrently with a ten-year sentence imposed by Judge Hepp for a narcotics offense. Tarnef alleged a variety of errors in the process which led to his conviction. These are set out and discussed separately because no satisfactory method of continuity is available to discuss such unrelated topics. Tarnef's allegations of error are as follows: 1. AS 11.20.020, under which he was convicted, is an unconstitutional exercise of police power to the extent it makes innocent behavior criminal. 2. He was denied due process of law as guaranteed by the fourteenth amendment to the United States Constitution because of the pretrial delay. 3. He was denied his right to speedy trial as guaranteed by the sixth amendment of the United States Constitution and made applicable to the states by the fourteenth amendment and as guaranteed by article I, section 11, of the Alaska Constitution. 4. His statement, a product of custodial interrogation, was taken in violation of Miranda v. Arizona since there was no showing of effective waiver of his fifth and sixth amendment rights under the United States Constitution. 5.His statement was given in exchange for promises of leniency and was therefore involuntary and should have been excluded. ' I AS 11.20.020 provides: Second degree arson. A person who wilfully and maliciously sets fire to or burns or causes to be burned, or who aids, counsels or procures the burning of a building or structure of any kind, whether his property or the property of another, not included or described in § 10 of this chapter [arson of a dwelling], is guilty of arson in the second degree, and upon conviction is punishable by imprisonment for not less than one nor more than 10 years, or by a fine of not more than $5,000, or by both. Relying on the "last antecedent" rule of statutory construction, appellant argues that the phrase "wilfully and maliciously" refers only to " [a] person who . . sets fire to or burns or causes to be burned . " and does not modify "who aids, counsels or procures the burning of a building or structure . . . . " Conse- quently, a person can be convicted of second degree arson under the statute if he "aids, counsels or procures the burning of a building" even though he is not shown to have had any specific criminal intent. Appellant argues that the absence of a criminal intent requirement makes the statute violative of the due process clause as an unreasonable exercise of police power. The threshold issue, however, is whether we should consider this issue on appeal since, as the State points out, the alleged constitutional error was not raised at trial and was not included in appellant's statement of points on appeal as required by Supreme Court Rule 9(e). In Harris v. State, 457 P.2d 638 (Alaska 1969), however, this court examined appellant's claim that the statute under which he was indicted was unconstitutional in spite of the failure of appellant to object to the indictment. The court stated: [I]f the statute under which appellant was indicted is unconstitutional, it follows that the indictment and judgment of conviction would be vitiated and we should reverse under the plain error rule. (Footnote omitted.) Id. at 640. Similarly, if the statute under which Tarnef was charged is unconstitutional, the resulting indictment and conviction would constitute plain error under Alaska Criminal Rule 47(b). Accordingly, we shall consider the issue although it was not brought to the attention of the trial court. Upon turning to the merits of this argument, we find that while appellant's construction of the statute makes grammatical sense, it is a tortured reading of the statute. The legislature's probable intent can be inferred by reading AS 11.-20.020, the arson statute, together with AS 12.15.010. AS 12.15.010 provides: Abrogation of distinctions between accessories and principals. The distinction between an accessory before the fact and a principal, and between principals in the first and second degree is abrogated; and all persons concerned in the commission of a crime, whether they directly commit the act constituting the crime or, though not present, aid and abet in its commission, shall be prosecuted, tried, and punished as principals. (Emphasis added.) The most sensible way to construe the second degree arson statute is that the legislature used the words "aids, counsels or procures" as synonymous with "aid and abet". Since AS 11.20.020 prescribes the same punishment for the perpetrator and the person who "aids, counsels or procures" the burning, this reading is consistent with AS 12.15.010. This does not appear to be a strained reading of the statutory language. It can be inferred that the words "aid and abet" are used synonymously with various combinations of the words assist, advise, counsel, procure, encourage, incite and instigate. Similarly, in Thomas v. State, 391 P.2d 18 (Alaska 1964), this court approved a jury instruction which read in part: " 'Aid and abet' means to help, assist, or facilitate the commission of a crime, promote the accomplishment thereof, help in advancing or bringing it about, or encourage, counsel, or incite as to its commission." Id. at 25. If it is conceded that "aid, counsel or procures" means "aid and abet" then appellant's argument that the "lack of any requirement of specific intent or malice . makes the statute unconstitutional as an unreasonable exercise of police power" evaporates. It is well established at common law and in Alaska that a person cannot be convicted of "aiding and abetting" a crime unless it is shown that he had the specific criminal intent to bring about the illegal end. Thus, in Mahle v. State, 371 P.2d 21 (Alaska 1962), this court stated: An accomplice is generally defined as one who in some manner, knowingly and with criminal intent aids, abets, assists or participates in a criminal act. (Footnote omitted, emphasis added.) Id. at 25. Also in Fajeriak v. State, 439 P.2d 783 (Alaska 1968), cert, denied, 393 U.S. 881, 89 S.Ct. 184, 21 L.Ed.2d 155 (1968), the court citing Mahle stated : There is no evidence in the record from which it could be inferred that Benton and Gamradt had in any manner, knowingly and with criminal intent, aided, abetted, assisted or participated with Fa-jeriak in committing the murder. The trial judge was therefore correct in determining as a matter of law that they were not accomplices. (Footnote omitted, emphasis added.) Id. at 789. Mens rea requirements clearly have a basic place in our system of criminal law. In Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), the Supreme Court stated: The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. (Footnote omitted.) Id. at 250, 72 S.Ct. at 243, 96 L.Ed. at 293. In Speidel v. State, 460 P.2d 77 (Alaska 1969), this court noted that except for certain "public welfare" offenses the general rule is that criminal liability could not be imposed absent a showing of criminal intent. Citing Morissette the court made the following statement which would seem dis-positive here: It is true that one will sometimes find felony statutes that are silent on the subject of criminal intent. But these are instances where the states have codified the common law of crimes, and their . courts have assumed that the omission of the requirement of criminal intent did not signify disapproval of the principle but merely recognized that intent was so inherent in the idea of the offense that it needed no statutory affirmation. Thus, as to felony-type offenses codified from the common law, the courts have found an implication of intent. Representative of these instances are larceny-type offenses where the state courts have consistently retained a requirement of criminal intent. (Footnotes omitted.) Speidel at 79. That is precisely the situation we face here. It is clear that at common law criminal intent was a necessary element of liability as an aider and abettor. Although Alaska now treats aiders and abettors as principals, the common law intent requirement remains. Accordingly, we hold that although intent is not specifically mentioned in the portion of the second degree arson statute which refers to one who "aids, counsels or procures the burning of a building", criminal intent is required as a necessary element of the crime. Finally, it should be emphasized that the judge correctly instructed the jury that it could not find Tarnef guilty under the arson statute unless it found he possessed the requisite criminal intent. II Appellant next argues that he was denied due process of law and deprived of his right to speedy trial because of the delay prior to trial. The fire at the White Swan occurred on April 25, 1969; Tar-nef's trial began on February 24, 1971. There is considerable confusion and disagreement as to whether Tarnef made a motion at trial to dismiss for the alleged due process and speedy trial violation. In his statement of points on appeal appellant stated: "6. The court erred in failing to grant appellant's motion to dismiss for the reason that he was denied a speedy trial." There is no indication in the record or the transcript, however, that appellant made such a motion at or prior to trial. In his brief appellant urges in the abstract that speedy trial and due process violations occurred but makes no references to any motions filed below. Moreover, in his reply brief, appellant failed to respond to the State's argument that his speedy trial and due process arguments should not be considered on appeal. In Judd v. State, 482 P.2d 273, 280 (Alaska 1971), this court refused to entertain appellant's speedy trial contention and noted that he did not raise this point at trial. The court was also influenced in its refusal by the fact that the speedy trial issue was not mentioned in the points on appeal and was inadequately briefed. Since appellant here did brief the issue and list it in his points on appeal, however, Judd would not seem to preclude consideration of 'his argument. Further, in a number of other cases, this court citing the plain error rule, Criminal Rule 47(b), stated that it would consider errors involving deprivation of fundamental rights of appellant for the first time on appeal. Since this trial occurred after Glasgow v. State, 469 P.2d 682 (Alaska 1970), was decided, and the total delay from offense to trial exceeded 20 months, the spectre of plain error is clearly presented. If Tarnef is correct, plain error was committed, and we therefore consider the issue. The presentation of the arguments on the merits was also murky. The parties disagree both as to when the State had sufficient evidence to indict Tarnef and as to the reasons for the delay between indictment and trial. Appellant points out that Hagar testified that Tarnef implicated himself in June 1969, when he talked to Hagar and Martin. Martin related the circumstances of this conversation to the police that same day, and appellant argues that since the police then had sufficient information to support an indictment, the delay should be measured from that point in time. An interval of 20 months elapsed between that date and the time of trial, February 1971 — the interval between Tar-nef's June conversation with Martin and Hagar and the indictment and trial. The State, on the other hand, points to the testimony of Martin and Tarnef which indicates that Tarnef did not implicate himself at the June 1969 meeting with Hagar and Martin. It argues that the State did not have sufficient evidence to indict Tarnef until it receives a copy of Tarnefs statement to Timlin in February 1970. Tarnef was indicted two months later on April 30, 1970. The latest case to discuss the question of speedy trial in precharge situations, Marks v. State, 496 P.2d 66, 68 (Alaska 1972), does not decide whether Alaska follows the holding of United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), that the sixth amendment right to speedy trial attaches only after arrest of a defendant or the institution of public criminal charges against him. It does contain a discussion regarding the protection against precharge delay afforded by the due process clause, concluding that "both the absence of a valid reason for preaccu-sation delay and the fact of prejudice must be established in order to support a due process claim." In one of the few cases holding that preindictment delay constitutes a violation of the sixth amendment, Judge von der Heydt quoted with approval from Justice Brennan's concurring opinion in Dickey v. Florida, establishing the following test: Thus, it may be that for the purposes of the (Speedy Trial) [Cjlause to be fully realized, it must apply to any delay in the criminal process that occurs after the government decides to prosecute and has sufficient evidence for arrest or indictment. The preindictment delay in the Tarnef case not only did not occur after the government had decided to prosecute, but additionally there was every valid reason for the State not to initiate prosecution until after the subsequent statement. While it may be debatable as to whether the initial statement made by Tarnef was adequate for the purpose of obtaining an indictment, it is not suggested and cannot seriously be concluded that it was unreasonable for the State to refrain from launching a prosecution, utilizing such a fragile vessel. We find that under the facts of this case the delay was reasonable. Thus, regardless of the test applied (i.e., under the due process clause as set forth in Marks or under the sixth amendment as suggested in Wahrer), it is clear that this case does not present facts to justify our holding that the preindictment delay constituted a violation of Tarnef's constitutional rights, requiring reversal. Accordingly, we again do not reach the question of whether a preindictment delay violates the speedy trial provisions of the sixth amendment to the United States Constitution or the analogous provisions of article I, section 11, of the Alaska Constitution. Regarding the postindictment delay, appellant argues that Tarnef, by his attorney's stipulation, consented to only two weeks of the ten-month delay. The State, however, points out that appellant filed a series of motions prior to trial and attributes approximately one-half of the postin-dictment delay to appellant. A brief chronology follows: Tarnef was indicted on April 30, 1970. On May 6, Tarnef moved for a transcript of the grand jury minutes. The court took the motion under advisement on May 21 and entered an order on June 4 denying the motion. On June 22 Tarnef, acting pro se, filed a notice of appeal to the Supreme Court accompanied by an affidavit and on July 29 filed a statement of points on appeal and designation of record. This court, treating Tarnef's motion as a petition for review, entered an order denying his motion on August 31. On September 30 Tarnef filed an affidavit in an attempt to disqualify Judges Hepp and Taylor, and a motion to have access to the legal library. On October 28 Tarnef filed a pauper's affidavit and Millard Ingraham was appointed to represent him. On November 13 Tarnef plead not guilty to the charges. On November 18 Tarnef filed a motion for a suppression hearing; the State filed an opposition on December 2, and on December 3 the court denied the motion apparently because Timlin was not then in Fairbanks. The court denied Tarnef's motion for access to the library on January 14. Trial was scheduled for February 1, but on January 29 Tarnef's counsel stipulated that trial be postponed until February 16. On February 18 Tarnef moved to disqualify Judges Hepp, Taylor and VanHoomissen. On February 19 the suppression hearing began. Judge Hepp denied the motion to disqualify himself and ruled that Tarnef's statement was admissible. The trial itself began on February 24 and was completed March 2. In addition, Tarnef had five other charges pending against him at various stages during the period of time after the White Swan fire. The charges were: (1) sale of heroin-indicted July 24, 1969, tried and found guilty March 9, 1970; (2) robbery — indicted February 19, 1969, found not guilty on December 4, 1969 after a first trial resulted in a hung jury; (3) larceny (federal charge) — indicted June 1968, found not guilty on September 9, 1970; (4) robbery — indicted December 1969; first trial resulted in hung jury in November 1970, charges dismissed in December 1970; (5) larceny — indicted December 1968, charges dismissed June 1969. In Tarnef v. State, 492 P.2d 109 (Alaska 1971) and Nickerson v. State, 492 P.2d 118 (Alaska 1971), this court built on the teaching of Glasgow v. State, 469 P.2d 682 (Alaska 1970), and Rutherford v. State, 486 P.2d 946 (Alaska 1971), and held that in determining whether a speedy trial violation had occurred the court would consider three factors — the source of the delay, the reasons for the delay, and whether the delay prejudiced interests protected by the speedy trial guarantee. These protected interests spring from the three main purposes of the speedy trial guarantee: (1) to prevent the weakening of defendant's case as evidence disappears and witnesses' memories fade; (2) to prevent prolonged pretrial incarceration; and (3) to limit the infliction of anxiety upon the accused. In Glasgow, Rutherford and State v. Mar-dock, 490 P.2d 1223 (Alaska 1971), the court attached a presumption of prejudice to these three protected interests for delays in excess of fourteen months; in Tarnef and Nickerson, however, where the delay involved was about eight months the court stated it would require a showing of actual prejudice. In the case at bar the interval between indictment and trial was about 10 months. At least a portion of the delay, however, must be attributed to Tarnef. In calculating the delay attributable to the State, the new speedy trial rule, Criminal Rule 45, excludes periods of delay resulting from other proceedings concerning the defendant such as motions to suppress evidence, from trials on other charges, from interlocutory appeals and from any continuance consented to by defendant's attorney. Using the new rule as a guide, the following periods should be excluded: the May 5 — August 31 interval Tarnef sought by motion and appeal to obtain a transcript of the grand jury proceedings; the two-week trial postponement stipulated to by his counsel; the few days it took to hold the suppression hearing; and the period Tar-nef was on trial for the federal larceny and state robbery charges. (It is unclear from the record precisely how much time was involved in trying these charges.) Therefore, something less than six months of the delay is attributable to the State; since this is less than the delay involved in Tarnef and Nickerson, appellant must show actual prejudice in order to prevail. This appellant fails to do. Tarnef was tried for possession and sale of heroin on March 9, 1970, found guilty and sentenced to 10 years imprisonment. The grand jury returned the arson indictment on April 30, 1970. Since Tarnef had already been sentenced and imprisoned for the heroin conviction, his postindictment incarceration cannot be said to have prejudiced his interest against pretrial imprisonment. Nor does Tarnef make any showing of prejudice to his ability to defend himself; there is no allegation in his brief that any defense witness' memory had dimmed or that Tarnef was unable to locate a defense witness. In short, there was no showing that the fact-finding process at trial was impaired or the integrity of the judgment of conviction in any way affected. Regarding the pretrial anxiety suffered by Tarnef the following statement of the court in Nickerson is relevant: It would be an exceptional case where such anxiety, standing alone, would constitutionally necessitate dismissal of a criminal prosecution. Some anxiety always results from criminal indictment; only through speedy resolution of criminal cases can such anxiety be minimized. However, appellant has not alleged, nor do we find anything in the record on appeal which would indicate, that he suffered any greater anxiety than that which normally flows from a criminal charge. 492 P.2d at 121. Moreover, the incremental anxiety imposed by this charge, the sixth in three years, was probably minimal. Tarnef has failed to establish the necessary facts to prevail on his speedy trial argument. Ill Appellant also argues that it was error to deny the motion to suppress the statement given to Timlin. Tarnef contends that he did not receive a valid Miranda warning and, therefore, the statement was clearly involuntary for he did not waive his fifth amendment rights under the United States Constitution. A preliminary problem is raised by the question of whether or not Timlin as a private investigator was required to give a Miranda warning to appellant before discussing the case with him. Unquestionably, the requirements set forth in Miranda and Escobedo were directed toward policemen and not private citizens. They were intended to insure the reliability of confessions of people while in police custody and to guard against officials overreaching to obtain confessions. In this case, Timlin was working closely with the police as an arson investigator. He had promised to turn over any statement he obtained to the police and had, in fact, enlisted the aid of the police and the district attorney's office to obtain access to the appellant who was incarcerated in the Fairbanks Regional Correction Center. After obtaining the statement the police drove appellant and Timlin around the city to confirm the accuracy of the statement. Timlin, himself, recognized his position as basically part of the official team, for he testified he thought he had to give the Miranda warning both because of his background as a former law enforcement officer and the nature of his position. In fact, he testified he did give such a warning to appellant in this case. Therefore, we hold under the facts of this case that Timlin was required to give a Miranda warning and secure the defendant's waiver of rights before undertaking interrogation of appellant. While there is substantial testimony from Timlin and Hagar that they advised appellant of his rights before taking the statement, this is denied by appellant. The trial court did not resolve this conflict in the testimony, stating: I don't know whether to believe Timlin. He says that he even — that they did discuss rights in this matter that anything you could say would be used against you and all that sort of stuff and said that if the defendant — the defendant rejected this. He says, 'If you're gonna start talking like that, I don't want any part of it,' or words of that import all the more shows that there — nobody was kidding anybody there, nobody was under any mistaken belief as to what was going on. While it is abundantly clear from the record that the court and counsel were discussing problems raised by Miranda and the procedural requirements for admission of confessions set forth in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), the record is silent concerning the ruling of the trial court on the question of whether the court found the Miranda warning had been given. If we were confronted solely with the question of whether the warning had been given it might be possible to remand the case for such a determination. Miranda, however, in addition to requiring a warning, specifies: If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel . This Court has always set high standards of proof for the waiver of constitutional rights, . and we reassert these standards as applied to in-custody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders. An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid zvaiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact- eventually obtained. A statement we made in Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70, 77 (1962), is applicable here: "Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver." Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694, 724 (1966). (Citations omitted, emphasis added.) The facts in this case, far from indicating a knowing waiver by Tarnef of his privilege against self-incrimination, reveal an expressed refusal to waive that privilege. Even when viewing Timlin's testimony it appears that after the warning was given, Tarnef said " 'hold' or 'whoa' or something like that, 'that kind of talk scares me' or 'bothers me'." Thus, rather than showing that Tarnef expressly waived his rights, it indicates that he refused to give a statement if it were to be regarded as a waiver of those rights. The absence of an intelligent waiver is further indicated by the fact that Timlin did not conclude the written statement which he had Tarnef sign with the now classical Miranda warning and a statement that Tarnef knowingly waived his rights thereunder. The statement concluded as follows: I have read all of the five pages of this statement and it is a true statement to the best of my knowledge, given by me to R. T. Timlin, without having received any threats or promises. Considering Timlin's well evidenced knowledge of the Miranda requirements, the logical inference is that he did not set forth the warning and waiver for the reason that he knew that Tarnef would not sign a statement containing any such waiver. In a closely analogous situation, the United States Court of Appeals for the Seventh Circuit held in United States ex rel. Williams v. Twomey that there was no effective waiver of Miranda rights after the defendant had been read the warning but refused to sign a waive.r form. Thereafter the accused did answer questions producing incriminating information. The court held: The record here is totally barren of evidence of a knowing and intelligent waiver. There is no evidence to support an inference that the statements were spontaneous or volunteered. We accordingly hold that the October 15 and October 20 Indiana statements were inadmissible . . . for failure of proof of a knowing and intelligent waiver. To summarize, the State has failed to meet the "heavy burden [which] rests on the government to demonstrate [waiver]". Miranda, 384 U.S. at 475, 86 S.Ct. at 1628, 16 L,Ed.2d at 724. Accordingly, at any retrial the confession of February 13, 1970 and any fruits, thereof, may not be utilized. Since the confession is inadmissible we do not reach the question of whether it was otherwise involuntary because it was allegedly given in exchange for promises of immunity and leniency. Reversed and remanded. FITZGERALD, J., not participating. . 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . See Sutherland, Statutory Construction § 4921 (3d ed. 1943). . It is unclear whether a constitutional defect in the statute upon which the indictment is based is one of the "defects in the institution of the prosecution" within the meaning of Criminal Rule 12 (b) (2) which must be raised by motion before trial or deemed waived. .The Supreme Court Rules were recently repromulgated as the Appellate Rules. Since the Supreme Court Rules were in effect at the time the appeal was taken, they are referred to here. Alaska Supreme Court Rule 9(e) provides in part: The appellant shall serve and file with his designation a concise statement of the points on which he intends to rely on the appeal. The court will consider nothing but the points so stated. But see Judd v. State, 4S2 P.2d 273, 280 (Alaska 1971). . Criminal Rule 47(b). specifies: Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court. . But see AS 11.10.010 which classifies parties to crime as "principals" and "accessories". The word "accessories" in that statute, however, refers only to "accessories after the fact" — persons who aid or conceal a felon after he has committed the crime. AS 12.15.020. . E. g., Peats v. State, 213 Ind. 560, 12 N.E.2d 270, 277 (Ind.1938). . See Fajeriak v. State, 439 P.2d 783, 789 (Alaska 1968) ; Malile v. State, 371 P.2d 21, 25 (Alaska 1962). A number of other jurisdictions have similarly read intent requirements into criminal statutes that were silent as to mens rea. See State v. Krug, 96 Ariz. 225, 393 P.2d 916, 918 (1964) ; State v. Hennings, 3 Wasli.App. 483, 475 P.2d 926, 930-931 (1970). .Instruction No. 3 stated : The law applicable to the crime of arson in the second degree, as charged in the Indictment in this case is as follows : "A person who wilfully and maliciously sets fire to or burns or causes to be burned, or who aids, counsels or procures the burning of a building or structure of any kind.is guilty of arson in the second degree." The material allegations and essential elements of the crime of arson in the second degree, each of which the State must prove beyond a reasonable doubt before you may find the defendant guilty of the crime of arson in the second degree are: .1. That on or about the 25th day of April, 1969, at Fairbanks, in the Fourth Judicial District, State of Alaska, Michael Allen Tarnef did aid, counsel or procure the burning of a building, to-wit: the White Swan Laundry, property of Alvin Martin. 2. That said act was done wilfully and maliciously. 3. That there was an actual fire or burning. Instruction Xo. 4 stated : The term "wilfully" means that the defendant knew what he was doing and voluntarily decided to do it without regard for the law or the rights of others. The term "unlawfully", as used in these instructions means contrary to law. The term "feloniously" means with criminal intent and evil purpose. Malice exists when a defendant intentionally does an unlawful act without justification or other legal excuse. Ill will or hostility is not required. The existence of malice may be determined from the manner in which an act is done, the means used, and from all the facts and circumstances in the evidence. Instruction Xo. 6 stated : Under the laws of Alaska a person need not directly commit each act constituting the offense charged to be guilty thereof. A person who aids and abets in the commission of a crime through a joint design and purpose is as guilty as the person or persons who commit the offense personally. In order to aid and abet another to commit a crime it is necessary that the defendant wilfully associate himself in some way with the criminal venture; and that he wilfully participate in it as something he wishes to bring about; and that he wilfully seek by some action of his to make it succeed. Thus it is not incumbent upon the State to prove beyond a reasonable doubt that this defendant committed every element of the crime alleged to sustain a conviction. It is sufficient to sustain a conviction if you believe beyond a reasonable doubt that the offense was committed and that the defendant aided and abetted in its commission. . &'ee Hammonds v. State, 442 P.2d 39, 43 (Alaska 1963) ; Kugzruk v. State, 436 P.2d 962, 963 (Alaska 1968) ; Goresen v. State, 432 P.2d 326, 327 (Alaska 1967). . At oral argument the State indicated that they also were under the impression that such a motion had been filed and that it had been filed in one of the other cases involving the same defendant. . In McKay v. State, 489 P.2d 145, 150 n. 6 (Alaska 1971), we also failed to reach the issue of whether preindictment delay violated the sixth amendment right to a speedy trial. . 398 U.S. 30, 46, 90 S.Ct. 1564, 1573, 26 L.Ed.2d 26, 37 (1970). .United States v. Wahrer, 319 F.Supp. 585, 587 (D.Alaska 1970), cited in United States v. Marion, 404 U.S. 307, 317, 92 S.Ct. 455, 461, 30 L.Ed.2d 468, 477 n. 8, as one of three district court cases wherein " 'delay' for Sixth Amendment purposes [have been] computed from the time of the crime or from the time when the government considers the defendant's actions criminal". As indicated above, the Marion holding is contrary. . Tarnef v. State, 492 P.2d 109, 112 (Alaska 1971). . Nickerson v. State, 492 P.2d 118, 119 (Alaska 1971). . Although the new rule does not apply directly, it is a reliable index of the kinds of delay which this court will not attribute to the State. Criminal Rule 45 (d) specifies the excluded periods. . See Tarnef v. State, 492 P.2d 109, 113 (Alaska 1971) ; Nickerson v. State, 492 P.2d 118, 121 (Alaska 1971). . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), makes the fifth amendment of the United States Constitution applicable to the states. . Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). . Tlie question of -whether or not private persons, private security officer's, private police or private detectives are within the prohibitions of Miranda may very well depend upon the facts of a given case. Of. People v. Polk, 63 Cal.2d 443, 47 Cal. Rptr. 1, 406 P.2d 641, 645 (1965) and People v. Price, 63 Cal.2d 370, 46 Cal. Rptr. 775, 406 P.2d 55, 61 (1965). Bee also People v. Wright, 249 Cal.App.2d 642, 57 Cal.Rptr. 781, 782 (1967) ; People v. Crabtree, 239 Cal.App.2d 789, 49 Cal.Rptr. 285 (1965) ; Annot., 31 A.L.R.3d 565, 647-74 (1970) ; Comment, Seizure by Private Parties: Exclusion in Criminal Cases, 19 Stan.L.Rev. 608 (1967). . 467 F.2d 1248, 1251 (7th Cir. 1972). . While extensive argument was made in the court below to the effect that the confession was involuntary and that a Miranda warning had not been given, counsel did not expr-essly ground his objection on the absence of a waiver by Tarnef. Nor was this facet of the Miranda ruling raised specifically on the appeal to this court. We reach the issue, however, on either the basis that the reference to Miranda in the court below sufficiently alerted the trial court to the question involved or, in the alternative, that in the absence of a showing-that Tarnef knowingly waived his privilege against self-incrimination, admission of the statement constituted plain error. Alaska Criminal Rule 47(b) ; Drahosh v. State, 442 P.2d 44 (Alaska 1968) ; Noffke v. State, 422 P.2d 102 (Alaska 1967). In Hammonds v. State, 442 P.2d 89 (Alaska 1968), when it was apparent to the court that a defect in a Miranda warning was knowingly waived by counsel, as a trial strategy, wo held that the defect could not be regarded as plain error.

10550838

Milton KINSMAN, Appellant, v. STATE of Alaska, Appellee

Kinsman v. State

1973-07-27

No. 1508

901

904

512 P.2d 901

512

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:47.680553+00:00

CAP

Before RABINOWITZ, C. J., and CONNOR, ERWIN and BOO CHE VER, JJ.

Milton KINSMAN, Appellant, v. STATE of Alaska, Appellee.

Milton KINSMAN, Appellant, v. STATE of Alaska, Appellee. No. 1508. Supreme Court of Alaska. July 27, 1973. Plerbert D. Soli, Public Defender, R. Collin Middleton, Deputy Public Defender, Anchorage, for appellant. John E. Havelock, Atty. Gen., Juneau, Seaborn J. Buckalew, Jr., Dist. Atty., Charles M. Merriner,' Robert L. Eastaugh, Stephen G. Dunning, Asst. Dist. Attys., Anchorage, for appellee. Before RABINOWITZ, C. J., and CONNOR, ERWIN and BOO CHE VER, JJ.

1886

11270

OPINION ERWIN, Justice. This is an appeal from the jury conviction of Milton Alfred Kinsman for first degree murder. The victim, Harriet Keizer, was stabbed fifteen times with a sharp instrument shortly after 1:30 in the morn ing on September 23, 1970 in the Ketchi-kan apartment she had been sharing with Kinsman. At about 1:30 a. m., Keizer, who had been seen drinking with Kinsman earlier that evening at various bars, asked the apartment manager to get her clothes. The manager dressed and accompanied Keizer and Kinsman to the apartment. There she observed Kinsman strike Keizer several times. The manager told Kinsman to stop and ran back to the office to phone the police. While inside the office she observed Kinsman come down the stairs from the upper floor, apparently enter the apartment again and then go down the steps to the outside. The police officer summoned by the manager saw Kinsman leaving the apartment and detained him while another officer went upstairs and found Keizer lying on the apartment floor in a pool of blood. Kinsman had a number of spots of blood on himself which were found to be human blood of Type A, the same type Keizer had. A witness testified that Kinsman had earlier placed a knife in his boot. This knife was found in a refrigerator at the head of the stairs the manager had seen Kinsman descending. At trial, although defense counsel did attempt to introduce evidence that Kinsman had not committed the criminal act, primary emphasis was placed on the defense of insanity. One psychiatrist testified that Kinsman had an antisocial personality, but was not psychotic; another testified that he was schizophrenic. The jury was given a traditional M'Naghten insanity instruction which focused exclusively on the cognitive capacities of the brain. The expert testimony regarding the impairment of Kinsman's volitional capacities, therefore, became legally irrelevant and the jury convicted Kinsman of first degree murder. I The controlling issue in this case —whether the statutory test (American Law Institute) or the M'Naghten test for insanity should have been used — has been thoroughly discussed by this court in Schade v. State, 512 P.2d 907 (Alaska, 1973), and that case is controlling here. Thus this case must be reversed and remanded for a new trial using the test set forth in AS 12.45.083(a). II Although the issue of the insanity test is dispositive, this court would be remiss in its duty if it did not consider some subsidiary issues that have been raised and which must be considered for retrial. 1. Btirden of Proof When this case is retried under AS 12.-45.083(a), the ancillary problem of burden of proof raised by appellant will also be covered by AS 12.45.083: (b) Reliance on mental disease or defect as excluding responsibility is an affirmative defense. The burden of proof beyond a reasonable doubt does not require the prosecution to disprove an affirmative defense unless and until there is evidence supporting the defense. The requirement of evidence supporting the affirmative defense is not satisfied solely by evidence of an abnormality which is manifested only by repeated criminal or otherwise antisocial conduct. This court need not discuss this issue further. 2. Jtidgment of Acquittal Appellant advances the argument that this court should direct a judgment of acquittal without retrial, for there was no evidence upon which reasonable minds could differ. In assessing a motion for judgment of acquittal, the appropriate test is the one articulated by this court in Bush v. State, 397 P.2d 616, 618 (Alaska 1964) (Footnotes omitted.): . On a motion for a judgment of acquittal the judge must take the view of the evidence and the inferences therefrom most favorable to the state. If he determines that fair minded men in the exercise of reasonable judgment could differ on the question of whether guilt has been established beyond a reasonable doubt, then he must submit the case to the jury. In Bowker v. State, 373 P.2d 500, 501-502 (Alaska 1962), this court affirmed a criminal conviction in spite of uncontradicted expert testimony that defendant was insane : We shall not adopt a rule which would treat medical testimony as conclusive merely because it is not disputed by other medical testimony. The jury should be free to make an independent analysis of the facts on which the expert's opinion rests, and thus exercise their historic function of passing on the credibility of the witness. . [To do otherwise] would be transferring the jury's function to the psychiatrist and substituting a trial by experts for a trial by jury. In the case at bar, one psychiatrist testified that Kinsman had an antisocial personality but was not psychotic. But even Doctor Wolf, who testified that Kinsman was schizophrenic, was equivocal as to whether his illness would have caused him to lose volitional control in the specific circumstances at issue. He did not state that the victim's apparent decision to leave Kinsman would cause him to cross the threshold of control. In addition there was non-expert testimony that arguably indicates that Kinsman was sane. Evidence was presented that Kinsman hid the knife in the refrigerator immediately after the stabbing. One witness described Kinsman as "calm and collected" when stopped by the police shortly after the killing. Under these circumstances we find a jury issue could be presented under this state of the record and a directed verdict is not appropriate. 3.Bifurcated Trial Appellant asserts that he has a right to a bifurcated trial. In Holmes v. United States, 124 U.S. App.D.C. 152, 363 F.2d 281 (1966), the District of Columbia Circuit Court of Appeals held that trial courts have discretion to order bifurcation as part of the court's common law power to control the submission of issues to the jury. It should be noted here that Alaska Rules of Criminal Procedure 51 provides: These rules are designated to provide for the efficient operation of the courts of the State of Alaska. If no specific procedure is prescribed by rule or statute, the court may proceed in any lawful manner not inconsistent with these miles, the constitution, and the common law. (Emphasis added.) The Holmes court relied in part on the similarly worded Federal Rules of Criminal Procedure 57(b), and thus it would appear that this matter is within the trial court's discretion (reviewable on appeal for abuses thereof). 4.Instruction Finally, appellant argues that it was error not to instruct the jury that if Kinsman were found not guilty by reason of insanity he would be institutionalized under AS 12.45.090: Commitment of Defendant on Ground of Insanity. If the jury finds the defendant not guilty on the ground of insanity and the court considers his being at large dangerous to the public peace or safety, the court shall order him to be committed to an institution authorized by the commissioner of health and welfare to receive that person, and held in custody until he becomes sane or is otherwise discharged therefrom by authority of law. While appellant did not request such an instruction below and is now precluded from assigning as error on appeal, we are of the opinion that an instruction of this type should be given whenever it is requested by the defendant. This case is reversed and remanded for further proceedings. FITZGERALD, J., not participating. . The insanity instruction sent to the jury did not contain the conjunctive aberration in the M'Naghten test approved by this court in Chase v. State, 369 P.2d 997 (Alaska 1962). The court's Instruction 32 states in part: Legal insanity, as the words are used in these instructions, means a diseased or deranged condition of the mind which makes a person incapable of knowing or understanding the nature and quality of his act, or makes a person incapable of knowing or understanding that his act was wrong. If you find that the defendant was capable of knowing and understanding the nature and quality of his act and, in addition, was capable of knowing and understanding that his act was ' wrong, you will find that he was legally sane. However, if you find that the defendant was not capable of knowing or understanding the nature and quality of his aet, you will find that he was legally insane; or, if you find that he was incapable of knowing or understanding that his act was wrong, you will find that he was legally insane. Mental illness and mental abnormality, in whatever form either may appear, are not necessarily the same as legal insanity. A person may be mentally ill or mentally abnormal and yet not be legally insane. For mental illness or mental abnormality to be a defense to crime, such condition must make the person incapable of knowing or understanding the nature and quality of his act, or make him incapable of knowing or understanding that his act was wrong. . I adhere to my dissent in Schade v. State. . See also Trounce v. State, 498 P.2d 106, 110 (Alaska 1972) ; Tarnef v. State, 492 P.2d 109, 117 (Alaska 1971) ; Jordan v. State, 481 P.2d 383, 387 (Alaska 1971). . The argument for bifurcated trial is set out fully in appellant's reply brief. A good comparison of the arguments for and against bifurcated trials can be had by contrasting Comment, Due Process and Bifurcated Trials: A Double-Edged Sword, 66 Nw.U.L.Rev. 327 (1971) with Louisell & Hazard, Insanity as a Defense : The Bifurcated Trial, 49 Cal.L. Rev. 805 (1961). California's system will serve to illustrate how a bifurcated trial works: When a defendant pleads not guilty by reason of insanity, and also joins with it another plea or pleas, he shall first be tried as if he had entered such other plea or ideas only, and in such trial he shall be conclusively presumed to have been sane at the time the offense is alleged to have been committed. If the jury shall find the defendant guilty, or if the defendant pleads only not guilty by reason of insanity, then the question whether the defendant was sane or insane at the time the offense was committed shall be promptly tried, either before the same jury or before a new jury in the discretion of the court. In such trial the jury shall return a verdict either that the defendant was sane at the time the offense was committed or that he was insane at the time the offense was committed. Cal. Penal Code § 1026 (West 1970). . See also United States v. Ashe, 138 U.S.App.D.C. 356, 427 F.2d 626 (1970) ; Contee v. United States, 133 U.S.App. D.C. 261, 410 F.2d 249 (1969). . See United States v. Ashe, 138 U.S.App. D.C. 356, 427 F.2d 626 (1970). . See Crim.R. 30(a) ; Spight v. State, 450 P.2d 157, 160 (Alaska 1969) ; Dimmick v. State, 449 P.2d 774, 776 (Alaska 1969) ; Daniels v. State, 388 P.2d 813, 816 (Alaska 1964). . See Schade v. State, 512 P.2d 907 (Alaska 1973).

10560741

Crockett W. METCALF and Grace T. Metcalf, Appellants, v. Greta Helga BARTRAND, a/k/a Greta H. Bartrand, Appellee; Greta Helga BARTRAND, a/k/a Greta H. Bartrand, Cross-Appellant, v. Crockett W. METCALF and Grace T. Metcalf, Cross-Appellees

Metcalf v. Bartrand

1971-11-30

Nos. 1334, 1343

747

754

491 P.2d 747

491

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:13.332373+00:00

CAP

Before DIMOND, RABINOWITZ and CONNOR.

Crockett W. METCALF and Grace T. Metcalf, Appellants, v. Greta Helga BARTRAND, a/k/a Greta H. Bartrand, Appellee. Greta Helga BARTRAND, a/k/a Greta H. Bartrand, Cross-Appellant, v. Crockett W. METCALF and Grace T. Metcalf, Cross-Appellees.

Crockett W. METCALF and Grace T. Metcalf, Appellants, v. Greta Helga BARTRAND, a/k/a Greta H. Bartrand, Appellee. Greta Helga BARTRAND, a/k/a Greta H. Bartrand, Cross-Appellant, v. Crockett W. METCALF and Grace T. Metcalf, Cross-Appellees. Nos. 1334, 1343. Supreme Court of Alaska. Nov. 30, 1971. Marvin S. Frankel, of Robison, McCas-key, Strachan, Hoge, Richards & Frankel, Anchorage, for appellants and cross-appel-lees. Raymond A. Nesbett, of Nesbett & John-stone, Anchorage, for appellee and cross-appellant. Before DIMOND, RABINOWITZ and CONNOR.

3529

20966

DIMOND, Justice. OPINION Greta Helga Bartrand filed for a homestead near Big Lake in 1958. In March 1962, after spending about $5,500 on improvements, she received a patent to the land. In 1960 she purchased a 12-acre parcel of land across Knik Arm from Anchorage for $9,600. She paid $1,200 down and gave a deed of trust note for the balance. Soon after the land purchase, Bartrand began to suffer financial hardships. Her health deteriorated and she had to have surgery. Her mother also became ill and Bartrand was contributing to the mother's support. In November 1961 she traveled to Denmark to tend her mother. While she was gone, her sign painting business suffered losses caused by a mistake in the listing of her business telephone. Following her return to Alaska, Bar-trand applied for a bank loan of $3,500 to save the business. The loan was denied. She then turned to her friend, Crockett W. Metcalf. He refused to make a loan but did agree to the following arrangement: On April 26, 1962, Bartrand executed a warranty deed to her Big Lake homestead to Metcalf. In return, Metcalf paid Bar-trand $3,500 less legal fees, and executed a real estate contract to sell the same property back to Bartrand for $7,000 without interest, payable in three years. As it happened, the proceeds of the transaction were not enough to repair Bartrand's financial predicament. After trying unsuccessfully to obtain a loan on her 12 acres across Knik Arm, she again turned to Met-calf. He agreed to give her $5,000 on the Knik Arm tract provided she clear the balance due on the deed of trust. After paying that balance and deducting legal fees, Metcalf gave Bartrand $2,674.50 in cash. Bartrand executed a warranty deed on the Knik Arm tract and Metcalf executed a repurchase contract selling the land back to Bartrand for $10,000 plus eight percent interest from May 20, 1964, payable in two years. Bartrand was unable to meet the payment dates in the original agreements but she did keep the interest payments current through 1966. Metcalf granted numerous extensions to her, and paid some taxes on both parcels with the understanding between them that Bartrand was to repay him. On August 9, 1967, Bartrand filed a petition in bankruptcy. While the petition did not reflect any interest in either of the parcels of land, Bartrand did occupy her homestead on various occasions, and always considered herself the owner of that land. In 1969 Bartrand secured a buyer for the homestead. However she withdrew when a title search revealed that an unbeknown "Lutz" had an interest in the land. At trial it was disclosed that Metcalf had sold that tract in 1969 for $16,000 to a party of that name. In May 1969, Metcalf filed a foreclosure action in superior court claiming that Bar-trand was in default of payments on the $7,000 and the $10,000 contracts. At trial Metcalf testified that the deals were not loans but rather sales and repurchases. Bartrand testified that Metcalf knew that the transactions were loans, and that her intent was to borrow the money and not sell her property. The trial court found that the intent of the parties was to make a loan; that those loans were usurious; and that the $2,812.08 interest paid by Bartrand on both contracts should be regarded as consideration for the various extensions granted by Metcalf. The court decreed Bartrand legal owner of both parcels of land, subject to mortgages in the amounts of the principal sums of the loans plus the taxes paid by Metcalf. The court ordered Metcalf to execute and deliver warranty deeds to both parcels if Bar-trand should pay off the mortgages within 60 days. Otherwise, Bartrand was to be considered to have abandoned her interest. Attorney's fees were awarded to Bartrand. She has since tendered full payment to Metcalf. Metcalf has appealed from the court's findings that the transactions were mortgages at usurious rates of interest. Met-calf further claims that the court erred in the granting of attorney fees to Bartrand. Bartrand has cross-appealed claiming error in the failure of the trial court to credit the interest paid against the principal on the usurious loans. 1. USURY The Alaska usury statute, AS 45.45.040, reads as follows: If in art action brought on a contract, the court determines that a rate of interest has been contracted for greater than is authorized by § 10-70 of this chapter, either directly or indirectly, in money, property, or other valuable thing, or that a gift or donation of money, property, or other valuable thing has been made or promised to be made to a lender or creditor, or to a person for him, directly or indirectly, by the borrower or debtor, or a person for him, the design of which is to obtain for money so loaned, or for debts due or to become due, a rate of interest greater than that specified by § 10-70 of this chapter, the rate of interest is usurious and works a forfeiture of the entire interest on the debt. The court shall give judgment for the amount due, without interest, on the sum loaned or the debt contracted, against the defendant and in favor of the plaintiff and against the plaintiff for costs of action, whether the action is contested or not. In usurious transactions the parties are usually trying to disguise what they have done. It is to be expected that they will try to mold their deal so that it appears to be a legitimate sale and repurchase. The presumption that a deed absolute is complete on its face, and that clear and convincing evidence is needed to overcome that presumption, is simply not applicable when it appears that there is usury involved. As stated in Wilcox v. Moore, [A] court must look squarely at the real nature of the transaction, thus avoiding, so far as lies within its power, the betrayal of justice by the cloak of words', the contrivances of form, or the paper tigers of the crafty. We are interested not in form or color but in nature and substance. The appellant argues that the trial court based its finding that the deeds operated as security instruments solely upon Bartrand's testimony as to her intent. He contends that the law requires mutual intent in order to have an absolute deed operate as a security instrument. The very case upon which he relies for this contention, Rizo v. Macbeth, 398 P.2d 209 (Alaska 1965), stresses that there are many factors which must be considered. Those factors are: (a) when compared to purchase and improvement costs, the consideration was clearly inadequate; (b) Bartrand retained possession; (c) the conduct of the parties before and after the execution of the instrument is consistent with the view of the deed as a security instrument — especially with regard to the irregularities discussed above and with regard to Metcalf's failure to foreclose; (d) Bartrand's financial condition was desperate; (e) while Metcalf paid the taxes, there was testimony to the effect that Bar-trand expected to repay him; (f) while revenue stamps were affixed to the deed to the Big Lake property, a falsified amount was affixed. In Rizo the decision was against a finding of usury because in that case we found all of the evidence "highly conflicting." Here the testimony of the parties was highly conflicting, but the other evidence substantiates the finding of the trial court. Under the standard of review defined in Alaska Foods, Inc. v. American Manufacturer's Mut. Ins. Co., 482 P.2d 842 (Alaska 1971), the trial court's finding on intent should not be disturbed. As for the intent to evade the usury law, the authorities are in near unanimous agreement with Bartrand and the court in Britz v. Kinsvater, 87 Ariz. 385, 351 P.2d 986 (1960), that unless the applicable statute requires knowledge or willfulness (which AS 45.45.040 does not) then [t]he intent required to constitute usury is not necessarily a consciousness of the illegality of the transaction. It is sufficient that the loan contract unequivocally calls for an excessive rate of return on the indebtedness. In such case, the intent to exact usury is presumed. Looking not to the form but to the substance of the transactions, there can be little doubt but that they come within the broad terms of the Alaska usury law. We hold that the trial judge properly considered evidence beyond the deed absolute, and that there was sufficient evidence to support his finding that the transactions were usurious. 2. STRICT FORECLOSURE Metcalf contends the court erred in denying strict foreclosure. He argues that the court committed a double error in deciding that the appellee's standing was equivalent to that of a contract purchaser who has made a substantial equity payment, and in proceeding to decree specific performance to the appellee. In Land Development, Inc. v. Padgett, 369 P.2d 888 (Alaska 1962) we held that the test for an equity decree of specific performance involves weighing the potential loss to the buyer on forfeiture against the potential loss to the seller on strict foreclosure. We also noted in that case that the determination of the equities rests in the sound discretion of the trial judge. We cannot agree with Metcalf that under the trial court's degree of specific performance he suffers any losses but his illegal, excessive profits. Since AS 45.45.-040 works an automatic forfeiture of profits under a usurious contract, there can be no legitimate claim of loss of profits at this late date. Because we find that the trial judge properly exercised sound discretion in his determination of the equities, we need not consider Metcalf's alternative contention that the doctrine of forfeiture does not apply here because the transaction was a mortgage and not a sale. Metcalf urges that Bartrand should be denied equitable relief because of her delay in raising the defense of usury. But AS 45.45.040 makes no requirement that the victim of the usury take affirmative action. Indeed, that section contemplates that the aggrieved party will be the defendant. The appellant would better count his blessings, for the appellee could have had a double recovery under the statute if she had brought her own action within two years of her last payment of interest. 3. INDISPENSABLE PARTY Metcalf argues that the trial court erred in ordering him to execute and deliver a warranty deed for the Big Lake land because he had already sold the property and his grantee was an indispensable party not before the court. Bartrand answers, inter alia, that the issue was not raised at trial and that when her counsel asked Metcalf on cross-examination if he had sold either parcel, Metcalf's own counsel objected. - In State Dept, of Highways v. Crosby, 410 P.2d 724 (Alaska 1966) 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, consideration must be given to the desirability of having some adjudication if at all possible rather than none, leav ing the parties before the court without a remedy because of an "ideal desire to have all interested persons before the court." More recently, in Padgett v. Theus, 484 P.2d 697 (Alaska 1971), we noted that when the indispensable party issue is not raised until the case has reached the appellate level, the court must weigh, in addition to the factors set forth in Crosby, the ramifications of appellants' failure to raise the indispensable party issue at trial, the significance of the fact that after trial a judgment, binding upon [the parties] was entered, and the justice and feasibility of fashioning appropriate relief at the appellate level in order to lessen or avoid any substantial prejudice to [the third party] flowing from the trial court's judgment. In Padgett we held that the appellants were precluded, by reason of their failure to raise the issue at the trial level, from asking the court to weigh such factors as the dangers of multiple actions and inconsistent judgments. We reach the same result here. Only Metcalf, and not Bartrand, knew the actual identity of the third person and the extent of his interest, yet he did not raise the issue and his counsel objected to the efforts on the part of counsel for Bartrand to question Metcalf on the matter. There has been a full trial on all the issues between the parties. Bartrand and the public have a strong interest in the preservation of the judgment of the trial court. The appellee should not be put to another trial simply because issues which can be settled in an independent action might ideally have been settled in the original action. And the public has an interest in avoiding the unnecessary expenditure of time and money involved in a new trial unless that trial is necessary. While the third party in this case did not appear as a witness, he is held- to constructive knowledge of the interest of Bartrand in the Big Lake land by virtue of the recordation of the repurchase contract. He cannot be regarded as an innocent bystander whose rights have been prejudiced without his knowledge. Under the test of Crosby as modified by Padgett, we hold that the trial court did not err in ordering Metcalf to execute and deliver a warranty deed to the Big Lake property. 4. ABANDONMENT Metcalf relies on Jameson v. Wurtz, 396 P.2d 68 (Alaska 1964), to assert that specific performance of a land contract should not be ordered when there is evidence of abandonment. He contends that the ap-pellee's failure to list any interest in the parcels of land at the time she filed for bankruptcy in 1967 is such evidence, and that therefore the trial court erred in ordering specific performance of the repurchase contracts. In Jameson we held that there was no evidence of abandonment despite the failure of the purchaser to pay the taxes and to keep the property insured, thus permitting foreclosure of the tax lien on the property and despite the fact that there had been a voluntary surrender. Here there was evidence to the effect that the appellee considered the property to be hers and that she regarded it as her "pension". The trial court cannot be said to have been "clearly erroneous" in finding that Bar-trand did not abandon the property, which is the test or standard we applied in Jame-son. 5.NEW TRIALS Metcalf's motion for a new trial on the basis of newly discovered evidence was denied by the trial court. On appeal he argues that the newly discovered evidence of similar transactions by Bartrand on prior occasions is material to show the specific intent of Bartrand to treat such transactions as sales and contracts to repurchase rather than as loans. In Montgomery Ward v. Thomas, 394 P.2d 774 (Alaska 1964) we set out the requirements which must be met for a new trial to be granted on the basis of newly discovered evidence. We held that evidence (1) must be such as would probably change the result on a new trial; (2) must have been discovered since the trial; (3) must be of such a nature that it could not have been discovered before trial by due diligence; (4) must be material; (5) must not be merely cumulative or impeaching. In this case there is some question whether the evidence is newly discovered, and whether due diligence would not have disclosed the transactions during trial. Bartrand testified at trial concerning one of the prior transactions. The evidence does not appear to be either material or such as would likely change the result on a new trial. Usury laws are designed to protect the necessitous borrower. That the borrower would turn to other sources of funds, even at usurious rates, is further evidence of his need for protection. Bartrand allegedly advised those persons with whom she entered into the prior transactions that a capital gain would result for them. This would provide further inducement for them to enter into the transactions. As we stated in Ahlstrom v. Cummings, 388 P.2d 261 (Alaska 1964), [t]he matter of granting or refusing a new trial rests in the sound discretion of the trial judge. We shall not interfere with the exercise of his discretion except in the most exceptional circumstances and to prevent a miscarriage of justice. Here the trial judge was well within his discretion in refusing to grant a new trial. 6. ATTORNEY FEES The trial court awarded attorney fees to Bartrand in the amount of $900. Met-calf contends that since he brought suit for foreclosure and since the court ordered that Bartrand's interests in the properties be foreclosed unless she should pay the amount borrowed, he is the prevailing party. As the prevailing party, Metcalf argues that he should have been awarded attorney fees. The finding of the trial court was that the transaction was usurious under AS 45.45.010, 45.45.020. AS 45.45.040 provides that "[t]he court shall give judgment . against the plaintiff for costs of the action . . . [Emphasis added.] That section expressly modifies Civil Rule 82 with regard to attorney fees and is controlling in this case. We hold that the trial court properly awarded these fees to Bartrand. 7. INTEREST On her cross-appeal Bartrand contends that AS 45.45.040 requires that the interest paid on the contract be credited against the principal due on a usurious loan, and that the trial court erred in not allowing this deduction from the principal owed. The statute unequivocally requires that a usurious rate of interest "works a forfeiture of the entire interest on the debt." The interest payments for the extensions were calculated at a rate of eight percent on the repurchase prices. While this rate is not in and of itself usurious, the "principal" to which it was applied contains a large component of usurious interest. Metcalf had no right to 50 percent of each of the repurchase prices since the interest was forfeited under AS 45.45.040. Since interest at eight percent on the repurchase prices would be at a rate of 16 percent on the original amounts loaned, that interest was usurious as in excess of the legal rates of interest provided for in AS 45.45.010, 45.45.020. Thus, the statute demands that Metcalf should have forfeited that interest, and it should be credited against the principal due him from Bar-trand. We modify the judgment to the effect that in order to avoid foreclosure the appellee should repay the original amount loaned, increased by the amount of taxes Metcalf paid on the property, and decreased by the amount of interest Bart-rand paid to him. As so modified, the judgment is affirmed. BONEY, C. J., and ERWIN, J., not participating. .Kawauchi v. Tabata, 49 Haw. 160, 413 P.2d 221 (1966); C.I.T. Corp. v. Edwards, 418 P.2d 685 (Okl.1966) ; Baske v. Russell, 67 Wash.2d 268, 407 P.2d 434 (1965); Britz v. Kinsvater, 87 Ariz. 385, 351 P.2d 986 (1960) ; Wilcox v. Moore, 354 Mich. 499, 93 N.W.2d 288 (1958) ; Orlando v. Berns, 154 Cal.App.2d 753, 316 P.2d 705 (1957); Saunders v. Resnick, 142 Pa.Super. 457, 16 A.2d 676 (1940). . Wilcox v. Moore, supra 93 N.W.2d n. 1, at 291. . Rizo v. Macbeth, 398 P.2d 209, 212 (Alaska 1965). . Id. .Britz v. Kinsvater, 87 Ariz. 385, 351 P.2d 986, 991 (1960) [footnotes omitted]. For references to abundant case law, see 91 C.J.S. Usury § 14, at p. 585 n. 60 (1955, and Supp. 1971) ; 45 Am.Jur. 2d, Interest and Usury § 160 (1969). . Land Development, Inc. v. Padgett, 369 P.2d 888, 890 (Alaska 1962). . AS 45.45.030. . State Dept. of Highways v. Crosby, 410 P.2d 724, 725-726 (Alaska 1966) [footnotes omitted]. . Padgett v. Theus, 484 P.2d 697, 702 (Alaska 1971). See also Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936, 946 (1968). . Padgett, supra 484 P.2d n. 9, at 702. . Id., at 702-703. . AS 34.15.320(a) (2); AS 34.15.260 (a) (3). . Jameson v. Wurtz, 396 P.2d 68, 73 (Alaska 1964). . H. . Montgomery Ward v. Thomas, 394 P.2d 774, 776 (Alaska 1964). . Ahlstrom v. Cummings, 388 P.2d 261, 262 (Alaska 1964) [footnotes omitted], .AS 45.45.040 [emphasis added).

10556766

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

Warren v. State

1971-07-29

No. 1470

59

59

487 P.2d 59

487

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:16.911957+00:00

CAP

Before BONEY, C. J., and RABIN-OWITZ, CONNOR and ERWIN, JJ.

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

William J. WARREN, Appellant, v. STATE of Alaska, Appellee. No. 1470. Supreme Court of Alaska. July 29, 1971. Jay Hodges, Curran & Hodges, Fairbanks, for appellant. John E. Havelock, Atty. Gen., Juneau, Monroe M. Clayton, Dist. Atty., Fairbanks, for appellee. Before BONEY, C. J., and RABIN-OWITZ, CONNOR and ERWIN, JJ.

149

958

OPINION PER CURIAM. This is an appeal from an order of the superior court dismissing appellant's petition for habeas corpus, the restraint of appellant's liberty being the result of a governor's warrant for arrest and extradition to Nevada. Appellant challenges the competency of the evidence adduced below to identify him as the person sought by the Nevada authorities. A review of the record below convinces us that the appellant's contentions are without merit and that there is sufficient evidence as to his identity to permit extradition herein. Therefore, the order of the superior court is affirmed. DIMOND, J., not participating.

10570657

J. Paul JOHNSON, Appellant, v. STATE of Alaska, Appellee

Johnson v. State

1971-08-16

No. 1437

1303

1303

487 P.2d 1303

487

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:16.911957+00:00

CAP

Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR, and ERWIN, JJ-

J. Paul JOHNSON, Appellant, v. STATE of Alaska, Appellee.

J. Paul JOHNSON, Appellant, v. STATE of Alaska, Appellee. No. 1437. Supreme Court of Alaska. Aug. 16, 1971. Herbert D. Soil, Public Defender, Meredith A. Wagstaff, Asst. Public Defender, Anchorage, for appellant. John E. Havelock, Atty. Gen., Juneau, Stephen Cooper, Dist. Atty., Monroe N. Clayton, Asst. Dist. Atty., Fairbanks, for appellee. Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR, and ERWIN, JJ-

357

2132

OPINION PER CURIAM. Appellant J. Paul Johnson was indicted on two counts of issuing checks without sufficient funds. Johnson pleaded guilty to both offenses. He was sentenced to imprisonment for two years on each count, the terms to run concurrently. Eligibility for parole was left to the discretion of the parole board. On this appeal is it contended that the sentences were not within a "zone of reasonableness," and that proper consideration was not given to the important penal objectives of rehabilitation and future deterrence. Our review of the record does not convince us that the superior court was clearly mistaken in imposing this sentence. By the same token, we are satisfied that the sentencing court gave due weight to the objectives of rehabilitation and future deterrence of the accused. Affirmed. . AS 11.20.230 provides: A person who, with intent to defraud, makes, draws, utters or delivers to another person a check or draft on a bank or other depository for the payment of money, knowing at the time of the drawing or delivery that he does not have sufficient funds or credit with the hank or depository to meet the check or draft in full upon its presentation is guilty of larceny. . The two checks in question here were in the amounts of $535.50 and $200. AS 11.20.240 provides in part: A person who violates § 230 of this chapter is punishable as follows: (2) If the value of the consideration given for the cheek or draft exceeds $50, he is punishable by imprisonment in the penitentiary for not less than one year nor more than 10 years. . Waters v. State, 483 P.2d 199, 202 (Alaska 1971) ; Gilmore v. State, 479 P.2d 301, 302 (Alaska 1971). . State v. Chaney, 477 P.2d 441, 444 (Alaska 1970).

10563277

George W. COFFIN and Enid M. Coffin, Appellants, v. Jess W. FOWLER and Aleen Fowler, Appellees

Coffin v. Fowler

1971-04-01

No. 1196

693

696

483 P.2d 693

483

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:26.771103+00:00

CAP

Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR, and ERWIN, JJ-

George W. COFFIN and Enid M. Coffin, Appellants, v. Jess W. FOWLER and Aleen Fowler, Appellees.

George W. COFFIN and Enid M. Coffin, Appellants, v. Jess W. FOWLER and Aleen Fowler, Appellees. No. 1196. Supreme Court of Alaska. April 1, 1971. M. Ashley Dickerson, Anchorage, for appellants. No appearances for appellees. Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR, and ERWIN, JJ-

1742

10415

CONNOR, Justice. Appellees brought an action to recover damages arising from the breach of a lease by appellants. From an adverse judgment, after trial to the court, the Coffins appeal. Appellees Jess and Aleen Fowler were the owners of an establishment known as the Knik River Drive-In, which is located at the east end of the Knik River Bridge on the old Palmer Highway. On July 15, 1966, they entered into a lease-purchase agreement with the appellants, George and Enid Coffin, under which the Coffins were to pay rental of $300 per month. The lease was to run until July 14, 1968. The Coffins were required to exercise their option before that date. The purchase price was $30,000, and the rent payments were to apply to that sum. In part because of the opening of the new Palmer Highway, business conditions deteriorated. As a result the Coffins abandoned the property sometime during October, 1966. During the winter following the Coffins' abandonment of the property, the water pipes in a trailer attached to the building froze and the property fell into a state of disrepair. A truck, which was apparently part of the business property, was abandoned by the Coffins on the highway and was subsequently impounded. Certain utility bills incurred by the Coffins in the operation of the business were paid by the Fowlers. During the winter of 1966-67, the Fowlers allowed a family to occupy the premises with no rent, apparently to look after the property. The house trailer was sold to one Robert Freeman about June 1, 1967, for $3,500. Freeman expended about $1,209 to repair the damage to the trailer so as to render it again usable. The building on the Fowler property encroaches over the property line onto an adjacent tract. The ownership of the neighboring tract is not clear from the record. It may belong to the Matanuska Electric Association, the Eklutna Power Project, the Bureau of Public Roads, or the Alaska Highway Department. Mrs. Fowler testified that she believed that she owned all of the property occupied by the buildings. The Coffins first argue that the lease is void and their abandonment excused because the Fowlers were unable to convey clear title to the property at any time during the tenancy, owing to the encroachment. However, in its memorandum decision the trial court found that the Coffins vacated the premises due to business difficulties, not because of the encroachment. The Coffins' letter to the Fowlers informing them that the premises were vacated did not even mention the encroachment. The encroachment defense is clearly an after thought. It cannot now be raised as the paramount reason for breaking the lease when in fact the encroachment was not even a motivating factor at the time the Coffins left the premises. Thus, we need not decide whether the encroachment could provide a valid reason to void the lease. It is clear that the encroachment did not in fact cause the Coffins to vacate the premises. The Coffins next argue that the lease-option contract is subject to rescission for the Fowlers' fraud in inducing them to enter into the contract. The fraud claimed is that the Fowlers failed to inform the Coffins that the building encroached onto adjoining land. Appellants' "fraud" argument is essentially their encroachment argument under a different name. The trial court found neither intentional nor negligent misrepresentation by the Fowlers. Nor did it find that appellants vacated the premises or failed to exercise their option as a direct and proximate result of the encroachment. We affirm the trial court in these findings. Appellants next appear to argue that the court erroneously failed to find that a surrender of the property had occurred. In fact, the trial court did find that a surrender occurred when the trailer on the premises was sold to one Robert Freeman in June, 1967. What appellants are really arguing is that the court should have found that a surrender occurred earlier when the Coffins gave the keys to the premises to a Mr. Olsen, a relative of the Fowlers. The court below also found that the Fowlers permitted another family to live on the premises without rental payment later during the winter of 1966-67 for the purpose of preventing deterioration of the property. It is true, as appellants say, that the relinquishment of keys to a property can work a surrender if offered with the proper intent and accepted with the proper intent. But the trial court found that no such intent on the part of the Fowlers was manifested when Mr. Olsen received the keys, and that they had no intent to accept the surrender in this case before June, 1967. Mere acceptance of keys by the landlord, without more, does not terminate a lease nor relieve the tenant of his obligations. Noce v. Stemen, 77 N.M. 71, 419 P.2d 450, 451 (1966). By the same token, the landlord's actions in placing another family on the premises in order to protect the property from deterioration, vandals and thieves is not indicative of an intention to terminate the lease. The Fowlers had a right to protect their property by placing custodians upon it after they learned of the Coffins' abandonment. There was no finding of an intent to exclude the Coffins from resuming possession. Absent a contrary intention appearing from the record, such acts do not signify a termination of the lease. Pepsi-Cola Metropolitan Bottling Co., Inc. v. Pleasure Island, Inc., 345 F.2d 617 (1st Cir. 1965). Appellants argue that these two facts, the transfer of the keys plus the permissive occupancy of the premises by third persons, constituted a "re-lease" of the property. As indicated above, the trial court found no such intent on the part of the landlords. From our careful review of the entire record, we must conclude this finding is clearly supported by substantial evidence. We find no error on this point. Appellants next argue that by reason of the encroachment the Fowlers breached their implied covenant of quiet enjoyment. However, appellants do not argue that they were in fact disturbed in their enjoyment of the property and the court found that no one having a paramount claim on the adjoining property ever took action against the Coffins. "It is essential that the acts complained of shall have actually interfered with the lessee's use of the demised premises. Mere apprehension that such use may in the future he interfered with is not enough. Thus discovery that lessor had a defective title [is] not sufficient to breach this covenant." 2 Powell, Real Property ¶ 225 [3] (1967) at 235. (emphasis in original). Again we find no error. Appellants next argue that the court erred in failing to find that there was a duty resting on appellees to mitigate damages, and that the appellees failed so to mitigate by not promptly seeking other paying tenants after appellants abandoned the premises. The record shows that Mrs. Fowler was outside of Alaska receiving medical attention when she learned that the Coffins had moved out, and that she did not contact any real estate agent about finding another tenant. She testified that she was ill during the time in question. Appellants requested that the court make a specific finding of fact that there was a failure to mitigate. The court refused to do so, reasoning that at common law a landlord had no duty to find, a new tenant and further that this court had not abrogated the common law in this respect. It did, however, recognize that there is a split of authority on this issue. We do not find the present case a propitious one for determining whether to expand this aspect of contract law into the landlord-tenant relationship. The gist of the duty to mitigate is the unreasonableness of the non-breaching party's actions. Danzas, Ltd. v. National Bank of Alaska, 222 F.Supp. 671, 677 (D.Alaska 1963), modified on other grounds, 226 F.Supp. 928 (D.Alaska 1964); Anchorage Independent School Dist. v. Stephens, 370 P.2d 531, 533 (Alaska 1962); 5 Corbin, Corbin on Contracts § 1039 (1964). It does not appear that Mrs. Fowler's actions were unreasonable in this case. Therefore, even were we to impose the duty to mitigate upon the non-breaching party in landlord-tenant situations, we would not do so here since the record does not indicate that the non-breaching party, Mrs. Fowler, acted unreasonably. We find no error. Affirmed. . Although the trailer was arguably personal property, the trial court found: "However, in June 1967, when plaintiffs sold the house trailer to Mr. Freeman, it is clear that the acceptance of the surrender was complete and unequivocal. The house trailer, as the residential portion of the demised premises was a material component of the bargain. Its sale constituted acknowl-edgement by the landlord that the lease was at an end." This finding was amply supported by the evidence presented. Viewing it on appeal, we cannot say that "we are left with the definite and firm conviction on the entire record that a mistake has been committed." Alaska Foods, Inc. v. American Manufacturer's Mutual Ins. Co., 482 P.2d 842, at 848 (Alaska, March 18, 1971), (footnote omitted). . The record is unclear as to whether only the truck keys or the keys to the inn' itself were presented. For the purposes of this discussion we assume the keys to the inn were presented. . We note that this court has already expanded another doctrine from the law of contracts, that of frustration of purpose, into this area. Jones v. Fuller-Garvey Corp., 386 P.2d 838 (Alaska 1963). . Jess Fowler was a named plaintiff to this lawsuit. However, the evidence discloses no participation by him in the lease transaction beyond the appearance of his signature upon the lease document. We therefore treat Mrs. Fowler as the sole landlord for the purpose of deciding this issue. .Neither need we decide which party must shoulder the burden of proof on this issue. It is clear from the record that evidence produced by Mrs. Fowler at trial was sufficient for the court to find that her actions were not unreasonable. Nor did the defendants produce enough evidence to the contrary to necessitate a reversal.

10548716

James Francis STEUSSI, Appellant, v. STATE of Alaska, Appellee

Steussi v. State

1973-07-27

No. 1732

589

589

512 P.2d 589

512

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:47.680553+00:00

CAP

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

James Francis STEUSSI, Appellant, v. STATE of Alaska, Appellee.

James Francis STEUSSI, Appellant, v. STATE of Alaska, Appellee. No. 1732. Supreme Court of Alaska. July 27, 1973. Herbert D. Soli, Public Defender, Lawrence J. Kulik, Asst. Public Defender, Anchorage, for appellant. John E. Havelock, Atty. Gen., Juneau, Seaborn J. Buckalew, Jr., Dist. Atty., Stephen G. Dunning, Asst. Dist. Atty., Anchorage, for appellee. Before RABINOWITZ, C. J., and CON-NOR, ERWIN, BOOCHEVER and FITZGERALD, JJ.

214

1313

OPINION PER CURIAM. This case is a criminal case where the trial court applied the M'Naghten test for criminal insanity in finding the defendant guilty of first degree murder and three counts of assault with a dangerous weapon. The judgment is reversed and the case is remanded to the superior court for t'he purpose of reviewing the record and entering new findings and judgment in conformity with the decisions of Schade v. State, Morgan v. State, Kinsman v. State, and Johnson v. State. . A review of tlie expert testimony herein reveals it was not limited to any particular theory of insanity. The trial court clearly has discretion to order additional testimony to aid in making the necessary findings. . Op. No. 912, 512 P.2d 907 (Alaska 1973). . Op. No. 913, 512 P.2d 904 (Alaska 1973). . Op. No. 914, 512 P.2d 901 (Alaska 1973). . Op. No. 888, 511 P.2d 118 (Alaska 1973).

10560318

ALASKA AIRLINES, INC., Appellant, v. RED DODGE AVIATION, INC., Red Dodge, individually, and Prudhoe Bay Oil Distributing Company, Inc., Appellees

Alaska Airlines, Inc. v. Red Dodge Aviation, Inc.

1970-09-21

No. 1209

229

232

475 P.2d 229

475

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:11.912033+00:00

CAP

Before RABINOWITZ and CONNOR, JJ., MOODY and BUTCHER, Superior Court Judges.

ALASKA AIRLINES, INC., Appellant, v. RED DODGE AVIATION, INC., Red Dodge, individually, and Prudhoe Bay Oil Distributing Company, Inc., Appellees.

ALASKA AIRLINES, INC., Appellant, v. RED DODGE AVIATION, INC., Red Dodge, individually, and Prudhoe Bay Oil Distributing Company, Inc., Appellees. No. 1209. Supreme Court of Alaska. Sept. 21, 1970. Robert J. McNealy, Jack M. Stern, Jr., Anchorage, for appellant. Donald A. Burr, Edward W. Tucker, Burr, Pease & Kurtz, Anchorage, for ap-pellees. Before RABINOWITZ and CONNOR, JJ., MOODY and BUTCHER, Superior Court Judges.

1805

11069

RABINOWITZ, Justice. In the superior court, appellees in a two-part complaint sued appellant for specific performance and damages. On the basis of the allegations of their complaint, ap-pellees sought the following relief: 1. A declaration that a certain sublease entered into between Alaska Airlines and Prudhoe Bay Oil Distributing Company, Inc., pertaining to land and improvements located at the Anchorage International Airport be declared a binding and legally enforceable contract. 2. That appellant's president, and certain attorneys purportedly acting on behalf of appellant, be ordered to return the subject sublease documents to appropriate State of Alaska officials and "cease and desist from obstructive and improper conduct touching and concerning said sublease." 3. For compensatory and punitive damages flowing from the actions of appellant, its officers, and certain attorneys acting in appellant's behalf. Appellant answered and asserted several affirmative defenses. In its counterclaim, appellant claimed that appellees' obtaining of the consent of the State of Alaska was a prerequisite to an enforceable sublease, and that appellee Prudhoe Bay Oil Distributing Company's failure and neglect to secure this consent invalidated the sublease. Appellant also averred that Prud-hoe Bay Oil breached the sublease by its assignment of "the demised premises contrary to the provisions of said lease." Appellant asked for a writ of restitution evicting appellees from the hangar and real property described in the sublease, and for restoration of the premises to appellant. Appellant then moved for partial summary judgment seeking an order "canceling the Sublease between Alaska Airlines, Inc., and Prudhoe Bay Oil Distributing Co., Inc., or its assigns or successors, and the plaintiffs be evicted from the demised premises described in the Sublease and a Writ of Restitution issue." Appellees then filed their own motion for partial summary judgment requesting the court to "enter an order decreeing the validity of the sublease and order the return of the executed documents to the appropriate State officials." The trial court granted appellees' motion for partial summary judgment. Findings of fact, conclusions of law, and a partial summary judgment were entered. In this appeal, appellant advances two specifications of error, namely, that the existence of a genuine issue as to a material fact precluded the entry of a partial summary judgment, and further that the findings of fact and conclusions of law include "facts not proved and that are contrary to the evidence and there was no finding that there were no genuine issues of material facts." We decline to reach these specifications because we lack appellate jurisdiction. Supreme Court Rule 6 articulates our final judgment rule in the following manner: An appeal may be taken to this court from a final judgment entered by the superior court or a judge thereof in any action or proceeding, civil or criminal, except that the state shall have a right to appeal in criminal cases only to test the sufficiency of the indictment or on the ground that the sentence is too lenient. We hold that the "partial summary judgment" entered below is not an appeal-able final judgment or order within the intendment of Supreme Court Rule 6. Since finality is lacking, we further hold that the appeal should be dismissed. Civil Rule 56(d) is apposite here. This subsection of our summary judgment rule states If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly. (emphasis added) This rule is identical to its federal counterpart, Rule 56(d), Federal Rules of Civil Procedure. Under the federal rule, it has been consistently held that a partial summary judgment entered pursuant to rule 56(d) is not appealable. We think these authorities persuasive and therefore conclude that the partial summary judgment in question is not an appealable order or judgment under Supreme Court Rule 6. In the context of the pleadings in this case, issues of compensatory damages, punitive damages, and permanent injunctive relief remain for trial. We do not believe that finality can be found by reference to Civil Rule 54(b). This rule states that: When multiple claims for relief or multiple parties are involved in an action, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all of the claims or the rights and liabilities of less than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. In the case at bar, the trial court failed to make any "express determination that there is no just reason for delay," and did not expressly direct the entry of a final judgment. Absent such determination and direction, Civil Rule 54(b) indicates that an order or other form of decision is interlocutory in character and subject to revision. That part of the relief granted was a declaratory judgment has no effect on ripeness for appeal of the partial summary judgment. Our declaratory judgment statute confers jurisdiction on the superior court to declare a party's legal rights and relationships regardless of whether further relief is sought and provides that "[t]he declaration has the force and effect of a final judgment or decree and is reviewable as such." Civil Rule 57(a) provides that "[t]he procedure for obtaining a declaratory judgment pursuant to statute shall be in accordance with these rules The Alaska statute was modeled after the federal Declaratory Judgment Act, so federal precedent is pertinent. The intent of Civil Rule 57 (a), which is the Alaska counterpart to Federal Rule of Civil Procedure 57, is to establish that the general rules of pleading and civil procedure apply to actions for declaratory relief. Declaratory relief, therefore, like other relief, is governed by Civil Rule 54(a), regulating an appeal from a judgment adjudicating less than all of the claims for relief in an action. The statutory language quoted above, giving a declaratory judgment the force of a final judgment and making it "reviewable as such" does not change the effect of Civil Rule 54(b) on partial summary judgment. The statutory language means "no more than that with regard to finality and review, declaratory judgments are like other judgments." Our study of the record has failed to disclose any compelling reasons for treating this proceeding as a petition for review and for the exercise of our discretionary review jurisdiction. Appeal dismissed. BONEY, C. J., and DIMOND, J., not participating. . Civ.R. 52(a) states in part that: Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b). As to the necessity of findings of fact and conclusions of law in summary judgment motions under Civ.R. 56, we said in Palzer v. Serv-U-Meat Co., 419 P.2d 201, 205 (Alaska 1966) (footnote omitted), that: Decisions which have construed the federal counterparts of our Civ.R. 52 and Civ.R. 56 hold that no findings of fact are necessary in ruling on motions for summary judgment. We conclude that in disposing of motions for summary judgment under our rules of civil procedure no findings of fact are required of the trial court. And we specifically hold that in granting summary judgment it is unnecessary for the trial court to make findings in regard to the lack of any genuine issues of material fact to be litigated. See also Alaska State Housing Authority v. Contento, 432 P.2d 117, 122 (Alaska 1967). . As to the latter contention, see note 1, supra. Appellees have conceded that portions of the court's findings relating to "wrongful procuring" and "secreting" were not proven and are surplusage. Ap-pellees further concede that the references "wrongful procurement" and "wrongfully" found in the court's conclusions of law are surplusage. . In its jurisdictional statement, appellant states that the partial summary judgment entered by the trial court in the case at bar "was a final judgment pursuant to Rule 6, Rules of the Supreme Court of Alaska and Civil Rule 54(a)." This statement of jurisdiction is not contested by appellees. Civ.R. 54(a) reads in part: "'Judgment' as used in these rules includes a decree and any order from which an appeal lies." . The findings of fact, conclusions of law, and partial summary judgment entered by the trial court do not comport with the provisions of Civ.R. 56(d). . 6 J. Moore, Federal Practice ¶ 56.20 [4] (2d ed. 1966) ; 3 W. Barron & A. Holtzoff, Federal Practice and Procedure § 1241 (1958). . We note that Civ.R. 56(c) provides in part that: A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is- a genuine issue as to the amount of damages, (emphasis added) . Civ.R. 54(b) is intended to avoid piecemeal review except where there is a danger of hardship and injustice through delay. Jefferson v. Spenard Builders' Supply, Inc., 366 P.2d 714 (Alaska 1961); Edwards v. Franke, 364 P.2d 60 (Alaska 1961). . AS 22.10.020(b). . Jefferson v. Asplund, 458 P.2d 995, 996 (Alaska 1969). . Id. at 997, n. 7. . Id. at 999. . 6A J. Moore, Federal Practice § 57.32 (2d ed. 1966). . AS 22.10.020(b). . Southern Parkway Corp. v. Lakewood Park Corp., 106 U.S.App.D.C. 372, 273 F.2d 107, 108 (1959) ; see also Petrol Corp. v. Petroleum Heat & Power Co., 162 F.2d 327 (2d Cir. 1947) (Clark J.).

10558027

Leneal Osborne WATERS, Appellant, v. STATE of Alaska, Appellee

Waters v. State

1971-03-25

No. 1276

199

203

483 P.2d 199

483

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:26.771103+00:00

CAP

Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, JJ-

Leneal Osborne WATERS, Appellant, v. STATE of Alaska, Appellee.

Leneal Osborne WATERS, Appellant, v. STATE of Alaska, Appellee. No. 1276. Supreme Court of Alaska. March 25, 1971. Victor D. Carlson, Public Defender, James D. Gilmore, Asst. Public Defender, Anchorage, for appellant. Harold W. Tobey, Dist Atty., Anchorage, G. Kent Edwards, Atty. Gen., Juneau, for appellee. Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, JJ-

1817

11076

OPINION RABINOWITZ, Justice. Leneal Osborne Waters appeals from a 10-year sentence for the crime of selling cocaine in violation of AS 17.10.010. A two-count indictment was originally returned against appellant under which he was charged with separate sales of cocaine and heroin. A verdict of guilty as to the cocaine transaction was returned. The record further shows that the heroin count was dismissed. At the time appellant was sentenced upon his conviction for unlawful sale of cocaine, sentence was also' imposed upon his plea of guilty to a separate robbery offense. In regard to the drug offense, appellant received the maximum sentence of 10 years together with a concurrent 5-year term of imprisonment upon his conviction of the crime of robbery. In this appeal the issue for determination is whether the 10-year sentence for sale of cocaine is excessive on the particular f'J|jts of this record. In State v. Chaney, we had occasion to discuss the scope of this court's review in sentence appeals, the generalized objectives of sentence review, and the standards of criminal justice which are embodied in Alaska's constitutional mandate, which provides that "[pjenal administration shall be based on the principle of reformation and upon the need of protecting the public." Concerning this court's scope of review in sentence appeals, it was said in Chaney that "we will make our own examination of the record and will modify the sentence if we are convinced that the sentencing court was clearly mistaken in imposing the sanction it did." The presentence' report in the case at bar indicates the following: At the time sen tence was imposed, appellant was 22 years old, had a high school education, was married, and was the father of two young children. His employment record included experience as a carpenter's apprentice, bricklayer's apprentice, mess attendant, warehouseman, and salesman. According to this same report, appellant freely admitted his addiction to drugs. In 1968, appellant was convicted of the felony offense of larceny in a building. While on probation, he committed the unlawful sale of' cocaine and robbery offenses involved in this appeal. The latter offense was committed during the time appellant awaited trial on the drug sale charges. In explanation of his commission of the sale of cocaine, appellant stated in part that he was strung out ($i narcotics and had been for approx. 9 months. Wasn't a pusher but knew where to get the narcotics. The undercover agent had asked me several times before for Dope and I flatly turned him down. But on this particular day I was sick myself and didn't have the money for a fix. Concerning the reasons why he committed robbery, appellant stated in part that: I was under strain, my wife was pregnant and sick 2,500 miles away in Portland, Oreg. I tried in every way for them to get money by other means honestly. * I reaiiy didn't mean to rob the Travel Lodge and haven't made any robberies since. My true reasons for committing this crime are exactly as I've mentioned before; My wife was sick in Portland and I had to see how she was doing and I was sick here from not having any narcotics in two days and needed the money to get dope and see her. On the basis of our review of the record and sentencing proceeding in accordance with the standards articulated in State v. Chaney, 477 P.2d 441 (Alaska 1970), we cannot say that the sentencing court was clearly mistaken in imposing the maximum 10-year sentence in regard to appellant's conviction of unlawful sale of cocaine. Viewed in isolation, we would be inclined to hold that the imposition of the maximum sentence in regard to the drug offense was unjustified in this case, for the record does not reflect that appellant comes within the category of the most serious type of drug offender. The President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 513 (Avon 1968) recommends that judges take account of four groups of drug offenders whose crimes are in descending order of seriousness. 1. Smuggling or sale of large quantities of narcotics or possession of large quantities for sale. 2. Smuggling or sale of small quantities of narcotics, or possession of small quantities for sale. 3. Possession of naroctics without intent to sell. 4. Marijuana offenses. We think these categories are relevant in sentencing of drug offenders. From the record it seems that appellant is neither a titan of the narcotics business nor a mere user; he seems to be an occasional retailer. In sentencing, it should be remembered that the maximum sentence for a particular offense expresses a legislative judgment about how the worst offender within a class designated by the legislature should be treated. Here there is an absence of foundation for characterization of appellant as the worst type of drug offender. Considering the drug conviction alone, we would entertain serious doubts as to the efficacy of a long period of incarceration of appellant for a single violation of our drug laws, particularly where on the record before us it appears that the sale in question was motivated by appellant's own addiction to drugs. Given a single trans action involving small quantity of the drug a short period of incarceration, with greater emphasis on probation, is more likely to be an appropriate sentence. On the other hand, the trial court properly considered the fact that appellant was previously convicted of the felony offense of larceny in a building, that while on probation he committed the crime of unlawful sale of cocaine, that while released and awaiting trial on the drug offense he participated in an armed robbery, and that both the drug and robbery offenses were in significant ways induced by appellant's admitted addiction to drugs. Appellant's commission of the robbery and larceny in a building offenses demonstrate that he is a risk to the public. His antisocial behavior indicates that a period of incarceration is called for in arriving at an appropriate sentence in light of the goals of protection of the public, deterrence of the accused and others from engaging in similar criminal conduct, and reaffirmation of societal norms embodying condemnation of robbery and unlawful drug sales. In view of these factors and the seriousness of the crimes of robbery and unlawful sale of cocaine, we cannot say that the trial court was clearly mistaken in imposing a 10-year sentence for unlawful sale of cocaine and a concurrent S-year sentence for robbery. Although we have indicated reservations concerning the appropriateness of a 10-year sentence if all that was involved was the appellant's conviction for illegal sale of cocaine, we believe it would be unrealistic to review only the drug offense component of the total sentence which was imposed by the superior court. In the case at bar the sentencing proceeding focused upon the two separate convictions, the prosecution made its recommendation on the basis of the two offenses, and the fact that appellant was being sentenced for both robbery and unlawful sale of cocaine played a controlling role in the trial judge's formulation of the sentences which were imposed. Viewing the totality of the circumstances at the time sentence was pronounced in this case, we hold that the judgment and commitment entered below should be affirmed. In light of the record, we hold that 10-year and S-year concurrent sentences for robbery and unlawful sale of cocaine were not beyond the "zone of reasonableness." Given appellant's seeming inability to cope with his problem of drug addiction and his demonstrated danger to the safety of the community at large, it is imperative that necessary medical, psychiatric, and psychological treatment be made available to appellant during any period of incarceration or supervised parole. We therefore assume that the Division of Corrections and the Parole Board are fully cognizant of these reformative needs and will undertake appropriate measures to bring about appellant's early return to the status of a noncriminal member of our society. One other aspect of this appeal remains for comment. The transcript of the sentencing proceedings shows that the trial judge placed perhaps undue emphasis on the number of appellant's purported police contacts as reflected in an FBI report. There is also an indication that the sentencing judge assumed as an established fact that appellant had sold heroin as charged in the second count of the indictment, even though this count had been dismissed. Sentencing courts should be wary of relying on a record of police "contacts" or an arrest record in determining an appropriate sentence. The dangers inherent in the use of such records and in giving undue weight to such factors should be readily apparent to the trial judge. More obvious is the fact that absent a conviction, an indictment is absolutely no evidence of guilty conduct. Affirmed. .We have jurisdiction in such matters by virtue of the provisions of AS 12.55.-120(a) which provides: A sentence of imprisonment lawfully imposed by the superior court for a term or for aggregate terms exceeding one year may be appealed to the supreme court by the defendant on the ground that the sentence is excessive. By appealing a sentence under this section, the defendant waives the right to plead that by a revision of the sentence resulting from the appeal he has been twice placed in jeopardy for the same offense. > . No reason for the dismissal appears in the record which has been provided us in this sentence appeal. . AS 11.15.240, Alaska's robbery statute, carries á potential range of imprisonment from 1 to 15 years. . 477 P.2d 441 (Alaska 1970). . Alaska Const., art. I, § 12. . State v. Chaney, 477 P.2d 441, 444 (Alaska 1970) (footnote omitted). .As part of its presentence report in this ease, the Division of Corrections concluded that appellant was an extremely poor risk for probation or parole and in the past had exhibited an extremely poor attitude towards probation supervision and law enforcement officials. The Division of Corrections recommended that probation or parole be denied until appellant had served the minimum term of incarceration provided for in cases of unlawful sale of cocaine. . In explaining the reason why he sentenced appellant to a 10-year term and a concurrent 5-year term, the trial court emphasized that appellant now had three felony convictions on his record and that if he failed to "shape up" in 10-years' time the prosecutor would attempt to "put you away for life" the next time he committed a felony. . Gilmore v. State, 479 P.2d 301, 302 (Alaska 1971).

10555863

Richard A. ANDERSON, Appellant, v. EMPLOYERS LIABILITY ASSURANCE CORPORATION and Universal Services, Inc., Appellees

Anderson v. Employers Liability Assurance Corp.

1972-06-19

No. 1494

288

294

498 P.2d 288

498

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:36.285560+00:00

CAP

Before RABINOWITZ and CONNOR, JJ-

Richard A. ANDERSON, Appellant, v. EMPLOYERS LIABILITY ASSURANCE CORPORATION and Universal Services, Inc., Appellees.

Richard A. ANDERSON, Appellant, v. EMPLOYERS LIABILITY ASSURANCE CORPORATION and Universal Services, Inc., Appellees. No. 1494. Supreme Court of Alaska. June 19, 1972. William M. Erwin, Anchorage, for appellant. Charles W. Hagans, Anchorage, for ap-pellees. Before RABINOWITZ and CONNOR, JJ-

3403

20834

OPINION CONNOR, Justice. An employee at a remote site suffered injuries during the period when he was off his regular shift but was subject to call at any time. The question on appeal is whether the injuries are compensable under the Alaska system of workmen's compensation. Richard Anderson was employed by Universal Services, Inc., as an electrician-lineman on Amchitka Island in the Aleutians, admittedly a remote site. Anderson lived on the employer's premises, and was provided with food and lodging by the employer. The employer also provided a bartender and a liquor license for the "Rat Roost" bar on its premises on the island. It also furnished a pool table, ping pong, shuffleboard, card tables and movies for the recreation of its employees. While appellant had regularly scheduled work hours from 8:00 a.m. to 5 :30 p.m., he was subject to 24-hour call and had been called after working hours on several occasions during the seven weeks he had been on the job. Induced by a wager with another employee while in the "Rat Roost", appellant entered into a contest to determine which man could climb a transmission pole the most rapidly. After the wager was made, appellant went to his truck, got his climbing tools, and the two men walked to a power pole outside the barracks where the employees lived. After the other employee had climbed the pole, appellant tried but slipped after he had climbed a few feet. On the next try he made it to the top of the pole, but then lost his grip and fell to the ground, landing on his seat. As a result of this fall appellant fractured his wrist and crushed two vertebrae. From this factual pattern the Alaska Workmen's Compensation Board concluded that the appellant's fall and resulting injuries grew out of the course and scope of his employment and were, therefore, com-pensable. On appeal, the superior court held otherwise. It reversed the board and entered summary judgment in favor of the employer, thus denying to Anderson any right to compensation. From that judgment Anderson brings this appeal. Our review of determinations of the Alaska Workmen's Compensation Board is limited by the substantial evidence test. A decision of the board may not be overturned unless it is unsupported by substantial evidence on the record taken as a whole. It is not important that the particular situation before the board is subject to more than one inference. What matters is whether the determination of the board is supported by substantial evidence on the whole record. When an employee is required by the conditions of his employment to reside on the employer's premises where he is constantly on call, his activities which occur on the premises are normally considered to be "work connected." Compensation may be awarded even though the accident occurs during the hours when the employee is off duty. Most activities necessary to the personal comfort of the employee, and most recreational activities, which occur upon the premises are found to be within the coverage of the workmen's compensation statutes. An outgrowth of these rules is the doctrine which has emerged in cases concerning resident workers on overseas construction projects, at isolated locations and at work premises which are relatively remote from the normal amenities of civilization. In an impressive number of cases compensation has been awarded for injuries occurring while the employee was pursuing recreational activities, even at locations not immediately adjacent to the job site or the living quarters. Although it is often possible for a resident employee in a civilized community to leave his work and residential premises to pursue an entirely personal whim and thereby remove himself from work-connected coverage, the worker at a remote area may not so easily leave his job site behind. The isolation and the remote nature of his working environment is an all encompassing condition of his employment. The remote site worker is required as a condition of his employment to do all of his eating, sleeping and socializing on the work premises. Activities normally totally divorced from his work routine then become a part of the working conditions to which he is subjected. For these reasons many courts have concluded that when an employee is working in a remote area far from family and friends and the normal recreational outlets available to the working man, his recreational activities become an incident of his employment. Influenced by the unique character of the remote site employees' work environment, the United States Supreme Court has extended workmen's compensation coverage to recreational activities which would not be covered in the case of the worker who can leave his job at the end of the work day. That court upheld an award of workmen's compensation benefits in the case of a worker who was drowned after the boat he had overloaded with sand sank in a South Korean lake, O'Keeffe v. Smith, Hinchman & Grylls Associates, 380 U.S. 359, 85 S.Ct. 1012, 13 L.Ed.2d 895 (1965). He had been hired to do office work for a government contractor, and the boating accident occurred on a weekend while the employee was helping a friend build a beach many miles from the office. The court upheld the District Court's decision that , "'[T]he Deputy Commissioner was correct in his finding that the conditions of the deceased's employment created a zone where the deceased Ecker had to seek recreation under exacting and unconventional conditions and that therefore the accident and death of the decedent arose out of and in the course of employment.' " 380 U.S., at 363, 85 S.Ct. at 1015. The employer alludes to the dissenting opinion of Mr. Justice Harlan in O'Keeffe v. Smith, Hinchman & Grylls Associates, supra, at 365, 85 S.Ct. 1012, in which that distinguished jurist expresses the view that to permit compensation for such injuries as occurred there (the sinking of a boat laden with sand, while helping a friend build a private beach) is to impose an absolute liability upon the employer whenever an award is made in the first instance, "and the job location is one to which the reviewing judge would not choose to go if he had his choice of vacation spots." 380 U.S., at 370, 85 S.Ct., at 1018. A careful reading of that dissent reveals that Mr. Justice Harlan would limit compensability of such recreational injuries to those which result from special dangers peculiar to the particular place and conditions of employment. We are unable to accept that as the appropriate test. Not only would it be contrary to the standards we adopted in Northern Corporation v. Saari, supra, n. 5, but it would import into our workmen's compensation system a principle of tort law which would lead to uneven results in' remote site, recreational injury cases. In Pan American World Airways, Inc. v. O'Hearne, 335 F.2d 70 (4th Cir. 1964), the Fourth Circuit awarded workmen's compensation benefits in the case of an employee killed in a car accident on San Salvador Island when returning to a defense base from a pub in a nearby town. The court stated: "Considering the distant place of employment, the sparsity of population and limited area of the island, the Commissioner determined that the group, including the present decedent, were justified in looking for recreation beyond the confines of their habitat. In the circumstances of his employment-residence, the Commissioner thought, Smith was only 'doing what he [might] reasonably be expected to do.' In short, that his brief exit was 'an incident of the service.' " One significant formulation of the remote-site rule was given by Judge Wisdom in O'Keeffe v. Pan American World Airways, Inc., 338 F.2d 319 (5th Cir. 1964). There the court upheld workmen's compensation coverage in the case of an employee on Grand Turk Island in the British West Indies who was killed in a traffic accident driving home after an evening of cribbage, stating: "Employees working under the Defense Bases Act, far away from their families and friends, in remote places where there are severely limited recreational and social activities, are in different circumstances from employees working at home. Personal activities of a social or recreational nature must be considered as incident to the overseas employment relationship. . . . An employee injured on Grand Turk while off-duty but on call is like a seaman injured ashore on fun of his own. Short of wilful misconduct, the seaman is still in the 'service of his ship.' Similarly, Rose [decedent workman], off-duty but subject to call, was in the service of his employer." A special condition of employment at a remote site like Amchitka Island is that it places severe limitations upon the recreational outlets available to the average worker. It is undoubtedly to an employer's benefit in increased worker efficiency that his employees take part in reasonable recreation; thus in a remote area such as Amchitka Island the reasonable recreational activities of an employee are in the interest of the employer as well as an employee. We find, therefore, that when an on-call employee at a remote work site is injured while engaged in reasonable recreational activities, his injuries may properly be considered work connected under the Alaska's Workmen's Compensation Act. This decision is merely a reaffirmation of the principle we expounded in Northern Corporation v. Saari, 409 P.2d 845 (Alaska 1966), in which we held com-pensable the death of a remote site employee who was returning from an evening at a nearby military-operated cocktail lounge. The employer urges that injuries of this type should not be compensable unless the "employee was engaged in a recognized or normal recreational activity," and that we should require a finding that "the employee was justified in seeking the activity and that it was reasonable to engage in it." The gist of this argument is that the recreational activity should be either one sponsored by the employer or one engaged in so commonly by the employees that the em ployer can be said to have foreknowledge that such recreational activity will occur. We think that such a test would draw too fine a line in the remote site, recreational injury cases. The recreational activity should, of course, be reasonable activity. But what is reasonable must be gauged both by the entire circumstances and by a consideration of what, consistent with human needs, a person in the position of the injured worker might have sought as a recreational outlet. Working men at remote places can hardly be expected to limit themselves to purely sedate forms of recreation or to physical activities into which only the most timorous would venture. Viewed in this manner, we do not find the recreational activity engaged in by Anderson to be unreasonable. Persons who live or work together in close proximity often engage in contests of physical prowess or athletic skill. A pole-climbing contest is hardly abnormal for one who earns his living, in part, through climbing poles. We note also in this case that the tools with which to engage in the contest were located in a truck parked near the building where the pole climbing wager was made. In this sense, and because Anderson was actually employed as a lineman, a greater nexus with the employment existed here than in many remote site injury cases. In our opinion there was substantial evidence before the board from which it could be concluded that the recreational activity was reasonable under the circumstances. The injuries were, therefore, compensable. The case is reversed and remanded for the entry of judgment affirming the board's award. Reversed and remanded. ERWIN and BOOCHEVER, JJ., not participating. . No suggestion is made that Anderson was in any way intoxicated on this occasion. . Laborers and Hod Carriers Union, Local No. 341 v. Groothuis, 494 P.2d 808, 810 (Alaska 1972); Wilson v. Erickson, 477 P.2d 998, 999 (Alaska 1970); Brown v. Northwest Airlines, Inc., 444 P.2d 529, 531 (Alaska 1968); State Dept. of Highways v. Johns, 422 P.2d 855, 860 (Alaska 1967); Alaska Redi-Mix, Inc. v. Alaska Workmen's Compensation Board, 417 P.2d 595, 597-598 (Alaska 1966); Morrison-Knudsen Co. v. Vereen, 414 P.2d 536 (Alaska 1966); Thornton v. Alaska Workmen's Compensation Board, 411 P.2d 209 (Alaska 1966); Fischback & Moore of Alaska, Inc. v. Lynn, 407 P.2d 174, 178 (Alaska 1965); R.C.A. Serv. Co. v. Liggett, 394 P.2d 675, 680 (Alaska 1964); Beylund v. Matanuska Valley Farmers Co-op Ass'n, 391 P.2d 176, 178 (Alaska 1964); Forth v. Northern Stevedoring & Handling Corp., 385 P.2d 944, 948 (Alaska 1963); Keiner v. City of Anchorage, 378 P.2d 406, 411 (Alaska 1963). . Cases cited note 2, supra. See O'Leary v. Brown-Pacific-Maxon, 340 U.S. 504, 507-508, 71 S.Ct. 470, 95 L.Ed. 483 (1950); O'Keeffe v. Pan American World Airways, Inc., 338 F.2d 319, 323 (5th Cir. 1964); Hastorf-Nettles, Inc. v. Pillsbury, 203 F.2d 641, 643 (1953). . Laborers and Hod Carriers Union, Local No. 341 v. Groothuis, 494 P.2d 808, 811 (Alaska 1972); Wilson v. Erickson, 477 P.2d 998, 999 (Alaska 1970). . 1 A. Larson, Law of Workmen's Compensation §, 24.00-24.21 (1968); Truck Insurance Exchange v. Industrial Accident Commission, 27 Cal.2d 813, 167 P.2d 705, 707 (1946). Under Alaska's Workmen's Compensation Law, compensation is payable for accidental injury or death "arising out of and in the course of employment." AS 23.30.265(13). In Northern Corporation v. Saari, 409 P.2d 845, 846 (Alaska 1966), we said that the two tests enunciated above should be merged into a single concept of work connection because, "if the accidental injury or death is connected with any of the incidents of one's employment, then the injury or death would both arise out of and be in the course of such employment." . 1 A. Larson, n. 5, supra, at 422-26. . Id. at 435. . O'Keeffe v. Smith, Hinchman & Grylls Associates, 380 U.S. 359, 85 S.Ct. 1012, 13 L.Ed.2d 895 (1965); O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483 (1951); O'Keefe v. Pan American World Airways, Inc., 338 F.2d 319 (5th Cir. 1964); Pan American World Airways, Inc. v. O'Hearne, 335 F.2d 70 (4th Cir. 1964); Self v. Hanson, 305 F.2d 699 (9th Cir. 1962); Hastorf-Nettles, Inc. v. Pillsbury, 203 F.2d 641 (9th Cir. 1953). . Pan American World Airways, Inc. v. O'Hearne, 335 F.2d 70, 71 (4th Cir. 1964). . O'Keeffe v. Pan American World Airways, Inc., 338 F.2d 319, 322-323 (5th Cir. 1964) (footnote omitted). We find this analogy of the situation of the remote area worker to that of the sailor particularly apt. Judge Wisdom utilized tlie following quotation from Aguilar v. Standard Oil Co., 318 U.S. 724, 731, 63 S.Ct. 930, 934, 87 L.Ed. 1107 (1943), to demonstrate the extensive coverage given to injured seamen because of the confining nature of their work environment: ". . . Unlike men employed in service on land, the seaman, when lie finishes his day's work, is neither relieved of obligations to his employer nor wholly free to dispose of his leisure as he sees fit. Of necessity, during the voyage he must eat, drink, lodge and divert himself within the confines of the ship. In short, during the period of his tenure the vessel is not merely his place of employment; it is the framework of his existence. For that reason among others his employer's responsibility for maintenance and cure extends beyond injuries sustained because of, or while engaged in, activities required by his employment. In this respect it is a broader liability than that imposed by modern workmen's compensation statutes. Appropriately it covers all injuries and ailments incurred without misconduct on the seaman's part amounting to ground for forfeiture, at least while he is on the ship, 'subject to the call of duty as a seaman, and earning wages as such.' "We think that the principles governing shipboard injuries apply to the facts presented by these cases. To relieve the shipowner of his obligation in the case of injuries incurred on shore leave would cast upon the seaman hazards encountered only by reason of the voyage. The assumption is hardly sound that the normal uses and purposes of shore leave are 'exclusively persona! and have no relation to the vessel's business. Men cannot live for long cooped up aboard ship without substantial impairment of their efficiency, if not also serious danger to discipline. Relaxation beyond the confines of the ship is necessary if the work is to go on, more so that it may move smoothly." . O'Keeffe v. Pan American World Airways, Inc., 338 F.2d 319, 325 (5th Cir. 1964); Hastorf-Nettles, Inc. v. Pillsbury, 203 F.2d 641, 643 (9th Cir. 1953).

10556930

Carl PAULSON, Appellant, v. NATIONAL INDEMNITY COMPANY, Appellee

Paulson v. National Indemnity Co.

1972-06-23

No. 1462

731

737

498 P.2d 731

498

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:36.285560+00:00

CAP

Before BONEY, C. J., RABINOWITZ, and CONNOR, JJ.

Carl PAULSON, Appellant, v. NATIONAL INDEMNITY COMPANY, Appellee.

Carl PAULSON, Appellant, v. NATIONAL INDEMNITY COMPANY, Appellee. No. 1462. Supreme Court of Alaska. June 23, 1972. M. Ashley Dickerson, Anchorage, for appellant. Kenneth P. Jacobus, Hughes, Thorsness, Lowe, Gantz & Clark, Anchorage, for ap-pellee. Before BONEY, C. J., RABINOWITZ, and CONNOR, JJ.

3345

20926

OPINION RABINOWITZ, Justice. The principal issue in this case is whether the Alaska Motor Vehicle Safety Responsibility Act requires that an "owner's" policy, certified as proof of financial responsibility for the future, must cover all vehicles owned by the insured. In October of 1966 Henry Dacy, while driving a 1960 GMC pickup truck, collided with a vehicle driven by appellant Carl Paulson. At the time this accident occurred, Dacy also owned a 1966 Chevrolet pickup truck. In the fall of 1965, Dacy, who then owned only the 1960 pickup, was convicted of driving while intoxicated. As a result of this conviction his driver's license was suspended. In order to have his license reinstated, Dacy was required to comply with Alaska's Motor Vehicle Safety Responsibility Act and furnish proof of financial responsibility for the future. in November 1965, before taking any steps to comply with the Motor Vehicle Safety Responsibility Act, Dacy purchased the 1966 Chevrolet pickup truck. Dacy obtained liability insurance on the new truck. Then, in January 1966, Dacy attempted to get his operator's license back relying upon the liability insurance policy he had purchased covering his 1966 Chevrolet. On applying for return of his license, Dacy was informed that his liability insurance coverage was inadequate and was given an SR-22 form. This form contained notification from the Department of Public Safety to Dacy that proof of financial responsibility for the future could be complied with [b]y instructing your insurance company to file with the Department of Public Safety a certificate of insurance covering all motor vehicles owned by you and covering you personally in the operation of any and all motor vehicles . Dacy then purchased, through Malasarte Insurance Company, a one-year liability insurance policy written by appellee National Indemnity Company. The policy refers to Dacy's 1966 Chevrolet truck but makes no mention of the 1960 GMC pickup which Dacy then owned. Thereafter National filed a certificate of insurance with the Department of Public Safety and Dacy's operator's license was returned to him. After the accident Paulson sued Dacy and his insurer National. In regard to his claim against National, Paulson asserted that National, by virtue of its having certified that the motor vehicle liability policy it issued to Dacy met the requirements of Alaska's Motor Vehicle Safety Responsibility Act, waived any provisions of its policy which were inconsistent with the provisions of the act. Paulson further alleged in part that National committed a fraud on the general public by enabling Dacy to regain his driver's license and then refusing to provide the indemnification required of a policy certified under an SR-22 form. National, in its answer, contended that although Dacy did in fact own two vehicles at the time it issued its policy, it did not insure Dacy's 1960 GMC pickup which was involved in the accident. In its answer, National alleged that the Safety Responsibility Act "specifically provides that a policy of insurance issued as proof of financial responsibility need not cover all vehicles owned by the insured." Dacy also cross-claimed against Mala-sarte Insurance Company and National. In his cross-claim, Dacy asserted that he went to Malasarte "to procure SR-22 liability automobile insurance pursuant to the Alaska Statute," and that he "directed the agent to write an insurance policy which would cover him for liability regardless of what car he might be driving." In its answer to Dacy's cross-claim, National reiterated its position that the Safety Responsibility Act expressly recognizes that an insurance policy issued as proof of financial responsibility need not insure all of the vehicles owned by the insured. Malasarte, in its answer to the cross-complaint, denied Dacy's factual allegations as to the coverage he requested. Thereafter National, Dacy, and Paulson moved for summary judgment. In its decision, the trial court concluded that the contract of insurance issued by National to Dacy "did not include coverage for the second vehicle which was left undeclared by . Dacy." The trial court then entered a partial summary judgment in favor of National against Paulson on the main claim for relief and against Dacy on his cross-claim against National. The trial court denied Dacy's motion for summary judgment on his cross-claim against Mala-sarte because of the existence of genuine issues as to material facts. Paulson appeals from the superior court's judgment specifying as error the trial court's grant of summary judgment to National and the trial court's refusal to grant him summary judgment. Paulson's position on appeal is that National's policy should be held to cover this accident. He argues that the legislature's intent in enacting the Safety Responsibility Act was to afford monetary protection for the general public against damage caused by the questionable driver. Paulson argues that "the purpose of the act would be completely frustrated if the insurance company could escape liability merely because an admittedly risky driver happened to have driven a vehicle other than one covered by his policy." If one looks solely to the declaration of purpose section of the Safety Responsibility Act, Paulson's arguments appear persuasive. This section of the act declares [t]he legislature is concerned over the rising toll of motor vehicle accidents and the suffering and loss inflicted by them. The legislature determines that it is a matter of grave concern that motorists be financially responsible for their negligent acts so that innocent victims of motor vehicle accidents may be recompensed for the injury and financial loss inflicted upon them. The legislature finds and declares that the public interest can best be served by the requirements that the operator of a motor vehicle involved in an accident respond for damages and show proof of financial ability to respond for damages in future accidents as a prerequisite to his exercise of the privilege of operating a motor vehicle in the state. Unfortunately, despite this legislative declaration of grave concern and expressed intent that innocent victims of motor vehicle accidents be recompensed for injuries, the pertinent substantive sections of the Safety Responsibility Act fail to fulfill the promise contained in the declaration of purpose section of the act. After providing for administration by the Department of Public Safety, the Safety Responsibility Act is thereafter primarily concerned with two subjects, namely, the requirement of a deposit of security and proof of financial responsibility for the future. It is this latter facet of the act with which we are concerned in this appeal. Under the act, proof of financial responsibility for the future is required of persons who are convicted of or forfeit bail for certain offenses under motor vehicle laws or who, by ownership or operation of a vehicle of a type subject to registration under the motor vehicle laws of this state, are involved in an accident in this state which results in bodily injury or death of a person or damage to the property of any one person exceeding $200. Since Dacy was convicted of operating a motor vehicle while under the influence of intoxicating liquor, he was required to furnish proof of his financial responsibility for the future. Under the act, proof of financial responsibility for the future may be furnished by filing with the department the written certificate of an insurance carrier authorized to do business in this state certifying that there is in effect a motor vehicle liability policy for the benefit of the person required to furnish proof of financial responsibility. Of significance to this appeal is the act's provision requiring that the certificate "designate by description or appropriate reference all vehicles covered by it, unless the policy is issued to a person who is not the owner of a motor vehicle." National relies in part on this provision in support of its contention that a policy of insurance issued as proof of financial responsibility need not cover all vehicles owned by the insured. National also places considerable emphasis on the act's definition of a "motor vehi cle liability policy." Under AS 28.20.-440(a), it is provided: In this chapter, 'motor vehicle liability policy' means an 'owner policy' or an 'operator's policy' containing an agreement or endorsement . as provided in § 410 and § 420 of this chapter as proof of financial responsibility for the future, and issued, except as otherwise provided in § 420 of this chapter, by an insurance carrier authorized to transact business in this state, to or for the benefit of the person named as insured. Subsection (b) of AS 28.20.440 further provides that an owner's policy of liability insurance shall (1) designate by description or appropriate reference all vehicles which it covers; [and] (2) insure the person named and every other person using the vehicle with the express or implied permission of the named insured, against loss from the liability imposed by law for damages .arising out of the ownership, maintenance or use of the vehicle . . . . We think these sections of the Safety Responsibility Act relied upon by National are determinative of the first impression question raised by the appeal. It is clear that these sections sanction the type of policy which National issued to Dacy. AS 28.20.410 authorized the filing of a certificate by National which stated that it had issued an effective motor vehicle liability policy for the benefit of Dacy, an individual who was required to furnish proof of financial responsibility for the future. This same section of the Safety Responsibility Act specifically provides that the certificate of insurance shall designate by description or appropriate reference all of Dacy's vehicles covered by the National policy. Furthermore, it is equally apparent that the act contemplates two types of motor vehicle liability policies, namely, an owner's policy and an operator's policy. AS 28.20.440(b) (1) required National to designate all vehicles which the owner's policy issued to Dacy was intended to cover. AS 28.20.440(b) (2) required that National insure Dacy and every other person using the designated vehicle or vehicles with the express or implied permission of Dacy against loss from liability. In our view, these sections of the Safety Responsibility Act are inconsistent with Paulson's position that an owner's motor vehicle liability policy issued as proof of financial responsibility for the future must cover all vehicles owned by the insured. Admittedly these sections of the Safety Responsibility Act are in conflict with its declaration of purpose section in that they fall short of fully effectuating the act's stated goals. Yet it is not within the province of the judicial branch to attempt to fashion a remedy for every defect in legislation which has significance in litigation before Alaska's courts. We therefore hold that Alaska's Motor Vehicle Safety Responsibility Act does not require that an owner's policy, certified as proof of financial responsibility for the future, cover all vehicles owned by the insured. Other jurisdictions faced with contentions similar to those raised by Paulson have reached the same conclusion we have as to the proper construction of their respective Motor Vehicle Safety Responsibility Acts. Lynn v. Farm Bureau Mutual Automobile Insurance Company, 264 F.2d 921, 924 (4th Cir. 1959); Howell v. Travelers Indemnity Company, 237 N.C. 227, 74 S.E.2d 610 (1953); Government Employees Insurance Company v. Woods, 59 Wash.2d 173, 367 P.2d 21 (1961). shall insure the person named as insured against loss from the liability imposed upon him by law for damages arising out of the use by him of any motor vehicle not owned by him . One other facet of this appeal should be mentioned. Condition 9 of the policy which National issued to Dacy provided in regard to financial responsibility laws: When this policy is certified as proof of financial responsibility for the future under the provisions of the motor vehicle financial responsibility law of any state or province, such insurance as is afforded by this policy for bodily injury liability or for property damage liability shall comply with the provisions of such law which shall be applicable with respect to any such liability arising out of the ownership, maintenance or use of the automobile during the policy period, to the extent of the coverage and limits of liability required by such law, but in no event in excess of the limits of liability stated in this policy. The insured agrees to reimburse the company for any payment made by the company which it would not have been obligated to make under the terms of this policy except for the agreement contained in this paragraph. At oral argument counsel for Paulson contended that this condition of Dacy's policy incorporated by reference all the provisions of Alaska's Safety Responsibility Act and reiterated his contention that the act requires coverage for all automobiles owned by the insured. In rejecting a similar argument based upon Condition 9, the Supreme Court of Washington in Government Employees Insurance Company v. Woods, 50 Wash.2d 173, 367 P.2d 21, 26 (1961), said: There is no need to make a relatively complex analysis of the safety responsibility law in order to demonstrate that this paragraph fails to provide insurance coverage for every car owned by the insured. The quoted paragraph merely states that such insurance as i; afforded by the policy, with respect to bodily injury and property damage liability, shall comply with the statute. The provisions of the financial responsibility law are to apply to bodily injury and property damage liability ('such liability') which may arise out of ownership of 'the' automobile. By this provision, the coverage for 'the' automobile is extended, if necessary, to comply with the requirements of the statute. " ' "Coverage" means "the sum of risks which an insurance policy covers" ' ". Freimuth v. Glens Falls Insurance Co., 50 Wash.2d 621, 314 P.2d 468, 471 (1957). Under no circumstances could this provision of the policy be interpreted to provide coverage for any car other than the named automobile. When the provision takes effect, it is to protect against only such bodily injury or property damage liability connected with 'the' car, as the statute may require. The paragraph referred to provides for necessary expansion of coverage for the one car which is insured in the policy. It is not a blanket incorporation of the Washington safety responsibility law, but, rather, a self-limiting provision incorporating whatever coverage against public liability the statute may required [.sic] on the part of the insured with respect to the insured automobile. It is clear, then, that this provision of the policy does not expand the coverage of the policy to all other automobiles that the insured person may own or in which he may have a legal interest. Therefore, appellant's alternative contention also fails. (Emphasis in original.) The reasoning of Woods is persuasive and dispositive of Paulson's assertion that Condition 9 of the policy in the case at bar provided coverage for the vehicle Dacy was operating at the time of the accident. We therefore affirm the superior court's grant of summary judgment to National and denial of summary judgment to Paul-son. In reachng these conclusions we do so with full awareness that we are compelled to give effect to the owner's policy provisions of the act, which provisions simply do not measure up to the stated purpose of Alaska's Motor Vehicle Safety Responsibility Act. In such circumstances we do not believe it officious on our part to recommend to the legislature that it restudy the substantive portions of the act, with the view of amending the same to bring the act as a whole in conformity with the salutary goals stated in the declaration of purpose section of Alaska's Motor Vehicle Safety Responsibility Act. Affirmed. ERWIN and BOOCHEVER, JJ" nor participating. . AS 28.20.010-28.20.640. . AS 28.20.230(b) provides: The term 'proof of financial responsibility for the future' as used in this chapter means proof of ability to respond in damages for liability, on account of an accident occurring after the effective date of proof, which arises out of the .ownership, maintenance or use of a vehicle subject to registration under the laws of this state . In its answer, National asserted that Dacy only indicated that lie owned one vehicle, the 1966 Chevrolet pickup. . In reply to National's answer, Paulson alleged that National was aware that the Safety Responsibility Act "requires that the suspended motorist be covered personally in the operation of any and all vehicles." . National cross-claimed against Malasarte seeking judgment for any damages it may be found liable to pay to Paulson. . The partial summary judgment did not directly affect Paulson's claim for relief against Dacy. . AS 28.20.010. . AS 2S.20.020-2S.20.040; AS 28.20.030 (1). . AS 2S.20.050-2S.20.220. . AS 28.20.230-2S.20.000. In Ilart v. National Indemnity Co., 422 P.2d 1015 (Alaska 1967), we had occasion to examine the internal structure o£ the Motor Vehicle Safety Responsibility Act in considerable detail. . See note 2, supra, for the statutory definition of "proof of financial responsibility for the future." . AS 28.20.230(a). See also AS 28.20.-240. . AS 28.20.410. AS 28.20.390 provides alternative methods of giving proof of financial responsibility for the future for those who do not own a vehicle. This section of the act provides : Proof of financial responsibility for a person who is not the owner of n vehicle may be given by filing (1) a certificate of insurance as provided in § 410 or 420 of this chapter; (2) a bond as provided in § 470 of this chapter; (3) a certificate of deposit of money or securities as provided in § 490 of this chapter; or (4) a certificate of self-insurance as provided in § 400 of this chapter, supplemented by an agreement by the self-insurer that, for accidents occurring while the certificate is in force, he will pay the same amount that an insurer would be obligated to pay under an owner's motor vehicle liability policy if it had issued a policy to the self-insurer. .AS 28.20.410. . Compare AS 28.20.440(e) which states, in regard to an operator's policy of liability insurance, that such policy . AS 28.20.440(a). . We find the authorities relied upon by Paulson are all distinguishable, some because of differences in the wording of the particular state's Safety Responsibility Act. . We think there are many problem areas in our Safety Responsibility Act as now written. Several of the difficulties exposed by this litigation are in onr view worthy of study by the legislature. As a starting point, the legislature could consider the feasibility of the amendment of AS 2S.20.410 in order to delete "and shall designate by description or appropriate reference all vehicles covered by it, unless the policy is issued to a person who is not the owner of a motor vehicle." Compare California's comparable section of their financial responsibility law that was amended in 1965 by the deletion of "In addition the certificate shall designate by explicit description or by other appropriate reference all motor vehicles with respect to which coverage is granted by the policy certified to." Cal. Vehicle Code S 10431 (West 1971). Concerning AS 28.20.440(b) (1) and (2), the legislature could consider amendments deleting "designate by description or appropriate reference all vehicles which it covers" and deleting "the vehicle" from subsection (2). In California in 1965 that state's comparable section was amended by deletion of a subdivision which road, "Designate by explicit description or by appropriate reference all motor vehicles with respect to which coverage is thereby intended to be granted," and substitution of the words "owned motor vehicle" for "described motor vehicle." Cal. A'ehicle Code § 16451 (West 1971). See also Lynn v. Farm Bureau Mut. Automobile Ins. Co., 264 F.2d 921, 924 n. 1 (4th Cir. 1959), where the court refers to the fact that North Carolina amended its financial responsibility act to require not only that an operator's policy cover the insured against loss "arising out of the use by him of any motor vehicle not owned by him," but also to require that the operator's policy cover the insured while operating any motor vehicle owned by him.

10550743

Ronald BARBER, Appellant, v. NEW ENGLAND FISH COMPANY, Appellee

Barber v. New England Fish Co.

1973-05-25

No. 1636

806

813

510 P.2d 806

510

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:45.113322+00:00

CAP

FITZGERALD and BOOCHEVER, JJ., not participating.

Ronald BARBER, Appellant, v. NEW ENGLAND FISH COMPANY, Appellee.

Ronald BARBER, Appellant, v. NEW ENGLAND FISH COMPANY, Appellee. No. 1636. Supreme Court of Alaska. May 25, 1973. H. John DeNault III, Rice, Hoppner, Blair & Hedland, Anchorage, Alaska, for appellant. Bruce E. Gagnon, Atkinson, Conway, Young, Bell & Gagnon, Anchorage, Alaska, for appellee.

4181

25972

OPINION ERWIN, Justice. Appellant, Ronald Barber, an employee of the New England Fish Company, appel-lee, was injured while performing duties of his employment on or about July 22, 1969. Barber was employed as a longshoreman-stevedore and was injured while aboard ap-pellee's barge in the navigable waters of the United States. The barge was located at the dock of the Peterson Paint Company. Barber has received workmen's compensation benefits pursuant to Alaska Workmen's Compensation Act, equal to or in excess of $1,606.84. Barber sued New England Fish Company, setting forth a claim of unseaworthiness and a claim for negligence. New England Fish moved for a summary judgment stating that the "exclusive remedy" provision of Alaska's Workmen's Compensation Act precluded further recovery against the employer. A summary judgment was entered on November 17, 1971 by the superior court dismissing Barber's complaint. From the granting of summary judgment this appeal was taken. The sole issue for this court to decide is whether Barber's collection of workmen's compensation benefits precludes further recovery against his employer on a subsequent unseaworthiness claim. New England Fish Company contends that since Barber took advantage of Alaska's workmen's compensation benefits he is bound by the "exclusive remedy" provision of AS 23.30.0S5. There is little question that if Barber were bringing a-claim based on state law appellee's position would be correct. However, it should be noted at the outset that a claim of unseaworthiness involves a federal maritime right. It resembles a liability without fault action and is more favorable to the injured plaintiff than an ordinary negligence claim. Since an unseaworthiness claim is a federal maritime tort, the existing body of federal substantive law is controlling. We have previously held that Alaskan courts must apply the same substantive law as a federal court would when dealing with a federal maritime tort. Section 9 of the Judiciary Act of 1789 permits Barber to bring this action in a state court. This section implemented the constitutional extension of judicial power to "all cases of admiralty and maritime jurisdiction" by providing that: [T]he district courts . . . shall also have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction . . . saving to suitors, in all cases the right of a common law remedy, where the common law is competent to give it . . . . We commented upon the effect of the "saving to suitor clause" in Shannon v. City of Anchorage where we stated: This statute reserves to the federal courts in admiralty exclusive jurisdiction over in rein admiralty actions, that is, claims in the nature of maritime liens to be enforced usually against vessels. Generally, the "saving to suitors" clause means that a suitor asserting an in personam admiralty claim may elect to sue in a "common law" state court through an ordinary civil action. In such actions, the state courts must apply the same substantive law as would be applied had the suit been instituted in admiralty in a federal court. (Footnotes omitted, emphasis added.) Here again wc turn to federal substantive law as controlling for the issue presented. There is no recent United States Supreme Court decision on the precise issue presented. Appellee New England Fish cites the 1922 case of Grant Smith-Porter Ship Co. v. Rohde as controlling precedent. It claims Grant allows this court to hold that the "exclusive remedy" provision found in our workmen's compensation act may legitimately exclude plaintiff from pursuing his federal maritime claim of unseaworthiness. In Grant, the court concluded that admiralty jurisdiction reaches a vessel in the process of construction on navigable waters with respect to an action arising in tort. However, the court found that a carpenter injured while working on the construction of a vessel was not entitled to pursue his maritime remedy for the tort because he had elected to be covered under the Oregon Workmen's Compensation provision. The Supreme Court stated: [A]s to certain local matters, regulation of which would work no material preju dice to the general maritime law, the rules of the latter might be modified or supplemented by state statutes. The present case is controlled by that principle. The statute of the State applies and defines the rights and liabilities of the parties. The employee may assert his claim against the Industrial Accident Fund to which both he and the employer have contributed as provided by the statute, but he cannot recover damages in an admiralty court. (Emphasis added.) However, we agree with appellant Barber that the present case can be readily distinguished from Grant. In Grant, the Supreme Court of the United States found: (1) that the construction contract was non-maritime, and (2) that the plaintiff's employment had no direct relation to navigation or commerce. The importance of the nature of employment of the injured party was mentioned again in the more recent case of Calbeck v. Travelers Insurance Co., where the Supreme Court of the United States stated : Just a month later the Court decided Grant-Smith-Porter Ship Co. v. Rohde, supra, where, as in the cases before us, a shipbuilder's employee was injured while at work on new construction afloat on navigable waters. He recovered a judgment under a libel in admiralty, although Oregon had a state workmen's compensation law which made the remedy thereunder exclusive of all other claims against the employer on account of the injury. This Court reversed that judgment, holding that the accident was among those certain local matters, regulation of which [by the States] would work no material prejudice to the general maritime law. (Footnote omitted, emphasis added.) After Grant, the Supreme Court had another opportunity to decide whether a state workmen's compensation act could exclude federal maritime rights. In Millers' Indemnity Underwriters v. Braud the court stated a federal maritime right could be displaced if the matter is of mere local concern and its regulation by the state will work no material prejudice to any characteristic feature of the general maritime law. The act prescribed the only remedy; its exclusive features abrogate the right to resort to the admiralty court which otherwise would exist. The plaintiff in Millers' was engaged in removing the timbers on an abandoned set of ways in navigable waters. The Supreme Court in both Grant and Millers' stressed the local nature of the injured party's employment and noted that the state restrictions "would work no material prejudice to the general .maritime law." The Supreme Court has never held that similar restrictions on a longshoreman injured upon navigable water would be permissible. Even though Grant and Millers' are distinguishable, they both stand for the proposition that a state can limit a federal maritime right in some instances without violating the supremacy clause of the United States Constitution. Appellee also cites Alcoa Steamship Co. v. Rodriquez as authority for the proposition that a state can constitutionally restrict the maritime rights of a longshoreman, injured on navigable waters, who takes advantage of a state compensation act purporting to provide the "exclusive remedy". In Alcoa, a longshoreman employed by a shipowner was injured on a vessel owned by his employer. The vessel was in the navigable waters of Puerto Rico. The longshoreman was paid compensation benefits under the Puerto Rico Workmen's Compensation Act. The Puerto Rico Workmen's Compensation Act has an "exclusive remedy" provision similar to our AS 23.30.-055 which provided: When an employer insures his workmen or employees in accordance with this chapter, the right herein established to obtain compensation shall be the only remedy against the employer; hut in case of accident to, or disease or death of, the workmen or employees not entitled to compensation under this chapter, the liability of the employer is, and shall continue to be, the same as if this chapter did not exist. In Alcoa, subsequent to the award of compensation benefits, the plaintiff had brought an unseaworthiness claim against the owner of the vessel. The longshoreman claimed that the Puerto Rican statute could not cut off his federal maritime right. The court disagreed; while dismissing plaintiff's -claim the court stated: We adhere to the views expressed in our prior opinion to the effect that the Puerto Rico Workmen's Accident Compensation Act has, within the area of its applicability, displaced the remedies of the maritime law, including the federal Longshoremen's Act and provides the sole remedy of a Puerto Rico longshoreman against his employer for injuries sustained in the course of his employment. (Footnotes omitted.) We do not find Alcoa persuasive in the ultimate resolution of the present case. Puerto Rico occupies a unique position in the application of maritime laws as explained by the First Circuit Court of Appeals in Lastra v. New York and Porto Rico Steamship Co. and Guerrido v. Alcoa Steamship Co. The court concluded that Congress had specifically granted the Puerto Rico legislature the power and authority to control Puerto Rican waters. Section 8 of the Jones Act of 1917 gave the Puerto Rico legislature the authority to supercede federal maritime law with its own legislation, except for laws which the United States Congress has ex-, pressly made applicable to Puerto Rico. The -court in Alcoa relied on the unique status of Puerto Rico in concluding that the commonwealth compensation act could preclude the plaintiff's federal maritime right. We have been cited to no authority nor has our own research revealed any reason to believe that Alaska occupies a unique position parallel to that occupied by Puerto Rico, granting our legislature the same power to displace common law maritime concepts. There have been many cases which caution against states making substantial inroads into federal maritime rights. In Moragne v. States Marine Lines, the Supreme Court held that a plaintiff could maintain an action for wrongful death in an admiralty action despite a state law not permitting a wrongful death action based on a claim of unseaworthiness. In Kossick v. United Fruit Co., the Supreme Court held that a chief steward's action for maintenance and cure was incorrectly dismissed by applying the New York Statute of Frauds regarding verbal agreements. The court held the New York law inapplicable partly because the application of state law would disturb the uniformity of maritime law. Kermarec v. Companie Generale Trans- atlantique held inapplicable to an admiralty negligence action a state common law distinction between the shipowner's duty of care to a licensee and the duty of care to an invitee. Admiralty makes no such distinction. In McAllister v. Magnolia Petroleum Co., the court held that a state cannot apply its statute of limitation when an action for unseaworthiness is combined with an action for negligence under the Jones Act. In Burrage v. Flota Mercante Grancolombiana, S.A., the Fifth Circuit Court of Appeals recently stated that : If — and there cannot be a real if at all— the WWLP [indemnity] motion is an integral part of this court-created maritime law, then a state principle, statutory or Judge-made, which is a bar to effectual enforcement of the maritime right cannot constitutionally be applied since it works material prejudice to the characteristic features of general maritime law and interferes with the proper uniformity of that law contrary to Article 3, § 2 to the Constitution. (Emphasis added.) Not all state intrusion upon federal maritime rights is constitutionally impermissible. As noted previously, Grant and Millers' have never expressly been overruled. The Supreme Court has acknowledged a process of accommodation of federal and local interests in areas of overlapping state and federal concern. In Kos-sick v. United Fruit Company, the Supreme Court stated: Although the doctrines of the uniformity and supremacy of the maritime law have been vigorously criticized the qualifications and exceptions which this Court has built up to that imperative doctrine have not been considered notably more adequate. Perhaps the most often heard criticism of the supremacy doctrine is this: the fact that maritime law is — in a special sense at least — federal law and therefore supreme by virtue of Article 6 of the Constitution, carries with it the implication that wherever a maritime interest is involved, no matter how slight or marginal, it must displace a local interest, no matter how pressing and significant. But the process is surely rather one of accommodation, entirely familiar in many areas of overlapping state and federal concern, or a process somewhat analogous to the normal conflict of laws situation where two sovereignties assert divergent interests in a transaction as to which both have some concern. Surely the claim of federal supremacy is adequately served by the availability of a federal forum in the first instance and of review in this Court to provide assurance that the federal interest is correctly assessed and accorded due weight. Thus, for instance, it blinks at reality to assert that because a longshoreman, living ashore by shoreside employers, performs seaman's work, the State with these contacts must lose all concern for the longshoreman's status and well being... (Footnotes omitted.) The cutting point thus becomes whether prohibiting the plaintiff from pursuing his unseaworthiness claim because he took advantage of Alaska's Workmen's Compensation Act would materially prejudice the characteristic features of federal law and interfere with the uniformity of that law; or whether the federal system could accommodate such prohibition. We feel that if appellant is denied the right to pursue his maritime remedy a general prejudice to the features of maritime law would result. First, it should be noted that the work of a longshoreman has been held to bear a direct relation to the facilitation of com merce. It should also be observed that appellant, a longshoreman injured on navigable waters, might have qualified for benefits under the Federal Longshoremen's and Harbor Workers' Compensation Act. A longshoreman injured on navigable waters clearly has the right to bring an unseaworthiness action. It is now clear that if appellant had elected to accept benefits under the Longshoremen's Act, its "exclusive remedy" provision would not prohibit him from subsequently bringing an unseaworthiness action against the employer-shipowner. The "exclusive remedy" provision of the Longshoremen's Act is very similar to the one found in Alaska's Workmen's Compensation Act. The federal provisions read as follows: The liability of an employer prescribed in section 4 shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or his legal representative in case of death results from the injury, may elect to claim compensation with this chapter, or to maintain an action at law or in admiralty for damages on account of such injury or death. Thus a situation is presented whereby appellant has elected to avail himself of the state compensation benefits and argues he should have the same right of suing his employer-shipowner as if he elected to proceed under the federal act. We agree and feel any other result would work material prejudice to general maritime law contrary to the dictates of the constitution's supremacy clause as interpreted by the United States Supreme Court. Professor Larson in a recent law review article regarding the interplay of federal and state laws gives additional support to this position: But we cannot escape history, and we do not begin with a clean slate. In particular, we could begin now with a somewhat different set of values and objectives. Of these, the most cogent would be the recognition of the right of a state having a legitimate interest in an injury to apply its compensation remedies to that injury — even at the expense of accepting duplicate or multiple jurisdiction and consequent successive and supplementary awards. What disadvantage must be weighed against the advantage of allowing states this privilege, even vis-a-vis the federal Longshoremen's Act? So far as the employer is concerned, the worse that can happen to him is no more noxious than the worst that can happen under the McCartin rule: He ends by giving the employee the benefit of the act that happens to be more favor able to him. The assumption of the necessary insurance coverage is neither inconvenient nor unduly onerous. (Footnote omitted.) Finally, New England Fish Company contends that even if Alaska does not have the power to legislate generally with respect to maritime remedies regarding injuries received within its territorial waters, it would be contrary to the Submerged Land Acts to hold the state did not have the power to exclude a federal maritime remedy. The appellee cites 43 U.S.C. § 1311(a) as authority. That section provides in pertinent part: It is determined and declared to be in the public interest that (1) title to and ownership of the lands beneath navigable waters within the boundaries of the respective States, and the natural resources within such lands and waters, and (2) the right and power to manage, administer, lease, develop, and use the said lands and natural resources all in accordance with applicable State law be, and they are, subject to the provisions hereof, recognized, confirmed, established, and vested in and assigned to the respective States or the persons who were on June 5, 1950, entitled thereto under the law of the respective States in which the land is located, and the respective grantees, lessees, or successors in interest thereof.... However, appellee did not note a subsequent section of the same act which provides as follows: Nothing in this chapter shall affect the use, development, improvement, or control by or under the constitutional authority of the United States of said lands and waters for the purposes of navigation or flood control or the production of power, or be construed as the release or relinquishment of any rights of the United States arising under the constitutional authority of Congress to regulate or improve navigation, or to provide for flood control, or the production of power. (Emphasis added.) After an exhaustive search we could find no authority to support the position urged by appellee, nor were we directed to any. We hold that 43 U.S.C. § 1311 does not alter the dichotomy of state and federal power in this case. The decision of the court below is reversed and remanded insofar as it failed to allow appellant to pursue his maritime claim of unseaworthiness. FITZGERALD and BOOCHEVER, JJ., not participating. . Appellant Barber conceded that the trial court properly dismissed his claim for relief based on negligence at oral argument. Both parties concede that Barber was covered initially by Alaska Workmen's Compensation law. This issue does not have to be decided here but this decision should not be interpreted as holding a longshoreman injured on navigable waters is constitutionally permitted to receive benefits under Alaska's Workmen's Compensation law. This is a very complex area of the law and any decision on this point should be made only after full adversary presentations. See generally Larson, The Conflict of Laws Problem Between the Longshoremen's Act and State Workmen's Compensation Acts, 45 S.Cal.L.Rev. 699 (1972); 3 Larson, Workmen's Compensation Law § 89.22 (1971); Note, Admiralty — Dockside Injuries under the Longshoremen's and Harbor Worker's Compensation Act, 3 Ga.L.Rev. 622 (1969) ; Smith, George P., On the Waterfront at the Pier's Edge: The Longshoremen's and Harbor Worker's Compensation Act, 56 Cornell L.Rev. 114 (1970) ; Note, Jurisdictional Problems of Maritime Tort Actions: Application of State and Federal Remedies, 6 San Diego L.Rev. 470 (1969) ; Comment, The Tangled Seine: A Survey of Maritime Personal Injury Remedies, 57 Yale L.J. 243 (1947). . AS 23.30.055 provides in pertinent part: Exclusiveness of liability. The liability of an employer prescribed in § 45 of this chapter is exclusive and in place of all other liability of the employer and any fellow employee to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from the employer or fellow employee at law or in admiralty on account of the injury or death. However, if an employer fails to secure payment of compensation as required by this chapter, an injured employee or his legal representative in case death results from the injury may elect to claim compensation under this chapter, or to maintain an action against the employer at law or in admiralty for damages on account of the injury or death . See Arvidson v. Dillingham Corp., 462 F.2d 1 (9th Cir. 1972). . Seas Shipping Co. v. Sieracki, 328 U.S. 85, 89, 66 S.Ct. 872, 874, 90 L.Ed. 1099, 1103 (1946); The Osceola, 189 U.S. 158, 173-175, 23 S.Ct. 483, 486-87, 47 L.Ed. 760, 764 (1903). . Note, General Maritime Law Recognizes a Federal Remedy for Wrongful Death Caused by Unseaworthiness, 49 Tex.L. Rev. 128, 129 (1970). . "Consequently, the basis of [the plaintiff's] action is a maritime tort, a type of action which the Constitution has placed under national power to control in its substantive as well as its procedural features. . . ." (Footnotes omitted.) Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409-10, 74 S.Ct. 202, 204, 205, 98 L.Ed. 143, 151 (1953); Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946). . Shannon v. City of Anchorage, 478 P.2d 815, 818 (Alaska 1970); Maxwell v. Olsen, 468 P.2d 48, 51 (Alaska 1970). . U.S.Const. art. Ill, § 2. . 1 Stat. 76-77 (1789). This statute, presently codified as 28 U.S.C. § 1333 now reads in part as follows: The district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled. . 478 P.2d 815, 818 (Alaska 1970). . 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321 (1922). . Id. at 477-478, 66 L.Ed. at 325. . Id. at 477, 42 S.Ct. at 158, 66 L.Ed. at 324-825. . Id. at 475-476, 66 L.Ed. at 324. . 370 U.S. 114, 119, 82 S.Ct. 1196, 1199, 8 L.Ed.2d 368, 372 (1962). . 270 U.S. 59, 64-65, 46 S.Ct. 194, 195, 70 L.Ed. 470, 472 (1926). . 376 F.2d 35 (1st Cir.), cert. denied 389 U.S. 905, 88 S.Ct. 215, 19 L.Ed.2d 219 (1967). . 11 L.P.R.A. § 21. . 376 F.2d at 38. . 2 F.2d 812 (1st Cir. 1924). . 234 F.2d 349 (1st Cir. 1956). . Id. at 353-354. . 48 U.S.C. § 749. . 234 F.2d at 355. . It should also be noted that the Federal Longshoremen's Act does not apply to Puerto Rico. Hence, the only compensation act available to the injured longshoreman in Alcoa Steamship Co. v. Rodriguez was the commonwealth compensation act. Rosario v. Waterman S.S. Corp., 158 F.Supp. 537 (S.D.N.Y.1957). . 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970). . 365 U.S. 731, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961). . 358 U.S. 625, 79 S.Ct. 406, 3 L.E.d.2d 550 (1959). . 357 U.S. 221, 78 S.Ct. 1201, 2 L.Ed.2d 1272 (1958). . 431 F.2d 1229, 1234 (5th Cir. 1970). . 365 U.S. 731, 738-739, 81 S.Ct. 886, 891-892, 6 L.Ed.2d 56, 62-63 (1961). . Employers' Liab. Assurance Corp. v. Cook, 281 U.S. 233, 236, 50 S.Ct. 308, 309, 74 L.Ed. 823, 825 (1930). . 33 U.S.C. § 901 et seq. This court has insufficient information to determine whether the barge Barber was injured on complied with the minimum weight requirement of 33 U.S.C. § 903(a)(1), thus providing him with the coverage of the Longshoremen's and Harbor Workers' Compensation Act. . E. g. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 99, 66 S.Ct. 872, 879, 90 L.Ed. 1099, 1108-1109 (1946). . Jackson v. Lykes Bros. SS. Co., 386 U.S. 731, 87 S.Ct. 1419, 18 L.Ed.2d 488 (1967); Reed v. The Yaka, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963); Biggs v. Norfolk Dredging Co., 360 F.2d 360, 363 (4th Cir. 1966). A different situation may be presented in those cases where the claimant has executed a release to all claims. See Comeaux v. Two-R Drilling Co., 236 P.Supp. 735 (E.D.La.1964); Flener v. Waterways Oil Co., 261 P.Supp. 740 (W.D.Tenn.1966); Dacus v. Spin-Nes Realty & Const. Co., 22 N.Y.2d 427, 293 N.Y.S. 2d 83, 239 N.E.2d 718 (N.Y.1968). . 33 U.S.C. § 905. . Larson, The Conflict of Laws Problem Between the Longshoremen's Act and State Workmen's Compensation Acts, 45 S.Cal.L.Rev. 699, 736-37 (1972). . 43 F.S.C. § 1311(d). . It is clear that appellant is not to be permitted double recovery. If the appellant succeeds in this effort and ultimately in his suit, the employer may recoup those amounts already paid by deducting them when satisfying the judgment. In the event the compensation was paid by one insurer and the judgment becomes payable by another, the employer as legal debtor in both instances may retain from the settlement of the judgment the sums necessary to reimburse the compensation carrier. The two remedies are thus complimentary. Biggs v. Norfold Dredging Co., 360 F.2d 360, 364 (4th Cir. 1966).

10548530

Allen J. HARRIS and Billie J. Harris, Appellants, v. ALASKA TITLE GUARANTY COMPANY, Appellee

Harris v. Alaska Title Guaranty Co.

1973-05-25

No. 1578

501

505

510 P.2d 501

510

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:45.113322+00:00

CAP

Before RABINO WITZ, C. J., and CON-NOR, ERWIN and BOOCHEVER, JJ.

Allen J. HARRIS and Billie J. Harris, Appellants, v. ALASKA TITLE GUARANTY COMPANY, Appellee.

Allen J. HARRIS and Billie J. Harris, Appellants, v. ALASKA TITLE GUARANTY COMPANY, Appellee. No. 1578. Supreme Court of Alaska. May 25, 1973. Joe P. Josephson, Anchorage, for appellants. Roger Cremo, Anchorage, for appellee. Before RABINO WITZ, C. J., and CON-NOR, ERWIN and BOOCHEVER, JJ.

2519

15029

OPINION ERWIN, Justice. On July 16, 1961, Allen conveyed property by warranty deed to Jackson. Concurrently, a deed of trust was executed by Jackson as trustor, Alaska Title Guaranty Company as trustee, and Allen as beneficiary. On August 16, 1963, Jackson conveyed her interest in the property to Bradley by warranty deed dated August 16, 1963. Concurrently, a deed of trust was executed by Bradley as trustor, Alaska Title Guaranty Company as trustee, and Jackson as beneficiary. The Jackson deed of trust was specifically made subject to the Allen deed of trust, and the underlying obligation was, pursuant to the agreement between Jackson and Bradley, assumed by Bradley. The debt secured by the Allen deed of trust was $15,500.00. The debt secured by the Jackson deed of trust was $2,757.42. On November 29, 1964, Bradley executed a deed of trust conveying the same property, subject to the Allen and Jackson deeds of trust, to Alaska Title Guaranty Compa^ ny as Trustee and Harris as beneficiary to secure performance of an agreement. Sometime in 1967, Bradley became delinquent in his payments to Allen and Jackson. Jackson wished to keep the Allen payments current, but she was advised that any payments she made to Allen on behalf of Bradley would not be secured by her (Jackson) deed of trust. On the advice of the title company, and unaware of the existence of the Harris deed of trust due to an error in preparing the title report, she accepted a new deed of trust from Bradley securing the entire amount ($15,168.88) then owed by Bradley to her and Allen. The new deed of trust and a reconveyance under the original Jackson deed of trust were recorded on February 9, 1967. In the spring of 1967, 3000 Spenard Corporation became interested in acquiring the property. The corporation agreed to pay $25,500 for the property, provided Bradley could convey clear title. A title search disclosed the Allen, Jackson and Harris trust deeds. Contact with the encumbrancers indicated that the $25,500 would be sufficient to enable Bradley to secure releases of the trust deed and convey clear title. Accordingly the corporation deposited that amount in escrow with the title company and Bradley conveyed the property to 3000 Spenard Corporation. Harris, however, refused to authorize the reconveyance of his deed of trust. On August 8, 1967, the title company then purchased the Allen and Jackson trust deeds for the purpose of clearing title by foreclosure using the 3000 Spenard Corporation's deposit to do so. Allen and Jackson executed assignments of their interests to 3000 Spenard Corporation. On October 10, 1967, the corporation reassigned the Allen and Jackson trust deeds to the title company. Bradley owed the title company, as as-signee of Allen and Jackson, a total of $15,509.87, plus interest from July 17, 1967. However, only $12,613.10 of the $15,509.-87 was attributable to the Allen deed of trust while the balance was from the Jackson deed of trust. On December 22, 1967, the company recorded a notice of default. The notice declared that the Allen deed of trust was in default and that $15,509.87 plus interest was then owing on it. The trustee's sale was held, pursuant to the notice of default and notice of sale, on March 28, 1968, at 10:15 a. m. Harris did not attend and sent no representative. The title company was the highest bidder and purchased the property for an offset bid of $13,649.66. The property was conveyed to the title company by trustee's deed on April 2, 1968. On the same date, the title company conveyed the property to 3000 Spenard Corporation. Five days prior to the sale Harris, through his attorney, sent a letter to the title company's attorney. The letter expressed the opinion that the notice could not conceivably state the correct amount of the obligation and that, in any event, the deed of trust to be foreclosed may have been extinguished as a consequence of merger when the Allen and Jackson deeds of trust were transferred to 3000 Spenard Corporation. The letter asked that the March 28th sale be postponed. The title company did not agree. Harris initiated an action on March 27, 1968 praying for judgment declaring that the Allen deed of trust was "extinct, void and an annullity" and that his deed of trust was "a first deed of trust". He also asked that the company be "enjoined from continuing" the sale scheduled for the next day. An order enjoining the company from further proceedings until the date of hearing was signed by the court. On April 16, 1968, the judge declined to issue a preliminary injunction thus permitting the title company to proceed with the sale. The title company filed its motion for summary judgment on June 18, 1971. Pursuant to notice, the motion was heard on June 28th. Harris filed no opposition and did not appear. The court took argument and granted the motion. On July 8, 1971, Harris moved for relief from judgment. His motion was supported by counsel's affidavit explaining Harris' failure to oppose the summary judgment motion and a memorandum detailing substantive objections to summary judgment. Harris submitted no affidavit or other evidence to controvert the showing made by the title company. By reply the title company joined issue on Harris' substantive arguments. The motion was heard on July 27th on the merits of Harris' opposition to judgment. The court again granted the title company's motion for judgment. Judgment dismissing the complaint with prejudice and awarding costs to the title company was entered on August 2, 1971. In attacking the summary judgment below, Harris raises three major issues : a. In a complex case which turns upon questions of motivation and intent, summary judgment is inappropriate. b. The doctrine of merger of estates should have been applied in this instance. c. Defects in the notice of default and facts of sale indicate that plaintiff may have been injured. Since the first two issues are closely interrelated in this particular case, they will be discussed together. Generally, the question of intent is essentially one of credibility. The United States Supreme Court has recognized this and urged that summary judgment be used sparingly where intent is the main issue. [Wjhere motive and intent play leading roles, the proof is largely in the hands of the alleged conspirators, and hostile witnesses thicken the plot. It is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given their testimony can be appraised. Trial by affidavit is no substitute for trial by jury. As recently as 1971, this court said, "The most difficult determinations lie in the area of credibility. The question of when summary judgment should be denied because of credibility is difficult to determine." Harris is quite correct when he states that the question of merger inevitably involves the issue of intent. The doctrine of merger "is frequently applied to mortgages, but generally only when it accords with the actual or presumed intention of the parties." The mere fact that there are issues of credibility, does not preclude summary judgment. In Braund, this court said that: the party seeking the judgment must not only prove his own case but also disprove the affirmative defenses of his opponent . [But] [t]he respondent must present factual material to avoid summary judgment, and he may not rely on general allegations. 486 P.2d at 54 n.5 (Emphasis added.) The title company offered proof before the court below that there was never any intention of a merger by initial transfer of the Allen and Jackson deeds of trust to 3000 Spenard Corporation. Harris, on the other hand, offered nothing more than general allegations. Given this, it does not seem unreasonable for the superior court to find that no triable issue of fact existed. However, even if this court were to take the position that there was an issue of fact which should have gone to trial, the resulting error of the superior court in granting summary judgment is rendered harmless because, as a matter of law, "[t]he presence of an intermediate estate [i. e. the Harris deed of trust] prevents a merger." As one court has put it: Equity will not declare a merger under circumstances which will give the holder of an intervening incumbrance [sic] a greater lien and priority than he had. On the facts presented to the superior court, we agree there was no merger of estates, and that summary judgment was properly entered. As a final issue appellant urges that the notice of default was erroneous and thus the foreclosure was improper. More specifically, they contend that the notice of default set forth the amount owed and in default of $15,509.87, instead of the amount of $12,613.10 and, thus, they were prejudiced in this case. The Harrises cite the decision in Semlek v. National Bank of Alaska, 458 P.2d 1003 (1969), in support of their contention that the error invalidated the trustee's sale and that the sale must therefore be set aside. While Semlek is directly on point, the Harrises' reliance on the case is misplaced. Semlek concerned a notice of default which had included, in the amount stated as owing on the deed of trust obligation, an amount owed to the beneficiary on an unsecured loan. Claiming that the overstatement invalidated the trustee's sale, the debtor sued to have the sale set aside. Summary judgment dismissing the complaint was granted to the defendant bank, and the debtor appealed. This court affirmed the summary judgment, holding that "the remedy of setting aside the sale will be applied only in cases which reach unjust extremes." This court identified the following considerations as relevant to a determination of whether unjust extremes have been reached: "The defendant's counsel insisted, at the trial, that the claiming of too much, by $1845.35, in the notice of sale in this case, was a fraud upon the mortgagors, and rendered the foreclosure void. But no fraud was proved, and the excess in the notice, over the amount of the mortgage, may have been inserted therein by a mistake as to the legal rights of the owner of the mortgage; and because the mortgagor was in fact owing the full amount of money, claimed in the notice, on notes, drafts and other commercial paper held by the owner of the mortgage." 458 P.2d at 1007. (Quoting from a New York case.) Additionally, Semlek required the party claiming error to come forward with evidence that would tend to prove that they were in fact prejudiced by the "error" : Once the appellees had made a clear showing in support of their motion for summary judgment, it was incumbent upon the appellants to set forth facts showing that they could produce admissible evidence which reasonably would tend to dispute the appellees' evidence and demonstrate that a triable issue existed. 458 P.2d at 1007. As previously noted, no such showing was made by the Harrises. No actual problem appears from the record concerning the Harrises' ability to confirm the amount in default to the title company and thus to protect their interest at the sale. While the record does not show that the title company disclosed such information, it does demonstrate that the Harrises did have access to information concerning the indebtedness. It is also clear from the record that the Harrises did not attend and were not represented at the sale. Had the Harrises in fact been concerned about possible discrepancies in the amount claimed to be owed in the notice, the sale would have provided an appropriate opportunity to seek clarification. Their attendance would have been particularly appropriate to substantiate any claim that they made an attempt prior to the sale to obtain information about the amount owed and could not obtain such information. In addition to the information they might have acquired, they would have discovered at the sale that the title company exercised its offset only as to the amount in default from the "Allen" portion of the debt; and that, contrary to the allegation of their complaint, they would not have been "required to make an unnecessary [high] bid in order to protect their interest." The decision of the trial court is hereby affirmed. FITZGERALD, J., not participating. . Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458, 464 (1962) (Footnote omitted.). . Braund, Inc. v. White, 486 P.2d 50, 53 n. 3 (Alaska 1971); see e. g. McKean v. Hammond, 445 P.2d 679 (Alaska 1968); Hobbs v. Mobil Oil Co., 445 P.2d 933 (Alaska 1968); Bertram v. Harris, 423 P.2d 909 (Alaska 1967); Wilson v. Pollet, 416 P.2d 381 (Alaska 1966); Maier v. City of Ketchikan, 403 P.2d 34 (Alaska 1965); but see Morrison v. City of Anchorage, 390 P.2d 782 (Alaska 1964). . Tiffany, Real Property (Abridged) § 917, at 984 (1940). 9 Thompson on Real Property, § 4798, at 586 (1958 Replacement). See Factors' & Traders' Ins. Co. v. Murphy, 111 U.S. 738, 4 S.Ct. 679, 28 L.Ed. 582 (1884). Merger may arise in three ways: the mortgagee may acquire the equity of redemption from the mortgagor ; the person who owns the equity of redemption may acquire the mortgage lien ; or a third party may purchase both interests. See Kelly v. Weir, 243 F.Supp. 588 (E.D.Ark.1965). . Miller v. City of Fairbanks, 509 P.2d 826 (Alaska, 1973); Nizinski v. Golden Valley Electric Association, Inc., 509 P.2d 280 (Alaska, 1973). . 9 Thompson on Real Property, § 4798, at 584 (1958 Replacement); accord Anno. 95 A.L.R. 629 (1935). . Toebe v. Wulfing, 140 S.W.2d 1116 (Mo.App.1940); accord 4 American Law of Property, § 16.144, at 341 (1952): More generally the decisions may be justified on grounds of unjust enrichment, a doctrine implicit in the rationale of fairness in giving effect to the mortgage creditor's intent when it appears. By the destruction of the prior mortgage, the later lien or interest is elevated to a priority for which its owner paid nothing and hence is, as to him, a pure windfall. And it is a windfall at the expense of the prior mortgagee. See also Factors' & Traders' Ins. Co. v. Murphy, 111 U.S. 738, 4 S.Ct. 679, 28 L.Ed. 582 (1884); Kelly v. Weir, 243 F.Supp. 588 (E.D.Ark.1965); Ross v. Loyola Fed. Sav. & Loan Assn., 245 Md. 507, 226 A.2d 553 (1967); American Sav. & Loan Ass'n v. Eidelberg, 54 Misc.2d 668, 283 N.Y.S.2d 255 (Supreme Court Rockland Co. 1967); Small v. Cunningham, 120 N.W.2d 13 (N.D.1963). See generally 3 Powell on Real Property § 459 passim (Rohan ed. 1970); 5 Tiffany, Law of Real Property, § 1481, passim (3rd ed. 1939). .There is a question of whether the amount claimed due and owing was misstated since the title company had in fact acquired both the Allen and Jackson deeds of trust. . 458 P.2d at 1006.

10556943

RUSSIAN ORTHODOX GREEK CATHOLIC CHURCH OF NORTH AMERICA, Appellant, v. ALASKA STATE HOUSING AUTHORITY, a public corporation, Appellee

Russian Orthodox Greek Catholic Church of North America v. Alaska State Housing Authority

1972-06-26

No. 1600

737

743

498 P.2d 737

498

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:36.285560+00:00

CAP

Before BONEY, C. J., and RABINO-WITZ, CONNOR, ERWIN and BOO-CHEVER, JJ.

RUSSIAN ORTHODOX GREEK CATHOLIC CHURCH OF NORTH AMERICA, Appellant, v. ALASKA STATE HOUSING AUTHORITY, a public corporation, Appellee.

RUSSIAN ORTHODOX GREEK CATHOLIC CHURCH OF NORTH AMERICA, Appellant, v. ALASKA STATE HOUSING AUTHORITY, a public corporation, Appellee. No. 1600. Supreme Court of Alaska. June 26, 1972. Milton M. Souter, Anchorage, for appellant. L. S. Kurtz, of Burr, Pease & Kurtz, Inc., Anchorage, for appellee. Before BONEY, C. J., and RABINO-WITZ, CONNOR, ERWIN and BOO-CHEVER, JJ.

3028

17981

OPINION BOOCHEVER, Justice. This is an appeal from a denial of prejudgment interest and attorney's fees in an eminent domain proceeding. The parties have helpfully entered into a Stipulation Regarding Facts and Record on Appeal succinctly setting forth the factual background which may be summarized as follows. The Alaska State Housing Authority (ASHA) commenced this action on September 19, 1968 by filing a Complaint for Condemnation and a Declaration of Taking. It sought to condemn two adjoining parcels of land in Kodiak, Alaska, said parcels being designated as Parcels 8-5 and 8-5a. The fee to Parcel 8-5 was held by the Russian Orthodox Greek Catholic Church of North America (Church), and the fee to Parcel 8-5a was held by the Fitzgeralds. At the time of the commencement of the action ASHA had actual notice of a long-term lease whereby the Church had leased Parcel 8-5 to the Fitzgeralds. The lease contained the following provision : It is mutually agreed that in the event of any condemnation proceedings wherein any part of the above-described property [Parcel 8-5], or any structure thereon, is condemned under the laws of the city, territory, state, or federal government, then in that event the proceeds from such proceedings derived from the appropriation of buildings or structures situated on the above-described property shall revert to the lessee, and the proceeds derived from the appropriation of any of the above-described realty shall revert to the lessor, . The Kodiak Hotel building was situated primarily on Parcel 8-5 and partially on Parcel 8-5a. Upon filing the action, ASHA deposited in the court registry the sums of $169,835 and $1,800 as the estimated just compensation for the taking of Parcels 8-5 and 8-5a respectively. The sums were not segregated as to the amounts for the taking of the land in the parcels as opposed to the amount for taking of the hotel structure. Approximately one month after commencement of the action, the parties stipulated that the Church could withdraw $25,-000 from the court registry and that the Fitzgeralds and their privies could withdraw $136,635 therefrom, with $10,000 to remain in the registry pending a final decree in the action. A master's hearing was waived and at the jury trial which ensued, ASHA presented only one witness, an appraiser, Raymond A. Richards, who testified as to the following fair market values of the properties being condemned: a. The fee interest in the land contained in Parcel 8-5-$26,149 b. The fee interest in the land contained in Parcel 8-5a-$1,895 c. The hotel structure — $56,965 d. The hotel furnishings and fixtures— $7,500 After hearing testimony from all parties the jury set the following sums as the just compensation for the properties taken: a. The fee interest in the land contained in Parcel 8-5-$33,700 b. The fee interest in the land contained in Parcel 8-5a (determined by stipulation extending the value per square foot of Parcel 8-5 to 8-5a)-$2,441.88 c. The hotel structure-$64,000 d. The hotel furnishings and fixtures -$9,000 The Fitzgeralds contested the Church's claim to the entirety of the condemnation proceeds for its fee interest in the land contained in Parcel 8-5. The Church obtained a summary judgment against the Fitz-geralds resulting in the entire $33,700 for fee interest in Parcel 8-5 being awarded to it. On May 26, 1971 the Church also obtained a judgment against ASHA for the difference between the $25,000 withdrawn and the $33,700 award ($8,700) together with interest at six percent per annum from September 19, 1968 (the date of the original taking) until paid. Upon opposition being filed by the state, the court denied the Church's motions to fix attorney's fees and prejudgment interest. (In effect the court modified its former judgment by eliminating the interest from September 19, 1968 to the date of judgment.) The Church has appealed from the denial of prejudgment interest and attorney's fees. The total amount awarded by the jury ($109,141.88) was substantially less than the amount deposited by the state ($171,-635). AS 09.55.440 provides for interest on the amount awarded which exceeds the amount paid into court under the declaration of taking. ASHA contends that since the total amount deposited exceeded the total award no interest is due. The Church, however, was awarded $8,700 more than the amount the parties had stipulated to be withdrawn for its interest in the property. We are thus confronted with the questions of whether, under these circumstances, the Church was entitled to receive interest on the $8,700 portion of the award in excess of the amount of the deposit withdrawn by it, and whether the Church was entitled to receive an attorney's fee as part of its costs. In evaluating these issues it is helpful to look to their constitutional background. The fifth amendment to the United States Constitution provides in part: ". . . nor shall private property be taken for public use, without just compensation." The Alaska Constitution has a similar provision. These constitutional requirements necessitates that a property owner be compensated for delays incurred between the dates of the government's taking of property and making payment. If an award were paid immediately upon the taking of the land by the state no damages to the property owner would ensue. But where, due to the necessity of legal proceedings to ascertain fair market value of property, delays ensue, the property owner is entitled to an adequate sum to reimburse him for the loss of use of the money during the period of such delay. To hold otherwise would constitute a taking of the property without just compensation. Therefore, it is well established that the owner of property is entitled to interest from the date of taking to the date of payment. Alaska has established a procedure by which the condemnor may take immediate possession of the property upon the filing of a declaration of taking with the complaint. The declaration of taking must include: "a statement of the estate or interest in the property" and "a statement of the amount of money estimated by the plaintiff to be just compensation for the property or the interest in it." Upon the filing of the declaration of taking and the deposit of the estimated compensation, the court may enter an order placing the plaintiff in possession of the property. Civil Rule 72(j) provides that where a deposit has been made . . . the court and attorneys shall expedite the proceedings for the distribution of the money so deposited. . If the compensation finally awarded to any defendant exceeds the amount which has been paid to him on distribution of the deposit, the court shall enter judgment against the plaintiff and in favor of that defendant for the deficiency. If the compensation finally awarded to any defendant is less than the amount which has been paid to him, the court shall enter judgment against him and in favor of the plaintiff for the overpayment. In the subject case a lump sum deposit was made for Parcel 8-5 although the state was aware that there were separate interests owned by the Church and the Fitzgeralds in the property taken. When more than one party has an interest in property and a lump sum is deposited without segregation as to the amount estimated to be just compensation for the various interests, it is generally impossible to receive a speedy withdrawal of the funds. Under those circumstances the property owners necessarily will suffer a delay in receiving compensation for the value of their interest in the property taken. Where the amount to be deposited for the property may readily be segregated to reflect such interests, the government is obligated to allocate the deposit among the parcels taken in order to stop the running of interest. In United States v. 355.70 Acres of Land etc., the property condemned consisted of a number of separate parcels owned by different people. The government deposited a lump sum without giving any indication as to how the money might be allocated among the owners. The court of appeals held that interest could be avoided under the federal declaration of taking statute, 40 U.S.C. § 258a only where the amount paid into court is available for immediate withdrawal by the owner or owners of the separate interests in the land. The court stated that "[a] blanket estimate arid deposit covering several parcels and not attended by allocation among them is not an effective tender of any sum for any parcel." While 355.70 Acres of Land dealt with a lump sum deposit without allocation between owners of various parcels of land, the same rationale should apply when as in the subject case the state knows that there are separate claimants as to land and the structure located on it. As indicated by the testimony of the state's sole witness, its appraisal allocated separate values for the fee interest in the land contained in Parcels 8-5 and 8-5a as well as for the hotel structure and its furnishings and fixtures. It would have been a simple matter to deposit a separate amount for the hotel structure, its furnishings and fixtures. Since this was not done, the property owner should not be deprived of interest from the time of taking of the property until such time as he receives payment. We would be confronted with a more difficult problem if there were multiple complex subordinate rights in the property. Such facts would give rise to competing interests between the state and the property owners. The state by necessity could only make a lump sum deposit until legal disposition is made as to a proper allocation. The owners of rights in the property would be deprived of the use of the deposited funds as a result of the delays necessarily incurred before allocation permitted withdrawal. Under such circumstances we might well hold that the Alaska Constitution and statutory procedures go beyond the construction placed on the federal provisions, and require that the unavoidable burden created by such a situation should be borne by the governmental agency taking the property, rather than by the individual forced to relinquish ownership for the public benefit. In any event, we are not faced with such an issue at this time and accordingly need not pass upon it. We limit our ruling to those situations where it is feasible to allocate a deposit between readily recognizable separate interests. If due to no fault of a property owner he is unable to withdraw funds because of such failure to segregate the deposit, he is entitled to interest from the date of taking until payment. We are further persuaded by the fact that AS 09.55.430(6) quoted, supra note 2, requires that the declaration of taking set forth the amount of money estimated to be just compensation for the interest in property. Such an interest may just as well be in structures as land taken, so that where the state has adequate knowledge of such separate interests, amounts should be specified for each. 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. Here there is no indication that the failure to withdraw more than the $25,000 was attributable to any fault of the Church. The parties, including the state, stipulated to the withdrawal by the Church of $25,000. The compensation finally awarded to the Church exceeded the amount which was paid to it on distribution of the deposit by $8,700 so that the court was required to enter judgment in favor of the Church in that amount. Prejudgment interest should have been awarded on the $8,700 from the date of taking. As pertains to the issue with reference to the denial of attorney's fees to the Church, Civil Rule 72(k) specifies that: Costs and attorney's fees shall not be assessed against the plaintiff, unless: (2) the award of the court was at least ten (10) percent larger than the amount deposited by the condemning authority or the allowance of the master from which an appeal was taken, or (4) allowance of costs and attorney's fees appears necessary to achieve a just and adequate compensation of the owner. Here the amount awarded was at least 10 percent larger than the amount which the state stipulated could be withdrawn by the Church and further, the allowance of costs and attorney's fees appears necessary to achieve a just and adequate compensation for the owner. The judgment of the court below is reversed insofar as it failed to award prejudgment interest and attorney's fees to the Church. . Such stipulations are authorized by Supreme Court Rule 9(c). . The statutory authorities for this procedure are set forth in: AS 09.55.420. Declaration of taking by state or municipality. Where a proceeding is instituted under § 240-460 of this chapter by the state, it may file a declaration of taking with the complaint or at any time after the filing of the complaint, but before judgment. AS 09.55.430. Contents of declaration of taking. The declaration of taking shall contain (1) a statement of the authority under which the property or an interest in it is taken; (2) a statement of the public use for which the property or an interest in it is taken; (3) a description of the property sufficient for the identification of it; (4) a statement of the estate or interest in the property; (5) a map or plat showing the location of the property; (6) a statement of the amount of money estimated by the plaintiff to be just compensation for the property or the interest in it. . The Church did not contest the right of the Fitzgeralds to receive all of the just compensation awarded by the jury for Parcel S-5a, the hotel structure and the hotel furnishings and fixtures. . AS 09.55.440 provides : Vesting of title and compensation. (a) Upon the filing of the declaration of taking and the deposit with the court of the amount of the estimated compensation stated in the declaration, title to the estate as specified in the declaration vests in the plaintiff, and that property is condemned and taken for the use of the plaintiff, and the right to just compensation for it vests in the persons entitled to it. The compensation shall be ascertained and awarded in the proceeding and established by judgment. The judgment shall include interest at the rate of six per cent per year on the amount finally awarded which exceeds the amount paid into court under the declaration of taking. The interest runs from the date title vests to the date of payment of the judgment. (b) 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. . The Fitzgeralds had opposed the motion on the ground that they had a compensable leasehold interest in the land and that the provision of the lease quoted on page 3, supra, was inapplicable to the taking of all of the demised premises. On appeal we affirmed the trial court's granting of the summary judgment to the Church. Fitzgerald v. Alaska State Housing Authority (Russian Orthodox Greek Catholic Church), 497 P.2d 917 (Alaska, June 5, 1972). . Quoted supra, note 4. . Alaska Const, art. I, § 18 provides: Private property shall not be taken or damaged for public use without just compensation. . E. g., Smyth v. United States, 302 U.S. 329, 353-354, 58 S.Ct. 248, 252-253, 82 L.Ed. 294, 299 (1937) ; United States v. Highsmith, 255 U.S. 170, 41 S.Ct. 282, 65 L.Ed. 569 (1921) ; United States v. Rogers, 255 U.S. 163, 41 S.Ct. 281, 65 L.Ed. 566 (1921) ; Sheckels v. District of Columbia, 246 U.S. 338, 38 S.Ct. 322, 62 L.Ed. 761 (1918) ; Tillson v. United States, 100 U.S. 43, 25 L.Ed. 543 (1879). See also 3 Nichols on Eminent Domain § 8.63 (Sackman 3d ed. rev. 1965). . Id. . AS 09.55.420, set forth supra, at note 2. . AS 09.55.430(4) & (6), set forth supra at note 2. . AS 09.55.450. . See also AS 09.55.440(b), set forth supra at note 4. . 327 F.2d 630 (3d Cir. 1964). . AS 09.55.420, AS 09.55.430 and AS 09.-55.440. AS 09.55.440 is quoted supra note 4. . United States v. 355.70 Acres of Land etc., 327 F.2d 630, 632 (3d Cir. 1964). . In a case involving condemnation of commercial property in New York City where there were many lessees with complex subordinate interests in the property, the Second Circuit Court of Appeals refused to require the government to pay interest on deposited amounts which could not be withdrawn until rights were established by the various claimants. United States v. 53¾ Acres of Land etc., 176 F.2d 255 (2d Cir. 1949). See also United States v. 287.89 Acres of Land etc., 283 F.Supp. 190 (W.D.Pa.1968). .In Atlantic Const Line R. Co. v. United States, 132 F.2d 959, 962-963 (5th Cir. 1943), failure of property owners to make application to the court for their part was held to constitute a delay attributable to them, thus eliminating the right to interest. Cf. United States v. 0.45 Acre of Land etc., 151 F.2d 114 (2d Cir. 1945). . Civ.R. 72 (j) set forth supra, at pp. 498-741. . Alaska generally allows prejudgment interest. E. g., State v. Phillips, 470 P.2d 266, 274 (Alaska 1970).

10564977

Gordon H. ROBERTS, Appellant, v. STATE of Alaska, Appellee

Roberts v. State

1969-09-05

No. 992